Rajasthan High Court

Vikarm Saini S/O Nand Lal Verma vs State Of Rajasthan on 20 July, 2021

Bench: Inderjeet Singh

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

                 S.B. Civil Writ Petition No. 7450/2021

Vikarm Saini S/o Nand Lal Verma, Aged About 36 Years, R/o Raj
Telecom, Pakka Bhanda, Samod Road, Chomu, District Jaipur,
Rajasthan.
                                                                     ----Petitioner
                                     Versus
1.     State Of Rajasthan, Through The Principal Secretary,
       Technical Education Department, Government Secretariat,
       Jaipur.
2.     Director (Training) Directorate Of Technical Education, W-
       6, Gaurav Path, Residency Road, Jodhpur, Rajasthan.
3.     The Board Of Technical Education, Jodhpur, Rajasthan
       Through Its Director.
4.     Rajasthan Staff Selection Board, Through Its Secretary,
       State Institute Of Agriculture Management Premises,
       Durgapura, Jaipur-302018, Rajasthan.
                                                                  ----Respondents

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

For Respondent(s) :

HON'BLE MR. JUSTICE INDERJEET SINGH

Order

20/07/2021

This writ petition has been filed by the petitioner with the

following prayer:-

"It is therefore, most respectfully prayed that this Hon'ble court may very graciously be pleased to 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 impugned Result dated 07.07.2020, 10.07.2020 and appointment order

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dated 30.12.2020 may kindly be quashed and set aside.

ii). Issue an appropriate writ order or direction in the nature thereof thereby the respondents may kindly be directed to oust the ineligible candidates from the selection process who acquire degree of CITS while doing services on contractual basis and further the Condition No. 3(2)(1) of Advertisement dated 25.04.2018 with regard to weightage marks be declared illegal and be quashed and set aside.

iii). Issue an appropriate writ order or direction in the nature thereof thereby the respondents may kindly be directed to give appointment to him on the post of Junior Instructor with all consequential benefits.

iv). 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 petitioner.

v). Cost of the writ petition be also awarded in favour of the petitioner."

Brief facts of the case are that, in pursuance to the

advertisement dated 25.04.2018, the petitioner applied for the

post of Junior Instructor (Computer Operator and Programming

Assistant) and participated in the selection process and the result

was declared on 07.07.2020 in which the petitioner was not

selected as being lower in the merit. This writ petition has been

filed by the petitioner on 13.07.2021 challenging his non-

selection, after a delay of one year.

Counsel for the petitioner submits that the respondent(s)

have wrongly given 30 percent weightage to the candidates who

are having experience while doing diploma of CITS, hence they

are ineligible for the subject post. Counsel further submits that the

select list has wrongly been prepared by the respondent(s) and

appointments have been given to the ineligible candidates.

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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)

"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

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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 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)


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"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 petitioner and perused the record.

This writ petition filed by the petitioner deserves to be

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

challenge the selection process after participating in the same as

held by the Hon'ble Supreme Court in the matter of Ashok Kumar

(supra); secondly, the result of the selection process was declared

by the respondent(s) on 07.07.2020 and the appointments have

already been given to the selected candidates and the petitioner

has filed this writ petition on 13.07.2021, after a delay of one year

and lastly I am not inclined to exercise the extra-ordinary

jurisdiction of this Court under Article 226 of the Constitution of