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2011 DIGILAW 2595 (ALL)

MITHLESH KUMARI v. STATE OF U. P.

2011-11-16

ANIL KUMAR

body2011
JUDGMENT Hon’ble Anil Kumar, J.—Heard Sri S.K.Yadav and Sri R.K.Chaudhary, learned counsel for petitioner, learned Standing Counsel and perused the record. 2. Facts of the present case are to the effect that in order to fill up the post of Seench Pal in the pay scale of Rs.3050-4590 in the Irrigation Department of U.P. under Executive Engineer Sharda Sahayak Khand-49 District-Sultanpur, on 31.8.2007, an advertisement was issued by respondent No. 2 in daily newspaper Dainik Jagran, Lucknow thereby inviting application for appointment 9 posts for reserved category out of which 8 posts were reserved for SC candidates out of 9 and one post for OBC candidate, the qualification to be possessed by the candidate is high school. In pursuance to the same the petitioner submitted his candidature on 31.8.2007. 3. Thereafter, as per the terms of the advertisement, the petitioner alongwith the other candidates appeared in the written examination and she was declared successful, accordingly called for interview by call letter dated 5.11.2007 (Annexure 5-A) issued by the opposite party No. 2, to appear for interview on 21.11.2007. Accordingly, the petitioner appeared before the interview board and she was not selected on the one hand and on the other hand opposite party Nos. 3 to 11 were selected. 4. Aggrieved by the said fact, the petitioner filed the present writ petition thereby challenging the selection list dated 31.12.2007 (Annexure 2) by which the respondent Nos. 3 to 11 were selected for appointment as well as the advertisement issued by the respondent No. 2 for appointment on the posts in question. 5. Learned counsel for petitioner in support of her case submits that in the impugned advertisement issued to fill up the backlog vacancies for reserved candidates, no post for women/female candidate has been reserved for appointed on the post of ‘Seench Pal’ thus the same is against the provisions of the Government order No. 18/1/99 Ka-2-99 by which the reservation of 20% has been provided for women/female candidate so the entire selection/select list as well as advertisement are arbitrary in nature thus in contravention to Article 14 of the Constitution of India as well as the Government Order dated 29.8.2003. 6. I have heard learned counsel for parties and perused the record. 7. 6. I have heard learned counsel for parties and perused the record. 7. As per the undisputed facts of the present case, in pursuance to the advertisement as contained in Annexure 1 the application was sought for filling up the vacancies under backlog quota for reserved candidate and out of which 8 seats reserved for SC candidates and one for OBC candidate, in pursuance to the same the petitioner submitted her candidature and thereafter passed a written test and appeared in interview but she was not finally selected for appointment on the post in question on the one hand and on the other hand, respondent Nos. 3 to 11 were selected and appointed on the post of ‘Seench Pal’ by the Executive Engineer Sharda Sahayak Khand- 49 District-Sultanpur. 8. Thus, once the petitioner has taken part in pursuance to the advertisement issued by the opposite party No. 2 by which 8 posts has been reserved for SC candidates and one post reserved for OBC candidate and there is no reservation for women/female candidate as per the terms of the Government Order dated 29.8.2003 she cannot challenge the said fact at initial stage knowing well that there is no reservation for women/female as Government Order dated 29.8.2003 appeared in the selection process and once she was declared unsuccessful then has no right to challenge the selection in question on the said ground. As it is well settled law 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) 3 SCC 368 and Rashmi Mishra v. M.P. Public Service Commission, (2006) 12 SCC 724 ). 9. The said view was again returned by the Apex Court after placing reliance on its earlier judgment in the case of Om Prakash v. A.K., 1986 Suppl. (See Munindra Kumar v. Rajiv Govil, (1991) 3 SCC 368 and Rashmi Mishra v. M.P. Public Service Commission, (2006) 12 SCC 724 ). 9. The said view was again returned by the Apex Court after placing reliance on its earlier judgment in the case of Om Prakash v. A.K., 1986 Suppl. SCC 285 and Chandra Prakash Tiwari v. Shakuntala Shukla, (2002) 6 SCC 127 , in the case of Union of India another v. Vinod and others, 2007 (8) SCC 100 in paragraph 19 held as under : “In conclusion, this Court recorded that the issue of estoppel by conduct can only be said to be available in the event of there being a precise and unambiguous representation and it is on that score a further question arises as to whether there was any unequivocal assurance prompting the assured to alter his position or status- the situation, however, presently does not warrant such a conclusion and we are thus not in a position to lend concurrence to the contention of Dr. Dhavan pertaining to the doctrine of estoppel by conduct. It is to be noticed at this juncture that while the doctrine of estoppel by conduct may not have any application but that does not bar a contention as regards the right to challenge an appointment upon due participation at the interview/selection. It is a remedy which stands barred and it is in this perspective in Om Prakash Shukla v. Akhilesh Kumar Shukla, 1986 Supp. SCC 285, a three- judge Bench of this Court laid down in no uncertain terms that when a candidate appears at the examination without protest and subsequently found to be not successful in the examination, question of entertaining a petition challenging the said examination would not arise.” “There is thus no doubt that while question of any estoppel by conduct would not arise in the contextual facts but the law seem to be well settled that in the event a candidate appears at the interview and participates therein, 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 there was some lacuna in the process.” 10. In addition to the abovesaid fact, if the candidate appear in the competitive examination as per the term of advertisement later on when they are not selected, cannot challenge the same as even selected candidate have no vested right in this regard as held by the Hon’ble Apex Court in the case of Pitta Naveen Kumar v. Raja Narasaiah Zangitt, (2006) 10 SCC 261 , as under : “The legal position arising in this behalf is not in dispute. A candidate does not have any legal right to be appointed. He in terms of Article 16 of the Constitution of India has only a right to be considered therefor. Consideration of the case of an individual candidate although ordinarily is required to be made in terms of the extant rules but strict adherence thereto would be necessary in a case where the rules operate only to the disadvantage of the candidates concerned and not otherwise.” 11. Thus, in the instant case, once the petitioner has appeared in the selection process as per the advertisement issued dated 31.8.2007 by the respondent No. 2 for appointment on the post of ‘Seenchpal’ and thereafter, declared unsuccessful she has no legal right in terms of Articles 14 and 16 of the Constitution of India to take ‘U’ turn and challenge the terms/criteria of the advertisement, which are the basis for selection for the post in question on one or the other pretext. Accordingly, the argument advanced by the petitioner that in the advertisement in question issued for filing of backlog-post of ‘Seechpal’ from reserved category is not in accordance to the provisions of Government Order dated 29.8.2003 has got no force, rejected. For the foregoing reasons, the present writ petition filed by petitioner lacks merit and is, thus, dismissed. No order as to costs. ——————