Allowed

Dulmoni Bordoloi v. Jnandeep Rabha and 6 Ors.

Gauhati HC4 Apr 2019WA/82/2018

Case brief

AI extract

What is this about?

In an intra-court appeal, the Gauhati High Court examined whether a respondent in a writ petition, who participated in a fresh job recruitment drive after an earlier selection was annulled, could challenge that annulment. The Court held that participation in the revised process amounted to waiver under the doctrine of approbate and reprobate, setting aside the Single Judge's order.

What did the court decide?

The intra-court appeal was allowed; the Single Judge's order dated 23.02.2018 was set aside; the underlying writ petition was dismissed.

Dulmoni Bordoloi Vs Jnandeep Rabha and… — Constitutional and Fundamental Rights | Gauhati HC (2019)

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GAHC010055642018

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WA 82/2018

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1:DULMONI BORDOLOI

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S/O LATE KRISHNA KUMAR BORDOLOI ,

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R/O VILLAGE BEBEJIA ,P.O. BEBEJIA ,P.S. NAGAON (SADAR), DIST. NAGAON, ASSAM, PIN -782142

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VERSUS

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1:JNANDEEP RABHA AND 6 ORS R/O KHUTIKATIA PATHARUA CHOWK, P.O.SENCHOWA , DIST. NAGAON , ASSAM , PIN 782002

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2:THE STATE OF ASSAM

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REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENTED OF ASSAM DISPUR

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GUWAHATI- 781006

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3:THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM

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EDUCATION DEPARTMENT DISPUR GUWAHATI -781006

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4:THE DIRECTOR OF HIGHER EDUCATION HIGHER EDUCATION DEPARTMENT GOVERNMENT OF ASSAM KAHILIPARA

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GUWAHATI -781019

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5:THE PRINCIPAL NOWGONG GIRLS COLLEGE NAGAON

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DIST. NAGAON ASSAM PIN-782002

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6:THE DISTRICT EMPLOYMENT OFFICER EMPLOYMENT EXCHANGE NAGAON ASSAM HAVING ITS REGISTERED HEAD OFFICE AT A.K. AZAD ROAD REHABARI GUWAHATI -781008 7:THE GOVERNING BODY NOWGONG GIRLS COLLEGE NAGAON DIST. NAGAON ASSAM PIN 78200

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Advocate for the Petitioner : MR. A J SARMA

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Advocate for the Respondent : B CHOWDHURY

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BEFORE

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HON’BLE THE CHIEF JUSTICE MR. A. S. BOPANNA HON’BLE MR. JUSTICE ARUP KUMAR GOSWAMI

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Advocates for appellant - Mr. D Das, Senior Advocate Mr. AJ Sarma, Mr. G Alam Advocates for respondent No.1 - Mr. PK Goswami, Senior Advocate Ms. B Choudhury Advocate for respondent Nos.2, 3 & 4- Mr. K Gogoi, Standing Counsel, Higher Education Advocates for respondent Nos.5 & 7 -Mr. R De Mr. DK Kalita

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Date of hearing : 28.03.2019 Date of judgment : 04.04.2019

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JUDGMENT & ORDER (CAV)

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(A.S. Bopanna, C.J.)

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The appellant herein was the respondent No.6 in WP(C) 4958/2014. The respondent No.1 herein was the petitioner in the said writ petition. The writ petition was filed by the respondent No.1 herein seeking issue of mandamus to direct the official respondents to ensure absorption to the post of Library Assistant at Nagaon Girls College by giving effect to the merit list dated 11.2.2013. In that regard, respondent No.1 herein had sought that the select list dated 4.5.2013 wherein the appellant herein was selected, be annulled as the same suffers from legal infirmities.

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The learned Single Judge having accepted the contention of the respondent No.1 herein has through the order dated 23.2.2018 held that the resolution of the Governing Body dated 5.3.2013 is arbitrary and there was no justifiable reason to cancel the selection process pursuant to the first advertisement dated 10.12.2012. In that view, it was directed that the selection process pursuant to the Advertisement dated 10.12.2012 be taken to its logical end by strictly following the procedure prescribed. In that circumstance, the appellant herein claiming to be aggrieved by the order passed by the learned Single Judge is before this Court in this intra-Court appeal.

