Patna High Court
Case Details
ORISSA HIGH COURT : CUTTACK W.A. No.587 of 2024 In the matter of an Appeal under Article 4 of the Orissa High Court Order, 1948 read with Clause 10 of the Letters Patent constituting the High Court of Judicature at Patna and Rule 6 of Chapter-III and Rule 2 of Chapter-VIII of the Rules of the High Court of Orissa, 1948 1. Dr. Archana Kanungo *** Aged about 43 years Daughter of Late Bhubananda Kanungo Retired Government Officer Chakeisiani, Mancheswar Bhubaneswar. … Appellant (Petitioner in the Writ Petition). -VERSUS- 1. State of Orissa represented through the Principal Secretary to Government Higher Education Department, Odisha At: Lok Seva Bhawan, Bhubaneswar District: Khurda. 2. Chief Secretary Government of Odisha Lok Seva Bhawan, Bhubaneswar-1. 3. Secretary to Government General Administration and Public Grievance Department, Odisha At: Lok Seva Bhawan, Bhubaneswar District: Khurda. W.A. No.587 of 2024 Page 1 of 92 4. Secretary, Sports and Youth Affairs Government of Odisha At: Kalinga Stadium Building Bhubaneswar, District: Khurda. 5. Chairman Odisha Public Service Commission Cuttack. … Respondents (Opposite parties in the Writ Petition). Counsel appeared for the parties in the writ appeal: For the Appellant : Dr. Archana Kanungo (In Person) For the Respondents : Mr. Manoj Kumar Khuntia, Additional Government Advocate P R E S E N T: HONOURABLE CHIEF JUSTICE MR. CHAKRADHARI SHARAN SINGH AND HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Dates of Hearing Date of Judgment : :: : 15.04.2024 and 16.04.2024 15.05.2024 JUDGMENT MURAHARI SRI RAMAN, J.— THE CHALLENGE: This intra-Court appeal invoking provisions of Article 4 of the Orissa High Court Order, 1948 read with Clause 10 of the Letters Patent constituting the High Court of Judicature at Patna and Rule 6 of Chapter-III and Rule 2 of Chapter-VIII of the High Court of Orissa, 1948, is W.A. No.587 of 2024 Page 2 of 92 directed against the Judgment dated 13.03.2024 rendered by the learned Single Judge in W.P.(C) No.7280 of 2023, whereby the appellant-writ petitioner craves for following relief(s): ―It is, therefore, prayed that this Hon‘ble Court may graciously be pleased to issue notice to the opposite parties calling upon them to fail to show cause as to why the contempt order dated 13.12.2022 issued by the Honourable High Court shall not be complied being passed in gross disregard to the earlier order passed by this Hon‘ble Court passed in W.P.(C) No.17348 of 2022/272 of 2022 dated 27.11.2022. A further direction to be issued to the opposite parties to extend the benefit of direct recruitment under sportsperson Resolution No.GAD-SC-RES-0012-2022 taking into reservation principles under State Civil Services to the petitioner and Sports and Youth Services Department as per ―outcome budget 2019-2022‖ Resolution is Annexured, as well as judgment of this Hon‘ble Court passed to State of Orissa Vrs. Dr. Archana Kanungo in W.P.(C) No.17348 of 2022/272 of 2022 dated 27.12.2022 and provide all the benefits to the petitioners as due with effect from the date of appointment to other selected candidates for the post of Asst. Professor Sociology or Professor Sociology in different State Universities and benefits respectively within a date to be fixed by this Hon‘ble Court. Or else Petitioner/Appellant shall suffer irreparable loss and injury which cannot be compensated by any means. So without proper finding and without proper finding and without proper adjudication the Writ petition 7280 of 2023 disposed of by the Honourable Single Judge of Odisha High Court dated 13.03.2024 is impropriety, unjust and unconstitutional as such the order dated 13.03.2024 is liable to be set-aside. Therefore, it is most humbly prayed that this Honourable High Court may graciously be pleased to admit the appeal, call for record, issue notice to opposite parties the order of Honourable High Court dated 13.03.2024 be set-aside. W.A. No.587 of 2024 Page 3 of 92 It is, therefore prayed that this Honourable Court may graciously be pleased to pass an order that the ―Petitioner get direct appointment for the post of Assistant Professor Sociology, Universities Advertisement-08, 21 post as meritorious sportsperson under one 1 post reserved from one year as stay for petitioner/Appellant which is reserved for sportsperson reservation principle by GA and PG and Sports and Youth Services, Government of Odisha Resolution. And/or may pass any other order/orders, direction/directions as this Hon‘ble Court may deem fit/proper. And for this act of kindness, the Petitioner shall as in duty bound ever pray.‖ FACTS OF THE CASE: 2. As adumbrated in the writ appeal, Dr. Archana Kanungo, appellant-writ petitioner, claims to be National Level Sportsperson in “Taekwondo” having identity card issued by the Director of Sports and Youth Affairs (State of Odisha), assailed non-selection for the post of Assistant Professor in Sociology discipline in response to the Advertisement No.8 of 2020-21, dated 08.02.2021 in the category of “Sportsperson” before this Court in W.P.(C) No.17348 of 2022, which came to be disposed of on 16.09.2022 with the following Order: ―1. This matter is taken up through hybrid mode. 2. Heard. 3. In this Writ Petition, the petitioner assails the non- availability of benefit of reservation of posts under sports quota for the posts of Assistant Professors in Sociology and other disciplines in different State Public Universities of Government of Odisha for W.A. No.587 of 2024 Page 4 of 92 which process of recruitment has been initiated by the Opposite Party No.3/Odisha Public Service Commission (OPSC) and seeks a direction from this Court to the Opposite Parties to extend the facility of reservation of posts under the sports quota to deserving sportsmen/women candidates like her in the Sociology and other disciplines. 4. This Court appreciates the concern raised by the petitioner but in the absence of any provision in the Advertisement or any policy framework this Court cannot direct the Opposite party to create such posts. If the petitioner so desires, she can approach the concern Department for redressal of her grievance. 5. Accordingly, this Writ Petition is disposed of .‖ 2.1. In pursuance thereof, the appellant filed representation. However, seeking review of said Order dated 16.09.2022 in W.P.(C) No.17348 of 2022, a petition being RVWPET No.272 of 2022, was filed, which got disposed of with the following observation vide Order dated 27.10.2022: ―*** 4. It is apparent that the Petitioner has filed this RVWPET to review the aforesaid order with a direction to the Odisha Public Service Commission to provide reservation of posts for Sports Person in the bona fide interest of justice though the Opposite Party No.3 is only a recruiting agency and is not empowered to frame any policy for creation of reservation for Sports Person. The said order passed by this Court earlier cannot be found fault. However, paragraph 4 of the said order dated 16.09.2022 W.A. No.587 of 2024 Page 5 of 92 passed in W.P.