2024:MLHC:591
Serial No. 18 & 19
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WP(C) No. 340 of 2023 with
WP(C) No. 341 of 2023 Date of Decision: 27.06.2024
Shri. Silvester Lyngdoh
S/o Enes Lyngdoh,
R/o Sarikushi Marngar,
Ri-Bhoi District, Meghalaya :::Petitioner
-Vs-
1.The State of Meghalaya represented by the
Chief Secretary to the Government of
Meghalaya
2.The Chairman, Meghalaya Public Service
Commission, Shillong
3.The Secretary, Meghalaya Public Service Commission
4.The Director, Sports and Youth Affairs, Shillong
5. Donkupar Kharjana, R/o Mawlai Umshing,
Shillong 793008, Meghalaya
–
6.Fedellia Sun, R/o Mawlai MawDatbaki,
Umshyngiar Umjan, Shillong-793008, Meghalaya :::Respondents
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2024:MLHC:591
Smti. Ridabhahi Lapasam
W/o Banshanbor Khongmawpat
R/o Mowtyrshiah “A” Side, Lumpdang,
West Jaintia Hills District, Meghalaya-793150 :::Petitioner
-Vs-
1.The State of Meghalaya represented by the
Chief Secretary to the Government of
Meghalaya
2.The Chairman, Meghalaya Public Service
Commission, Shillong
3.The Secretary, Meghalaya Public Service Commission
4.The Director, Sports and Youth Affairs, Shillong
5. Donkupar Kharjana, R/o Mawlai Umshing,
Shillong 793008, Meghalaya
–
6.Fedellia Sun, R/o Mawlai MawDatbaki,
Umshyngiar Umjan, Shillong-793008, Meghalaya :::Respondents
Coram:
Judge
Hon’ble Mr. Justice H. S. Thangkhiew,
Appearance:
For the Petitioner/Appellant(s) : Ms. S. Chettri, Adv. with
Ms. D.D. Fancon, Adv.
For the Respondent(s) : Mr. N.D. Chullai, AAG with
Mr. J.N. Rynjah, GA. (For R 1&4)
Mr. K. Paul, Sr. Adv. with
Ms. B. Kharwanlang, Adv. (For R 2&3)
Mr. K.S. Kynjing, Sr. Adv. with
Mr. G. Syngkrem, Adv.
Ms. A.D. Syiem, Adv.
Ms. B. Rapsang, Adv. (For R 5)
Ms. O. A. Bang, Adv. (For R 6).
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i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
JUDGMENT AND ORDER (ORAL)
1. These two writ petitions being similarly situated in facts are being
disposed of by this common judgment and order. The petitioners herein,
have put to challenge the notification dated 08.12.2022, selecting the
respondents No. 5 and 6, amongst others to the post of Junior Athletic
Coach conducted by the Meghalaya Public Service Commission (MPSC),
and advertisement dated 14.11.2019, followed by Corrigendum dated
31.03.2021. The challenge is on the ground that the respondents No. 5 and
6, do not possess the required qualifications, as required by the corrigendum
and were ineligible for appointment, as they possess qualifications from
private institutes, which are not recognised by the Sports Department.
2. Ms. S. Chettri and Ms. D.D. Fancon, learned counsels for the
petitioners submit that pursuant to the advertisement dated 14.11.2019,
which advertised for Junior Coaches in the office of the respondent No. 4,
the petitioners being Graduates and holding Diplomas in Sports and
Athletics from the Sports Authority of India (SAI), Netaji Subhash National
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Institute of Sports (NIS), Patiala, had applied for the said vacancies, which
was as per the criteria prescribed in the said advertisement. It is further
submitted that, the respondent then by corrigendum dated 31.03.2021, had
broadened the scope from Diploma in Sports Coaching from NSNIS,
Patiala, or its subsidiary regional institutes to 10+2, with Diploma in sports
coaching in the concerned discipline. The respondents No. 5 and 6 it is
contended being Diploma holders from Laxmi Bai Institute of Physical
Education, Gwalior, which is not stipulated in the advertisement and further
not recognised by the Sports Department, as per the RTI reply dated
18.08.2023, should not have been considered for selection, and as such,
interference of this Court in the selection process is called for.
3. Mr. K. Paul, learned Senior counsel assisted by Ms. B. Kharwanlang,
learned counsel for the respondents No. 2 and 3 submits that the
corrigendum dated 31.03.2021, was issued to correct the position and
requirement that candidates for the post of Junior Coaches should be 10+2
with Diploma in Sports Coaching. With regard to the contention that the
respondents No. 5 and 6 did not possess the required qualification, the
learned Senior counsel has drawn the attention of this Court to Annexure
–
5 series of the affidavit, wherein which contains three memorandums dated
27.12.2007, 16.02.2016 and 09.01.2019, wherein the Ministry of Youth
Affairs and Sports, Government of India has instructed the concerned
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departments in the State, to treat the PG Diplomas in Coaching received
from NLIPE, Gwalior, as equivalent to that of NSNIS, Patiala. Vide these
directions he submits, the respondents No. 5 and 6, who had PG Diplomas
from NLIPE, Gwalior, were therefore as per the advertisement and
corrigendum, eligible and qualified for selection.
