Gulzar Ahmad Dar vs State of J&K and Ors.

The case of the petitioner is that, the petitioner has got education up to graduation level ad has passed graduation with 57.6% marks and 10+2

with 73% marks. The petitioner has crossed the age limit and is at preset 38 years of age. The respondent SSRB floated an advertisement in the

year 2005 for filling up the posts of Lab. Assistant (Education ) District Pulwama and the petitioner having fully eligible filled up of his application

form for one of the posts and also faced the interview of board.That thereafter shortlist of 45 candidates was prepared, and petitioner was in said

list; petitioner was at no.8; after that interviewed was conducted and selection list was issued, but name of petitioner did not figure in the select list.

He is aggrieved of selection of respondents no. 4 and 5 who carry lesser academic merit; but the petitioner having meritorious and having faced the

interview conducted by the board successfully has not been selected rather the persons with lesser merit have been selected and the petitioner has

been dropped.

The relief sought for by the petitioner in the instant writ petition is as follows:

Certiorari be issued quashing the selection list of Lab. Assistant (Education) District Cadre Pulwama issued by the respondent SSRB dated

30.01.2008 so far the same pertains to the selection of private respondents i.e respondent no. 4 & 5.

Mandaums, respondents be commanded to appoint the petitioner as Lab. Assistant (Education) District Pulwama.

I have considered the contents of petition .Respondents have not filed objections; but counsel has argued that once petitioner has appeared in

selection process and remained unsuccessful, then later on he cannot challenge the process of selection. I have given my thoughtful consideration to

whole aspects of matter.

In 2017 (9) SCCC 478 in case titled D. Saroja kumari v R.Helen Thilakom,it is held as under:-

The main ground urged on behalf of the appellant is that Respondent No.1 having taken part in the selection process could not be permitted to

challenge the same after she was unsuccessful in getting selected. The law is well settled that 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.

In Dr. G. Sarna vs. University of Lucknow & Ors.,1 the petitioner after appearing in the interview for the post of Professor and having not been

selected pleaded that the experts were biased. This Court did not permit the petitioner to raise this issue and held as follows :-

15.We do not, however, consider it necessary in the present case to get into the question of the reasonableness of bias or real likelihood of bias

as despite the fact that the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise

even his little finger against the constitution of the Selection (1976) 3 SCC 585 Committee. 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 Madan Lal & Ors. vs. State of J&K & Ors. 2, the petitioner laid challenge to the manner and method of conducting viva-voce test after they

had appeared in the same and were unsuccessful. This Court held as follows :-

9....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 Selection Committee was not properly

constituted...

In Manish Kumar Shahi vs. State of Bihar,3, this Court held as follows :-

23...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 (1995) 3 SCC 486 (2010)

12 SCC 576 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.

In the case of Ramesh Chandra Shah and others vs. Anil Joshi and others 4 the petitioners took part in the process of selection made under the

general Rules. Having appeared in the interview and not being successful they challenged the method of recruitment itself. They were not permitted

to raise such an objection. This Court held as follows :-

In view of the propositions laid down in the above noted judgments, it must be held that by having taken part in the process of selection with

full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement

or methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed

grave error by entertaining the grievance made by the respondents.

Same view has been taken in Madras Institute of Development Studies and Another vs. Dr. K. Sivasubramaniyan and others 5. (2013) 11 SCC

309 (2016) 1 SCC 454

The Kerala High Court did not note the above mentioned judgments and ignored the well settled position of law in rejecting the specific plea

raised by the appellant herein that the appellant could not raise the issue that no direct recruitment should have been conducted once she had

applied for and taken part in the selection process by direct recruitment.

As far as the present case is concerned an advertisement was issued by Respondent No.6 inviting applications for the post of Music Teacher

in Samuel LMS High School. Respondent No.1 did not raise any objection at that stage that the post could not be filled in by direct recruitment

and she should be considered for promotion. Not only that, she in fact, applied for the post and took part in the selection process. After having

taken part in the selection process and being found lower in merit to the appellant, she cannot at this stage be permitted to turn around and claim

that the post could not be filled in by direct recruitment. The reasoning of the learned Single Judge in rejecting the objection is not in consonance

with the law laid down by this Court. In view of this we need not go into the other issues raised.

We, therefore, allow these appeals and set aside order dated 25.07.2003 of the learned Single Judge and dismiss the writ petition

O.P.No.36563 of 2002 as being not maintainable.

In present case also petitioner has participated in selection process and after his name did not appear in final selection list, he has challenged the

process for selection on various grounds. Further except bald aversion that, he is more meritorious than private respondents, there is nothing on

record from which it can be inferred that, petitioner is more meritorious than private respondents, who were selected. Therefore I do not find any

ground to accept the writ petition, it is therefore dismissed.