JKPSC VERSUS ROUF AHMAD DAR AND OTHERS
HEADNOTES;
PARA 19 From the above, the legal position is clear that, a candidate, who has participated in the selection process, shall be deemed to have acquiesced in the terms and conditions of selection laid down in the Advertisement Notification and is, thus, estopped from questioning it thereafter. The original petitioner was well aware that one of the vacancies notified for selection was earmarked for PHC category and if the selected PHC candidate happens to be the general category candidate, he/she would eat away the candidate last selected under the open merit category. The petitioner kept quite and allowed the process to proceed. It is true that because of his merit, the original petitioner came to be placed at the bottom of the general category/open merit list. Since the private respondent was PHC/general candidate with highest merit in the category of PHC, as such, he was to be necessarily adjusted against the last vacancy meant for open merit category which, in the provisional list, was occupied by the original petitioner. Simply because the original petitioner could not visualize such eventuality which otherwise was most likely if not inevitable, he cannot be permitted to assail the selection of private respondent whose selection is in complete conformity with the requisition as well as the Advertisement notification issued by the PSC.
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 15.02.2023
Pronounced on: 24 .02.2023
WP(C) No.815/2022
c/w
WP(C) No.196/2023
J&K Public Service Commission
Rauf Ahmad Dar
...Petitioner(s)
Through:- Mr.F.A.Natnoo, Advocate in WP(C)
No.815/2022
Mr. R.A.Jan, Sr. Advocate with Mr. Vikas
Magotra, Advocate in WP(C) No.196/2023
V/s
Tajinder Kour and others
...Respondent(s)
Through:- Mr. Abhinav Sharma, Sr. Advocate
with Mr. Abhirash Sharma,
Advocate
for R-1
Mr. Eishan Dadhichi,
GA for R-2
Coram:
HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON’BLE MR. JUSTICE PUNEET GUPTA, JUDGE
JUDGMENT
Sanjeev Kumar-J
1. In these two writ petitions, one filed by the Jammu &
Kashmir Public Service Commission [“PSC”] and another by one Rauf
Ahmed Dar, are directed against the judgment of Central
Administrative Tribunal [“CAT”] dated 03.02.2022 passed in OA
No.61/234/2021 titled Tajinder Kour v. UT of J&K and others. The
CAT has allowed the petition (OA) filed by Tajinder Kour (hereinafter
referred to as “original petitioner”) and has directed the PSC to
recommend the name of original petitioner to the Commissioner/Secretary to Government, Higher Education
Department, UT of Jammu & Kashmir for her appointment as
Assistant Professor in the discipline of Geography under open merit
category.
2. The case set up by the original petitioner before the
CAT
2.1. The PSC in the year 2007 issued an advertisement for
conducting direct recruitment to the vacancies of Assistant Professors
including three posts of Assistant Professor in the discipline of
Geography. On the basis of the recommendations made by the PSC,
the Government vide G.O. No.201-HE of 2007 dated 12.09.2007
issued appointment orders in respect of three selectees. In the year
2009, another selection process for direct recruitment was conducted
by the PSC and on the recommendations made by it, the Government
vide G.O. No.272-HE of 2009 dated 03.12.2009 issued appointment
orders in favour of four selected candidates as Lecturer/Assistant
Professor in Geography. It is submitted by the original petitioner that
the PSC issued another notification in the year 2014 bearing No. 12-
PSC(DR-P) of 2014 dated 29.05.2014 for making selection against the
vacancies of Assistant Professors in different disciplines and amongst
them 43 vacancies of Assistant Professor in Geography were also
notified for selection. The PSC having regard to horizontal reservation
provided for handicapped category, earmarked one vacancy for the
aforesaid category. The selected candidates including the person selected under PHC category, it is claimed, were appointed and the
select list was exhausted.
2.2. That PSC vide notification No.10-PSC(DR-P) of 2017
dated 27.10.2017, yet again invited applications for the vacancies of
Assistant Professor in Higher Education Department, which included
10 posts of Assistant Professor in Geography with the following
breakup:-
Open Merit : 04
RBA : 02
SC : 01
ST : 01
ALC : 01
SLC : 01
In addition, one vacancy under horizontal reservation for
PHC category was also kept reserved.
