Dr. Jiya Hilal vs State Of JK And Others

Khajuria Kazmi, J

In the instant petition, the petitioner, is seeking a direction in the form of Writ of Certiorari for quashing the impugned provisional selection list of BUMS doctors issued by respondent no.5, published in Greater Kashmir in its issue dated 06.12.2013, insofar as it pertains to private respondent Nos. 6 and 7, and has further sought a direction upon respondents to appoint the petitioner against the advertised post of Medical Officer Female (Homeopathy), in terms of advertisement notice dated 22.10.2013. Petitioner is also seeking direction upon respondents to disclose as to who assessed the merit of the petitioner as an expert in the homoeopathy subject.

BRIEF FACTS OF THE CASE

The petitioner has qualified her Bachelor of Homeopathic, Medicine and Surgery course from Kalyan, Homeopathic, Medical College and Hospital in the year 2005. Thereafter petitioner had undergone Internship Course at Lord Mahavir Homeopathic Medical College and Hospital Ludhiana in the year 2007. The petitioner has obtained more than 61% marks.

It is stated that the District Commissioner Shopian issued an advertisement notice for hiring of staff on mobile health team on contractual basis in Rashtriya Balawasthya, Karya Karam (RBSK) programme under National Rural Health Mission, Shopian. Eight posts were put to advertisement for two blocks in District Shopian i.e., 04 male doctors and 04 female doctors were to be appointed from Keller and Sophian blocks against the post of Medical Officer - Male/Medical Officer - Female. The petitioner states that she being eligible in Homeopathic Medicine also applied against one of the advertised post in Shopian block.

It is stated that the interviews were conducted by District Rural Health Society on 11.11.2013 in the Office of Deputy Commissioner, Shopian, and only three members i.e., District Development Commissioner, Shopian, CMO, Shopian, and ADMO Shopian were in the Selection Committee. The petitioner was asked some questions not related to the particular subject. The petitioner replied all the irrelevant questions and was sure of her selection against the post of Medical Officer. The tentative selection list was issued by CMO Shopian, Vice-Chairman, DRHS (respondent No. 5) and the same was published in the daily Rising Kashmir in its issue dated 29.11.2013, wherein the name of the petitioner was not figuring and private respondents were shown to have been selected though having inferior merit than the petitioner.

Petitioner states that she was shocked to see her exclusion from the selection list, as such, approached the respondents and filed an application, under RTI Act, to seek information regarding expert in Homoeopathy subject, marks obtained for experience and also for the copy of the merit list. Petitioner also filed objections to the said tentative selection list but same were not taken into consideration by the respondents.

5.1 The petitioner approached this Court by way of filing writ petition bearing SWP No. 2397/ 13 which came to be disposed of by this Court vide order dated 6.12.2013, with the observation that the objections pending before the Selection Committee be considered. It is stated that the objections filed by the petitioner against the tentative selection list were not considered and provisional selection list was issued whereby private respondent Nos. 06 and 07 were provisionally selected and were directed to submit their joining report before Chief Medical Officer, Shopian, on 06.12.2013.

Petitioner is aggrieved of the provisional selection list dated 06.12.2013 on the ground that the petitioner being most meritorious candidate having more than 61% marks in her Bachelor of Homeopathic Medicine and Surgery in comparison to selected candidates who have 61% and 57% marks in BUMS respectively. Petitioner is also aggrieved about the non-inclusion of the subject expert in the selection panel to assess the merit and ability of the petitioner during the interview. Moreover, no criteria was published by the respondents before interviews were conducted and no criteria was notified in the print media. It is stated that the respondents cannot be allowed to adopt the criteria of their own to the detriment and at the cost of the petitioner who has better merit than that of the private respondents.