4. The learned Senior counsel has also submitted that the petitioners
having taken part in the selection process cannot now turn around on being
unsuccessful to question or challenge the same. He also submits that the
petitioners were well aware about the advertisement and corrigendum which
was available in the public domain, much before the selection, and therefore
they are estopped at this stage from assailing the same.
5. Mr. N.D. Chullai, learned AAG assisted by Mr. J.N. Rynjah, learned
GA for the State respondents No. 1 and 4, has supported the submissions
made by Mr. K. Paul, learned Senior counsel for the respondents No. 2 and
3, and has submitted that the reply received from the Public Information
Officer of the Sports Department, which has been relied upon by the
petitioners to support their case, with regard to recognised sports
institutions, is incorrect, as on examination the said information was
wrongly furnished. The learned AAG has then referred to Paragraph 11 of
–
the affidavit-in-opposition filed on behalf of the respondents No. 1 and 4,
and submits that the correct information is „any Institute/College/University
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recognised by the Government of India through the Ministry of Youth
Affairs and Sports‟. He further submits that the advertisement had clearly
stated the criteria, as also the corrigendum which had been published in the
newspapers, whereafter the applications received, after proper scrutiny,
were accepted and eligible candidates were called for personal interview.
He lastly submits that there being no procedural irregularity or illegality in
any manner, the writ petition is liable to be dismissed.
6. Mr. K.S. Kynjing, learned Senior counsel assisted by Mr. G.
Syngkrem, learned counsel for the respondent No. 5 and Ms. O. A. Bang,
learned counsel for the respondent No. 6 respectively, have endorsed the
submissions made by the learned Senior counsel for the MPSC and the
State, and have also taken the Court through the affidavits filed, wherein
testimonials have been annexed showing that the respondents No. 5 and 6,
were holders of Post Graduate Diplomas from NLIPE, Gwalior, which as
per Government of India Memorandum equivalent to Diplomas from
NSNIS, Patiala.
7. Ms. O. A. Bang, learned counsel in support of her contentions has
also filed a short gist of written submissions, and has placed reliance on the
case of State of Uttar Pradesh vs. Karunesh Kumar & Ors. reported in
2022 SCC OnLine SC 1706 and also in the case of Tajvir Singh Sodhi &
Ors. vs. State of Jammu and Kashmir & Ors. reported in 2023 SCC
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OnLine 344, and submits that the respondents have since joined in service
in April, 2023.
8. Having heard the learned counsel for the parties, it is seen that the
main grievance of the writ petitioners, is centered around the assumption
that the respondents No. 5 and 6, had been selected without being eligible
and that the selection process therefore was vitiated, which called for the
entire selection process being set aside, and consequently also the impugned
select list dated 08.12.2022. A bare perusal of the advertisement dated
14.11.2019, shows that a candidate was required to be a Graduate in any
stream with Diploma in Sports Coaching from NSNIS, Patiala, or its
subsidiary, or from any Institute/University/College recognised by the
Government of India or 10+2 with Diploma in Sports Coaching in the
relevant sports discipline, for those achievers who are medalist at the
National Championships/Recognised International Championship. The
corrigendum dated 31.03.2021, further only clarified the position that the
candidates should be 10+2 with Diploma in Sports Coaching in the
concerned discipline. This is revealed from the communication dated
12.01.2021, wherein the respondents directed that the correct position was
to be indicated.
9. Coming to the assertion of the petitioners that the respondents No. 5
and 6, were not Diploma holders from recognised institutions, it is
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noted that the same has been more than adequately answered in the
form of the three Memorandums namely F.No.19-2/2007/ID dated
27.12.2007, F.No.70-62/2015/SP VI dated 16.02.2016 and F.No.70-
25/2019/SP VI dated 09.01.2019, wherein the Educational Secretaries
as well as the Sports Secretaries and Directors of all States and Union
Territories have been instructed by the Ministry of Youth Affairs and
Sports, Government of India to treat the Post Graduate Diploma in
Sports Coaching of NLIPE, Gwalior, and Diploma in Sports
Coaching from NSNIS, Patiala, at par, or equivalent thereto. The
respondents No. 5 and 6, both being holders of PG Diplomas from
NLIPE, Gwalior, were therefore qualified and eligible for the
selection. With regard to the other contention of the petitioners that,
as per the RTI reply, annexed at Annexure 15 series to the writ
–
petition, that the name of the institute from where the respondents
obtained the Diplomas was not mentioned, it is seen in the said RTI
reply itself that NSNIS, Patiala, is on the list at No. 1. Therefore as
per the above noted Memorandums, this contention of the petitioners
is disregarded, as NLIPE, Gwalior Post Graduate Diploma is
equivalent to Diploma from NSNIS, Patiala.