2.3. The original petitioner participated in the aforesaid
selection process and was shown as candidate last selected under the
open merit category (S.No.4) in the Provisional Select List issued by
the PSC vide notification nNo.03-PSC (DR-S) of 2021 dated
05.01.2021.
2.4. It is stated that the mistake committed by the PSC in
keeping one vacancy reserved for PHC candidate was, accordingly,
rectified while issuing Provisional Select List. Apprehending that with
a view to give effect to the advertisement notification, the PSC may
rectify the provisional select list and dislodge him, giving benefit of
horizontal reservation meant for PHC to the private repsondent, the
original writ petitioner approached the CAT seeking inter alia a
direction to the PSC to de-reserve one post/vacancy of Assistant
Professor in Geography earmarked for PHC category, as the same was
in violation of the Government Order No.62-SW of 2001 dated
13.03.2001 and the Reservation Rules. The original petitioner also
prayed for a direction to the respondents not to disturb him from the
select list wherein her name figured at Serial No.4 under open merit
category.
2.5. The claim of the original petitioner was primarily based
on his contention that after the enactment of Jammu & Kashmir
Reservation Act, 2004 and the Rules of 2005 framed thereunder, the
first process of selection for filling up the vacancies of Assistant
Professor in Geography in Higher Education Department was
undertaken in the year 2007 when three vacancies were notified and
filled up. Again in the year 2009, four more posts/vacancies were
advertised and filled up. In the year 2014, PSC notified 43 fresh
vacancies of Assistant Professors in Geography, in which one of the
posts was kept reserved for horizontal reservation of PHC. It is claimed that from the year 2007, till issuance of advertisement
notification of 2017, the respondents had consumed 50 vacancies and
had, thus, reached the roster point 50 and the next vacancy under
horizontal reservation for PHC was to be provided at S.No.67. It was
submitted that since only 10 posts were notified in the year 2017,
which took the selection/appointment to the roster point 60 and,
therefore, there was no warrant to earmark one out of ten posts for
PHC category. Strong reliance was placed by the original petitioner on
Government Order No.62-SW of 2001 dated 13.03.2001 wherein for
the purposes of granting horizontal reservation in favour of PHC
category, three blocks have been created i.e. 1 to 33; 34 to 67 and 68 to
100. It is on the basis of the provisions of aforesaid Government Order,
it was contended by the original petitioner that next vacancy would
fall to the share of PHC category at roster point No.67 i.e. when seven
more vacancies are notified in future.
3. The petition was contested both, by PSC as well as private
respondent.
Stand of the PSC
3.1 Precise and concise stand of the PSC is that the indenting
department i.e. Department of Higher Education referred only 10
vacancies of Assistant Professors in the discipline of Geography
providing further that one post shall be filled up from PHC category,
which, as per the reservation rules, is entitled to 3% horizontal reservation. The original petitioner, private respondent and other
eligible candidates participated in the selection process, which was set
in motion by the PSC vide advertisement No.10-PSC(DR-P) of 2017
dated 27.10.2017.
3.2 On the basis of performance of candidates in the interview
and other related parameters, the select list was notified vide
Notification No.03-PSC(DR-S) of 2021 dated 05.01.2021. It was also
submitted by the PSC that though, one post was specifically earmarked
for PHC category but while preparing the provisional select list, the
candidature of PHC candidates was erroneously/inadvertently not
considered and as a consequence whereof, the original petitioner came
to be shown as last selected candidate in the open merit. When this
error was noticed by the PSC, the matter was got re-examined and it
was found that private respondent Mr. Rauf Ahmad Dar, who happens
to be a PHC/OM category have secured 50.32 was supposed to be
selected against the 4th vacancy earmarked under the open merit.
Consequently, the original petitioner i.e. the last selected candidate in
the open merit category was sought to be replaced by PHC/OM
candidate i.e. by private respondent. It is, thus, submitted that the
select list in which the name of original petitioner appeared was only
provisional and nothing prevented the PSC to rectify its mistake, which
it had inadvertently committed.
3.3 Going beyond its brief, the PSC in its reply affidavit also
sought to explain the legal position viz-a-viz the application of roster
7 WP(C) No.815/2022 c/w WP(C) No.196/2023
for horizontal reservation meant for specially abled candidates (PHC).
