1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.8345-8346 OF 2009
D. SAROJAKUMARI … APPELLANT(S)
Versus
R. HELEN THILAKOM & ORS. …RESPONDENT(S)
J U D G M E N T
Deepak Gupta, J.
1. Respondent No.6, Management of Church of South India, is
running a number of schools in the State of Kerala. We are
concerned with two schools, i.e., Samuel LMS High School,
Parassala and the Light to the Blind School, Varkala. Respondent
No.1 was working as part-time Music Teacher in the Light to the
Blind School, Varkala.
2
2. The Management of the Samuel LMS High School, Parassala,
invited applications for filling up the post of Music Teacher on direct
recruitment basis. The Appellant and Respondent No.1 both
applied for the said post. The appellant was appointed as Music
Teacher on 12.07.1999 in Samuel LMS High School, Parassala.
Though Respondent No.1 had applied for being considered for
appointment as Music Teacher in the Samuel LMS High School, but
after she was not selected in the process of direct recruitment, she
raised a plea that since the Management of both the schools are
same, she was entitled to be promoted as Music Teacher on the
basis of her seniority in the Light to the Blind School, Varkala. In
this regard, she first filed a petition before the District Educational
Officer who accepted her petition and held that the case of
Respondent No.1 was covered under Rule 43 of Kerala Education
Rules (for short KER). The appellant filed an appeal which was
rejected by the Deputy Director, Education. Thereafter, a revision
petition was filed and the main ground raised by Respondent No.6
herein was that the two Schools were separate units. It was
contended that the Samuel LMS High School was run for all
children, whereas the Light to the Blind School, Varkala, was meant
3
only for differently abled children. It was pointed out that
Respondent No.6 had never maintained a common seniority list for
these two schools and this was never challenged by Respondent
No.1 or any other member of the staff. The Director, Public
Instruction held that both schools had different identities and Rule
43 was not applicable. Respondent No.1, thereafter, filed a
representation which was rejected by the State Government in
which it was held that these two schools were separate units and
Respondent No.6 had been treating the schools run by them for
specially challenged children as separate entities.
3. Respondent No.1, thereafter, filed a writ a petition in the High
Court of Kerala. An objection was raised that since Respondent
No.1 herein had taken part in the selection process, she could not,
after being not selected, be permitted to turn around and claim that
the process of direct recruitment could not have been resorted to by
the Management of Samuel LMS High School. This objection was
overruled by the High Court only on the ground that there can be
no estoppel against a statute and the appellant could not be
debarred from filing a writ petition. On merits it was held that both
4
the schools formed one unit and, therefore, Respondent No.1 was
entitled for promotion in the Samuel LMS High School. The two
writ appeals filed by the present appellant were dismissed.
4. The main ground urged on behalf of the appellant is that
Respondent No.1 having taken part in the selection process could
not be permitted to challenge the same after she was unsuccessful
in getting selected. The law is well settled that once a person takes
part in the process of selection and is not found fit for appointment,
the said person is estopped from challenging the process of
selection.
5. In Dr. G. Sarna vs. University of Lucknow & Ors.,
1 the
petitioner after appearing in the interview for the post of Professor
and having not been selected pleaded that the experts were biased.
This Court did not permit the petitioner to raise this issue and held
as follows :-
“15.We do not, however, consider it necessary in the
present case to get into the question of the
reasonableness of bias or real likelihood of bias as
despite the fact that the appellant knew all the
relevant facts, he did not before appearing for the
interview or at the time of the interview raise even his
little finger against the constitution of the Selection
1
(1976) 3 SCC 585
5
Committee. He seems to have voluntarily appeared
before the committee and taken a chance of having a
favourable recommendation from it. Having done so, it
is not now open to him to turn round and question the
constitution of the committee……”
6. In Madan Lal & Ors. vs. State of J&K & Ors.
2 , the
petitioner laid challenge to the manner and method of conducting
viva-voce test after they had appeared in the same and were
unsuccessful. This Court held as follows :-
“9…….Thus the petitioners took a chance to get
themselves selected at the said oral interview. Only
because they did not find themselves to have emerged
successful as a result of their combined performance
both at written test and oral interview, they have filed
this petition. It is now well settled that if a candidate
takes a calculated chance and appears at the
interview, then, only because the result of the
interview is not palatable to him, he cannot turn
round and subsequently contend that the process of
interview was unfair or Selection Committee was not
properly constituted……”
7. In Manish Kumar Shahi vs. State of Bihar,
3 , this Court
held as follows :-
“23…….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
2
(1995) 3 SCC 486
3
(2010) 12 SCC 576
6
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.”
