Manmohan Sharma v. State of Himachal Pradesh & Ors.

During the proceedings of the case, learned counsel for the petitioner, while making this Court peruse Recruitment 3 Notice (Annexure P-8), wherein provision of skill test was also contemplated, attempted to argue that under skill test, practical knowledge of candidates was to be examined. However, respondents did not conduct any practical examination qua the knowledge of candidates regarding the Pumps used by the department for lifting the water, rather Screening Committee headed by respondent No.5, after putting a few questions to the candidates, straightway proceeded to grant marks petitioner as well as respondent Nos. 6 and 7.

4. Mr. Rajan Kahol, learned Additional Advocate General, while refuting aforesaid submission of learned counsel for the petitioner, vehemently argued that no cogent and convincing material has been adduced on record by the petitioner to prove that no skill test was conducted, rather he, after having failed in the test, has attempted to level serious allegations against the members of the Committee, who, without there being any bias, have selected the best candidate. Learned Additional Advocate General submitted that no doubt petitioner herein had more marks in 10th examination, but since in total he failed to secure marks more than respondent Nos. 6 and 7, no illegality can be said to have been committed by respondents, while selecting private respondents against the 4 post of Para Pump Operator. He further submitted that though there is nothing to suggest in the Recruitment Notice that some practical was to be taken by the Screening Committee to ascertain the skill of the candidates, but even if parameters given under the skill test in the Recruitment notice are perused in their entirety, it clearly reveals that only knowledge of the candidates with regard to pump was to be ascertained by the Screening Committee, which otherwise could have been ascertained by asking question with regard to water pump machine. Lastly, learned Additional Advocate General submitted that once petitioner had already participated in the examination, he, after his having failed in examination, is otherwise estopped from laying challenge to selection of respondent Nos. 6 and 7.

5. It is settled law that the process of selection cannot be challenged by an unsuccessful candidate by merely pointing out certain irregularities here and there in the process, of which he was aware, once the result is not to his liking. Relief, in such a case, is to be declined by applying the principles of estopple, acquiescence and/or waiver. Reference in this regard may conveniently be made to the two recent judgments of the Hon'ble Supreme Court. 5 ““10. In Madras Institute of Development Studies and another vs. K. Sivasubramaniyan and others(2016) 1 SCC 454, the Hon'ble Supreme Court has held as under:

12. The contention of the respondent no.1 that the short- listing of the candidates was done by few professors bypassing the Director and the Chairman does not appear to be correct. From perusal of the documents available on record it appears that short- listing of the candidates was done by the Director in consultation with the Chairman and also senior Professors. Further it appears that the Committee constituted for the purpose of selection consists of eminent Scientists, Professor of Economic Studies and Planning and other members. The integrity of these members of the Committee has not been doubted by the respondent- writ petitioner. It is well settled that the decision of the Academic Authorities about the suitability of a candidate to be appointed as Associate Professor in a research institute cannot normally be examined by the High Court under its writ jurisdiction. Having regard to the fact that the candidates so selected possessed all requisite qualifications and experience and, therefore, their appointment cannot be questioned on the ground of lack of qualification and experience. The High Court ought not to have interfered with the decision of the Institute in appointing respondent nos. 2 to 4 on the post of Associate Professor. the contents of the alleged variations

13. Be that as it may, the respondent, without raising any objection advertisement and the Rules, submitted his application and participated the selection process by appearing before the Committee of experts. It was only after he was not selected for appointment, turned around and challenged the very selection process. Curiously enough, in the writ petition the only relief sought for is to quash the order of appointment without seeking any relief as regards his candidature and entitlement to the said post.

14. 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.

15. 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: (SCC P. 591, para 15) "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 6 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 this Court in Manak Lal vs. Prem Chand Singhvi, AIR 1957 SC 425 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: (AIR p.432, para 9) '9. ....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 r raising the present technical point.' " the oral interview conducted by In Madan Lal & Ors. vs. State of J & K & Ors. (1995) 3 SCC 16. 486, similar view has been reiterated by the Bench which held that: (SCC p. 493, para 9) "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 the Members appeared at 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 Shukla 1986 Supp SCC 285, it has been clearly laid down by a Bench of three learned 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, r the High Court should not have granted any relief to such a petitioner."

17. 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: (SCC p. 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." 7

18. 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: (SCC p. 320, para 24) "24. 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 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."

19. So far as the finding recorded by the Division Bench on the question of maintainability of the writ petition on the ground that the appellant Institute is a 'State' within the meaning of Article 12 of the Constitution, we are not bound to go into that question, which is kept open."

6. In Ashok Kumar and another vs. State of Bihar and others (2017) 4 SCC 357, a Bench of three Hon'ble Judges of the Hon'ble Supreme Court, 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[4], 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 (2007) 8 SCC 100, this Court held that :