Case: NITESH KUMAR PANDEY Vs. THE STATE OF MADHYA PRADESH

the appellants while contending that the writ petitioners having participated in the computer efficiency test are estopped from raising any grievance subsequently has placed strong reliance on the decision of the Supreme Court in the case of Ashok Kumar and Another vs. State of Bihar and Others (2017) 4 SCC 357 wherein it is held as hereunder:¬ 13. The law on the subject has been crystallised in several decisions of this Court. In Chandra Prakash Tiwari v. Shakuntala Shukla, 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, this court held that: 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 Munindra Kumar v. Rajiv Govil and Rashmi Mishra v. M.P. Public Service Commision.) In that light it is further contended that the Supreme Court in the case of Subhash Chandra and Another vs. Delhi Subordinate Services Selection Board and Others (2009) 15 SCC 458 has held that a decision rendered in ignorance of a binding precedent will have to be held as a decision rendered per incuriam.14. Having taken note of the decisions cited, we have no doubt in our mind that the well accepted position in law is that the person who has acceded to a position and participated in the process cannot be permitted to approbate and reprobate. It is a norm that if a person/candidate having taken note of a requirement in the notification and even if it is objectionable does not challenge the same but despite having knowledge of the same participates in the said process and takes a chance, on failing in the process such person/candidate cannot turn around and assail the same. Though that is the position in law, the said position of law will not be applicable to the present case as the facts in the case on hand is not the same. In the cited case of Ashok Kumar, it was a situation where the subsequent notification for written examination was issued after nullifying the result of the earlier written examination. The petitioner therein who had appeared for the examination earlier, having knowingly participated in the process by once again appearing for the examination which was notified had thereafter challenged, which was a clear case of approbate and reprobate. On the other hand in the instant case, firstly, the Revised Time Schedule issued by the Collector, Rewa cannot be termed as the recruitment notification indicating all the criteria for selection; but can only be termed as a time schedule prescribed pursuant to the recruitment process as provided under the fresh guidelines dated 02.06.2012. Therefore, a candidate already in selection list who has appeared in the computer efficiency test on the date depicted in the revised time schedule cannot be considered to have appeared after having knowledge that the same will also be a part of the assessment for selection and cannot be put on the same pedestal. This is more so in a circumstance wherein the schedule for 18 th December as prescribed reads….. holding of computer efficiency test of selected candidates and those at the top of merit list. A perusal of the same would indicate that the entire selection would be based on the criteria prescribed and the marks as assigned under the fresh guidelines dated 02.06.2012 and appearance for the computer efficiency test would be treated as a requirement which would enable the authorities to assess a person who has otherwise qualified and has been found fit to be in the selected list or is at the top of the merit list. 15. Therefore, in that circumstance the mere indication of the date for computer efficiency test in the time schedule and the participation therein cannot be considered as if the candidate has acceded to the same so as to estop such candidate from challenging the action of the respondent if the name of such candidate is removed from the select list thereafter treating the same as the basis. Hence in the instant case it cannot be considered as a typical case of approbate and reprobate. In that view since the high court has addressed this issue taking note of the decision which was cited before it and has thereafter arrived at its conclusion, the decision relied on by the learned senior counsel for the appellants, in the case of Ashok Kumar and Another vs. State of Bihar and Others will not be of any assistance. Hence it cannot be held that the decision of the High Court is per incuriam as contended. 16. Further what cannot escape the attention is also that certain other persons who were similarly placed as that of the petitioners have already approached this court in SLP Nos.3239-3242/2017 wherein the relied upon decision in the review petition was assailed but this court has dismissed the special leave petitions. Therefore, taking into consideration all the aspects of the matter we see no reason to interfere with the orders impugned herein. 17. During the course of the argument, the learned senior Advocate for the appellants also referred to certain observations contained in the order dated 17.10.2016 passed by the Division Bench in the review petition where certain protection is provided to the meritorious candidates who have been selected under the policy dated 02.06.2012. In that regard we do not find it appropriate to advert and make any comment since we have already arrived at conclusion that the orders impugned do not call for interference.