^...< i^-'-^lh^ -.9s'' /^. P. V*-* .^^ d^^^l"^1 (^ IN THE HIGH C^URT OF CHHATTISGARH AT BILASPUR W.P. (Sl N0^^y^ 72011 PETITIONER RESPONDENTS / Brahma Bhoi S/o Shri Sonu Bhoi, aged about 36 years, R/o Village Lavamauha, Post Limdarha (Prida), Via Jagdishpur, Tahsil and District Mahasamund C.G. VERSUS 1. Stafe of C.G. through the Secretary Panchayat and Tribal Welfare Department , DKS Bhawan Raipur, C.G. ' 2.The Janpad Panchayat Bilaigarh through the Chief Executive Officer, District Raipur C.G. ^3. Kalyan Singh Kathakar S/o Nandu, Occupation Shiksha Karmi Grade III, posted at Prim.ary School Barkachhar, Janpad Panchayat Bilaigarh, District Raipur. .WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA FOR ISSUE OF AN APPROPRIATE WRIT IN THE NATURE OF MANDAMUS/CERTIORARI ETC. OR DIRECTION/ORDER IN THE LIKE NATURE ETC. MAY THIS PLEASE TO YOUR LORDSHIP, The humble petitioner named above most respectfully showed: 1. PARTICULARS OF THE PETITIONERS. As mentioned in the cause title. -s- >.>>.•i^ HIGH COURT OF CHHATTISGARH AT BILASPUR PETITIONER WRIT PETITION (S) No. 2033 of2011 Brahma Bhoi. RESPONDENTS VERSUS StateofC.G.&Others. WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Aenihotri, J. Present: Shri Rakesh Pandey, Advocate for the petitioner. Shri Y.S.Thakur, Deputy Advocate General for the State/respondent No. 1. ORDER (ORAL) (Passed on 18tb day ofApril, 2011) 1. Challenge in this petition is to the non-selection of the petitioner on the post of Shiksha Karmi Grade III, on the ground that the petitioner cannot be held ineligible on the grourid of having more than two living children, one of whom is bom on or after 26.01.2001. 2. The facts, in nutshell, are that pursuant to the advertisement dated 07.10.2009 (Annexure P/4), issued by the respondent No. 2 for selection and appointment on the post of Shiksha Karmi Grade III. Pursuant to the said advertisement, the petitioner applied for the post of Shiksha Karmi Grade III (Science) under the scheduled tribe category. The petitioner appeared in the written examination conducted by the Chhattisgarh Professional Examination Board wherein the petitioner secured 5 rank. However, the petitioner could not be selected. Thereafter, again some posts of Shiksha Karmi Grade III, were sanctioned in the year 2010 and the petitioner was called for counselling. As a sequel, the petitioner was selected as his name appeared at serial No. 1 in the provisional list under the scheduled tribe category. The respondent No. 3 moved an objection before the respondent No. 2 stating that the petitioner is having three living children one of which, was bom after 26.01.2001, after whieh, the respondent No. 2 had issued appointment order in favour of tlie respondent No. 3. Thus, this '• petition. ^F TTTS-HS£n5£^s@^ '^SSfsic^i»SsaWi!Saaai»af!iaihisiM6Wt^^ ^siwvteisSSS .::r-^^A!^ t »K,^ ,x^ Shri Pandey, leamed counsel appearing for the petitioner submits that the advertisement dated 7,10.2009 inviting applications for appointment on the post of Shiksha Karmi Grade III, in Janpad Panchayat, Bilaigarh, provides a condition that the candidate who have more than two living children, one of whom is bom on or after 26.01.2001, shall not be eligible for the post, is conta-ary to the provisions of Chhattisgarh Panchayat Shiksha Karmi (Recruitment & Conditions of Service) Rules, 2007 (for short 'the Rules, 2007) as there is no such provision under the Rules, 2007. Thus, non- selection of the petitioner on the above stated ground may be declared as vitiated and a writ of mandamus may be issued to the concemed authorities for selecting and appointing the petitioner on the post of Shiksha Karmi Grade III. On the other hand, Shri Thakur, leamed Deputy Advocate General appearing for the State/respondent No. 1 submits that Rule 3 ofthe Rules, 2007 clearly provides that the provisions contained in fhe Chhattisgarh Civil Services (General Conditions of Service) Rules, 1961 shall also be applicable alongwith the Rules, 2007. Sub-rule (6) ofRule 6 ofthe Rules, 1961 clearly provides that no candidate shall be eligible for appointment to a service or post who has more than two living children one of whom is bom on or after the 26 day ofJanuary, 2001. Heard leamed counsel appearing for the parties, perosed the pleadings and documents appended thereto. Rule 3 ofthe Rules, 2007, reads as under: "3. Scope and application. - Without prejudice to the generality of the provisions contained in the Chhattisgarh Civil Services (General Conditions of Service) Rules, 1961, these Rules shall apply to every member ofthe service." 