Dismissing pleas seeking scraping of an examination conducted by J&K Services Selection Board for testing “working knowledge of Urdu” of candidates in selection of Naib Tehsildars, J&K High Court has ruled that a candidate after taking part in selection process without a “protest” cannot be allowed to turn around and challenge the selection process. In a detailed judgment delivered at Jammu wing of the High Court, Justice Sanjeev Kumar has said: “Once it is held that case of the petitioners does not fall in any of the exceptions carved out to the rules of estoppel, they cannot be said to have locus to assail the mode, manner and methodology of the Urdu test conducted by the SSB”. Following dismissal of the petitions, the SSB has now issued the selection list of the candidates. The aggrieved candidates had petitioned the Court, seeking quashing of the result of the examination conducted by the Board for testing working knowledge of Urdu which it had published on 4 September 2019. The candidates had also sought to quash the SSB notice of 18 November 2017, saying that the written examination for testing working knowledge of Urdu had been prescribed as qualifying examination. The petitioners had also challenged J&K Revenue (Subordinate) Service Recruitment Rules-2009 to the extent it prescribed the “knowledge of Urdu along with graduation” as minimum eligibility qualification for direct recruitment to the post of Naib Tehsildar. “The working knowledge of Urdu would literally mean such knowledge of Urdu as is sufficient to perform the duties of office that is Naib Tehsildar in the instant case, whereas knowledge of Urdu would be wide enough to cover even the extensive and thorough knowledge of Urdu,” the Court said. It observed that undoubtedly the candidates who have been Urdu students all along and all through may have an edge over those who may have acquired the knowledge of Urdu only with a view to qualify test for the post of Naib Tehsildar or Patwari. “But this can’t be a ground to hold the written test for Urdu bad. The law of estoppel and the doctrine of approbate and reprobate is now firmly established,” the Court said. The Court said it is true that the petitioners despite being aware about the mode, manner and methodology to be adopted by the SSB for conducting written test, participated in the test with their eyes wide open and did not raise any “protest or demur” Underling that the petitioners took a calculated chance in the examination with a hope that they would qualify it and will be considered for selection, the Court said: “It is, however, a different matter that the petitioners, somehow, failed to qualify the examination”. “In these circumstances, the petitioners can’t be permitted to turn around and challenge the Urdu test particularly on the grounds it has been assailed in these petitions”. Citing the test, the Court said provision of minimum 33 percent marks in both the sections of test and 40 percent in the aggregate was not assailable at the behest of the petitioners who despite being aware of the stipulation, participated in the test whole-hog and without any protest or demur. Citing a judgment of 3-judge bench of the Supreme Court in a case, Ashok Kumar and another v/s State of Bihar and others, Justice Kumar said the apex court after referring to catena of judgments on the point has held the appellants were aggrieved by the decision to hold a fresh process and they participated in it 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 estoppels would operate,” the Court said. It observed that in Chandra Prakash Tiwari v/s Shakuntala Shukla, the apex court has 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,” the Court said, “would not arise where a candidate has appeared and participated.” “He or she can’t subsequently turn around and contend that the process was unfair or that there was a lacuna therein, merely because the result is not palatable,” the Court said. Citing the apex court judgment in the case, Ramesh Chandra Shah v/s Anil Joshi, the Court said the apex court has ruled that the candidates who were competing for the post of Physiotherapist in Uttarakhand participated in a written examination.
“If they had cleared the test, the respondents would not have raised any objection to the selection process or to the methodology adopted.” The Court said: “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”. While senior advocate Jehangir Ganai and Arif Sikander Mir represented some of the selected candidates, Abhinaw Sharma and Gagan Basotra appeared for the petitioners and senior additional advocate general, SS Nanda represented Revenue department and AAG Amit Gupta represented the SSB.