It was submitted by the PSC that even if the claim of the original
petitioner is admitted to be correct that after promulgation of
reservation rules only 60 vacancies have been notified for selection
and appointment as Assistant Professor in the discipline of Geography,
yet the second vacancy meant for PHC would fall in the 2nd block
between 34 to 67. The PSC appears to have suggested that with a view
to give horizontal reservation meant for PHC category, the first
vacancy in the blocks created under Government Order No.62-SW of
2001 is required to be earmarked for PHC category. The PSC seems to
have derived support from the view taken by Hon’ble the Supreme
Court in the case of Union of India and another v. National
Federation of the Blind, 2013 (10) SCC 772.
4. Stand of the Higher Education Department
(respondent No.2 herein)
4.1. The Department of Higher Education in its affidavit filed
through Additional Secretary has not clearly and unequivocally refuted
the contention of the original petitioner that after the promulgation of
the Reservation Rules, the department has so far filled up only 60
vacancies including 10 vacancies in contention in these petitions. It is,
however, submitted that since 3% horizontal reservation is meant for
handicapped (PHC) category, as such, while notifying ten vacancies in
the year 2017, one vacancy was identified to be filled up from the said
category and that there is no violation of Government Order No.62-SW of 2001 or the Reservation Rules. The Department of Higher
Education has not made any attempt or effort to explain the manner in
which the reservation roster including roster meant for PHC category
has been adhered to.
5. Reply affidavit of the private respondent and the stand
taken therein.
5.1. While replicating the stand of the PSC and the department
of Higher Education, the private respondent in his reply affidavit has
submitted that since one vacancy was specifically earmarked for PHC
category, therefore, private respondent, a candidate belonging to PHC
category with highest merit was entitled to be adjusted under the open
merit. The PSC, which had not applied the reservation roster while
preparing the provisional select list, corrected its mistake so as to bring
its select list in tune with the requisition made by the Higher Education
Department and the advertisement notification issued by it. It is, thus,
contended that by earmarking one vacancy under horizontal
reservation for PHC category, the official respondents have only
complied with and followed the mandate of Reservation Act and the
Rules framed thereunder.
5.2 The private respondent in its reply affidavit has taken
serious exception to the conduct of the original petitioner, who had
remained silent when advertisement notification was issued and raked
up the issue only when he apprehended that he may have to give way to adjust a physically challenged person for which one vacancy stood
earmarked in the advertisement notification itself.
Arguments
6. From a reading of the impugned judgment, it transpires
that the learned counsel appearing for their respective clients primarily
rallied around their stand taken by them in their respective reply
affidavits. The CAT considered the entire matter in light of the rival
contentions and having regard to various provisions of the Jammu &
Kashmir Reservation Act, 2004 [“Reservation Act”] and the Jammu &
Kashmir Reservation Rules, 2005 [“Reservation Rules”] framed
thereunder as also the provisions of Government Order No.62-SW of
2001 dated 13.03.2001 came to the conclusion that there was substance
in the plea of the original petitioner that next vacancy for PHC
category was to be offered at roster point 67 and that the selection and
appointment to the vacancies of Assistant Professor in the discipline of
Geography had reached only upto 60 point and, therefore, no vacancy
for the PHC category was required to be earmarked for PHC category.
Upholding the contention of the original petition and rejecting the plea
of the official respondents as well as private respondent, CAT allowed
the OA and issued directions referred to herein above vide its judgment
impugned dated 03.02.2022. It is this judgment of the CAT, which is
assailed before us by the PSC as well as private respondent on various
grounds.
7. Having heard learned counsel for the parties and perused
the material on record, we are of the considered opinion that the
decision of these two petitions hinges on determination of following
points:-
i) Whether original petitioner being fully aware that one vacancy in the discipline of Geography, as per the advertisement notification No.10-PSC(DR-P) of 2017 dated 27.10.2017, was earmarked for PHC category under horizontal reservation and having participated in the selection is estopped by his conduct to later on claim that no vacancy under horizontal reservation for PHC category could have been earmarked in the advertisement notification?ii) Whether with a view to give effect to 3% horizontal reservation meant for PHC category, the first vacancy in each of the three blocks created under Government Order No.62-SW of 2001 dated 13.03.2001 is required to be earmarked or that the three vacancies meant for PHC category are to be earmarked at roster point No.33, 67 and 100?iii) Whether the appointing authority/indenting department under the Reservation Rules and the provisions of Government Order No.62-SW of 2001 has the flexibility or discretion in earmarking any of the vacancy in the block for PHC category?