Respondents in the reply have stated that in terms of the advertisement notice dated 20.10.2013, 08 candidates from Block Shopian had applied for two posts of Medical Officer AYUSH/Female for Block Shopian, including the petitioner and after following due procedure, interview notice bearing No. CMO/Spn/NRHM/13/1859-63 dated 07.11.2013 was issued by respondent No. 5 for conduct of interview of Medical Officers (AYUSH-Male/Female) of all the eligible candidates on 11.11.2013. On the date of interview, eight candidates along with female candidates, including the petitioner, of Block Shopian, had appeared in the interview which was held in the office chamber of District Development Commissioner, Shopian, and the interview was conducted in accordance with guidelines of the Scheme and the conditions stipulated in the advertisement notice. It is stated that on the basis of overall merit in the professional degree and marks obtained in the viva-voce, the Selection Committee recommended eight candidates with highest points and, accordingly, tentative selection list of Medical Officers was issued by respondent No. 04 on 28.11.2013. The respondent No. 05 on the same day i.e., 28.11.2013, invited objections from the aggrieved candidates within five days from the date of issuance of tentative selection list. Accordingly, after considering the objections filed by aggrieved candidates, which did not carry any weight the provisional selection list was issued on 03.12.2013, followed by provisional engagement orders in favour of the selected candidates vide No. CMO-SPn/NRHM/13/2110-16 dated 04.12.2013. It is further stated that petitioner though is the only candidate having Bachelors of Homeopathic Medicine and Surgery Degree, but the same does not mean that she has a superior claim for the post of Medical Officer. There were also other candidates who had higher academic merit, but they could not perform well in the interview owing to which they did not find their place in the selection list.

Heard learned counsels for the parties and perused the record.

The petitioner herein, has challenged the provisional selection list issued vide No. 1531-35/DDCS/NRHM(RBSK)13 dated- 3 12. 2018, on the ground that the objections filed by the petitioner were not considered by the competent authority whereas in the provisional select list, it is clearly reflected that two complainants have alleged that the selected candidates are having less merit and one complainant has objected that one selected candidate, Masrat Jan is not hailing from District Shopian, the objections were examined, and it was found that the selectees are having higher merit in Academics and interview, as such, the selection list was deemed to be as final and the Selectees were directed to submit their joining report before Chief Medical Officer, Shopian.

Petitioner has raised another ground for setting aside of the provisional list issued by the respondents that there was no expert in the relevant subject (Homeopathy) to assess the merit and ability of the petitioner during the interview, as such, in absence of any expert in the relevant subject the interview was just a formality and an eye wash to exclude the petitioner from the consideration zone. It is stated by the respondents in their reply that interview notice was issued by the respondent No. 05 on 7.11.2013 and all eligible candidates including the petitioner were interviewed on 11.11.2013 which was held in the office chamber of District Commissioner, Shopian comprising of Deputy Commissioner as Chairman, Chief Medical Officer, Member Secretary and ADMO/Representative from Directorate of ISM (AYUSH) and District Health Officer, Shopian as Ex. officio Member. It is also stated in the petition that one of the member of the selection committee was related to some candidate but petitioner has not stated who is the candidate and the member has also not been impleaded as party respondents to the writ petition. Moreover, no allegation of malafides have been alleged against the said member. The vague and bald allegations without any substance can’t be taken into account by this Court.

The petitioner was fully aware on 11.11.2013 with respect to the absence of the expert in the panel of the selection committee who had to interview petitioner and all other eligible candidates, but the petitioner did not raise any objection and participated in the interview process and after failing in the interview, the petitioner has turned around and has challenged the selection process on the ground that there was no expert in the subject of homeopathy. The law on the point is no more res integra and the Hon’ble Supreme Court in its various pronouncements has held that once a candidate accepts the selection criteria and appears in the selection process, he cannot question the same after having failed to make the grade. The Hon’ble Apex Court in case titled The State of Uttar Pradesh v. Karnunesh Kumar & Ors reported as 2022 SCC Online SC 1706 has held that the result of the interview cannot be challenged by a candidate who has participated in the interview and has taken the chance to get selected at the said interview and ultimately, finds himself to be unsuccessful. In Madan Lal v. State of J&K, 1995 3 SCC 486, Hon’ble Apex Court has laid down the same principle. It would be profitable to reproduce the paragraph 9 of the said judgment here under:

“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 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 its recent verdict, the Hon’ble Apex Court in case titled Tajvir Singh Sodhi & Others v. State of Jammu and Kashmir and Others, 2023 SCC Online SC 344, has again reiterated the same principle. It would be appropriate to reproduce paragraph Nos. 69, 70 of the said judgment herein:

It is therefore trite that candidates, having taken part in the selection process without any demur or protest, cannot challenge the same after having been declared unsuccessful. The candidates cannot approbate and reprobate at the same time. In other words, simply because the result of the selection process is not palatable to a candidate, he cannot allege that the process of interview was unfair or that there was some lacuna in the process. Therefore, we find that the writ petitioners in these cases, could not have questioned before a Court of law, the rationale behind recasting the selection criteria, as they willingly took part in the selection process even after the criteria had been so recast. Their candidature was not withdrawn in light of the amended criteria. A challenge was thrown against the same only after they had been declared unsuccessful in the selection process, at which stage, the challenge ought not to have been entertained in light of the principle of waiver and acquiescence.

This Court in Sadananda Halo has noted that the only exception to the rule of waiver is the existence of mala fides on the part of the Selection Board. In the present case, we are unable to find any mala fide or arbitrariness in the selection process and therefore the said exception cannot be invoked.

Furthermore, the Hon’ble Supreme Court in yet another case titled as Union of India v. N Murugesan (2022) 2 SCC 25 has deprecated the practice of aprobation and reprobation. Paragraph No. 26 of the said judgment being relevant is taken note of here as under:

It is evident that the doctrine of election is based on the rule of estoppel, the principle that one cannot approbate and reprobate is inherent in it. The doctrine of estoppel by election is one among the species of estoppel in pais (or equitable estoppel), which is a rule of equity. By this law, a person may be precluded, by way of his actions, or conduct, or silence when he has to speak, from asserting a right which he would have otherwise had.”

Another contention raised by the petitioner is that she being the most meritorious candidate having higher academic merit has been left out whereas the private respondents who are less meritorious have been selected.

From the perusal of the record, produced by the respondents, it transpires that the petitioner has been awarded 57.734 points out of 100. On the other hand, the respondent No. 6 has secured 67.376 points, while as respondent No. 07 has secured 64.205 points out of 100 . Therefore, the respondent No. 06, undoubtedly, has not only the better academic merit, but has better overall weightage than the petitioner.

In a decision rendered by the Hon’ble Supreme Court in case Tajvir Singh Sodhi & Others v. State of Jammu and Kashmir and Others, 2023 SCC Online SC 344, in para Nos. 87, 88 has held as under:

The court in Lila Dhar vs. State of Rajasthan 1981 4 SCC 159, AIR 1981 SC 1777 made the following pertinent observations as to the importance of a viva-voce or interview in selection process.

“It is now well-recognized that while a written examination assesss a candidate’s knowledge and intellectual ability, an interview test is valuable to assesses a candidate’s overall intellectual and personal qualities. While a written examination has certain distinct advantage over the interview test there are no yet written tests which can evaluate a candidate’s initiative, alertness, resourcefulness, dependableness, cooperativeness, judgment, ability to make decision, ability to lead, intellectual and moral integrity. Some of these abilities may be evaluated, perhaps with some degree of error, by interview test, much depending on constitution of the interview Board.”

The criteria for evaluation of a candidate’s interview may be diverse and some of it may be subjective. However, having submitted to the interview process with no demur or protest, the same cannot be challenged subsequently simply because the candidate’s personal evaluation of his performance was higher than the marks awarded by the panel.

Perusal of the record further reflects that the petitioner has challenged provisional select list dated 3.12.2013 but has failed to challenge the engagement orders issued pursuant to the provisional select list of Medical Officers by Chairman, District Rural Health Society issued vide No. CMO-SPn/NRHM/2110-16 dated 04.12.2013.

Having regard to what has been said hereinbefore, none of the grounds/contentions raised by the petitioner are held to be sustainable. The petitioner has miserably failed to establish her claim to be selected and subsequently engaged against the post of Medical Officer. Respondents who are fully eligible have been fairly selected and are continuously discharging their duties since 2013 till date.

CONCLUSION

In view of the above discussion, the petition has no merit and is dismissed.

Record be returned to Ms. Asifa Padroo, learned AAG, against receipt.