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ALOK BANERJEE v. THE STATE OF JHARKHAND THROUGH PR SECRETARY HUMAN RESOURCES DEPARTMENT

Jharkhand High Court

May 7, 2024

Judgment

Subsequent
References

CaseIQ

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Structured Summary — L.P.A. No.360 of 2021 (High Court of Jharkhand)

Factual and Procedural Background

This Letters Patent Appeal challenges the Single Judge's order dated 28.09.2021 in W.P.(S) No.5968 of 2019, which dismissed the writ petition and declined to interfere with the appointment of certain private respondents.

The petitioners were para teachers who applied for appointment as Inter Trained (Non-Para) Assistant Teachers following an advertisement that split vacancies between para and non-para categories. A merit list and counselling process were carried out; appointment letters were issued to the petitioners, who joined and worked for about three months and had service books opened under Rule 288 of the Jharkhand Service Code.

Subsequently, on 15.10.2019 the respondents cancelled those appointments and issued appointment letters to private respondents whose candidature had earlier been rejected. The petitioners challenged the cancellation by filing W.P.(S) No.5968 of 2019. The Single Judge dismissed that writ petition, and this appeal followed.

Legal Issues Presented

Whether the petitioners can challenge the acceptance of candidature and subsequent selection of private respondents where those private respondents' candidature had earlier been rejected but later accepted and they obtained higher marks in the selection process.
Whether cancellation of the petitioners' appointments violated the principles of natural justice (in particular, whether show cause notice or adequate opportunity was provided before cancellation).
Whether there was any infirmity in the decision-making process of selection that would permit judicial interference under Article 226 of the Constitution (i.e., whether the process suffered from illegality, procedural impropriety, irrationality or other recognized grounds for judicial review).

Arguments of the Parties

Appellants' (Petitioners') Arguments

The private respondents' candidature had earlier been rejected; therefore, even if private respondents obtained higher marks later, their candidature ought not to prevail over the petitioners whose candidature remained valid.
The Single Judge failed to appreciate that the initial rejection of private respondents' candidature should preclude their subsequent selection.
There was a violation of the principles of natural justice because the petitioners were not issued a show cause notice prior to cancellation of their appointments.
The impugned order suffers from infirmity and is unsustainable in law.

Respondent-State's Arguments

The selection is based purely on merit and the private respondents obtained higher marks than the petitioners; therefore the petitioners could not be appointed.
There is no pleading that the private respondents were not regular intermediate candidates; the assertion that their candidature was irregular was not pleaded.
The private respondents had not originally been impleaded by the petitioners, and the successful candidates only appeared by way of intervention; accordingly, the Single Judge's order is not erroneous.