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The brief facts are that a notification dated 10.12.2012 through the Employment Exchange of Nagaon was issued relating to selection to the post of Library Assistant in Nagaon Girls College. The qualification required was HSLC pass, with diploma in computer.

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The appellant herein and the respondent No.1, among others had participated in the said process. In the initial process, the Selection Committee held the interview on 11.2.2013 subsequent to the written examination being conducted and in the said process, the respondent No.1 secured 25.53 marks while the appellant herein secured 22.21 marks. The Selection Committee, therefore, selected the respondent No.1 and sent the resolution to the Governing Body for its consideration. The Governing Body in its meeting dated 5.3.2013, on discussion had observed that correct education eligibility was not indicated and the list of candidates were sent from the Employment Exchange. In that view, considering the same to be an anomaly had concluded that the select list sent by the Selection Committee shall stand cancelled/annulled. It was decided that the Employment Exchange shall send the list of candidates registered with them with the minimum eligibility criteria for the post of Library Assistant by indicating the same as HSLC pass with certificate/diploma in computer. It was also decided that fresh written examination would be conducted and the candidates who have already appeared in the selection process dated 11.2.2013 shall once again be called to appear in the ensuing exam for the post of Library Assistant. The said decision was due to the position that even though the Director of Higher Education had informed the Principal about the minimum qualification of HSLC examination, the Principal while forwarding the same to the District Employment Officer through the communication dated 10.12.2012 had in addition to the qualification of HSLC prescribed, indicated that the graduate (B.A., B.Sc and B.Com), diploma in computer is desirable. In that view the same was found as an anomaly by the Governing Body.

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In view of the said decision dated 5.3.2013 of the Governing Body, the communication dated 10.3.2013 was issued from the Principal to the Employment Officer. The Employment

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Officer in the communication addressed to the Principal on 14.3.2013 had informed that the vacancies be published in the local daily newspaper. Accordingly, the advertisement dated 26.3.2013 was issued. The said advertisement, while inviting applications had also indicated that the candidates who had appeared for the interview through Employment Exchange need not apply again. The said exemption to re-apply was available to the appellant and the respondent No.1 herein as they had applied earlier. Pursuant thereto, an interview notice dated 18.4.2013 was issued to the respondent No.1 informing him that the earlier interview dated 11.2.2013 was cancelled due to technical reasons and he was called upon to appear both in the written and the viva interview along with computer practical test to be held on 4.5.2013. The respondent No.1, the appellant and also the other candidates had appeared pursuant thereto. In the interview held on 4.5.2013, the appellant herein secured 27.5 marks while the respondent No.1 secured 23.3 marks. Hence, the appellant was treated as the selected candidate for appointment by the Selection Committee. In that circumstance, since in the present process, the appellant was indicated as the selected candidate by the Selection Committee, the petitioner on securing the information under the Right to Information Act on knowing that in the first selection process conducted on 11.2.2013 he had secured higher marks and indicated as selected, has thereafter filed the writ petition on 28.8.2014 seeking for the relief as noticed above. It is in that background, the learned Single Judge having taken into consideration the rival contentions, was of the opinion that the cancellation of the earlier process was not justified.

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Heard Mr. D Das, learned Senior Counsel assisted by Mr. AJ Sarma and Mr. G Alam, learned Counsel for the appellant. Also heard Mr. PK Goswami, learned Senior Counsel assisted by Ms. B Choudhury, learned counsel for the respondent No.1, Mr. K Gogoi, learned

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Standing Counsel, Higher Education Department, for respondent Nos.2 to 4 and Mr. R De and Mr. DK Kalita, learned counsel for respondent Nos.5 and 7. We have also perused the appeal papers.