Point No.(i)
8. We have noticed the stand of the PSC as well as Higher
Education Department and the private respondent before the CAT. The
PSC as well as the Department of Higher Education have not
questioned the conduct of the petitioner in any manner. However, private respondent in his reply affidavit as taken an exception to the
conduct of the original petitioner, who, after having participated in the
selection process and being fully aware that one vacancy out of the
notified vacancies was earmarked for PHC category under 3%
horizontal reservation, had chosen to file petition only when the private
respondent was sought to be adjusted against the vacancy meant for
PHC candidate.
9. It was submitted before the CAT and argued before us
that the original petitioner is disentitled by his conduct to raise such
plea after the selection process was about to be concluded. The original
petitioner, it is contended by Mr. R.A.Jan, learned senior counsel
representing the private respondent, never questioned the
advertisement notification which unequivocally earmarked one
vacancy for PHC by way of 3% horizontal reservation. In the OA also,
he has not challenged the advertisement notice, but has only sought a
direction to de-reserve the vacancy earmarked for PHC category,
which course is not permissible in law.
10. Per contra, Mr. Abhinav Sharma, learned senior counsel
appearing for the original petitioner submitted that since four vacancies
were earmarked for the open merit category and one post separately
under horizontal reservation for PHC, it did not occur to the original
petitioner to raise the issue at the time of issuance of the advertisement
notification or subsequently when the selection was undertaken. He
submits that no separate vacancy is required to be earmarked in the advertisement notification for giving effect to horizontal reservation.
Dwelling upon applicability of the roster, Mr. Sharma submits that the
PSC vide its notification issued in the year 2017 misrepresented that
apart from ten vacancies notified under different categories, one
vacancy was also reserved for the handicapped category. It was only
when the original petitioner came to know that candidate selected
under PHC category was to be adjusted in open merit, that too, by
dislodging the original petitioner, he got cause of action to raise his
grievance before the competent Court of law. He submits that it is in
these special circumstances, the original petitioner filed the OA before
the CAT.
11. We have given our anxious consideration to the rival
contentions. It is true that a selecting body is not supposed to earmark
a vacancy separately for making selection from the reserved
category(ies) entitled to horizontal reservation. It is sufficient for the
selection body to say that with a view to give effect to horizontal
reservation one or more vacancy out of the notified vacancies shall be
filled up from the reserved categories under horizontal reservation.
12. In the instant case, the PSC has surely deviated from this
principle and has in the advertisement notification earmarked one
vacancy to be filled up under horizontal reservation from the PHC
category. We will not be surprised, if some of the candidates
misunderstood that this one vacancy earmarked for PHC category is a
vacancy notified in addition to the ten posts in terms of the advertisement notification of 2017. We, however, cannot give our
imprimatur to the contention of Mr. Abhinav Sharma, learned senior
counsel that the original petitioner had no cause of action to challenge
the advertisement notification. As per the case set up by the original
petitioner in OA, the second vacancy for PHC category was to be
earmarked at roster point of 67 and the department of High Education
had only filled up 60 vacancies. One vacancy in the category of PHC,
as per the contention of the original petitioner, stood filled up in the
year 2014. If that being the stated position of the original petitioner, it
is difficult to comprehend as to why the original petitioner kept mum
and raised no protest when one more vacancy came to be earmarked
for PHC category in the advertisement notification of 2017. Even the
advertisement notification of 2017 was not subject matter of challenge
before the CAT, though, the original petitioner had prayed for dereserving one vacancy kept reserved for PHC category.
13. Indisputably, original petitioner has participated in the
selection process and taken a chance. It is only when he came to be
placed at the bottom of the open merit list and was to be dislodged by
the PHC category candidate belonging to open merit, he thought of
filing the petition. This aspect, though, highlighted by the private
respondent in his reply affidavit has missed the consideration of the
CAT. The explanation tendered by the original petitioner before this
Court for not preferring writ petition immediately after the advertisement notification was issued is totally illusory and without
any substance.
