Candidates cannot challenge selection process without concrete evidence: Himachal Pradesh High Court

 Hig h C o urt of H.P on 15 11 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. CWPOA No. 59919 Reserved on: November 10 2020 Decided on: November 13 2020 _______________________________________________________________ Mukesh Thakur and others …..Petitioners Versus State of Himachal Pradesh and others ….Respondents _______________________________________________________________ Coram: Hon’ble Mr. Justice Sandeep Sharma Judge. Whether approved for reporting 1yes. For the Petitioners : Mr. Suneet Goel Advocate. For the Respondents : Mr. Sudhir Bhatnagar Additional Advocate General with Mr. Kunal Thakur Deputy Advocate General and Mr. Sunny Dhatwalia Assistant Advocate General for respondents Nos. 1 to 3. Ms. Yogita Dutt Sharma Advocate for respondents Nos. 4 to 8. _______________________________________________________________ Sandeep Sharma Judge Pursuant to notice published in the newspaper dated 18.10.2018petitioners alongwith other eligible candidates applied for the posts of Drivers in 4th Battalion Home Guards Nahan. Petitioners being eligible candidates were called for recruitment process vide separate communicationswhich was scheduled to be held with effect from. 15.10.2018 to 18.10.2018. Fitness test was conducted on 15.10.2018 driving test on 16.10.2018 and written test on 17.10.2018. Though 1 Whether the reporters of the local papers may be allowed to see the judgment Hig h C o urt of H.P on 15 11 HCHP 2 initially 500 candidates participated in the aforesaid selection process conducted by the respondents for 15 posts of Drivers however only 122 candidates including the petitioners appeared qualified in the written examination. After conducting the driving test written examination respondents issued list of 15 selected candidates for post in questionwho had either failed in the driving fitness test or had not even participated in the selection process petitioners namely Dimple Singh Ashik Khan Mohammad and Mukesh Thakur lodged a written complaint to Hon ble the Chief Minister Himachal Pradesh and Inspector General Home Guardswith regard to aforesaid illegalities and requested to take action in accordance with law. Though petitioner namely Mukesh Thakur applied for information regarding marks obtained by respondent No.5 Rahul Thakur in skill and written test alongwith copy of video graphy made at the time of driving skill test held on 15.10.2018 but such information is still awaited. Report with regard to alleged illegalities and irregularities committed in the aforesaid selection process also came to be published in certain newspapers as is evident from one newspaper report annexed as Annexure A 9. Since no action came to be taken on the complaints having been made by Hig h C o urt of H.P on 15 11 HCHP 3 the petitioners they approached erstwhile Himachal Pradesh Administrative Tribunal by way of OA No. 6918 which on its transfer to this Court stands re registered as CWPOA No. 59419 praying therein for following main reliefs: “A. This Hon ble Tribunal may very kindly be pleased to call for entire records pertaining to the case within the power and possession of the respondents B. This Hon ble Tribunal may very kindly beC. Direct the respondent authorities to carry out proper inquiry qua the into the illegalities in making selection of the candidates for the post in question.” 2. Respondents Nos. 1 to 3 while denying aforesaid allegations have claimed in their reply that the selection process under challenge was conducted in a most fair and transparent manner. Respondents have claimed that the Enrolment Board constituted by Commandant General Home Guards and Civil Defense Himachal Pradesh vide order dated 25.9.2018 conducted physical driving and written tests with full transparency and impartiality. Respondents have submitted that since the entire process was conduced as per norms prescribed for selection process and in terms of Rules occupying the field petition having been filed by the petitioners deserves dismissal being without any merit. Hig h C o urt of H.P on 15 11 HCHP 4 3. Respondents nos. 4 to 8 also filed a joint reply refuting therein the allegations of the petitioners. Aforesaid respondents have not only claimed that they participated in selection process alongwith the petitioners but have stated that they being more meritorious have been rightly selected for the posts of Drivers. 4. Learned Tribunal below having taken note of the averments contained in the petition vide order dated 6.12.2018 while granting time to the respondents ordered that selection of respondents Nos. 4 to 8 as drivers on the establishment of 4th Battalion Nahan as per list of selected candidates Annexure A 1 shall be subject to the final outcome of the petition. 5. I have heard the parties and gone through the record. 