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On the above factual background, learned Senior counsel for the respondent No.1 has in reiteration of the contention put forth before the learned Single Judge, made a detailed reference to the resolution dated 5.3.2013 of the Governing Body and has contended that the manner in which the Governing Body has proceeded in the matter to cancel the selection process dated 11.2.2013 is not justified. It is contended that the applications had been procured through the Employment Exchange. Those were processed and the Selection Committee on assessing the merit of the candidates had selected the respondent No.1 herein and sent the name to the Governing Body. It is his case that as per Rule 5 (1) and 7 of the Assam College Employees (Provincialisation) Rules, 2010, the power of the Governing Body is only to constitute a Selection Committee and on the Selection Committee forwarding the name, the Governing Body can only agree or disagree and send its recommendation to the Director who shall issue orders of appointment. In such circumstance, if the Governing Body has a different opinion, only the observation/dissent can be incorporated and reference be made to the Director who is to ultimately take the decision. In that view, it is contended that the Governing Body itself could not have cancelled the process and sent back for fresh consideration.

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It is further contended that the very reason as assigned in the resolution holding it to be a technical flaw would not be justified. In that circumstance, it is contended that when at the first instance, the qualification was indicated as HSLC and in that process, the selection had taken place, the annulment of the same was not justified.

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Though contention to that effect is put forth on behalf of respondent No.1, the primary

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contention urged by the learned Senior counsel for the appellant, as had been put forth before the learned Single Judge is also that in the circumstance where the respondent No.1 who had participated in the earlier process, on annulment and a fresh advertisement being issued, had pursuant to the notice issued for interview participated in the subsequent process and had failed therein, cannot at this juncture challenge the subsequent process. In that regard, it is contended that the respondent No.1 cannot approbate and reprobate.

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In view of such contention relating to approbate and reprobate being put forth, if accepted, it would act as a threshold bar. Therefore, the contention as urged by the learned Senior counsel for respondent No.1 with regard to the correctness or otherwise of the decision taken by the Governing Body through the resolution dated 5.3.2013 and the subsequent procedure followed, the same would arise only if the threshold bar to entertain the petition on the principle of approbate and reprobate is considered and surpassed. Hence, that aspect of the matter would require consideration at the outset.

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Learned Senior counsel for the appellant has in that regard relied on the following decisions:

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a) The case of Madan Lal and others vs. State of J&K and others, reported in (1995) 3 SCC 486 wherein it is held as hereunder:

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“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. Upto this stage there is no dispute between the parties. The petitioners also appeared

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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 Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla and Ors., (AIR 1986 SC 1043), 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.”

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b) The case of D. Sarojakumari v. R. Helen Thilakom and others, reported in (2017) 9 SCC 478 wherein the Hon’ble Supreme Court on referring to the earlier decision has held that one having taken part in the process of selection with full knowledge that the recruitment was being made under the general rules, had waived the right to question the advertisement or methodology adopted by the Board for making selection. In that circumstance, it is held that the High Court had committed grave error in entertaining the grievance raised subsequently by the respondent therein.

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c) The case of Suneeta Aggarwal vs. State of Haryana and others, reported in 2000 Part II SCC 615, wherein it is held as hereunder:

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“4. We have heard learned counsel for the parties. Narration of aforestated facts would show that the appellant had disentitled herself to seek relief in the writ petition filed by her before the High Court. The appellant did not challenge

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the order of the Vice Chancellor declining to accord approval to her selection and, on the contrary, she applied afresh to the said post in response to readvertisement of the post without any kind of protest. Not only did she apply for the post, but also she appeared before the Selection Committee constituted consequent upon re- advertisement of the post and that too without any kind of protest, and on the same day she filed a writ petition against the order of the Vice Chancellor declining to accord his approval and obtained an ad-interim order. In the writ petition she also did not disclose that she has applied for the post consequent upon second advertisement. The appellant having appeared before the Selection Committee without, any protest and having taken a chance, we are of the view that the appellant is estopped by her conduct from challenging the earlier order of the Vice Chancellor. The High Court was justified in refusing to accord any discretionary relief in favour of the appellant. The writ petition was rightly dismissed.”

