# Nadeem Ahmad v. State of U.P

- **Citation:** (2019) 1 ILRA 877
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2018-09-05
- **Case number:** Service Single No. 812 of 2015
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nadeem-ahmad-v-state-of-u-p-44489
- **Pages:** 10

## Headnote

C.S.C., Shivam Sharma

A. Once a candidate willingly participates
in the examination then he cannot be
allowed to challenge the same after he
has been declared failed in the said
examination.
Departmental examination for Class III post of
Junior Assistant-Petitioner claims to have
participated in the typing test but allegedly no
videography carried out as provided in G.O
dated 19.08.2014 - Petitioner appeared in
written examination and viva-voce- Petitioner
was not selected- contention that a selection
process can also be challenged by a failed
candidate despite having participated in the
examination.
The
very
conduct
of
the
petitioner in waiting for the result to be
declared and after he having been declared as
failed, submitting a complaint subsequent
thereto itself indicates that the petitioner all
along was perfectly satisfied with the selection
process-No averment of violation of the
service rules or Rule 8 of the Rules, 2001
878 INDIAN LAW REPORTS ALLAHABAD SERIES
rather
the
violation
is
alleged
of
the
Government order dated 19.08.2014 which is
only directory and not mandatory. Writ
Petition dismissed.
(Para12,16,17,18,19,20)

Case Law Discussed/Relied Upon: -

## Text

1 All. Nadeem Ahmad Vs. State of U.P.
877
SCC (L&S) 239] , it was held as under:
(SCC p. 561, para 22)

"22.
In
Municipal
Committee,
Bahadurgarh v. Krishnan Behari [(1996)
2 SCC 714 : 1996 SCC (L&S) 539 :
(1996) 33 ATC 238] this Court held as
under: (SCC p. 715, para 4)

''4. ... In a case of such natureindeed, in cases involving corruptionthere cannot be any other punishment
than dismissal. Any sympathy shown in
such cases is totally uncalled for and
opposed to public interest. The amount
misappropriated may be small or large; it
is the act of misappropriation that is
relevant.'

Similar view has been reiterated by this
Court in Ruston & Hornsby (I) Ltd. v. T.B.
Kadam [(1976) 3 SCC 71 : 1976 SCC (L&S)
381] , U.P. SRTC v. Basudeo Chaudhary
[(1997) 11 SCC 370 : 1998 SCC (L&S) 155] ,
Janatha Bazar (South Kanara Central Coop.
Wholesale Stores Ltd.) v. Sahakari Noukarara
Sangha [(2000) 7 SCC 517 : 2000 SCC
(L&S) 962] , Karnataka SRTC v. B.S.
Hullikatti [(2001) 2 SCC 574 : 2001 SCC
(L&S) 469] and Rajasthan SRTC v.
Ghanshyam Sharma [(2002) 10 SCC 330 :
2003 SCC (L&S) 714] ."

22. In view of the above, the
contention raised on behalf of the
respondent employee, that the punishment
of
removal
from
service
is
disproportionate to the delinquency is not
worth acceptance. The only punishment in
case of the proved case of corruption is
dismissal from service."

38. Keeping in view the aforesaid
facts, we are of the view that the order
dated 05.09.2018, passed by the U.P.
Public Services Tribunal, Lucknow in
Claim Petition No. 214 of 2016 (Rajendra
Prasad v. State of U.P. and others) is
contrary to law and is liable to be set
aside.

39. Resultantly, the writ petition is
allowed. The judgment and order dated
05.09.2012, passed by the Tribunal is set
aside. No order as to costs.
-----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.09.2019

BEFORE
THE HON'BLE ABDUL MOIN, J.

