Mithilesh Kumar Jha Vs Health

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2 026:JHHC:10339

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P.(S) No.2461 of 2016

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Mithilesh Kumar Jha, son of late Bararuchi Jha, resident of village and PO Maheshpur, PS Pathargama, District Godda. Presently residing at Netaji Nagar, Street No.3, Routara Chowk, PO and PS: Godda, District Godda. …… Petitioner

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Versus

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The State of Jharkhand through Secretary, Medical Education, Health and Family Welfare Department, Government of Jharkhand, Nepal House, PO and PS: Doranda, District Ranchi.

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State Tuberculosis (TB) Officer, Jharkhand Rural Health Mission Society- TB Control Programme, State TB Cell, JHS Building, RCH Campus, PO and PS Namkum, District Ranchi.

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Deputy Commissioner-cum- Chairman, District Tuberculosis Control Program, Godda, PO and PS Godda, District Godda.

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District Tuberculosis Officer, District Tuberculosis Centre, Godda, PO and PS Godda, District Godda.

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District Welfare Officer, Godda, PO and PS Godda, District Godda.

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Additional Collector, Collectorate Godda, PO and PS Godda, District Godda.

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Vineet Kumar Agarwal, son of Sri Keshav Prasad Agarwal, resident of Babupara, Hospital Road, Godda, PO and PS Godda, District Godda.

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Sony Kumari, wife of Sri Ramesh Kumar Thakur, resident of village Malini, PO and PS Godda, District Godda.

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Civil Surgeon, Godda, PO, PS and District Godda.

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……Respondents

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CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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------For the Petitioner(s) :Mr. Bhanu Kumar No.1, Advocate For the Resp. No.7 :Mr. Mukesh Kumar Dubey, Advocate For the Resp. No.8 :Mr. Ranjan Prasad Sinha, Advocate For the Resp.-State :Mr. Anil Kumar Singh, AC to GP-1

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Dated:08/04/2026

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The present writ petition under Article 226 of the Constitution of

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India has been filed seeking following relief(s):

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“That the petitioner prays for issuance of an appropriate writ / writs, order/orders, direction/directions, quashing the proceeding

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1

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2 026:JHHC:10339

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of Selection Committee dated 17.03.2016 headed by the Deputy Commissioner, Godda, in which all the official respondent put their signature on 17.03.2016, but the Chairman of the Selection Committee i.e. respondent no.3 approved and put his signature on 26.03.2016, in which the name of the petitioner showed in waiting list at serial no. 2 and one Sony Kumari (private respondent no.8) placed at serial no.1 in the proceeding (Annexure-11), and in the selection list, one Vinit Kumar Agarwal (private respondent no.7) has been selected for the post of Accountant.

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And

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Petitioner further prays for issuance of an appropriate writ / writs, order / orders, direction / directions to consider the case of the petitioner for being absorbed as Accountant (Full time) at District Tuberculosis Centre, Godda, in accordance with the guidelines of Ministry of Health Health and Family welfare Directorate General of Health services (Central TB Division) vide notification no. 228015/113/2013-TB, dated 17.02.2014; notification no. 28015 / 121 / 2012-TB, Directorate General of Health Services, dated 29.07.2013 and Ref. No. 217, dated 29.08.2013 of Jharkhand Rural Health Mission Society TB Control Programme, State TB Cell, Ranchi and memo no. 265 dated 27.11.2013 of Jharkhand Rural Health Mission Society TB Control Programme, State TB Cell, Ranchi, in which it has been clearly stated "All new recruits will commence at above basic rate of remuneration. All the existing staff will continue to get all the existing increments in addition to revised basic salary. All contracts will be for one year contracts will be renewed by the Society based on satisfactory performance".

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Factual Matrix:

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The facts of the case are that the petitioner has been appointed in pursuance of the advertisement issued in the year 2004 as Part Time Accountant on contract basis at District Tuberculosis Centre, Deoghar in which he has been selected after following the due procedure of selection. The appointment of the petitioner was renewed every year. The respondent concerned has come out with a fresh advertisement on 17.8.2015 inviting application for various posts including post of Accountant in the Tuberculosis Centre, Godda. In the said process the petitioner along with other candidates have participated including respondent nos. 7 and 8. The selecting agency has formulated a merit list on the basis of the interse merit of one or other candidates. The petitioner has been ranked at serial no.3 in the merit list while the

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2

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2 026:JHHC:10339

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respondent nos. 7 and 8 were in the serial nos. 1 and 2 respectively. The petitioner being in serial no. 3 in the merit list has not been selected. The respondent no.7 who was in serial no.1 has tendered his resignation after getting better opportunity. Therefore, the respondent no.8, ranked at serial no.2, has finally been selected and appointed. Therefore, the writ petitioner has approached this Court by filing writ petition questioning his non-appointment.

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This Court has issued notice to the respondent nos. 7 and 8 with a direction upon the State to file counter affidavit which has also been filed on behalf of the State as well as respondent nos.7 and 8.

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The respondent no. 7 has taken the ground that he although was ranked at serial no. 1 in the merit list and has joined the post but, subsequently, he has resigned after getting better opportunity.

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The stand of the respondent no.8 is that since she was in higher in position to the petitioner in the merit list and, as such, she was finally appointed and the said appointment was made in the year 2016 and since then she is continuing her service.

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Arguments advanced on behalf of the petitioner :

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The learned counsel appearing for the petitioner has submitted that since he was already engaged as a part time accountant on contract basis and, as such, there was no need to have the advertisement for the purpose of making appointment rather than it would have been a better course to induct the petitioner on contract basis.

