1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Writ Petition No.727/2009 Mrs. Jyoti w/o Prakash Watkar Vs. Bhartiya Vaidyak Samanvaya Samiti and others. Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. CORAM : A.P. LAVANDE AND P.D. KODE, JJ. Order reserved on : 28th JULY, 2009. Order pronounced on 3rd August, 2009. Heard Mr. C.S. Kaptan, learned counsel for the petitioner, Mr. V. R. Thakur, learned counsel for respondents 1 and 2, Mr. A.L. Deshpande, learned counsel for respondent no.3 and Mr. Khubalkar, learned counsel for respondent no.5. By this petition, the petitioner challenges appointment of respondent no.5 to the post of Professor in Shalakyatantra in the college run by respondent no.1. Briefly, the case of the petitioner is as under:- The petitioner was appointed as Demonstrator in the college run by respondent no.1 in the year 1978 where she served as Demonstrator till 1990. In the year 1990 she was promoted to the post of Lecturer. In this post, she continued till 5.1.2006. On 6.1.2006 she was appointed as Reader. On 30.8.2008 respondent no.1 issued an advertisement calling for applications for the post of Professors, Lecturers etc. Out of the said posts, one post was Professor in Shalakyatantra. Pursuant to the said 2 advertisement, interviews were held on 22.1.2009. The petitioner also appeared in the interview. However, she was found below average and respondent no.5 who was found eligible was selected to the said post. Mr. Kaptan, learned counsel for the petitioner submitted that the appointment to the post of Professor in Shalakyatantra ought to have been made by promotion and not by nomination/selection in terms of the Rules. He further submitted that the petitioner was eligible to be appointed to the post of Professor as Shalakyatantra since she has requisite qualification and, therefore, the appointment of respondent no.5 to the post of Professor in Shalakyatantra is liable to be set aside. No other ground was urged in support of the petition by Mr. Kaptan. Per contra, Mr. Thakur, learned counsel for respondents 1 and 2 submitted that the post has to be filled by nomination/selection and in any case the petitioner having participated in the selection process cannot now turn down and contend that the appointment ought to have been made by promotion and not by way of nomination. In support of this submission, Mr. Thakur relied upon the judgment of the Apex Court in Dhananjay Malik and others Vs. State of Uttaranchal and others : (2008) 4 SCC 171. 3 Having heard learned counsel for the parties and having perused the record, we find no merit in the present petition. In our considered opinion, the ratio laid down in the case of Dhananjay Malik (supra) is squarely applicable in the present case. The petitioner having applied pursuant to the advertisement dated 30.8.2009 issued by respondent no.1 and having participated in the process of selection cannot now turn down and contend that she was entitled to be promoted to the post which has to be filled by promotion and not by nomination. If the petitioner had any grievance, she ought to have challenged action taken by respondent no.1 for filling up the said post by nomination. The petitioner having not been done so is now estopped from contending that the post ought to have been filled by promotion and not by nomination. Therefore, we find no merit in the present petition. Consequently, the petition stands dismissed. JUDGE JUDGE Ambulkar.