Private Respondents' Arguments

Although their candidature had earlier been rejected, the private respondents made representations and, based on an order of the Director and permission to upgrade their educational qualification, their candidature was accepted and they participated in selection.
They obtained higher marks than the petitioners and were therefore more meritorious; offers of appointment were issued accordingly.
The petitioners never specifically challenged the earlier acceptance of private respondents' candidature before the writ court.
The Single Judge correctly rejected the natural justice claim, noting notices had been issued and petitioners did not take a stand indicating they were unaware of any issue.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Syed TA Naqshbandi & Ors. v. State of J&K & Ors., (2003) 9 SCC 592	Judicial review is limited to examining whether the decision-making process was proper, not for reappraising merits of the decision.	The court invoked this principle to confine its review to the legality of the selection process rather than substituting its own view of merit.
Tata Cellular v. Union of India, (1994) 6 SCC 651	Judicial restraint in review; outlines that review concerns process not merits and lists grounds like illegality, irrationality and procedural impropriety.	The court relied on the exposition of judicial review to assess whether any defect in decision-making justified interference; it found none.
Nottinghamshire County Council v. Secretary of State for the Environment, (1986) AC 240	Reference in Tata Cellular emphasizing limits of judicial review and judicial restraint.	Used in the excerpted discussion to underline the need for restraint; applied as background principle in assessing the scope of interference.
Butcher v. Petrocorp Exploration Ltd. (referred in Tata Cellular)	Illustrative of courts' restraint in intervention; cited in the Tata Cellular discussion.	Served as supporting authority in the court's exposition on judicial restraint (background context for review of administrative action).
Chief Constable of North Wales Police v. Evans, (1982) 3 All ER 141	Judicial review is of the decision-making process and not an appeal on merits.	The court used the principle to affirm that it should examine how the decision was made, not substitute its own view of merit.
H.S. Sidhu v. Devendra Bapna & Ors., (2016) 1 SCC 495	Supports limits on judicial review in selection matters; cited as similar principle.	Referred to reinforce that the court must look for defects in process, not reassess merits.
U.V. Mahadkar v. Subhash Anand Chavan & Ors., (2016) 1 SCC 536	Similar principle on judicial review in administrative/selection contexts.	Used to support the court's understanding of grounds and limits of judicial review.
Dr. G. Sarana v. University of Lucknow & Others, (1976) 3 SCC 585	A candidate who participates without protest cannot later question the selection process; principle of waiver/estoppel.	The court applied this principle to hold that petitioners who did not challenge the acceptance of candidature at the relevant stage were estopped from doing so later.
Om Prakash Shukla v. Akhilesh Kumar Shukla & Others, (1986) Suppl. SCC 285	Applicants who appear for examinations/interviews without protest cannot later challenge the process; interference may cause hardship to other candidates.	Cited to support the proposition that participating candidates who later object after an unfavourable result are not entitled to relief if they did not protest earlier.
Marripati Nagaraja & Others v. Government of Andhra Pradesh & Others, (2007) 11 SCC 522	Applicants who participated without demur and did not challenge procedural aspects earlier are estopped from later challenging the selection.	Applied to hold petitioners were precluded from challenging the selection process after participating and failing to raise timely objections.
Manak Lal (referenced in Dr. G. Sarana discussion)	Failure to raise a plea at an earlier stage amounted to waiver and estoppel.	Used in the line of authorities to emphasize that a candidate who takes a chance by participating cannot later raise the same technical objection.

Court's Reasoning and Analysis

The court proceeded in a step-wise manner:

The court accepted the factual chronology: private respondents' candidature was initially rejected, they represented and obtained permission to upgrade qualifications, their candidature was accepted while a separate writ was pending, and they participated in the selection process.
The court reiterated the settled principle that judicial review of administrative selection is confined to the decision-making process and not a re-appraisal of merits. It relied on authorities (Syed TA Naqshbandi, Tata Cellular and others) that define the proper scope of review (illegality, irrationality/Wednesbury unreasonableness, procedural impropriety, breach of natural justice, or abuse of power).
Applying the above, the court noted that the private respondents were allowed to participate after acceptance of their candidature and they secured higher marks than the petitioners in the merit assessment. The Single Judge had considered this comparative merit.
The court emphasized precedent that a candidate who participates in the selection process without protesting the composition or procedures at the appropriate time cannot later challenge the process (citing Dr. G. Sarana, Om Prakash Shukla, Marripati Nagaraja and related authorities). The petitioners did not challenge the acceptance of the private respondents' candidature at the inception or before participating in selection, nor did they press a specific challenge to that acceptance before the writ court beyond praying for their appointment.
On the natural justice point, the court noted the State's averment that notices were issued and responses received; the Single Judge had found no violation of natural justice. The petitioners had not rebutted that factual position sufficiently.
Considering (a) the acceptance of private respondents' candidature; (b) their superior marks in the comparative merit assessment; and (c) the petitioners' failure to raise timely objections, the court found no flaw in the decision-making process that would warrant judicial interference.

Holding and Implications

Holding: The High Court dismissed the Letters Patent Appeal and affirmed the Single Judge's order. The core ruling is emphasized as:

DISMISSED

Implications:

The appointment of the private respondents (who were later accepted and found meritorious) stands; the cancellation of the petitioners' appointments is not set aside by this court.
The court applied established limits on judicial review in selection matters and relied on waiver/estoppel principles where candidates participate without timely objection; no new legal precedent was announced — the decision applies settled principles to the facts at hand.
Pending interlocutory applications, if any, were also disposed of.

This summary has been prepared strictly from the content of the provided opinion. No facts or inferences beyond the opinion's text have been added.

Show all summary ...

L.P.A. No.360 of 2021

Page 1

IN THE HIGH COURT OF JHARKHAND AT RANCHI

L.P.A. No.360 of 2021

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1. Alok Banerjee, aged about 40 years, son of Jitendra Nath Banerjee, resident of Village Gadi Tundi, P.O Tundi, P.S. Tundi, District Dhanbad.