Service Single No. 812 of 2015

Nadeem Ahmad.... ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
Rajeiu Kumar Tripathi

Counsel for the Respondent:
C.S.C., Shivam Sharma

A. Once a candidate willingly participates
in the examination then he cannot be
allowed to challenge the same after he
has been declared failed in the said
examination.
Departmental examination for Class III post of
Junior Assistant-Petitioner claims to have
participated in the typing test but allegedly no
videography carried out as provided in G.O
dated 19.08.2014 - Petitioner appeared in
written examination and viva-voce- Petitioner
was not selected- contention that a selection
process can also be challenged by a failed
candidate despite having participated in the
examination.
The
very
conduct
of
the
petitioner in waiting for the result to be
declared and after he having been declared as
failed, submitting a complaint subsequent
thereto itself indicates that the petitioner all
along was perfectly satisfied with the selection
process-No averment of violation of the
service rules or Rule 8 of the Rules, 2001
878 INDIAN LAW REPORTS ALLAHABAD SERIES
rather
the
violation
is
alleged
of
the
Government order dated 19.08.2014 which is
only directory and not mandatory. Writ
Petition dismissed.
(Para12,16,17,18,19,20)

Case Law Discussed/Relied Upon: -
1. Dharmendra Kumar and Ors Vs. Abhishek
Kumar and Ors, (2017) 35 LCD 1318

2. Pradeep Kumar Rai and Ors Vs. Dinesh
Kumar Pandey and Ors, (2015) 11 SCC 493

3. Ashok Kumar and Anr. Vs. State of Bihar,
(2017) 4 SCC 357

4. Madras Institute of Development Studies
and Anr. Vs. Dr. K. Sivasubramaniyan and Ors,
(2016) 1 SCC 454. (E-3)

(Delivered by Hon'ble Abdul Moin, J.)

1. Heard learned counsel for the
petitioner and learned Standing counsel
appearing for the State-respondents.

2. By means of the present petition,
the petitioner has prayed for the following
reliefs:-

"(a) Issue a writ, order or direction
in the nature of certiorari, quahsing the
impugned
promotion
order
dated
20.01.2015 issued by the opp-party no. 3,
as contained in Annexure No. 1 to the writ
petition.

(b) Issue a writ, order or direction in
the nature of mandamus, commanding the
opp-parties, particularly opp-parties no. 3
and 4 to constitute a fresh Departmental
Selection/Promotion Committee and to
conduct a fresh writeen test, typing test
and interview for selection and promotion
of employees from Group-D to Group-C
post by complying with the Guidelines
and Government order Dated 19.08.2014,
contained in Annexure No. 6 to the writ
petition.

(c) Issue such other order or
direction, which this Hon'ble Court
may deem just and proper in the
circumstances of the case in the
favour of the petitioner, and;

(d) award the costs of the
petition in favour of the petitioner.

3. The case set forth by the
petitioner is that he was appointed as a
Class IV employee by the respondents in
the year 2005 and has been working since
then on the said post. On 16.10.2014, the
respondent no. 3 issued an order for
holding a departmental examination for a
Class III post of Junior Assistant in terms
of provisions of dk;kZy; fyfid oxhZ;
(inksUurh }kjk HkrhZ) fu;ekoyh] 2001
(hereinafter referred to as "Rules, 2001")
for which a typing test was scheduled to
be
held
between
28.10.2014
to
30.10.2014 at Lucknow. Copy of the said
order is annexure 5 to the writ petition. A
Government order dated 19.08.2014 had
also been issued, a copy of which is
annexure 6 to the petition for the purpose
of videography in the examination hall
while
holding
the
typing
test
for
promotion to Group C post. The petitioner
claims to have participated in the typing
test but according to him, no videography
was carried out on the said date of
examination. Subsequently, when the
result was declared of the typing test, the
petitioner was declared as passed and his
name figured at Serial No. 15 in the list of
passed candidates which was issued along
with a covering letter dated 11.11.2014,
copy of which is annexure 7 to the writ
petition.
Thereafter,
the
petitioner
appeared in the written examination and
viva-voce which was held on 18.11.2014.
Even before the result was declared
claims were made of malpractices in the
said examination through a complaint by
1 All. Nadeem Ahmad Vs. State of U.P.
879
an Ex-President of the Class IV Employee
Union to the Government on 16.01.2015
and 19.01.2015, copies of which have
been filed cumulatively as annexure 8 to
the petition. The result was thereafter
declared on 20.01.2015, a copy of which
is annexure 1 to the petition in which the
petitioner was not declared selected.
Being aggrieved, the petitioner submitted
a representation before the respondent no.
2 on 31.01.2015, a copy of which is
annexure 9 to the petition and when no
action has been taken, the present petition
has been filed.

