J PATTABIRAMAN Vs. K MURUGAVEL

JUDGEMENT

(1.) THIS judgment shall dispose of W.P. No. 16872 of 1998 filed by one J. Pattabiraman and W.P. No. 1093 of 1999 filed by the Union of Territory of Pondicherry since both the writ petitions are directed against the judgment passed by the Central Administrative Tribunal dated 24-9-1998.

(2.) BY the instant impugned judgment, the Tribunal has allowed the original application filed by one Murugavel, son of Krishnan and has quashed the selections made by the respondent-Union of India, of as many as six candidates as the Welfare Inspectors (Adidravidar Welfare Department), Government of Pondicherry. The original petitioner before the Tribunal has now joined as party-respondent here in both the writ petitions and we shall refer him as "1st respondent" hereinafter.

(3.) IT is rightly pointed out by the learned Government Pleader that the 1st respondent was given a clearest possible notice, when he was called for the interview in pursuance of his application. Our attention was invited to the memorandum dated 14-7-1998, by which the 1st respondent therein was informed that his name had been sponsored by the Employment Exchange, Pondicherry and on that basis, his name was proposed to be considered to the post of Welfare Inspector, carrying the scale of pay of Rs. 4000-100-6000. IT was also pointed out therein that if the candidate was willing, he should appear for a written test to be held at Calve College Government Higher Secondary School, Mission Street, Pondicherry on 29-7-1998 at 10.00 a.m. and if successful in the written test, he would be required to appear for an interview in the Chamber of the Secretary to Government (Welfare), Chief Secretariat, Goubert Avenue, Beach Road, Pondicherry on 29-7-1998 at 3.00 p.m. The learned Government Pleader draws our attention to the foot-note of is document, which is as under :- "The written test will be of objective type of degree level in the following subjects :- 1. General English 2. General Knowledge 3. General Arithmetic and 4. Questions in subject of Social Work/Sociology/Psychology. For written test 65 marks and 35 marks is for viva voce." Thus, the learned Government Pleader rightly contends that the 1st respondent, who offered himself for the appointment, was given the clearest possible idea that for the written test 65 marks were allotted and for viva voce test 35 marks were allotted. According to the learned Government Pleader, once the 1st respondent chose to appear for the examination, got selected for being tested in the oral interview, appeared for the oral interview and was rejected, cannot turn around and challenge the whole process of selection. The learned Government Pleader heavily relies on the observations made by the Apex Court in Madan Lal v. State of J. and K. The learned Government Pleader invites our attention to paragraph 9, where the Apex Court holds as follows at page 1093; of AIR :- "Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. 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 the case of Om Prakash Shukla v. Akhilesh Kumar Shukla, it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner." The Supreme Court, thereafter, proceeds to hold in paragraph 10 that such candidate, who takes a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful, cannot be allowed to challenge the process of selection. The learned Government Pleader points out another decision in Union of India v. Chandrasekharan, wherein at page 699 in paragraph 13, the Apex Court holds as follows at Page 615-616; of Lab IC :- "IT is not in dispute that all the candidates were aware of the procedure for promotion before they sat for the written test and before they appeared before the Departmental Promotion Committee. Therefore, they cannot turn around and contend later when they found they were not selected by challenging that procedure and contending that the marks prescribed for interview and confidential reports are disproportionately high and the authorities cannot fix a minimum to be secured either at interview or in the assessment on confidential report." IT will be seen that in both the cases the challenge was for the disproportionately high marks allotted for the oral interview. In both the cases, the Apex Court has accepted the principle that a person, who offers himself with full knowledge of the selection process of the written test and then undergoes the interview and finds himself to be unsuccessful, cannot be allowed to challenge the selection process, much less on the ground that the marks allotted for the oral interview are unduly excessive. As against this, learned Counsel for the 1st respondent has invited our attention to a reported decision in Rajkumar v. Shaktiraj. The learned Counsel points out that in this case, the case earlier referred, viz., Madan Lal v. State of J. and K. cited supra, has been referred to. The learned Counsel points out that when a candidate had taken a chance to appear for the interview and after finding himself to be unsuccessful, challenges the selection process, and even when it was found by the Apex Court that the whole process was riddled with irregularities and illegalities, the Supreme Court did not entertain that challenge. The learned Counsel relies on the observations in paragraph 16, which are as under at Page 2193-2194., of Lab IC :- "The entire procedure is also obviously illegal. IT is true, as contended by Shri Madhava Reddy, that this Court in Madan Lal v. State of J. and K., and other decisions referred therein had held that a candidate having taken a chance to appear in an interview and having remained unsuccessful, cannot turn round and challenge either the Constitution of the Selection Board or the method of selection as being illegal; he is estopped to question the correctness of the selection. But in this case, the Government have committed glaring illegalities in the procedure to get the candidates for examination under the 1955 Rules, so also in the method of selection and exercise of the power in taking out from the purview of the Board and also conduct of the selection in accordance with the Rules. Therefore, the principle of estoppel by conduct or acquiescence has no application to the facts in this case." In fact, the learned Counsel very heavily relies upon this decision and suggests that even in the present case, the same kind of irregularities and illegalities had been committed. Now it cannot be disputed that the Supreme Court had not chosen to interfere on the ground that there were number of illegalities committed. However, learned Counsel was not able to point out to us the kind of illegalities committed by the interviewing committee in the present case. In the case cited supra, the Supreme Court had pointed out that 1955 Rules were revived. The said Rules were breached. The Supreme Court also found fault with the application of the concerned Rules. IT also found fault with the way in which the marks were distributed. No such circumstance is available in the present case. IT is obvious that the observations made by the Supreme Court that the principle of estoppel by conduct of acquiescence had no application to the facts in that case. Thus, the Supreme Court, in fact, restricted those observations to the facts in that case. Such facts have not been brought to our notice or even to the notice of the Tribunal. The learned Government Pleader took us through the original application filed by the 1st respondent, where we do not find any such challenge having been made to avoid the doctrine of estoppel by conduct. We are, therefore, of the view that initially itself the original application was not maintainable as the petitioner had taken full part in the selection process, knowing it fully well as he was already noticed about the same.