Atul Mathur S/O Anil Kumar Mathur vs Rajasthan Public Service ...
2021 Latest Caselaw 2799 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

                S.B. Civil Writ Petition No. 5870/2021

Atul Mathur S/o Anil Kumar Mathur, Aged About 46 Years, R/o
85, Ganesh Nagar, Iskon Road, Mansarovar, Jaipur, Rajasthan.
                                                                      ----Petitioner
                                     Versus
1.     Rajasthan      Public      Service        Commission,          Through    Its
       Secretary, Ajmer.
2.     State     Of     Rajasthan,          Through         Principle     Secretary
       Department        Of     Personnel        And      Training      Government
       Secretariat, Jaipur.
3.     The     Registrar,       Cooperative        Societies,        Nehru   Sehkar
       Bhawan, Bhawani Singh Road, 22 Godam Circle, Jaipur,
       Rajasthan.
                                                                  ----Respondents

For Petitioner(s)           :    Mr. R.P. Saini.
For Respondent(s)           :

HON'BLE MR. JUSTICE INDERJEET SINGH

Order

12/07/2021

Counsel for the petitioner submits that the issue involved in

this writ petition has already been considered and decided by this

court in the matter of Shatendra Kumar Vs. Rajasthan Public

Service Commission & Ors. (S.B. Civil Writ Petition

No.4494/2021 along with other connected matters) where in on

09.07.2021, the following order was passed:-

"These writ petitions being identical, with consent of parties have been heard together and are being decided by the present order. The prayer made in the writ petition-CWP-4427/2021 reads as under:-

"It is therefore, most respectfully prayed that this Hon'ble Court may very graciously be pleased to

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accept and allow this writ petition and further be pleased to :

i) Issue an appropriate writ order or direction in the nature thereof thereby, the respondents be directed to call the petitioners in the interview process for the post of RAS- 2018 (Raj. State and Subordinate Services-2018) and if they succeed in the interview process then give appointment to them.

ii) Issue an appropriate writ order or direction in the nature thereof thereby, the respondents be directed to oust the ineligible candidates who does not pertains to Department candidates Category (Rajasthan Cooperative Subordinate Services) Category and wrongly filled up their form under DC Category, for the post of RAS pre/ main Exam-2018.

Iii) Issue an appropriate writ order or direction in the nature thereof thereby, the respondents be directed to include the candidates in the selection process for the post of RAS-2018 DC (Rajasthan Cooperative Subordinate Services) Category who have taken permission to appear in the examination of RAS-2018 from the Rajasthan Cooperative Societies.

iv) Issue an appropriate writ, order or direction in the nature thereof thereby the result of RAS Pre dated 23.10.2018 by which they have selected ineligible candidates and Result dated 09.07.2020 and cut off list pertaining to RAS (Main) Examination, 2018 (Non TSP) (Mains), be declared illegal and same be quashed and set aside and thereby the respondent RPSC directed to issue fresh amended result by including the petitioners in the selection process.

v) Issue an appropriate writ order or direction in the nature thereof thereby the respondents may kindly be directed not to carry forward the post of Department Candidates Category and not fill up the posts of DC Category through normal procedure and further the action of the respondents be declared illegal by which they have illegal failed the petitioners in the RAS Pre Exam and also cancelled their RAS Main Exam.

vi) Issue an appropriate writ, order or direction in the nature thereof thereby, the respondents may kindly be directed to select 2.5 times candidates instead of 1.9 times candidates for participating in the interview process pursuant to RAS (Main) Examination, 2018.

vi) Pass any other appropriate order which this Hon'ble Court may deem fit, just and proper in the facts and circumstances of the case in favour of the petitioners.

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vii)Cost of the writ petition be also awarded in favour of the petitioners."