4. Learned counsel for the petitioner
while seeking to challenge the result dated
20.01.2015 declaring various persons as
selected contends that a perusal of the
result
would
indicate
that
various
ineligible persons have been declared as
selected while the petitioner who had the
requisite speed of typing and had also
passed the typing test, has not been
declared as selected in the final result
whereby casting a suspicion on the final
result.

5. Elaborating this, learned
counsel for the petitioner contends
that once a Government order dated
19.08.2014 had been issued for the
purpose of videography in the typing
test yet no videography was conducted
on the date of the typing examination
thus it is apparent that the Government
order was flagrantly and deliberately
violated with the result that those
persons who had no knowledge of
typing were impersonated by outsiders
and had the Government order dated
19.08.2014
been
followed
scrupulously then such impersonation
could
have
come
to
light
and
consequently such outsiders could
have
been
weeded
out
whereby
resulting in fairness and the same not
having been done vitiates the said
selection. It is also argued that all
these irregularities were pointed out
by the petitioner in his representation
dated 31.01.2015 as well as by the ExPresident of the Union through his
complaint dated 16.01.2015 but to no
avail and thus it is prayed that the
impugned result merits to be set aside.

6. With regard to the fact of the
petitioner having participated without any
demur or protest in the typing test and
thereafter in the written examination and
viva-voce and having only filed the
petition after having been declared as
failed in the written examination, learned
counsel for the petitioner has placed
reliance on a Division Bench judgment of
this Court in the case of Dharmendra
Kumar and Ors Vs. Abhishek Kumar
and Ors reported in (2017) 35 LCD 1318
to contend that a selection process can
also be challenged by a failed candidate
despite
having
participated
in
the
examination.

7. Per contra, Sri Shivam Sharma,
learned counsel appearing for the selected
candidates who have been impleaded as
respondents no. 5 to 20 takes a
preliminary objection that once the
petitioner participated in the typing test,
written examination and viva-voce and it
was only after the result has been declared
on 20.01.2015 that the petitioner has
raised objection to the selection process
through
his
representation
dated
31.01.2015 and consequently, taking into
consideration the settled proposition of
law in this regard, a failed candidate
cannot be allowed to challenge the
selection process. In this regard, reliance
880 INDIAN LAW REPORTS ALLAHABAD SERIES
has been placed on the judgment of the
Hon'ble Supreme Court in the cases of
Pradeep Kumar Rai and Ors Vs.
Dinesh
Kumar
Pandey
and
Ors
reported in (2015) 11 SCC 493 and
Ashok Kumar and Anr. Vs. State of
Bihar reported in (2017) 4 SCC 357 &
Madras
Institute
of
Development
Studies
and
Anr.
Vs.
Dr.
K.
Sivasubramaniyan and Ors reported in
(2016) 1 SCC 454.

8. On merits, Sri Sharma argues that
when the typing test was held between
28.10.2014 to 30.10.2014, the petitioner
was
perfectly
aware
about
the
Government order dated 19.08.2014 and
thus in case he found that no videography
had been conducted on the said date, he
should have either not participated in the
typing test and lodged his objections or
should have submitted a complaint
immediately
but
the
petitioner
participated in the typing test and was
also declared as selected in the typing test
in the result which was declared on
11.11.2014. It is only when the petitioner
has been declared unsuccessful in the
final result dated 20.1.2015 that he has
approached the respondents through his
representation dated 31.01.2015 and has
thereafter approached this Court, which
conduct itself indicates that the petitioner
was all along satisfied with the typing test
that had been held by the respondents and
only after having been declared failed has
approached this Court which is legally
impermissible in the eyes of law.

