AI Structured Summary
Not yet generated for this judgment
Judgment
Sudhi Ranjan Mishra, Member J
The applicants aggrieved by the action of the respondents in selecting and appointing candidates who are either not qualified or under qualified, ignoring the case of the applicant has filed this OA praying for following reliefs:
a) To direct the respondents to consider the applicant for appointment against one post of MTA available under Resp. No. 3.
b) To quash the selection of the last candidates in the general category and direct the respondents to consider the applicant for such post of MTA.
The brief facts of the case as inter alia averred in the OA is that the respondent no. 3 had called for applications from eligible candidates for six posts of Multi Tax Attendant (MTA) in the offices of EPF Organization in the Orissa Region vide advertisement dated 25.09.2006 (A/1) and the applicant submitted his application within the stipulated time. It is submitted that vide letter dated 14.12.2007 (A/6) the applicant was called for interview. It is submitted that in the said interview held on 23.01.2008 no questions were asked to him and only his educational and caste certificates were verified. It is submitted that no principle was followed to determine the inter se merit positions of the candidates. It is submitted that after the aforesaid interview the applicant enquired about the result but he was asked to wait by the respondents. It is submitted that in May 2008 he came to know that Respondent No. 3 has given appointment to some persons as MTA and the number of such appointees were in excess of six posts and he also learnt that appointments have been illegally given for extraneous considerations and not a single vacancy has been filled up by Scheduled Caste which is in violation of the reservation rules. It is submitted that applicant had sought information vide RTI application dated 19.05.2008 (A/7) and vide letter dated 08.08.2008 (A/10) Respondent No. 3 furnished part of information and sent a list of 11 candidates selected for the post of MTA. It is submitted that since no further information was available he again applied through RTI and vide letter dated 28.01.2009 (A/12 series) the copies of the applications of the eleven candidates who had been selected was furnished. It is submitted that from the said information it is clear that not a single post of MTA has been filled up by SC candidates although under the principle of reservation at least two vacancies should have been filled up by appointing candidates from the SC category to which the applicant belongs. It is submitted that maximum age limits for selection for the post of MTA was relaxed beyond permissible limit for Sri Anil Kumar Shah, Sri Mansing Tudu and Sri Newton Behera. It is also submitted that out of eleven candidates eight candidates had qualification of matriculation or less and three candidates had qualification of more than matriculation. It is also submitted that the selecting authorities after examining the documents had found only two of them possessed the working experience. It is submitted that since the candidates much less deserving than the applicant have been selected and appointed as MTAs and since two posts are lying vacant, the respondents be directed to consider the applicant for appointment against one post of MTA.
The respondents in their counter inter alia averred that the applicant had not exhausted the departmental remedies and rushed to this Tribunal, therefore the OA is not maintainable. It is submitted that the advertisement for recruitment for the post of MTA was published in local dailies as well as weekly edition of Employment News having all India circulation, therefore the claim of the applicant that the recruitment was only for local candidates is misplaced. It is further submitted that all candidates including the applicant were called for interview and an interview-cum-selection board under the Chairmanship of RPFC – I in which RPFC – II and one outside member i.e. Asst. Director in charge, Vocational Rehabilitation Centre and the candidates who were found suitable by the committee were given appointment. It is submitted that the result of the recruitment was declared within four month from the date of interview, so there is neither question of foul play in the examination nor delay in publication of merit list. It is submitted that classification of posts in the advertisement it was clearly stipulated that out of 6 posts, 3 for general, 2 for OBC and 1 for ex servicemen. Although advertisement was initially made for 6 post but due to promotion of 5 nos of MTA to the post of LDC, the vacancies were increased and the same was also mentioned in the advertisement. It is submitted that since the share of SC/ST candidates in the cadre of MTA was already filled up, therefore the bifurcation for 11 posts were General – 5, SC– Nil, ST Nil, OBC 5 and ex servicemen – 1. It is further submitted that as regards to Shri Shah, he belongs to ST category, hence age relaxation was given to him As regards to Shri Newton Behera, he being physically handicapped person having OBC category, age relaxation permissible was given. As regards to Sri Mansing Tudu he being ex servicemen age relaxation as per Rules of Govt. of India was extended to him. There was no violation of guidelines/schemes/rules. It is also submitted that the applicant has secured 75th position in the combined merit list, therefore there is no question of his case being considered. Therefore they prayed for dismissal of the OA.
Learned counsel for the applicant relied on few decision including the following:
(a) Hon’ble Apex Court in the case of Ashok Kumar and ors vrs State of Bihar and Ors. (MANU/SC/1353/2016)
Heard both sides, perused the records and citations relied by both sides.
