Dharmender Kumar Vs State of Hp

For the petitioners: Mr. Arun Kumar Sharma, Advocate For the respondents: Mr. Sumit Sharma, Dy. A.G. for respondents No. 1 and 2. Ms. Seema K. Guleria, Advoate for respondents No. 3 and 4.

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Ranjan Sharma, Judge

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Petitioners, Dharmender Kumar and Suresh

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Kumar, have assailed the selection and appointment of Respondents No. 3 and 4 and have sought the following reliefs:-

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“(i) That the impugned letter dated 20.09.2017, Annexure A-2, qua the respondents No. 3 and 4, wherein respondents No. 3 and 4 have wrongly been selected, may kindly be ordered to be quashed and set-aside.

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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2. FACTUAL MATRIX :

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Grievance of the petitioners is that the petitioners were working as Revenue Chowkidar as per Annexure A-5 and Annexure A-6 for the last 5 years and 3 years respectively. It is averred that the Respondents issued a notification on 13.07.2017 [Annexure A-1] for filling up 178 posts of Part

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Time Workers in various Patwar Circles of District Hamirpur. It is averred that the petitioners have appeared in the interview on scheduled date but the respondents have wrongly selected Respondents No. 3 and 4, namely, Smt. Shashi Bala and Mr. Ajay Kumar, ignoring the fact that the petitioners were eligible and they possessed the experience certificate as Revenue Chowkidar vide Annexure A-5 and A-6. It is further averred that though the petitioners were eligible and nothing adverse existed yet the respondents have selected and appointed the private respondents No. 3 and 4, namely, Smt. Shashi Bala

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and Mr. Ajay Kumar, as Part Time Workers over and above the petitioners, which was alleged to be discriminatory, arbitrary, unconstitutional and also

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violative of Article 14 and 16 of the Constitution of India.

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3. STAND OF STATE AUTHORITIES IN REPLY :

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Pursuant to the issuance of notice, the Respondents 1 and 2-State Authorities filed a Reply-

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Affidavit of Deputy Commissioner, District Hamirpur. In Para 3 and Para 6(i) to 6(iv) of Reply-Affidavit, the official respondents have stated that Respondents No 3 and 4 have been selected as Part Time Workers and not as Revenue Chowkidar as alleged by the petitioners. Reply-Affidavit indicates that Respondents No. 3 and 4 have been selected purely on the basis of merit of candidates determined by the Selection Committee constituted for selection of Part Time Workers. Reply-Affidavit indicates that selection has been made by the Selection Committee in terms

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of the criteria fixed by the State Government

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based on marks in matriculation and other parameters of selection in terms of the Government notification dated 17.04.2017 [Annexure R-1]. It is further averred

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in Reply-Affidavit that the petitioners participated in the selection process but they could not secure their position in the merit list vis-à-vis other candidates including the Respondents No. 3 and 4 who had virtue higher overall merit in terms of notification 17.04.2017 [Annexure R-1] and were selected and appointed. Reply-Affidavit further indicates that the selection for the post of Part Time Worker has been made purely on the basis of merit as per marks secured in matriculation examination and

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other criteria prescribed in notification dated 17.04.2017 [Annexure R-1]. Allegations regarding violation of Articles 14 and 16, was specifically denied in ReplyAffidavit.

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4. STAND OF PRIVATE RESPONDENTS IN REPLY:

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Pursuant to the issuance of notice, the

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Private Respondents herein, being the selected/appointed candidates as Part Time Workers, have filed separate reply. In Reply-Affidavit an objection with respect to non-joinder of necessary parties has been taken. In Para 6 of Reply-Affidavit the private-respondents have taken a stand that the petitioners who are alleged to have worked as Revenue Chowkidar were not entitled for benefit of experience as Revenue Chowkidar in terms of notification dated 17.04.2017. In Para 8 of Reply-Affidavit the Private Respondents have specifically taken a stand that advertisement did not bar a candidate belonging to one Patwar Circle not to apply in another Patwar Circle and therefore, the plea set up by the petitioners was not tenable.