9. So far as the Government order
dated 19.08.2014 is concerned, Sri
Sharma argues that the Rules, 2001 do
not contemplate or provide for holding
of a videography of the typing test and
as such the Government order can only
be held to be directory and not
mandatory and thus even if the said
Government order was not followed and
there being no such provision under the
Rules,
consequently
there
is
no
illegality or infirmity in no videography
having been held during the typing test.
It is thus contended that the writ petition
being
misconceived
merits
to
be
dismissed.

10. Learned Standing counsel on the
basis of averments contained in the
counter affidavit argues that the typing
test was held from 28.10.2014 to
31.10.2014 in the supervision of an
invigilator. There was no illegality in
conducting the typing test as the petitioner
has passed the typing test but it was only
when his name did not find place in the
final merit list and he could not be
promoted that the petitioner is now
making wild and false insinuations in
order to make out a case against the said
selection which is patently misconceived.
Learned Standing counsel also adopts the
other arguments as have been raised by
Sri Sharma pertaining to the very
maintainability of the petition.

11. Heard learned counsels for the
contesting parties and perused the records.

12. The petitioner a Class IV
employee participated in the typing test
held for the purpose of promotion to a
Group C post. The rules governing the
promotion are governed by the Rules,
2001 which categorically provides in rule
8 for a written examination, interview and
service record to be considered as well as
a typing test to be organized. Rule 8 of the
Rules, 2001 do not contain any provision
for holding of any videography for the
typing test. Fully being aware of the
1 All. Nadeem Ahmad Vs. State of U.P.
881
Rules, the petitioner willingly participated
in the typing test which was held from
28.10.2014 to 30.10.2014. Though the
Government
order
dated
19.08.2014
provides for a videography yet admittedly
no videography was held of the typing
test. In case the petitioner was of the view
that the videography of the typing test
was mandatory, he should have either not
participated in the typing test or in case he
participated, then he should have lodged a
complaint immediately or could have
participated under protest. From the
arguments as raised by the learned
counsel for the petitioner as well as
records it clearly comes out that it is only
after the petitioner was declared failed in
the final result which was declared on
20.01.2015 that he has submitted his
complaint on 31.01.2015. Thus, from the
conduct of the petitioner itself it is
apparent that the petitioner willingly
participated in the typing test despite the
existence of the Government order dated
19.08.2014 and no videography having
been held by the respondents. Thus, in
view of the settled proposition of law
once a candidate willingly participates in
the examination then he cannot be
allowed to challenge the same after he has
been declared failed in the said exam.

13. In this regard, suffice would be
to place reliance on the judgment of the
Apex Court in the case of Pradeep
Kumar Rai (supra) wherein the Apex
Court has held as under:-

"16. Moreover, we would concur
with the Division Bench on one more
point that the Appellants had participated
in the process of interview and not
challenged it till the results were
declared. There was a gap of almost four
months
between
the
interview
and
declaration of result. However, the
Appellants did not challenge it at that
time. Thus, it appears that only when the
Appellants
found
themselves
to
be
unsuccessful,
they
challenged
the
interview. This cannot be allowed. The
candidates
cannot
approbate
and
reprobate at the same time. Either the
candidates should not have participated
in the interview and challenged the
procedure or they should have challenged
immediately after the interviews were
conducted. (See Vijendra Kumar Verma v.
Public Service Commission, Uttarakhand
and Ors. (2011) 1 SCC 150, and K.H.
Siraz v. High Court of Kerala and Ors.
(2006) 6 SCC 395)."

14. Likewise, Hon'ble Supreme
Court in the case of Ashok Kumar
(supra) has held as under:-

"10. The basic issue that was
addressed by the Division Bench was that
the appellants having participated in the
fresh round of selection could not be
permitted to assail the process once they
were declared unsuccessful. On this
aspect, a brief recapitulation of the facts
would be in order. In the original process
of selection, following the issuance of
General order No. 204 of 2003 by the
District and Sessions Judge, Muzaffarpur
on
2
December
2003,
a
written
examination was held on 20 April 2004
consisting of eighty five marks followed
by an interview on 7 July 2004 consisting
of fifteen marks.