(C) No.17348 of 2022 is suitably modified by adding a sentence at the end ―On such event, the representation of the Petitioner shall be disposed of by the authority taking into account the provisions under the Orissa Civil Services (Reservation of Vacancies for Women in Public Services) Rules, 1994 within a period of three weeks from the date of production/submission of a copy of this order along with a copy of the RVWPET‖. Rest part of the aforesaid order shall remain unaltered. 5. The RVWPET is, accordingly, disposed of.‖ 2.2. Alleging violation of aforesaid Order dated 16.09.2022 in W.P.(C) No.17348 of 2022, as stood modified by virtue of Order dated 27.10.2022 passed in RVWPET No.272 of 2022, the appellant came up before this Court by way of contempt petition, being CONTC No.7220 of 2022, which stands disposed of with the following Order on 13.12.2022: ― This matter is taken up through hybrid mode. 2. Heard the petitioner Dr. Archana Kanungo appearing in person and Mr. A.K. Mishra, learned Addl. Government Advocate appearing for the State opposite parties. 3. It is contended that the order dated 27.10.2022 passed by this Court in RVWPET No. 272 of 2022 has not yet been complied with. Let the opposite parties comply with the same, if not already complied with in the meantime, within a period of two weeks the date of communication/ from production of copy of this order. W.A. No.587 of 2024 Page 6 of 92 4. The contempt proceeding is accordingly disposed of.‖ 2.3. In compliance of direction issued by this Court vide Order dated 16.09.2022 in W.P.(C) No.17348 of 2022, as stood modified by virtue of Order dated 27.10.2022 passed in RVWPET No.272 of 2022, the claim of the appellant was rejected vide Order dated 20.12.2022 passed by the Government of Odisha in Department of Higher Education. For ready reference, said Order is reproduced hereunder: ―Government of Odisha Department of Higher Education *** Order No.HE-UE-PG-0012-2022—52489/HE., Dated 20.12.2022. the non-availability (1) The petitioner, Dr. Archana Kanungo, an applicant for the post of Assistant Professor in Sociology pursuant to Advt. No.08 of 2020-2021, had filed the writ petition bearing W.P.(C) No.17348/2022 of assailing reservation of posts under sports quota for the posts of Assistant Professors in Sociology and other disciplines in different State Public Universities of Government of Odisha for which process of recruitment has been initiated by the Opposite Party No.3/Odisha Public Service Commission (OPSC) and seeks a direction from this Court to the Opposite Parties to extend the facility of reservation of posts under the sports quota to deserving sportsmen/ of benefit W.A. No.587 of 2024 Page 7 of 92 women candidates like her in Sociology and other disciplines. (2) The Hon‘ble High Court was pleased to dispose of the said writ petition by their Order No.02 dated 16.09.2022 with the following observation: ‗This Court appreciates the concern raised by the petitioner but in the absence of any provision in the Advertisement or any policy framework this Court cannot direct the Opposite Party to create such posts. If the petitioner so desires, she can approach for redressal of her the concern Department grievance.‘ (3) Further, the petitioner has filed RVWPET No.272 of 2022 to review the order dated 16.09.2022 passed in W.P.(C) No.17348/2022. (4) The Hon‘ble High Court was pleased to dispose of the said Review Petition by their Order No.01 dated 27.10.2022 with the following observation. ―On such event, the representation of the petitioner shall be disposed of by the authority taking into account the provisions under the Orissa Civil Services (Reservation of Vacancies for Women in Public Services) Rules, 1994 within a period of three weeks from the date of production/submission of a copy of this order.‖ representation/grievance petition The the petitioner has been carefully examined keeping in view the requisition sent to OPSC and report received from OPSC on the grievance petition. The following points came to light. of W.A. No.587 of 2024 Page 8 of 92 (i) The post of Assistant Professor in a State Public University is a Group-‗A‘ equivalent post and no vacancy has been earmarked for the candidates under the ―Sports Person‖ category. (ii) The provision of reservation as laid down under the Orissa Civil Services (Reservation of Vacancies for Women in Public Services) Rules, 1994 has been followed in the selection process. (iii) The Petitioner could not secure cut off marks in the interview and as a result, the petitioner could not be selected in the recruitment process made by the OPSC. (5)
Decision
In view of the above, the claim of the petitioner in the present writ petition merits no consideration and is, therefore, rejected. All concerned be intimated accordingly. This complies the order of the Hon‘ble Orissa High Court dated 16.09.2022 in W.P.(C) No.17348 of 2022 and dated 27.10.2022 in RVWPET No.272 of 2022. Sd/- Principal Secretary to Government.‖ 2.4. With a prayer to quash aforesaid Order dated 20.12.2022 of the Government of Odisha, the appellant- writ petitioner approached this Court by way of filing petition on 10.03.2023. The following are the prayers made in said writ application, being registered as W.P.(C) No.7280 of 2023: W.A. No.587 of 2024 Page 9 of 92 ―It is, therefore, prayed that the Hon‘ble Court be graciously pleased to allow the following prayer(s): (i) The Hon‘ble Court be pleased to admit & allow the writ petition, (ii) The Hon‘ble Court be pleased the impugned Order dated 20.12.2022 under Annexure- 12, to quash (iii) The Hon‘ble Court be pleased to direct the opposite parties for selecting/appointing the petitioner in the post of Assistant Professor of Sociology against the quota meant for Woman so also sportsperson in view of the G.A. & P.G. Department Resolutions under Annexure-13 & 14 in the matter of recruitment pursuant to Advertisement No.08/2020-21, dated 08.02.2021 keeping in view of her academic so also sports background with all consequential service benefits within a time bound period by further declaring the actions of the opposite party Nos.1 & 3 as illegal, unconstitutional and erroneous one for the interest of justice. (iv) The Hon‘ble Court be pleased to pass any other Writ(s), Direction(s), Order(s) as this Hon‘ble Court may be deemed fit and proper. And for this act of kindness, the petitioner shall as in duty bound ever pray.‖ 2.5. Vide Order dated 29.01.2024 the learned Single Judge while taking up the matter in W.P.