IN THE HIGH COURT OF CHHATTISGARH AT BIASPUR WRIT PETITION NO 370/ /2005 PETITIONER :— M’Smt. Vijaya Dayal W/o D.R. Dayal, ( V2 .. aged Bank about Colony, 47 years, Ambikapur, R/o Nayapa D.Istrlct ta, /b\ Pg"”°,« Surguja [C.G.]. VERSUS Chhattisgarh Public Service Commission, Raipur through the Secretary C.G. Pi’Sc..~ , /%V Emiiiéi§$ pubncc°§2iiifé Commission, Raipur [C.G.]. 3 State of Chhattisgarh, through / Secretary, Law and Legislature Department, D.K.S. Bhavan, Raipur [C.G.]. WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA 1] PARTICULARS OF THE PETITIONER:- As given above in the cause title 2] PARTICULARS OF THE RESPONDENTS :— As given above in the cause title. PARTICULARS OF THE ORDER AGAINST WHICH THE PETITION IS BEING MADE:- That the this petition is not filed against any specific order ' but this petition has been filed against the illegal, arbitrary and unconstitutional act of the respondents such as the respondent No. 3 is the appointing authority relating to the 1 i Lg { judicial officers as per Chhattisgarh judicial services Rules, . the respondent No. 1 and 2 are the commission, by whom the examinations are to be conducted as and when required as per the instructions of the respondent No. 3 for the specify requisites vacancies. As per the instructions of respondent L {‘t M \: HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Peu't'lon No. 3701 of 2005 Smt. Vijaya Dayal —Versus— Chhattisgarh Public Service Commission 8r. others Post for order on 12m September, 2005. \ Sd/- “as ‘ 2 Satish K, Agmh ' om ‘ Judge 1/ HIGH COURT OF CHHAT'I‘ISGARH AT BILASPUR Writ Peh'tion No. 3701 of 2005 Smt. Vijaya Dayal —Versus- Chhattisgarh Public Sewice Commission &, others Petitionm“ by Shri T. K. Tiwaxi, Advocate with Shri Anil Paswan, Advocatc. Respondents No. 1 and 2 by Shn' Abhishek Sinha, Advocate Respondent No.3 by Shri P. S. Koshy, Deputy Adiiocate General with Shn' Vivek Sharma, Panel lawver. £w ORDER ( 9.2005) BV Justice Satish K. Agnihoui. 1. The present petition nled under Articles 226/227 of the Constitution of India impugns the advertisement dated 15.2.2005 (Annexum P/3) whereby number of vacancies of the Civil Judge Class—II has been increased nom 3O to 61, as being illegal, discriminatory and unconstitutional. 2. The undisputed relevant facts, in brief, an: that the petitioner made an application for appointment to the post of Civil Judge Class—II pursuant to the advertisement No. 02/ 2004/ Examination dated 19.8.2004 (Annexure P/ 1). In the said advertisement, notifled vacancy of Civil Judge ‘Class-II was 30. The said advertisement further provided that the number of vacancies would be subject to variation. On the basis of the requisition Sent by the Law and Legislative Affairs Department, Govt. of Chhattisgarh, number of vacancies of Civil Judge Class-II was increased to '61, keeping in view the availability of the vacancies up to \ r? Decembm‘, 2005, as informed by thc Re’gistxar General of the High Court vide Memorandum No. 510/ConfdL/2oo4/II-3-7/2oo2, Bilaspur, dated 28th December, 2004 to the e0ect that “there will be further requirement of 31 or more Civil Judges Class-II by the end of next yeax" i.e. 2005. Accordingly special notice was published on 15m February, 2005, which is impugned in this petition, informing that the posts of Civil Judges Class- II would be 61 in place of 30. The Respondent No.2 on the basis of the requirement of Civil Judges, Class-II proceeded with the selection process. The written examination for selection of the candidates for interview and thereafter for appointment to the post of Civil Judge Class-II took place on 15.2.2005 and the result of the said examination was declaied on 19.2.2005. The Respondents No. 1 and 2 are to initiate interview process horn 12.9.2005. The petitioner hnding herself unsuccessful in the result declared on 19.2.2005, has tiled the instant petition on 4.8.2005 praying that the respondents be directed to cancel the advertisement dated 15.2.2005 relating to 31 posts of Civil Judge Class-II which was increased later on. Learned counsel for the petitioner, Shri T. K. Tiwari submitted that there should have been separate examination for enhanced 31 vacancies to provide one more opportunity to the petitioner and as such the same was violative of Articles 14 and 16 of the Constitution of India. It was further contended that the respondents No. 1 and 2 , have no authority to increase number of vacancies of Civil Judge Class-II &om 30 to 61, once it has been advcrtised that the number of vacancies would be 30. 