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d) The case of Debasish Shome vs. Union of India and others, dated 14.11.2018 in WP(C) 6942/2018 wherein this Court had held that the petitioner therein having responded to the subsequent advertisement cannot approbate and reprobate so as to seek the relief when he had participated in the subsequent process.

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The learned senior counsel for the respondent No.1 though does not dispute the proposition of law with regard to the principle of waiver amounting to approbate and reprobate, it is, however contended that in the instant case the same would not be applicable. It is his contention that the right accruing would be different at different stages of the proceeding and the waiver would arise only when a known right is not exercised. In that regard he has relied on the decision in the case of A. A. Calton vs. Director of Education and Another, (1983) 3 SCC 33, wherein it is held that at every stage in a process certain rights are created in favour of one or the other of the candidates and it is well settled that no

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retrospective effect should be given to any statutory provision so as to impair or take away an existing right. In that light, it is contended by the learned senior counsel for the respondents that though by the selection process dated 11.12.2013 a right was created in favour of the respondent No.1 herein, the respondent No.1 was neither informed of such right nor was any notice issued to him indicating the withdrawal of the right that had accrued in his favour. In that light, it is contended that in such circumstance the participation of the respondent No.1 in the subsequent process of selection held on 04.05.2013 cannot be considered as waiver of his right so as to apply the principle of approbate and reprobate. He would point out , all that was informed to him was that he is required to attend the interview as the earlier one was cancelled for technical reasons.

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To contend that in such circumstance there is no waiver of the right, the learned senior counsel for respondent No.1 has relied on the following decisions;

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(a) The case of Nagubai Ammal & Others vs. B. Shama Rao & Others, AIR 1956 SC 593, wherein the Hon’ble Supreme Court has held that the ground of the decision is that when on the same facts, a person has the right to claim one of two reliefs and with full knowledge he elects to claim one and obtains it, it is not open to him thereafter to go back on his election and claim the alternative relief. The doctrine of election is not however confined to instruments. A person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage. That is to approbate and reprobate the transaction.

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(b) The case of A. P. SRTC and Others vs. S. Jayaram, (2004) 13 SCC 792, while considering the issue of waiver in a matter relating to the tender process wherein the contractor claimed right for extension of the earlier lease period after participating in the process of tender for the subsequent period, the Hon’ble Supreme Court taking note of Circular No.45/81, had held that to constitute waiver there must be an intentional relinquishment of a known right or voluntary relinquishment or abandonment of a known existing legal right or conduct such as warrants an inference of the relinquishment of a known right or privilege. In that case, the Corporation had not made the offer in terms of the Circular and, as such, was not permitted to take shelter behind its own wrong to claim waiver.

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(c) The case of John Knipe vs. British Railways Board, (1972) 1 All ER 673, wherein while considering the right available for either seeking compensation under the Workmen’s Compensation Act and the damages under the common law, it was held that a man is not to be held to have exercised his option unless he knew that he had an option. If he did not know that he had a claim at common law, he was not to be barred by taking workmen’s compensation. In the said case it was held that he did not know he had an option for claiming one or the other. Hence, he is not barred by Section 29 of the Workmen’s Compensation Act, 1925.

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(d) The learned senior counsel has also referred to the definition of approbate and reprobate as contained in the Halsbury’s Laws of England, wherein it is stated that the person in question having a choice between two courses of conduct is to be treated as having made an election from which he cannot resile. Hence, it is contended that only

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when there is a known choice and one among the two is opted, there would be waiver in respect of the other.