The High Court declined to approve
of the selection list and issued through its
Registrar
(Administration),
a
communication dated 19 August 2004
requiring the holding of a fresh written
examination carrying ninety marks in
which the qualifying marks would be
882 INDIAN LAW REPORTS ALLAHABAD SERIES
regarded as forty five in terms of its
General letter No.1 of 1995. Pursuant
thereto, a circular was issued in the form
of a new General order bearing No. 171
of 2004 on 8 October 2004 which
stipulated that in terms of the directions
issued by the High Court on 19 August
2004, a fresh written examination would
be held carrying ninety marks (with
qualifying marks as forty five) followed by
an interview of ten marks. Candidates
who had applied earlier were not
required to apply afresh.

11. The appellants participated in the
fresh
process
of
selection.
If
the
appellants were aggrieved by the decision
to hold a fresh process, they did not
espouse their remedy. Instead, they
participated in the fresh process of
selection and it was only upon being
unsuccessful that they challenged the
result in the writ petition. This was clearly
not open to the appellants. The principle
of estoppel would operate.

12. The law on the subject has been
crystalized in several decisions of this
Court. In Chandra Prakash Tiwari v.
Shakuntala Shukla[4], this Court laid
down the principle that when a candidate
appears at an examination without
objection and is subsequently found to be
not successful, a challenge to the process
is precluded. The question of entertaining
a petition challenging an examination
would not arise where a candidate
hasappeared and participated. He or she
cannot subsequently turn around and
contend that the process was unfair or
that there was a lacuna therein, merely
because the result is not palatable. In
Union of India v. S. Vinodh Kumar[5],
this Court held that :

"18. It is also well settled that those
candidates who had taken part in the
selection process knowing fully well the
procedure laid down therein were not
entitled to question the same... (See also
Munindra Kumar v. Rajiv Govil[6] and
Rashmi Mishra v. M.P. Public Service
Commission[7])."

The same view was reiterated in
Amlan Jyoti Borroah (supra) where it was
held to be well settled that candidates
who have taken part in a selection
process knowing fully well the procedure
laid down therein are not entitled to
question it upon being declared to be
unsuccessful. In Manish Kumar Shah v.
State of Bihar[8], the same principle was
reiterated in the following observations :

"16. We also agree with the High
Court that after having taken part in the
process of selection knowing fully well
that more than 19% marks have been
earmarked for viva voce test, the
Petitioner is not entitled to challenge the
criteria or process of selection. Surely, if
the Petitioner's name had appeared in the
merit list, he would not have even
dreamed of challenging the selection. The
Petitioner invoked jurisdiction of the High
Court
under
Article
226
of
the
Constitution of India only after he found
that his name does not figure in the merit
list prepared by the Commission.

This conduct of the Petitioner clearly
disentitles him from questioning the
selection and the High Court did not
commit any error by refusing to entertain
the writ petition. Reference in this
connection may be made to the Judgments
in MadanLal v. State of J. and K.
MANU/SC/0208/1995 : (1995) 3 SCC
486, MarripatiNagaraja v. Government of
Andhra
Pradesh
and
Ors.
MANU/SC/8040/2007 : (2007) 11 SCC
522, Dhananjay Malik and Ors. v. State of
Uttaranchal
and
Ors.
MANU/SC/7287/2008 : (2008) 4 SCC
1 All. Nadeem Ahmad Vs. State of U.P.
883
171, AmlanJyotiBorooah v. State of
Assam MANU/SC/0077/2009 : (2009) 3
SCC 227 and K.A. Nagamani v. Indian
Airlines and Ors. (supra)." In Vijendra
Kumar
Verma
v.
Public
Service
Commission[9], candidates who had
participated in the selection process were
aware that they were required to possess
certain specific qualifications in computer
operations.