Brief facts of the case are that in pursuance to the advertisement dated 02.04.2018 issued by the respondent-RPSC the petitioners applied for the subject post in Rajasthan State and Subordinate Services and participated in the preliminary examination which was held on 05.08.2018. Result of the preliminary examination was declared on 23.10.2018 and the result of main examination was declared on 09.07.2020, thereafter extended result was also declared on 12.03.2021. According to the information of the petitioners, now the interviews are going on for which the last date scheduled is 13.07.2021.

Counsel for the petitioners submits that at earlier point of time the petitioners also filed S.B. Civil Writ Petition No.2763/2019 & 26171/2018 which were dismissed vide order dated 18.10.2019 as having become infructuous as the petitioners were lower in the merit. The order dated 18.10.2019 reads as under:-

"The petitioner was allowed vide order dated 29.05.2019 to participate in the RAS/RTS Main Examination2018 as a Departmental Candidate for the post of Excise Inspector, which was one of the post included in the RAS and allied Examination- 2018. The notice was served as the RPSC had not declared a separate cut-off for the departmental candidates and the Excise Department as well as the Tax Department. After notices have been served, RPSC filed its reply and they have now declared a separate cut-off and result for the Rajasthan Sale Tax Subordinate Service and that Rajasthan Excise Subordinate Service and other subordinate services on 31.05.2019 and cut-off has also been declared.

In view thereof, learned counsel for petitioner has pointed out that he has not been able to get the cut-off marks as laid down by the RPSC, however, he wants to challenge the result prayed for Rajasthan Excise Subordinate Service as those who have not even taken permission as departmental candidates were allowed by the RPSC for being declared in the said category. I have considered the submissions and find that the petitioner has not raised any such submission in the present writ petition. In view thereof, the writ petition upon declaration of the result separately of Rajasthan Excise Subordinate Service has been rendered as infructuous. By an interim order as has noticed above, the petitioner was allowed to appear in the main examination, however, this court finds that he has

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not obtained the cut-off thus his result cannot be declared. However, this interim order shall be made protective by declaring these writ petitions as having become infructuous and granting liberty to the petitioner to challenge the result of the Excise Subordinate Service as declared by the RPSC on the grounds which he wants to take. Any order which may passed by the court in the said writ petitions, if so filed, would govern the result of the petitioner.

With the aforesaid, writ petitions stand disposed of."

Counsel further submits that earlier the petitioners were given liberty to file fresh writ petition. Counsel further submits that the petitioners belong to departmental category and the respondent-RPSC is not selecting the candidates as per terms and conditions of the advertisement. Counsel further submits that the respondents are violating Rule 15 of the Rajasthan State and Subordinate Service Rules.

Counsel further submits that the respondent- RPSC is selecting ineligible candidates and prayed that the respondent-RPSC be stopped from recruiting ineligible candidates.

Counsel appearing on behalf of the respondent-RPSC submitted that the petitioners have filed the writ petitions at belated stage when the interviews are going to be completed on 13.07.2021 itself. Counsel further submits that the petitioners even have not qualified in the preliminary examination and the petitioners have failed to implead the persons as party respondent in the writ petitions for whom they have alleged to be ineligible in view of the prayer made in the writ petitions. Counsel further submits that after participating in the selection process with open eyes, the petitioners are estopped to question the process of selection in view of the judgment passed by the Hon'ble Supreme Court in the matter of Ashok Kumar & Anr. Vs. State of Bihar & Ors. reported in (2017) 4 Supreme Court Cases 357 wherein paras No.13 to 18 it has been held as under:-

"13. The law on the subject has been crystalized in several decisions of this Court. In Chandra Prakash Tiwari v. Shakuntala Shukla (2002), this Court laid down the principle that when a candidate appears at an examination without objection and is subsequently found to be not successful, a challenge to the process is precluded. The question of entertaining a petition challenging an examination would not arise where a candidate has appeared and participated. He or she cannot subsequently turn around and contend that the

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process was unfair or that there was a lacuna therein, merely because the result is not palatable.

