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J&K High Court · body

2017 DIGILAW 575 (JK)

Anil Sharma v. State

2017-08-08

B.S.WALIA

body2017
JUDGMENT : 1. Writ petition has been filed seeking the issuance of a writ of certiorari for quashing of short listing criteria fixed by respondent No. 3 for the conduct of interview pertaining to the post of Dental Assistant advertised pursuant to notification No. 01 of 2001 dated 11.01.2001 as also to quash the select list published in newspaper dated November 16, 2001 pertaining to the private respondents and to consider and appoint the petitioner on the post of Dental Assistant District Cadre Kathua with all consequential benefits. 2. Learned counsel contends that as per criteria of short listing fixed by respondent No. 3, weightage was given to the marks obtained in diploma only by the candidates and no weightage was given to the basic educational qualification or for that matter higher educational qualification acquired by the candidates. As per the qualifications stipulated in the advertisement, a person in order to be an eligible for consideration was required to be matric with diploma in Dental Assistant. Learned counsel contends that although the eligibility conditions were matric with diploma in Dentistry yet no weightage was given to the qualification of matric and weightage was only given to diploma in Dentistry. 3. Learned Dy. A.G. appearing for the official respondents has taken a preliminary objection that having participated in the selection process and having come out unsuccessful, it was not open to the petitioner to turn around and challenge the criteria for selection or for that matter the selection carried out in pursuance thereto. More so, since the petitioner had participated in the selection process without a demur or protest of any sort. Learned Dy. A.G. relies upon the decision of Hon’ble Supreme Court in 2016 (1) SCC 454 . Relevant extract of the aforesaid judgment is reproduced hereunder:- 12. The contention of the respondent no. 1 that the short-listing of the candidates was done by few professors bypassing the Director and the Chairman does not appear to be correct. From perusal of the documents available on record it appears that short-listing of the candidates was done by the Director in consultation with the Chairman and also senior Professors. Further it appears that the Committee constituted for the purpose of selection consists of eminent Scientists, Professor of Economic Studies and Planning and other members. The integrity of these members of the Committee has not been doubted by the respondent- writ petitioner. Further it appears that the Committee constituted for the purpose of selection consists of eminent Scientists, Professor of Economic Studies and Planning and other members. The integrity of these members of the Committee has not been doubted by the respondent- writ petitioner. It is well settled that the decision of the Academic Authorities about the suitability of a candidate to be appointed as Associate Professor in a research institute cannot normally be examined by the High Court under its writ jurisdiction. Having regard to the fact that the candidates so selected possessed all requisite qualifications and experience and, therefore, their appointment cannot be questioned on the ground of lack of qualification and experience. The High Court ought not to have interfered with the decision of the Institute in appointing respondent nos. 2 to 4 on the post of Associate Professor. 13. Be that as it may, the respondent, without raising any objection to the alleged variations in the contents of the advertisement and the Rules, submitted his application and participated in the selection process by appearing before the Committee of experts. It was only after he was not selected for appointment, turned around and challenged the very selection process. Curiously enough, in the writ petition the only relief sought for is to quash the order of appointment without seeking any relief as regards his candidature and entitlement to the said post. 14. The question as to whether a person who consciously takes part in the process of selection can turn around and question the method of selection is no longer res integra. 15. In G. Sarana vs. University of Lucknow and 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:- "15. 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:- "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: “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 and Others vs. State of J&K and Others, (1995) 3 SCC 486 , similar view has been reiterated by the Bench which held that:- "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. 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, 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:- "16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition." 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:- "24. 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:- "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." 4. I have considered the submissions made by learned counsel for the parties. 5. In paragraph No. 4 of the writ petition, it has been mentioned that respondent No. 3 had only attempted to give weightage to marks obtained in diploma by the candidates and no weightage was given to the basic education qualification or higher education qualification by a candidate. 6. In paragraph No. 6 (C) of the writ petition, it has been mentioned that the qualification prescribed was matric with diploma in Dental Assistant from SMF or any other recognized institute but to the contrary, the respondents framed a short listing criteria where only the marks obtained in the diploma of Dental Assistant were taken into account and no marks for the education qualification i.e. matric and above were given and that such an exercise on the part of the respondents vitiated the entire selection process and on this ground, selection of private respondents was illegal and arbitrary, therefore, liable to be quashed. 7. It is not the stand of the petitioner that prior to the interview, a protest had been made by the petitioner with regard to the criteria framed nor is it the stand in the writ petition that the criteria was not disclosed. In the given circumstances, particularly in the light of the decisions of the Hon’ble Supreme Court as referred to above, it is clear that once a candidate has participated in the selection process without any protest or demur, then on finding himself unsuccessful, it is not open to such a candidate to turn around and challenge the selection on the ground that the criteria was not framed in accordance with law. 8. 8. In the light of the position as noted above, I do not find any merit in the writ petition. The same is, accordingly dismissed.