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5. REBUTTAL BY PETITIONERS:

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Petitioners filed a rejoinder reiterating the

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stand in the writ petition. Perusal of rejoinder states

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that the Selection Committee had erred in not

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taking into account the experience of the petitioner as Revenue Chowkidar, which is borne out from the experience certificate Annexure A-5 and A-6. In Para 2 of the rejoinder, on merits, it is averred

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that had such experience been taken into account, then, the petitioners would have turned out to be more meritorious vis-à-vis the private respondents.

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In this background, a prayer has been made reiterating

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the averments in the writ petition with the prayer for allowing the writ petition.

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6. Heard, Mr. Arun Kumar Sharma, Learned

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Counsel for the petitioners and Mr. Sumit Sharma,

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Deputy Advocate General for Respondents-State and Ms. Seema K. Guleria, Advocate for Respondents No. 3 and 4.

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7. ANALYSIS:

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Taking into account the entirety of the

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facts and circumstances and the material on record,

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this Court is of the considered view, that the

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claim of the petitioners for selection and appointment as Part Time Worker and the claim assailing the selection and appointment of the Private Respondents No. 3 and 4, does not stand the test of judicial scrutiny, for the following reasons :

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CONTENTION THAT SELECTION BASED ON INTERVIEW VITIATED THE PROCESS:

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7(i). First contention of Learned Counsel for

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the petitioner is that though the respondents have

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called the petitioner for interview on the scheduled date but the Private Respondents were selected and appointed without conducting interview.

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The above contention is misconceived for the reason, that no interview was either contemplated nor conducted by the respondents as alleged. Further the selection was made in terms of the parameters of selection i.e. the evaluation of candidates as

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per the criteria notified by the State Government on 17.04.2017 [Annexure R-1]. In these circumstances,

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the contention that the interview was not conducted

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is misconceived and is rejected.

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CHALLENGE AFTER PARTICIPATION DISENTITLES PETITIONERS FOR RELIEF:

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7(ii). Material on record indicates that the

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advertisement was issued on 03.05.2017. The aforesaid advertisement was superseded by way of a fresh advertisement on 13.07.2017, whereby, the State

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Authorities intended to fill up the post of Part Time Worker in various Patwar Circles. The recruitment notice-advertisement stipulated that the eligibility

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and other terms and conditions were available on

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the official website of the Respondents. In Para 6(iii) of the writ petition, it is own case of the petitioners that they participated in selection for the post of Part Time Worker, in pursuance to recruitment notice dated 13.07.2017. Reply-Affidavit reveals that

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the petitioners had applied and had participated in selection process but due to their lower overall merit vis-à-vis higher merit of others, including private

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respondents in terms of the notification dated

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17.04.2017, the petitioners could not be selected by the Selection Committee. Para 4(iii) of the Reply-

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Affidavit negates the claim of petitioners, whereby, it it is specifically stated that the petitioners participated

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in the selection process but they could not attain their position/place in merit list vis-à-vis the private respondents, who had better merit in the selection

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process. In these circumstances, once the petitioner had applied for the post and had participated in the selection process [which was based on evaluation and not interview] and due to lower merit they could not find a place in overall merit, then, the petitioners after having participated in the selection neither have any locus standi nor any right to assail the selection of the private respondents in view of the mandate of the Hon’ble Supreme Court as discussed here-inbelow:

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7(ii-a). While dealing with the locus standi of a

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candidate who after participation and having

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remained unsuccessful chose to question the selection process criteria was answered by the Hon’ble Supreme

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Court in Madan Lal versus State of Jammu and Kashmir, (1995) 3 SCC 486, in negative in the following terms:

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… The petitioners also appeared 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 run round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted.”

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7(ii-b) Similar plea by an unsuccessful candidate

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after participation was turned down by the Hon’ble Supreme Court in K. H. Siraj versus High Court

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of Kerala (2006) 6 SCC 395 , in the following

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terms:

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The appellant-petitioners having participated in the interview in this background, it is not open to the appellant-petitioners to turn round thereafter when they failed at the interview and contend that the provision of a minimum mark for the interview was not proper.