In Union of India               v. S. Vinodh Kumar
MANU/SC/7926/2007 :            (2007) 3 SCC 100, this
Court held that:

"18. It is also well settled that those candidates who had taken part, in the selection process knowing fully well the procedure laid down therein were not entitled to question the same.(See Munindra Kumar v. Rajiv Govil (1991) and Rashmi Mishra v. M.P. Public Service Commission).

14. The same view was reiterated in Amlan Jyoti Borroah where it was held to be well settled that candidates who have taken part in a selection process knowing fully well the procedure laid down therein are not entitled to question it upon being declared to be unsuccessful.

15. In Manish Kumar ShahI v. State of Bihar, the same principle was reiterated in the following observations:(SCCp.584, para 16)

"16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the Petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The Petitioner invoked jurisdiction of the High Court Under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the Petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition. Reference in this connection may be made to the Judgments in Madan Lal v. State of J &K, Marripati Nagaraja v. Government of Andhra Pradesh, Dhananjay Malik and Ors. v. State of Uttaranchal, Amlan Jyoti Borooah v. State of Assam and K.A. Nagamani v. Indian Airlines.

16.In Vijendra Kumar Verma v. Public Service Commission, candidates who had participated in the selection process were aware that they were required to possess certain specific qualifications in computer operations. The Appellants had appeared in the selection process and after participating in the interview sought to challenge the selection process as being without jurisdiction. This was held to be impermissible.

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17. In Ramesh Chandra Shah v. Anil Joshi, candidates who were competing for the post of Physiotherapist in the State of Uttrakhand participated in a written examination held in pursuance of an advertisement. This Court held that if they had cleared the test, the Respondents would not have raised any objection to the selection process or to the methodology adopted. Having taken a chance of selection, it was held that the Respondents were disentitled to seek relief Under Article 226 and would be deemed to have waived their right to challenge the advertisement or the procedure of selection. This Court held that (SCC P.318, para18) "18. It is settled law that a person who consciously takes part in the process of selection cannot, thereafter, turn around and question the method of selection and its outcome".

18.In Chandigarh Admn. v. Jasmine Kaur, it was held that a candidate who takes a calculated risk or chance by subjecting himself or herself to the selection process cannot turn around and complain that the process of selection was unfair after knowing of his or her non-selection. In Pradeep Kumar Rai v. Dinesh Kumar Pandey, this Court held that:(SCC P. 500, para17) "17. Moreover, we would concur with the Division Bench on one more point that the Appellants had participated in the process of interview and not challenged it till the results were declared. There was a gap of almost four months between the interview and declaration of result. However, the Appellants did not challenge it at that time. This, it appears that only when the Appellants found themselves to be unsuccessful, they challenged the interview. This cannot be allowed. The candidates cannot approbate and reprobate at the same time. Either the candidates should not have participated in the interview and challenged the procedure or they should have challenged immediately after the interviews were conducted."

This principle has been reiterated in a recent judgment in Madras Institute of Development Studies V. S.K. Shiva Subaramanyam."

Heard counsel for the parties and perused the record.

The writ petitions filed by the petitioners deserve to be dismissed for the reasons firstly; the petitioners have prayed in these writ petitions that ineligible candidates be ousted from the process of selection but the petitioners have failed to implead any such person as party respondent in the writ

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petitions; secondly, the petitioners are estopped to question the process of selection after participating in the same, after being lower in the merit as per result declared by the RPSC; thirdly, on the basis of information received in reply under RTI given to them which supplied to them way back on 28.07.2019, the petitioners have filed writ petitions after a delay of almost two years; lastly, i n the facts and circumstances of the present case, I am not inclined to exercise the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India at such a belated stage.

Hence, these writ petitions stand dismissed

In that view of the matter, this writ petition stands dismissed

in view of the judgment passed by this court in the matter of

Shatendra Kumar (supra).

(INDERJEET SINGH),J

MG/73

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