Decided on January 10,2020

Jitender Guleria Appellant


JYOTSNA REWAL DUA,J. - (1.)Writ petition challenging the selection and appointment of respondent No.4, to the post of Clerk in Himachal Pradesh Vidhan Sabha, having been dismissed, instant appeal has been preferred by the writ petitioner.
(2.)Shorn of unnecessary details, the facts may be noticed:-
2(i) Respondent No.1 on 7.8.2015, issued an advertisement for filling one post of Clerk from Class-IV employees under Limited Direct Recruitment Scheme. Last date for submission of written consent to participate in the process was 17.8.2015.

2(ii) Petitioner and respondent No.4, submitted their written consents for participating in the Limited Direct Recruitment Scheme. In response to petitioner's application dated 13.08.2015, memo dated 2.9.2015 was issued by respondent No.1 informing him his roll number and that the competitive exam for the said one post of Clerk was scheduled on 14.9.2015 and those who would qualify the written exam, will have to clear a typing test scheduled at 11 A.M. on 15.09.2015. And further, those clearing the typing test were to be interviewed the same day at 3 P.M.

2(iii) Petitioner, respondent No.4 alongwith five others, participated in the selection process and appeared in the written test. Petitioner secured 50 marks, whereas respondent No.4 secured 48 marks. Having qualified the written test, both the candidates alongwith others were called to appear in the typing test. Both the candidates qualified the typing test on 15.9.2015. Accordingly, they were interviewed the same day by a duly constituted selection committee by respondent No.1 in exercise of powers under Rule 7-A of the Himachal Pradesh Vidhan Sabha Secretariat (Recruitment and Conditions of Service) Rules, 1974. Petitioner secured 4 marks in viva-voce out of total 8 marks, whereas respondent No.4 obtained 6.5 marks. Respondent No.4, in all, secured 54.5 marks against 54 marks obtained by the petitioner. Respondent No.4 was, therefore, recommended for appointment and was eventually appointed as Clerk.

2(iv) Aggrieved against the selection and appointment of respondent No.4 as Clerk, petitioner preferred the writ petition before this Court primarily on the ground that respondent No.1 could not have held interviews of the candidates for the post in question; the advertisement dated 7.8.2015 only prescribed a written examination for filling the post, therefore, the holding of interview and that also without fixing any criteria for awarding marks was beyond the purview of advertisement; marks obtained by candidates in the interview, therefore, could not be considered by the selection committee. Accordingly, direction was sought for appointing the petitioner to the post being more meritorious in the written examination. Learned Single Judge did not find favour with the contentions of the petitioner and held that having participated in the selection process including the interviews, the petitioner cannot be heard to complain that interviews could not have been part of the selection process. Accordingly, the writ petition was dismissed. Aggrieved, instant appeal has been preferred.

(3.)We have heard learned counsel for the parties and gone through the record.

3(i) Learned Senior Counsel, for the appellant has vehemently contended that:- the advertisement issued by respondent No.1 on 7.8.2015 did not prescribe holding of interviews for filling in the post of Clerk under the Limited Direct Recruitment Scheme; under the advertisement, only a written test could be conducted for filling the post in question; in the written test, petitioner had secured 50 marks as against 48 secured by respondent No.4, therefore, the petitioner should have been declared as selected and appointed to the post in question.

It was contended by the learned Senior Counsel that even after participating in the selection process and appearing in the typing test as well as interview for the post in question, it was open for the petitioner to contend that the selection process adopted by the respondents in as much as conducting interviews on 15.9.2015 was not in consonance with the advertisement. In making this submission, learned Senior Counsel for the appellant, relied upon the decision of Hon'ble Apex Court in Dr. (Major) Meeta Sahai vs. State of Bihar and Ors. in Civil Appeal No. 9482 of 2019. Relevant paras of this judgment are reproduced hereunder:-

"16. Furthermore, before beginning analysis of the legal issues involved, it is necessary to first address the preliminary issue. The maintainability of the very challenge by the appellant has been questioned on the ground that she having partaken in the selection process cannot later challenge it due to mere failure in selection. The counsel for respondents relied upon a catena of decisions of this Court to substantiate his objection.

17. It is well settled that the principle of estoppel prevents a candidate from challenging the selection process after having failed in it as iterated by this Court in a plethora of judgements including Manish Kumar Shahi v. State of Bihar, observing as follows:

"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 appellant is not entitled to challenge the criteria or process of selection. Surely, if the appellant's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The appellant 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 appellant clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition."

The underlying objective of this principle is to prevent candidates from trying another shot at consideration, and to avoid an impasse wherein every disgruntled candidate, having failed the selection, challenges it in hope of getting a second chance.

18. However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process."

3(ii) Per contra, learned counsels for the respondents supported the judgment passed by learned Single Judge. It was also urged that instructions issued by the State, as applicable at the relevant time and as adopted by respondent No.1 provided holding of interviews for the post. It was only on 17.4.2017 that State Government issued instructions for dispensing interviews for Class III and IV posts. Further, it was pointed that action of respondents is in accordance with provisions of Regulation No.7 of 'H.P. Vidhan Sabha Secretariat Regulations 2002'. It was also submitted that petitioner has since been promoted as clerk on regular basis w.e.f. 16.08.2018.


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