6. In nutshell grievance of the petitioners as emerges from the pleadings adduced on record is that the respondents while carrying out selection for the posts of drivers in 4th Battalion Home Guards have committed serious illegalities and irregularities and have appointed the personswho had either failed in the diving fitness test or had not at all appeared in the selection process. 7. Respondents Nos. 1 to 3 with a view to refute the aforesaid allegations of the petitioners and to justify the selection of respondents Nos. 4 to 8 have placed on record various documents alongwith their reply perusal whereof clearly reveals that though intimation with regard to selection against 15 posts of drivers was given in newspaper Annexure A 2 but in such news clipping terms and conditions i.e. Hig h C o urt of H.P on 15 11 HCHP 5 eligibility age critera physical standards and educational qualifications were clearly mentioned. Apart from this terms and conditions stood clearly mentioned in the form of enrollment which was required to be furnished at the time of selection and as such there appears to be no force in the claim of the petitioners that they were not apprised with regard to terms and conditions and standards to be adopted by respondents during selection process. Similarly careful perusal of Annexures R 1 and R 2 annexed with reply filed by respondents Nos. 1 to 3 clearly reveals that vide office order dated 20.9.2018 and corrigendum dated 6.10.2018 respondents while constituting Enrolment Board specifically provided marks to be awarded by the Board against each criterion. Vide corrigendum dated 6.10.2018separate Enrolment Boards came to be constituted for each District headed by the officer of the rank of Commandant. Respondents also placed on record an enrolment form submitted by one of the petitioners namely Mukesh Thakur to demonstrate that the terms and conditions of enrolment were also printed on the application form submitted by each individual with his signatures. Perusal of aforesaid form further reveals that marks were awarded on same form by the Enrolment Board against each criterion. Though in the case at hand petitioners have claimed that information sought for by them under RTI Act is yet awaited but delay if any in furnishing information cannot be a ground reason for this Court to infer Hig h C o urt of H.P on 15 11 HCHP 6 that the respondents committed illegalities and irregularities while selecting respondents Nos. 4 to 8 in the selection process wherein admittedly petitioners had also participated. Save and except bald statements allegations having been made by the petitioners there is no concrete evidence adduced on record by them suggestive of the fact that respondents Nos. 4 to 8 had either not cleared the fitness driving test or not appeared in the selection process. There is no plausible reason rendered on record by the petitioners which can persuade this Court to disbelieve the version put forth by the respondents in their reply which has been admittedly filed under the signatures and affidavit of Commandant Home Guard 4th Battalion. Though an attempt has been made on behalf of petitioners to refute the submissions contentions raised by the respondents in their reply by way of filing rejoinder but rejoinder if read in its entirety shows that besides reiterating their stand in the petition no fresh material has been placed on record persuading this court to believe their version as put forth in the petition. Though this Court having perused reply filed on behalf of the respondents has no hesitation to conclude that the petitioners after having been declared unsuccessful in the selection process have made an attempt to stall the entire selection process on very flimsy grounds but even otherwise petitioners after having been declared unsuccessful in the selection process cannot be permitted to raise dispute with Hig h C o urt of H.P on 15 11 HCHP 7 regard to method of selection adopted by the Enrolment Board. Though Mr. Suneet Goel learned counsel for the petitioners while making this court peruse documents annexed with the petition made a serious attempt to persuade this Court that since the petitioners during selection process itself had apprised authorities concerned with regard to the alleged illegalities petitioners cannot be estopped from filing this petition on the ground that they had already participated in the selection process but having perused averments contained in the petition as well as Annexure A 1 i.e. list of selected candidates for the posts of Drivers in 4th Battalion this Court finds no merit in the aforesaid submission of Mr. Goel and as such same is rejected being devoid of merit. It stands categorically averred in the petition that petitioners after having noticed names of respondents Nos. 4 to 8 in the selection list which was admittedly signed in the month of November 2018 lodged complaint with the Hon ble Chief Minister and the Inspector General Home Guards. As per own case of the petitioners interview driving test for the post was held on 15.10.2020 to 17.10.2018 but there is no material available on record suggestive of the fact that complaint if any ever came to be made by the petitioners during aforesaid period and as such subsequent representations complaints by the petitioners can be said to be an afterthought. 