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7(ii-c) By applying the principle of approbation

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and reprobation, the claim of unsuccessful candidate who having participated was held to have no locus standi to assail the selection process in Sadananda

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Halo versus Momtaz Ali Sheikh, (2008) 4 SCC 619,

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in the following terms:-

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It is also a settled position that the unsuccessful candidates cannot turn back and assail the selection process . There are of course the exceptions carved out by this Court to this general rule. This position was reiterated by this Court in its latest judgement in Union of India versus S. Vinodh Kumar, (2007) 8 SCC 100. The Court also referred to the judgement in Om Prakash Shukla versus Akhilesh Kumar Shukla (1986) Supp SCC 285, where it has been held specifically that when a candidate appears in the examination without protest

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and subsequently is found to be not successful in the examination, the question of entertaining the petition challenging such examination would not arise.

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7(ii-d). Based on the principle of approbation and

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reprobation and the principle of estoppel, the right of unsuccessful candidate to assail the selection process after having remained unsuccessful was negated

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by the Hon’ble Supreme Court, in State of Punjab versus Dhanjit Singh Sandhu, (2014) 15 SCC 144, held as under:

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“22. The doctrine of “approbate and reprobate” is only a species of estoppel, it implies only to the conduct of parties. As in the case of estoppel it cannot operate against the provisions of a statute. (Vide CIT v. V. MR. P. Firm Muar [CIT v. V. MR. P. Firm Muar, AIR 1965 SC 1216]).

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It is settled proposition of law that once an order has been passed, it is complied with, accepted by the other party and derived the benefit out of it, he cannot challenge it on any ground . (Vide Maharashtra SRTC v. Balwant Regular Motor Service [Maharashtra SRTC v. Balwant Regular Motor Service, AIR 1969 SC 329].) In R.N. Gosain v. Yashpal Dhir [R.N. Gosain v. Yashpal Dhir, (1992) 4 SCC 683] this Court has observed as under: (SCC pp.

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687-88, para 10).

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“10. Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that ‘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’.”

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The Supreme Court in Rajasthan State Industrial Development and Investment Corpn. v. Diamond and Gem Development Corpn. Ltd. [Rajasthan State Industrial Development and Investment Corpn. v. Diamond and Gem Development Corpn. Ltd., (2013) 5 SCC 470 : (2013) 3 SCC (Civ) 153] , made an observation that a party cannot be permitted to “blow hot and cold”, “fast and loose” or “approbate and reprobate”. Where one knowingly accepts the benefits of a contract or conveyance or an order, is estopped to deny the validity or binding effect on him of such contract or conveyance or order. This rule is applied to do equity, however, it must not be applied in a manner as to violate the principles of right and good conscience.

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It is evident that the doctrine of election is based on the rule of estoppel, the principle that one cannot approbate and reprobate is inherent in it . The doctrine of estoppel by election is one

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among the species of estoppel in pais (or equitable estoppel), which is a rule of equity. By this law, a person may be precluded, by way of his actions, or conduct, or silence when he has to speak, from asserting a right which he would have otherwise had.”

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7(ii-e). In Tejvir Singh Sodhi versus State of

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Jammu and Kashmir & Ors, (2023) 17 SCC 147, in the following terms:-

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“38. The next aspect of the matter which requires consideration is the contention of the writ petitioners to the effect that the entire selection process was vitiated as the eligibility criteria enshrined in the Advertisement Notice dated 5th May, 2008 was recast vide a corrigendum dated 12th June, 2009, without any justifiable reason. In order to consider this contention, regard may be had to the following case law:

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38.1 In Manish Kumar Shahi vs. State of Bihar , this Court authoritatively declared that having participated in a selection process without any protest, it would not be open to an unsuccessful candidate to challenge the selection criteria subsequently.

