Shiv Kumar Rajwade Vs State Of Chhattisgarh And Ors.

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NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR Writ Petition (S) No.2647 of 2013

Shiv Kumar Rajwade S/o Kulan Ram Rajwade Aged About 28 Years R/o Village Kanchanpur, Post Office Kakna, Police Station Dhourpur, Distt. Surguja C.G. ---- Petitioner

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Versus

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State Of Chhattisgarh through The Secretary, Deptt. Of Technical Education, Men Power Employment, Science And Technology, Mantralaya, Mahanadi Bhawan, Capital Complex, Naya Raipur Post Office Rakhi, District Raipur, Chhattisgarh

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The Principal, Government Polytechnic, Ambikapur, District Surguja C.G.

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Anuj Singh Paikara S/o Mandhan Singh Paikara R/o Village Chainpur, Post Office Jamgala, Police Station Lakhanpur, Distt. Surguja C.G. ----Respondents

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For Petitioners: Shri VK Pandey, Advocate. For State/Respondents No.1 & 2: Shri Atanu Ghosh, Dy. G.A. For Respondent No.3: Shri Pawan Shrivastava, Advocate.

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Single Bench: Hon'ble Shri Deepak Kumar Tiwari, J Order On Board

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25.01.2024

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This Petition has been filed to set aside appointment and selection of Respondent No.3 made vide order 10.06.2013 (Annexure P-1) in pursuance of advertisement dated 22.01.2013 (Annexure P-2) on the post of kushal sahayak (karmashala) and also to quash the entire selection process with regard to his

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appointment on the said post and further, a prayer was also made to appoint the Petitioner in his place on the said post.

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Brief facts of the case are that Respondent No.2 has published an advertisement inviting applications for various posts including kushal sahayak (karmashala) vide advertisement dated 22.01.2013 (Annexure P-2) and subsequently, the same was amended on 28.01.2013 (Annexure P-3) for which , 4 posts i.e. Scheduled Category-1, Scheduled Tribe-2 and unreserved category-1 were advertised. The Petitioner has applied under the unreserved category whereas, Respondent No.3 has applied under Scheduled Tribe category and in pursuance of such advertisement, after scrutiny, only 4 applications were found to be correct and as per clause-17 of the advertisement, it has been clearly mentioned that selection will be made through interview only in case where application forms are received more than 10 times of the vacant posts and only 4 applications were found in order. However, interview was held and as per the advertisement and Rules of CG Takniki Siksha Trutiya Shreni (Alipik Vargiya) Seva Bharti Niyam, 2 005 (Annexure P-5) (for short ‘the Rules of 2005’), the marks ought to have been given under the head of ‘experience’ and ‘higher education’ but the Petitioner was not awarded any marks under the aforesaid heads due to which, he got lesser marks than

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Respondent No.3 and there is another discrepancy with regard to another post i.e. Kushal Paricharak (Laboratory) in which, the roster has been followed in a different manner and the Petitioner was not selected and Respondent No.3 was selected for the post of unreserved category. Hence, this Petition.

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Shri Pandey, learned Counsel for the Petitioner submits that the order passed by Respondent No.2 is not just, fair and proper in the eye of law as proper process of selection has not been followed while selecting Respondent No.3 and mandatory terms and conditions mentioned in clause-17 of the advertisement were also not complied with, therefore, the entire process of selection is vitiated. He further submits that as the application forms were not more than ten times of the vacant posts, therefore, as per clause17 of the advertisement, the selection ought to have been made on the basis of merit list and not by any test/examination or interview and as such, the entire selection process of Respondent No.3 on the said post is required to be quashed and prays for a direction to be issued to Respondent No.2 to appoint the present Petitioner in place of Respondent No.3 on the said post.