8. It is settled law that a process of selection cannot be challenged by an unsuccessful candidate by pointing to certain Hig h C o urt of H.P on 15 11 HCHP 8 irregularities here and there in the process of which he was aware once the result is not to his liking. Relief in such a case is to be declined by applying the principles of estoppel acquiescence and or waiver. Reference in this regard can conveniently be made to the two recent judgments of the Hon ble Supreme Court. “10. In Madras Institute of Development Studies and another vs. K. Sivasubramaniyan and others(2016) 1 SCC 454 the Hon ble Supreme Court has held as under: 12. The contention of the respondent no.1 that the short listing of the candidates was done by few professors bypassing the Director and the Chairman does not appear to be correct. From perusal of the documents available on record it appears that short listing of the candidates was done by the Director in consultation with the Chairman and also senior Professors. Further it appears that the Committee constituted for the purpose of selection consists of eminent Scientists Professor of Economic Studies and Planning and other members. The integrity of these members of the Committee has not been doubted by the respondent writ petitioner. It is well settled that the decision of the Academic Authorities about the suitability of a candidate to be appointed as Associate Professor in a research institute cannot normally be examined by the High Court under its writ jurisdiction. Having regard to the fact that the candidates so selected possessed all requisite qualifications and experience and therefore their appointment cannot be questioned on the ground of lack of qualification and experience. The High Court ought not to have interfered with the decision of the Institute in appointing respondent nos. 2 to 4 on the post of Associate Professor. 13. Be that as it may the respondent without raising any objection to the alleged variations in the contents of the advertisement and the Rules submitted his application and participated in the selection process by appearing before Hig h C o urt of H.P on 15 11 HCHP 9 the Committee of experts. It was only after he was not selected for appointment turned around and challenged the very selection process. Curiously enough in the writ petition the only relief sought for is to quash the order of appointment without seeking any relief as regards his candidature and entitlement to the said post. 14. The question as to whether a person who consciously takes part in the process of selection can turn around and question the method of selection is no longer res integra. 15. In Dr. G. Sarana vs. University of Lucknow & Ors. 3 SCC 585 a similar question came for consideration before a three Judges Bench of this Court where the fact was that the petitioner had applied to the post of Professor of Athropology in the University of Lucknow. After having appeared before the Selection Committee but on his failure to get appointed the petitioner rushed to the High Court pleading bias against him of the three experts in the Selection Committee consisting of five members. He also alleged doubt in the constitution of the Committee. Rejecting the contention the Court held:"15. We do not however consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood of bias as despite the fact that the appellant knew all the relevant facts he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution of the Selection Committee. He seems to have voluntarily appeared before the committee and taken a chance of having a favourable recommendation from it. Having done so it is not now open to him to turn round and question the constitution of the committee. This view gains strength from a decision of this Court in Manak Lal vs. Prem Chand Singhvi AIR 1957 SC 425 where in more or less similar circumstances it was held that the failure of the appellant to take the identical plea at the earlier stage of the proceedings created an effective bar of waiver against him. The following observations made therein are worth quoting:9. ....It seems clear that the appellant wanted to take a chance to secure a favourable report from the tribunal which was Hig h C o urt of H.P on 15 11 HCHP 10 constituted and when he found that he was confronted with an unfavourable report he adopted the device of r raising the present technical point. " 16. In Madan Lal & Ors. vs. State of J & K & Ors.3 SCC 486 similar view has been reiterated by the Bench which held that:"9. Before dealing with this contention we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein were all found 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 successful 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 round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla 1986 Supp SCC 285 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 r the High Court should not have granted any relief to such a petitioner." 