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2024 DIGILAW 204 (HP)

Erra Atwal v. Union of India

2024-03-22

SATYEN VAIDYA

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JUDGMENT : Satyen Vaidya, J. By way of instant petition, petitioner has prayed for following reliefs :- i) Issue a writ, order or direction in the nature of certiorari to quash/set aside the appointment(s) of respondent No 5 to 7, made in contravention of law issued by respondent authorities (AnnexureP-6) which is illegal, arbitrary and against the settled provisions of law. ii). Issue a writ in the nature of mandamus directing the respondents No. 1 to 4 to allow the petitioner to continue serving as PRT and to renew the contract of service of petitioner. iii). Issue a writ in the nature of mandamus directing the respondents No. 1 to 4 to regularize the service of the petitioner as PRT who has been working as PRT for last 10 years. iv). Issuance of an ex-parte ad-interim order or direction to respondent No.1 to 4 to not to discontinue the contract of service of the petitioner and further not to recruit/engage any other person for the said job, during the pendency of the writ petition. 2. Petitioner has set-up a case that she was appointed as PRT in Army Public School, Yol Cantt., District Kangra, H.P.(for short ‘The School’) initially for a period of three years w.e.f. 19.06.2013 to 18.06.2016 on contract basis. Petitioner again served the same school for another period of three years from 27.06.2016 to 26.06.2019 on similar terms. From 11.07.2019 to 31.03.2020, petitioner served the school on adhoc basis and thereafter again w.e.f. 15.04.2020 to 31.03.2023, she was appointed as PRT in the school on contract basis. 3. It has also been averred that in the month of February, 2023, the School invited applications for appointment of PRT teachers on fixed term basis/adhoc panel. Petitioner had already put up her case before respondents No. 2 to 4 with respect to her entitlement for regularization and for such reason she was shocked to find the aforesaid advertisement having been issued by respondent/School. As per petitioner, she made inquiries from respondents No. 2 to 4 and was assured that the advertisement was mere procedural formality and petitioner being the senior most and most qualified candidate, her services would be continued with a renewed contract. As per petitioner, in such circumstances, she appeared in the interview held on 10.03.2023 alongwith six other candidates. As per petitioner, she made inquiries from respondents No. 2 to 4 and was assured that the advertisement was mere procedural formality and petitioner being the senior most and most qualified candidate, her services would be continued with a renewed contract. As per petitioner, in such circumstances, she appeared in the interview held on 10.03.2023 alongwith six other candidates. However, her contract was not renewed and respondents No. 5 to 7, were given appointments as PRTs on contract basis. 4. It is also the case of the petitioner that various representation were submitted on her behalf to respondents No. 2 to 4 with the grievance against her exclusion and also making demand for regularization of the services of the petitioner but only on one occasion reply, dated 09.06.2023, was received, whereby respondents No. 2 to 4 had attempted to justify their action. 5. The grievance as raised by the petitioner is two fold, firstly, that the petitioner was entitled to regularization of services and the denial of such right of the petitioner by respondents No. 2 to 4 was against law and secondly, the petitioner having rendered approximately ten years of service to the school was entitled for renewal of the contract. 6. Respondents No. 2 to 4 have filed their reply(and have contested the claim of the petitioner. It has been submitted that the remedy of invoking jurisdiction of this Court under Article 226 of the Constitution of India, is not available to the petitioner as the school is purely private unaided institution. It has also been submitted that the appointments of teachers in the school are made in accordance with applicable service rules, which provide for tenure/temporary service. The appointment of petitioner from time to time was in terms of the such rules. The right to regularization as claimed by the petitioner has also been denied to exist. It has been submitted that the service rules applicable to the respondents do not provide for regularization of services of a teacher after specified period, rather the regular appointments are made against the regular posts by a selection process conducted by independent Combined Selection Board (CSB) including Presiding Officer, seven principals, One Psychologist, Subject Expert and two educationalists from reputed institution(s). 7. 7. Respondents No. 2 to 4 have further pointed out that the petitioner had also appeared in an interview held by CSB for permanent post, but she could not qualify and one Ms. Shilpa Rana was selected purely on merit. 8. Further, the case of respondents No. 2 to 4 is that the petitioner every time had voluntarily participated in the selection process held for appointment of PRTs on temporary/term basis. In the year 2016, petitioner was appointed for a period of three years. Thereafter, in 2019, the tenure of petitioner was extended purely on temporary basis on her application from 11.07.2019 to 31.03.2020, another selection process was held for appointment of PRTs for the period 2020 to 2023, petitioner, who had again participated in the selection process was engaged on the specific terms communicated to her. 9. As regards, non inclusion of petitioner in the select list of PRTs circulated by respondents/School for the period 2023 to 2026, it has been submitted that again the same process of selection was conducted in which petitioner had voluntarily participated. Three other candidates i.e. respondents No. 5 to 7 were found more suitable and as such, they were offered appointments in preference to the petitioner. 10. Respondents have also denied that the petitioner had been assured of her regularization at any point of time. 11. I have heard learned counsel for the parties and have also gone through the record of the case carefully. 12. Though, the petitioner has not sought any direct relief for annulling the selection process, however, by implication it can be so inferred from the nature of reliefs prayed for by the petitioner. 