DR. MANU BANGA vs INDIRA GANDHI DELHI TECHNICAL UNIVERSITY FOR WOMEN

$~67
* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment delivered on: 20.03.2024

+ W.P.(C) 4224/2024 & CM APPL. 17235/2024

DR. MANU BANGA ….. Petitioner
versus

INDIRA GANDHI DELHI TECHNICAL UNIVERSITY FOR WOMEN ….. Respondent

Advocates who appeared in this case:

For the Petitioner : Mr. Rishabh Kapur and Mr. Tanmay Gupta, Advs.

For the Respondent : Mrs. Avnish Ahlawat with Mr. Nitish Kumar Singh, Ms. Laavanya Kaushik and Ms. Aliza Alam, Advs.
CORAM:
HON’BLE MR. JUSTICE TUSHAR RAO GEDELA

J U D G M E N T

TUSHAR RAO GEDELA, J. (ORAL)

[ The proceeding has been conducted through Hybrid mode ]
CRL.M.A. 17236/2024 (for exemption)
1. Exemption is allowed, subject to all, just exceptions.
2. The application stands disposed of.
W.P.(C) 4224/2024
3. This is a writ petition under Article 226 of the Constitution of India, 1950, inter alia, seeking quashing of the result dated 08.01.2024 declared by the respondent University for the post of Assistant Professor in Department of Information Technology and Computer Science & Engineering. The petitioner also seeks further direction to the respondent to consider and award appropriate points against his journal paper “Security and Privacy-Wiley” and as a consequence thereto the appointment of the petitioner as Assistant Professor in either of the Departments is sought.
4. It is not disputed that the petitioner had participated in the examination for which the respondent University had invited applications vide the notification dated 27.02.2023 for the post of Assistant Professor in various disciplines including Information Technology as also Computer Science & Engineering.
5. It is stated by the petitioner that a total of 23 vacancies were provided for all the disciplines with 2 vacancies and 4 vacancies under the unreserved category provided for Information Technology and Computer Science & Engineering respectively. In all, 3 posts out of the 23 posts were reserved for persons with Benchmark Disabilities (hereinafter referred to as ‘PwBD candidates’). The petitioner stated to have submitted his application on 21.03.2023 and had cleared the written test and was called for presentation and interview rounds which were conducted by the respondent University.
6. Learned counsel for petitioner submits that on 22.05.2023 a writ petition was filed before this Court challenging some illegalities under the recruitment year 2021 captioned as ‘Manu Banga vs. Indira Gandhi Delhi Technical University for Women’ by way of Writ Petition bearing W.P.(C) 7226/2023 pending adjudication before this Court.
7. Learned counsel appearing for the petitioner submits that the results were declared on 08.01.2024 whereby a total of 19 candidates out of the advertised posts consisting of 23 vacancies were selected. However, the petitioner’s name did not reflect in the final list. The petitioner claims to have made a representation on 07.12.2023 to the respondent University regarding his journal paper not being considered. Aggrieved by the aforesaid refusal of the respondent University to offer the appointment to the post of Assistant Professor, the present writ petition has been filed.
8. The Court has heard the arguments of Mr. Kapur, learned counsel appearing for the petitioner as also Ms. Kaushik, learned counsel appearing for the respondent University.
9. It is beyond cavil that a person who has participated in the selection process by participating in the written examination as well as in the interview and thereafter found to be unsuccessful, is precluded from challenging either the notification or the process or even the final results of such selection process. The Hon’ble Supreme Court in Ashok Kumar and Another vs. State of Bihar and Others reported in (2017) 4 SCC 357 in para 12, 13 and 14, while considering previous well settled judgment passed on the aforesaid issue, categorically had come to the conclusion that a person who participates in the process and thereafter finds that he has not been selected, would be precluded from challenging the same. In fact, the Hon’ble Supreme Court has held that the principle of estoppel would squarely apply in such cases. Paras 12, 13 and 14 of the judgment read as under:
“12. 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.
13. The law on the subject has been crystallised in several decisions of this Court. In Chandra Prakash Tiwari v. Shakuntala Shukla, 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 has appeared 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, this Court held that: (SCC p. 107, para 18)
“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 Munindra Kumar v. Rajiv Govil and Rashmi Mishra v. M.P. Public Service Commission.)”
14. The same view was reiterated in Amlan Jyoti Borooah wherein it was held to be well settled that the 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.”

