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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.

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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

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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 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

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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

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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 does  not  figure  in  the  merit  list  prepared  by  the

2   (1995) 3 SCC 486 3   (2010) 12 SCC 576

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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

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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.  

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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