17. In Manish Kumar Shahi vs. State of Bihar 12 SCC 576 this Court reiterated the principle laid down in the earlier judgments and observed:"16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test the petitioner is not entitled to challenge the Hig h C o urt of H.P on 15 11 HCHP 11 criteria or process of selection. Surely if the petitioner s name had appeared in the merit list he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition." 18. In the case of Ramesh Chandra Shah and others vs. Anil Joshi and others 11 SCC 309 recently a Bench of this Court following the earlier decisions held as under:"24. In view of the propositions laid down in the above noted judgments it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents." 19. So far as the finding recorded by the Division Bench on the question of maintainability of the writ petition on the ground that the appellant Institute is a State within the meaning of Article 12 of the Constitution we are not bound to go into that question which is kept open." 9. In Ashok Kumar and another vs. State of Bihar and others4 SCC 357 a Bench of three Hon ble Judges of the Hon ble Supreme Court has held as under: "13. The law on the subject has been crystalized in several decisions of this Court. In Chandra Prakash Tiwari v. Shakuntala Shukla[4] 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 Hig h C o urt of H.P on 15 11 HCHP 12 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 Kumar8 SCC 100 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 same3 SCC 368 and Rashmi Mishra v. M.P. Public Service Commission12 SCC 724)". 14. The same view was reiterated in Amlan Jyoti Borooah3 SCC 227 where it was held to be well settled that candidates who have taken part in a selection process knowing fully well the procedure laid down therein are not entitled to question it upon being declared to be unsuccessful. 15. In Manish Kumar Shah v. State of Bihar12 SCC 576 the same principle was reiterated in the following observations:"16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test the Petitioner is not entitled to challenge the criteria or process of selection. Surely if the Petitioner s name had appeared in the merit list he would not have even dreamed of challenging the selection. The Petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the Petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition. Reference in this connection may be made to the Judgments in Madan Lal v.State of J. and K.3 SCC 486 Marripati Nagaraja v. State of Andhra Pradesh and Ors.11 SCC 522 Dhananjay Malik and Ors. v.State of Uttaranchal and Ors.(2008) 4 SCC 171 Amlan Jyoti Borooah v. State of Assam3 SCC 227 Hig h C o urt of H.P on 15 11 HCHP 13 and K.A. Nagamani v. Indian Airlines and Ors.5 SCC 515." 16. In Vijendra Kumar Verma v. Public Service Commission 1 SCC 150 candidates who had participated in the selection process were aware that they were required to possess certain specific qualifications in computer operations. The appellants had appeared in the selection process and after participating in the interview sought to challenge the selection process as being without jurisdiction. This was held to be impermissible. 17. In Ramesh Chandra Shah v. Anil Joshi 11 SCC 309 candidates who were competing for the post of Physiotherapist in the State of Uttrakhand participated in a written examination held in pursuance of an advertisement. This Court held that if they had cleared the test the respondents would not have raised any objection to the selection process or to the methodology adopted. Having taken a chance of selection it was held that the respondents were disentitled to seek relief under Article 226 and would be deemed to have waived their right to challenge the advertisement or the procedure of selection. This Court held that:"18. It is settled law that a person who consciously takes part in the process of selection cannot thereafter turn around and question the method of selection and its outcome." 