Dismissed

Dr. Sumit Kumar Tiwari Son of Shri Kailash Chand Tiwari v. the State of Rajasthan

Rajasthan HC18 Aug 2021CW/853/2021

Case brief

AI extract

What is this about?

Petitioner challenged rejection for post of Senior Scientific Officer due to lack of specified experience. Court held petitioner estopped from challenging selection criteria after participating in the process without objection and rejected writ petition.

What did the court decide?

Petitioner not appointed; petition dismissed; criteria of advertisement upheld.

Dr. Sumit Kumar Tiwari Son of Shri Kailash Chand… — Service and Employment | Rajasthan HC (2021)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writ Petition No. 853/2021

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Dr. Sumit Kumar Tiwari Son Of Shri Kailash Chand Tiwari, Aged About 35 Years, Resident Of F-4, Ramnagar Extension, Sodala, Jaipur (Raj.).

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----Petitioner

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Versus

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The State Of Rajasthan, Through The Additional Chief Secretary, Medical Education Department, Secretariat, Jaipur (Rajasthan).

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Rajasthan Public Service Commission, Jaipur Road, Ajmer Through Its Secretary.

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----Respondents

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For Petitioner(s) : Mr. Prahlad Sharma For Respondent(s) : Mr. Vivek Sharma Mr. Harsh Sahu, through V.C.

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HON'BLE MR. JUSTICE INDERJEET SINGH

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Order

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18/08/2021

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Instant writ petition has been filed by the petitioner with the following prayers:-

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“I) by an appropriate writ order or direction thereof, thereby, impugned order letter dated 22.10.2020 (Annexure-9) may kindly be declared arbitrary, discriminatory and unconstitutional.

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ii) by an appropriate writ order or direction thereof, thereby the respondents may kindly be directed to appoint the petitioner on the post of Senior Scientific Officer (Biology Division) with all consequential benefits w.e.f. similarly situated candidates appointed. Iii) any other appropriate order or direction which the Hon’ble Court may deem just, proper and expedient in the facts and circumstances of the case may kindly be passed in favour of the petitioner.

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(2 of 7)

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[CW-853/2021]

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iv) Cost of the petition may kindly be quantified as petitioner has been dragged in instant litigation.”

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In pursuance to the advertisement dated 21.05.2019, the petitioner applied for the post of Senior Scientific Officer (Biology Division) and according to the advertisement the education qualification prescribed for the post of Senior Scientific Officer (Biology Division) is as under:-

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“(a) M.Sc. IInd division in Zoology/BioChemistry.

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(b) Two years’ experience of working in a Forensic Science Laboratory of a State or Central Government or similar experience in public Undertaking or Corporation.”

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Candidature of the petitioner has been rejected by the respondents on the ground of not having the requisite experience of working in a Forensic Science Laboratory of a State or Central Government or similar experience in public Undertaking or Corporation as prescribed under the Rules/advertisement.

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Counsel for the petitioner submits that the respondents have committed serious illegality by not considering the experience certificate of the petitioner issued by Mahatma Gandhi Medical College & Hospital (Mahatma Gandhi University of Medical Sciences & Technology, Jaipur). Counsel further submits that the Mahatma Gandhi University of Medical Sciences & Technology, Jaipur is established under the statute, therefore, the experience of the petitioner with the Mahatma Gandhi Medical College & Hospital, which is run by Mahatma Gandhi University of Medical Sciences & Technology, Jaipur is equivalent to the experience in a Forensic Science Laboratory of a State or Central Government or similar experience in public Undertaking or Corporation.

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(3 of 7)

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[CW-853/2021]

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Counsel for the respondents has opposed the submissions

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made by counsel for the petitioner and submitted that since, the petitioner is not having the requisite qualification as mentioned in the Rules/advertisement, the petitioner has been rightly disqualified by the respondents from the process of selection. Counsel further submits that once the petitioner has participated in the process of selection he has estopped to challenge the same.

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In support of his contention, counsel relied upon a judgment passed by the Hon’ble Supreme Court in the matter of Ashok Kumar and Another Vs. State of Bihar and Ors. reported in (2017) 4 SCC 357 , wherein para No.13 to 18, it has been held as under:-

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13.The law on the subject has been crystalized in several decisions of this Court. In Chandra Prakash Tiwari v. Shakuntala Shukla MANU/SC/0447/2002 : (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 MANU/SC/7926/2007 :(2007) 3 SCC 100, this Court held that:

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“The law on the subject has been crystalized in several decisions of this Court. In Chandra Prakash Tiwari v. Shakuntala Shukla4 , this Court laid down the principle that when a candidate appears at an examination without objection and is

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(4 of 7)

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[CW-853/2021]

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subsequently found to be not successful, a challenge to the 4(2002) 6 SCC 127 11 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 Kumar5 , this Court held that :

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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 Govil6 and Rashmi Mishra v. M.P. Public Service Commission7 ).”

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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.

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In Manish Kumar Shah v. State of Bihar8 , the same principle was reiterated in the following observations :

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“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

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(5 of 7)

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[CW-853/2021]

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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., MarripatiNagaraja v. Government of Andhra Pradesh and Ors., Dhananjay Malik and Ors. v. State of Uttaranchal and Ors., AmlanJyotiBorooah v. State of Assam and K.A. Nagamani v. Indian Airlines and Ors. (supra).”

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In Vijendra Kumar Verma v. Public Service Commission9 , 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.

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In Ramesh Chandra Shah v. Anil Joshi10 , 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 9 (2011) 1 SCC 150 10 (2013) 11 SCC 309 13 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

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(6 of 7)

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[CW-853/2021]

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Article 226 and would be deemed to have waived their right to challenge the advertisement or the procedure of selection. This Court held that :

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“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.”

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In Chandigarh Administration v. Jasmine Kaur11, 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 Pandey12, this Court held that :

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“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 11 (2014) 10 SCC 521 12 (2015) 11 SCC 493 14 interview and challenged the procedure or they should have challenged immediately after the interviews were conducted.”

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(7 of 7)

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[CW-853/2021]

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This principle has been reiterated in a recent judgment in Madras Institute of Development v. S.K. Shiva Subaramanyam.

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Heard counsels for the parties and perused the record.

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This writ petition filed by the petitioner deserves to be dismissed; for the reasons; firstly, the petitioner was not having the requisite experience certificate as required under the Rules/advertisement, secondly, the petitioner has participated in the process of selection, therefore, the petitioner estopped to challenge the same, including the criteria as laid down under the advertisement by the respondents, lastly, considering the facts and circumstances of the present case, I am not inclined to exercise the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India.

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Hence, the present writ petition is dismissed.

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All the pending applications stand disposed of.

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(INDERJEET SINGH),J

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Upendra/67

Dr. Sumit Kumar Tiwari Son of Shri Kailash Chand Tiwari v. the State of Rajasthan

Case brief

What is this about?

What did the court decide?

Dr. Sumit Kumar Tiwari Son of Shri Kailash Chand Tiwari v. the State of Rajasthan

Case brief

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What did the court decide?

What the court decided

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