2. Sarfuddin Ansari, aged about 37 years, son of Md. Chando Miyan, resident of Village Phuljori, P.O. Gadisirsia, P.S. Gandey, District Giridih.

3. Suman Kumar Mahto, aged about 38 years, son of Bhajhari Mahto, resident of Village Mahubani, P.O. Ambona, P.S. Govindpur, District Dhanbad.

4. Girdhari Mahato, aged about 39 years, son of Bhalu Mahato, resident of Village Madhuban, P.O. Sabanpur, P.S. Narayanpur, District Jamtara.

5. Hari Prasad Mahato, aged about 41 years, son of Lakhi Ram Mahato, resident of Village Irkia, P.O. Dewalbari Nayadih, P.S. Narayanpur, District Jamtara.

6. Md. Jahanwaj Khan, aged about 41 years, son of Md. Shid Khan, resident of Village Jaridih, P.O. Dhamni, P.S. Madhupur, District Deoghar.

7. Tulsi Ram Mahto, aged about 42 years, son of Govind Mahto, resident of Village Santhaldih, P.O. Hariharpur, P.S. Hariharpur, District Dhanbad.

8. Mahesh Prasad Mandal, aged about 45 years, son of Rameshwar Prasad Mandal, resident of Village Maheshpur, P.O. Mohanpur, P.S. Karmatar, District Jamtara.

9. Jaynandan Prasad Verma, aged about 46 years, son of Bhairo Mahto, resident of Village Barki Suriya, P.O. Suriya, P.S. Suriya, District Giridih.

10. Brajesh Kumar Singh, aged about 39 years, son of Hriday Narayan Singh, resident of Village Sapaha, P.O. Kukraha, P.S. Chitra, District Deoghar.

11. Manoj Kumar Mondal, aged about 39 years, son of Bharat Chandra Mondal, resident of Village & P.O. Bansbutia, P.S. Palojori, District Deoghar

12. Basudeo Mahto, aged about 45 years, son of Alam Mahto, resident of Village Taranga, P.O. Taranga, P.S. Chandrapura, District Bokaro.

13. Prakash Kumar Mahato, aged about 41 years, son of Guna Ram Mahato, resident of Village Arita Tola Bahadurpur, P.O Arita, PS Chandankiyari, District Bokaro … … Appellants/Petitioners

Versus

1. The State of Jharkhand through Principal Secretary, Human Resources Department, Government of Jharkhand, having its office at Project Building, Dhurwa, P.O. Dhurwa, P.S. Dhurwa, District Ranchi.

2. The Director of Primary Education, Human Resources Development, Government of Jharkhand having its office at Project Building, Dhurwa, P.O. Dhurwa, P.S. Dhurwa, District Ranchi.

3. District Superintendent of Education, Ramgarh, P.O. Ramgarh, P.S. Ramgarh, District Ramgarh.

4. Sohan Pandit, aged about 32 years, father's name not known, resident of Village Kasiyadih, P.O. Kapilo, P.S. Sariya, District Giridih.

5. Santosh Kumar Mahto, aged about 36 years, son of Ram Lal Mahto, resident of Village & P.O. Laiyo, P.S. Mandu, District Ramgarh.

6. Santosh Kumar Yadav, aged about 35 years, son of Munsih Yadav, resident of Village Budhidih, P.O. Barhi, P.S. Barhi, District Hazaribagh.

7. Deepak Kumar Agarwal, aged about 41 years, son of Kailash Prasad, resident of Village Singhpur, P.O. Shikharji, P.S. Pirtanr (Madhuban), District Giridih.

8. Baleshwar Yadav, aged about 39 years, son of Deglal Yadav, resident of At & P.O. Guthiya Pesra, P.S. Sariya, District Giridih.

9. Janardan Prasad Yadav, aged about 36 years, son of Mathura Prasad Yadav, resident of Village Upraili Po Pradhandih Munna, P.O. & P.S. Dhansar, District Giridih.

10. Dinesh Kumar Mahto, aged about 34 years, son of Laljee Mahto, resident of Village Kunda, P.O. Tirla, P.S. Mahuatanr, District Bokaro.

11. Chandradeo Pandit, aged about 41 years, son of Nakul Pandit, resident of Village Dudhania, P.O. Hartedin….., P.S. Khukhra, District Giridih.

