The petitioner in this writ petition is seeking a direction to respondents to promote the petitioner from Class IV to Class III post in the handicapped quota in terms of the Office Clerical Grade (Appointment through Promotion) Rule, 2001. According to the petitioner, he was appointed in a Class- IV post in the Office of Joint Director, Meerut Region, Meerut under the dying-in-harness rule in the handicapped quota of 2001. Thereafter selection for promotion on a Class III Post, in which the petitioner appeared, was held on 11.06.2013. He did not qualify. The allegation is that the selection was held without calling instructor of I.T.I. and employment Office for conducting the typing test as a result of which in the selection 10 candidates were promoted as junior Clerk. The allegation further is that the promotion of10 candidates has been made in violation of guidelines indicated by the Director of Agriculture, U.P. Lucknow in Government Order dated 31.08.1982 and Government Order dated 03.09.1995 and the Rules 2001. How these Rules or guidelines or G.Os. has been violated has not been outlined anywhere in the writ petition nor in the grounds filed in support of the writ petition. All that has been stated is that the petitioner was entitled for promotion to Class-III post on completion of 12 years of continuous service. But it is not 2 disputed that he was given an opportunity of appearing in the selection, which he did and failed to qualify.
The Supreme Court in AIR 1986 SC 1043, Om Prakash Shukla Vs. Akhilesh Kumar Shukla and Others has held that the person having appeared in the examination and having failed to qualify cannot subsequently turn around and question the same.
Para 23 of the said judgment reads as follows:
"Moreover, this is a case where the petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without protest. He filed the petition only after he had perhaps realised that he would not succeed in the examination. The High Court itself has observed that the setting aside of the results of examinations held in the other districts would cause hardship to the candidates who had appeared there. The same yardstick should have been applied to the candidates in the District of Kanpur also. They were not responsible for the conduct of the examination." Again in AIR 1991 SC 2248, Sardar Singh and Others Vs. State of Punjab and Others, the Supreme Court has reconsidered the same principle of law in para 8. Para 8 of the said judgment reads as under:
"8. It is next contended that the appellants have now become overaged and that they are 22 in all. Therefore, directions may be given to the Government to relax their age qualification and given appointments to them. We find no justification to give such a direction. Admittedly, the appellants have taken the chance for selection and they were not selected on the basis of comparative merits. Therefore, merely because appellants are carrying on the litigation, there cannot be any justification to give direction to the Govt. to consider their cases by relaxing the age qualification for appointment as Patwari. It is not in dispute that hundreds of candidates who could not be selected would in that event seek similar relief. Under these circumstances we do not find any cause to add to the selection and appointment of the candidates as Patwaris. The High Court, though for different reasons, has rightly dismissed the writ petitions. The appeals are accordingly dismissed, but without costs." In AIR 1995 SC 1088, Madan Lal and Others Vs. State of J & K and Others, the Supreme Court in para 9 relying upon the decision in the case of Om Prakash Shukla (supra) has held as under:
"9. Therefore, 'the result of the interview test on merits cannot be 3 successfully challenged by a candidate who takes a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful. It is also to be kept in view that in this petition we cannot sit as a Court of appeal and try to reassess the relevant merits of the concerned candidates who had been assessed at the oral interview nor can the petitioners successfully urge before us that they were given less marks though their performance was better. It is for the Interview Committee which amongst others consisted of a sitting High Court Judge to judge the relative merits of the candidates who were orally interviewed in the light of the guidelines laid down by the relevant rules governing such interviews. Therefore, the assessment on merits as made by such an expert committee cannot be brought in challenge only on the ground that the assessment was not proper or justified as that would be the function of an appellate body and we are certainly not acting as a court of appeal over the assessment made by such an expert committee."