(C) No.7280 of 2023, observed thus: ― This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. W.A. No.587 of 2024 Page 10 of 92 2. Heard learned counsel appearing for the Opposite Parties. 3. Petitioner in that though contended the advertisement there was no indication with regard to fixation of any cut-off mark to be secured by a candidates in the interview, but by taking a plea that Petitioner did not secure the cut-off mark so fixed interview, her name was not the Odisha Public Service recommended by Commission while recommending the names of eligible candidate as against the post of Asst. Professor in the discipline of Sociology. the in 4. It is also contended that though as against UR vacancies, five posts were reserved for UR (Women), but the Commission did not recommend five UR the (Women) candidates, while names of eligible candidates. recommending 4.1. Learned Addl. Government Advocate for the State as well as learned counsel for the Commission are directed to file an affidavit as to whether any cut-off mark was fixed prior to conducting the interview and whether candidates were (Women) recommended in terms of the advertisement issued under Annexure-1. Such an affidavit be filed before the next date positively. five UR 5. As requested, list this matter on 9th February, 2024.‖ 2.6. Consequent upon said direction, affidavit being filed, the learned Single Judge has passed the following Order on 09.02.2024: ― This matter is taken up through Hybrid Mode. W.A. No.587 of 2024 Page 11 of 92 2. Addl. Affidavit filed by Mr. Mohanty, learned Sr. Counsel pursuant to the order passed by this Court on 29.01.2024 be kept in record. 3. Copy of the affidavit is also served on the Petitioner in Court today. 4. As requested by Ms. Kanungo, list this matter on 15th February, 2024.‖ 2.7. On the adjourned date, i.e., 15.02.2024, the following Order has been passed: ―1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. It is contended that reply has been filed by the Petitioner to the additional affidavit filed on behalf of Opp. Party No. 3 on 13th February, 2024. Copy of the same is also served on learned Sr. Counsel appearing for Opp. Party No. 3. 3. Office is directed to tag the same to the case record and list this matter on 21st February, 2024.‖ 2.8. On 21.01.2024, final hearing being undertaken, the learned Single Judge of this Court vide Judgment dated 13.03.2024 disposed of W.P.(C) No.7280 of 2023, finding no illegality or irregularity in the Order dated 20.12.2022 passed by the Government of Odisha and, accordingly the writ petition came to be dismissed. 2.9. Said Judgment dated 13.03.2024 is the subject-matter of challenge before this Court in the instant writ appeal. HEARING OF THE WRIT APPEAL: W.A. No.587 of 2024 Page 12 of 92 3. This matter was on board on 15.04.2024 under the heading “Fresh Admission”. This Court heard Dr. Archana Kanungo, who appeared in-person and sought to argue her own case before this Court. As short point is involved in the present matter as to whether impropriety can be imputed to the Judgment dated 13.03.2024 of the learned Single Judge upholding Order dated 20.12.2022 passed by the Government of Odisha in Department of Higher Education rejecting the claim of the appellant-writ petitioner seeking to appoint her in the post of Assistant Professor in Sociology in view of her being shortlisted after participation in response to Advertisement No.08 of 2020-21, dated 08.02.2021 in consideration of reservation under the category of “Woman” candidate by taking into consideration further reservation under “Sportsperson” sub-category with reference to Resolution No. GAD-SC-RES-0007-2014— 33044/Gen, dated 11th December, 2014 of the Government of Odisha in General Administration Department read with Principles to be followed on vertical and horizontal reservation during filling up of various State Civil Services posts as clarified vide Letter No. GAD-SC-RES-0012-2020— 1955/Gen, dated 19th January, 2021, and this Court being apprised of the fact that the pleadings have already been completed before the writ Court and no further material is required to be placed for consideration of issue raised herein, on W.A. No.587 of 2024 Page 13 of 92 concession of both the sides, the hearing of writ appeal has been taken up. After conclusion of hearing on 15.04.2024, on request of the appellant, the matter is directed to be placed on 16.04.2024 for submission of “written note of arguments”. Accordingly, written note of arguments is furnished to the Court on 16.04.2024 and the Court heard further arguments advanced by the appellant. After conclusion of arguments, reserved the matter for pronouncement of Judgment on a later date. ARGUMENTS ADVANCED BEFORE THIS COURT: 4. Dr. Archana Kanungo, the appellant-writ petitioner, appearing in-person and seeking to argue her cause, made valiant attempt to persuade the case on merit by demonstrating that the approach of the learned Single Judge in rendering the Judgment dated 13.03.2024 in W.P.(C) No.7280 of 2023, by sustaining the view of the Government of Odisha in Higher Education Department vide Order dated 20.12.2022, is not only erroneous appreciation of facts and but also illegal. 4.1. On self-evaluation she has claimed in the rejoinder affidavit filed in the writ proceeding as follows: ―The petitioner has challenged the non-selection of her candidature being a National Sportsperson recognised by Government of Odisha bearing PPSAN No.00078767 having scored 102 API Score as per the UGC Guideline followed by Table 3A Annexure herewith Advertisement W.A. No.587 of 2024 Page 14 of 92 No.08 of 2020-21 OPSC, Assistant Professor, Sociology for State Universities.‖ 4.2. She has, hence, claimed by way of the written note of arguments dated 16.04.2024 before this Court that being a meritorious outstanding Sportsperson and having valid sports identity card to claim 1% reservation under the “Sports quota” and having highest Academic Performance Indicator Score (API), she was shortlisted and selected for the post of Assistant Professor in Development Studies and Sociology twice under exceptional category. She participated in the interview twice in competitive examinations, but to no avail in securing the desired job, which post fell in Group-A category. 4.3. It is pointed out by Dr. Archana Kanungo through written note of arguments that the impugned Order of the Government of Odisha before the writ Court involved three grounds for rejection of her claim, viz.: i. ii. there is no provision of reservation for sportsperson for Group-A post under “Sports” category; the Odisha Civil Services (Reservation of Vacancies for Women in Public Services) Rules, 1994 has been followed in the recruitment process; W.A. No.587 of 2024 Page 15 of 92 iii. the petitioner has no locus standi in assailing process of selection having low cut-off mark in the interview. 