12. Union of India through Secretary, Ministry of Education, Department of Human Resources Development having its office at Central Secretariat, New Delhi, P.O., P.S. New Delhi. … … Interveners/Respondents

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CORAM :HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE ARUN KUMAR RAI

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For the Appellant : Mr. Arpan Mishra, Advocate For the State : Mr. Mrinal Kanti Roy, G.A.-I For the UOI : Ms. Leena Mukherjee, CGC For the Respondents : Mr. Rupesh Kumar Singh, Advocate

[Resp. Nos.4, 5, 7, 8, 9, 10]

For the Resp. No.11 : Mr. Raj Nandan Chatterjee, Advocate

[Resp. No.11]

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C.A.V. on 18.04.2024 Pronounced on 07/05/2024 Per Sujit Narayan Prasad, J.

Prayer

1. The instant appeal preferred under Clause 10 of the Letters Patent is directed against the order/judgment dated 28.09.2021 passed by learned Single Judge of this Court in W.P.(S) No.5968 of 2019 whereby and whereunder the writ petition has been dismissed by not interfering with the appointment of the private respondents.

Facts of the case

2. The brief facts of the case, as per the pleadings made in the writ proceeding, which are required to be enumerated, reads hereunder as :-

It is the case of the petitioners that an advertisement was published for the appointment on the post of Assistant Teachers in different districts of the State of Jharkhand. As per the advertisement it has been stated that 50% of the seats are required to be filled by Para teachers and the rest 50 % were to be filled with Non Para Teachers categories.

3. The petitioners who were working as para teachers in different schools different district of Jharkhand and applied for selection on the vacant post under Non-Para category.

4. It is the further case of the petitioners that this Court vide its judgment dated 23^rdJuly, 2018 in LPA No. 172 of 2018 has allowed one Letters Patent Appeal and issued directions to consider the application of candidates of para Teachers who had applied under non-para teacher category in which they applied for the aforesaid vacancies.

5. In furtherance to the above order, a merit list for all districts was published and objection was invited. Thereafter, final merit list was to be published on

30.05.2019.

6. Subsequently, the respondents published an AAM SUCHNA clarifying their stand that the counselling will not be limited to the appellants of the LPA but they will also consider all applicants as per their merit list.

7. Thereafter, the respondents issued a letter dated 17.05.2019 whereby and where under the candidature of those candidates who have obtained higher educational degree while working on regular basis i.e, class room courses while working as a para teacher was directed to be rejected from the counselling process.

8. The further case of the petitioners is that pursuant to the AAM SUCHNA a final merit list for counselling was prepared by the respondents on 30.05.2019 and on the basis of said list counselling for the post teachers of Inter Trained, where held on 03.06.2019.

9. Pursuant to the counselling, candidature of certain persons were rejected by the respondent authorities on various grounds, such as, they had obtained Inter Degrees, on (regular basis) while being posted as Para Teachers and several others reasons.

10. After completion of the counselling process and the scrutiny, final list for appointment in the post of Inter Trained Teachers was published by the respondent authorities and appointment letters were issued in favour of the petitioners in terms of which they were appointed in the Non- Para category, in the Grade Pay of Rs.4200 and were deputed in Various schools in the District of Ramgarh.

11. On the basis of appointment letters, the petitioners gave their joining in the designated schools within the time frame as stipulated by the respondent authorities and since then they were working to the satisfaction of all concerned.

12. The petitioners worked for three months after the appointment and the service book has also been opened by the respondent authorities in terms of Rule 288 of the Jharkhand Service Code.

13. On 15.10.2019, an order was issued whereby and whereunder the appointments in the Inter Trained Teachers Class- I-V, has been cancelled by the respondent authorities on the ground of anticipation of an order by the High Court so as to keep the seats vacant for appointment if such occasion arises.

14. Now appointment letters have been issued in favour of those candidates whose candidature was earlier rejected (Annexure-5), due to various anomalies in their candidature.

15. Being aggrieved by the order dated 15.10.2019 and issuance of appointment letters to those candidates whose candidature has earlier been rejected, the petitioners filed writ petition before this Court being W.P.(S) No.5968 of

2019.

16. The learned Single Judge, after hearing learned counsel for the parties, dismissed the writ petition by not interfering with the appointment of the private respondents, which is the subject matter of the instant appeal.

17. It is evident from the factual aspect as referred hereinabove that the several posts were created in different schools so as to fill up the post on the basis of Primary School Teachers Appointment Rules, 2012 which has been notified by notification 1632 dated 05.09.2012.

