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2016 DIGILAW 296 (HP)

Krishan Bhardwaj v. State of Himachal Pradesh

2016-03-19

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. 1. Both these Letters Patent Appeals are directed against the common judgment rendered by learned writ Court in CWP (T) No. 2122 of 2008 and CWP (T) No. 4783 of 2008 on 17.5.2010 whereby the claim of the petitioners questioning the appointment of respondent No. 3 in CWP (T) No. 2122 of 2008 to the post of Commi-II and thereafter questioning the appointments of respondents No. 2 and 3 to the post of Commi-I in CWP (T) No. 4783 of 2008 came to be dismissed. 2. The appellants are the writ petitioners, who initially filed Original Application No. 568 of 1993 before the H.P. State Administrative Tribunal and upon its closure, the same was transferred to this Court and registered as CWP (T) No. 2122 of 2008, wherein the writ petitioners prayed for the following reliefs: “A) That the appointment of respondent No. 3 Shri Nand Lal be quashed and set aside in the interest of justice and fair play. B) That the respondent No. 1 and 2 may very kindly be directed to promote the applicants, who have put up more than nine years of service, to the post of Commi-II. C) That the transfer orders of applicant No. 3 from Holiday Home, Shimla to Ciraz Cafe, Mandi, be set-aside.” 3. Thereafter, the appellants filed Original Application No. 2388 of 1997, which too came to be transferred to this Court and registered as CWP (T) No. 4783 of 2008 wherein the appellants prayed for the following reliefs: “(i) That the promotion of respondents No. 2 and 3 be kindly declared illegal and office order, Annexure A-1 dated 22.11.97 be quashed/set-aside. (ii) That the respondents be directed to produce the entire record pertaining to the case of the applicants for the perusal of this Hon’ble Tribunal. (iii) That the respondents be burdened with the cost of this application throughout. (iv) That for the convenience of this Hon’ble Tribunal, the Original Application be tagged with O.A. No. 568 of 1993 and be heard together.” 4. It was not disputed before the learned writ Court and has further not been disputed even before this Court that in case CWP (T) No. 2122 of 2008 is dismissed, then CWP (T) No. 4783 of 2008 would automatically stand dismissed and the decision of the former shall have a definite bearing on the latter. 5. It was not disputed before the learned writ Court and has further not been disputed even before this Court that in case CWP (T) No. 2122 of 2008 is dismissed, then CWP (T) No. 4783 of 2008 would automatically stand dismissed and the decision of the former shall have a definite bearing on the latter. 5. On 5.11.1992 the respondents issued an advertisement for filling up the posts of Commi-II by way of direct recruitment. In terms of the Rules known as H.P. Tourism Development Corporation Limited (Staff) Recruitment and Promotion (Revised) Rules, 1985, this post was required to be filled up in the following manner:- 4. Commi-II (Rs. 510-800) 50% by promotion. 75% from Commi-III with 3 years service as such on the basis of merit-cum-seniority. 50% by direct recruitment. Matric/Hr. Secondary and having passed one year Cookery Course from a recognized Institute with experience of 5 years of working in hotels of repute. 6. The appellants assailed the appointment of respondent No. 3 by filing O.A. No. 568 of 1993 (CWP (T) No. 2122 of 2008) on the ground that he did not possess the requisite qualification and this plea did not find favour with the learned writ Court and consequently this led to the dismissal of the aforesaid petition which in turn led to the dismissal of the subsequent petition i.e. CWP (T) No. 4783 of 2008. We have heard learned counsel for the parties and have gone through the records of the case carefully and meticulously. 7. At the outset, it may be observed that the appellants in order to succeed would first and foremost be required to cross the hurdle of estoppel, acquiescence and waiver. Admittedly, the appellants had taken part in the selection process with their eyes wide open and cannot, therefore, turn around and question the method of selection. This has been so held in a long line of decisions of the Hon’ble Supreme Court and we need only refer to the recent judgment of the Hon’ble Supreme Court in Madras Institute of Development Studies and Another vs. K. Sivasubramaniyan and Others, (2016) 1 SCC 454 , wherein the Hon’ble Supreme Court held as under: “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. 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 & Others, (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 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’s case 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 raising the present technical point.” 