4.4. It is contended by the appellant that these three grounds are baseless because there is provision for reservation not only in the Constitution of India as well as the Government of Odisha vide Resolution dated 11th December, 2014 of the General Administration Department pertaining to “Reservation of Vacancies for Sportsmen in Group-A (Junior Branch) Services/Posts under the State Government” as clarified by Letter dated 19th January, 2021 laying down “Principles to be followed on Vertical and Horizontal Reservation during filling up of various State Civil Services and Posts”. 4.5. Resolution dated 11th December, 2014 and Clarification dated 19th January, 2021 are extracted hereunder: ―GAD-SC-RES-0007-2014—33044/Gen Government of Odisha General Administration Department *** Bhubaneswar, dated 8th December 2014 RESOLUTION Subject: Reservation of vacancies for sportsmen in the State (JB) services/posts under Group Government. General Administration Department Resolution No.24808/ Gen, Dated. 18.11.1985 provides for reservation of W.A. No.587 of 2024 Page 16 of 92 vacancies for sportsmen in Class-II, Class-III (presently Group-B, Group-C) Services/posts and in class-IV (presently Group-D) posts under the State Government, since earlier direct recruitment was being made only against Class-II, Class-III and Class-IV (i.e. Group-B, C, & D) civil posts and Services. Subsequently, status of some of the services/posts such as Odisha Administrative Service, Odisha Finance Service, Odisha Medical & Health Service, Odisha Engineering Service etc., have been upgraded. Thus direct recruitment in the entry grade of these services/posts are being made in Group-A (JB). Government, therefore, after careful consideration have been pleased to extend the benefits of reservation for in General Administration sportsmen enumerated Department Dated. 18.11.1985 in case of direct recruitment to Group A (JB) services/posts. No.24808/Gen, Resolution of Government/all Heads ORDER: Ordered that the Resolution be published in the extraordinary issue of the Odisha Gazette. Ordered also that copies of the Resolution be forwarded to all of Departments Departments/all Collectors/Registrar, Odisha High Court/Registrar, Odisha Administrative Tribunall/ Service Special Commission/Secretary, Odisha Staff Selection Commission/Secretary, Odisha Sub-ordinate Staff Selection Commission, Bhubaneswar. Secretary, Odisha Public By Order of the Governor Sd/- Special Secretary to Government *** W.A. No.587 of 2024 Page 17 of 92 ―Government of Odisha General Administration and Public Grievance Department No. GAD-SC-RES-0012-2020-1955 Gen., Dated, the 19th January, 2021 From Sanjeev Chopra, IAS Additional Chief Secretary to Government. To All Departments of Government/ All Heads of Department/ All Collectors Sub.: Principles to be followed on Vertical and Horizontal reservation during filling up of various State Civil Services and Posts Clarification thereon. Clarifications are very often sought for from G.A. & P.G. Department regarding the principles to be followed while filling up posts in State Civil Services and Posts as per vertical and horizontal reservation. In order to fill up vacancies arising in different Civil Services and Civil Posts under the State Government of Odisha both vertical reservation and horizontal reservations are being followed. Hon‘ble Supreme Court, in their judgment dated 18.07.2007 passed in Appeal (Civil) Petition No. 3132 of 2007, filed by Rajesh Kumar Daria Vrs. Rajasthan Public Service Commission and others, have observed various aspects in the matter of horizontal and vertical reservation. The copy of the orders s enclosed for ready reference. W.A. No.587 of 2024 Page 18 of 92 In order to fill up the vacancies as per the principles (both vertical and prescribed horizontal), instructions may be followed. reservation following for the 1. Types of reservation.— in There are two types of reservations, which may, for the sake of convenience, be referred to as ‗vertical ‗horizontal reservations‘. The reservations‘ and reservations favour of Scheduled Castes, Scheduled Tribes and SEBC are termed as vertical in favour of reservations whereas reservations Women, Physically Handicapped, Ex-Servicemen, horizontal Sports reservations. The horizontal reservation are either ‗compartmental horizontal reservation‘ or ‗overall horizontal reservation‘. persons termed are as For example, in overall horizontal reservation, the reservation for women will be 1/3rd of total vacancies including all categories 1.c. SC/ST/SEBC and in this number will not vary. However, compartmentalized horizontal reservation, 1/3rd post will be reserved for women in all categories l.e. for individual category of SC/ST/SEBC. In this process, the total posts filled up by women may be more than 1/3 of the post filled up. Illustration.— If 100 posts are to be filled up, then as per overall horizontal reservation, 1/3rd posts (i.e. 33) are required to be filled up for women. In the process, the percentage of women may not be satisfied in respect of individual category, but in compartmental horizontal reservation, 1/3rd post for women are to W.A. No.587 of 2024 Page 19 of 92 be reserved in each category le. UR (w)-17, SEBC (w)-4, SC (w)-5, ST (w)-B. Hence, the total number of posts required in compartmentalized horizontal reservation may be more than 1/3rd of total vacancy. to be filed up for women compartmentalized horizontal This system of reservation is being followed for filling up Civil Service and Civil posts in Odisha. 2. Nature of reservation.— Reservations in favour of SC, ST and SEBC are ‗vertical reservations‘ and reservations in favour of physically handicapped, women etc. are ‗horizontal reservations‘. Where a vertical reservation is made in favour of a particular category, the candidates belonging to such category may compete for non- reserved posts and if they are appointed to the non- reserved posts on their own merit, their numbers will not be counted against the quota reserved for the respective reserved categories. For Example, if the number of SC candidates, who on their own merit get selected against open competition vacancies, the entire reservation quota shall remain available for SC Category candidates, in addition to those selected under open competition (Supra), R.K. category. Sabharwal Vrs. State of Punjab (1995 (2) SCC 745), Union of India Vrs. Virpal Singh Chauvan (1995 (6) SCC 684 and Ritesh R. Sah Vrs. Dr. Y.L. Yamul (1996 (3) SCC 253)]. Indra Sawhney [Vide 3. Process of Selection.