Kailash Singh vs Union of India (UOI) and Others

Sunil Kumar Sinha, J.—Being aggrieved with the order dated 6.12.2006 (Annexure-P/12) passed by the Central Administrative Tribunal (hereinafter referred to as the CAT), Bench Jabalpur in Original Application No. 862/2005, the petitioner has filed this Writ Petition. By the said order, the original application filed by the petitioner challenging the process of selection for promotion to the post of Loco Pilot Goods-II/Goods Driver was dismissed by the CAT.

The facts, briefly stated, are as under:

The petitioner filed an original application before the CAT inter-alia pleading that at the relevant time, he was working as Sr. Asstt. Loco Pilot (4000-6000). The next promotional post was the post of Loco Pilot Goods-II/Goods Driver (5000-8000). According to the petitioner, a pre-promotional coaching was required to be imparted to reserved category candidates which was not imparted to him before the impugned selection took place. The petitioner claimed that even no notice or information of any nature was given to him and he was compelled to appear in the selection test in which he appeared but he was declared as failed. The petitioner also alleged many irregularities in the selection process like the question paper given was not proper; the questions were asked which were not in the syllabus etc. Therefore, the selection was arbitrary, unjust, unreasonable and unfair and the whole selection was liable to be quashed, particularly in the absence of any pre-promotional training/coaching to the petitioner.

The respondents/Railways specifically contended that a pre-selection coaching was held for reserved candidates i.e. SC/ST candidates as per the office order dated 14.9.2004, the petitioner being a candidate of reserved category has participated in the said pre-selection coaching and had given his declaration accordingly. The copy of the declaration was filed as Annexure-C in the original application and Annexure-R/2 in the writ petition. Before conducting the selection, pre-intimations were given to all the eligible candidates one month before the date of examination through letter dated 3.11.2004. The petitioner and many other similarly placed persons who were within the zone of consideration for promotion to their next higher post were given fair chance to appear in the examination. The petitioner failed to qualify the examination and thereafter he is challenging the selection process on the above grounds, therefore, the original application should be dismissed.

The petitioner had also filed a rejoinder to the said reply before the Tribunal and contended that in fact, no pre-promotional coaching was imparted to any SC/ST candidate. However, the Railway Administration coerced/pressurized to obtain signature on declaration form (Annexure-C). He very specifically pleaded in his rejoinder that his signature on the aforesaid declaration form was obtained by the Administration under pressure in the examination hall on 4.12.2004

The Tribunal observed that the petitioner appeared in the examination without any demur, but he failed to qualify in the written examination. Many candidates who successfully completed the pre- promotional course as well as pre-coaching and who appeared in the examination has also failed in the written examination. The petitioner failed to adduce even an iota of evidence to suggest that pre- promotional training was not imparted to him except the bald allegations made in the original application which was rebutted by the respondents in their return. Therefore, after taking a chance by appearing in the examination, when the petitioner failed to pass in the examination, he is challenging the same on the above grounds. Holding all this the original application was dismissed by the Tribunal.

Mr. Ratan Pusty, learned Counsel appearing on behalf of the petitioner, argued that a fair selection has not taken place as the petitioner was not imparted with the pre- promotional coaching. He prays for quashing the order passed by the Tribunal in the original application.

On the other hand, Mr. Abhishek Sinha, learned Counsel appearing on behalf of respondents 1 to 4, opposed these arguments. Referring to the contents of Annexure-R/2, he argued that the pre-promotional coaching was conducted in which the petitioner has also participated and he has given his declaration that he was fully satisfied with the said training/coaching. The petitioner had appeared in the examination without any objection and having failed to qualify the written examination he is turning around by disputing the facts, which appears to be after-thought. Therefore, the petitioner is estopped from raising such plea and now he cannot challege the validity of the examination.

We have heard the learned Counsel for the parties at length and have also perused the records of the writ petition as also original application.

We are unable to accept the contention raised by Mr. Ratan Pusty that, in fact, the pre-promotional coaching was not conducted and the petitioner has not taken such coaching and the respondents, by pressure and coercive method, obtained the signature of the petitioner on the declaration filed as Annexure-C in the original application and Annexure-R/2 in the writ petition. We may note that the petitioner never made allegations in the original application that though he has not taken the pre- promotional coaching but a declaration to this effect was obtained from the petitioner by pressurizing him to sign on the declaration in the examination hall. Such allegations are coming for the first time in the rejoinder affidavit filed by the petitioner before the Tribunal when the petitioner saw his declaration, filed along with return of the respondents. This shows that the petitioner firstly filed his original application by suppressing the fact of signing a declaration but when the same was brought on record by other side along with statement on oath, he has taken such a plea in the rejoinder. Since the petitioner has not disputed his signature on the declaration form and the contents of the declaration form, which has been filed by the respondents on oath, clearly shows that the petitioner has taken pre-promotional coaching for 21 days for promotion to the post of Loco Pilot Goods ML, we cannot accept the contention of the petitioner that he has not taken such training and his signature over such document was obtained by pressure or by any other coercive method adopted by the Administration.

In Om Prakash Shukla Vs. Akhilesh Kumar Shukla and Others, , it has been laid down by the Apex 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.

In Madan Lal and Others Vs. State of Jammu and Kashmir and Others, referring to the decisions in the matter of Om Prakash Shukla (supra), the Apex Court held that "the result of the interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful". Almost similar view was taken by the Apex Court in the matter of Chandra Prakash Tiwari and Others Vs. Shakuntala Shukla and Others, saying that there is a bar against challenging the selection process after participating in it without protest.

In Dhananjay Malik and Others Vs. State of Uttaranchal and Others, , the petitioners participated in process of selection knowing fully well about the educational qualification indicated in the advertisement itself. The Apex Court held that having unsuccessfully participated in the process of selection without any demur they were 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 N. Lokananandham Vs. Chairman, Tele-Com. Commission and Others, , the appellant was a candidate for a departmental examination known as Junior Accounts Officer Examination. He appeared in the examination held in December 2000 but did not qualify it. His grievance was that some of the questions asked in Paper IX were outside the syllabus and therefore the examination process was vitiated. He pointed out that syllabus for Paper IX contained two topics only "General Principles" and "Cash" as discussed in P & T Financial Handbook, Vol. I but questions of 65 marks were asked from other chapters of the Handbook. Relevant entry in the syllabus was as follows, "P & T FHB, Vol. I (General Principles and Cash)". The Administrative Tribunal accepted plea of the appellant and other candidates, and directed that minimum qualifying marks for Paper IX i.e. 33% should be awarded to them. The appellant was thus declared successful in the examination. The High Court however reversed the directions of the Tribunal. While dismissing the appeal on merits, the Apex Court held in Para-18 as under:

We may furthermore notice that the appellant herein without any demur whatsoever appeared in the subsequent examination. He even did not qualify therein. The principle of estoppel would, therefore, apply in this case. The Tribunal had, thus, exceeded its jurisdiction in passing its order dated 23-4- 2004.

In the present case also, the petitioner participated in the examination without any demur. He did not make any protest regarding allegations made in the original application/writ petition but after being unsuccessful in the written examination, he has taken a turn and has challenged the process of selection on the above grounds. We are of the considered opinion that in the facts and circumstances of the case, the petitioner was estopped from challenging the selection process on the above grounds, which appears to be a creature of after-thought after being unsuccessful in the examination in which he participated without any protest.

We do not find any merit in this petition, the writ petition is liable to be dismissed and is hereby dismissed.

There shall be no orders as to the cost.