Pardeep Kumar Sharma vs State & Ors

Petitioner applied for the post of Painter State Cadre pursuant to Advertisement Notice No.06 of 2005 dated 21.11.2005 and he was shortlisted for the said post vide notification No.SSB/Div/J/2006/8061-71 dated 19.08.2006, and thus subsequently appeared before the Selection committee for interview on 30.08.2006. Provisional select list of the candidates for the post of Painter State Cadre published in „Kashmir Times‟ newspaper dated 11.02.2007 and as per the select list, respondent No.4 was selected for the post of Painter in the Open Merit Category. Petitioner is aggrieved of the selection of respondent No.4 and his non-selection.

It is submitted that selection of respondent No.4 to the post of Painter is bad since the respondent was never shortlisted for the post, as such, he could not be selected. Petitioner further submits that he is post graduate and possesses National Trade Certificate of painting, as such, more qualified than respondent No.4, who only possesses the qualification of BA and being more meritorious and having faired well in the interview should have been selected. Petitioner is also aggrieved of the criteria adopted by the respondents/Board for the post of Painter as according to him in the said criteria, no weight-age has been given either to higher qualification of post graduation, i.e., M.A. or to the technical qualification.

Respondents/Board have filed their objections and have submitted that only one post of Painter State Cadre in Open Merit was advertised pursuant to Advertisement Notice No.06 of 2005 dated 21.11.2005. In terms of the Advertisement notice, five candidates were shortlisted for the interview of one post of Painter, in the ratio of 1:5, three candidates were from Jammu Division and two were from Kashmir Division. The interview for the candidates belonging to Jammu Division was held on 30.08.2006 and interview for the candidates belonging to Kashmir Division on 11.09.2006.

Respondents submit that since the post of Painter is a State Cadre post, as such, short listing was done at State level and for the convenience of the candidates, the interview of the candidates belonging to Jammu Division were held at Jammu and those belonging to Kashmir Division were held at Srinagar. Petitioner, therefore, has relied only on the notification for candidates belonging to Jammu vide which they were called for interview on 30.08.2006. Respondent further stated that for selection to the post of Painter, the following criteria was adopted:-

i.

Weight-age to matriculate

35 pts

ii.

Weight-age to ITI training Certificate

35 pts.

iii.

Addl. points for addl. Qualification i.e. 10+2

05 pts

iv.

Addl. Points for Graduation

05 pts.

v.

Viva Voce

20 pts

Total

100 pts.

In terms of the criteria, adequate weight-age for basic educational qualification was prescribed and separate weightage was provided for the higher qualification and only 20 marks have been earmarked for viva voce. It is further submitted that the competent authority had adopted criteria for selection which is neither arbitrary nor unjust. Petitioner having participated in the selection and having taken chance in the selection cannot turn around and challenge the selection after he has failed to make the grade. Respondents have also produced the selection record. As per the selection record, the petitioner has secured the total 59.83 points whereas respondent No.4 has secured 65.34 points. Thus, respondent No.4 being more meritorious was selected and recommended for the post of Painter in State Cadre.

Heard and considered the submissions made by learned counsel for the parties and the averments of the petition and perused the record of selection. It is apparent that Service Selection Board had shortlisted five candidates for the post of Painter and conducted the interview of all five candidates, including that of the petitioner. Since respondent No.4 secured more marks i.e., 59.83 was more meritorious of all the candidates, as such, he was selected for the said post. Petitioner having, thus, appeared in the interview and taken a chance in process of selection cannot turn around and challenge the same when the result of the same was unpalatable to him and has waived his right to question the same on the method of selection.

In Ramesh Chandra Shah & ors. versus Anil Joshi & ors., 2013 (11) SCC 309, the Apex Court has held as 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 Paragraph 24 of the said judgment, it has been further held as under:-

"24. 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 the 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."

Similarly in Madras Institute of Development Studies & ors. versus K. Sivasubramaniyan & ors., 2016 (1) SCC 454, it was held in paragraph Nos.19 & 24 that:-

In Dr. G. Sarana vs. University of Lucknow & Ors., (1976) 3 SCC 585, a similar question came for consideration before a three Judges Bench of this Court where the fact was that the petitioner had applied to the post of Professor of Athropology in the University of Lucknow. After having appeared before the Selection Committee but on his failure to get appointed, the petitioner rushed to the High Court pleading bias against him of the three experts in the Selection Committee consisting of five members. He also alleged doubt in the constitution of the Committee. Rejecting the contention, the Court held:-

"15. We do not, however, consider it necessary in the present case to go 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 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. This view gains strength from a decision of this Court in Manak Lal's case where in more or less similar circumstances, it was held that the failure of the appellant to take the identical plea at the earlier stage of the proceedings created an effective bar of waiver against him. The following observations made therein are worth quoting:

"It seems clear that the appellant wanted to take a chance to secure a favourable report from the tribunal which was constituted and when he found that he was confronted with an unfavourable report, he adopted the device of raising the present technical point."

In the case of Ramesh Chandra Shah and others vs. Anil Joshi and others, (2013) 11 SCC 309, recently a Bench of this Court following the earlier decisions held as under:-

"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 the 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."

For the reasons stated above and in view of the fact that respondent No.4 has been selected as he was more meritorious, there is no merit in the present writ petition and the same is, accordingly, dismissed alongwith connected IAs.

Record to be returned back to learned counsel appearing on behalf of the Board.