— W.A. No.587 of 2024 Page 20 of 92 The proper and correct course is to first select the open competition quota (which is not less than 50%) on the basis of merit; Then, select each of the vertical reservation quotas, i.e., SC, ST and SEBC. In the next step, find out how many candidates belonging to special reservations (horizontal) have been selected on the above basis. Having done so: a. b. c. the quota If reservations further question of selection arises. for horizontal is already satisfied, no fixed of horizontal If it is not so satisfied, the requisite number reservation candidates shall have to be taken and adjusted/accommodated against their respective vertical reservation categories by deleting the corresponding number of candidates therefrom. of process verification The and adjustment/accommodation as stated above should be applied separately to each of the vertical reservations wherever required. In such a case, the reservation in favour of horizontal categories, overall, may be satisfied or may not be satisfied. Illustration.— Suppose 80 (eighty) posts are to be filled up by direct recruitment. Out of this, as per vertical reservation, ST quota (22.5%) will be 18 (including 6 women), SC quota (16.25%) will be 13 (including 4 W.A. No.587 of 2024 Page 21 of 92 women), SEBC quota (11.25%) will be 9 (Including 3 women) and UR quota will be 40 (including 13 women). This reservation quota for each individual category, starting with UR category, will be filled up first on merit. ST/SC/SEBC candidates selected on merit under UR category will not be counted against vertical reservation meant for ST/SC/SEBC. Then the horizontal reservation for each category (horizontal) will be taken up in the manner as illustrated under ‗Reservation for Women‘ below. If in the process, required number of Ex-Servicemen (2 against 3%), PwD (3 against 4%) and Sports persons (1) against 1%) are represented, then there will be no need to make further reservation for them. However in case of short fall, the required number of candidates shall have to be taken from the merit by making adjustment (male/female) in the respective vertical reservation. For example, if there is shortfall of one PWD in the vertical reservation in all the categories, then the PWD appearing first in the merit list shall be selected and will be placed in the respective category (male/female) to which he/she belongs and necessary adjustments will be made in the select list. 4. Reservation for Women.— In order to implement reservation for women, the proper procedure is first to fill up the quota for SC/ST in order of merit and then find out the number of candidates among them who belong to the horizontal reservation group of ‗SC-Women or ST- Women‘. If the number of women in such list is equal to or more than the number of horizontal reservation quota, then there is no need for further selection towards the horizontal reservation quota. Only if Page 22 of 92 W.A. No.587 of 2024 there is any shortfall, the requisite number of SC/ST women shall have to be taken by deleting the corresponding number of male candidates from the this extent, horizontal bottom of reservation differs from vertical reservation. Thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women. list. To the Illustration.— If 19 posts are reserved for SCs (of which the quota for women is six), 19 SC candidates shall have to be first listed in accordance with merit, from out of the successful eligible candidates. If such list of 19 candidates contains six SC women candidates, then there is no need to disturb the list by including any further SC women candidate. On the other hand, if the list of 19 SC candidates contains only two woman candidates, then the next four SC woman candidates in accordance with merit, will have to be included in the list and corresponding number of male candidates from the bottom of such list shall have to be deleted, so as to ensure that the final 19 selected SC candidates contain six women SC candidates. But if the list of 19 SC candidates contains more than six women candidates, selected on own merit, all of them will continue in the list and there is no question of deleting the excess women candidate on the ground that ‗SC-women‘ have been selected in excess of the prescribed internal quota of six. 5. Reservation for Ex-Servicemen.— The Odisha Ex-Servicemen (Recruitment to State Civil Services and Posts) Rules, 1985 prescribes that W.A. No.587 of 2024 Page 23 of 92 3 (three) per cent of the vacancies arising in a year in each of the categories of Class II and Class III Posts and Services or Class IV posts to be filled by for Ex- direct Servicemen. To fill up these reserved vacancies, the principles followed in horizontal reservation shall be followed. recruitment shall be reserved 6. Reservation for Persons with Disability.— Government have prescribed reservation of not less than 4% in case of direct recruitment to Gr. A, B, C, and D posts for Persons with Disabilities (PwD) out of which one per cent reservation shall be for women with disability. These earmarked reservations will be filled up following the principles of horizontal reservation. The women quota in this category will be counted while computing the women reservation in the relevant category in the vertical reservation. 7. Reservation for Sportspersons.— in Resolution No. 24808., dtd. As prescribed 18.11.1985 and Resolution No. 33044, dtd. 11.12.2014, one per cent of vacancies arising in a year in each of the categories of Group-A, Group-B, Group-C and Group-D posts filled up by direct recruitment shall be reserved for the Sportspersons. Principles of horizontal reservation shall be followed to fill up these reserved vacancies. In case a SC/ST/SEBC Sportsperson is selected on merit, this will count towards the reservation. 8. Non-availability of required candidates.— W.A. No.587 of 2024 Page 24 of 92 In case required number of candidates in horizontal reservations are not available (either not applied or not qualified), the following steps may be taken: a. b. c. In case of Women, if in any year, the vacancies reserved for women in a particular category remains unfilled, the unfilled vacancies shall be filled up by suitable male candidates of the same category. In such a case, if suitable male candidates are not available in that category the vacancy shall be kept unfilled. To be more specific, if reservation is for woman SC and no woman or man in SC category is available, the vacancy cannot be filled up by the candidates of any other category. In case of Ex-Servicemen, if the vacancies reserved for the EX-Servicemen in a particular year are not filled up due to non-availability of suitable candidate, reserved vacancies for Ex-Servicemen shall be carried forward to the subsequent year/years of recruitment. the backlog In case of PwD, if the vacancies reserved for the PwDs in a