Rajasthan High Court

Balram Gurjar S/O Shri Dal Chand ... vs Rajasthan Subordinate And ... on 1 July, 2022

Bench: Inderjeet Singh

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

              S.B. Civil Writ Petition No. 7921/2022

Balram Gurjar S/o Shri Dal Chand Gurjar, Aged About 34 Years,
Resident Of B-62, Kaptan Chhuttanlal Meena Colony, Old
Roopbas, Alwar (Rajasthan).
                                                                  ----Petitioner
                                   Versus
Rajasthan Subordinate And Ministerial Service Selection Board,
Through Its Chairman, Government Of Rajasthan, State Institute
Of Agriculture Management Premises, Shreeji Nagar, Prithviraj
Colony, Durgapura, Jaipur.
                                                                ----Respondent

For Petitioner(s) : Mr. Sandeep Saxena For Respondent(s) :

HON'BLE MR. JUSTICE INDERJEET SINGH Order

01/07/2022

Instant writ petition has been filed by the petitioner with the

following prayers:-

"It is, therefore, most respectfully prayed that this writ petition may kindly be allowed and call the entire record relating to the aforesaid case and by issued the appropriate writ, order or direction to change the category of the petitioner from OBC to MBC and consider the candidature of the petitioner for appointment on the post of Tax Assistant in MBC Category and if he found eligible, he may be given appointment on the post of Tax Assistant pursuant to the advertisement dated 14.03.2018 in the Large Interest of Justice with all consequential benefits. Any other order which this Hon'ble Court deemed fit in the circumstances of the case may kindly be passed in favour of the petitioner.

If any prejudicial order to the interest of the petitioner is passed during the pendency of the writ petition, same may

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kindly be taken on record and be pleased to quashed and set aside."

Brief facts of the case are that in pursuance to the

advertisement dated 14.03.2018 issued by the respondents, the

petitioner applied for the post of Tax Assistant. After holding the

examination, the result of the said examination was declared by

the respondents on 25.02.2019.

The grievance of the petitioner is that the petitioner belongs

to MBC category whereas while submitting the application form

the petitioner has mentioned as OBC category.

Counsel for the petitioner submits that the petitioner

secured more marks than the last candidate of MBC category,

therefore, the respondents be directed to appoint the petitioner

under MBC category.

Heard counsel for the petitioner and perused the record.

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 where in 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


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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.

17. In Ramesh Chandra Shah v. Anil Joshi, candidates who were competing for the post of

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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."

This writ petition filed by the petitioner deserves to be

dismissed; for the reasons, firstly, the selection process initiated

by the respondents in pursuance to the advertisement dated

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14.03.2018 has already been completed by declaring the result

on 25.02.2019 and the petitioner has filed this writ petition in the

year 2022 after a delay of three years, secondly, after

participating in the selection process, the petitioner has filed this

writ petition, therefore, in view of the judgment passed by the

Hon'ble Supreme Court in the matter of Ashok Kumar (supra),

this writ petition deserves to be dismissed, lastly in the facts and