14. Whether or not the reservation roster was correctly
applied; whether or not any vacancy was available for the category of
physically handicapped are the questions which cannot be permitted to
be raised or considered by the Court after the conclusion of the
selection process . The right to be selected and appointed has accrued
to the private respondent strictly, as per the requisition given by the
indenting department and the advertisement notification issued by the
PSC. There is no dispute that the private respondent is a candidate with
highest merit in the PHC/open category and his name for selection is
required to be considered against one vacancy earmarked for the
purposes.
15. Since the private respondent belongs to the general
category and, therefore, he would eat away the last candidate selected
under the open merit category. Unfortunately, the original petitioner is
the last candidate selected under open merit and, therefore, it is the
mandate of law that he gives way to the candidate entitled under
horizontal reservation i.e. private respondent belonging to PHC/OM
category. The PSC has done nothing wrong by correcting its mistake
and considering the candidature of the private respondent in place of
the original petitioner, moreso, when no right had accrued to the
original petitioner by her mere placement in the provisional select list.
16. In the case of Anupal Singh and others vs. State of
Uttar Pradesh, (2020) 2 SCC 173, one of the issues before the
Hon’ble Supreme Court was whether the private respondents before it,
who had participated in the interview, could challenge the Office
Memorandum dated 12.10.2014 and the selection. The issue had arisen
in the context of similar fact situation as we are confronted with in the
case on hand. The Hon’ble Supreme Court, after referring to catena of
judgments on the issue, held that it is a settled law that a person having
consciously participated in the interview cannot turn around and
challenge the selection process. The private respondents knew that by
the revised notification dated 12.10.2014, the number of vacancies of
different categories have been changed and knowing the same, they
participated in the interview and have taken a chance and opportunity
thereon without any protest. Having participated in the interview and
having failed in the final selection, it is not open to the private
respondents to turn around and challenge the revised notification dated
12.10.2014 and the revised requisition of a number of vacancies in
different categories.
17 The discussion on the issue is made in paras (55) to (61)
of the judgment which, for facility of reference, is set out below:
“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 and ultimately, finds himself to be unsuccessful, in Madan Lal and Others v. State of J&K and Others (1995) 3 SCC 486, it was held as under:-
“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. …..”57. In K.H. Siraj v. High Court of Kerala and Others (2006) 6 SCC 395, it was held as under:-“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 and Others v. S. Vinodh Kumar and Others (2007) 8 SCC 100, it was held as under:-“19. In Chandra Prakash Tiwari v. Shakuntala Shukla (2002) 6 SCC 127, it was further observed:-“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.”59.Same principle was reiterated in Sadananda Halo and Others v. Momtaz Ali Sheikh and Others (2008) 4 SCC 619 wherein, it was held as under:-“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. The Court also referred to the judgment in Om Prakash Shukla v. Akhilesh Kumar Shukla 1986 Supp SCC 285, 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.”60. Before the declaration of the result of the written examination on 15.09.2014, the State Government by its Government order dated 20.08.2014 revised the requisition thereby revising the number of vacancies in different categories. UP Public Service Commission issued Office Memorandum dated 12.10.2014 specifically mentioning the number of vacancies to be filled up in various categories in accordance with the requisition sent by the State Government. The said Office Memorandum dated 12.10.2014 published by UP Public Service Commission reads as under:-
“UPPSC
INTERVIEW PROGRAMME
Month October/November/December, 2014 (24)
OFFICE MEMORANDUM
98. Post Subordinate Agricultural Service Class III (Provisional Asstt. Group C) Agricultural Deptt. U.P. October – 27, 28, 29, 30 Reservation November – 05, 07, 10, 11, 12 2515 posts–Non-reserved 14 15, 17,18,19,20,21,22,25,26 1882 posts – SC 27, 28, 29 201 posts – ST December – 01, 02, 03, 04, 05,06 2030 posts – OBC 08, 09, 10, 11, 12, 15, 16,17, 18,19 Pay Scale Rs.5200-20200/- 20, 22, 23, 24, 2014 Grade Pay Rs.2400/- Before 10.00 a.m. Advertisement No.A-5/E-1/2013 Last Date: 21.11.2013
It is thus clear that the candidates who appeared in the interview were well aware about the modification/revision in number of vacancies of Technical Assistants in different categories. The private respondents/intervening applicants have appeared in the interview with their eyes wide open regarding the modified vacancies to be filled up in various categories of the posts. Having appeared in the interview without any demur or protest, it is not open to the candidates to challenge the selection process on the ground that there was modification in the number of vacancies in different categories and they are estopped by the principle of estoppel from challenging the same.61. The private respondents knew that by the revised notification dated 12.10.2014, the number of vacancies of different categories have been changed and knowing the same, they participated in the interview and have taken a chance and opportunity thereon without any protest. Having participated in the interview and having failed in the final selection, it is not open to the private respondents to turn around and challenge the revised notification dated 12.10.2014 and the revised requisition of the number of vacancies in different categories. Having regard to the consistent view taken by the Supreme Court, the High Court should not have granted any relief to the private respondents/intervenors.
