N. Paul Vasanthakumar, C.J. - This appeal is filed against the order made in SWP No. 1770/2013 dated 21.07.2015 dismissing the writ petition
filed by the appellant, wherein the appellant has challenged the selection and appointment of the 4th respondent as Inspector Induscos.
2. It was the case of the appellant before the learned Single Judge that an advertisement notice bearing No. 1 of 2011 was issued for certain posts
including the post of Inspector Induscos in open merit category. The qualification prescribed for the said post was Commerce Graduate with
Diploma in Industrial Cooperative Management from a recognised institute. The appellant as well as the 4th respondent applied for the said post
and were subject to selection and the 4th respondent was selected. The selection of 4th respondent was challenged by the appellant by contending
that appellant is having superior merit than the 4th respondent as the 4th respondent was not possessed of the prescribed qualification i.e. Diploma
in Industrial Cooperative management from a recognised institute. The 4th respondent possessed Diploma in Cooperative management and the
appellant possessed higher diploma in cooperative management, therefore, the appellant should have been preferred, based on the possession of
higher diploma in Cooperative Management. The learned Single Judge dismissed the writ petition, noticing the fact that Diploma in Industrial
Cooperative Management was prescribed as qualification along with Graduation in Commerce. The appellant as well as the 4th respondent
possessed only Diploma in Cooperative Management and no candidate with Diploma in Industrial Cooperative Management had applied and,
therefore, the selection authority, namely, the 2nd respondent, assessed both the candidates. The 4th respondent secured total 55.16 marks i.e. for
diploma course 11.89 marks, for B.Com 18.04 marks, for M. Com qualification 7.57 marks and viva voce 17.66 marks, whereas the appellant
was awarded 12.20 marks for diploma, 16.89 for B.Com, nil marks for M. Com and 14.33 marks in Viva voce, totalling 43.42 marks. The
learned Single Judge consequently dismissed the writ petition and also rejected the claim made by the appellant that the appellant is having higher
merit as he is possessed of higher Diploma in Cooperative Management, which is not treated as higher diploma as explained in the counter affidavit
filed by the 2nd respondent.
3. The eligibility having been fixed as Diploma, possession of higher diploma cannot be treated as preference and actually in the diploma certificate
the appellant was awarded more marks than the 4th respondent. The appellant is not having M. Com qualification whereas the 4th respondent was
possessed of M. Com qualification. The appellant having participated in the selection and taken a chance before the selecting authority and having
not been selected is estopped from challenging the mode of selection and the procedure adopted by the 2nd respondent. The said issue in no
longer res integra and has been settled by Hon'ble the Supreme Court in the cases reported in AIR 2002 SC 790 (G.N. Nayak v. Goa University
and ors.), AIR 2008 SC 5 (Union of India & Ors v. S. Vinod Kumar and ors.), (2009) 5 SCC 515, (K.A. Nagamani v. Indian Airlines). Hon'ble
the Supreme Court in the decision reported in 2013 (11) SCC 309 (Ramesh Chandra Shah and ors. v. Anil Joshi & Ors.) held thus:-
24.......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 the methodology adopted by the Board for making
selection......
In 2015 AIR SCW 3348 (HC Pradeep Kumar Rai & Ors. v. Dinesh Kumar Pandey and Ors.) Hon'ble the Supreme Court held in paragraph 16
as follows:-
16. 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. Thus, 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. (See
Vijendra Kumar Verma v. Public Service Commission, Uttarakhand & Ors., (2011) 1 SCC 150 and K.H. Siraz v. High Court of Kerala & Ors.
(2006) 6 SCC 395)
4. In the light of the above decision and the fact that appellant having secured only 43.42 marks as against 55.16 marks secured by the 4th
respondent, the learned Single Judge was right in dismissing the writ petition. We are unable to find any reason to interfere with the order of the
learned Single Judge. The appeal is dismissed. No costs.