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From a composite perusal of the judgments cited on either side, the position of law is well settled that in order to constitute waiver of a right so as to attract the principle of approbate and reprobate, the conduct in a particular case whereby a right available is not exercised or without raising objection at the relevant point when one yields to the subsequent process, no grievance can be raised subsequently. In that background, the decisions relied upon by the learned senior counsel for respondent No.1 relate to the nature of the transaction pertaining to contract and relating the claim for compensation where without knowledge of the different options available, a right was claimed subsequently. However, in a matter relating to recruitment in service, from the decisions as relied upon by the learned senior counsel for the appellant it is clear that in the process of recruitment if any challenge to the process is to be made by any candidate, the same is required to be made without yielding and participating in the process. If a candidate takes part in the process, on taking a chance he/she cannot thereafter make out a grievance when he/she fails in such process. In that backdrop, the facts arising in the present case is to be analysed. The learned senior counsel for respondent No.1 by relying on the said decisions has contended that the respondent No.1 cannot be held to have waived his right since he was not made known about his selection in the selection process conducted on 11.02.2013. In that background, it is contended that when he was called for interview he had participated in the interview as he was only informed that the earlier process was cancelled for technical reasons. It is his case that only when he came to know that he in fact was selected on 11.02.2013, he has thereafter sought for continuing the process and giving him the post, the right which had

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accrued.

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The said contention, in our opinion, would not be sustainable. At the outset, the very Rules 5 and 7 of the Rules 2010 relied upon by the learned Senior Counsel for respondent No.1 would indicate that the Director is required to issue the order of appointment subsequent to the recommendation to be made by the Governing Body. In that background, in the instant case, only the first process of consideration by the Selection Committee in its meeting held on 11.02.2013 was completed, which was forwarded to the Governing Body. The Governing Body did not accept the recommendation of the Selection Committee and send the same to the Director for the purpose of issuing the order of appointment. In that circumstance, as on that date, the respondent No.1 cannot be considered as a selected candidate so as to be informed of the same as claimed by him. Therefore, at that stage, the only procedure that had been completed is the recommendation by the Selection Committee to the Governing Body and the Governing Body through its resolution dated 05.03.2013 having taken note of certain deficiency, had sent back the matter for fresh consideration after cancelling the recommendation. The correctness of the decision dated 05.03.2013 though was adverted to in details and assailed by the learned Senior Counsel for respondent No.1, the merit of such decision would arise for judicial review if the challenge was made to the same at the appropriate stage but if the challenge is barred by the principle of approbate and reprobate, the merit of the decision dated 05.03.2013 need not be adverted to.

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In that circumstance, to that extent when the decision dated 05.03.2013 of the Governing Body is noticed, it is seen that while remitting to the Selection Committee for redoing the process, the Governing Body had cancelled/annulled the select list sent by the

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Selection Committee and it was decided that the Employment Exchange shall again send the list of candidates registered with them, the result being that it would add more persons to the selection process. It was also indicated therein that the candidates who had already appeared in the selection examination on 11.02.2013 shall once again be called to appear for the ensuing examination for the post of Library Assistant. This was sufficient to indicate that the process was altered and the respondent No.1 was to go through the process once over again. It is no doubt true that in the process of selection on 11.02.2013, the respondent No.1 had secured the highest mark and was indicated as selected by the Selection Committee which was not known to him. Even if the said fact of his selection was not known to the respondent No.1, the fact remains that all the candidates including the respondent No.1 had appeared for the written examination and the interview conducted on 11.02.2013. In that regard they were all entitled to be considered on that basis for completion of the process. But in a circumstance, where the earlier process in which the candidates had appeared for examination was cancelled/annulled through the resolution dated 05.03.2013 and it was indicated that more candidates would be included as the list was to be secured from the Employment Exchange and also when it was indicated that the candidates who had already appeared in the selection examination dated 11.02.2013 shall once again appear for the examination, that itself had provided a cause of action to assail the action of the official respondents and such cause of action was available to all the candidates who had participated in the selection process dated 11.2.2013 if they had considered themselves aggrieved, since at that stage no announcement with regard to any selected candidate in any event was required to be made.