8. In the case of Ramesh Chandra Shah and others vs. Anil
Joshi and others 4 the petitioners took part in the process of
selection made under the general Rules. Having appeared in the
interview and not being successful they challenged the method of
recruitment itself. They were not permitted to raise such an
objection. This Court held as follows :-
“24. In view of the propositions laid down in the above
noted judgments, it must be held that by having taken
part in the process of selection with full knowledge
that the recruitment was being made under the
General Rules, the respondents had waived their right
to question the advertisement or methodology adopted
by the Board for making selection and the learned
Single Judge and the Division Bench of the High Court
committed grave error by entertaining the grievance
made by the respondents.”
9. Same view has been taken in Madras Institute of
Development Studies and Another vs. Dr. K.
Sivasubramaniyan and others 5.
4
(2013) 11 SCC 309
5
(2016) 1 SCC 454
7
10. The Kerala High Court did not note the above mentioned
judgments and ignored the well settled position of law in rejecting
the specific plea raised by the appellant herein that the appellant
could not raise the issue that no direct recruitment should have
been conducted once she had applied for and taken part in the
selection process by direct recruitment.
11. As far as the present case is concerned an advertisement was
issued by Respondent No.6 inviting applications for the post of
Music Teacher in Samuel LMS High School. Respondent No.1 did
not raise any objection at that stage that the post could not be filled
in by direct recruitment and she should be considered for
promotion. Not only that, she in fact, applied for the post and took
part in the selection process. After having taken part in the
selection process and being found lower in merit to the appellant,
she cannot at this stage be permitted to turn around and claim that
the post could not be filled in by direct recruitment. The reasoning
of the learned Single Judge in rejecting the objection is not in
consonance with the law laid down by this Court. In view of this we
need not go into the other issues raised.
8
12. We, therefore, allow these appeals and set aside order dated
25.07.2003 of the learned Single Judge and dismiss the writ
petition O.P.No.36563 of 2002 as being not maintainable.
....................................J.
(MADAN B. LOKUR)
....................................J.
(DEEPAK GUPTA)
New Delhi
September 13, 2017
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.8345-8346 OF 2009
D. SAROJAKUMARI … APPELLANT(S)
Versus
R. HELEN THILAKOM & ORS. …RESPONDENT(S)
J U D G M E N T
Deepak Gupta, J.
1. Respondent No.6, Management of Church of South India, is
running a number of schools in the State of Kerala. We are
concerned with two schools, i.e., Samuel LMS High School,
Parassala and the Light to the Blind School, Varkala. Respondent
No.1 was working as part-time Music Teacher in the Light to the
Blind School, Varkala.
2
2. The Management of the Samuel LMS High School, Parassala,
invited applications for filling up the post of Music Teacher on direct
recruitment basis. The Appellant and Respondent No.1 both
applied for the said post. The appellant was appointed as Music
Teacher on 12.07.1999 in Samuel LMS High School, Parassala.
Though Respondent No.1 had applied for being considered for
appointment as Music Teacher in the Samuel LMS High School, but
after she was not selected in the process of direct recruitment, she
raised a plea that since the Management of both the schools are
same, she was entitled to be promoted as Music Teacher on the
basis of her seniority in the Light to the Blind School, Varkala. In
this regard, she first filed a petition before the District Educational
Officer who accepted her petition and held that the case of
Respondent No.1 was covered under Rule 43 of Kerala Education
Rules (for short KER). The appellant filed an appeal which was
rejected by the Deputy Director, Education. Thereafter, a revision
petition was filed and the main ground raised by Respondent No.6
herein was that the two Schools were separate units. It was
contended that the Samuel LMS High School was run for all
children, whereas the Light to the Blind School, Varkala, was meant
3
only for differently abled children. It was pointed out that
Respondent No.6 had never maintained a common seniority list for
these two schools and this was never challenged by Respondent
No.1 or any other member of the staff. The Director, Public
Instruction held that both schools had different identities and Rule
43 was not applicable. Respondent No.1, thereafter, filed a
representation which was rejected by the State Government in
which it was held that these two schools were separate units and
Respondent No.6 had been treating the schools run by them for
specially challenged children as separate entities.