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On the other hand, learned Counsel for Respondents submit that during the selection process, the Petitioner has submitted his experience gained in a private organization i.e. Mahamaya Autocars Pvt. Ltd., M.G Road, Ambikapur by stating that he had

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worked therein for a period commencing from 20.07.2007 to 15.08.2010 but during the selection process, the said certificate was not found to be acceptable as the said institution was not recognized in any manner. They further submit that Respondent No.3 has acquired 76% marks for the basic qualification of ITI Motor Mechanic and is also having experience in the Government institution for more than 3 years and 2 months and during the interview, he has been awarded 4 marks out of 5 aggregate and scored 70.80%. They further submit that though Respondent No.3 belongs to the Scheduled Tribe category but as he scored higher marks in the selection list, therefore, he was placed in the order of merit at the first place and got selected for the open category i.e. unreserved category. They further submit that the Petitioner has not made other selected candidates as party in the Petition and Respondent No.3 has been ousted from the reserved category of Scheduled Tribe and has been wrongly selected against the post of unreserved category and in the said category, already 2 candidates were selected and the said posts were filled up, therefore, there is no vacancy for the adjustment. They further submit that as the Petitioner had duly participated in the selection process, therefore, he cannot be allowed to approbate and reprobate at the same time and placed reliance in the matter of Pradeep Kumar Rai and Others vs. Dinesh Kumar Pandey and Others reported in (2015) 11

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SCC 493 wherein, it was held at para-17 as under:-

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“17. Moreover, we would concur with the Division Bench on one more point that the appellants had participated in the process of interview and not challenged it till the results were declared. There was a gap of almost four months between the interview and declaration of result. However, the appellants did not challenge it at that time. Thus, it appears that only when the appellants found themselves to be unsuccessful, they challenged the interview. This cannot be allowed. The candidates cannot approbate and reprobate at the same time. Either the candidates should not have participated in the interview and challenged the procedure or they should have challenged immediately after the interviews were conducted.”

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They further submit that having participated in the interview, the Petitioner cannot challenge the selection process as he took a chance to get himself selected only because he did not find himself in the selection list. It is well settled that if a candidate takes a calculated chance and appears in the interview, thereafter, he cannot turn around and challenge the selection. They further placed reliance in the matters of Anupal Singh & Others vs. State of UP through Principal Secretary, Personnel Department & Others reported in (2020) 2 SCC 173 and Union of India & Others vs. N. Murugesan & Others reported in (2022) 2 SCC 25 and submit that this Petition is liable to be dismissed on the ground of non-joinder of necessary parties i.e. other selected candidates .

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Heard learned Counsel for the parties and perused the order

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impugned as also the documents annexed herewith.

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In this Petition, the Petitioner is mainly claiming marks on the basis of higher education i.e. PGDCA and for having experience on the basis of certificate submitted by him pertaining to a private organization (Annexure P-7), but,with regard to advertisement (Annexure P-2 & P-3), Shri Pandey, fairly admits that there is no stipulation that any marks have been awarded on such score and only a clause has been mentioned that the candidates having experience should be given the preference. At Rule-11 (V) of Rules of 2005 (Annexure P-5), it has been stipulated that for selection on the basis of merit, the appointing officer may adopt the norms stipulated for the said rules or any other reasonable mode as for the minimum eligibility-80 marks (maximum), for higher qualification-5 marks (only for diploma and Graduation/Post Graduation), desired experience-10 marks (2 marks for each year) and for interview-5 marks (maximum) . Even the marks for the higher education and the experience having been added to the Petitioner concerned, he has scored only 68.80 marks, which is in aggregate below than the selected candidates, who have been placed in the order of merit of 70.80% in aggregate in favour of Respondent No.3 and the Petitioner has not added the other candidates as party herein and further, he has taken a calculated

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chance to participate in the interview process and it is well settled that no party can accept and reject the same instrument and thus it cannot be permitted to “blow hot and cold”, “fast and loose” or “approbate and reprobate”.

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In view of the foregoing discussion, this Court does not find any merit in the instant Petition, which is accordingly dismissed .

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Sd/-

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(Deepak Kumar Tiwari) JUDGE

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Priya

Shiv Kumar Rajwade v. State Of Chhattisgarh And Ors.

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Shiv Kumar Rajwade v. State Of Chhattisgarh And Ors.

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