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Judgment
V.M. Sahai, J.—We have heard Mr. P.S. Champaneri, learned Counsel, assisted by Mr. Ravi Karnavat, learned Counsel, for the Petitioners and Miss Megha Jani, learned Counsel for Respondent No. 1 and Mr. J.J. Yajnik, appearing for the Respondent Nos. 2 to 8.
This petition has been filed by the Petitioners, challenging the order dated 22.04.2010, passed in Original Application No. 389 of 2009, by the Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad.
Paragraph No. 205 of the Indian Railway Establishment Manual, 1968 edition and paragraph No. 204 of the Indian Railway Establishment Manual, 1989, are almost the same. However, a correction slip No. 181, issued by the Petitioner, correcting paragraph No. 204.1 of the Indian Railway Establishment Manual,1989. Earlier it was necessary for the candidates to obtain minimum 15 marks each in Viva-voce test and in service record out of maximum 25 marks for each. Now it is modified that the candidate has to obtain minimum 30 qualifying marks out of 50 under both the heads, but obtaining of 15 marks in the service record is necessary.
3.1. If there is a condition for obtaining minimum 15 marks in the service record and if a candidate got 15 marks in service record, then he is required to obtain 15 marks in the Viva-Voce test for being selected. This is again the same thing which was not accepted by the Apex Court in the K. Prabhakara Rao v. Union of India and others 2002 S.C. 205 paragraph No. 2 is extracted below:
The Sole question that arises for consideration is whether the fixation of the minimum percentage of marks in the Viva-voce test as per paragraph 205 of the Indian Railway Establishment Manual can be held to be in accordance with law or not. So far as this question is concerned, the two judgments of the Ernakulam Bench of the Tribunal have been upheld by this Court by dismissing the SLP filed by the union of India. The Appellant being similarly situated as the applicant in O.A. 149 / 1992 and O.A. 837 / 1991, and in fact, in the merit list having occupied higher position than them it would not be reasonable to deny the relief to him, which has been given to the applicant in O.A. 149 / 1992 and O.A. 837 / 1991. In that view of the matter, we set aside the impugned order of the Tribunal at Madras and direct that the case of the Appellant be considered, as if there is no qualifying marks in the viva-voce test, as indicated in paragraph 205 of the Indian Railway Establishment Manual, Chapter 2. The decision of the Railway Administration be communicated to the Appellant at an earlier date.
3.2. Therefore, the decision of the Apex Court in K Prabhakara Rao''s case rendered by three(3) Judges Division Bench squarely applies to the facts of the present case. In the instant case, the entire selection procedure was illegal and in violation of the decision of the Apex Court.
Learned Counsel for the Petitioners has relied on the decision of the Hon''ble Supreme Court in the case ofVijendra Kumar Verma v. Public Service Commission, Uttrakhand and Ors., reported in (2011) 1 SCC. Paragraph Nos. 24 to 28 of the said decision reads as under:
When the list of successful candidates in the written examination was published in such notification itself, it was also made clear that the knowledge of the candidates with regard to basic knowledge of computer operation would be tested at the time of interview for which knowledge of Microsoft Operating System and Microsoft Office operation would be essential. In the call letter also which was sent to the Appellant at the time of calling him for interview, the aforesaid criteria was reiterated and spelt out. Therefore, no minimum benchmark or a new procedure was ever introduced during the midstream of the selection process. All the candidates knew the requirements of the selection process and were also fully aware that they must possess the basic knowledge of computer operation meaning thereby Microsoft Operating System and Microsoft Office Operation. Knowing the said criteria, the Appellant also appeared in the interview, faced the questions from the expert of computer application and has taken a chance and opportunity therein without any protest at any stage and now cannot turn back to state that the aforesaid procedure adopted was wrong and without jurisdiction.
In this connection, we may refer to the decision of the Supreme Court in G. Saran (Dr.) V. University of Lukhnow wherein also a similar stand was taken by a candidate and in that context the Supreme Court had declared that the candidate who participated in the selection process cannot challenge the validity of the said selection process after appearing in the said selection process and taking opportunity of being selected. Para 15 inter alias reads thus: (SCC p.591)
15..... 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.
In P.S. Gopinathan v. State of Kerala this Court relying on the above principle held thus:(SCC p.84, para 44)
44..... Apart from the fact that the Appellant accepted his posting orders without any demur in that capacity, his subsequent order of appointment dated 15.7.1992 issued by the Governor had not been challenged by the Appellant. Once he chose to join the mainstream on the basis of option given to him, he cannot turn back and challenge the conditions. He could have opted not to join at all but he did not do so. Now it does not lie in his mouth to clamour regarding the cut-off date or for that matter any other condition. The High Court, therefore, in our opinion, rightly held that the Appellant is estopped and precluded from questioning the said order dated 14.1.1992. The application of principles of estoppel, waiver and acquiescence has been considered by us in many cases, one of them being G. Sarana (Dr.) v. University of Lukhnow....
In Union of India V. S. Vinodh Kumar in SCC at para 18 it was held that: (SCC p.107)
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.
Besides, in K.H. Siraj V. High Court of Kerala in SCC paras 72 and 74 it was held that the candidates who participated in the interview with knowledge that for selection they had to secure prescribed minimum marks on being unsuccessful in interview could not turn around and challenge that the said provision of minimum marks was improper, said challenge is liable to be dismissed on the ground of estoppel.
We have carefully gone through this decision. We are of the opinion that the facts of this case are not applicable to the facts of the instant case.
We do not find any merit in this petition. The petition fails and accordingly dismissed. Rule is discharged with no order as to costs.