particular year are not filled up due to non-availability of suitable candidate, the backlog reserved vacancies for PwDs shall the subsequent to be year/years of recruitment. forward carried It is, therefore, requested that above instructions may be kept in view by the Appointing Authorities while considering selection for filling up of horizontal reservation of different categories in various State Civil Services and Posts. W.A. No.587 of 2024 Page 25 of 92 The sub-ordinate offices under their control may be intimated accordingly. Sd/- 19.01.2021 Additional Chief Secretary to Government‖ 4.6. Laying emphasis on the aforesaid Resolution as clarified subsequently, Dr. Kanungo urged that this Court may consider that she being eligible for the post of Assistant Professor of Sociology is entitled to claim horizontal reservation out of the five posts reserved for women in terms of Advertisement No.08 of 2020-21, dated 08.02.2021. She has taken this Court to Annexure-I appended to said Advertisement. Relevant portions of said Advertisement and Annexure appended thereto are extracted hereunder: ―Odisha Public Service Commission Advertisement No.08 of 2020-2021 Recruitment to the Posts of Assistant Professors in Different State Public Universities under the Administrative Control of the Higher Education Department 2. Vacancy Position.— *** The vacancies subject wise, university wise including reservation status and PwD reservation are indicated in Annexure-I, II & III respectively of this advertisement as per requisition submitted by the Higher Education W.A. No.587 of 2024 Page 26 of 92 Department on Dt. 27.11.2020, after consolidating requisition of individual universities. *** 6. Method of Selection.— The appointments and conditions of service are to be guided by the provisions laid down under the statutes as applicable to the State Public Universities. There shall be shortlisting of candidates for each subject as per UGC Guideline. The Commission has decided that five times the number of vacancies shall be shortlisted for interview when the number of vacancies is more than two. For subjects where there are only one or two vacancies, ten candidates shall be shortlisted for interview. The academic score as specified in Appendix-II (Table 3A) for Universities of UGC Regulation, 2018 shall be considered for shortlisting of candidates for interview and on selection shall be based only on performance in interview. The Commission shall be competent to determine the manner of conduct of the proceedings and to take all decisions required for selection of Assistant Professors to the Universities consistent with the provisions of the Act and Regulations prescribed in this behalf by the Universities Grants Commission. Commission shall prepare a list of candidates in order to merit on the basis of performance in the interview which shall be equal to the number of advertised vacancies. The list recommended by the Commission shall remain valid for a period of one year from the date of recommendation by the Commission. *** W.A. No.587 of 2024 Page 27 of 92 Annexure-I Total Consolidated Subject-wise Vacancy Position in the rank of Assistant Professor in State Public Universities. Sl. No. Subject Vacancies with Reservation Category 1-43 * 44. Sociology ST SC SEBC Unreserved Total 45-56 * * * Total * 2 2 2 9 (5W) 15 (5W) *‖ 4.7. It is submitted by the appellant that as against the post of Assistant Professor in discipline “Sociology”, out of fifteen vacant posts advertised, nine posts were kept for unreserved (UR) category and out of those nine posts, five posts were meant for UR (Women) candidates. It is alleged that the Odisha Public Service Commission (“OPSC”) recommended Women candidates belonging to reserved category as against vacancies of UR (Women) category. Therefore, it is argued that since the OPSC did not follow the method of selection in right perspective as specified in Paragraph 6 of the Advertisement dated 08.02.2021 and the UGC Regulation, 2018, the non- recommendation of the name of the appellant for appointment as against UR (Women) vacancy in the discipline of Sociology is not tenable. She went on to argue further by amplifying that since no cut-off mark was fixed for assessing performance in the interview, the W.A. No.587 of 2024 Page 28 of 92 OPSC could not take stand that the appellant failed to secure cut-off mark and, therefore, there was no justification for the OPSC not to recommend her name for the post of Assistant Professor of Sociology. The Order dated 20.12.2022 of the Government of Odisha having not considered such aspects while disposing of the representation of the appellant pursuant to direction of this Court, it is, strenuously urged by Dr. Archana Kanungo to set aside the Judgment dated 13.03.2024 of the learned Single Judge of this Court. 4.8. It is submitted by Dr. Archana Kanungo that out of fifteen posts advertised for the post of Assistant Professor of Sociology, twelve names were recommended by the OPSC and as a result of which three posts remained vacant. By virtue of interim Order dated 22.03.2023 passed in W.P.(C) No.7280 of 2023 that “As an interim measure, it is directed that one post of Assistant Professor of Sociology pursuant to Advertisement under Annexure-1 shall not be filled up, if the same has not been filled up in the meantime”, one post has been kept vacant. Since her API score was the highest, she was shortlisted and called for the interview. Though she participated in said interview and did well, her name was not recommended for appointment to the said post. It is the bone of contention of Dr. Kanungo that she, being Sportsperson having valid Identity card, W.A. No.587 of 2024 Page 29 of 92 should have been given opportunity to join in the service of University. 4.9. It is alleged that certain candidates who did not participate along with her in the process of verification of documents and did not participate in the process of recruitment pertaining to Advertisement No.08 of 2020- 21, but having participated in response to Advertisement pertaining to 2021-22 were declared successful. Hence it is pleaded that as against them, the appellant, being Sportsperson having valid identity card, has been treated with discrimination. She has sought to argue that even though the said candidates did not participate in terms of Advertisement No.08 of 2020-21, their recommendation by the OPSC is illegal and irregular. Therefore, serious prejudice is caused to her. To buttress her contention she has placed reliance on the decisions rendered by a learned Single Judge of this Court in the case of Dr. Priyaranjan Maral Vrs. State of Odisha, W.P.