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]11. In the light of the contention, a perusal of the order passed by the learned single judge as also the order passed in the writ appeal and the review petition in the relied upon cases relating to Amit Kumar Mishra and Others would indicate that a detailed discussion has been made by the High Court and we see no reason to differ from the same. In this regard we have noticed the fresh guidelines dated 02.06.2012. Though the said guidelines refer to the requirement of computer knowledge as a Desired qualification, the same also provides for such qualification in computer exam from the institutions depicted therein and the selection process provides for the assignment of marks which has been extracted and taken note by the Learned Single Judge. The said guidelines are applicable to all the Districts in the entire state of Madhya Pradesh as confirmed by the learned Advocate for the State of Madhya Pradesh. The Revised Time Schedule dated 17.06.2014 issued by the Collector, Rewa, Madhya Pradesh is only in respect of one District namely District Rewa12. Therefore, at the outset when the scheme applicable to the entire State is made under a common guideline, the alteration of the requirement by prescribing an additional criteria only in respect of one District without such authority do so will not be sustainable. Furthermore, the application for the post of Gram Rojgar Sahayak was to be made in terms of the revised guidelines dated 02.06.2012. By the Revised Time Schedule dated 17.06.2014 what is provided for essentially is the time frame for carrying out each of the requirement relating to the initiation of the recruitment till the selected candidate joins the post. It is under the said time schedule, a date has been fixed for holding the computer efficiency test. Therefore, it would indicate that the additional criteria has been introduced after the selection process has commenced and when such requirement was not indicated in the fresh guidelines dated 02.06.2012 issued in respect of the entire State. Therefore, the conclusion reached by the High Court that the requirement has been altered after the commencement of the selection process is justified and unassailable14. Having taken note of the decisions cited, we have no doubt in our mind that the well accepted position in law is that the person who has acceded to a position and participated in the process cannot be permitted to approbate and reprobate. It is a norm that if a person/candidate having taken note of a requirement in the notification and even if it is objectionable does not challenge the same but despite having knowledge of the same participates in the said process and takes a chance, on failing in the process such person/candidate cannot turn around and assail the same. Though that is the position in law, the said position of law will not be applicable to the present case as the facts in the case on hand is not the same. In the cited case of Ashok Kumar, it was a situation where the subsequent notification for written examination was issued after nullifying the result of the earlier written examination. The petitioner therein who had appeared for the examination earlier, having knowingly participated in the process by once again appearing for the examination which was notified had thereafter challenged, which was a clear case of approbate and reprobate. On the other hand in the instant case, firstly, the Revised Time Schedule issued by the Collector, Rewa cannot be termed as the recruitment notification indicating all the criteria for selection; but can only be termed as a time schedule prescribed pursuant to the recruitment process as provided under the fresh guidelines dated 02.06.2012. Therefore, a candidate already in selection list who has appeared in the computer efficiency test on the date depicted in the revised time schedule cannot be considered to have appeared after having knowledge that the same will also be a part of the assessment for selection and cannot be put on the same pedestal. This is more so in a circumstance wherein the schedule for 18 th December as prescribed reads….. holding of computer efficiency test of selected candidates and those at the top of merit list. A perusal of the same would indicate that the entire selection would be based on the criteria prescribed and the marks as assigned under the fresh guidelines dated 02.06.2012 and appearance for the computer efficiency test would be treated as a requirement which would enable the authorities to assess a person who has otherwise qualified and has been found fit to be in the selected list or is at the top of the merit list15. Therefore, in that circumstance the mere indication of the date for computer efficiency test in the time schedule and the participation therein cannot be considered as if the candidate has acceded to the same so as to estop such candidate from challenging the action of the respondent if the name of such candidate is removed from the select list thereafter treating the same as the basis. Hence in the instant case it cannot be considered as a typical case of approbate and reprobate. In that view since the high court has addressed this issue taking note of the decision which was cited before it and has thereafter arrived at its conclusion, the decision relied on by the learned senior counsel for the appellants, in the case of Ashok Kumar and Another vs. State of Bihar and Others will not be of any assistance. Hence it cannot be held that the decision of the High Court is per incuriam as contended16. Further what cannot escape the attention is also that certain other persons who were similarly placed as that of the petitioners have already approached this court in SLP Nos.3239-3242/2017 wherein the relied upon decision in the review petition was assailed but this court has dismissed the special leave petitions. Therefore, taking into consideration all the aspects of the matter we see no reason to interfere with the orders impugned hereinIn that regard we do not find it appropriate to advert and make any comment since we have already arrived at conclusion that the orders impugned do not call for interference.