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It is therefore trite that candidates, having taken part in the selection process without any demur or protest, cannot challenge the same after having been declared unsuccessful. The candidates cannot approbate and reprobate at the same time. In other words, simply because the result of the selection process is not palatable to a candidate, he cannot allege that the process of

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interview was unfair or that there was some lacuna in the process. Therefore, we find that the writ petitioners in these cases, could not have questioned before a Court of law, the rationale behind recasting the selection criteria, as they willingly took part in the selection process even after the criteria had been so recast. Their candidature was not withdrawn in light of the amended criteria. A challenge was thrown against the same only after they had been declared unsuccessful in the selection process, at which stage, the challenge ought not to have been entertained in light of the principle of waiver and acquiescence.”

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7(ii-f). Recently, the Hon’ble Supreme Court has

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outlined that an unsuccessful candidate after having participated cannot turn around and assail the

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selection criteria or the selection process or the selection method or selection policy in Union of India and Others Versus Air Commodore NK

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Sharma, 2023 SCC Online SC 1673 , in the following

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terms:-

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“65. Challenging the basis of promotion after having participated in the process on consideration of promotion and having been declared unsuccessful thereunder, is not a valid ground to impugn the policy/method. Repeatedly, this Court has held that such challenges cannot be allowed. On this, we may refer to certain past instances:

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In Pradeep Kumar Rai v. Dinesh Kumar Pandey it was observed:-

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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. 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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In Ramesh Chandra Shah v. Anil Joshi it was observed:-

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It is settled law that a person who consciously takes part in the process of selection cannot, thereafter , turn around and question the method of selection and its outcome.

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In view of the above discussion, we are of the view that the Respondent’s challenge was barred at first instance, as he participated in the Promotion Board of 2015 and only challenged the non-formation of a policy for filling up the vacancy of AVM JAG (Air), finding himself to be unsuccessful in securing a promotion thereto. ”

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In view of the above discussion and the

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mandate of the Hon’ble Supreme Court as referred to above, once the petitioner had participated in the selection process but did not obtain a place in the

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final merit due to their lower overall merit vis-à-vis higher merit of the private respondents No.3 and 4, therefore, the petitioners have neither any right nor any locus standi to assail the selection of Respondents No. 3 and 4 and the claim of petitioner cannot sustain.

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BENEFIT OF EXPERIENCE ON UNRELATABLE POST, IMPERMISSIBLE:

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7(iv). Learned Counsel for the petitioner has

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contended that petitioners have served as Revenue Chowkidar(s) for 5 years and 3 years, which is borne out from experience certificate [Annexure A-5 and Annexure A-6] but these experience certificates have not been taken into account or have been ignored by the Selection Committee and had these experience certificates been considered by the Selection Committee, then, the petitioners would have secured

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higher merit which would have turned out to be higher vis-à-vis Respondents No. 3 and 4 also and therefore, ignoring the experience certificate has vitiated the selection process.

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The above contention of Learned Counsel for the petitioner at first instance appears to be attractive but upon scanning of the criteria for selection contained in the notification dated 17.04.2017

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[Annexure R-1] indicates that the selection has to be made on the basis of “Evaluation under various parameters-heads” to be undertaken by the Selection Committee. So far as “experience” contemplated is

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Clause (xi), reads as under:

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		For Class-III post	For Class-IV post
	Written Test	85 marks.	……..
(xi).	Experience upto a maximum of 5 years in Govt./semi-Govt. Organizationrelating to the post applied for(0.5 marks only for each completed year)	2.5 (two and a half)	2.5 (two and a half)

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Perusal of Clause (xi) of the notification

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dated 17.04.2017 [Annexure R-1] reveals that the marks for experience were admissible in case the experience was rendered in a Government/SemiGovernment Organization and was relating to the post applied for. In the instant case, once the recruitment was for post of Part Time Worker was to be made in terms of the Recruitment Employment Notice dated 13.07.2017 [Annexure A-1] but a perusal of experience certificates [Annexure A-5 and Annexure A-6] reveals that the experience allegedly claimed by the petitioners is in the capacity of Revenue Chowkidar(s), which in considered view of this Court is “not an experience relatable to the post of Part Time Worker” for which the selection