16. In Madan Lal & Others vs. State of J&K & Others, (1995) 3 SCC 486 , similar view has been reiterated by the Bench which held that: (SCC p.493, para 9) “9. In Madan Lal & Others vs. State of J&K & Others, (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 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 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 vs. 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, 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. 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 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.” 8. Adverting to the facts of the case, it would be noticed that there was inherent fallacy in the case set up by the appellants inasmuch as they had questioned the appointment of respondent No. 3 on an entirely wrong premise by considering the appointment as a “promotion” little realising that the same was on the basis of direct recruitment. This fact is clearly evident from the following averment contained in para iv (A) of the Original Application and the same reads as under: “Here now it is pertinent to mention that at the time of scrutiny of the candidature of the candidates who had applied for the said posts, respondent No. 2 called one candidate Shri Nand Lal, Asstt. Waiter for the said post who was in no way eligible according to the R&P Rules of the department wherein a candidate is required to possess the qualifications mentioned in proceedings sub para-iii of para-6. While selected candidate Sh. Nand Lal who neither belongs to the kitchen Branch nor he possesses any experience for the post mentioned above. Because Shri Nand Lal is working as an Asstt. While selected candidate Sh. Nand Lal who neither belongs to the kitchen Branch nor he possesses any experience for the post mentioned above. Because Shri Nand Lal is working as an Asstt. Waiter with the respondents which is entirely different category than that of the post mentioned hereinabove (Commi-II and III). In these circumstances interviewing the respondent No. 3 and not rejecting his candidature at the time of scrutiny of the candidatures. It clearly throws sufficient light that a special favour was done to respondent No. 3 by respondent No. 2 by appointing him (and promoting him) to Commi-II which is a post of Senior Cook who does not belong to that category in any way. Therefore, this action of respondents of appointing respondent No. 3 as Commi-II is highly illegal, arbitrary and full of favouritism by respondent No. 2 and the same be quashed and set-aside.” 9. Indisputably, the qualification of Commi-III with 3 years service was relevant only for the purpose of promotion, but insofar as the eligibility for being appointed as Commi-II by way of direct recruitment is concerned, the same was only Matric/Hr. Secondary with one year course from a recognized institute coupled with an experience of 5 years or working in hotels of repute. 10. Even the appellants do not dispute that if this be taken as qualification, then respondent No. 3 definitely possessed the same. The respondent No. 3 was a graduate and had undergone one year course in Cookery and possessed the requisite length of service. This has been acknowledged by the appellants themselves in para-6 of their petition wherein it was averred as under: “(2) That the respondent No. 3 herein, Shri Nand Lal was initially appointed as Trainee Waiter in the year 1984 and was subsequently regularized as Asstt. Waiter in the year 1986 in the pay scale of Rs. 300-430.” 11. Therefore, once the respondent No. 3 possessed the requisite qualification then no exception can be taken qua his selection to the post of Commi-II. If that be so, then no exception can thereafter be taken to his further promotion to Commi-I on the basis of his eligibility acquired by rendering service as Commi-II. 12. 300-430.” 11. Therefore, once the respondent No. 3 possessed the requisite qualification then no exception can be taken qua his selection to the post of Commi-II. If that be so, then no exception can thereafter be taken to his further promotion to Commi-I on the basis of his eligibility acquired by rendering service as Commi-II. 12. Notably, the entire premise upon which the subsequent petition i.e. CWP (T) No. 4783 of 2008 assailing the promotion of respondents No. 2 and 3 to the post of Commi-I, proceeds is again that the post of Commi-II was a promotional post, whereas the post was required to be filled up by direct recruitment as has already been observed by us (Infra). 13. Having said so, no fault can be found with the judgment passed by learned writ Court and accordingly, both these appeals are dismissed, so also the pending applications if any, leaving the parties to bear their own costs.