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2 026:JHHC:10339

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Arguments advanced on behalf of the State and Resp. Nos.7 & 8 :

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While on the other hand the learned counsel appearing for the State and the responded nos. 7 and 8 have stated that the petitioner was on contract that too a part time engagement to work as an Accountant and the contract was extended year to year. Thereafter, the agency has thought it proper to appoint/engage an Accountant on contract basis making it not a part time engagement, has come up with an advertisement in which the petitioner and others including the respondent nos. 7 and 8 have participated wherein the petitioner has ranked at serial no.3 and, thus, he has not been selected rather the respondent no.8 who was in serial no.2 has been appointed as the person who was at serial no.1, the respondent no.7, has resigned from service after getting better opportunity.

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Analysis:

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Heard the learned counsels for the parties.

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The fact about participation in the process of selections is not in dispute as would be evident from the merit list appended with the counter-affidavit filed on behalf of the State and the respondent no.8.

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10.The question, therefore, is as to whether it is available for the petitioner to raise the question on the decision of the respondent in coming out with an advertisement once he has participated in the process of selection?

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11.The law is well-settled that once an employee has participated in the selection and has not been appointed based upon his performance then

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it is not available for such candidate to question the decision which has been taken by the recruiting agency for making fresh appointment. 12. The law is well settled that once a candidate is found to be unsuccessful even at the subsequent stage he cannot be allowed to turn around and question any notification/circular/terms & conditions of the advertisement, as has been held by Hon'ble Apex Court in the case of Dr. G. Sarana Vs. University of Lucknow and Others[(1976) 3 SCC 585] at paragraph 15, which reads as under:-

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"15. We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood or bias as despite the fact that, the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution of the Selection Committee. He seems to have voluntarily appeared before the Committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the Committee. This view gains strength from a decision of this Court in Manak Lal's case where in more or less similar circumstances, it was held that the failure of the appellant to take the identical plea at the earlier stage of the proceedings created an effective bar of waiver against him. The following observations made therein are worth quoting:

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"It seems clear that the appellant wanted to take a chance to secure a favourable report from the tribunal which was constituted and when he found that he was confronted with an unfavourable report, he adopted the device of raising the present technical point."

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13.Further, the Hon'ble Apex Court in the judgment rendered in Om Prakash Shukla Vs. Akhilesh Kumar Shukla and Others [(1986) Suppl.

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SCC 285] has observed at paragraph 24, which reads as under :-

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"24. Moreover, this is a case where the petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without protest. He filed the petition only after he had

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perhaps realised that he would not succeed in the examination. The High Court itself has observed that the setting aside of the results of examinations held in the other districts would cause hardship to the candidates who had appeared there. The same yardstick should have been applied to the candidates in the District of Kanpur also. They were not responsible for the conduct of the examination."

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Likewise, in Marripati Nagaraja and Others Vs. Government of Andhra Pradesh and Others [(2007) 11 SCC 522 the Hon'ble Apex Court has held at paragraph 19 as under :-

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"19. .... ... ... Appellants had appeared at the examination without any demur. They did not question the validity of the said question of fixing of the said date before the appropriate authority. They are, therefore, estopped and precluded from questioning the selection process."

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15.The Hon'ble Apex Court in the judgment rendered in Vijendra Kumar

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Verma Vs. Public Service Commission, Uttarakhand and Others [(2011)

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1 SCC 150 at paragraph 28 has held as under :-

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"28.Besides, in K.H.Sirej v. High Court of Kerala in SCC paras 72 and 74 it was held that the candidates who participated in the interview with knowledge that for selection they had to secure prescribed minimum marks on being unsuccessful in interview could not turn around and challenge that the said provision of minimum marks was improper, said challenge is liable to be dismissed on the ground of estoppel."

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Adverting to the facts of the present case herein the advertisement was

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published for the purpose of consideration of candidature of one or other candidates for appointment on contract basis purely on the basis of performance of the candidates. The petitioner has participated in the said process, as fairly admitted as per Annexure D to the counter-affidavit filed on behalf of respondent no.8, which shows that name of the petitioner is at serial no.3 and name of the respondent nos. 7 and 8 are at serial nos. 1 and

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2 respectively. The respondent no.7 who was at serial no.1 has resigned

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2 026:JHHC:10339

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from service after getting better opportunity. Thus, the respondent no.8 who was in serial no.2 has been appointed. There is no averment in the writ petition about any irregularity committed in the process of selection. 17. The decision has been taken by the recruiting agency after following the procedure as laid down in Article 14 and 16 of the Constitution of India to show the fairness and transparency in the process of recruitment to fill up the said post. As such, the petitioner being not found to be more meritorious than the respondent no.8 and hence it is not available to the petitioner to question the advertisement in which he has participated voluntarily and declared to be less meritorious to that of the respondent no.8.

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As per the law laid down by the Hon’ble Apex Court in the case referred herein above, it is not available to the petitioner to seek a direction by questioning the advertisement and decision not to appoint him.

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This Court considering the aforesaid reason based upon the legal proposition as referred herein above is of the view that the present writ petition has no merit and, as such, the same is fit to be dismissed.

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Accordingly, the present writ petition stands dismissed.

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Pending interlocutory application (s), if any, also stands disposed of.

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(Sujit Narayan Prasad, J.)

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Date:08/04/2026 KNR/AFR

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Uploaded On: 16/ 04/2026

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Mithilesh Kumar Jha v. Health

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Mithilesh Kumar Jha v. Health

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