[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :: O R D E R :: (1) D.B. CIVIL WRIT PETITION NO. 574/2005 UNION OF INDIA & ORS. VS. BHARAT LAL & ORS. (2) D.B. CIVIL WRIT PETITION NO. 575/2005 UNION OF INDIA & ORS. VS. MAHENDRA SINGH & ORS. (3) D.B. CIVIL WRIT PETITION NO. 576/2005 PRABHU RAM & ORS. VS. UNION OF INDIA & ORS. (4) D.B. CIVIL WRIT PETITION NO. 577/2005 PRABHU RAM & ORS. VS. UNION OF INDIA & ORS. Date of Order :: February 19, 2010 :: P R E S E N T :: HON'BLE MR. JUSTICE A.M. KAPADIA HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. Kamal Dave & Mr. Kuldeep Mathur for Union of India Mr. N.K. Khandelwal, Mr. Jitendra Gang & Mr. Bhuvnesh Sharma for private parties. BY THE COURT (PER HON'BLE VYAS, J.) In all above four writ petitions, the petitioners are challenging the validity of common judgment dated 14th September 2004 passed by the Central Administrative Tribunal, Jodhpur Bench, Jodhpur passed in OA Nos.71 and 72 of 2003. [2] The factual matrix of above original applications are almost common and same question of law is involved in these cases, therefore, it is expedient to decide all these writ petitions through this common judgment. These writ petitions have been filed by the Union of India and effected parties who were not before the Central Administrative Tribunal but the said judgment adversely effected their rights. For convenience, the facts of OA No.71 of 2003 are hereby taken into consideration for adjudicating these writ petitions. Respondent-applicant Bharatlal was holding the post of Pointsman in the pay scale of Rs.4000-6000 and Mahendra Singh was employed on the post of Cabinman in the pay scale of Rs.4000-6000 w.e.f. 3rd June 1996 and a notification came to be issued for conducting selection for the post of Goods Guard in the pay scale of Rs.4500-7000. The selection was to be made for empaneling 11 persons and the candidates belonging to the following categories were asked to submit their applications/options: (i)Trains Clerk/Senior Trains Clerk (ii)Commercial Clerk/Senior Commercial Clerk (iii)Ticket Collector/Senior Ticket Collector (iv)Switchman/Assistant Guard/Senior Assistant Guards, and [3] (v)persons employed in the yard in the pay scale of Rs.3050- 4590/3200-4500/4000-6000. Both the applicants were fulfilling the eligibility conditions and therefore they were allowed to appear in the written test and they were declared qualified for appearing in the viva voce test in which they appeared but their names did not find place in the panel issued on 5th February 2003. The respondent-applicants challenged the aforesaid panel mainly on the ground that the post of Goods Guard Clerk is a general selection post where the seniority has no role to play but in the instant case marks for seniority were given while preparing the merit list and number of persons were called for viva voce test after giving them notional seniority marks alongwith the marks obtained in the written test. Another ground raised was that applicants are much senior to the candidates who have been selected and they have spotless career also but deliberately less marks were awarded in viva voce test to extend undue favour to the junior persons. Notices were issued by the Tribunal and thereafter official respondents filed their detailed exhaustive reply to the original application. The learned Tribunal while entering into the merit and considering the pleadings, allowed the OAs and passed the following order: [4] “In the premises, we think it apposite to direct the official respondents to hold the selection afresh keeping in view the requirements of the provisions of RBE No.263/98 dated 16.11.98 as extracted above and the aforesaid observation in respect of the candidates as per the eligibility list issued vide letter dated 21.02.2002. The persons, who had been given promotion in pursuance with impugned selection published on 05.02.2003, at Annex.A.3, shall continue to hold the post of Guard till the results of fresh selection to be held in pursuance to this order, is declared. This exercise shall be completed within a period of four months from the date of communication of this order. No costs.” In this writ petition, Union of India as well as effected parties have challenged the validity of the judgment rendered by the Central Administrative Tribunal, Jodhpur Bench, Jodhpur, mainly on the following grounds: (1)The Tribunal has grossly erred while deciding Original Applications in favour of respondent-applicants without deciding the preliminary objections objectively. In the preliminary objections it was categorically mentioned that OA is not maintainable because the OA has been filed by the applicants assailing the validity of orders dated 1st August 2003 and 5th February 2003 and prayed for quashing the whole selection panel but they cannot be permitted to challenge the whole selection process/panel in absence of those candidates who were empaneled after due selection, thus, OA filed by the applicants was to be dismissed by the Tribunal but contrary to the verdict of the Hon'ble Supreme [5] Court, the impugned judgment has been passed by the learned Tribunal. (2)The second preliminary objection was raised with regard to conduct of the respondent-applicants that respondent- applicants admittedly appeared in the process of selection conducted by the respondents for the post of Goods Guard and thereafter when they were not declared to qualify for the viva voce test even after getting weightage of notional seniority marks, now they cannot be permitted to challenge the selection process as they are estopped from challenging the same by virtue of principle of estoppal. The learned counsel for Union of India as well as for private parties invited our attention towards certain judgments of the Hon'ble Supreme Court in support of both above grounds and prayed that in view of the settled principles of law the judgment impugned in the writ petitions deserves to be quashed without entering into the merits of the case. The following judgments have been cited by the petitioners. (i)(2000) 2 SCC 615 – Suneeta