MATHUR, J. - (1.) THE appellants by way of separate writ petitions challenged the process of selection on the post of Teachers Gr. II/senior Teachers, pursuant to the zone-wise advertisements viz; Jaipur, Jodhpur, Kota, Udaipur, Ajmer & Churu. THE respondents after due consideration of merit in accordance with the prescribed procedure, issued provisional merit list of 5712 candidates on 19th September 2003. On coming to know of the result, out of thousands of unsuccessful candidates, few of them in total 9 writ petitions under Article 226 came to be filed in October 2003, challenging the process of selection, on diverse grounds. THE learned Single Judge dismissed all the writ petitions by impugned judgment dated 4. 11. 2004 mainly on the ground that no interference is warranted with the selections made on the basis of practice in vogue for long time, more particularly at the instance of the candidates, who have taken a chance and participated in the selection process. Learned Single Judge partly allowed the writ petition being S. B. Civil Writ Petition No. 5709/2003 ``dharamveer vs. State'' and directed the respondent-State to exclude candidates from consideration possessing the Degree from such of the Institutions, which are situated in the State of J & K, as they are not recognized by the National Council for Teacher Education (in short, ``the NCTE'' ). Learned Single Judge also held that the knowledge of Rajasthani Language and Culture is an essential part and, as such, directed the State Authorities to look into this aspect at the time the final selection list is prepared and for that, an opportunity of interview may be utilized. THE operative part of judgment of the learned Single Judge is extracted as follows: ``the knowledge of Rajasthani Language and Culture is an essential part which will be looked into by the authorities when the final selection list is made and opportunity of interview can be utilised at this juncture. THEre is still time to judge this aspect as this is requirement of the Rules and the authorities will keep in mind that those who are selected will have the requirement of knowledge of local language and conditions. This Court finds that no interference is called for in the present selections which have been impugned after the petitioners have chosen to take their chances. Consequently, these writ petitions having no force are partly allowed as indicated above. Any interim orders passed, are vacated. '' CONTENTIONS:
(2.) ASSAILING the judgment of the learned Single Judge, Mr. M. Mridul, learned Senior Advocate, appearing for the appellants, has advanced the contentions as follows: (i) Learned Single Judge has failed to consider that the selection process as devised by the Advertisement and the Circular cited by the respondents is wholly illegal, the same being contrary to the statutory provisions made by the Rajasthan Educational Subordinate Service Rules, 1971 on the anvil of Rules 11, 19 & 20 read with Item 8 (a) of Column F of the Schedule attached to the Rules; (ii) The merit of the candidates could not be determined only on the basis of the marks in the examination conducted by the different Universities having different perceptions, therefore, interview is the only justified method for selection; (iii) Learned Single Judge has failed to appreciate the contention raised by the appellants to the effect that while evaluating the merit, the provision of giving credit to marks obtained in additional subject i. e. , substitution of marks obtained in additional subject in place of lowest marks obtained in original examination of the graduation, is unfair & violative of Article 14 of the Constitution; (iv) Learned Single Judge has also failed to appreciate that the exclusion of the experience secured as a Teacher in un- aided but recognized institution is a case of discrimination, as it amounts to making unequals equal so as to be violative of Articles 14 & 16 of the Constitution of India; Mr. M. R. Singhvi & Mr. M. S. Singhvi, learned counsel appearing in the Special Appeals filed by the interveners, with the leave of the Court, have assailed the directions of the learned Single Judge to exclude the candidature of those candidates, who had passed their B. Ed. from the institutions affiliated to the Universities of Jammu & Kashmir. PRELIMINARY OBJECTION: Mr. N. M. Lodha, learned Additional Advocate General, while supporting the judgment of the learned Single Judge, except part of the order excluding the candidates who have obtained B. Ed. Degree from the institutions affiliated to the Universities in the State of Jammu & Kashmir, has reiterated the preliminary objection raised before the learned Single Judge to the effect that the appellants are not entitled to any relief, as they have challenged the process of selection after having participated in the process and the merit list being prepared. Reliance is placed on decisions of this Court in 1972 ILR (Raj.) 711; 2001 (1) RLR 462, 2001 (2) WLC 750, & 2002 (2) WLC 83 and decisions of Apex Court in AIR 1986 SC 1043; 1995 (3) SCC 486; AIR 1998 SC 795; & AIR 1976 SC 2428. Per Contra, it is submitted by Mr. M. Mridul, learned Senior Advocate that in a case where the process of selection is wholly arbitrary and discriminatory, this Court has ample power under Article 226 of the Constitution of India to quash the same, even if the same is challenged after completion of process of selection. To resolve the controversy, we are benefited of the guidance provided by the Apex Court in some of its decisions.
(3.) IN G. Sarana vs. Lucknow University reported in AIR 1976 SC 2428, (supra), the process of selection on the post of Professor of Anthropology was challenged. The writ petition was dismissed by the High Court. The Apex Court refused to enter into the question of reasonableness of bias or real likelihood of bias as despite the fact that the appellant knew all the relevant facts, did not before appearing or at the time of the interview raise even little finger against the constitution of the Selection Committee. The Court observed in para 15 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 of bias as despite the fact that the appellant knew all the relevant facts, he did not before appearing for 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 (AIR 1957 SC 425) (supra), wherein 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. It is further observed thus- ``it seems clear 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 Omprakash vs. Akhilesh Kumar reported in AIR 1985 SC 1043 (supra), the selection of candidates for appointment to vacancies in Grade III of the Ministerial Staff in the subordinate Courts was challenged. The High Court was of the view that since within the judgeship of Kanpur, the examination had not been held in accordance with the syllabus prescribed by the Rules of 1947 as amended by 1969 amending Rules and all those who were successful and selected for appointment, had no right to be appointed. Accordingly, the High Court quashed the entire process of selection. The Apex Court while reversing the finding recorded by the High Court on merit observed that the High Court ought not to have granted relief to the petitioners therein as they had appeared for the examination without protest and filed the writ petition only after they realized that they would not succeed in the examination. The Court observed thus: ``23. 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. '' In Madan Lal vs. State of J&k reported in (1995) 3 SCC 486, the process of selection on the post of Munsifs in the State of Jammu & Kashmir was challenged on diverse grounds. The Apex Court before dealing with the contentions reminded that the petitioners as well as the contesting successful candidates were all found eligible in the light of the marks obtained in the written test, to be eligible to be called for oral interview. Up to that stage, there was no dispute between the parties. The petitioners therein 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. Considering this aspect, the Court observed- ``9. . . . 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 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 vs. Akhilesh Kumar Shukla it has been clearly laid down by a Bench of three leaned 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, the High Court should not have granted any relief to such a petitioner. '' ;