7. Sub-rule (6) ofRule 6 ofthe Rules, 1961, reads as under: "6. Disqualification. XXX XXX XXX (6) No candidate shall be eligible for appointment to a service or post who has more than two living children one of whom ?i^i-iT7TT7::S: •'•y- '^.i is bom on or after the 26 day of January, 2001." 8. On perusal ofthe statutory provision and submissions advanced by leamed counsel appearing for the parties, the contehtion of the petitioner that there is no such provision under the rules, is rejected as rule 3 of the Rules, 2007 clearly provides that the provisions contained in the Rules, 1961 shall also be applicable and there is a clear and specific provision under sub-rule (6) of Rule 6 of the Rules, 1961 which debars a candidate or person to be appointed to a service or post, who has more than two living children one of whom is bom on or after 26.01.2001. The said condition was clearly mentioned in the advertisement also. 9. The petition is having no merit on the other ground also that the petitioner made application with open eyes, pursuant to the advertisement, wherein it was clearly specified that the above stated condition would disqualify a candidate. The petitioner, after having participated in the examination and having found unsuccessful, has filed this petition. Thus, the petitioner is estopped from challenging the said conditions which he had subjected to without raising a whisper against that. 10. The identical issue came up for consideration before this Court in Prashant Kumar Singh v. State of Chhattisgarh & Others , wherein this Court, after relying on the decision of the Supreme Court in Vijendra Kumar Verma v. Public Service Commission, Uttarakhand & Others , held that a candidate who participated in the selection process cannot challenge the validity of the said selection process after appearing in the said selection process and taking opportunity ofbeing selected. 11. The Supreme Court, in Vijendra Kumar Verma (supra) held as under: 25. In this connection, we may refer to the decision of the Supreme Court in G. Sarana (Dr.) v. University of Lvckno'w, wherein also a similar stand was taken by a candidate and i.n that context the Supreme l'ffi?.P.(S)No. 1885/2011.decidedon 08.04.2011 2 (2011)1 SCC150 |T|TIT3T ft^SSS^SiSStSli^'rVSKWS'i^SSSSS'SiSStWWW'iKiWSGissSlSSS • .:f Court had declared that the candidate who participated in the selection process cannot challenge the validity of the said selection process after appearing in the said selection process and taking opportunity of being selected. Para 15 inter alia reads thus : (SCC p.591)"15.........He seems to have voluntarily appeared before the committee and taken a change of having a favourable recommendation fi-om it. Having done so, it is not now open to him to tum round and question the constitution offhe committee." 26. In P.S. Gopinathan v. State ofKerala this Court relying on the above principle held thus : (SCC p. 84, para 44) "44....... Apart from the fact that the appellant accepted his postmg orders without any demur in that capacity, his subsequent order of appointment dated 15-7-1992 issued by the Govemor had not been challenged by the appellant. Once he chose to join the mainstream on the basis of option given to him, he cannot tum back and challenge the conditions. He could have opted not to join at all but he did not doso. Now it does not lie in his mouth to clamour regarding the cut-off date or for that matter any other condition. The High Court, therefore, in our opinion, rightly held that the appellant is estopped and precluded from questioning the said order dated 14-1-1992. The application of principles of estoppel, waiver and acquiescence has been considered by us in many cases, one ofthem being G. Sarana (Dr.) v. University of Luch^ow....." 27. In Union oflndia v. S. Vinod Kumar in SCC at para 18 it was held that : (SSC p. 107) "18........ It is also well settled that those candidates who had taken part in the selection process knowing fally well the procedure laid down therein were not entitled to question the same" 28. Besides, in K.H. Siraj v. High Court ofKerala in SCC para 72 and 74 it was held that the candidates who participated in the ' iBR3!;.r ..-.y, 5!Ki.:7n}^;3 •A.'' ^, 12. mterview with knowledge that for selection they had to secure prescribed minimum marks on being unsuccessful in interview could not tum around and challenge that the said provision of minimum marks was improper, said challenge is liable to be dismissed on the ground ofestoppel. Applying the well settled principles of law to the facts of the present case and for the reasons stated hereinabove, the writ petition being devoid ofmerit, is accordingly dismissed. Sd/- SatishK.Agnihotri Judge Amit MU