18. The advertisement was floated for appointment of Inter Trained teachers for Class I to V. The appointment process was started in several districts. Merit list was prepared as also the objections were invited till 22.05.2019. The final merit list was to be published on 30^thMay, 2019.

19. The petitioners claim that they were having requisite qualifications, applied for appointment for the post of Inter Trained Teachers. After completion of counselling process and scrutiny, final list was prepared for appointment to the post of Inter Trained Teachers. Subsequently, the appointment letters were issued in favour of these petitioners and they were appointed in non para category and also deputed in different schools in the district of Ramgarh.

20. The petitioners have also given their joining in respective designated schools and started working to the satisfaction of the respondents.

21. But after the lapse of three months from the date of their appointment when their service books have already been opened, the respondents have issued an order on 15.10.2019 cancelling the appointment of the petitioners. The writ petitioners had challenged the order of cancellation of their appointment on the ground that they have been appointed following the due procedure of law. As also no misrepresentation had been made on their behalf.

22. The further ground was taken that the violation of principle of natural justice is also there.

23. The respondents had appeared before the learned writ court and taken the ground that the petitioners since have been found to have obtained lesser marks then the last selected candidate, cannot be allowed to continue on the post.

24. The intervener had also appeared whose appointments have been said to suffer from impropriety on whose behalf the ground was taken that the petitioners have obtained lesser marks than the last selected candidate.

25. The learned Single Judge after appreciating the aforesaid argument as also by taking into consideration the issue of violation of principle of natural justice, wherein it has come that the notices were issued to the petitioners with a direction to further objection and pleadings but no stand was taken on the behalf of the petitioners, hence, the writ petition has been dismissed against which the present appeal.

Argument advanced on behalf of the appellants

26. Mr. Arpan Mishra, learned counsel appearing on behalf of the appellants-petitioners, has taken the following grounds:

(i) It is a case where the candidature of the Intervenors/private respondents had earlier been rejected. But subsequently, their candidature has been accepted based upon the marks allotted in their favour, they have been selected.

(ii) So far as the issue of securing lesser marks in comparison to that of the appointees are concerned, when the candidature of

intervenors has itself been rejected then irrespective of the marks obtained their candidature cannot be allowed to prevail upon the candidature of the petitioners. But this aspect of the matter has not been taken into consideration by the learned Single judge in right perspective.

(iii) There is violation of principle of natural justice, since, before cancelling the appointment, no show cause notice has been issued.

(iv) The learned counsel appearing for the writ petitioners-appellants has submitted that the impugned order, as such, suffers from infirmity and hence not sustainable in the eyes of law.

Argument advanced on behalf of respondent-State

27. The State has taken the following grounds:

(i) That the selection is purely based upon the consideration on merit.

(ii) It has been contended that the marks of the petitioners have been found to be lesser in comparison to that of the successful candidates, the private respondents herein, hence, if on that ground the petitioners have not been appointed, it cannot be said that the selection process suffers from an error.

(iii) So far as the contention that the candidature of the private respondents has been rejected on the ground that they were not found to be regular candidates in the intermediate class is concerned, there is no pleading to that effect.

(iv) Further, consciously the private respondents have not been impleaded as party making a specific prayer by challenging order of appointment, rather, the successful candidates, who have subsequently been appointed, had shown their appearance before the learned writ court by filing an intervention application. The learned State Counsel based upon the aforesaid ground has submitted that

the order passed by the learned Single Judge, therefore, suffers from no error.

Argument advanced on behalf of private respondents.

28. The following grounds have been taken by the learned counsel appearing on behalf of the private respondents-

(i) It has been contended that the candidature of these private respondents although had been rejected on earlier occasion but they had made a representation and based upon the order passed by the Director in this regard, their candidate has again been considered since they have secured higher marks in comparison to that of the petitioners. Hence, the private respondents have been found to be more meritorious and therefore, they have been appointed.

(ii) So far as the issue of rejection of their candidature is concerned, the same had never been questioned by the petitioners by making specific prayer before the writ court.

(iii) The issue of natural justice has also been discarded by the learned Single Judge, taking into consideration the plea taken by the State that notices have been to these writ petitioners

however, no stand was taken on behalf of the petitioner which shows that they were aware of the fact that they have been wrongly appointed.