18. We are aware that Rule of Estoppel, particularly, in the
matter of recruitment, is not absolute and is differentiated where a
candidate by agreeing to participate in the selection process only
accepts the prescribed procedure and not the illegality in it. In a case
where a candidate, who has participated in the selection process,
alleges misconstruction of statutory rules and discriminating
consequences arising therefrom, the same cannot be ignored merely
because a candidate has taken part in the selection process. In many
cases, it is possible that a candidate may not have even locus to assail
the incurable illegality or violation of any provision of the
Constitution, unless he/she participates in the selection process. This is
so held by the Hon’ble Supreme Court in the case of Dr. Meeta Sahai
vs. State of Bihar and others, (2019) SCC 17. Except for the
aforesaid exceptions and the exceptions of the similar nature, a candidate, who acquiesces in the procedure and the terms and
conditions of selection, cannot be allowed to turn around later to throw
challenge to the selection only after he finds the result of selection not
palatable. The issue was recently considered by the Supreme Court in
the case of State of Uttar Pradesh vs. Karunesh Kumar and others,
2022 SCC Online SC 1706. Placing strong reliance on Anupal
Singh’s case, the Supreme Court has reiterated the same principle.
Para (20) and relevant extract of Para (21) is reproduced hereunder:
“20. We have already placed the relevant rules and considered their import. Clause 15(1) of the 1978 Rules deals with a Selection Committee, while we are concerned with the recruitment made by the Selection Commission statutorily created by an enactment, the 2014 Act. Under the 1978 Rules, no written examination was contemplated as against a mere interview. This was consciously given a go-by, to the knowledge of the candidates who willingly participated in the selection process by taking the written examination, and thereafter, the interview. This process was adopted in tune with the 2015 Rules, and in terms of the powers conferred to the Commission under the 2014 Act. Therefore, the 1978 Rules are put into cold storage qua a selection even at the time of conducting the written examination. 21. A candidate who has participated in the selection process adopted under the 2015 Rules is estopped and has acquiesced himself from questioning it thereafter, as held by this Court in the case of Anupal Singh (supra):
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19 From the above, the legal position is clear that, a
candidate, who has participated in the selection process, shall be
deemed to have acquiesced in the terms and conditions of selection
laid down in the Advertisement Notification and is, thus, estopped
from questioning it thereafter. The original petitioner was well aware
that one of the vacancies notified for selection was earmarked for PHC
category and if the selected PHC candidate happens to be the general
category candidate, he/she would eat away the candidate last selected
under the open merit category. The petitioner kept quite and allowed
the process to proceed. It is true that because of his merit, the original
petitioner came to be placed at the bottom of the general category/open
merit list. Since the private respondent was PHC/general candidate
with highest merit in the category of PHC, as such, he was to be
necessarily adjusted against the last vacancy meant for open merit
category which, in the provisional list, was occupied by the original
petitioner. Simply because the original petitioner could not visualize
such eventuality which otherwise was most likely if not inevitable, he
cannot be permitted to assail the selection of private respondent whose
selection is in complete conformity with the requisition as well as the
Advertisement notification issued by the PSC.
20 In view of the above, determination of other
points/questions becomes purely academic, as such, these questions are left open to be determined in appropriate proceedings. Accordingly,
these petitions are allowed and, accordingly, the judgment impugned
dated 03.02.2022 passed by the CAT is set aside. Consequently, OA
No. 61/234/2021 is dismissed. The PSC shall proceed to finalize the
selection in accordance with law.
Record be returned back to the learned counsel appearing for the
PSC.
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