Rajasthan High Court

Rajesh S/O Shri Parasmal vs State Of Rajasthan on 22 August, 2022

Bench: Inderjeet Singh

         HIGH COURT OF JUDICATURE FOR RAJASTHAN
                     BENCH AT JAIPUR

                 S.B. Civil Writ Petition No. 5743/2021
Rajesh S/o Shri Parasmal, Aged About 26 Years, Resident Of
H.no. 383, Kailash Colony, Near Shiv Mandir, Chhawani, Ajmer
(Raj.)
                                                                       ----Petitioner
                                      Versus
1.       State    Of   Rajasthan,         Through         The      Additional     Chief
         Secretary, Home Department, Government Secretariat,
         Jaipur (Raj.)
2.       The Director General Of Police, Police Headquarter, Jaipur.
3.       The Superintendent Of Police, Grp Ajmer District Ajmer.
4.       The     Superintendent          Of     Police,      Rajsamand          District
         Rajsamand.
                                                                   ----Respondents

Connected With S.B. Civil Writ Petition No. 4229/2021 Yudhveer Singh Kajla S/o Shri Shish Ram Kajla, Aged About 21 Years, Resident Of Village Dulhepura, Tehsil Khandela, District Sikar - 332709 (Raj.)

----Petitioner Versus

1. State Of Rajasthan, Through The Additional Chief Secretary, Home Department, Government Secretariat, Jaipur (Raj.)

2. The Director General Of Police, Police Headquarter, Jaipur.

3. The Superintendent Of Police, Rajsamand District Rajsamand, Rajasthan.

----Respondents

For Petitioner(s) : Mr. Tanveer Ahamad For Respondent(s) : Mr. Rajesh Maharshi, AAG assisted by Ms. Kinjal Surana, Adv.

Mr. Udit Sharma, Adv.

HON'BLE MR. JUSTICE INDERJEET SINGH Order 22/08/2022

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Both these writ petitions since involve common question,

hence, the consent of the parties, the petitions have been heard

together and are being decided by the present common order.

As prayed, the facts of S.B. Civil Writ Petition No.5743/2021

are taken into consideration and the prayer made therein is

reproduced as under:-

"It is, therefore humbly prayed that Your Lordship may graciously be pleased to accept and allow this writ petition and by an appropriate writ, order or direction:-

1. The impugned condition no. 10(iv) of the advertisement dated 04.12.2019 and 18.01.2020providing for adding the marks of NCC Certificate 'C' only after qualifying the Physical Efficiency Test and Physical Standard Test may be declared uncalled, unreasonable, unjustified and the same may be quashed and set aside by directing the respondents to add the marks allocated towards NCC Certificate at the juncture when the result of written examination is declared, so as to qualify the candidate who are holders of NCC Certificate for Physical Efficiency Test and Physical Standard Test and accordingly based on participation of the humble petitioner in Physical Efficiency Test, his candidature may be considered for further process of selection and consequential appointment on the post of Constable(General Duty) for GRP Ajmer and District Rajsamand in pursuant to the advertisement dated 04.12.2019 and 18.01.2020.

2. Or, in alternate the respondents may be directed to declare the humble petitioner as qualified to participate in the PST/ Physical Efficiecncy Test and further process of selection in the interest of justice.

3. Any other relief which this Hon'ble Court may deem fit and proper in the facts and circumstances of the cas3e, may also kindly be passed in favour of the petitioner."

In pursuance to the advertisement dated 04.12.2019, the

petitioners applied for the post of Constable. By way of these writ

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petitions, the petitioners have challenged the non-adding of bonus

marks of NCC Certificate prior to conduct of physical efficiency

test.

Counsel for the petitioners submitted that the Condition

No.10(4) of the advertisement is unreasonable as the same

prescribes for adding the marks of NCC Certificate after clearance

of the Physical Efficiency Test. Counsel further submits that in

Delhi Police Recruitment, the Recruitment Agency added the

marks of NCC Certificate after clearance of written test and prior

to physical efficiency test, therefore the same criteria should have

been applied here in the State of Rajasthan also for selection on

the post of Constable. Counsel further submits that there is no

object sought to be achieved in adding the marks after clearance

of Physical Efficiency Test.

Counsel appearing on behalf of the respondents submitted

that the petitioners have participated in the selection process after

reading the terms and conditions of the advertisement and

according to Clause 10(4) of the advertisement, the marks of NCC

Certificate would be added after clearance of physical efficiency

test. Counsel further submits that the petitioners were not called

for physical efficiency test as they were lower in merit. Counsel

further submits that once the petitioners have participated in the

selection process, they are estopped to challenge the same.

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 in paras No.13 to 18 has held as

under:-

"12. The law on the subject has been crystalized in several decisions of this Court.

In Chandra Prakash Tiwari v. Shakuntala

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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).

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.

In Manish Kumar Shah 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

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Uttaranchal, Amlan Jyoti Borooah v. State of Assam and K.A. Nagamani v. Indian Airlines.

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.

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.

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) 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

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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."

The Hon'ble Supreme Court in the matter of Madras

Institute of Development Studies & Ors. Vs. K.

Sivasubramaniyan & Ors. reported in (2016) 1 Supreme

Court Cases 454 in paras Nos. 20 to 24 has held as under:-

"20. The question as to whether a person who consciously takes part in the process of selection can turn around and question the method of selection is no longer res integra.

21. In Dr. G. Sarana vs. University of Lucknow & Ors., (1976) 3 SCC 585, a similar question came for consideration before a three Judges Bench of this Court where the fact was that the petitioner had applied to the post of Professor of Athropology in the University of Lucknow. After having appeared before the Selection Committee but on his failure to get appointed, the petitioner rushed to the High Court pleading bias against him of the three experts in the Selection Committee consisting of five members. He also alleged doubt in the constitution of the Committee. Rejecting the contention, the Court held:-

"15. We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood of bias as despite the fact that the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution of the Selection Committee. He seems to have voluntarily appeared before the committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the committee. This view gains strength from a decision of

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this Court in Manak Lal's case where in more or less similar circumstances, it was held that the failure of the appellant to take the identical plea at the earlier stage of the proceedings created an effective bar of waiver against him. The following observations made therein are worth quoting: "It seems clear that the appellant wanted to take a chance to secure a favourable report from the tribunal which was constituted and when he found that he was confronted with an unfavourable report, he adopted the device of raising the present technical point."

22. In Madan Lal & Ors. vs. State of J&K & Ors. (1995) 3 SCC 486, similar view has been reiterated by the Bench which held that:-

"9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla1 it has been clearly laid down by a Bench of three learned

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Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.

23. In Manish Kumar Shahi vs. State of Bihar, (2010) 12 SCC 576, this Court reiterated the principle laid down in the earlier judgments and observed:- "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."

24. In the case of Ramesh Chandra Shah and others vs. Anil Joshi and others, (2013) 11 SCC 309, recently a Bench of this Court following the earlier decisions held as under:-

"In view of the propositions laid down in the above noted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by

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the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents."

Heard counsel for the parties and perused the record.

These writ petitions filed by the petitioners deserve to be

dismissed for the reasons; firstly, the petitioners have participated

in the selection process after reading the terms and conditions of

the advertisement and in my considered view they are estopped to

challenge the same after participating in the selection process, as

has been held by the Hon'ble Supreme Court in the matter of

Ashok Kumar Yadav and Madras Institute of Development

Studies (both supra); secondly, since the petitioners failed to

clear the written examination therefore they were not called for

appearing in the physical efficiency test; thirdly in view of the

Condition No.10 (4) of the advertisement, the respondents have