Rajasthan High Court

Kapil vs State Rural Develp And Panchayati ... on 23 August, 2022

Bench: Inderjeet Singh

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

              S.B. Civil Writ Petition No. 2713/2018

Kapil S/o Rameswhar Lal, R/o Vpo Shital Via Bara Gram Tehsil
Udaipurwati District Jhunjhunu Rajasthan.
                                                                     ----Petitioner
                                     Versus
1.     State Of Rajasthan Through Principal Secretary, Rural
       Development And Panchayati Raj Department, Govt. Of
       Rajasthan, Secretariat, Jaipur.
2.     Rajasthan Subordinate And Ministerial Service Selection
       Board, Jaipur, State Agriculture Management, Durgapura,
       Jaipur- 302018 Through Its Secretary.
                                                                  ----Respondents

For Petitioner(s) : Mr. Tanveer Ahamad For Respondent(s) : Mr. Sandeep Kumar Maheshwari Dr. Ganesh Parihar, AAG

HON'BLE MR. JUSTICE INDERJEET SINGH

Order

23/08/2022

Instant writ petition has been filed by the petitioner with the

following prayers:-

"It is, therefore, most humbly prayed that Your Lordships' may graciously be pleased to admit and allow this writ petition; call for and examine entire record of the case and

a) By an appropriate writ, order and direction in the nature thereof the respondents may be directed to consider the candidature of the petitioner with statement of marks of his final examination and give appointment on the post of Gram Sewak under OBC category with all consequential benefits.

b) Any other order or direction which this Hon'ble High Court may deem fit

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and proper be also passed in favour of the petitioner.."

Brief facts of the case are that in pursuance to the

advertisement dated 29.09.2016, the petitioner applied for the

post of Gram Sewak cum Panchayat Sachiv and Hostel

Superintendent Grade-II. After holding the selection process, the

result of the examination was declared by the respondents on

04.07.2017.

The grievance of the petitioner is that at the time of

advertisement the petitioner was not having the required

educational qualification.

Counsel for the petitioner submits that the respondents have

given permission to submit the educational qualification before

appearing in the written test to the candidates belonging to the

TSP area only, whereas the petitioner belongs to non-TSP area, as

such, the action of the respondents is discriminatory in nature.

Counsel further submits that the respondents be directed to

consider his case for appointment on the post in question.

Counsel appearing on behalf of the respondents has opposed

the writ petition and submitted that the petitioner is estopped to

challenge the terms and conditions of the advertisement after

participating in the selection process. Counsel further submits that

the result of the examination in question has already been

declared and subsequently, the selected candidates have also

joined. Counsel further submits that the respondents have further

issued fresh advertisement for the post in question. Counsel

further submits that the issue of relaxation to the candidates of

the TSP area for submitting the educational qualification has

already been considered and decided by the Co-ordinate Bench of

this Court in the matter of Shivdutt Singh Rathore Vs. State of

(3 of 6) [CW-2713/2018]

Rajasthan & Ors and connected matters (S.B. Civil Writ Petition

No.11309/2017) decided on 01.11.2017, therefore, prayed for

dismissal of the present writ petition.

Heard counsel for the parties and perused the record.

The Hon'ble Supreme Court in the matter State of Uttar

Pradesh Vs. Vijay Kumar Mishra, reported in (2017) 11

Supreme Court Cases 521 in paras No.8 has held as under:-

"8. The position is fairly well settled that when a set of eligibility qualifications are prescribed under the rules and an applicant who does not possess the prescribed qualification for the post at the time of submission of application or by the cut off date, if any, described under the rules or stated in the advertisement, is not eligible to be considered for such post. It is relevant to note here that in the rules or in the advertisement no power was vested in any authority to make any relaxation relating to the prescribed qualifications for the post. Therefore, the case of a candidate who did not come within the zone of consideration for the post could not be compared with a candidate who possess the prescribed qualifications and was considered and appointed to the post. Therefore, the so-called confession made by the officer in the Court that persons haying lower merit than the respondent have been appointed as SDI (Basic), having been based on misconception is wholly irrelevant. The learned single Judge clearly erred in relying on such a statement for issuing the direction for appointment of the respondent. The Division Bench was equally in error in confirming the judgment of the learned single Judge. Thus the judgment of the learned single Judge as confirmed by the Division Bench is unsustainable and has to be set aside."

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 in paras No.13 to 18 has held as under:-

"13. 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).

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

(5 of 6) [CW-2713/2018]

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) "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

(6 of 6) [CW-2713/2018]

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."

This writ petition filed by the petitioner deserves to be

dismissed; for the reasons, firstly, the petitioner has challenged

the terms and conditions of the advertisement after participating

in the same, in my considered view, the petitioner is estopped to

challenge the terms and conditions of the advertisement after

participating in the same, secondly, the selection process initiated

in the year 2016 has already been completed and the selected

candidates have already joined and thereafter fresh advertisement

has also been issued by the respondents for appointment on the

post in question, lastly in view of the judgments passed by the

Hon'ble Supreme Court in the matters of State of Uttar Pradesh