(C) No.39640 of 2021, vide Judgment dated 11.07.2022 and Judgment dated 29.07.2021 of learned Single Judge of the Andhra Pradesh High Court delivered in the case of J. Venkat Balaji Vrs. State of Andhra Pradesh, 2021 SCC OnLine AP 2168 = (2021) 5 ALD 233. 5. This Court takes note of presence of Sri Manoj Kumar Khuntia, learned Additional Government Advocate who W.A. No.587 of 2024 Page 30 of 92 took part in the hearing of the present case. But for what has been reflected by the learned Single Judge in the Judgment dated 13.03.2024, and material available on the record relating to writ proceeding, he has nothing more to add. THE WRIT PETITION AND THE JUDGMENT DATED 13.03.2024 OF THE LEARNED SINGLE JUDGE: 6. The learned Single Judge after elaborate discussion by taking note of contentions and submissions made by the appellant, who appeared in-person and argued the matter before him, came to dismiss the writ petition. 6.1. On perusal of record relating to writ proceeding, it is ascertained from the counter affidavit dated 19.04.2023 filed by the Additional Secretary in the Office of the Odisha Public Service Commission, Cuttack that as per requisition received from the Government of Odisha in Higher Education Department there was no specification regarding reservation under “Sportsperson” category for recruitment of Assistant Professor in different State Public Universities relating to Advertisement No.08 of 2020-21. 6.2. It transpires from said affidavit that “there was no reservation for the post provided for Sportsperson for recruitment to the post of Assistant Professor, Sociology” pursuant to aforesaid advertisement and that the appellant-writ petitioner was found “not suitable by the W.A. No.587 of 2024 Page 31 of 92 Interview Board”. It is affirmed by the OPSC in the said counter affidavit as follows: ―That, by and large the selection is based on the performance of the candidate in the interview in which the Board comprising Experts assess the domain knowledge, pedagogic skill and quality of publications etc., of a candidate and recommend their suitability or otherwise for the post.‖ 6.3. The stance taken on behalf of the OPSC has been recorded by the learned Single Judge at paragraph 4 of the impugned Judgment, which reads as follows: ―It is contended that in terms of the guideline prescribed in Para 6 of the advertisement, taking into account the academic score secured by the Petitioner, she was shortlisted for the purpose of interview and was called to attend the interview vide notice issued on 16.04.2022 under Annexure-7. In the notice issued under Annexure-7 it was indicated that Pedagogy skill is part of the interview and the candidates have to come prepared to present a topic of their choice within 8 to 10 minutes before the Interview Board and the Board shall be provided by the Commission for the purpose.‖ 6.4. The position qua the appellant has been made clear before the writ Court by the Senior Advocate appearing for the OPSC that whereas the appellant secured 15 marks out of 100 marks, the last candidate in the category of “UR (Women)” so selected and was recommended vide Notice dated 23.05.2022 secured 51 marks. Therefore, objection ought not to have been W.A. No.587 of 2024 Page 32 of 92 raised by the appellant alleging illegality or irregularity committed by the OPSC in not recommending the name of the present appellant against vacancy meant to be filled up by candidate of “unreserved (Women)” category. 6.5. It is seriously disputed before the writ Court by the OPSC to justify its action by contending that in the Advertisement No.08 of 2020-21, nothing is specified as regards reservation in the category of “Women- Sportsperson” and it is strongly objected to that the appellant after participating in the selection process cannot turn around and take a stand that non- specification of such reservation in the Advertisement dated 08.02.2021 posed discriminatory treatment as against those whose names were sponsored by the OPSC. 6.6. Having regard to the ratio laid down in Madras Institute of Development Studies Vrs. K. Sivasubramaniyan, (2016) 1 SCC 454 and the decision of this Court in the case of Kunilata Dutta Vrs. State of Odisha, 2010 (Supp.–II) OLR 437, the learned Single Judge came to the conclusion as follows: ―9.3. It is also found that in the advertisement issued under Annexure-1, no reservation was provided for Sportsperson. Since the Petitioner knowing fully well that no reservation is there for Sportsperson and participated in the selection process, after becoming unsuccessful, she cannot take a plea that such W.A. No.587 of 2024 Page 33 of 92 reservation was not provided, in view of the decision of the Hon‘ble Apex Court in the case of Madras Institute of Development Studies and the order passed by this Court in the case of Kunilata Dutta. Not only that since in terms of Para 6 the selection after short listing of the candidate is only to be made basing on the performance in the interview and in the interview the Petitioner has only secured 15 marks and has been placed at Sl. No. 59 of the merit list in the discipline ‗Sociology‘, no illegality or irregularity can also be found with regard to non- recommendation of the Petitioner. No direction can also be to recommend the name of the Petitioner as against the three (3) unfilled vacancies as those vacancies are against reserved categories and process of selection has since been completed.‖ the Commission issued directing 6.7. Touching upon the merit of the matter in consideration of rival contentions and arguments advanced by the counsel for respective parties with particular reference to “Method of Selection” envisaged in Paragraph 6 of Advertisement No.08 of 2020-21, dated 08.02.2021, it has also been observed by the learned Single Judge as follows: ―9.1. As from found the same, for shortlisting of candidates to be called for interview the academic score as specified in Appendix-II (Table-3-A) for Universities of UGC Regulation 2018 shall be considered and selection shall be based only on the performance in the interview. Since the Petitioner secured the required academic score, she was shortlisted and called for the interview vide notice W.A. No.587 of 2024 Page 34 of 92 issued under Annexure-7. In terms of Para 6 of the advertisement the selection was made basing on the performance in the interview and as found from the record, Petitioner has scored only 15 marks out of 100 marks in the interview and the last such recommended candidate in UR (Women) category has secured 51 marks. Petitioner‘s position in the merit list also stands at Sl. No. 59, as against 15 vacancies so advertised in the discipline Sociology. 9.2. In view of such analysis and the marks secured by the Petitioner in the interview, which is the sole basis of selecting and recommending a candidate, this Court finds no illegality or irregularity with the action of the Commission in not recommending her name for appointment as against the discipline Sociology in UR (Women) category.