In a writ petition, the petitioner challenged the failure to grant promotion to a trained graduate post, arguing selection irregularities. The court dismissed the petition, relying on Supreme Court precedents held that a candidate who participated without objection cannot later contest an unfavorable result.
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W.P.(C) No. 1938 of 2015
14 24.06.2019
Heard Mr. N. Sarkar, learned counsel for the petitioner and Mr. P.K. Nanda, learned counsel for opposite parties no.2 to 4 and Mr. J.K. Khuntia, learned counsel for opposite party no.5.
The petitioner has filed this writ petition against the order dated 27.05.2011 rejecting his grievance for promotion to the post of Assistant Teacher (TG) B.Sc. B.Ed from the date of appointment of opposite party no.5 in Paradip Port Trust High School.
The factual matrix of the case in hand is that the petitioner was appointed against I.Sc. S.T. post on 03.08.1989. Subsequently, on 22.08.1989 an advertisement was issued for B.Sc. B.Ed. post in Port Trust High School. The petitioner applied for the said post. His application was returned by the Deputy Secretary-I, Paradip Port Trust to the Headmaster of the Port Trust High School stating that the petitioner did not apply in proper proforma prescribed in the Gazette. Latter on 22.11.1990, the Deputy Secretary-I, Paradip Port Trust informed the petitioner regarding nonconsideration of his application as he did not belong to SC/ST category. Due to non-availability of SC/ST candidate, opposite party no.5 was appointed against the B.Sc B.Ed post. Thereafter, on 12.06.1991 an advertisement was issued for appointment to the post of B.Sc. B.Ed. candidate from Employment Exchange without circulating the vacancy position amongst the Port employees. The petitioner was transferred to V.M.E.
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School as he made a representation to the Chairman to give promotion to the trained graduate post. The petitioner attended the interview on 12.08.1991 so far as selection with regard to the post of B.Sc.B.Ed. post. Since the petitioner participated in the process of selection and did not come out successful, he raised Industrial Dispute Case No.26 of 1992 (Central) which was rejected by the Presiding Officer, Industrial Tribunal, Orissa, Bhubaneswara vide order dated 26.06.1997. Consequentially, he filed OJC No.15130 of 1997 and this Court vide order dated 20.01.2011 disposed of the said writ petition directing the authority to consider the representation of the petitioner. Due to nonconsideration of his case, he filed CONTC No.1136 of 2011 and ultimately the same was dropped on 20.11.2014. Since the petitioner has not been given the benefit of B.Sc. B.Ed. post pursuant to advertisement issued, he approached this Court by filing this writ petition.
Mr. N. Sarkar, learned counsel for the petitioner states that the petitioner had requisite qualification for the post of B.Sc. B.Ed. post. As such, as per circular issued by the Paradip Port Trust, if any qualified candidates are available, they may be given promotion to the post of B.Sc. B.Ed. Therefore the petitioner was eligible for promotion to the said post.
Mr. P.K. Nanda, learned counsel for opposite parties no.2 to 4 contended that the petitioner while continuing as probationer, the advertisement was issued
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for filling up of the post of Teacher having B.Sc. B.Ed. qualification pursuant to which he applied for the same and participated in the process of selection. When he could not come out successful, he filed Industrial Dispute Case No.26 of 1992 (Central) which was rejected by the Presiding Officer, Industrial Tribunal, Orissa, Bhubaneswara vide order dated 26.06.1997. Consequentially, he filed OJC No.15130 of 1997 and this Court vide order dated 20.01.2011 disposed of the said writ petition directing the authority to consider the representation of the petitioner. Since he was appointed against the post of I.Sc. CT and he was not successful in the examination, he was not selected. Accordingly, opposite party no.5 was selected and got appointment. The selection is of the year 1991 and in the meantime, 28 years have elapsed. Therefore, the settled position may not be unsettled by interfering the writ petition.
Mr. J.K. Khuntia, learned counsel for opposite party no.5 stated that opposite party no.5 has been selected by following due procedure of selection and appointed in accordance with law. The petitioner having participated in the process of selection cannot challenge the selection process after coming out unsuccessful.
Considering the contentions raised by learned counsel for the parties and after going through the records, it appears that the petitioner while continuing as Assistant Teacher Trained I.Sc. CT post, an advertisement was issued by the authority to fill up the post of B.Sc. B.Ed. post pursuant to which the petitioner
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participated in the process of selection and could not come out successful. Therefore, he cannot challenge the process of selection by filing the writ petition. Earlier the petitioner approached the Industrial Tribunal by filing I.D. Case No.26 of 1992 which was rejected on the ground of maintainability. Subsequently, he filed OJC No. 15130 of 1997 and this Court vide order dated 20.01.2011 disposed of the said writ petition directing the authority to consider his representation and the same was also considered and thereby the claim made by the petitioner that he should be given promotion to the post of B.Sc. B.Ed. in view of circular issued by the authority cannot have justification because he had participated in the process of selection. As such, he was not successful.
On the other hand, the petitioner with eyes wide open participated in the process of selection, without any objection at any point of time, and having not come out successful has challenged the same in the present application contending that the selection procedure adopted by the committee is bad, is not permissible in view of the law laid down by the apex Court in Om Prakash Shukla v. Akhilesh Kumar Shukla , AIR 1986 SC 1043, wherein the apex Court held as follows:
“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
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have granted any relief to such a petitioner.”
Taking into account the aforesaid judgment, the apex Court in Madan Lal v. State of Jammu and Kashmir , AIR 1995 SC 1088 held as follows:
“……..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.”
In view of the law laid down by the apex Court, the writ petition merits no consideration and accordingly, the same is dismissed.
Alok
2 issues framed by the court
Whether a petitioner who participated in a selection process without protest can later challenge the result contending unfairness.
Whether the High Court can grant relief to a candidate who appears in an examination knowing they are unlikely to succeed.
Colour shows how this judgement treated each authority
Om Prakash Shukla v. Akhilesh Kumar Shukla and Ors.Relied on¶16
Om Prakash Shukla v. Akhilesh Kumar Shukla, AIR 1986 SC 1043 · Who else cites this
Madan Lal v. State of Jammu and KashmirRelied on¶20
Madan Lal v. State of Jammu and Kashmir, AIR 1995 SC 1088 · Who else cites this
Petitioner
Opposite party no.2 to 4
Opposite party no.5
Alok
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