(iv) The learned counsel based upon the aforesaid ground has submitted that in such

circumstances, the learned Single Judge has dismissed the writ petition, the same cannot be said to be suffer from an error.

Analysis:

29. We have heard the learned counsel for the parties, gone across the findings by learned Single Judge in the impugned order.

30. This Court before entering into the legality and propriety of the impugned order, deems it proper to refer some undisputed fact in this case.

31. The petitioners vis-à-vis the interveners who subsequently have been impleaded as party respondent to the writ petition had participated in the process of selection of appointment as para teacher after creating of the post, in pursuance to the Primary School Teachers Appointment Rules, 2012. They have been subjected to the selection process. The interveners/private respondents have secured higher marks in comparison to that of the petitioners. However, at that juncture the candidature of the private

respondents has been rejected as per Annexure-3 dated 17.05.2019. The concerned private respondents have made representation before the Director stating inter alia therein that their candidature is not worth to be rejected, since, whatever detail they have furnished, the same is in pursuance to the Rule as appended to the counter-affidavit. The Rule-12 which is relevant for the purpose is being quoted hereunder as:-

"12. नियम में उल्लिल्लित अिुदेशक ों की नियुल्लि हेतु नू्यितम 10 य ग्यताएँ निम्नवत् ह ोंगी-

क. शारीररक नशक्षा एवों स्वास्थ्य अिुदेशक

(i.) नकसी मान्यता प्राप्त ब र्ड से इन्टर परीक्षा उत्तीर्ड। (ii.) नकसी मान्यता प्राप्त ब र्ड या नवश्वनवद्यालय से शारीररक नशक्षा में सनटडनिकेट/नर्प्ल मा/नर्ग्री ।

ि. लनलत कला एवों सोंगीत अिुदेशक

(i.) नकसी मान्यता प्राप्त ब र्ड से इन्टर परीक्षा उत्तीर्ड । (ii.) नकसी मान्यता प्राप्त ब र्ड या नवश्वनवद्यालय से लनलत कला एवों सोंगीत में नियनमत क सड में स्नातक नर्ग्री/ सोंगीत में स्नातक/नर्प्ल मा या समकक्ष य ग्यता:

ग. कायाडिुभव अिुदेशक

(i.) नकसी मान्यता प्राप्त ब र्ड से इन्टर परीक्षा उत्तीर्ड। (ii.) NCVT, CTVT या झारिण्ड सरकार द्वारा मान्यता प्राप्त सोंस्थाि से नू्यितम एक वर्ड का सनटडनिकेट, नर्प्ल मा।"

32. It is evident from the directions issued by the competent authority whereby and whereunder the private respondents have been given due permission to upgrade their educational qualification and to that effect the relevant documents have been annexed. The private respondents had obtained intermediate passed certificate

and based upon that they have participated in the process of selection.

33. The private respondents have made representation against the decision of the authority by which their candidature has been rejected as also preferred writ petition being W.P.(S) No.5175 of 2019.

34. But, during the pendency of the writ petition, their candidature has been accepted and they have also been allowed to participate in the process of selection in which they have performed well in comparison to that of petitioners, since, they have obtained higher marks in comparison to that of the petitioners.

35. A merit list was prepared and based upon the performance of one or the other candidates, the private respondents have been found to be more meritorious in comparison to that of the petitioners and accordingly offer of appointment had been issued in their favour.

36. The petitioners, having not been found to be under the selected candidates, had preferred Writ Petition being W.P.(S) No.5968 of 2019, praying inter alia therein that they be appointed. However, the writ petition has been dismissed by taking into consideration the fact that the private respondents have been found to be more meritorious in comparison to that of the petitioners which is the subject matter of the present appeal.

37. This Court before proceeding further, needs to refer herein the jurisdiction of High Court in exercise of power conferred under Article 226 of the Constitution of India in the matter of process of selection which is already settled whereby and whereunder, as per the ratio laid down by Hon'ble Apex Court if there is any infirmity in the process of selection then certainly, such decision of the authorities will be subject to judicial review. But, if there is no error in the decision, the same is not amenable to judicial review by the High Court in exercise of the power conferred under Article 226 of the Constitution of India. Reference in this regard is made to the judgment rendered by Hon'ble Apex Court in the case of Syed TA Naqshbandi and Ors. vs. State of J&K and Ors., [(2003) 9SCC 592], wherein the Hon'ble Supreme Court has observed as under: "

