Mashkoora Hameed vs State Of Jammu And Kashmir & Ors.

O R D E R

i)

Writ in the nature of Mandamus or any other appropriate writ declaring the impugned Office Order No.145-SSB of 2018 dated 8.3.2018 constituting the Committee for conducting Practical Test for the purposes of election and consequent appointment inter alia against the post of Jr. Craft Instructor Darning, Paper Mashie and Silverware, advertised vide Notification No. 03 of 2016 (District Cadre Budgam) ultra vires the Rule 5 of the Jammu and Kashmir Special Recruitment Rules, 2015 notified vide SRO 2 of 2015 read with Second Proviso to Rule 6 of Civil Services Decentralization and Recruitment Rules, 2010 and thus non-est in law, liable to be interdicted, be issued in favour of the petitioner and against the respondents.

ii) Writ in the nature of Certiorari or any other appropriate writ quashing the impugned office order No. 145-SSB of 2018 dated 8.3.2018 constituting the committee for conducting Practical Test for Selection and consequent appointment inter alia against the post of Jr. Craft Instructor Darning, Paper Mashie and Silverware, be also issued in favour of the petitioner and against the respondents.

iii) Writ in the nature of Mandamus or any other appropriate writ directing the respondents in particular respondents 2 to 6 to treat the impugned Constitution of the Committee for conducting Practical Test vide impugned office order No. 145-SSB of 2018 dated 8.3.2018 non-est in law, be also issued in favour of the petitioner and against the respondents.

iv) Writ in the nature of Mandamus or any other appropriate writ directing the respondents in particular respondents 2 to 6 to treat the Practical Test held and conducted by the respondent No.6 non-est in law and to desist refrain and forbear from acting or proceeding in pursuance thereto in the matter of selection for appointment against the advertised posts of Darning, Paper Mashie and Silverware in any manner prejudicial to the Constitutionally Guaranteed Rights of the petitioner, be also issued in favour of the petitioner and against the respondents.

v)

Writ in the nature of Mandamus or any other appropriate writ directing the respondents in particular respondents 2 to 6 to constitute the committee for conducting the requisite Practical Test in accord with the mandate of Rule 5 of Rules of 2015 co-opting Expert/Specialist in the respective discipline/trade namely Darning, Paper Mashies and Silverware as mandated by Second Proviso to Rule 6 of Civil Services Decentralization and Recruitment Rules, 2010 be also issued in favour of the petitioner and against the respondents.

vi) Writ in the nature of Mandamus or any other appropriate writ directing the respondents in particular respondents 2 to 6 to finalize the selection process so initiated in accord with the Selection Norm/Criteria professed giving primacy to the evaluation of comparative merit in the respective disciplines/trade of the competing candidates, made/done by the Committee constituted therefor with the aid and assistance of the Experts in the field and to supply the available vacancies of Jr. Craft Instructor in the disciplinary of Darning Paper Mashie and Silverware in accord with the merit secured by the competing eligible candidates including the petitioner for Selection and consequent appointment against the advertised post of Jr. Instructor Darning/Paper Mashie, be also issued in favour of the petitioner and against the respondents.

vii) Any other writ, Order or Direction which this Hon’ble Court deems just and proper to issue in the attendant facts and circumstances of the case, be also issued in favour of the petitioner and against the respondents.

viii) Costs of the petition be also awarded to the petitioner.”

“In the meantime, subject to objections from the other side and till the next date of hearing before the Bench, the selection against the post of Jr. Craft Instructor, Darning, Paper Mashie and Silverware, advertised vide Notification No. 03 of 2016 (district Cadre, Budgam), which is the subject matter of the instant writ petition, shall stay.”

“In terms of order passed on 25.9.2019 it was made clear that in the event petitioner or counsel will not appear in the matter, the Court shall consider the matter on merits. Court is satisfied that the order dated 10.4.2018 needs to be modified and accordingly, order dated 10.4.2018 is modified to the extent of allowing the Service Selection Board to finalize the selection process, result whereof, shall not be declared till further order.”