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Further, what is to be taken note is, pursuant to such remittance of the matter

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indicating that the list be secured from the Employment Exchange, the Employment Officer through the communication dated 14.03.2013 had required that the vacancy be published in the local daily newspapers for wider circulation. Pursuant thereto, the advertisement dated 26.03.2013 (Annexure A-6) was issued. The advertisement provided that those who have appeared for interview through Employment Exchange need not apply again. The said indication was to permit the appellant, respondent No.1 and all other candidates who had participated in the selection process dated 11.02.2013 to participate in the process once over again and compete with the new applicants without making a fresh application. The publication of the advertisement provided yet another cause of action to the persons who had participated in the selection process dated 11.02.2013 if they were aggrieved, irrespective of the fact whether one was selected or not, as more persons would join the process in view of the said advertisement thereby nullifying the right, if any, accrued to such persons who were part of the earlier process. In that background, even if the respondent No.1 had not challenged the process at that stage, the receipt of the interview notice dated 18.04.2013 (Annexure P/7) was the point at which the respondent should have been aggrieved. In the interview notice dated 18.04.2013 it was stated that the interview earlier held on 11.02.2013 was cancelled and the respondent No.1 was directed to appear both in the written and viva interview along with computer practical test to be held on 04.05.2013. At that stage, the respondent No.1 had a choice to make. One was to seek for completion of the earlier process irrespective of the fact whether he was selected or not. The other was to accept the decision of the official respondents to cancel the earlier process and participate in the process sought to be redone. Hence, the respondent No.1, if aggrieved, was required to assail such action irrespective of the fact whether he was indicated as selected candidate or otherwise in the

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process held on 11.02.2013. Instead the respondent No.1, on making a choice has yielded to the action of the official respondents, participated in the selection process held on 04.05.2013 and in the said process when he has failed, he has approached this Court by filing the writ petition seeking continuation of the process dated 11.02.2013 which had already been cancelled and also made known to the respondent No.1 through interview notice dated 18.04.2013 though the reason indicated therein is for technical reasons. In that circumstance, while considering the principle of approbate and reprobate in service matters, more particularly relating to the selection process, the cancellation of the earlier process and the initiation of the subsequent process in a circumstance where the earlier process had not reached the stage of finalisation of the selected candidates itself is the stage to make a choice to yield or to challenge. The knowledge of being a selected candidate alone cannot be the basis to challenge the action. On the other hand, the very decision of the official respondents to cancel the process which was undertaken and to re-do the same, that too, by inviting further applications itself was a decision which was required to be challenged, if one felt aggrieved. Instead, if a candidate yields and participates in the restructured selection process, the cancellation/annulment of the earlier process stands acceded to. Hence, it would amount to waiver of his right, even if the decisions cited by the learned senior counsel for respondent No.1 are kept in perspective.

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In that view, we are of the opinion that the distinction sought to be made by the learned Single Judge despite taking note of the decision of the Hon’ble Supreme Court in the case of Madan Lal and Others (supra.) is not justified. In that circumstance, when the writ petition was hit by the principle of approbate and reprobate, the consideration made by the learned Single Judge by placing reliance on the decision of the Hon’ble Supreme Court in the

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case of Mohinder Singh Gill and Another vs. The Chief Election Commissioner, New Delhi and Others, (1978) 1 SCC 405, which is also cited before us, is not justified. In that view of the matter, when it is noticed that, even if not for the advertisement dated 26.03.2013, when definitely the respondent No.1 was aware about the cancellation of the selection process dated 11.02.2013 when he received the subsequent interview notice dated 18.04.2013 and participated in the selection process dated 04.05.2013 but filed the writ petition only on 20.08.2014 and, that too, when the information had been obtained by him as far back as on 30.11.2013, this Court could not have come to his aid. In that view, the order dated 23.02.2018 passed by the learned Single Judge in WP(C) 4958/2014 cannot be sustained. When the respondent No.1 herein fails on the threshold bar, all other contentions urged will not merit consideration.

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In the result, the appeal is allowed. The order dated 23.02.2015 passed by the learned Single Judge is set aside. Consequently, the W.P. (C) No.4958/2014 shall stand dismissed. No order as to costs.

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JUDGE CHIEF JUSTICE

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Comparing Assistant

Dulmoni Bordoloi v. Jnandeep Rabha and 6 Ors.

Case brief

What is this about?

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Dulmoni Bordoloi v. Jnandeep Rabha and 6 Ors.

Case brief

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