10. The writ petitioners though having a grouse with regard to the
selection process have however, not challenged the advertisement or the
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corrigendum, and had consciously participated in the selection process.
After being unsuccessful they are seeking to overturn the selection of the
respondents No. 5 and 6, who have already been appointed and since joined
to their respective posts. In this context, the judgment placed by the counsel
for the respondent No. 6 i.e. State of Uttar Pradesh vs. Karunesh Kumar &
Ors.(supra), is of great relevance, as the Supreme Court while holding that
a candidate who had participated is estopped from challenging the selection
process, has also digested landmark cases on this issue. Para 21 thereof,
–
on this issue is extracted herein below.
21. A candidate who has participated in the selection process
adopted under the 2015 Rules is estopped and has acquiesced
himself from questioning it thereafter, as held by this Court in the
case of Anupal Singh (supra):
“55. Having participated in the interview, the private respondents
cannot challenge the Office Memorandum dated 12-10-2014 and
the selection. On behalf of the appellants, it was contended that
after the revised Notification dated 12-10-2014, the private
respondents participated in the interview without protest and only
after the result was announced and finding that they were not
selected, the private respondents chose to challenge the revised
Notification dated 12-10- 2014 and the private respondents are
estopped from challenging the selection process. It is a settled law
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that a person having consciously participated in the interview
cannot turn around and challenge the selection process.
56. Observing that the result of the interview cannot be challenged
by a candidate who has participated in the interview and has taken
the chance to get selected at the said interview and ultimately, finds
himself to be unsuccessful, in Madan Lal v. State of J&K [(1995) 3
SCC 486 : 1995 SCC (L&S) 712], it was held as under : (SCC p.
493, para 9)
“9. … The petitioners also appeared at the oral interview
conducted by the Members concerned of the Commission
who interviewed the petitioners as well as the contesting
respondents concerned. 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 the Selection Committee was not properly
constituted.”
57. In K.H. Siraj v. High Court of Kerala [(2006) 6 SCC 395 : 2006
SCC (L&S) 1345], it was held as under : (SCC p. 426, para 73)
-petitioners having participated in the
“73. The appellant
interview in this background, it is not open to the appellant-
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petitioners to turn round thereafter when they failed at the
interview and contend that the provision of a minimum mark
for the interview was not proper.”
58. In Union of India v. S. Vinodh Kumar [(2007) 8 SCC 100 :
(2007) 2 SCC (L&S) 792], it was held as under : (SCC p. 107, para
19)
In Chandra Prakash Tiwari v. Shakuntala
“19.
Shukla
[(2002) 6 SCC 127 : 2002 SCC (L&S) 830] ….
xxx xxx xxx
It was further observed : (SCC p. 149, para 34)
„34. There is thus no doubt that while question of any estoppel by
conduct would not arise in the contextual facts but the law seem to
be well settled that in the event a candidate appears at the interview
and participates therein, 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 there was some
lacuna in the process.”
59. Same principle was reiterated in Sadananda Halo v. Momtaz Ali
Sheikh [(2008) 4 SCC 619 : (2008) 2 SCC (L&S) 9] wherein, it was
held as under: (SCC pp. 645-46, para 59)
“59. It is also a settled position that the unsuccessful
candidates cannot turn back and assail the selection process.
There are of course the exceptions carved out by this Court to
this general rule. This position was reiterated by this Court in
its latest judgment in Union of India v. S. Vinodh
Kumar The
[(2007) 8 SCC 100 : (2007) 2 SCC (L&S) 792] ….
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Court also referred to the judgment in Om Prakash Shukla v.
Akhilesh Kumar Shukla [1986 Supp SCC 285 : 1986 SCC
(L&S) 644], where it has been held specifically that when a
candidate appears in the examination without protest
and subsequently is found to be not successful in the
examination, the question of entertaining the petition
challenging such examination would not arise.”
11. In view of the observations and discussions made herein above, the
petitioners have been unable to make out any case for interference in the
selection of the private respondents or in the selection process adopted by
the respondents No. 2 and 3, and as such, these writ petitions stand
dismissed.
12. No order as to costs.
Judge
Meghalaya
27.06.2024
“D.Thabah-PS”
DARIHUN Digitally signed by
DARIHUN THABAH
THABAH Date: 2024.07.02 17:49:46
+05'30'
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