A writ petition challenged the selection criteria and committee composition for appointment to a period-based DPE post in a government school, alleging bias toward another candidate. The court held the petitioner estopped by participation from challenging the process and found no evidence of sham or favouritism, dismissing the petition.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWPOA No. 1043 of 2020
Date of decision: 05.04.2024
Desh Raj …Petitioner Versus State of H.P. & Ors. …Respondents Co ram
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon’ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting? No.
For the Petitioner: Mr. Ravinder Singh Chandel, Advocate.
For the Respondents: Mr. Anup Rattan, A.G. with Mr. Y. W. Chauhan, Sr. Addl. A.G., Ms. Sharmila Patial, Addl. A.G. and Mr. Raj Negi, Dy. A.G.
Tarlok Singh Chauhan, Judge (Oral)
The instant petition has been filed for grant of the following substantive reliefs:-
(I) That the impugned notification dated 30.07.2014 (Annexure A-2) and notification dated 12.08.2016 (Annexure A-4), may kindly be quashed and set aside and the respondents may kindly be directed to hold fresh selection after including subject expert in the selection committee and further reducing the proper percentage of marks in the viva-voce/interview.
(ii) That the selection of respondent No. 7 vide Annexure A-6 to the post of DPE in Govt. Sr. Sec. School Khaneol Bagra, Tehsil Karsog, District Mandi, H.P., may kindly be quashed and set aside.
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(iii) That the respondents may kindly be directed to conduct fresh interview for the post of DPE in Govt. Sr. Sec. School Khaneol Bagra, Tehsil Karsog, District Mandi, H.P.
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counsel for the petitioner that the criteria laid down vide notification dated 12.08.2016 for allocation of marks, more particularly, 20 marks for viva-voce is highly illegal, arbitrary and unconstitutional. And lastly, it is contended that the selection of respondent No. 7 is bad in law as the selection committee did not properly assess the merits of the candidates and was designed to appoint respondent No. 7.
We have heard learned counsel for the parties and have gone through the material placed on record.
“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
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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 7 may be made to the Judgments in MadanLal v. State of J. and K (1995) 3 SCC 486, Marripati Nagaraja v. Government of Andhra Pradesh and Ors., (2007) 11 SCC 522, Dhananjay Malik and Ors. v. State of Uttaranchal and Ors., (2008) 4 SCC 171, Amlan Jyoti Borooah Vs. State of Assam, (2009) 3 SCC 227 and K.A. Nagamani v. Indian Airlines and Ors. (2009) 5 SCC 515.”
12. The appellants participated in the fresh process of selection. If the appellants were aggrieved by the decision to hold a fresh process, they did not espouse their remedy. Instead, they participated in the fresh process of selection and it was only upon being unsuccessful that they challenged the result in the writ petition. This was clearly not open to the appellants. The principle of estoppel would operate.
13. The law on the subject has been crystalized in several decisions of this Court. In Chandra Prakash Tiwari v. Shakuntala Shukla (2002) 6 SCC 127 , this Court laid down the principle that when a candidate appears at an
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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 (2007) 8 SCC 100 , this Court held that:
“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 also Munindra Kumar v. Rajiv Govil6 and Rashmi Mishra v. M.P. Public Service Commission (2006) 12 SCC 724 ).”
14. The same view was reiterated in Amlan Jyoti Borroah (supra) where it was held to be well settled that 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.
15.In Manish Kumar Shah v. State of Bihar (supra) , the same principle was reiterated in the following observations :
“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
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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 MadanLal v. State of J. and K. MANU/SC/0208/1995 : (1995) 3 SCC 486, MarripatiNagaraja v. Government of Andhra Pradesh and Ors. MANU/SC/8040/2007 : (2007) 11 SCC 522, Dhananjay Malik and Ors. v. State of Uttaranchal and Ors. MANU/SC/7287/2008 : (2008) 4 SCC 171, AmlanJyotiBorooah v. State of Assam MANU/SC/0077/2009 : (2009) 3 SCC 227 and K.A. Nagamani v. Indian Airlines and Ors. (supra).”
16. In Vijendra Kumar Verma v. Public Service Commission (2011) 1 SCC 150 , candidates who had participated in the selection process were aware that they were required to possess certain specific qualifications in computer operations. The appellants had appeared in the selection process and after participating in the interview sought to challenge the selection process as being without jurisdiction. This was held to be impermissible.
17. In Ramesh Chandra Shah v. Anil Joshi (2013) 11 SCC 309 , candidates who were competing for the post of Physiotherapist in the State of Uttrakhand participated in a written examination held in pursuance of an advertisement. This Court held that if they had cleared the test, the respondents would not have raised any
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objection to the selection process or to the methodology adopted. Having taken a chance of selection, it was held that the respondents were disentitled to seek relief under Article 226 and would be deemed to have waived their right to challenge the advertisement or the procedure of selection. This Court held that :
“18. It is settled law that a person who consciously takes partin the process of selection cannot, thereafter, turn around and question the method of selection and its outcome.”
18. In Chandigarh Administration v. Jasmine Kaur (2014) 10 SCC 521, it was held that a candidate who takes a calculated risk or chance by subjecting himself or herself to the selection process cannot turn around and complain that the process of selection was unfair after knowing of his or her non-selection. In Pradeep Kumar Rai v. Dinesh Kumar Pandey (2015) 11 SCC 493, this Court held that :
“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. This, 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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This principle has been reiterated in a recent judgment in Madras Institute of Development v. S.K. Shiva Subaramanyam (2016) 1 SCC 454.
19. In the present case, regard must be had to the fact that the appellants were clearly on notice, when the fresh selection process took place that written examination would carry ninety marks and the interview, ten marks. The appellants participated in the selection process. Moreover, two other considerations weigh in balance. The High Court noted in the impugned judgment that the interpretation of Rule 6 was not free from vagueness. There was in other words no glaring or patent illegality in the process adopted by the High Court. There was an element of vagueness about whether Rule 6 which dealt with promotion merely incorporated the requirement of an examination provided in Rule 5 for direct recruitment to Class III posts or whether the marks and qualifying marks were also incorporated. Moreover, no prejudice was established to have been caused to the appellants by the 90:10 allocation.”
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(Tarlok Singh Chauhan) Judge
(Sushil Kukreja) 5th April, 2024 Judge (sanjeev)
2 issues framed by the court
Whether a candidate who participated in the selection process may later challenge the selection criteria, including viva-voce marks allocation.
Whether the composition of the SMC selection committee and the alleged favouritism rendered the DPE selection invalid.
Colour shows how this judgement treated each authority
Manish Kumari Sahi vs. State of BiharRelied on¶7
(2010) 12 SCC 576 · Who else cites this
Ashok Kumar and Another vs. State of BiharRelied on¶8
(2017) 4 SCC 357 · Who else cites this
Desh Raj
State of H.P.
Respondent No. 7 (selected candidate)
Tarlok Singh Chauhan
Sushil Kukreja
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