"Judicial review is permissible only to the extent of finding whether the process in reaching the decision has been observed correctly and not the decision itself, as such. Critical or independent analysis or appraisal of the materials by the Courts exercising powers of judicial review unlike the case of an appellate court, would neither be permissible nor conducive to the interests of either the officers concerned or the system and institutions……"

38. Further reference in this regard be made to the judgment rendered by Hon'ble Apex Court in Tata Cellular

v. Union of India, [(1994) 6 SCC 651], wherein the Hon'ble Court at paragraphs 72-75 and 77 held as under:-

"72. Lord Scarman in Nottinghamshire County Council v. Secretary of State for the Environment [1986 AC 240, 251 : (1986) 1 All ER 199] proclaimed:

" 'Judicial review' is a great weapon in the hands of the judges; but the judges must observe the constitutional limits set by our parliamentary system upon the exercise of this beneficial power."

Commenting upon this Michael Supperstone and James Goudie in their work Judicial Review (1992 Edn.) at p. 16 say:

"If anyone were prompted to dismiss this sage warning as a mere obiter dictum from the most radical member of the higher judiciary of recent times, and therefore to be treated as an idiosyncratic aberration, it has received the endorsement of the Law Lords generally. The words of Lord Scarman were echoed by Lord Bridge of Harwich, speaking on behalf of the Board when reversing an interventionist decision of the New Zealand Court of Appeal in Butcher v. Petrocorp Exploration Ltd. 18-3- 1991."

73. Observance of judicial restraint is currently the mood in England. The judicial power of review is exercised to rein in any unbridled executive functioning. The restraint has two contemporary manifestations. One is the ambit of judicial intervention; the other covers the scope of the court's ability to quash an administrative decision on its merits. These restraints bear the hallmarks of judicial control over administrative action.

74. Judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made, but the decision-making process itself.

75. In Chief Constable of the North Wales Police v. Evans [(1982) 3 All ER 141, 154] Lord Brightman said:

"Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made. ***

Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power."

.... ... ... ...

77. The duty of the court is to confine itself to the question of legality. Its concern should be:

1.Whether a decision-making authority exceeded its powers?

2.Committed an error of law,

3.committed a breach of the rules of natural justice,

4.reached a decision which no reasonable tribunal would have reached or, 5.abused its powers.

Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken.

The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:-

(i) Illegality : This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.

(ii) Irrationality, namely, Wednesbury unreasonableness.

(iii) Procedural impropriety.

The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department, ex Brind [(1991) 1 AC 696], Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should,

"consider whether something has gone wrong of a nature and degree which requires its intervention". (emphasis supplied)

39. Similar principle has been laid down in the cases of

H.S. Sidhu v. Devendra Bapna & Ors, [(2016) 1 SCC

495] and U.V. Mahadkar v. Subhash Anand Chavan & Ors [(2016) 1 SCC 536].

40. The reason for referring the aforesaid judgments is that the main ground taken by the petitioners that there is error in the decision making process.

41. Admittedly herein, the candidature of the private respondents on earlier occasions had been rejected on the ground that they did not get the intermediate certificate as a regular candidate. But when they have represented based upon the due permission granted by the competent authority to get the intermediate pass certificate as has been appended in the counter-affidavit filed on behalf of the private respondents as also the writ petition had been filed before this Court, then the authorities have taken a decision by accepting the candidature of the private

respondents. They have been allowed to participate in the process of selection along with the petitioners, in which, the private respondents have been found to have secured more marks in comparison to that of the petitioners.

42. It also needs to refer herein that the petitioners at the time when such decision was taken by the authority concerned accepting their candidature and allowing the private respondents to participate in the process of selection, they have not questioned such decision of the authority, rather, even at the time of the filing of the writ petition such decision had not been questioned save and except the prayer for their appointment.

43. Law in this regard is settled that once the process of selection begins and the concerned candidates had participated, they cannot be allowed to question the decision taken by the competent authority. Reference in this regard be made to the judgment rendered by Hon'ble Apex Court in the case of Dr. G. Sarana Vs. University of Lucknow and Others (Supra), [(1976) 3 SCC 585] at paragraph 15, which reads as under:-

"15. We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood or bias as despite the fact that, the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution of the Selection

Committee. He seems to have voluntarily appeared before the Committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the Committee. This view gains strength from a decision of this Court in Manak Lal's case where in more or less similar circumstances, it was held that the failure of the appellant to take the identical plea at the earlier stage of the proceedings created an effective bar of waiver against him. The following observations made therein are worth quoting:

"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."