“12.

The appellants participated in the fresh process of selection. If the appellants were aggrieved by the decision to hold a fresh process, they did not espouse their remedy. Instead, they participated in the fresh process of selection and it was only upon being unsuccessful that they challenged the result in the writ petition. This was clearly not open to the appellants. The principle of estoppel would operate.

13.

The law on the subject has been crystalized in several decisions of this Court. In Chandra Prakash Tiwari v. Shakuntala Shukla, (2002) 6 SCC 127, this Court laid down the principle that when a candidate appears at an examination without objection and is subsequently found to be not successful, a challenge to the process is precluded. The question of entertaining a petition challenging an examination would not arise where a candidate has appeared and participated. He or she cannot subsequently turn around and contend that the process was unfair or that there was a lacuna therein, merely because the result is not palatable. In Union of India v. S. Vinodh Kumar, (2007) 8 SCC 100, this Court held that : (SCC p. 107, para 18)

18.

It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same,. (See also Munindra Kumar V. Rajiv Govil (1991) 3 SCC 368 and Reshmi Mishra v. M.P.Public Service Commission (2006) 12 SCC 724)."

14.

The same view was reiterated in Amlan Jyoti Borroah v. State of Assam (2009) 3 SCC 227 where it was held to be well settled that candidates who have taken part in a selection process knowing fully well the procedure laid down therein are not entitled to question it upon being declared to be unsuccessful.

15.

In Manish Kumar Shahi v. State of Bihar, (2010) 12 SCC 576 the principle was reiterated in the following observations: (SCC p.584 para 15)

(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 ear marked for vive 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 MadanLal v. State of J. and K, (1995) 3 SCC. 486, Marripati Nagaraja v. Government of Andhra Pradesh, (2007) 11 SCC 522, Dhananjay Malik v. State of Uttaranchal, (2008) 4 SCC 171, Amlan Jyoti Borooah V. State of Assam, (2009) 3 SCC 227 and K.A. Nagamani v. Indian Airlines, (2009) 5 SCC 515.”

16.

In Vijendra Kumar Verma v. Public Service Commission, (2011) 1 SCC 150, candidates who had participated in the selection process were aware that they weré required to possess certain specific qualifications in computer operations. The appellants had appeared in the selection process and after participating in the interview sought to challenge the selection process as being without jurisdiction, this was held to be impermissible.

17.

In Ramesh Chandra Shah v. Anil Joshi, (2013) 11 SCC 309, candidates who were competing for the post of Physiotherapist in the State of Uttrakhand participated in a written examination held in pursuance of an advertisement. This Court held that if they had cleared the test, the respondents would not have raised any objection to the selection process or to the methodology adopted. Having taken a chance of selection, it was held that the respondents were disentitled to seek relief under Article 226 and would be deemed to have waived their right to challenge the advertisement or the procedure of selection. This Court held that (SCC p.318, para 18)

"18.

It is settled law that a person who consciously takes part in the process of selection cannot, thereafter, turn around and question the method of selection and its outcome.

18.

In Chandigarh Administration v. Jasmine Kaur, (2014) 10 SCC 521, it was held that a candidate who takes a calculated risk or chance by subjecting himself or herself to the selection process cannot turn around and complain that the process of selection was unfair after knowing of his or her non-selection. In Pradeep Kumar Rai V, Dinesh Kumar Pandey, (2015) 11 SCC 493, this Court held that : (SCC p.500, para 17)

"Moreover, we would concur with the Division Bench on one more point that the appellants had participated in the process of interview and not challenged it till the results were declared. There was a gap of almost four months between the interview and declaration of result. However, the appellants did not challenge it at that time. This, it appears that only when the appellants found themselves to be unsuccessful, they challenged the interview. This cannot be allowed. The candidates cannot approbate and reprobate at the same time. Either the candidates should not have participated in the interview and challenged the procedure or they should have challenged immediately after the interviews were conducted.”