4. Learned counsel for the petitioner, next, submitted that the Chhattisgarh Lower Judicial Service (Recruitment Vand Conditions of/Service) Rules, 1994 does not provide for variation of number of posts after the vacancy has been notined in the advertisement. 5. Learned counsel for the petitioner next snbmitted that the petitioner was denied the opportunity of appearing again if there was no second examination process for the enhanced number of vacancies of 31 Civil Judge Class-II, as the petitioner would became over age. 6. Mr. Abhishek Sinha, learned counsel appearing for the Respondents No. 1 and 2 in reply submitted that there was variation clause in the hrst adveru'sement dated 19.8.2004 to the eEect that the number of vacancies is subject to variation. The petitioner having been applied pursuant to the said notification dated 19.8.2004 and having appeared in the written examination, has no right to challenge the variation clause to the extent that there was no provision under Rules to provide for variation clause in the advertisement. Learned counsel further submitted that the petitioner, having appeared in the examination held on 26.12.2004 and remained unsuccessful in the result declared on 19.2.2005, is estopped from hling this writ petition and this writ petition should not be entertained on this ground alone. Next contcntion of learned counsel for the Raspondents No. 1 and 2 is that the petih'oner having come to know on 19.22005 that she has been unsuccessful in the written examination waited till August, 2005 when she filed the instant petition on 4.8.2005 with the sole motive to defeat the process of interview for selection to the posts of Civil Judge Class-II. It is clearly evident that there was no reason and she had also not explained, as to why"the petitioner waited till August,2005 for hling writ petition when admittedly the interview is to commence h‘om 12.9.2005. Learned counsel for the Respondents No. 1 and 2 further submitted that there is no Violation of Alticles 14 and 16 of the Constitution of India, as alleged by the petitioner, as there is no discrimination and arbitrariness, and the corrigendum was issued at the earliest possible i.e. 15.2.2005, on the basis of the variation clause mentioned in the original advertisement dated 19.8.2004, which was applicable to all the candidates who had applied for the examination. The petitioner as well as other candidates have more chances of success in view of the increase in nnmber of vacancies from 3O to 61. Learned counsel prays for dismissal of the writ petition with costs. Shli P. S. Koshy, learned Deputy Advocate General, with Shri Vivek Shanna, learned Panel lawyer appearing for the Respondent No.3] State, adopts the submissions made by learned counsel for the Respondents No. 1 and 2. 10. In the case of Sri Kant Tripathi and others Vs. State of U.P. '&. others, A.I.R. 2001 S.C. 3757, cited by learned counsel for the petitioner, the Supreme Court while considering Rule 8 of the U.P.Judicia1 Selvice Rules (1975) held as under:- (dilection No.7) “For all filture appointments, the High Court musi take steps to fill the vacancies of every recruitment year during the year itself The High Court must determine the vacancies not only on the basis of the actual vacancies on the date of such determination but also take into account probable vacancies by reason ofsuperannuation of wtcers in the next two years from that date. Once the vacancies are so determined the percentage of the vacana'es available for recruitment by direct recruitment and by promotion must be fixed and steps taken for filling up the same emeditiously. The number of vacancies available for the direct recruits quota must be advertised without any variation clause The Select List prepared both for direct recruits as well as for promotees prepared by the High Court will be operative only till the next recruitment commences with the fixation of the vacancies for the next recruitment year. " 11. In the present case when the advertisement was issued for selection of Civil Judge Class-II it was found that by the end of the year 2005 the total requirement of Civil Judge-II would be 61, as such in the recruitment process which was on, number of vacancies was increased from 3O to 61. 