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HIGH COURT OF PATNA
A. K. Ganguly, J.
Dilip Kumar Jha & anr.
Arun Kumar Yadav & Ors. - Petitioners
Vs
The State of Bihar & ors. - Respondents
C.W.J.C. Nos. 11897 and 12308 of 1996
Decided on : 13.8.1998
WRIT PETITION - SELECTION PROCESS - APPOINTMENT OF ASSISTANT ENVIRONMENTAL ENGINEER - PRELIMINARY OBJECTION - ESTOPPEL - DOCTRINE OF EQUITY - APPLICABILITY - JUDICIAL OPINION - RATIO DECIDENDI - FUNDAMENTAL RIGHT - ARTICLE 14 AND 16 OF THE CONSTITUTION - WAIVER - CONSTITUTION BENCH RATIO - ECONOMIC DURESS AND UN-EQUAL BARGAINING POWER - SERVICE JURISPRUDENCE - PRELIMINARY OBJECTION OVERRULED - FACTS OF THE CASE - SELECTION PROCEDURE INITIATED BY THE BOARD - ADVERTISEMENTS ISSUED - APPOINTMENT OF PETITIONERS - SUBSEQUENT ADVERTISEMENTS - APPOINTMENT OF PRIVATE RESPONDENTS - CHALLENGE TO THE SELECTION PROCESS - GROUNDS - VIOLATION OF RULES AND REGULATIONS - PRIOR SANCTION OF STATE GOVERNMENT NOT OBTAINED - PROCEDURE FOR SELECTION DECIDED BY SELECTION COMMITTEE - EXCESS APPOINTMENTS - DIRECTION BY STATE GOVERNMENT TO STOP RECRUITMENT PROCESS - NON-COMPLIANCE - SELECTION PROCEDURE QUASHED - REINSTATEMENT OF PETITIONERS - FRESH SELECTION PROCEDURE TO BE INITIATED - TIME FRAME INDICATED - STATE GOVERNMENT TO CO-OPERATE.
Fact of the Case:
Petitioners appeared in the selection process for the post of Assistant Environmental Engineer conducted by the Bihar State Pollution Control Board (Board). They were not successful and challenged the selection process on various grounds, including violation of rules and regulations, non-obtaining of prior sanction from the State Government, procedure for selection decided by the Selection Committee, excess appointments, and non-compliance with the direction of the State Government to stop the recruitment process. The Board raised a preliminary objection that the petitioners were estopped from challenging the selection process since they had participated in it.
Finding of the Court:
The Court overruled the preliminary objection, holding that the doctrine of estoppel was not applicable in this case. It relied on various Supreme Court judgments which held that a candidate who has participated in a selection process cannot be estopped from challenging the legality of the process if there are glaring illegalities. The Court also held that the petitioners had a fundamental right to have their candidature considered on the basis of a valid selection procedure and that this right could not be waived by their participation in the process.
Issues: 1. Whether the petitioners were estopped from challenging the selection process since they had participated in it? 2. Whether the selection procedure was conducted in accordance with the rules and regulations? 3. Whether the Board had obtained prior sanction from the State Government for the appointments? 4. Whether the procedure for selection was decided by the Selection Committee? 5. Whether there were excess appointments? 6. Whether the Board had complied with the direction of the State Government to stop the recruitment process?
Ratio Decidendi: 1. The doctrine of estoppel is not applicable in cases where there are glaring illegalities in the selection process. 2. A candidate who has participated in a selection process has a fundamental right to have their candidature considered on the basis of a valid selection procedure, and this right cannot be waived by their participation in the process. 3. The Board had not obtained prior sanction from the State Government for the appointments, in violation of the rules and regulations. 4. The procedure for selection was decided by the Selection Committee, which was not authorized to do so. 5. There were excess appointments, as more candidates were appointed than the number of posts advertised. 6. The Board had not complied with the direction of the State Government to stop the recruitment process.
Final Decision: The Court quashed the impugned selection procedure and directed the Board to initiate a fresh selection procedure in accordance with the rules and regulations within a specified time frame. The petitioners were directed to be reinstated on an ad hoc basis until the completion of the fresh selection process, and the private respondents, who were appointed pursuant to the impugned selection procedure, were allowed to continue on their posts on an ad hoc basis until the completion of the fresh selection process.
A. K. Ganguly, J. - Both these writ petitions have been filed raising identical issues and as such both the writ petitions are decided by this common JUDGMENT :.
2. In both these writ petitions, substantial challenge has been made to the selection proceeding for appointment to the post of Assistant Environmental Engineer by the Bihar State Pollution Control Board (hereinafter called the said Board). It is true that the petitioners who have challenged the said selection proceeding appeared in the same but they are not successful.
3. Now a preliminary objection with great vigour has been urged by the learned counsel for the respondents that the petitioners having appeared in the selection proceeding and having been unsuccessful in the same cannot challenge its legality. On this aspect the trend of judicial opinion in some cases is that once a person appears before a Selection Committee and offers his candidature for the same, he cannot subsequently turn round and say that the selection authorities are not competent or that the selection proceedings were not in accordance with the rules. The rationale behind this Judicial opinion apparently rests on the doctrine of Estoppel. The said doctrine is based on equity. The equity of a case cannot be strait jacketed within rigid formula. It depends on the fact situation which varies from case to case.
4. Apart from that there are many important aspects connected with this question. When a challenge by an unsuccessful candidate to a selection proceeding is barred at the threshold just because he was a candidate, this bar is slapped on him on the assumption that by appearing before the selection proceeding, he has taken a chance and he would not have protested if he had been selected. But as he became unsuccessful, he is raising his objections to the selection process.
5. This Court, with utmost respect, views it as a line of reasoning but not as any declaration of law under Article 141 of the Constitution. Every one in life takes chances in many situations. In ORDER :to survive in today's competitive world one cannot afford to remain supine and indolent but has to be up and doing and take whatever chances that come his way.
6. When a person contests an election in any form, right from the Panchayat to Parliament, he takes a chance. But if he fails, the Court cannot say that having taken a chance, you cannot challenge the election result. Similarly when a student appears in an examination, he takes a chance. But if he fails and if has a case to challenge the examination process, his case cannot be dismissed solely on the ground that he has taken a chance by appearing in the examination. When a business man participates in the tendering process and finds that his tender is not accepted, on an improper ground, the Court cannot fold its hands merely on the ground of his participation in the process.
7. Therefore, how an aspirant for a job which is vitally linked with his livelihood can be told off at the gates by the Court that his grievances about the validity of the selection process will not be examined just because he participated in the selection process. If Court says so, does that not offend the brooding omnipresence of the equality clause in the Constitution?
8. Thus it boils down that an aspirant, even being an aggrieved person, on the sole ground of participation loses his 'locus' to challenge illegalities in matters of public employment.
9. But the law relating to locus has undergone a sea change in recent time. The traditional rigours of locus in private law are no longer applicable in public law field. Judges in the past had an instinctive reluctance to relax the rules about locus on the apprehension that a relaxed rule will open 'flood gates' of litigation. But that attitude has changed with the gradual expansion of governmental control over citizen's life. Now the Courts, both in England and India, have realised the importance of mellowing down the rigours of law relating to
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