13. The claim of the petitioner for regularization is premised on the long tenure of service already rendered by her in the School. Petitioner, however, has failed to place any material on record, be it in the shape of service rules or any promise extended to her by respondents No. 2 to 4, in support of her claim for regularization. The only reference in this regard can be found in para-12 of the petition, where the petitioner has referred to Article 128(k) of the Army Welfare Rules. The petitioner has neither produced text of any such rules alongwith his petition nor has shown the same to this Court at the time of hearing of the case. The only reference in this regard can be found in para-12 of the petition, where the petitioner has referred to Article 128(k) of the Army Welfare Rules. The petitioner has neither produced text of any such rules alongwith his petition nor has shown the same to this Court at the time of hearing of the case. Learned counsel for the petitioner was specifically queried by this Court with respect to the aforesaid quoted provision, but he could not show any rule in support of his contentions. It being so, the claim of the petitioner for regularization of service by respondents No. 2 to 4 has been found to be without any substance. It goes without saying that no one can claim regular appointment de hors the applicable service rules. Since, the petitioner has failed to establish the existence of any service rules which provides for a right of the petitioner to be considered for regularization after specific period of time, petitioner cannot be held entitled to the relief qua regularization of her services, as prayed, in the petition. 14. Respondents No. 2 to 4 have placed on record documents by virtue of which petitioner has been appointed as PRT on contract/temporary basis by the school from time to time. Petitioner has not made any challenge to the mode of appointment through which she herself had availed the opportunities to the appointees as PRTs in the school from time to time. Admittedly, the service of the petitioner as PRT have not remained in continuity. Petitioner was selected/appointed as PRT for the first time for the period between 19.06.2013 to 18.06.2016. Then again from 27.06.2016 to 26.06.2019, she was again engaged on contract basis for three years. Her service tenure was extended till 31.03.2020 and thereafter, again for another period i.e. 15.04.2020 to 31.03.2023, petitioner was appointed as PRT on contract basis. Noticeably, every time applications were invited. The candidates were scrutinized and their merit was prepared and the candidates appearing higher in merit were offered appointment. It was only in the case where the candidates with higher merit omitted to accept the offer that the candidate having lower merit was offered appointment. This had happened even with the petitioner. She always voluntarily participated in all such selection processes and did not find any fault with any of these till the latest one, where the petitioner has remained unsuccessful. 15. This had happened even with the petitioner. She always voluntarily participated in all such selection processes and did not find any fault with any of these till the latest one, where the petitioner has remained unsuccessful. 15. It is evident from the material on record that in 2023 also, applications were invited through an advertisement on the notice board of the school for contractual appointment of PRTs for a period of three years. Petitioner applied, but remained lower in the rank of merit and for such reason only, could not get selected. Respondents No. 5 to 7 being higher in merit were offered appointments and all of them accepted the same. Petitioner has neither pleaded nor established any malafides against respondents No. 1 to 4 in appointing respondents No. 5 to 7 as PRTs in preference to the petitioner. There also is no allegation, as to why, the selection of respondents No. 5 to 7 was not in accordance with law. Again, petitioner has not been able to point out any applicable service rules under which she was entitled for automatic continuation of her contract. 16. In addition to above, another impediment in success of petitioner is her own conduct. Instead of challenging the selection process initiated by respondents No. 2 to 4 for appointment of PRTs, in the school during the year 2023, petitioner participated in the same without any objection and after having remained unsuccessful came up with instant petition. It is well settled that a person having participated in selection process cannot later come forward to challenge the same on the ground of illegality. Reference in this regard can be made to judgment passed by Hon’ble Supreme Court in Manish Kumar Shahi Vs. State of Bihar and Others, (2010) 12 SCC 576 , in which it has been held as under:- “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. Reference in this connection may be made to the judgments in Madan Lal v. State of J&K, Marripati Nagaraja v. Govt. of A.P., Dhananjay Malik v. State of Uttaranchal, Amlan Jyoti Borooah v. State of Assam and K.A. Nagamani v. Indian Airlines.” 17. Similar view has been taken by Hon’ble Supreme Court in Madras Institute of Development Studies and Another Vs. K. Sivasubramaniyan and Others, (2016) 1 SCC 454 , wherein it has been held as under :- “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.” 18. A Division Bench of this Court in Amrit Lal Sharma and Others Vs. State of H.P. and Others, 2014 (Suppl.) Himachal Law Reporter 2115, has also expounded the legal position as under:- “16. Coming back to the challenge to the selection, it is well settled law that a candidate after remaining unsuccessful cannot challenge the selection process and the constitution of the Selection Committee. If the petitioners entertained any doubts as to the fairness of the members of the Selection Committee, they ought to have objected then. Coming back to the challenge to the selection, it is well settled law that a candidate after remaining unsuccessful cannot challenge the selection process and the constitution of the Selection Committee. If the petitioners entertained any doubts as to the fairness of the members of the Selection Committee, they ought to have objected then. The petitioners however having proceeded with the interviews before Selection Committee to which the objections have now been taken, cannot be permitted to object after remaining unsuccessful (Refer Madan Lal and others Vs. State of Jammu and Kashmir and others AIR 1995 SC 1088 , Amlan Jyoti Borooah Vs. State of Assam and others, (2009) 3 SCC 227 and Manish Kumar Shahi Vs. State of Bihar and Others, (2010) 12 SCC 576 .” 19. In light of above discussion, the petitioner has failed to make out a case for herself. Having held so, this Court does not deem it necessary to detain itself further in delving on the issue of maintainability of the petition. 20. In result, the petition fails and is accordingly, dismissed. 21. The petition stands disposed of, so also the pending application(s), if any.