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was made and private respondents No. 3 and 4 were selected and appointed. Nothing has been brought to the notice of this Court either by way of job profile that the experience gained by the petitioners, if any, [which is in dispute], is akin to

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that of experience as Part Time Worker [i.e. post for which selection was undertaken]. In absence of any material based on either the job profile or rules or norms, therefore, this Court is unable to accept the contention of the Learned Counsel for the petitioner. Even the selection criteria including Clause (xi) provides for giving marks for experience mandating that such experience should be “relating to the post applied for” and the language of Clause (xi) is clear and does not lead to any ambiguity, so as to cover experience in all Class-IV posts irrespective job profile, then, this Court is unable to accede to the contention of the Learned Counsel for the petitioner. Accordingly, the petitioners are not held entitled to any marks for experience as contended. Even the marks for experience cannot be granted dehors the mandate of Clause (xi) and also to defeat the intent, rationale and object of Clause (xi) of the notification dated 17.04.2017.

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In these circumstances, the contention does not

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hold good and the same is rejected. Accordingly, in fact-situation of instant case, the marks for experience as Revenue Chowkidar is not an experience related to the post of Part Time Worker and in view of Clause (xi) of the notification dated 17.04.2017 the

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claim for experience is not tenable.

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CHALLENGE SHALL FAIL IN ABSENCE OF MALAFIDES:

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8. Perusal of the material on record including

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the Reply-Affidavit indicates that the selection for 178 posts of Part Time Workers was initiated in terms of the recruitment notice dated 13.07.2017

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[Annexure A-1]. It has further been borne out from the records that the State Authorities have constituted

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the Selection Committee for resorting to selection of Part Time Workers on 08.07.2017. It has further been borne out from the reply that the Selection Committee has resorted to selection as per criteria and other parameters mentioned in the notification

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dated 17.04.2017 [Annexure R-1]. Petitioners have

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not been able to establish by any cogent and convincing

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material that either the selection committee had violated or acted infraction of the criteria. Moreover, no member of the Selection Committee has been implemented as party-respondent in the instant case. In absence of these factors, the selection made by duly constituted selection committee which does

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not suffer from arbitrariness or malafide is not liable to be interfered in the instant proceedings in view of the mandate of the Hon’ble Supreme Court in Dalpat Abasaheb Solunke and others versus

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Dr. B.S. Mahajan and others (1990) 1 SCC 305 ,

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which reads as under:-

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It will thus appear that apart from the fact that the High Court has rolled the cases of the two appointees in one, though their appointments are not assailable on the same grounds, the Court has also found it necessary to sit in appeal over the decision of the Selection Committee and to embark upon deciding the relative merits of the candidates. It is needless

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to emphasize that it is not the function of the Court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the Candida tes. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The Court has no such expertise. The decision of the Selection Committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the Constitution of the Committee or its procedure vitiating the selection, or proved mala fides affecting the selection etc. It is not disputed that in the present case the University had constituted the Committee in due compliance with the relevant statutes. The Committee consisted of experts and it selected the candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so called comparative merits of the candidates as assessed by the Court, the High Court went wrong and exceeded its jurisdiction.

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9. No other point argued/pressed.

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DIRECTIONS:-

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10. In view of the above discussion and for the reasons recorded hereinabove, the instant

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petition is dismissed in the following terms :-

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i) Selection of Respondents No. 3 and 4 as Part Time Worker in pursuance to recruitment notice dated 13.07.2017 [Annexure A-1] and the appointment orders dated 20.09.2017 is upheld ;

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ii) Claim of the petitioners for marks for experience is impermissible in the light of Clause (ix) of the notification dated 17.04.2017.

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iii) Parties are left to bear respective costs.

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In the aforesaid terms, the instant writ

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petition and all pending miscellaneous application(s), if any, shall also stand disposed of, accordingly.

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(Ranjan Sharma) Judge

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October 10, 2024 (tm)

Dharmender Kumar v. State of Hp

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Dharmender Kumar v. State of Hp

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