D. SAROJAKUMARIversusR. HELEN THILAKOM & ORS.

                            [2017] 9 S.C.R. 512


A                         D. SAROJAKUMARI
                                    v.
                      R. HELEN THILAKOM & ORS.
                   (Civil Appeal Nos. 8345-8346 of2009)
B                         SEPTEMBER 13, 2017
          [MADAN B. LOKUR AND DEEPAK GUPTA, JJ.]
          Estoppel:
         Application invited for filling up post of Music Teacher on
C direct recruitment basis. - Respondent'No. J (already a Music Teacher
  in one of the schools of the Management-respondent No. 6)
  participated in the recruitment process - Appointment of appellant
  - Thereafte1; claim of respondent No. I to promote her on the basis
  of seniority - Held: Respondent No. J is estopped from challenging
D the recruitment drive, after having participated in that - Service
  Law.
          Allowing the appeals, the Court
         HELD: An advertisement was issued by Respondent No.6,
  inviting applications for the post of Music Teacher. Respondent
E 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
F that the post could not be filled in by direct recruitment. [Para
  11)(516-F-H]
         -
         Dr. G Sarna v. University of Lucknow & Ors. (1976) 3
         SCC 585 : [1977] 1 SCR 64; Madan Lal & Ors. v.
         State of J & K & Ors. (1995) 3 SCC 486 : (1995) 1
G        SCR 908; Manish Kumar Shahi v. State of Bihar (2010)
         12 SCC 576; Ramesh Chandra Shah and Ors. v. Anil
         Joshi and Ors. (2013) 11 SCC 309 : [2013] 5 SCR
         687; Madras Institute of Development Studies and Anr.
       · v. Dr. K. Sivasubramaniyan and Ors. (2016) 1 SCC
H        454 - relied on.
                                  512
    D. SAROJAKUMARI v. R. HELEN THILAKOM & ORS.                           513


                        Case Law Reference                                A
(1977) 1 SCR 64                  relied on               Paras
[1995) 1 SCR 908                 relied on               Para6
(2010) 12 sec 576                relied on               Para7
(2013) 5 SCR 687                 relied on               Para8            B

(2016) 1 sec 454                 relied on               Para9
      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 8345-
8346 of2009.
      From the final Judgment and Order dated 06.07.2005 passed by        C
the High Court of Kerala at Ernakulam in W.A. Nos.1621 of 2003 and
1735 of2003 respectively.
       Mathai M. Paikaday, Sr. Adv., Shishir Pinaki, Sanjay Jaih, Advs.
for the Appellant.                          '
     E. M. S. Anam, G. Prakash, Jishnu M. L., Ms. Priyanka Prakash,       D
Ms. Beena Prakash, Vijay Shankar V. L., Ranjith K. C. Advs. for the
Respondents.
      The Judgment of the Court was delivered by
       DEEPAK GUPTA, J. I. Respondent No.6, Management of E
Church of South India, is running a number of schools in the State of
Kerala. We are concerned with two schools, i.e., Samue!LMS High
School, Parassala and the Light to the Blind School, Varkala. Respondent
No.I was working as part-time Music Teacher in the Light to the Blind
School, Varkala.
                                                                           F
       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. I 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. I had applied for being considered fornppointmentas Music Teacher G
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.ofher seniority in the Light to the Blind School,
Varkala. In this regard, ·she first filed a petition before· the District H
514              SUPREME COURT REPORTS                       [2017) 9 S.C.R.


A Educational Officer who accepted her petition and held that the case of
  Respondent No.I was covered under Rule 43 of Kera la 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
B Schools were separate units. It was contended that the Samuel LMS
  High Scliool was run for all children, whereas the Light to the Blind
  School, Varkala, was meant only for differently abled children. It was
  pointed out that Respondent No.6 had never maintained common     a
  seniority list for these two schools and this was never challenged by
  Respondent No. I or any other member of the staff. The Director, Public
C Instruction held that both schools had different identities and Rule 43
  \Vas not applicable. Respondent No. I, thereafter, filed a representati.on
  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
D separate entities.
          3. Respondent No.I, thereafter, filed a writ petition in the High
   Court of Kerala. An objection was raised that since Respondent No. I
   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
 E 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 the schools formed one unit and, therefore,
   Respondent No. I was entitled for promotion in the Samuel LMS High
 F 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. I .having taken part in the selection process could not be
   permitted to challenge the same after she was unsuccessful in getting
 G selected. The law is well settled that once a person takes pait 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
 H    1
          (t976J 3 sec 585
     D. SAROJAKUMARI v. R. HELEN THILAKOM & ORS.                                 515
                 . [DEEPAK GUPTA, J.)

having not been selected pleaded that the experts were biased. This              A
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 tlie appellant knew all
       the relevant facts, he did not before appearing for the interview B
       or at the time of the interview raise even his little finger against
       the constitution of the Selection 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 ...... "                                            c
       6. In Madan Lal & Ors. vs. State ofJ&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 :-
                                                                                 D
       "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 E
       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 Manislz Kumar Sltalzi vs. State of Bilrar, 3 , this Court held      F
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 oflndia only after he found that his name         G
       does not figure in the merit list prepared by the Commission. This
       conduct of the petitioner clearly disentitles him from questioning

'(1995) 3 sec 486
'(2010) 12 sec 576
                                                                                 H
516             SUPREME COURT REPORTS                        [2017] 9 S.C.R.


A           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
B 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
c           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."
D
            9. Same view has been taken in Madras Institute of
      Development Studies and Another vs. Dr. K. Sivasubramaniyan and
      others 5•
           IO. The Kerala High Court did not note the above mentioned
 E 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.

 F        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. I 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.
 G 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 tum
   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
      • (2013) 11 sec 309
H     '(2016) 1 sec 454
             D. SAROJAKUMARI v. R. HELEN THlLAKOM & ORS.                           517
                         [DEEPAK GUPTA, J.]

        not in consonance with the law laid down by this Court. In view of this    A ·
        we need not go irtto the other issues raised.
               12. We, therefore, allow these appeals and set aside order dated
         25.07.2003 of the learned Single Judge and dismiss the writ petition
       · 0.P.No.36563 of2002 as being not maintainable.
                                                                                   8
        Kalpana K. Tripathy                                     Appeals allowed.




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