The appellants had appeared in the
selection process and after participating
in the interview sought to challenge the
selection
process
as
being
without
jurisdiction.
This
was
held
to
be
impermissible. In Ramesh Chandra Shah
v. Anil Joshi[10], candidates who were
competing for the post of Physiotherapist
in the State of Uttrakhand participated in
a written examination held in pursuance
of an advertisement. This Court held that
if they had cleared the test, the
respondents would not have raised any
objection to the selection process or to the
methodology adopted. Having taken a
chance of selection, it was held that the
respondents were disentitled to seek relief
under Article 226 and would be deemed
to have waived their right to challenge the
advertisement
or
the
procedure
of
selection. This Court held that :

"18. It is settled law that a person
who consciously takes partin the process
of selection cannot, thereafter, turn
around and question the method of
selection and its outcome." In Chandigarh
Administration v. Jasmine Kaur[11], it
was held that a candidate who takes a
calculated risk or chance by subjecting
himself or herself to the selection process
cannot turn around and complain that the
process of selection was unfair after
knowing of his or her non-selection. In
Pradeep Kumar Rai v. Dinesh Kumar
Pandey[12], this Court held that :
"Moreover, we would concur with the
Division Bench on one more point that the
appellants had participated in the process
of interview and not challenged it till the
results were declared.

There was a gap of almost four
months
between
the
interview
and
declaration of result. However, the
appellants did not challenge it at that
time. This, it appears that only when the
appellants
found
themselves
to
be
unsuccessful,
they
challenged
the
interview. This cannot be allowed. The
candidates
cannot
approbate
and
reprobate at the same time. Either the
candidates should not have participated
in the interview and challenged the
procedure or they should have challenged
immediately after the interviews were
conducted." This principle has been
reiterated in a recent judgment in Madras
Institute of Development v. S.K. Shiva
Subaramanyam[13]."

15. Similarly the Hon'ble Supreme
Court in the case of Madras Institute of
Development Studies (supra) has held as
under:-

20. The question as to whether a
person who consciously takes part in the
process of selection can turn around and
question the method of selection is no
longer res integra. 21. In Dr. G. Sarana
v. University of Lucknow and Ors. (1976)
3 SCC 585, a similar question came for
consideration before a three Judges
Bench of this Court where the fact was
that the Petitioner had applied to the post
of Professor of Athropology in the
University of Lucknow. After having
appeared before the Selection Committee
but on his failure to get appointed, the
Petitioner rushed to the High Court
pleading bias against him of the three
884 INDIAN LAW REPORTS ALLAHABAD SERIES
experts in the Selection Committee
consisting of five members. He also
alleged doubt in the constitution of the
Committee. Rejecting the contention, the
Courtheld:

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 of 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.

22. In Madan Lal and Ors. v. State of
J&K and Ors. (1995) 3 SCC 486, similar
view has been reiterated by the Bench
which held that:
9. 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.

23. In Manish Kumar Shahi v. State
of Bihar (2010) 12 SCC 576, this Court
reiterated the principle laid down in the
earlier judgments and observed:

We also agree with the High Court
that after having taken part in the process
of selection knowing fully well that more
than 19% marks have been earmarked for
viva voce test, the Petitioner is not
entitled to challenge the criteria or
process of selection. Surely, if the
1 All. Nadeem Ahmad Vs. State of U.P.
885
Petitioner's name had appeared in the
merit list, he would not have even
dreamed of challenging the selection. The
Petitioner invoked jurisdiction of the High
Court
Under
Article
226
of
the
Constitution of India only after he found
that his name does not figure in the merit
list prepared by the Commission. This
conduct
of
the
Petitioner
clearly
disentitles him from questioning the
selection and the High Court did not
commit any error by refusing to entertain
the writ petition.

24. In the case of Ramesh Chandra
Shah and Ors. v. Anil Joshi and Ors.
(2013) 11 SCC 309, recently a Bench of
this Court following the earlier decisions
held as under:

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 question the
advertisement
or
the
methodology
adopted by the Board for making
selection and the learned Single Judge
and the Division Bench of the High Court
committed grave error by entertaining the
grievance made by the Respondents."

16. Thus, once the conduct of the
petitioner is seen in the context of the
aforesaid law laid down by the Apex
Court, it is apparent that the petitioner
willingly participated in the examination
but when he was declared failed he has
challenged the process, which challenge is
legally impermissible.

