Kuldeep Singh S/O Shri Atar Singh vs State Of Rajasthan
2022 Latest Caselaw 3836 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

               S.B. Civil Writ Petition No. 12167/2021
Kuldeep Singh S/o Shri Atar Singh, Aged About 27 Years, R/o
Village Kheriyan Ka Pura, Post Rond Kala, Tehsil And District
Karauli.
                                                                          ----Petitioner
                                        Versus
1.     State     Of    Rajasthan,           Through      Secretary,         Local    Self
       Department, Rajasthan, Secretariat, Jaipur.
2.     The Director And Special Secretary Of Local Bodies
       Department,         Government             Of    Rajasthan,          C-Scheme,
       Jaipur.
3.     The Secretary, Rajasthan Nagar Palika (Administrative
       And     Technical        ),    And    (Subordinate           And     Ministerial)
       Service        Recruitment           Commission,            G-3,    Raj      Mahal
       Residency Area, Near Civil Lines Phatak, C-Scheme,
       Jaipur.
                                                                     ----Respondents

For Petitioner(s) : Mr. Satyapal Poshwal For Respondent(s) : Ms. Archana with Mr. Abhishek Paliwal for Anil Mehta, AAG

HON'BLE MR. JUSTICE INDERJEET SINGH

Order

16/05/2022

Instant writ petition has been filed by the petitioner with the

following prayers:-

"It is, therefore, humbly prayed that Your Lordships may be pleased to accept and allow this writ petition and direct the respondents to give appointment to the petitioner on the post of Senior Draftsman as per his merit position in MBC Category from the date his similarly situated persons have been so appointed, with all consequential benefits.

(2 of 6) [CW-12167/2021]

Any other appropriate order or direction, which this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case, may also be passed in favour of the petitioner."

Brief facts of the case are that in pursuance to the

advertisement dated 10.08.2021, the petitioner applied for the

post of Senior Draftsman. After being successful in the written

test, the petitioner was called for documents verification, however,

the candidature of the petitioner was rejected by the respondents

on the ground that the petitioner was not having the required

Educational Qualification as prescribed under the advertisement.

The required Educational qualification for appointment on the

post of Senior Draftsman has been prescribed under clause-1(2)

of the advertisement dated 10.08.2021, which reads as under:-

"नियमों मम रहरहे प प्रावावध प्राि प्रािानुस प्रार व वरररिषव प प्रारूपूपक प्रार ूपकरहे पद ूपकपद की अनिव प्रायिवार्यर्यत प्रा ा शता शैक्षशैक्षण शैक्षणिूपक ययोगयर्यत प्रा एवएवं अिाभव निमि प्रािानुस प्रार हता शै:-

Post Graduate Degree in Geography/Economics/Sociology of a university established by law in India or qualification recognized as equivalent there to by the Government.

with Post Graduate Diploma in Remote Sensing & Geo-informatics (1 Years Course) from a university established by law in India or qualification recognized as equivalent there to by the Government.

Or Diploma in Architecture/Architectural Assistantship (3 Yrs course) or equivalent qualification from recognized Institution.

                                 Or
             Polytechnic      Diploma      in    Civil
             Draftsmanship       with     two    yrs.
             experience             in          Town
             Planning/Architect's office."


                                        (3 of 6)                [CW-12167/2021]

Counsel for the petitioner submits that the petitioner is

having the degree of Civil Engineering, therefore, the petitioner is

entitled for appointment on the post of Senior Draftsman. Counsel

further submits that the petitioner is also having the required

experience for the post in question.

Counsel appearing on behalf of the respondents has opposed

the writ petition and submitted that the candidature of the

petitioner has rightly been rejected as the petitioner is not having

the required Educational Qualification i.e. Polytechnic Diploma in

Civil Draftsmanship as prescribed under the advertisement,

whereas the petitioner is having the degree of Civil Engineering.

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

(4 of 6) [CW-12167/2021]

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 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

(5 of 6) [CW-12167/2021]

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 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

(6 of 6) [CW-12167/2021]

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."

In my considered view, as the petitioner is not having the

required Educational Qualification as prescribed under the

advertisement, therefore, the petitioner is not entitled for the

appointment on the post of Senior Draftsman.

In that view of the matter, the present writ petition stands

dismissed.

(INDERJEET SINGH),J

Upendra Pratap Singh /138

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