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Judgment
Om Prakash VII, Member (J)
Shri Pradeep Kumar Mishra along with Shri Rajesh Kumar, learned counsel for the applicant and Shri Krishna Kumar Ojha, learned counsel for the respondents, are present and heard.
The instant original application has been filed seeking following relief:
“a) This Hon'ble Tribunal be pleased to pass an order or direction to the nature of certiorari to quash and set aside the impugned order dated 04.02.2020 (Annexure A-1) passed by the Respondent No.2.
b. This Hon'ble Tribunal be pleased to declare the formula No.2 (Total marks of Tier-II Examination) of Resolution of Tie cases as illegal and arbitrary and also directed to resolved the tie of the applicant as per marks obtained in Tire-I examination.
c. This Hon'ble Tribunal be pleased to pass an order or direction commanding the respondents to consider the applicant for appointment on the post which qualified by the applicant with all consequential benefits.
d. Issue any other and further orders or direction, which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case.
e. Award the appropriate cost in favour of the applicant.
The brief facts of the case are that the instant original applicant has been filed feeling aggrieved with the order dated 04.02.2020 whereby applicant’s prayer to select him on the basis of Tier-I examination has been refused rather result was declared on the basis of Tier-II examination.
Per contra, respondents have filed their Counter Affidavit refuting the facts disclosed in the OA and defended the order under challenge on the ground that applicant applied online application after accepting the terms and conditions of the advertisement. It is also case of the respondents that in case of tie, the result will be declared on the basis of conditions enumerated in the advertisement (para 19) itself. It is further averred that applicant has submitted online application accepting terms and conditions and appeared in the examination then subsequently he cannot challenge the same proceedings when he became unsuccessful. Thus, stand taken by the respondents is that there is no illegality or perversity in the impugned order.
A rejoinder affidavit has also been filed by the applicant reiterating the same facts as disclosed in the O.A. and refuting the facts disclosed in the counter affidavit.
We have heard the learned counsel for the parties and gone through the entire records including the written submissions filed on behalf of the parties.
Submission of learned counsel for the applicant is that applicant submitted online application against the advertisement no. F.NO.3/3/2017-P &P-I dated 18.11.2017 and he was permitted to appear in Tier-I examination and after successful in it, he was permitted to appear in Tier-II examination. After becoming successful in both Tier-I and Tier-II examination, applicant was permitted to appear in next stage but when result was declared, applicant name was not in the select list and it was informed to the applicant that marks of last selected candidate were equal to the applicant, hence result was declared on the basis of resolution of tie cases as disclosed in the advertisement itself. Since last selected candidate had secured more marks than the applicant in Tier-II examination, hence he was selected. Referring to the aforesaid facts, it was further argued that Tier-II examination was descriptive in nature and in the previous year selection, in case of tie of the marks different procedure had been adopted by the respondents but subsequently the previous model to solve the tie cases was changed arbitrarily in present selection. It is also argued that Tier-I examination is computer based test thus there is no issue of dissimilarity in marking allowed to the candidates, whereas in Tier-II examination which is based on descriptive questions there may be some discretion of the examiner in the allotting the marks. Thus, previous year resolution to solve the tie cases was better. Referring to the entire facts and circumstances of the case, learned counsel for the applicant argued that impugned order passed in the matter be set aside directing the respondents to issue offer of appointment to the applicant as applicant had secured more marks in Tier-I examination than the last selected candidate. To substantiate his argument, learned counsel for the applicant also referred to the facts disclosed in the written submission.
Learned counsel for the respondents referring to the contents of the counter affidavit argued that once the applicant has submitted his online application accepting the terms and conditions of the advertisement he cannot be permitted to agitate the same condition when he become unsuccessful. He further argued that result of last selected candidate and applicant was declared on the basis of provisions contained in the advertisement at serial no. 19 itself, hence there is no illegality or perversity in the impugned order.
We have considered the rival submissions and gone through the entire records.
In this matter, as is evident from the pleadings of the parties, applicant submitted online application against the advertisement no. F.NO.3/3/2017-P &P-I dated 18.11.2017. It will be useful to quote the resolution enumerated in the advertisement for solving the case of tie marks, which is as under:-
Resolution of Tie cases:
Tie cases will be resolved by applying one after another, as applicable till the Tie is resolved.:-
i) Total Marks in Tier-I+Tier-II
ii) Total marks of Tier-II Examination.
iii) Total marks in Tier-I Examination.
iv) Date of birth, with older candidates placed higher.
v) Alphabetical order in which first names of the candidates appear.
It further appears that when result was being prepared, marks of applicant and last selected candidate were found equal. In that case result was to be declared following the procedure prescribed in the ways given in the advertisement itself. If the pleadings of the applicant in the O.A. as well as facts submitted in the rejoinder affidavit submitted are taken into consideration, he himself has stated that selection could not be made on the basis of first stage, i.e. total marks in Tier-I and Tier-II, because on totalling the marks of both tier, marks of both the candidate are equal. To solve this problem, respondents had taken the recourse to the second provision of the para 19 of the advertisement which says that in such a situation total marks of Tier-II examination shall be taken into consideration at first. In the instant case, applicant marks was less than the last selected candidate in Tier-II examination. It also appears that on that basis, applicant was not selected rather last selected candidate was successful. Since specific mode has been provided in the advertisement itself to solve such type of situation, thus procedure adopted by the respondents in solving the tie cases cannot be termed to be illegal or perverse.
As far as, the submission of learned counsel for the applicant that respondents have arbitrarily changed the criteria for solving the tie cases in the advertisement whereas in the previous year selection the different mode had been adopted is concerned, it is pertinent to mention at this stage that when applicant had applied online after accepting the terms and conditions of the advertisement and had appeared in all the stages of examination then subsequently he cannot be permitted to challenge the said terms and conditions, particularly when he became unsuccessful. Since applicant participated in the selection proceeding, in our considered view, there is no illegality or perversity in the impugned order. Applicant participated in all the stages of examination Hon'ble Apex Court in the case of Chandra Prakash Tiwari and others Vs. Shakuntala Shukla and others reported in (2002) 6 SCC 127 has observed that "no right can be claimed when a candidate appeared in the examination without any protest." In Madan Lal and others Vs. State of J & K and others, [1995] 3 SCC 486, Hon'ble Court has held as under:-
"9 Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners 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. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves selected to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that 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 v. Akhilesh Kumar Shukla, [1986] Supp SCC 285 it has been clearly laid down by a Bench of three learned 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 petitioner.
Therefore, 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. It is also to be kept in view that in this petition we cannot sit as a court of appeal and try to reassess the relative merits of the candidates concerned who had been assessed at the oral interview nor can the petitioners successfully urge before us that they were given less marks though their performance was better. It is for the Interview Committee which amongst others consisted of a sitting High Court Judge to judge the relative merits of the candidates who were orally interviewed, in the light of the guidelines laid down by the relevant rules governing such interviews. Therefore, the assessment on merits as made by such an expert committee cannot be brought in challenge only on the ground that the assessment was not proper or justified as that would be the function of an appellate body and we are certainly not acting as a court of appeal over the assessment made by such an expert committee."
Having considered the entire facts and circumstances of the case and on the basis of observations recorded hereinabove and in view of the law laid down by Hon’ble Apex Court in the case of Chandr Prakash Tiwari (supra) as well as in Madan Lal (supra), prayer made in the instant O.A. is not liable to be allowed. O.A. lacks merit and accordingly, the O.A. is dismissed. All associated MAs stand disposed off.
No costs.