‖ ANALYSIS AND DISCUSSIONS: 7. This Court, having taken cognizance of Method of Selection as outlined in paragraph 6 of the Advertisement No.08 of 2020-21, dated 08.02.2021, observes the perception ascribed by the learned Single Judge as just and proper. 7.1. It is abundantly clear from minute reading of said method that though API score is relevant for shortlisting candidates for attending interview, the selection is to be made based “only on performance in interview”. The use of the word “only” in the expression “selection shall be based only on performance in interview” has significance. W.A. No.587 of 2024 Page 35 of 92 7.2. The meaning of the word “only” has been given in Webster‘s Universal College Dictionary, 1997 Edition as: ―adv. 1. Without others or anything further; alone; solely; exclusively: This information is for your eyes only. 2. no more than; merely; just: only on weekends; If it were only true! 3. as recently as: / read that article only yesterday. 4. in the final outcome or decision: That will only make matters worse. –adj. 5. being the single one or the relatively few of the kind; lone; sole: the only seat left. 6. having no sibling or no sibling of the same sex: an only child. –conj. 7. but (introducing a single restriction, restraining circumstance, or the like): I would have gone, only you objected. 8. Older Use. except: but: Only for him you would not be here. –Idiom. 9. only too, very; extremely.‖ 7.3. The Hon’ble Supreme Court of India in Hari Ram Vrs. Babu Gokul Prasad, (1991) Supp.2 SCC 608 = AIR 1991 SC 427 suggested the understanding of “only” in statutory provision in the following manner: ―The word ‗only‘ in explanation (iii) is significant. It postulates that entire land should have been used for the purposes enumerated.‖ 7.4. Thus, the presence of the word “only” in Paragraph 6 of the Advertisement dated 08.02.2021 unambiguously leads to show that the performance in the interview is the sole factor for declaring a candidate successful. In other words, it may be stated that the shortlisted candidate as per the academic score in terms of Appendix-II (Table 3A) for universities of UGC W.A. No.587 of 2024 Page 36 of 92 Regulation, 2018 would be selected based on performance in the interview. 8. This apart, paragraph 8 of the Advertisement No. 08 of 2020-21, dated 08.02.2021 dealing with “other conditions” inter alia provided: ―(c) This Advertisement should not be construed as binding on the University to make appointment; *** (g) Mere empanelment in the selection list shall not confer any right the University is satisfied after making such enquiry as may be deemed necessary that the candidate is in all respect for appointment to the suitable service.‖ for appointment unless 8.1. The learned Single Judge has meticulously examined the factors leading to rejection of claim of the appellant and upheld the said Order dated 20.12.2022 of the Government of Odisha in Higher Education Department, having found no illegality and irregularity. 9. With the eyes wide open, the appellant offered her candidature and participated in the recruitment process being well acquainted with the terms and conditions contained in the Advertisement dated 08.02.2021. As is apparent from Advertisement five posts in the “unreserved” category are carved out for women and no reservation is provided specifically for Sportsperson (Women) in the said category. W.A. No.587 of 2024 Page 37 of 92 9.1. Therefore, after participation in the recruitment process and being aware of the outcome of such process, the appellant has no occasion to challenge the terms of Advertisement by taking aid of Resolution dated 11.12.2014 read with Clarification dated 19.01.2021 of the Government of Odisha in General Administration and Public Grievance Department. 9.2. The Supreme Court in the case of Madras Institute of Development Studies Vrs. K. Sivasubramaniyan, (2016) 1 SCC 454 had the occasion to deal with a question as to whether a person who consciously takes part in the process of selection can turn around and question the method of selection. In the said case holding that such question is no longer res integra, it has been observed as follows: ―15. In G. Sarana Vrs. University of Lucknow, (1976) 3 for SCC 585, a similar question came up consideration before a three-Judge Bench of this Court where the fact was that the petitioner had applied to the post of Professor of Anthropology 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 five the Selection Committee consisting of in members. He also alleged doubt in the constitution of the Committee. Rejecting the contention, the Court held: (SCC p. 591, para 15) W.A. No.587 of 2024 Page 38 of 92 ‗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 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 Vrs. Prem Chand Singhvi, AIR 1957 SC 425 wherein 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 raising the present technical point.‘ 16. In Madan Lal Vrs. State of J&K, (1995) 3 SCC 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 Page 39 of 92 W.A. No.587 of 2024 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 appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus, the petitioners took a chance to get themselves interview. Only selected at the said oral 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 Om Prakash Shukla Vrs. 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 in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.‘ that he would not succeed 17. In Manish Kumar Shahi Vrs. State of Bihar, (2010) 12 SCC 576, this Court reiterated the principle laid W.A. No.587 of 2024 Page 40 of 92 down in the earlier judgments and observed: (SCC p. 584, para 16) ‗16. We also agree with the High Court [Manish Kumar Shahi Vrs. State of Bihar, 2008 SCC OnLine Pat 321 : (2009) 1 AIR Jhar R 1015] 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.‘ 18. In Ramesh Chandra Shah Vrs. Anil Joshi, (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 [Anil Joshi Vrs. State of Page 41 of 92 W.A. No.587 of 2024 Uttarakhand, 2012 SCC OnLine Utt 521] and the Division Bench [Ravi Shankar Joshi Vrs. Anil Joshi, 2012 SCC OnLine Utt 766] of the committed grave error by High Court entertaining the respondents.‘ ***‖ the grievance made by 9.3. In Ashok Kumar Vrs. State of Bihar, (2017) 4 SCC 357 it has been laid down that: ―13. The law on the subject has been crystallised in several decisions of this Court. In Chandra Prakash Tiwari Vrs. Shakuntala Shukla, (2002) 6 SCC 127, 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 Vrs. S. Vinodh Kumar, (2007) 8 SCC 100, this Court held that: (SCC p. 107, para 18)