18. In Chandigarh Administration v. Jasmine Kaur[11] it was held that a candidate who takes a calculated risk or chance by subjecting himself or herself to the selection process cannot turn around and complain that the process of selection was unfair after knowing of his or her non selection. In Pradeep Kumar Rai v. Dinesh Kumar Pandey11 SCC 493 this Court held that:: "17. Moreover we would concur with the Division Bench on one more point that the appellants had r participated in the process of interview and not challenged it till the results were declared. There was a gap of almost four months between the interview and declaration of result. However the appellants did not challenge it at that time. Hig h C o urt of H.P on 15 11 HCHP 14 This it appears that only when the appellants found themselves to be unsuccessful they challenged the interview. This cannot be allowed. The candidates cannot approbate and reprobate at the same time. Either the candidates should not have participated in the interview and challenged the procedure or they should have challenged immediately after the interviews were conducted." This principle has been reiterated in a recent judgment in Madras Institute of Development v. S.K. Shiva Subaramanyam s casepetitioners being unsuccessful candidates cannot be allowed to challenge the selection process especially when they have failed to point out any illegality in the selection process the selection process requires to be upheld. 14. In view of above petition is dismissed being devoid of any merit. Pending applications if any stand disposed of. Interim orders quashed. Judge November 13 2020

Summary: Once a candidate has accepted a particular selection process and has participated in the same without challenging it, she/he cannot challenge such a process upon not being selected, in the court of law without concrete evidence. The High Court Bench of Himachal Pradesh, consisting of J. Sandeep Sharma, in the case of Mukesh Thakur and Others v. State of Himachal Pradesh and Others [CWPOA No. 5994 of 20190], decided that the court should not interfere in the selection process for posts, wherein there lies no evidence of illegality or irregularity. The petitioners along with other eligible candidates had applied for the post of Drivers in 4th Battalion Home Guards, Nahan, pursuant to a notice published in the newspaper. The respondents conducted the fitness test, the driving test and the written test of over 122 candidates, out of which a list of 15 selected candidates was issued. None of the petitioners was selected and they were shocked to see that certain persons on the list had either failed the driving/fitness tests or had not even participated in the selection process. A few of the petitioners wrote a complaint to the Hon’ble Chief Minister, Himachal Pradesh and Inspector-General, Home Guards, stating illegalities regarding the selection process and requested to take action in accordance with the law. A few other petitioners also applied for information gathering regarding the marks in the tests along with a copy of the videography made at the time of the driving test. The report of illegalities and irregularities in the procedure was also published in the newspaper. Upon no response from the authorities, the petitioners approached the Himachal Pradesh Administrative Tribunal praying for the call of records, quashing the selection process and directing the respondent authorities to carry out a proper inquiry into the illegalities. The respondent while denying all the allegations, claimed that “the selection process under challenge, was conducted in a fairest and transparent manner”, and hence, the petition should be dismissed. The Tribunal granted time to the respondents and ordered that the finality of the selection process would be subject to the outcome of the petition.  The Court, after careful consideration, remarked that “Though in the case at hand, petitioners have claimed that information sought for by them under RTI Act is yet awaited but delay, if any in furnishing information cannot be a ground/reason for this Court to infer that the respondents committed illegalities and irregularities while selecting respondents Nos. 4 to 8 in the selection process, wherein admittedly petitioners had also participated. Save and except bald statements/allegations having been made by the petitioners, there is no concrete evidence adduced on record by them suggestive of the fact that respondents Nos. 4 to 8 had either not cleared the fitness/driving test or not appeared in the selection process. There is no plausible reason rendered on record by the petitioners, which can persuade this Court to disbelieve the version put forth by the respondents in their reply, which has been admittedly filed under the signatures and affidavit of Commandant, Home Guard, 4th Battalion”. Relying on Madras Institute of Development Studies and Another v. K. Sivasubramaniyan and Others [(2016) 1 SCC 454], the Court dismissed the petition on the basis of it being devoid of merit, stating that “Since it stands duly established on record that the writ petitioners before laying challenge to selection process had participated in the selection process without any demur, now it is not open for them to lay challenge to selection process after having been declared unsuccessful that too on the bald and baseless allegations”. Click here to read the judgement