Renuka Sharma Vs State of Hp

“(i) That the impugned action of the respondent No. 4 & 5 for appointment of Respondent No. 6 for the post of Art & Craft Teacher (Drawing Teacher) may kindly be quashed and set aside.

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(ii) That the respondents may kindly be directed to allow the applicant to discharge her duties in the said school.”

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

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The facts, which emerge from the pleadings, are that the petitioner was appointed by the School Management Committee (SMC) i.e. respondent No.5 as Drawing Master in the month of September, 2013 in respondent No.4-school. The petitioner has served till 27.11.2015, when respondent No.6 has been appointed at her place.

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The grievance of the petitioner is that her services could not have been replaced by respondent No.6 and her services can only be replaced by a regular hand, as per instructions dated 21.11.2014. The instructions dated 21.11.2014 provide that the permission under the SMC can be granted in case the post remains vacant for over two years on dated 16.08.2014. Since the petitioner was already working as Drawing Teacher, appointment of respondent No.6 is arbitrary and against Article 14 of the Constitution of India. 4. Respondents No. 1 to 4 have filed replyto the petition and averred that the appointment of the petitioner by respondent No.5 was in violation of the policy framed by the Government, since she had not qualified the Teacher Eligibility Test, which is a necessary requisite qualification under the Recruitment and Promotion Rules for the post. Moreover, the petitioner had been appointed in the non-tribal

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area in contravention of the policy provisions. Further, as per Resolution No. 39 dated 13.09.2013, appointment of the petitioner was made for the purpose of remuneration to be paid by the parents of the students, until and unless regular teacher does not join in the school. Since the petitioner was not appointed in accordance with the provisions of the policy, no record was maintained and thus, no relief can be granted to her. The petitioner remained out of merit in the interview conducted by the SMC on 03.11.2015 under the Chairman ship of the SDM(Civil) Palampur, District Kangra, H.P. and hence, she was not eligible for appointment to the post.

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Respondent No.6, who has been selected in place of petitioner, filed separate reply, wherein it has been averred that petition is liable to be dismissed on the ground that once the petitioner had participated in the interview and remained unsuccessful, she cannot approachthis Court. It has further been averred that the petitioner cannot turn around and lay challenge to the same on account of the fact that she could not be selected in the process. It has further been averred that respondent No.6 has been selected after the interview and as many as 12 persons had participated in the process and the selection committee had recommended her and,

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thereafter, she has been offered appointment vide letter dated 27.11.2015 (Annexure R-6/2). Before conducting the interview/wide publicity was done and the petitioner had participated in the interview and she has deliberately concealed these material facts from the Court.

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I have heard the learned counsel for the parties and also perused the record carefully.

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It is not in dispute that the petitioner had participated in the selection process. Once the petitioner participated in the selection process without any demur, she cannot turn around and lay challenge to the selection criteria adopted by the respondents-State. The plea taken by the petitioner that the post could not have been filled-up again by the SMC can also not be countenanced for the simple reason that the petitioner was aware about the procedure and once she had participated in the selection process without any demur or protest, she cannot turn around and lay challenge to the same when found unsuccessful.

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The Hon’ble Supreme Court in Tajvir Singh Sodhi and others vs. State of Jammu and Kashmir and others (2023) 17 SCC 147 has held that once the candidate has participated in the selection process and remained

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unsuccessful, he/she cannot turn around and lay challenge to the procedure. In the present case, the petitioner having participated in the selection process and had not raised any objection at that time that the post cannot be filled-up again by the SMC, she cannot be permitted to lay challenge to the same. The relevant paras of the judgment are reproduced as under:-

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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 5-5-2008 was recast vide a corrigendum dated 12-6-2009, 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, (2010) 12 SCC 576, 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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38.2 . In Ramesh Chandra Shah vs. Anil Joshi, (2013) 11 SCC 309, an advertisement was issued inviting applications for appointment for the post of Physiotherapist. Candidates who failed to clear the written test presented a writ petition and prayed for quashing the advertisement and the process of selection. They pleaded that the advertisement and the test were ultra vires the provisions of the Uttar Pradesh Medical Health and Family Welfare Department Physiotherapist and Occupational Therapist Service Rules, 1998. After referring to a catena of judgments on the principle of waiver and estoppel, this Court did not entertain the challenge for the reason that the same would not be maintainable after participation in the selection process. The pertinent observations of this Court are as under: (SCC p.320, para 24)

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“24. In view of the propositions laid down in the above noted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents."

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38.3 . Similarly, in Ashok Kumar vs. State of Bihar, (2017) 4 SCC 357, a process was initiated for promotion to Class III posts from amongst Class IV employees of a civil court. In the said case, the selection was to be made on the basis of a written test and interview, for which 85% and 15% marks were earmarked respectively as per norms. Out of 27 (twenty-seven) candidates who appeared in the written examination, 14 (fourteen) qualified. They were interviewed. The committee selected candidates on the basis of merit and prepared a list. The High Court declined to approve the select list on the ground that the ratio of full marks for the written examination and the interview ought to have been 90:10 and 45 ought to be the qualifying marks in the written examination. A fresh process followed comprising of a written examination (full marks - 90 and qualifying marks - 45) and an interview (carrying 10 marks). On the basis of the performance of the candidates, results were declared and 6 (six) persons were appointed on Class-III posts. It was thereafter that the appellants along with 4 (four) other unsuccessful candidates filed a writ petition before the High Court challenging the order of the High Court on the administrative side declining to approve the initial Select List. The primary ground was that the appointment process was vitiated, since under the relevant rules, the written test was required to carry 85 marks and the interview 15 marks. This Court dismissed the appeals on the grounds that the appellants were clearly put on notice when the fresh selection process took place that the written examination would carry 90 marks and the interview 10 marks. The Court was of the view that the appellants having participated in the selection process without objection and subsequently found to be not successful, a challenge to the process at their instance was precluded. The relevant observations are as under: (SCC p:363, Para 13)

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"13. The law on the subject has been crystallised in several decisions of this Court. In Chandra Prakash

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Tiwari v. Shakuntala Shukla, (2002) 6 SCC 127 this Court laid down the principle 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 (2007) 8 SCC 100, this Court held that: (SCC p.107, Para 18)

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"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 Govil (1991) 3 SCC 368 and Rashmi Mishra v. M.P. Public Service Commission (2006) 12 SCC 724)".

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39 . 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 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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40 . This Court in Sadananda Halo has noted that the only exception to the rule of waiver is the existence of mala fides on the part of the Selection Board. In the present case, we are unable to find any mala fides or arbitrariness in the selection process and therefore the said exception cannot be invoked.”

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Keeping in view the above facts, coupled with the fact that respondent No.6 has been duly selected and has been serving with the respondents-State for the last 10 years, no relief can be granted to the petitioner and the petition without any substance deserves to be rejected.

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Consequently, I do not find any merit in the present petition and the same is accordingly dismissed. However, there shall be no orders as to cost. Pending applications, if any, also stand disposed of.

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( Jiya Lal Bhardwaj ) 11^th May, 2026 Judge (naveen)

Renuka Sharma v. State of Hp

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Renuka Sharma v. State of Hp

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