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Madhya Pradesh High Court · body

2024 DIGILAW 36 (MP)

Pooja Sahu v. State of M. P.

2024-01-08

RAVI MALIMATH, VISHAL MISHRA

body2024
ORDER 1. Assailing the order dated 11.10.2023 passed by the learned Single Judge in dismissing Writ Petition No.21408 of 2021, the writ petitioner is in appeal. 2. It is the case of the petitioner that in pursuance to the advertisement issued on 1.6.2021 inviting applications to the post of Cardiothoracic technician, the petitioner as well as respondent No.3 and others applied for the same. There was one post reserved for OBC category and the qualification required was 10+2 with Biology, Chemistry & Physics, Diploma in Cardiothoracic technician and Certificate of Registration in M.P. Sah Chikitsiya Parishad. The petitioner was having all the requisite qualifications to the post in question. When the merit list was prepared, the petitioner was at serial number 1 in the merit list with 39 score whereas the respondent No.3 was having 24 score in the merit list. When the petitioner came to know about the fact that the respondent No.2 is making appointment of respondent No.3 despite he being less meritorious, the petitioner filed an objection to the same but without assigning any reason, the respondent No.3 was appointed on the aforesaid post. No explanation to the objection raised by the petitioner was given. Therefore, the writ petition was filed which came to be dismissed vide impugned order. 3. It is argued that the writ court has failed to consider the aforesaid aspect of the matter and has dismissed the writ petition inter alia placing reliance upon clause 4 of the advertisement which is the condition mentioned therein that a preference would be given to the candidates who have passed out the requisite qualification from the Government Medical Colleges. The counsel for the appellant submits that it is only a preference which was required to be given to the candidates but the preference cannot override the merit of the petitioner. Admittedly, the petitioner was more meritorious than respondent No.3. 4. The counsel for the appellant submits that it is only a preference which was required to be given to the candidates but the preference cannot override the merit of the petitioner. Admittedly, the petitioner was more meritorious than respondent No.3. 4. The counsel for the appellant was confronted with the relevant Clause 4 of the advertisement which reads as under : ^^04- e-ç- 'kklu fpfdRlk f'k{kk foÒkx d¢ Kki Ø- ,Q 2&20@2020@ 1@55@Ò¨iky fnukad 17-11-2020 }kjk uflZax ,oa iSjkesfMdy in¨a d¨ Òjus d¢ lacaèk esa tkjh funsZ'k vuqlkj iSjkesfMdy laox¨Za gsrq çFker% çns'k d¢ 'kkldh; fpfdRlk egkfo|ky;¨a esa lapkfyr iSjkesfMdy d¨lsZl ls mÙkh.kZ mEehnokj¨a ls in iwfrZ dh tkosxhA mij¨ä çfØ;k ls in Òjus d¢ mijkar 'ks"k fjä in¨a d¢ fy, vU; laLFkkv¨a ls mÙkh.kZ mEehnokj¨a dk lhèkh ÒrÊ ls Òjs tkus okys jkT; Lrjh; in¨a d¢ fy, 100 fcUnq j¨LVj dk ikyu ,oa e-ç- Lo'kklh ^^vkn'kZ lsok ÒrÊ fu;e] 2018^^ esa fufgr çkoèkku¨a d¢ varxZr dk;Zokgh dh tkosxhA^^ 5. From the aforesaid, it is clear that firstly the appointment to the post in question will be made from the candidates who have passed out from Government Medical Colleges and thereafter if any vacant post remains then the candidates from the other colleges will be taken into consideration. It does not lead to the preference being given to the candidates passed from Government Medical Colleges. Initially the candidates passing out from Government Colleges were required to be considered and only thereafter if any post remains vacant, the candidates from the other colleges will be taken into consideration. Admittedly, the petitioner has not passed out the requisite qualification from Government Medical College as that of respondent No.3 who has passed out from Government Medical College, therefore, following the Clause 4 of the advertisement, the appointment to the post in question was given to respondent No.3. It is not a case of preference being given over merit rather it is following the condition mentioned in the advertisement which the petitioner was fully aware of and thereafter has participated in the recruitment process. After being declared as an unsuccessful candidate, she has chosen to challenge the condition of the advertisement. The same is not permissible in view of the settled legal proposition that once a candidate has participated in the recruitment process, he cannot challenge the terms and conditions of the advertisement. 6. After being declared as an unsuccessful candidate, she has chosen to challenge the condition of the advertisement. The same is not permissible in view of the settled legal proposition that once a candidate has participated in the recruitment process, he cannot challenge the terms and conditions of the advertisement. 6. The law on the subject has been crystallised in several decisions of the Hon'ble Supreme Court. In Chandra Prakash Tiwari v. Shakuntala Shukla reported in (2002) 6 SCC 127 , it is held that when a candidate appears at an examination without objection and is subsequently found to be not successful, a challenge to the process is precluded. The question of entertaining a petition challenging an examination would not arise where a candidate has appeared and participated. He or she cannot subsequently turn around and contend that the process was unfair or that there was a lacuna therein, merely because the result is not palatable. In Union of India v. S. Vinodh Kumar reported in (2007) 8 SCC 100 , the Hon'ble Supreme Court held as follows : “18. It is also well settled 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 ” 7. The same view was reiterated in the case of Amlan Jyoti Borooah v. State of Assam reported in (2009) 3 SCC 227 wherein it is held that the candidates who have taken part in a selection process knowing fully well the procedure laid down therein are not entitled to question it upon being declared to be unsuccessful. Under these circumstances, no illegality has been committed. Even otherwise, the scope of interference in an intra-Court appeal is limited unless the findings of the learned Single Judge are perverse. We see no reason to interfere with the impugned order as the learned writ court upon due consideration of the submissions advanced by the counsels for the parties has dismissed the petition. Hence, no relief can be extended to the appellant. 8. The writ appeal sans merit and is accordingly dismissed. No order as to costs.