This judgment has been followed by the learned Division Bench of this Court in Karan Singh Meena vs. Registrar General, Delhi High Court and Another reported in (2022) SCC OnLine Delhi 3098 whereby reiterating the aforesaid principles laid down by the Supreme Court, the learned Division Bench in para 25 had categorically has held as under:-
“25. It is also relevant to emphasise that the petitioner had not challenged the scheme of the examination at the material time. The petitioner had participated in the examination unreservedly. It is well settled that it is not open for a candidate, who participated in the selection process, to subsequently challenge the same once he has been declared unsuccessful. The law on this subject is discussed comprehensively in the recent decision of the Supreme Court in Ashok Kumar v. State of Bihar (supra). We need to do no more but to quote the following extract from the said decision:
“12. 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.
13. The law on the subject has been crystallised in several decisions of this Court. In Chandra Prakash Tiwari v. Shakuntala Shukla [Chandra Prakash Tiwari v. Shakuntala Shukla, (2002) 6 SCC 127 : 2002 SCC (L&S) 830], 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 has appeared 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 [Union of India v. S. Vinodh Kumar, (2007) 8 SCC 100 : (2007) 2 SCC (L&S) 792], this Court held that : (SCC p. 107, para 18)
“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 Munindra Kumar v. Rajiv Govil [MunindraKumar v. Rajiv Govil, (1991) 3 SCC 368 : 1991 SCC (L&S) 1052] and Rashmi Mishra v. M.P. Public Service Commission [Rashmi Mishra v. M.P. Public Service Commission, (2006) 12 SCC 724 : (2007) 2 SCC (L&S) 345].)”
14. The same view was reiterated in Amlan Jyoti Borooah [Amlan Jyoti Borooah v. State of Assam, (2009) 3 SCC 227 : (2009) 1 SCC (L&S) 627] wherein it was held to be well settled that the 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.
15. In Manish Kumar Shahi v. State of Bihar [Manish Kumar Shahi v. State of Bihar, (2010) 12 SCC 576 : (2011) 1 SCC (L&S) 256], the same principle was reiterated in the following observations : (SCC p. 584, para 16)
“16. We also agree with the High Court [Manish Kumar Shahi v. State of Bihar, 2008 SCC OnLine Pat 321 : (2009) 4 SLR 272] 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 Madan Lal v. State of J&K [Madan Lal v. State of J&K, (1995) 3 SCC 486 : 1995 SCC (L&S) 712], Marripati Nagaraja v. State of A.P. [Marripati Nagaraja v. State of A.P., (2007) 11 SCC 522 : (2008) 1 SCC (L&S) 68], Dhananjay Malik v. State of Uttaranchal [Dhananjay Malik v. State of Uttaranchal, (2008) 4 SCC 171 : (2008) 1 SCC (L&S) 1005 : (2008) 3 PLJR 271], Amlan Jyoti Borooah v. State of Assam [Amlan Jyoti Borooah v. State of Assam, (2009) 3 SCC 227 : (2009) 1 SCC (L&S) 627] and K.A. Nagamani v. Indian Airlines [K.A. Nagamani v. Indian Airlines, (2009) 5 SCC 515 : (2009) 2 SCC (L&S) 57].”
16. In Vijendra Kumar Verma v. Public Service Commission [Vijendra KumarVerma v. Public Service Commission, (2011) 1 SCC 150 : (2011) 1 SCC (L&S) 21], 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.
17. In Ramesh Chandra Shah v. Anil Joshi [Ramesh Chandra Shah v. Anil Joshi, (2013) 11 SCC 309 : (2011) 3 SCC (L&S) 129], candidates who were competing for the post of Physiotherapist in the State of Uttarakhand 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 : (SCC p. 318, para 18)

“18. It is settled law that a person who consciously takes part in the process of selection cannot, thereafter, turn around and question the method of selection and its outcome.”
18. In Chandigarh Admn. v. Jasmine Kaur [Chandigarh Admn. v. Jasmine Kaur, (2014) 10 SCC 521 : 6 SCEC 745], 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 [Pradeep Kumar Rai v. Dinesh Kumar Pandey, (2015) 11 SCC 493 : (2015) 3 SCC
(L&S) 274], this Court held that : (SCC p. 500, para 17)
“17. 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 Studies v. K. Sivasubramaniyan [Madras Institute of DevelopmentStudies v. K. Sivasubramaniyan, (2016) 1 SCC 454 : (2016) 1 SCC (L&S) 164 : 7 SCEC 462].”

10. In view of the aforesaid overwhelming law on the issue, the question of considering as to whether the result of the petitioner were correctly declared or not would not remain the subject matter of consideration before this Court. The matter resting on issue of estoppel on facts would bind the petitioner equally.
11. In view of the above, the writ petition is dismissed without any order as to costs. Pending application also stands disposed of.
12. This Court appreciates the efforts made by Mr. Kapur.

TUSHAR RAO GEDELA, J.
MARCH 20, 2024/ns

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