Law is well settled that once a candidate has participated in the selection process he is estopped to challenge the same after being unsuccessful. Hon’ble Apex Court in the case of Anupal Singh vrs State of UP (2020) 2 SCC 173 had held:
“55. Having participated in the interview, the private respondents cannot challenge the Office Memorandum dated 12-10-2014 and the selection. On behalf of the appellants, it was contended that after the revised Notification dated 12-10-2014, the private respondents participated in the interview without protest and only after the result was announced and finding that they were not selected, the private respondents chose to challenge the revised Notification dated 12-10- 2014 and the private respondents are estopped from challenging the selection process. It is a settled law that a person having consciously participated in the interview cannot turn around and challenge the selection process.
Observing 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 : 1995 SCC (L&S) 712], it was held as under : (SCC p. 493, para 9)
“9. … 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 K.H. Siraj v. High Court of Kerala [(2006) 6 SCC 395 : 2006 SCC (L&S) 1345], it was held as under : (SCC p. 426, para 73)
“73. The appellant-petitioners having participated in the interview in this background, it is not open to the appellant-petitioners to turn round thereafter when they failed at the interview and contend that the provision of a minimum mark for the interview was not proper.”
In Union of India v. S. Vinodh Kumar [(2007) 8 SCC 100 : (2007) 2 SCC (L&S) 792], it was held as under : (SCC p. 107, para 19)
“19. In Chandra Prakash Tiwari v. Shakuntala Shukla [(2002) 6 SCC 127 : 2002 SCC (L&S) 830] …. xxx xxx xxx It was further observed : (SCC p. 149, para 34)
‘34. There is thus no doubt that while question of any estoppel by conduct would not arise in the contextual facts but the law seem to be well settled that in the event a candidate appears at the interview and participates therein, 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 there was some lacuna in the process.”
Same principle was reiterated in Sadananda Halo v. Momtaz Ali Sheikh [(2008) 4 SCC 619 : (2008) 2 SCC (L&S) 9] wherein, it was held as under : (SCC pp. 645-46, para 59)
“59. It is also a settled position that the unsuccessful candidates cannot turn back and assail the selection process. There are of course the exceptions carved out by this Court to this general rule. This position was reiterated by this Court in its latest judgment in Union of India v. S. Vinodh Kumar [(2007) 8 SCC 100 : (2007) 2 SCC (L&S) 792] …. The Court also referred to the judgment in Om Prakash Shukla v. Akhilesh Kumar Shukla [1986 Supp SCC 285 : 1986 SCC (L&S) 644], where it has been held specifically that when a candidate appears in the examination without protest and subsequently is found to be not successful in the examination, the question of entertaining the petition challenging such examination would not arise.”
Hon’ble Apex Court in the case of Karunesh Kumar (supra) taking into account the decision in K. Manjusree (supra) had observed
“the principle governing changing the rules of game would not have any application when the change is with respect to selection process but not the qualification or eligibility. In other words, after the advertisement is made followed by an application by a candidate with further progress, a rule cannot be brought in, disqualifying him to participate in the selection process. It is only in such cases, the principle aforesaid will have an application or else it will hamper the power of the employer to recruit a person”.
It is seen from the combined tabulation sheet with marks of the recruitment to the post of MTA in the respondent department, that the applicant had secured 75 position. The applicant after being unsuccessful in the merit list has approached this Tribunal challenging the same, which he is estopped as per law. Further as regards to contention of the applicant that the advertisement being published in local dailies, the outside candidates could not appear is not acceptable. The recruitment is for Govt. of India organization and every citizen of this country has the right to apply for the same. It is also seen that the said advertisement was published in the employment news too and in pursuance to the said candidates had applied.
Now coming to the second stand of the applicant, the advertisement clearly specified that the vacancies may increase or decrease. Since due to promotion of 5 nos of MTA to the post of LDC, the vacancies were increased. We do not find any illegality on the part of the respondents in doing so. Now as regards to reservation of posts for SC/ST candidates since as per reservation roster of the respondents department, the posts belonging to SC/ST candidates had already been filled up, no posts were reserved for them in the advertisement. The stand taken by the applicant regarding the malafide intent of giving age relaxation to three candidates is also not acceptable in view of the submission made by the respondents that the age relaxation was given as per respective category of candidates.
Therefore, in view of the discussion made above, the applicant after being unsuccessful in the examination cannot challenge the same. Hence we do not find any illegality on the part of the respondents which warrants interference by this Tribunal.
Accordingly the OA is dismissed being devoid of merit. No costs.