The Division Bench of J&K and Ladakh High Court, comprising of the Chief Justice, and Justice Wasim Sadiq Nargal, in an intra-court appeal against a judgment of Single Bench, while upholding the same reiterated that a candidate cannot question the process of selection and call it unfair only because the result of selection process is not palatable to him after having participated in the selection process.
It was the case of the Petitioner/Appellant that she had applied for the post of Medical Technologist as against an advertisement notice issued by the respondent-Sher-i-Kashmir Institute of Medical Sciences and also appeared in the written test, scoring 47 marks out of 100, which being a qualifying exam, needed minimum 50 marks for qualifying. However, it was because the examiner had snatched the papers five minutes ahead of the scheduled time, she could not attempt all the questions and could not secure 50 qualifying marks. The Single Bench by virtue of an interim order had directed the Respondents to conduct the interview of the Appellant/Petitionerand to produce the result in sealed covers. Thereafter, upon the contention of the Counsel for the Appellant/Petitioner that out of the advertised 20 posts, only 15 candidates, including the appellant, were available with the respondents, as such, there was no need of conducting any written test in terms of the rules, the Writ Court had directed the respondents to offer her appointment in terms of merit obtained by her in the interview, as there were sufficient number of posts available.
The said direction was challenged by the Respondents, which was set-asideby the Division Bench with a direction to the Single Bench to proceed and decide the writ petition finally in accordance with law. The Writ Court, by virtue of the impugned judgment, dismissed the writ petition and vacated the interim directions.
The primary ground of challenge thrown to the judgment of the writ courtwas that the writ court has not appreciated the controversy in its correct perspective, and it was contended that the respondents were under legal obligation to have appointed the appellant-petitioner straightaway in the order of merit without conducting the written test and interview, which is being held for the sake of scrutiny and short-listing of the candidates, when the posts advertised are far less than the large number of aspirants and candidates applied for the post advertised.
However, rejecting the argument of the Petitioner-Appellant the Division Bench observed, “the contention of the appellant is misplaced and has no foundation, more particularly, when the writ petitioner/appellant has gladly and voluntarily participated in the selection process and appeared in the written test without any grouse and after having appeared in the written test, the appellant/writ petitioner is estopped under law to question the same, at this belated stage when the appellant/writ petitioner could not make the grade.”
The Bench, while relying upon a series of judgments on the point by the Supreme Court, further observed, “the appellant/writ petitioner wants to be selected/ appointed notwithstanding the criteria prescribed for selection in question by respondents having acquiesced her right, when she responded to advertisement notice and participated in selection process. Such a selective adoption is not permissible under law, as no party can be allowed to approbate or reprobate, as has been held by the Supreme Court in its various pronouncements.”
Therefore, holding that the judgment of the writ court is well reasoned and dealing with the issues raised in the petition elaborately, the Bench upheld the judgment and dismissed the Appeal.