17. As regards the complaints
submitted by an Ex-President of the
Union on 16.01.2015 highlighting the
alleged illegalities, suffice to state that the
said complaint was never submitted by the
Union itself rather was submitted by an an
Ex-President.
Nothing
prevented
the
petitioner from submitting a complaint, as
already indicated above, immediately on the
date of the type test or subsequent to the type
test having been held but the very conduct of
the petitioner in waiting for the result to be
declared and after he having been declared as
failed, submitting a complaint subsequent
thereto itself indicates that the petitioner all
along was perfectly satisfied with the
selection process.

18. As regards the Government
order dated 19.08.2014 which provides
for videography, suffice to state that
conduct of videography does not form
part of the Rules, 2001. The said
Government order is not mandatory and at
the most be said to be only directory
inasmuch as no consequence for not
holding of the videography has been
provided. Further, nothing prevented the
Government
from
incorporating
videography during type test to be part of
the Rule 2001. In this view of the matter,
the said Government order can at the most
be said to be directory only and once the
respondents have categorically stated in
their counter affidavit that an invigilator
had been deputed during the type test and
no illegalities were brought to his notice
consequently
merely
because
the
petitioner has failed and has not been
declared as selected would not now give a
license to the petitioner to place reliance
on the aforesaid Government order dated
19.08.2014 to raise a challenge to the
typing test, more particularly when the
petitioner participated in the said type test
without any objection, demur or protest.

19. As regards the Division Bench
judgment of this Court in the case of
886 INDIAN LAW REPORTS ALLAHABAD SERIES
Dharmendra Kumar (supra), wherein
this Court had interfered in the selection
process after the result had been declared,
in the said case, the locus of the petitioner
to file a petition after participating in the
selection had been raised but the same
was negated by this Court on the ground
that the grievance of the unselected
candidates was with relation to the
rounding of marks that had been done by
the respondents without existence of any
such provision in the service rules. Thus,
the service rule had itself been violated by
the respondents while conducting the
selection. This would be apparent from a
perusal of the following observations
made by the Division Bench of this Court,
which, for the sake of convenience, are
reproduced below:-

"18. In the instant case, what we find
is that challenge to any rule or
prescription or criteria or procedure for
selection was not made by the petitioners
before the learned Single Judge. What
was assailed before the learned Single
Judge was the manner in which the
selection was held which according to the
petitioners was contrary not only to the
Service Rules, 2008 but also to the
Instructions Manual. It was contended by
the petitioners before the learned Single
Judge that application of rounding off
marks was not permissible in absence of
any such provision in the Service Rules,
2008 or in the Instructions Manual. They
had also contended that calling of
candidates more than three times the
vacancies for the purpose of group
discussions was also in violation of Rule
15(f) of the Service Rules, 2008 and
Clause 2.7 of the Instructions Manual.

19. In the aforesaid view of the
matter, we are not impressed by the
submissions made in regard to the locus
of the petitioners for challenging the
selection. We are, thus, in agreement with
the view recorded by learned Single
Judge, in this regard, in the judgment and
order under appeal. "

20. In the present case, there is no
averment of violation of the service rules
or Rule 8 of the Rules, 2001 rather the
violation is alleged of the Government
order dated 19.08.2014 which, as already
indicated above, can at the most be
considered to be only directory and not
mandatory. Hence, the aforesaid judgment
of
Dharmendra
Kumar
(supra)
is
distinguishable and would not have any
application in the facts of the present case.

21. Accordingly, taking into
consideration the aforesaid discussion,
no case for interference is made out.
The writ petition is dismissed.
----------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.08.2019

BEFORE
THE HON'BLE RAJUL BHARGAVA, J.

Criminal Appeal (U/S 378(4) of Cr.P.C.) No. 8
OF 2019

Pramod Tyagi ...Appellant (In Jail)
Versus
State of U.P. and Anr. ...Opposite Parties

Counsel for the Appellant:
Sri Veerendra Kumar Shukla, Sri Pawan
Kumar Tiwari.

Counsel for the Opposite Parties:
A.G.A.

A.
Negotiable
Instruments
Act
-
Section
256
-
discretion
must
be
exercised judicially and fairly without