Rajasthan High Court

Mouhammad Shahid S/O Ataullah vs State Of Rajasthan on 13 July, 2021

Bench: Inderjeet Singh

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

               S.B. Civil Writ Petition No. 7059/2021

Mouhammad Shahid S/o Ataullah, Aged About 28 Years, R/o
Azizpura, Gumat, Bari District Dholpur, Rajasthan 328021.
                                                                     ----Petitioner
                                    Versus
1.     State Of Rajasthan, Through Chief Secretary, Bhagwan
       Das Road, Jaipur, Rajasthan 324006.
2.     State   Of    Rajasthan,          Through         Education      Secretary,
       Bhagwan Das Road, Jaipur, Rajasthan 324006.
3.     Chairman,       Rajasthan          Public        Service      Commission,
       Ghooghra Ghati, Jaipur Road, Ajmer Rajasthan 305026.
4.     Deputy Secretary Examination, Rajasthan Public Service
       Commission,        Ghooghra          Ghati,       Jaipur    Road,    Ajmer
       Rajasthan, 305026.
                                                                  ----Respondents

For Petitioner(s)         :     Mr. K.A. Khan.
For Respondent(s)         :     Mr. M.F. Baig.

HON'BLE MR. JUSTICE INDERJEET SINGH

Order

13/07/2021

1. This writ petition has been filed by the petitioner with the

following prayer:-

"It is, therefore humbly prayed that Hon'ble may kindly be pleased to accept and allow the writ petition of the humble petitioner and ; I. By an appropriate writ, order or direction to quash and set aside the Annexure 1 and 7. II. The respondent may be directed to make correction in the advertisement and the M.D. (multiple disability category) may be added in Annexure no. 1.

III. The respondents may be directed to issue new cutoff marks for PH category according to the scheme of circular dated 29-08-2019 (Annexure-2), and may be given 4% reservation exactly as per

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the distribution/classification amongst the prescribed sub-category of physical Handicaps (M.D.).

IV. That one post for the petitioner, with all benefits may kindly be kept vacant till disposal of this writ petition.

V. Any other order or direction which this Hon'ble court deem just and proper may also be passed in favour of the petitioner.

VI. Cost of the writ petition may also be awarded in favour of the petitioner."

2. Brief facts of the case are that in pursuance to the

advertisement dated 02.04.2018 issued by the respondent-RPSC

the petitioner applied for the post of RAS 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 05.07.2021.

According to the information of the petitioner, now the interviews

are going on for which the last date scheduled is 13.07.2021.

3. Counsel for the petitioner submitted that while declaring the

result, the respondents have violated Section 34 of the Rights of

Persons with Disabilities Act, 2016 and they also did not follow the

provisions contained under Rule 14 of the Rajasthan Rights of

Persons with Disabilities Rules, 2017. Counsel further submits that

the action of the respondents in declaring the result is also not in

conformity with the Circular dated 29.08.2019 issued by the

Government of Rajasthan which clearly provides reservation to the

category to which the petitioner belongs.

4. Counsel appearing on behalf of the respondents submits that

today is the last date fixed for interview. Counsel further submits

that the result of the examination was declared on 09.07.2020

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and the extended result was also declared on 05.07.2021 and the

petitioner has filed the writ petition at such a belated stage.

Counsel further submits that once the petitioner has participated

in the process of selection, he is estopped to challenge the process

of selection.

5. In support of the contention, counsel for the respondents,

relied upon the judgment passed by the Hon'ble Suprme 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 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)

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"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.

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

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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."

6. Heard counsel for the parties and perused the record.

7. This writ petition filed by the petitioner deserves to be

dismissed for the reasons; firstly, the petitioner is estopped to

question the process of selection after participating in the same,

being lower in the merit as per the result declared by the RPSC, in

view of the judgment passed by the Hon'ble Supreme Court in the

matter of Ashok Kumar (supra); secondly, the petitioner has filed

the writ petition on 05.07.2021 and last date of interview in

question is 13.07.2021, therefore, I am not inclined to exercise

the extra-ordinary jurisdiction of this court under Article 226 of

the Constitution of India at this belated stage.