Aggarwal Vs. State of Haryana & Ors. (ii) (2000) 9 SCC 94 – State of Bihar & Ors. Vs. Kameshwar Prasad Singh & Anr. (iii)(2000) 9 SCC 401 – Vijay Syal & Anr. Vs. State of Punjab & Ors. [6] (iv)2005 (2) WLC (Raj) 358 – Imarata Ram Pooniya Vs. State of Rajasthan While citing the above judgments, it is submitted that the impugned judgment deserves to be quashed only on the ground that the original application was filed before the Tribunal by the respondent-applicants without impleading the effected parties as respondents who were selected in the selection process so also on the ground that once respondent-applicants appeared in the selection process and were not declared qualified after viva voce then they preferred OA before the Tribunal, therefore, according to their conduct they were not entitled to get any relief from the Tribunal and Original Applications were to be dismissed only on the basis of their conduct because as per the verdict of the Apex Court they are estopped to raise any voice against the selection in which they appeared and declared unsuccessful but these grounds were not considered objectively by the Tribunal and Tribunal has erroneously entered into the merit of the case and decided the matter in absence of those persons who were to be effected ultimately according to the judgment, therefore, the judgment impugned may be set aside on this ground alone. Per contra, learned counsel appearing on behalf of respondent-applicants vehemently argued that though it is not disputed that respondent-applicants participated in the process of selection but after completion of the process when illegality [7] came to their knowledge then they challenged the whole process of selection before the Tribunal by way of filing OA and the Tribunal has rightly adjudicated the matter on merit while rejecting the preliminary objections of the department. Therefore, the judgment which is rendered after considering the entire material on record, does not require any interference and the writ petitions deserve to be dismissed. We have considered the rival submissions made by both the parties. It is not disputed before us that respondent-applicants who preferred OA before the Tribunal appeared in the process of selection for the post of Goods Guard and no objection was raised during process of selection by them. As per the doctrine of estoppal, no one can be permitted to raise objection who has participated in the selection process adopted by the department for the purpose of promotion. In this matter, notification was issued on 16th May 2001 and written test was conducted in the month of March and August 2002 and viva voce was held in the month of January 2003 but during process of selection no objection was raised by the respondent-applicants so also when applicants failed to raise any objection during the process of selection, then they cannot be permitted to raise voice after completion of selection process in which they were not found suitable, therefore, in our opinion, the learned Tribunal has [8] committed serious error while deciding the matter on merit and accepting the grounds raised by the respondent-applicants. The Hon'ble Supreme Court in case of Suneeta Aggarwal Vs. State of Haryana & Ors., reported in (2000) 2 SCC 615, held that a candidate having appeared before the selection committee without any protest and having taken a chance in the selection process, is estopped from challenging the selection. Para 4 of the said judgment is as follows: “We have heard learned Counsel for the parties. Narration of the aforestated facts would show that the appellant had disentitled herself to seek relief in the writ petition filed by her before the High Court. The appellant did not challenge the order of the Vice Chancellor declining to accord approval to her selection and, on the contrary, she applied afresh to the said post in response to re-advertisement of the post without any kind of protest. Not only did she apply for the post, but she also appeared before the Selection Committee constituted consequent upon re-advertisement of the post and that too without any kind of protest, and on the same day she filed 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 her conduct from challenging the earlier order of the Vice Chancellor. The High Court was justified in refusing to accord any discretionary relief in favour of the appellant. The writ petition was rightly dismissed.” Similarly, the Division Bench of this Court in the case of Imarata Ram Pooniya Vs. State of Rajasthan, reported in 2005 (2) WLC (Raj) 358, held that if a candidates takes a calculated [9] chance and participates in the selection process then only because the result of the selection is not palatable to him, he cannot turn around and subsequently contend that the process of selection was not proper. Para 11 of the judgment is as follows: “Thus it is now well settled that if a candidate takes a calculated chance and participates in the selection process, then only because the result of the selection is not palatable to him, he cannot turn around and subsequently contend that the process of selection was not proper. In the judgment reported in (2000) 9 SCC 401 – Vijay Syal & Anr. Vs. State of Punjab & Ors., the Hon'ble Apex Court has held that if a candidate knowing well the criteria fixed for selection and appeared in the interview, on being unsuccessful cannot be allowed to challenge the same criteria. Para 12 of the said judgment is as follows: “As can be seen from the difference of marks secured by the candidates in interview, it does not appear normal or per se does not smell of any foul play or does not appear patently arbitrary. The lowest of the marks given in the interview are 11.5 and the highest are 22.87. Further, marks secured in the interview and the marks secured in written test are also not grossly disproportionate. This apart, out of total marks of 240, only 25 marks were earmarked for interview. So 25 marks for interview out of 240 as against 200 for the written test and 15 makes for qualification and other activities do