The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.23856 of 2022 Rusav Kumar Sahu …. Petitioner Mr. J.R. Khuntia, Advocate -versus- State of Odisha & Ors. …. Opposite Parties Mr. H.K. Panigrahi, ASC CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY
Decision
ORDER 09.10.2023 Order No 06. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard Mr. J.R. Khuntia, learned counsel for the Petitioner, Mr. H.K. Panigrahi, learned Addl. Standing Counsel appearing for the State and Mr. D. Hazra, learned counsel appearing on behalf of Mr. T.K. Satapathy, learned counsel appearing for the Opp. Party No. 3. 3. The Petitioner has filed the present writ petition inter alia with the following prayer:- “Under the above circumstances, it is humbly prayed that the writ petition may be allowed; And (A) a writ of mandamus or an appropriate writ may be issued quashing the Advertisement No. 005/2021 issued by the State Selection Board, Department of Higher Education, Government of Odisha Bhubaneswar under Annexure: 1 more particularly Clause/para-4 of the said advertisement as the same is contrary to LGC Regulations, 2018 under Annexure 7 so also the final select list under Annexure 6 or in the alternative the petitioner may be selected for the post of Lecturer in // 2 // English either under UR Category under SBC Category by or communicating the marks secured by him in the written examination. Career Assessment and Viva Voce test, within a time to be stipulated by this Hon'ble Court; (B) And any other order direction/directions may be issued so as to give complete relief to the petitioner; And for this act of kindness, the petitioner shall as in duty bound remain ever pray. 4. It is contended that pursuant to the advertisement issued under Annexure-1, Petitioner duly participated in the selection process, but his name when was not reflected in the select list so published on 22.04.2022 under Annexure-6, the present writ petition was filed challenging the stipulation contained under Para-4 of the advertisement. 4.1. It is contended that the Petitioner though was otherwise eligible, but his name was illegally omitted from the select list under Annexure-6. It is accordingly contended that necessary order be passed on the claim made by the Petitioner. 5. Mr. Panigrahi, learned ASC on the other hand contended that while on the one hand basing on the advertisement issued under Anenxure-1, Petitioner participated in the selection process and he was not selected as reflected from Annexure-6, but the writ petition has been filed with a prayer to quash Para 4 of the advertisement as the same is contrary to the U.G.C. Regulations. It is contended that once the Petitioner without challenging the stipulation has participated in the selection process, after becoming unsuccessful, he cannot challenge the same in view of the decision of the Hon’ble Apex Court in the case of Madras Institute of Development Studies & Anr. Vs. K. Sivasubramaniyan & Ors. ((2016) 1 SCC 454) and Page 2 of 7 // 3 // the order passed by this Court in the case of Kunilata Dutta Vs. State of Odisha & Ors. (2010 (Supp. –II) OLR – 437). 5.1. Hon’ble Apex Court in Para 14 to 18 of the Judgment in the case of Madras Institute has held as follows:- “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 G. Sarana v. University of Lucknow [(1976) 3 SCC 585 : 1976 SCC (L&S) 474] , a similar question came up for 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 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) to have voluntarily appeared before “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 the seems 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 case [Manak Lal v. 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 Page 3 of 7 // 4 // he was confronted with an unfavourable report, he adopted the device of raising the present technical point.’ 16. In Madan Lal v. State of J&K [(1995) 3 SCC 486 : 1995 SCC (L&S) 712 : (1995) 29 ATC 603] , similar view has been reiterated by the Bench which held that: (SCC p. 493, para 9) the contesting “9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well candidates being successful as 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 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 Om Prakash Shukla v. Akhilesh Kumar Shukla [1986 Supp SCC 285 : 1986 SCC (L&S) 644] 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, the High Court should not have granted any relief to such a petitioner.” 17. In Manish Kumar Shahi v. State of Bihar [(2010) 12 SCC 576 : (2011) 1 SCC (L&S) 256] , 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 [Manish Kumar Shahi v. State of Bihar, 2008 SCC OnLine Pat 321 : (2009) 1 AIR Jhar R 1015] that after having taken Page 4 of 7 // 5 // 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 v. Anil Joshi [(2013) 11 SCC 309 : (2013) 3 SCC (L&S) 129] , 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 v. State of Uttarakhand, 2012 SCC OnLine Utt 521] and the Division Bench [Ravi Shankar Joshi v. Anil Joshi, 2012 SCC OnLine Utt 766] of the High Court committed grave error by entertaining the grievance made by the respondents.” 5.2. This Court in Para 12 of the Judgment in the case of Kunilata Dutta has held as follows:- “12. Additionally, it is seen that the petitioner has applied to be selected in the second advertisement also. Now after being unsuccessful in her attempt to get selected, the petitioner has filed this writ petition challenging the advertisement dated 09.07.2007. In Dhananjay Malik and others v. State of Utteranchal and others, (2008) 4 SCC Page 5 of 7 // 6 // 171-2009 AIR SCW 3265, the Apex Court held that when the petitioner took a Chance by appearing in the selection process and only after they did not find themselves as successful candidates, they cannot challenge for being selected and took part in the selection process without any demur, she cannot later on challenge the issuance of the second advertisement. She is estoppel and precluded the questioning the said selection process.” 5.1. Mr. Panigrahi also contended that since Petitioner participated in the selection process and his name was not included in the select list so published under Annexure-6, no illegality has been committed by the Opp. Party No. 2. It is also contended that the selection process in terms of the advertisement issued under Annexure-1 and the select list published under Annexure-6 has already been implemented. It is accordingly contended that no relief can be granted to the Petitioner as prayed for. 6. Having heard learned counsel appearing for the Parties and after going through the materials available on record, it is found that the Petitioner while on the one hand participated in the selection process in terms of the advertisement issued under Annexure-1, but the writ petition has been filed challenging the stipulation so contained in the advertisement. It is also found that the Petitioner has failed to qualify in the selection process so undertaken by the Opp. Party No. 2 in pursuance of Annexure-1. This Court further finds that even though the writ petition was filed on 14.09.2022, but no notice has been issued nor any interim order has been passed protecting the interest of the Petitioner. Considering the submission of Mr. Panigrahi that the selection process has already been completed in Page 6 of 7 // 7 // the meantime, this Court is of the view that no fruitful order can be passed while considering the claim of the Petitioner. 7. In view of such position, this Court is not inclined to entertain the writ petition and dismiss the same. (Biraja Prasanna Satapathy) Judge Sneha Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Jr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-Oct-2023 17:05:12 Page 7 of 7