TMI Blog2013 (4) TMI 896X X X X Extracts X X X X X X X X Extracts X X X X ..... AL NOS. 2802-2804 OF 2013 (Arising out of SLP(C) Nos. 30581-30583 of 2012) - - - Dated:- 3-4-2013 - SINGHVI, G.S. AND JOSEPH, KURIAN, JJ. J U D G M E N T G.S. SINGHVI, J. 1. Leave granted. 2. In response to an advertisement issued by the Uttarakhand Board of Technical Education (for short, the Board ), which was published in the newspaper Amar Ujala dated 5.5.2011, the appellants and the private respondents submitted applications for the posts of Physiotherapist. All of them appeared in the written test held on 25.9.2011. The appellants were declared successful and they became entitled to be appointed against the advertised posts. 3. The private respondents, who failed to clear the test filed Civil Misc. Writ Petition No.1625/2011 for quashing the advertisement and the process of selection. They pleaded that the advertisement and the test conducted by the Board were ultra vires the provisions of the Uttar Pradesh Medical Health and Family Welfare Department Physiotherapist and Occupational Therapist Service Rules, 1998 (hereinafter described as the Special Rules ). 4. In the counter affidavit filed by the official respondents, it was averred that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to complete the selection of Physiotherapists by adding to the marks obtained by the fit examinees in the written examination, 30% marks for intermediate examination and 70% marks for diploma / degree examination. Let the said exercise be completed as quickly as possible, but not later than two months from the date of service of a copy of this order upon the Board. 7. The review applications filed by the selected candidates were dismissed by the Division Bench but the time fixed for compliance of the direction contained in judgment dated 2.5.2012 was extended. 8. Learned counsel for the parties reiterated the arguments made by their counterparts before the High Court. Shri Pallav Shishodia, learned senior counsel appearing for the appellants argued that after having accepted the appellants contention on the issue of locus of the private respondents to challenge the process of selection, the Division Bench of the High Court was not at all justified in directing the Board to prepare fresh select list by adding marks for intermediate and degree/diploma qualifications. He further argued that the learned Single Judge and the Division Bench committed grave error by refusing to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... qualifications- (1) Physiotherapist - (i) must have passed the Intermediate Examination with Science of the Board of High School and Intermediate Education, Uttar Pradesh or an examination recognized by the Government as equivalent thereto. (ii) Must possess as degree or diploma in physiotherapy from an Institution, recognized by the Government. (2) Occupational Therapist - (i) must have passed the Intermediate Examination with Science of the Board of High School and Intermediate Education, Uttar Pradesh or an examination recognized by the Government as equivalent thereto. (ii) Must possess a degree or diploma in Occupational Therapy from an Institution recognized by the Government. 9. Preferential Qualification - A candidate who has- i) Served in the Territorial Army for a minimum period of two years, or (ii) Obtained B' Certificate of National Cadet Corps, shall, other things being equal be given preference in the matter of direct recruitment. By Rule 15 of the Special Rules, which is reproduced below, it was laid down that direct recruitment to the various categories of posts shall be made in accordance with the General Rules: 15. Procedure for di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egative marking (ii) After the examination is over, the candidates shall be allowed to carry back the Question Booklet of the Written examination with them (iii) After the written examination, shall be displayed on the Uttarakhand website www.ua.nic.in or published in the daily newspaper, having wide circulation. (iv) The Answer Sheet of the written examination shall be in duplicate (including the carbon copy and the candidates shall be permitted to carry back the duplicate copy with them. (v) The candidates will be awarded 30 percent and 70 percent marks for the percentage of marks obtained in the intermediate examination and Diploma/Degree examination, respectively. (vi) Candidates obtaining less than 40 percent marks in the written test and less than 30 percent marks in Diploma examination shall be unfit for selection. (vii) The merit list shall be prepared by the Selection committee on the basis of the aggregate of marks obtained in the test for selection carrying 200 marks, which will include 100 marks for written examination, 30 percent marks of Intermediate examination and 70 per cent marks of Diploma/Degree examination. (5) Thereafter the Selection Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should be clearly mentioned and should provided the same Uttrakhand Technical Education Board. 3. Technical Education Board on receiving such requisition from Appointing Authority should advertise for recruitment under prescribe Rules, within one month. 4. Technical Education Board, after publication of advertisement, shall start the selection proceedings, as per provisions of Uttrakhand Procedure for Direct Recruitment for Group 'C' Posts (outside the purview of Uttarakhand Public Service Commission) Rule 2008 shall complete selection proceedings as soon as possible forward its recommendation to the Appointing Authority. (Dileep Kr. Kotia) Principal Secretary Advertisement UTTARAKHAND TECHNICAL EDUCATION BOARD ROORKEE (HARIDWAR)- 247667 ADVERTISEMENT NO STATE GROUP C COMBINED RECRUITMENT EXAMINATION 2011 DATED 4 MAY 2011 DATE OF ADVERTISEMENT- MAY 04, 2011 LAST DATE OF ACCEPTANCE OF APPLICATION FORMS- JUNE 04, 2011 FOR DETAILED ADVERTISEMENT PLEASE VISIT BOARD'S WEBSITE AT Vide Office Memo No-1063/XXX(2) 2010 dated 03.08.2010 of Personnel Department-2, Uttarakhand State, Uttarakhand Technical Education Board, Roorkee has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Group C post in the State of Uttarakhand must have, after reading the advertisement, become aware of the fact that by virtue of Office Memorandum dated 3.8.2010, the Board has been designated as the recruiting agency and the selection will be made in accordance with the provisions of the General Rules. They appeared in the written test knowing that they will have to pass the examination enumerated in para 11 of the advertisement. If they had cleared the test, the private respondents would not have raised any objection to the selection procedure or the methodology adopted by the Board. They made a grievance only after they found that their names do not figure in the list of successful candidates. In other words, they took a chance to be selected in the test conducted by the Board on the basis of the advertisement issued in November 2011. This conduct of the private respondents clearly disentitles them from seeking relief under Article 226 of the Constitution. To put it differently, by having appeared in the written test and taken a chance to be declared successful, the private respondents will be deemed to have waived their right to challenge the advertisement and the procedure o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant knew the material facts and must be deemed to have been conscious of his legal rights in that matter, his failure to take the present plea at the earlier stage of the proceedings creates an effective bar of waiver against him. 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. 20. In Dr. G. Sarna v. University of Lucknow (1976) 3 SCC 585, this Court held that the appellant who knew about the composition of the Selection Committee and took a chance to be selected cannot, thereafter, question the constitution of the Committee. 21. In Om Prakash Shukla v. Akhilesh Kumar Shukla (1986) Supp. SCC 285, a three-Judge Bench ruled that when the petitioner appeared in the examination without protest, he was not entitled to challenge the result of the examination. The same view was reiterated in Madan Lal v. State of J K (1995) 3 SCC 486 in the following words: The petitioners also appeared at the oral interview conducted by the Members concerned of the Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew for which knowledge of Microsoft Operating System and Microsoft Office operation would be essential. In the call letter also which was sent to the appellant at the time of calling him for interview, the aforesaid criteria was reiterated and spelt out. Therefore, no minimum benchmark or a new procedure was ever introduced during the midstream of the selection process. All the candidates knew the requirements of the selection process and were also fully aware that they must possess the basic knowledge of computer operation meaning thereby Microsoft Operating System and Microsoft Office operation. Knowing the said criteria, the appellant also appeared in the interview, faced the questions from the expert of computer application and has taken a chance and opportunity therein without any protest at any stage and now cannot turn back to state that the aforesaid procedure adopted was wrong and without jurisdiction. 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 quest ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