not admit an element of arbitrariness or give scope for use of discretion by members of the Interview Committee recklessly or designedly in giving more marks to show favour in the interview so as to give an advantage or march to an undeserving candidate over others who had shown extraordinary merit in the written [10] test. From the chart, we find among the candidates, marks secured in the written test were between 119 to 128 except in one case belonging to Scheduled Castes were 114. This apart, the marks secured in the interview are based on the assessment of the Interview Committee. Normally, it is not for the court to sit in judgment over such assessment and particularly in the absence of any mala fides or extraneous considerations attributed and established. The interview marks of 25 as against total marks of 240, cannot be taken as excessive. It comes to 10.4%. Possibly the selection would have been vitiated, if the marks for interview were 100 as against 150 marks for written test as sought to be made out. Unfortunately, for the appellants, their misrepresentation in this regard, is unfolded very clearly as already stated above. Further, the appellants, knowing the criteria fixed for selection and allocation of marks, did participate in the interview; when they are not successful, it is not open to them to turn around and attack the very criteria. The High Court in the impugned order has found that the criteria contained in Annexure R- 1 filed in the writ petition was published and that such criteria was adopted earlier also in respect of other selections.” With regard to second ground of non-impleadment of parties likely to be effected, it is obvious from the facts of this case that although the Tribunal has passed an order that fresh selection may be held but persons who have been given promotion pursuant to impugned selection dated 5th February 2003 shall continue to hold the post of Guard till the result of fresh selection to be held in pursuance of the order of the Tribunal is declared, meaning thereby, without providing opportunity of hearing to all those persons who were empaneled in the selection process, the learned Tribunal has passed the [11] order for their discontinuance after fresh selection. It is very strange that learned Tribunal has not passed any order for quashing the earlier selection as a whole and if no order has been passed for quashing the whole selection by the Tribunal then how an order can be made by the Tribunal to hold fresh selection and till then those persons who are selected earlier may be allowed to continue on the post. The Tribunal has adjudicated the matter totally in contravention with the adjudication made by the Hon'ble Supreme Court in the case of State of Bihar & Ors. Vs. Kameshwar Prasad Singh & Anr., reported in (2000) 9 SCC 94. Para 26 of the said judgment is as follows: “It appears that the High Court totally lost sight of the fact that in his petitions filed from time to time Brij Bihari Prasad Singh had not impleaded any of his seniors as party-respondents. In the absence of persons likely to be affected by the relief prayed for, the writ petitions should have normally been dismissed unless there existed specific reasons for non-impleadment of the affected persons. Neither was any reason assigned by the writ petitioner nor did the Court feel it necessary to deal with this aspect of the matter. Ignoring such a basic principle of law has resulted in the supersession of 160 Inspectors and 407 Deputy Sps. The writ petition filed by Brij Bihar Prasad Singh being totally misconceived, devoid of any legal force and prayers made being in contravention of the rules applicable in the case deserved dismissal, which was unfortunately not done with the result that the interests of many seniors have been threatened, endangered and adversely affected. The appeal of the State has, therefore, to be allowed by setting aside the impugned judgment. “ [12] It has categorically been held by the Hon'ble Apex Court that the writ petition should not normally be dismissed unless their exist specific reasons for non-impleadment of the effected persons. In this case, neither any reason has been assigned nor the Tribunal did feel it necessary to deal with this aspect of the matter objectively. Therefore, in our opinion, the learned Tribunal has committed a grave error while allowing the OAs filed by the respondent-applicants without impleading the effected parties as respondents. It is settled principle of law that no adverse order shall be passed without providing an opportunity of hearing to the effected party but here in this case while allowing the OAs filed by the respondent applicants, the learned Central Administrative Tribunal has passed an order that fresh selection may be held without quashing the selection of those persons who were already given promotion, meaning thereby, the order passed by the Tribunal is patently illegal and in contravention of the verdict of Hon'ble Apex Court. In this view of the matter, it is apparently clear from the facts of the case that learned Tribunal has allowed the OAs filed respondent-applicants in the back of the effected parties that too without providing opportunity of hearing so also has committed a gross error while entertaining the original applications filed by those candidates, who appeared in the selection process with open eyes but not got success and thereafter preferred OAs challenging the selection process. In [13] this view of the matter, candidates who were declared unsuccessful in the process of selection, cannot be permitted to challenge the whole selection process because they were knowing the criteria while appearing in the written test so also for viva voce, therefore, on the basis of doctrine of estoppal, we find that judgment rendered by the Tribunal is not in consonance with the verdict given by the Hon'ble Supreme Court. Therefore, all the above petitions are hereby allowed and impugned common judgment dated 14th September 2004 is hereby quashed and set aside. [GOPAL KRISHAN VYAS], J. [A.M. KAPADIA], J. jpa/