12. The case of Roshni Devi 8n others Vs. State of Haryana 86 others, A.I.R. 1998 S.C. 3268 , cited by learned counsel for the petitioner is not applicable to the facts of the present case. 13. In the case of University of Cochin Vs. N.S. Kanjoonjamma & others (1997) 4 S.C.C. 426, cited by the counsel for the Respondents No. 1 and 2, the Supreme Court held as under: — “4. ........In fact, the first respondent also had appliedfor and sought selection but remained unsucoessjitl. participated in the selection, she is estopped to challenge the correctness of the procedure... Having i; In the case of Union of India 8r. another Vs. N. Chandrasekhamn 8a others (1998) 3 S.C.C. 694, cited by learned counsel for the Respondents No. 1 and 2, the Supreme Court held as under:— “13 ........... It is not in dispute that alt the candidates were made aware of the procedure for promotion before they sat for the written test and before they appeared before the Departmental Promotion Committee. Therefore, they cannot tum around and contend later when they found they were not selected by challenging that procedure and contending that the marks prescribed for interview and coWdential reports are disproportionately high and the authorities cannot fix a minimum to be secured either at interview or in the assessment on confidential report. ..... " 15. In the case of Suneeta Aggarwal Vs. State of Haryana 8i, others (2000) 2 S.C.C. 615, cited by learned counsel for the Respondents No. 1 and 2, the Supreme Court held as under: - “4........Not only did she apply for the post, but she also appeared before 14. the Selection Committee constituted consequent upon readvertisement of the post and that too without any kind ofprotest, and on the same day shefiled a writ petition against the order of the Vice-Chancellor declining to accord his approval and obtained an ad interim order. In the writ petition she also did not disclose that she had applied for the post consequent upon the second advertisement The appellant having appeared before the Selection Committee without any protest and having taken a chance, we are of the view that the appellant is estopped by ' pew her conduct from challenging the earliei' order of the Vice- Chancellor...... " In the case of Chandra Prakash Tiwan' & others Vs. Shakuntala Shukla 8r, others, (2002) 6 S.C.C. 127, cited by learned counsel for the respondents No. 1 and 2, the Supmme Court held as under:- “32.......... It is a remedy which stands barred and it is in this perspective in Om Prakash Shukla v. Akhilesh Kumar Shukla. a three-Judge Bench of this Court laid dowri’in no unoerfain terms that when a candidate appears at the examination without protest and subsequently found to be not successful in the examination, question of entertaining a petition challenging the said examination would not arise.” 16. “33. Subsequently, the decision in Om Prakash stands followed by a later dea'sion of this Court in Madan Lal v. State of J & K wherein this Court stated as below: (SCC p. 493, paras 9-10) “9. Before dealing with this contention, we must keep in view the salient fast that the petitioners as well as the contesting successful candidates being respondents concerned herein, were allfound eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. 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 suwessful 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 turn / W round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted, In the case of Om Praioash Shukla v. Akhilesh Kumar Shukla 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.” 17. In view of the foregoing decisions of the Supreme Court, it is well settled that when the petitioner had appeared at the examination without protest and having failed in the examination, the petition challenging the examination should not be entertained and the pen'tioner is not entitled to any relief, In the present case the petitioner in fact appeared in the examination, knowing very well that the number of vacancies of the posts of Civil Judge Class-II has been increased from 3O to 61 and having failed in the said examination in the result declared on 19.2.2005 hled the present petition after a gap of 5V2 months to defeat the process of examination and selection for appointment to the posts of Civil Judge Class-II. Thus, the petitioner is not entitled to any relief in the facts and circumstances of the caSC. 18. In the case of All India SC 85 ST Employees’ Association 6:; another Vs. A. Arthur Jeen 6r, others, (2001) 6 S.C.C. 380‘ the Supreme Court held as under:- “12. Similarly the contention that the vacancies to e hlled up (could not be increased to 917 from 330 originally notified b without there being subsequent notification is untenable in view of the changed situation as explained above. No fault can be found with the direction of the High Court to issue appointments only to available vacana'es on merit out of the candidates included in the panel of selected candidates following rules of reservation and that too reserving 3% seats to Physically handicapped instead of 2%. 