PARVINDER SINGH vs INDUSTRY AND COMMERCE DEPARTMENT on 31 December 2024

ORDER

Per: - Rajinder Singh Dogra, Judicial Member

1. The SWP/WP(C) No. 2735/2012 was transferred from the Hon’ble High Court of Jammu and Kashmir at Jammu and was registered as T.A. No. 61/534/2022 by the Registry of this Tribunal.

2. The present matter was filed before the Hon’ble High Court with following prayer: a) Certiorari, Whereby the selection/appointment of respondent no. 8 to 12 made by order dated 10-11-2012 issued by respondent no. 4 pursuant to Govt. order no. 735-GAD of 2008 dated 30- 05-2008 read with Govt. order No. 731-GAD of 2010 dated 24-06-2010 published in Daily Excelsior newspaper on March 4, 2011, be set aside and quashed by this Hon'ble Court:

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b) With further prayer for writ of Mandamus directing respondent no. 1 to 7 to select and appoint the petitioners on class IVth Vacancies in District Poonch pursuant to Govt. order no. 735- GAD of 2008 dated 30-05-2008 read with Govt. order No. 731- GAD of 2010 dated 24-06-2010 published in Daily Excelsior newspaper on March 4, 2011. c) Prayer for grant of any other relief in shape of order or direction as may be deemed appropriate in the circumstances of the case in favour of petitioners and against the respondents.

3. The facts of the case as averred by the petitioners in their pleadings, are as follows: - a) That in pursuance to Govt. order no. 735-GAD of 2008 dated 30- 05-2008 read with Govt. order No. 731-GAD of 2010 dated 24- 06-2010, for recruitment of posts of Class-IV in pay scale of 4440-7440+1300GP in Divisional Cadre Kashmir/Jammu in Handicrafts Department, applications were invited from the permanent of resident of Jammu and Kashmir vide notification no. 1 of 2011 from the office of Chairman Divisional Level

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Committee for the Recruitment to the class-IV Posts in Handicraft Department in Divisional Carder Jammu and Kashmir vide no. DIP/J-10683 dated 3-3-2011 which was published in Daily Excelsior Newspaper on 04-03-2011. b) Being eligible and after fulfilling the requisite eligibility criteria as laid down in the aforesaid notification, the petitioners applied for the advertised posts well within the time limit. The petitioners were called for the interview which was scheduled on 13.02.2012 to 22.02.2012. The interview was conducted by 03 Members namely; Mr. Zakir Hussain (Respondent No. 5), Mr. Jagdesh lal (Respondent No.6) & Mr. V.K. Singh (Respondent No. 7). The petitioners performed well in the interview. c) Subsequently, in December, 2012, the petitioners came to know from some reliable source that the final selection list stands finalized and appointment orders of the selected candidates

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have been sent to the concerned selected candidates. On 07.12.2012, the petitioners applied for RTI under Jammu and Kashmir Right to Information Act, 2009 regarding the final selection list of the candidates selected as Class-IV employees. In response to the application of the petitioners, the required information of merit list, final selection order and appointment order of the selected candidates were conveyed vide no. DHP/717-18 dated 19.12.2012 to the petitioners. d) The information conveyed to the petitioners was not true because as per the information conveyed to the petitioners on 19.12.2012, the interview/viva-voce of the petitioners was conducted by four members detailed as: 1) Mr. Khalid Hussain,

2) Mr. Zakir Hussan, 3) Mr. Jagdesh Lal, 4) Mr. V.K. Singh. e) Whereas, the interview/viva-voce of the petitioners along with others was conducted by only three members detailed below: -

1) Mr. Zakir Hussain, 2) Mr. Jagdesh lal, & Mr. V.K. Singh. As

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per the information conveyed through RTI on 19.12.2012, the final selection list of the selected candidates was neither published in any newspaper nor by any other mode. f) Since, the petitioners had higher academic qualifications and better percentage of marks and have performed well in the viva- voce as such they are entitled to higher weightage on the basis of their performance but their merit is converted to demerit by the selection committee by allotting negligible points/ marks in the viva-voce. The petitioners are forced by the arbitral act of respondents to approach this Hon’ble Tribunal as there is no alternate or efficacious remedy available with the petitioners.

4. The respondents have filed their written statement wherein they have averred as follows: - a) The advertisement Notice No. 01 of 2011 dated 03.03.2011 for filling up vacancies of Class IV posts on divisional cadre basis was issued. However, a modification to the advertisement

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Notice was made by Director Handicrafts under No. HD/Estt/4564-55 dated 12.09.2011 where under Class IV objections were also invited in this regard from applicants. All the eligible candidates were called for the interview. It is denied that any short list of the candidates was prepared. The interview was conducted by the respective members of the committee constituted in pursuant to Govt. order No. 735-GAD of 2008 dated 30.05.2008 read with Govt. order No. 731- GAD of 2010 dated 24.06.2010. b) The interview of the petitioners was conducted by all the members’ along with Chairman of the committee. The Respondent No. 4 being Chairman of Selection Committee has conducted interview of the candidates and each member along with Chairman has prepared Award Sheet. c) The statement of petitioners that the performance of all the candidates including petitioners has been adjusted well by the

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respective selection Committee is not true. The petitioners cannot judge their performance on their own. The judging authority of their performance was District level Class-IV Recruitment Committee constituted by Government. The selection process was completed by the respective selection committee and accordingly appointment orders of eligible candidates on the basis of award sheets and their merit in prescribed academic qualification viz 10+2 were issued by Respondent No. 4 (Assistant Director Handicrafts, Poonch) being Chairman of the selection committee. d) After finalization of selection process, the appointment orders of eligible candidates as per their merit achieved in prescribed academic qualification as well as in the interview, were issued. The appointment orders were properly dispatched and sent to the concerned appointees as per due course of procedure/rules in vogue. There was no need to publish the same in print media.