44. Further, the Hon'ble Apex Court in the judgment rendered in Om Prakash Shukla Vs. Akhilesh Kumar Shukla and Others [(1986) Suppl. SCC 285] has observed at pargraph 24, which reads as under :-

"24. Moreover, this is a case where the petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without protest. He filed the petition only after he had perhaps realised that he would not succeed in the examination. The High Court itself has observed that the setting aside of the results of examinations held in the other districts would cause hardship to the candidates who had appeared there. The same yardstick should have been applied to the candidates in the District of Kanpur also. They were not responsible for the conduct of the examination."

45. Likewise, in Marripati Nagaraja and Others Vs. Government of Andhra Pradesh and Others [(2007) 11

SCC 522] the Hon'ble Apex Court has held at paragraph 19 as under :-

"19. …. … … Appellants had appeared at the examination without any demur. They did not question the validity of the said question of fixing of the said date before the appropriate authority. They are, therefore, estopped and precluded from questioning the selection process."

46. Here, in the given facts of the case, the petitioners ought to have questioned the acceptance of the candidature at the inception or even before this Court but as would appear from the pleading made in the writ petition as also the prayer, that their candidature had not been cancelled, since, the private respondents have not been impleaded as party. That is the reason the private respondents had entered their appearance by filing intervention application. However, the same was allowed, their impleadment as respondent nos. 4 to 10.

47. Thus, the fact suggests and clarifies that there is no challenge of the acceptance of candidature by the petitioners even before this Court by filing the writ petition and in that aspect of the matter when the candidature of the private respondents have been accepted based upon the decision taken by the authority by which it was pointed out that the private respondents have been allowed to upgrade their educational qualification and in that view of the matter if they have been allowed to participate in the

process of selection in which they have secured higher marks in comparison to that of the petitioners then is it available for the petitioners now to question their non- selection and the selection of the private respondents.

48. The answer to this question is in negative due to the reason that once the candidature of the private respondents have been accepted, having not been questioned by the petitioners before any authority or any forum or any appropriate court of law and thereafter, if the private respondents have participated in the process of selection and on comparative assessment of the merit of all the candidates, if the private respondents have been found to be finally selected and engaged, the petitioners cannot be allowed to question the same without challenging the same at the appropriate stage after appointment having been made.

49. Coming back to the factual aspect herein the said aspect of the matter has been admitted by the petitioners that the private respondents have secured higher marks in comparison to that of the petitioners. Before this Court, now the ground has been taken that when their candidature had been rejected, then irrespective of the marks secured by the private respondents, the petitioners, who are to be considered as genuine candidates, are having

right of appointment over and above the private respondents.

50. But such contention is not acceptable to this Court, for the reason that, once the candidature of the private respondents have been accepted, having not been questioned by the petitioners before any authority or any forum or any appropriate court of law and thereafter, if the private respondents have participated in the process of selection and on comparative assessment of the merit of all the candidates, if the private respondents have been found to be finally selected and engaged, the petitioners cannot be allowed to question the same without challenging the same at the appropriate stage after appointment having been made.

51. The second ground has been taken of violation of principles of natural justice on the ground that the petitioners have been appointed and in course thereof their appointments have been cancelled. But as would appear from the counter-affidavit when specific stand had been taken before the learned writ court that the notices had been issued to the petitioners and they also replied. But there is no denial of the fact that private respondents have not secured higher marks.

52. The learned Single Judge has taken note of the aforesaid facts and has not accepted the ground of violation

of principles of natural justice by taking into consideration the stand of the State taken in the counter-affidavit that the notice was issued before cancellation of the appointment.

Conclusion

53. This Court, after having discussed the factual aspect along with the legal proposition as above and coming back to the impugned order, is of the view that the learned Single Judge has taken into consideration both the issues, i.e., the position of the petitioner vis a vis the private respondents as also the issue of principle of natural justice, as discussed hereinabove, therefore, this Court is of the considered view that the order impugned needs no interference.

54. Accordingly, the instant appeal stands dismissed.

55. Pending Interlocutory application, if any, also stands disposed of.

I agree (Sujit Narayan Prasad, J.) (Arun Kumar Rai, J.) (Arun Kumar Rai, J.)

Birendra/A.F.R.