Rajasthan High Court

Rajyshri Charan D/O Shri Bhagwati ... vs The State Of Rajasthan on 20 May, 2022

Bench: Inderjeet Singh

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

                S.B. Civil Writ Petition No. 6097/2022

Rajyshri Charan D/o Shri Bhagwati Singh, Aged About 43 Years,
Resident Of B 205, D-2 Block Awho, Shaitan Singh Vihar, Sec-1,
Vidhyadar Nagar, Jaipur.
                                                                      ----Petitioner
                                    Versus
1.     The State Of Rajasthan, Through Principal Secretary,
       Forest       Department,           Government             Of     Rajasthan,
       Secretariat, Jaipur.
2.     Rajasthan      Public     Service        Commission,           Through    Its
       Secretary, Government Of Rajasthan, Ajmer.
                                                                 ----Respondents

For Petitioner(s) : Mr. Sandeep Saxena For Respondent(s) : Mr. M.F. Baig

HON'BLE MR. JUSTICE INDERJEET SINGH

Order

20/05/2022

This writ petition filed by the petitioner with the following

prayers:-

"It is, therefore, prayed that the Hon'ble Court may call for the entire record concerning the case and after examining the same, by issuing writ, advertisement or direction or in the nature thereof;

(i) And the action of the respondents may kindly be quashed and set aside and the respondents are directed to follow the Reservation Policy with true and later spirit and held the petitioner eligible for Interview pursuant to the advertisement dated 04.04.2018 and if the petitioner will qualify the same, her candidature may be considered for appointment pursuant to the advertisement dated 04.04.2018 and corrigendum dated 21.02.2020 according to her merit along with all consequential benefits.

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(ii) Any prejudicial advertisement to the interest of the petitioner, if passed during the pendency of the writ petition, the same may kindly be taken on record and be pleased to quash and set aside.

(iii) Any other appropriate writ, advertisement or direction, which this Hon'ble Court may consider just and proper, in the facts and circumstances of the case, may kindly be passed in favour of the petitioner."

Brief facts of the case are that in pursuance to the

advertisement dated 04.04.2018, the petitioner applied for the

post of Assistant Conservator of Forest & Forest Range Officer

Grade-I. The petitioner appeared in the written examination

conducted by the R.P.S.C. and secured 387.36 marks but the

petitioner was not called for the interview as she was not qualified

to participate in the interview.

Counsel for the petitioner submitted that according to the

relevant rules and terms of the advertisement, a candidate who

has obtained minimum 35% marks in each of the compulsory

subject and minimum 40% marks in the aggregate of the written

test held by the Commission, shall be considered to have obtained

qualified marks at the examination. Counsel further submits that

action of the respondents in not calling the petitioner for interview

process is arbitrary and also in violation of the terms and

conditions of the advertisement and of the rules.

Learned counsel appearing on behalf of the respondents

submitted that the respondents have called the candidates for

appearing in the process of interview in the ratio of 1:2.5 but the

petitioner being lower in merit was not called for the interview.

Counsel further made a reference of para No.4 of their reply

which reads as under:-

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"4. That the contents of para No. 6 to 8 of the writ petition are replied in the terms that in pursuance of advertisement examination were conducted and result of the written examination was issued on 09.12.2021 therein petitioner obtained 387.36 marks where the cutoff of OBC female is 394.88. That since petitioner failed to obtain the requisite cutoff marks therefore, she remained to qualify for interview. That in the result dated 09.12.2021 candidates were called for the interview in the ratio of 1: 2.5 category wise in pursuance of the full commission decision dated 09.12.2021. That cutoff of OBC female was kept as 394.88 at par with the general female 394.88. That in case, cutoff of reserve category gone high then in that eventuality candidate belongs to such reserve category declared successful to the extent upto the cutoff marks of general open category candidate. That as such RPSC committed no irregularity while declaring not qualified the petitioner for interview."

Heard counsel for the parties 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 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

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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 Physiotherapist in the State of Uttrakhand

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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, admittedly, the petitioner has

secured 387.36 marks whereas the cut off issued by the R.P.S.C.

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for OBC female category is 394.88, therefore, in my considered

view, the respondents have not committed any illegality in not

calling the petitioner for interview as she secured lesser marks

than the cut off marks; secondly, the petitioner is estopped to

challenge the process of selection after participating in the same

on carefully reading the terms and conditions of the advertisement

and the process of interview is already over by now; and lastly, in