382 vacancies would be available up to March 2002 possibly as of now all the 382 candidates may not be given appointment; the appointments may be given up to 330 or less. Further, the purpose of issuing notijication and giving due publidty is to provide opportunity to as many eligible candidates as possible. Employment Notification No. 1 of 1995 was issued on 7.9.1 995 and the decision was taken to increase the posts on 17.51996, the time gap was hardly 8 months; as many as 58,675 made applications and 32,563 were called for interview It was quite probable that all candidates eligible and interested including a large number of local candidates, applied for the posts, The time gap of about 8 months between the original notification and the decision to increase posts not being much, it cannot‘be said that many of the eligible candidates were deprived of applying for the posts looking to the requirements of eligibility. As already stated above, in the changed situation only 382 posts are to befilled up upto March 2002. The selected candidates are to be "i appointed on the basis of merit following rules of reservation applicable to dw”erent categories. The process of seleaion was long-drawn and the mndidates were made to appearfor interview twice. The candidates and their families have been waiting for a long time from 1995 with great hope of getting jobs. Enormous money and man-hours have been spent in completing the process of selection in preparing the panel of selected candidates. In this view there was nojustificationfor the Tribunal to quash the entire panel of selected candidates.” 10 19. In the case of Suvidya Yadav 85 others Vs. State of Halyana 8n others (2002) 10 S.C.C. 269, wherein the facts were similar to the effect that the advertisement stated that an advertisement issued by the Halyana Public Service Commission on 16.2.1991 clearly stated the number of posts would be subject to variation to any extent. Initially, the number of posts advertised was 18 but on the requisition of the State Government, the humber of posts was increased to 30. Accordingly the public Service Commission made recommendations for appointment on 30 posts. The Supreme Court after considering held as under:- “7......... we see no bar on the power of the Commission in recommending 30 names, which was ihe subject-matter of challenge before the High Court. In font the very judgment itself on which the learned Single Judge has relied upon in para 10 indicates the said position. Accordingly we set aside the impugned order passed by the Iearned Single Judge and twinned by the Division Bench in appeal and hold that the recommendations made by the Commission are in accordance with law and therefore all the 30 names recommended are entitled to be appointed. ” The present case is squarely covered by the decision of the Supleme Court in the case of Suvidya Yadav(Supra). The first advertisement dated 19.8.2004 clearly provided for variation clause that number of vacancies would be subject to variation. On the basis of the requisition made by the State Government that the requirement of Civil Judges Class—II by the end of 2005 would be 31, a second advertisement was issued informing to all the applicants that they would be considered for 61 vacancies of Civil 20. x Kp 21. a ‘/\. g Judge Class-II. Therc is no illegality or discrimination and the process of selection for 61 posts of Civil Judges Class-II is valid and legal. 22. The contention of learned counsel fOr the petitioner that she would have got one more opportunity, had a new process of selection for increased 31 posts, be taken up sepalately is untenable and rejected. 23. For the reasons stated above, the petition is dismissed. No order as to costs. . Sd/— i Satish K. Amen-i Judge