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It is denied that the respondents have ever forged transparency to confer any benefits to their favorites. e) As per SRO 99 dated 07.04.2008, minimum and maximum qualification for appointment to class IV posts under direct recruitment has been prescribed Matric and 10+2 respectively, 30 points were fixed for viva-voce. The petitioners have been awarded points/marks as per their performance in interview. It is denied that the petitioners’ merit has been converted to demerit by the selection committee. f) The selection of the candidates was made by the respective members of Selection Committee in a transparent manner. There was no need of wide publicity of selection list. The petitioners have been provided with full information in response to their application under RTI Act as per mandate of law.

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5. Heard learned counsel for the parties and perused the pleadings made by them.

6. In the present case, the petitioners are aggrieved by Order dated 10.11.2012 issued by respondent no. 4 pursuant to Govt. Order No. 735-GAD of 2008 dated 30.05.2008 read with Govt. Order No. 731- GAD of 2010 dated 24.06.2010 published in Daily Excelsior newspaper on March 04, 2011 vide which, selection/appointment of private Respondents No. 8 to 10 have been made.

7. The contention of the learned counsel for the petitioners is that the selection of private respondents no. 8 to 12 is totally arbitrary, discriminatory and unreasonable which has been done purposely by the District Level -IV Recruitment Committee, Poonch in order to confer undue benefit of employment on blue eyed candidates on account of close intimacy of the selection committee with politicians of the Poonch and officials of the Handicraft Departments. The marks

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awarded to the petitioners herein in the selection process were not as per their academic and interview performance.

8. Per contra, learned counsel for the respondents argued that the selection list has been issued as per mandate of law. The Respondent No. 4, Assistant Director, Handicrafts Poonch, being Chairman of the Selection Recruitment Committee has the competence to issue the final selection list on the basis of award/marks list prepared by each member of the selection committee. Thus, the selection of the private Respondent Nos. 8 to 12 is in accordance with mandate of law. The selection list has been issued transparently after following due procedure of law. It is denied that the Selection has been made on account of either family links or political connections. Interview has been conducted by all the members of Selection Committee including its chairman and accordingly marks were awarded by all the four members of the committee in a transparent manner. The Chairman (Respondent No. 4) being custodian of whole selection process record

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and arranger of interview process could not remain absent from the interview. Therefore, marks were awarded by all the four members validly.

9. As already observed, the applications were invited from the permanent of resident of Jammu and Kashmir vide notification no. 1 of 2011 from the office of Chairman Divisional Level Committee for the Recruitment to the class-IV posts in handicraft Department in Divisional Cader Jammu and Kashmir vide no. DIP/J-10683 dated 03.03.2011 which was published in Daily Excelsior Newspaper on 04.03.2011. After fulfilling the requisite eligibilities, the petitioners applied for the advertised posts. After scrutinization of the eligibility criteria of the petitioners, then the petitioners were shortlisted for interview and the dates fixed for interview commenced from 13.02.2012 to 22.02.2012.

10. In the present case, the appellants had appeared in the selection process and after participating in the interview sought to

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challenge the selection process as being without jurisdiction. This was held to be impermissible. The petitioners participated in the process of selection knowing fully well that the interview was clearly indicated in the advertisement itself. Having unsuccessful in the process selection without any demur, they are estopped from challenging the selection criteria inter alia that the advertisement and the selection with regard to the interview was contrary to the Rules.

11. However, it needs to be clarified that the dimension or degree of illegality in the selection process is a factor while applying the principle of waiver or estoppel to non-suit unsuccessful participants from a proceeding brought to invalidate the selection process. However, it is not an absolute proposition of law that unsuccessful candidates would not in any circumstances be entitled to question the process for recruitment in which they are participated. In the present case, as already pointed out, the petitioners herein participated in the selection process without any demur; they are estopped from

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complaining that the selection process was not in accordance with the Rules. If they think that the advertisement and selection process were not in accordance with the Rules, they could have challenged the advertisement and selection process without participating in the selection process. This has not been done.

12. As has been held by the Hon’ble Supreme Court in the case of Anupal Singh v. State of U.P. (2020) 2 SCC 173,: that:- “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.

56. 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

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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 11 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.”

57. 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.”

58. 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)

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“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 hi`m, he cannot turn round and subsequently contend that the process of interview was unfair or there was some lacuna in the process.”

59. 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

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specifically that when a candidate appears in the examination without protest and 12 subsequently is found to be not successful in the examination, the question of entertaining the petition challenging such examination would not arise.”

13. Courts have consistently frowned upon tinkering with the rules of the game once the recruitment process commences. This has crystallized into an oft-quoted legal phrase that ‘the rules of the game must not be changed midway, or after the game has been played’. The ‘rules’ roughly fell into two categories — one which prescribes the eligibility criteria or the essential qualifications of the candidates seeking employment; and the other which stipulates the method and manner of making the selection from amongst the eligible candidates. The petitioners herein cannot now challenge the method and manner of making the selection after successfully participating and being disqualified in the due selection process.

14. Keeping the above facts in view, the TA lacks merit and deserves to be dismissed.

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15. Accordingly, the TA is dismissed.

16. However, there shall be no orders so as to costs.

(RAM MOHAN JOHRI) (RAJINDER SINGH DOGRA) Administrative Member

Judicial Member

/harshit /