In 1976 3 SCC 585, Dr. G. Sarana Vs. University of Lucknow & Others, the Supreme Court in para 15 has held as follows:
"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 or 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's case 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:
"It seems dear that the appellant wanted to take a chance to secure a favourable report from the tribunal which was constituted and when he found that he was confronted with an unfavourable report, he adopted the device of raising the present technical point." In (1998) 3 SCC 694, Union of India and Another Vs. N. Chandrasekharan and Others, the Supreme Court in para 13 had held that when the procedure for promotion has been disclosed to all the candidates before they sat for the written test and before they appeared before the Departmental Promotion Committee, they cannot turn around and contend later when they found they were not selected by challenging 4 that procedure and contending that the marks prescribed for interview and confidential reports are disproportionately high and the authorities cannot fix a minimum to be secured either at interview or in the assessment on confidential report. In (2008) 4 SCC 171, Dhananjay Malik and Others Vs. State of Uttaranchal and Others, the Supreme Court has relied upon its earlier decision in the case of Madan Lal and Others Vs. State of J & K has held in paragraphs 7, 8 and 9 as under:
"7. It is not disputed that the writ petitioners-respondents herein participated in the process of selection knowing fully well that the educational qualification was clearly indicated in the advertisement itself as B.P.E. or graduate with diploma in physical education. Having unsuccessfully participated in the process of selection without any demur they are estopped from challenging the selection criterion inter alia that the advertisement and selection with regard to requisite educational qualifications were contrary to the Rules.
8. In Madan Lal vs. State of J & K, this Court pointed out that when the petitioners appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned, the petitioners took a chance to get themselves selected at the said oral interview. Therefore, 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 writ petitions. This Court further pointed out 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.
9. In the present case, as already pointed out, the writ petitionersrespondents herein participated in the selection process without any demur; they are estopped from complaining that the selection process was not in accordance with the Rules. If they think that the advertisement and selection process were not in accordance with the Rules they could have challenged the advertisement and selection process without participating in the selection process. This has not been done." In Amlan Jyoti Borooah Vs. State of Assam and Others reported in (2009) 3 SCC 227 the same principle of law has been followed by the Supreme Court. Paragraphs 30, 31 and 32 of the said judgment read as follows:
"30. Appellant concededly did not question the appointment 169 candidates. It is idle to contend that he was not aware thereof. If he 5 was to challenge the validity and/or legality of the entire select list in its entirety, he should have also questioned the recruitment of 169 candidates which took place as far back as on 4.7.2000.
31. The appellant was aware of his position in the select list. He was also aware of the change in the procedure adopted by the Selection Committee. He appeared at the interview without any demur whatsoever although he was not called to appear for the physical ability test prior thereto. The appellant chose to question the appointment of 77 candidates not only on the premise that the procedure adopted by the Selection Committee was illegal but also on the premise that no new vacancy could have been filled up from the select list.
32. The appellant, in our opinion, having accepted the change in the selection procedure sub silentio, by not questioning the appointment of 169 candidates, in our considered opinion, cannot now be permitted to turn round and contend that the procedure adopted was illegal. He is estopped and precluded from doing so.
In the present case, the petitioner applied under the Right to Information Act for information, which reply was also given to him on 4.09.2013, copy of which has been filed as Annexure-IX to the writ petition.
In the said order, it has been clearly indicated that out of 10 posts, no post was reserved for being filled in the handicapped quota. This order has not been challenged by the petitioner. In para 13 of the writ petition, the petitioner has also alleged that in the matter of promotion, one Sri Rohtas Kumar, Junior to the petitioner was promoted but the petitioner was not given promotion. In what manner, the promotion of Rohtas Kumar was bad or discriminates the petitioner, has not been indicated anywhere nor any seniority list has been filed to show that Rohtas Kumar was junior to the petitioner. In para 17 of the writ petition, it has been alleged that some of the employees who were promoted from Class-IV to Class-III did not have typing or computer knowledge. Who are those persons have also not been named in the writ petition. A supplementary counter affidavit has been filed today by the petitioner in which para 1 has been sworn on personal knowledge, para 2 has been sworn from record and in para 3, where it is stated that 6 out of 84 vacancies, not a single vacancy has been filled from handicapped quota, has been sworn on legal advice. It is surprising, how a factual question namely, 84 vacancies could not be filled under the handicapped quota, could be sworn on legal advice. Thus, the Court has no hesitation in holding that the supplementary affidavit is a false affidavit. The writ petition being wholly devoid of merit fails and is accordingly dismissed.
Order Date :- 7.4.2014 Arun K. Singh/N Tiwari