Ashok Chandra Tamta vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

Heard Mr. S.S. Yadav, learned counsel for the petitioner, Mr. C.S. Rawat, learned Additional Chief Standing Counsel for the State of Uttarakhand-

respondents 1 and 2 and Mr. B.D. Kandpal, learned Standing Counsel for the Uttarakhand Public Service Commission-third respondent and, with their

consent, the Writ Petition is disposed of at the stage of admission.

The jurisdiction of this Court, under Article 226 of the Constitution of India, has been invoked by the petitioner seeking a writ of certiorari to quash

the selection process, and the result of Music subject, dated 13.02.2020; a writ of certiorari to quash the advertisement dated 04.08.2017; a writ of

mandamus directing respondents 1 to 3 not to issue appointment and posting orders, in favour of the selected candidates, in Music subject; a writ of

mandamus directing the respondents to summon the records of Music subject along with the requisition sent by the Government; and to pass orders

that the advertisement, for the post of Assistant Professor (Music), should specify the number of posts of Assistant Professor (Vocal Music) and

Assistant Professor (Instrumental Music).

Facts, to the limited extent necessary, are that an advertisement was issued by the third respondent-Commission, on 04.08.2017, for recruitment to

the post of Assistant Professors, among others, in Music. The last date for submission of the application form was 25.08.2017. The advertisement

stipulated that, of these seven vacant posts of Assistant Professor (Music), three were reserved in favour of the Scheduled Caste category, two in

favour of the Other Backward Classes category, and two were left open for the General category. On the petitioner submitting his application, in

terms of the said advertisement, an admit card was issued to him, and he participated in the Screening Test on 05.05.2018. On his having qualified in

the Screening Test, the petitioner was called upon to appear in the Interview and, thereafter, the marks of the interview were published on 13.02.2020.

The petitioner belongs to the Scheduled Caste category and, while he secured 41 marks in the Interview, the fourth respondent, who is a Scheduled

Caste Uttarakhand Female, was selected on the ground that she had secured 41.36 which is more than the marks secured by the petitioner.

Mr. S.S. Yadav, learned counsel for the petitioner, would submit that the advertisement, issued by the third respondent-Commission, is vague and is

bereft of even the basic particulars required to determine the eligibility of the applicants; the said advertisement, whereby applications were invited for

the post of Assistant Professor (Music), does not specify whether the applications were required to be submitted for the post of Assistant Professor

(Vocal Music) or (Instrumental Music); it is because the advertisement was not specific that candidates, both in the Vocal and Instrumental stream,

had submitted their applications; failure to distinguish the posts of Assistant Professor (Music), between Vocal and Instrumental, is arbitrary and

illegal; all the seven posts, of Assistant Professor (Music), were filled up only by women candidates, and not even one male candidate was appointed

as an Assistant Professor (Music); this action of the respondents is arbitrary and illegal, and suffers from gender bias; and in the State of Uttar

Pradesh, the Uttar Pradesh Public Service Commission advertises posts of Assistant Professor (Music) separately for Vocal, Tabla, Sitar etc.

On the other hand Mr. C.S. Rawat, learned Additional Chief Standing Counsel for the State Government, and Mr. B.D. Kandpal, learned Standing

Counsel for the third respondent-Commission, would submit that the petitioner had acquiesced to the selection process; he was well aware of the

conditions stipulated in the advertisement, as also the nature of the posts for which applications were invited; even then he had submitted his

application pursuant to the advertisement; not only did he appear for the Screening Test held pursuant to the advertisement, he also appeared in the

Interview on his having qualified in the Screening Test; it is only because he was not selected, as he was lower in merit than the fourth respondent,

has he chosen to turn around and question the conditions prescribed in the advertisement; the petitioner cannot approbate and reprobate; and, on this

short ground alone, the Writ Petition is liable to be dismissed.

While the third respondent-Commission may have been well advised to specify, in the advertisement issued by them, whether applications were

being invited for the post of Assistant Professor (Vocal Music), or (Instrumental Music) or both, the fact, however, remains that the petitioner, who

has the required qualifications in Vocal Music, was permitted to participate in the selection process on his submitting his application in terms of the

advertisement. Having qualified in the Screening Test, and after having appeared in the Interview also, the petitioner cannot now turn around and

question the conditions stipulated in the advertisement merely because he was not selected to the post of Assistant Professor (Music).

Once a person takes part in the process of selection, and is not found fit for appointment, the said person is estopped from challenging the process

of selection. (D. Sarojakumari v. R. Helen Thilakom and others : (2017) 9 SCC 478). Candidates, who take part in the selection process, knowing fully

well the procedure laid down therein, are not entitled to question the same later. (Union of India and others v. S. Vinodh Kumar and others : (2007) 8

SCC 100; and K.H. Siraj v. High Court of Kerala and Ors. : (2006) 6 SCC 395.) If a candidate takes a calculated chance and appears in the

interview, then, only because the result of the interview is not palatable to him, he/she cannot turn round and, subsequently, contend that the process of

selection was unfair. (Madan Lal and others v. State of J&K and others : (1995) 3 SCC 486; and G. Sarana (Dr.) v. University of Lucknow and

others : (1976) 3 SCC 585).

After having taken part in the selection process, and having been found lower in merit, the applicant cannot, at that stage, be permitted to turn

around and claim that the procedure adopted is illegal. (D. Sarojakumari v. R. Helen Thilakom and others : (2017) 9 SCC 478 .) Having taken part in

the process of selection with full knowledge that the recruitment was being made as per the conditions of the advertisement, the applicant must be

held to have waived his/her right to question the advertisement or the methodology adopted by the Board for making selection. (Ramesh Chandra

Shah and others v. Anil Joshi and others : (2013) 11 SCC 309; and Madras Institute of Development Studies and another v. K. Sivasubramaniyan and

others : (2016) 1 SCC 454). The conduct of the petitioner, in invoking the 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, disentitles him from questioning the selection. (Manish

Kumar Shahi v. State of Bihar and others : (2010) 12 SCC 576.) The doctrine of acquiescence would, undoubtedly, apply and the petitioner would,

therefore, not be entitled to be granted any relief on this score.

The petitioner, having participated in the selection process, cannot now be permitted to question the conditions stipulated in the advertisement

merely on the ground that he was not successful in the selection process.

With regards the petitioner’s claim of gender bias, even on his own admission, the fourth respondent, a Scheduled Caste Woman, had secured

more marks than him in the Interview. There is no reservation of posts in favour of a male applicant. As the fourth respondent was found more

meritorious than the petitioner under the Scheduled Caste category, she was selected for appointment as an Assistant Professor (Music), and not the

petitioner.

We see no reason, therefore, to grant the petitioner the relief sought for. The Writ Petition fails and is, accordingly, dismissed. No costs.