JUDGMENT - Lodha R.M., J.:-Heard.

2. On 12-9-2003, we passed the following order :

"We asked the learned Counsel for petitioner whether the petitioner participated in the selection process. The learned Counsel for petitioner answered in the affirmative. If that be so, we asked the learned Counsel for petitioner, whether a candidate who has participated in the selection process can challenge the selection process if he was not selected. Learned Counsel for petitioner prays for time to study the point.

S.O. 18-9-2003."

3. The learned Counsel for the petitioner submitted that even if the petitioner participated in the selection process, he is entitled to challenge the selection process. Relying upon (Basheshar Nath v. Commissioner of Income-tax, Delhi Rajasthan another)1, 1959 (Supp. 1) S.C.R. 528 , the learned Counsel submitted that waiver of fundamental right does not arise and wherever breach of fundamental right is there, a person or a citizen cannot give up or waive breach of fundamental right. He also relied upon (Olga Tellis others v. Bombay Municipal Corporation others)2, 1985(2) Bom.C.R. 434 , wherein the same legal position was reiterated that there can be no estoppel against or waiver of fundamental right. The learned Counsel for the petitioner also placed reliance on the judgment of the Apex Court in (Kailash Chand Sharma v. State of Rajasthan others)3, A.I.R. 2002 S.C. 2877, and contended that in case of challenge to unconstitutional discrimination, the doctrine of acquiescence, estoppel, set out in the law, does not apply. The Counsel for petitioner submitted that the appointment made solely on the basis of interview is grossly illegal and in support of this proposition he relied upon (Ajay Hasia v. Khalid Mujib Sehravardi others)4, A.I.R. 1981 S.C. 487, and (Praveen Singh v. State of Punjab others)5, A.I.R. 2001 S.C. 152.

4. On the other hand, the learned Counsel for respondent No. 3 submitted that the petitioner having participated in the selection process, cannot be permitted to challenge the selection process if he was not selected, in the discretionary remedy under Article 226 of the Constitution of India. She relied upon the judgment of the Supreme Court in (Madan Lal others v. State of Jammu Kashmir others)6, 1995(3) S.C.C. 486 and (G.N. Nayak v. Goa University others)7, 2002(4) Bom.C.R. (S.C.)216 .

5. We bestowed our thoughtful consideration to the rival contentions. In Basheshwar Nath, (cited supra), the Apex Court in paragraphs 13 and 14 observed thus :

"13. ....... There can, therefore, be no doubt or dispute that this Article is founded on a sound public policy recognised and valued in all civilised States. Coming then to the language of the Article it must be noted first and foremost that this article is, in form, an admonition addressed to the State and does not directly purport to confer any right on any person as some of the other Articles, e.g., Article 19, do . The obligation thus imposed on the State no doubt, enures for the benefit of all persons, for, as a necessary result of the operation of this Article, they all enjoy equality before the law. That is, however, the indirect, though necessary and inevitable, result of the mandate. The command of the Article is directed to the State and the reality of the obligation thus imposed on the State is the measure of the fundamental right which every person within the territory of India is to enjoy. The next thing to notice is that the benefit of this Article is not limited to citizens, but is available to any person within the territory of India. In the third place it is to be observed that, by virtue of Article 12, "the State" which is, by Article 14, forbidden to discriminate between persons includes the Government and Parliament of India and the Government and the legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. Article 14, therefore,

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