Unsuccessful candidates who have participated in a selection process without protest cannot challenge the selection process through a writ petition.

Shivakant Prasad, J.

1. This writ application is directed against the impugned order dated 26.3.2010 passed by the learned Second Bench of the Central Administrative Tribunal in O.A. No. 67 of 2009 with O.A. 198 of 2009 and O.A. No. 606 of 2009.

2. Chronology and events of the instant case is that the applicants had applied in terms of the advertisement No. 2/2007 dated 12-18 January, 2008 for the posts of ‘Nursing Orderly’ in Group - ‘D’ and were called for appearing in the written tests held on 31.3.2008 and were declared qualified in the written tests vide the Cause Title of the applicants (Supra.) who are also applicants in other analogous original applicants pending adjudication before the Hon’ble Tribunal Viz. O.A. No. 67 of 2009 with O.A. 198 of 2009 and O.A. No. 606 of 2009.

3. The qualified applicants were called for interview held on various dates but due to certain extraneous reasons on the plea of short listing for favoring the near relations and friends of the working people in the ESIC Hospital and other attached units, like canteen and security units were not selected though having been declared qualified in the written tests and doing well in the interview, on the plea of short-listing the panel.

4. The provision for the process of selection is one that is written test as held on 31.8.2008 and not more. The respondents are not entitled to compel or to insist the duly qualified persons in the written test to be the party in the interview or vive voce test or both for the purpose of then indulging the imaginary process of ‘Short listing’ as held and intimated by them in their communication No. 412A-12/24/1/MS/2008/5716 dated 07.01.2009.

5. In that position of the matter the prime criteria of the process of selection holding comprehensive written test has been made not only subordinate to the ALTERNATIVE PROVISO VIZ. ‘Or interview of both’ vide condition No. 8 & E ibid, in the said advertisement No. 2/2007 website No. www exic nic. in dated 12-18th January, 2008.

6. The stipulations run as ‘Or interview or both’ in exclusion of the proviso Mode of Election : Open competitive examination (objective type) must not be constructed as a single set or circumstances; it has to be read as EITHER competitive written test and alternative provision (or) interview or both. It is further clarified that the existing proviso cannot be said to be capable of giving scope for indulging in and/or resorting to the proviso ‘Or both’ such view would get support of the solemn decision/interpretation/ruling of the Hon’ble Court in course of Their interpretation ‘Either…….or’ reported in AIR 1958 MP-16 Dictionary Meaning of the ‘Either ……. Or’ is ONE nor both; if the first one is attempted the second one ‘or’ becomes redundant. It should be construed one of the Two and not both (Ref. Pieworth 68 LT 1879 Ch. 328 and Ch. 642) Pieworth English Dictionary 1899. Hence, the said competitive written test is not capable of being subjected to and/or subordinated to the second alternative ‘Or always presupposes ‘Either’- not concurrently useable. Clause ‘or both’ such as tea or coffee not both. It is also not interchangeable with the process of short listing’ as wrongly and arbitrarily used in the respondents letter dated 07.01.2009.

7. The applicants herein further state that they have been declared successful/qualified in the process of selection as being the written tests held on 31.3.2008 and thus have acquired the right to be recruited, relying on the genuine prescribed provision, contained in the said Advertisement in terms of the confirmed and substantial proviso vide condition No. 8 and E below and Clause 14 ibid and thereby they are entitled to be recruited forthwith as per the prevailing rules or recruitments of the ESIC Hospital (EZ) getting the alleged final selection list of candidates dated 31.12.2008 set aside in limine.

8. With the above facts the writ petitioners along with some other moved original applications before the learne