3. Respondent No.1, thereafter, filed a writ a petition in the High
Court of Kerala. An objection was raised that since Respondent
No.1 herein had taken part in the selection process, she could not,
after being not selected, be permitted to turn around and claim that
the process of direct recruitment could not have been resorted to by
the Management of Samuel LMS High School. This objection was
overruled by the High Court only on the ground that there can be
no estoppel against a statute and the appellant could not be
debarred from filing a writ petition. On merits it was held that both
4
the schools formed one unit and, therefore, Respondent No.1 was
entitled for promotion in the Samuel LMS High School. The two
writ appeals filed by the present appellant were dismissed.
4. The main ground urged on behalf of the appellant is that
Respondent No.1 having taken part in the selection process could
not be permitted to challenge the same after she was unsuccessful
in getting selected. The law is well settled that once a person takes
part in the process of selection and is not found fit for appointment,
the said person is estopped from challenging the process of
selection.
5. In Dr. G. Sarna vs. University of Lucknow & Ors.,
1 the
petitioner after appearing in the interview for the post of Professor
and having not been selected pleaded that the experts were biased.
This Court did not permit the petitioner to raise this issue and held
as follows :-
“15.We do not, however, consider it necessary in the
present case to get into the question of the
reasonableness of bias or real likelihood of bias as
despite the fact that the appellant knew all the
relevant facts, he did not before appearing for the
interview or at the time of the interview raise even his
little finger against the constitution of the Selection
1
(1976) 3 SCC 585
5
Committee. He seems to have voluntarily appeared
before the committee and taken a chance of having a
favourable recommendation from it. Having done so, it
is not now open to him to turn round and question the
constitution of the committee……”
6. In Madan Lal & Ors. vs. State of J&K & Ors.
2 , the
petitioner laid challenge to the manner and method of conducting
viva-voce test after they had appeared in the same and were
unsuccessful. This Court held as follows :-
“9…….Thus the petitioners took a chance to get
themselves selected at the said oral interview. Only
because they did not find themselves to have emerged
successful as a result of their combined performance
both at written test and oral interview, they have filed
this petition. It is now well settled that if a candidate
takes a calculated chance and appears at the
interview, then, only because the result of the
interview is not palatable to him, he cannot turn
round and subsequently contend that the process of
interview was unfair or Selection Committee was not
properly constituted……”
7. In Manish Kumar Shahi vs. State of Bihar,
3 , this Court
held as follows :-
“23…….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
2
(1995) 3 SCC 486
3
(2010) 12 SCC 576
6
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.”
8. In the case of Ramesh Chandra Shah and others vs. Anil
Joshi and others 4 the petitioners took part in the process of
selection made under the general Rules. Having appeared in the
interview and not being successful they challenged the method of
recruitment itself. They were not permitted to raise such an
objection. This Court held as follows :-
“24. In view of the propositions laid down in the above
noted judgments, it must be held that by having taken
part in the process of selection with full knowledge
that the recruitment was being made under the
General Rules, the respondents had waived their right
to question the advertisement or methodology adopted
by the Board for making selection and the learned
Single Judge and the Division Bench of the High Court
committed grave error by entertaining the grievance
made by the respondents.”
9. Same view has been taken in Madras Institute of
Development Studies and Another vs. Dr. K.
Sivasubramaniyan and others 5.
4
(2013) 11 SCC 309
5
(2016) 1 SCC 454
7
10. The Kerala High Court did not note the above mentioned
judgments and ignored the well settled position of law in rejecting
the specific plea raised by the appellant herein that the appellant
could not raise the issue that no direct recruitment should have
been conducted once she had applied for and taken part in the
selection process by direct recruitment.
11. As far as the present case is concerned an advertisement was
issued by Respondent No.6 inviting applications for the post of
Music Teacher in Samuel LMS High School. Respondent No.1 did
not raise any objection at that stage that the post could not be filled
in by direct recruitment and she should be considered for
promotion. Not only that, she in fact, applied for the post and took
part in the selection process. After having taken part in the
selection process and being found lower in merit to the appellant,
she cannot at this stage be permitted to turn around and claim that
the post could not be filled in by direct recruitment. The reasoning
of the learned Single Judge in rejecting the objection is not in
consonance with the law laid down by this Court. In view of this we
need not go into the other issues raised.
8
12. We, therefore, allow these appeals and set aside order dated
25.07.2003 of the learned Single Judge and dismiss the writ
petition O.P.No.36563 of 2002 as being not maintainable.
....................................J.
(MADAN B. LOKUR)
....................................J.
(DEEPAK GUPTA)
New Delhi
September 13, 2017
