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Judgment
Ashok B. Hinchigeri
The petitioners grievance is over the exclusion of the E.S.I. Corporation Doctors from the definition of in-service candidates as given in Rule
2(d) of the Karnataka Medical Education Department (Deputation of in-service candidates to Super-Speciality Courses) Rules, 2006. Sri
K.M.Nataraj, the learned Additional Advocate General appearing for the respondent No. 1 has raised the threshold objection to the
maintainability of this petition. He submits that the petitioner has applied for admission to the super speciality course in the general category only.
She has given a declaration, dated 06.06.2012 (Annexure-D) to that effect. Having applied in the general category, she is estopped from
demanding that her candidature be considered in the category of in-service doctors. He submits that P.G.E.T. Rules, 2006 were published in
2006. Knowing fully well that she is not entitled to be considered as an in-service candidate, she has put in her application on 06.06.2012 in the
general category. He submits that the petitioner has no locus-standi to file this petition.
Sri N.K.Ramesh, the learned Standing Counsel for the respondent No. 2 submits that the petitioner has been a fence-sitter. He brings to my
notice, the calendar of events at Annexure-B. It shows that the notification for the P.G. Super Speciality Entrance Test, 2012 was issued on
10.05.2012. It also reveals, inter alia, that the result would be announced along with the display of revised key answers on 23.06.2012. On
knowing her position, she files the writ petition on 25.06.2012.
Sri Vikas Rojipura, the learned counsel for the petitioner submits that the petitioner has acted in a bonafide manner by filing the writ petition. He
denies that the results were announced and the revised key answers were displayed on 23.06.2012. He submits that the writ petition is filed before
the announcement of the results and the display of the revised key answers.
Sri Vikas submits that the Constitution Bench judgment of the Apex Court in the case of Basheshar Nath Vs. The Commissioner of Income
Tax, Delhi and Rajasthan and Another, has held that there can be no waiver of or estoppel against the enforcement of fundamental rights on the
ground that the person has acquiesced to the rule which is violative of his fundamental right to equality.
He also read out para 29 from the Apex Court''s judgment in the case of Olga Tellis and Others Vs. Bombay Municipal Corporation and
Others, which is extracted hereinbelow:
The plea of estoppel is closely connected with the plea of waiver, the object of both being to ensure bona fides in day-to-day transactions. In
Basheshar Nath v. CIT2 a Constitution Bench of this Court considered the question whether the fundamental rights conferred by the Constitution
can be waived. Two members of the Bench (Das, C.J. and Kapoor, J.) held that there can be no waiver of the fundamental right founded on
Article 14 of the Constitution. Two others (N.H. Bhagwati and Subba Rao, JJ.) held that not only could there be no waiver of the right conferred
by Article 14, but there could be no waiver of any other fundamental right guaranteed by Part III of the Constitution. The Constitution makes no
distinction, according to the learned Judges, between fundamental rights enacted for the benefit of an individual and those enacted in public interest
or on grounds of public policy.
Sri Vikas sought to draw support from the Full Bench decision of the Kerala High Court in the case of Dr. Saurabh Jain and Others Vs. State of
Kerala and Others, wherein the doctrine of estoppel in the context of violation of fundamental rights was held to be inapplicable. As the petitoner''s
right to equality guaranteed under Article 14 of the Constitution of India is being affected adversely, she has every right to maintain the petition
notwithstanding that she has applied in the general category.
Sri Nataraj, the learned Additional Advocate General submits that the facts of Saurab Jain''s case and the facts of the case on hand are entirely
different. Besides, when this Court''s decision and the Apex Court''s decisions are readily available, the Kerala High Court''s decision may at the
most have only a persuasive value. He submits that the issue is covered by this Court''s learned Single Judge''s order, dated 8.6.2012 in
W.P.Nos.15807-15810/2012, which is upheld by the Division Bench by its judgement, dated 6.8.2012 passed in W.A.Nos.2978-86/2012 and
other connected appeals. He submits that the petitioner''s percentage is 57, whereas the candidates securing 68% in the general category are still
wait-listed.
To examine the tenability of the threshold objection, it is profitable to refer to the Apex Court''s judgment in the case of Manish Kumar Shahi
Vs. State of Bihar and Others, wherein it is held that a candidate who has participated in the selection process and failed to qualify cannot be
permitted to turn around and challenge the process of selection. Paragraph 16 of the said judgment reads as follows:
We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 90% 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 & K, Marripati Nagaraja v. Govt. of A.P.,
Dhananjay Malik v. State of Uttaranchal, Amal Jyoti Borooah v. State of Assam and K.A. Nagamani v. Indian Airlines.
The Apex Court''s judgment in the case of Dhananjay Malik and Others Vs. State of Uttaranchal and Others, is also of immense guidance. Para
7 of the said judgment is extracted hereinbelow:
It is not disputed that the respondent - writ petitioners herein participated in the process of selection knowing fully well that the educational
qualification was clearly indicated in the advertisement itself as BPE 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.
In the case VIJENDRA KUMAR VERMA v. PUBLIC SERVICE COMMISSION, UTTARAKHAND AND OTHERS reported in
(2011) 1 SCC 510, the Hon''ble Supreme Court has held that it is impermissible for the candidates to approbate and reprobate. Head Note D of
the said decision is extracted hereinbelow:
D. Service Law - Recruitment process - Challenge to recruitment process - Acquiescence - Challenge to selection criteria after participating in
selection process - Impermissibility of - Appellant appeared for examinations and was declared to be successful in written examinations -
Appellant then participated in interview and in tests to determine his computer knowledge - Appellant was not selected as he lacked basic
knowledge of computer operations - Held, appellant appeared in interview knowing selection criteria that too without any protest at any stage -
Now he cannot turn back to state that procedure adopted for selection was wrong and without jurisdiction - Uttaranchal Judical Service Rules,
2005 - Rr.8, 14, 17, 18 and 19 - Estoppel, Acquiescence and Waiver - Acquiescence - Doctrines - Doctrine of approbate and reprobate.
Following the preponderance of the judicial view contained in the decisions to which the elaborate reference are made hereinabove, I find it
hard to overrule the preliminary objection. No doubt the petitioner has raised not only the formidable but also fundamental issues. This Court could
have examined those issues, had the petitioner come before responding to the Notification, dated 10.05.2012 and taking part in the examination
process thereafter. Having given the declaration that she is not claming reservation in the in-service quota, she can not now demand that her
candidature be considered in the in-service category. Her results may not have been announced on the day of her filing this petition. But she has
approached this Court after one week from the date of appearing for the examination. No new mark or procedure is introduced during the
midstream of the selection process.
In the result, I reject this petition. It is made clear that no opinion, whatsoever is expressed on the merits of the petition. The admission process
shall be completed by the respondent No. 2 in accordance with the P.G.E.T. Rules, 2012 without any further delay.
No order as to costs. Now that the main matter itself is disposed of, nothing survives for consideration of I.A.2/12 and I.A.3/12 for direction.
The same stand dismissed as having become unnecessary.