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Indian Airlines v. K.Narayanan - W.A. No.2077 of 2005  RD-TN 650 (22 February 2007)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 22/02/2007
The Honourable Mr.Justice P.SATHASIVAM
The Honourable Mr.Justice N.PAUL VASANTHAKUMAR
W.A. Nos.2077, 2112 & 2113 of 2005
W.A.M.P. Nos.3892 & 3893 of 2005
W.A. No.2077 of 2005:
Indian Airlines Limited (Southern Region),
rep.by its General Manager (P),
Chennai 600 027. ..Appellant Vs
3. V.Masana Muthu
4. A.Logan ..Respondents This Writ Appeal is filed under Clause 15 of Letters Patent against the order of the learned single Judge in W.P.No.40768 of 2002 dated 5.9.2005. W.A. No.2112 of 2005:
L. Radhakrishnan ..Appellant Vs
1. Indian Airlines Limited (Southern Region), rep.by its General Manager (Personnel),
Chennai 600 027.
2. V. Masana Muthu,
3. Nirmalan ..Respondents This writ appeal is filed under Clause 15 of Letters Patent against the order of the learned single Judge in W.P.No.7908 of 2003 dated 5.9.2005. W.A. No.2113 of 2005:
G. Murugan ..Appellant Vs
1. Indian Airlines Limited (Southern Region), rep.by its General Manager (Personnel),
Chennai 600 027.
2. V. Masana Muthu,
3. Nirmalan ..Respondents This writ appeal is filed under Clause 15 of Letters Patent against the order of the learned single Judge in W.P.No.7822 of 2003 dated 5.9.2005. For Appellant in WA.2077/2005 & R1 in WA.2112 & 2113/2005: : Mr.N.G.R.Prasad
For Appellants in WA.2112 & 2113/2005 and R1 in WA.2077/2005: : Mr.M.Sundar
For R2 to R4 in WA.2077/2005 and R2 & R3 in WA.2112 & 2113/2005: : No appearance
N. PAUL VASANTHAKUMAR, J.
All these writ appeals are filed against the common order passed by the learned single Judge dated 5.9.2005.
2. W.A.No.2077 of 2005 is filed by the Indian Airlines Limited, Southern Region, Chennai, against the order passed in W.P.No.40768 of 2002 allowing the writ petition. W.A.No.2112 and 2113 of 2005 are preferred challenging the order of the learned single Judge made in W.P.Nos.7908 of 2003 and 7822 of 2003 respectively, dismissing the writ petitions filed by the respective appellants.
3. The facts leading to filing of the writ appeals are as follows. (a) The writ petitioners were employed as Drivers in the Indian Airlines Limited, who were subsequently disengaged. All the writ petitioners possess driving licence and they were treated as ex-casual drivers. The Indian Airlines Limited issued employment notice No.6 of 2001 on 28.9.2001, wherein relaxation of age for those who have worked as casual drivers was given and there is no priority in appointment of such ex-casual drivers. (b) Pursuant to the said employment notice, writ petitioners applied along with several other persons and after trade test and interview, 60 persons were declared to have passed the trade test. On 19.4.2002, a separate trade test was conducted for 13 applicants and 9 out of 13 were declared as passed the trade test and interview. (c) The case of the petitioner in W.P.No.40768 of 2002 was that separate interview was conducted on 19.4.2002 only for the purpose of favouring few persons and the private respondent No.3 worked only as Loader without any working experience as driver and the 4th private respondent was junior to the writ petitioner and the casual driver has worked only for 39 days, that too after the engagement of the petitioner. (d) Insofar as the petitioners in W.P.No.7822 and 7908 of 2003 are concerned, they were found medically unfit as their fasting blood suger was higher than the normal limit of 70-110 mgs. Sofar as G.Murugan, appellant in W.A.2113 of 2003 is concerned, the fasting blood sugar level was 137 mgs and sofar as L.Radhakrishnan, appellant in W.A.No.2112 of 2003 is concerned, the blood sugar was 191 mgs and both were confirmed as Diabetes by the expert. The said two persons challenged their non-selection by contending that in respect of V.Masanamuthu (respondent No.2 in W.A.Nos.2112 and 2113 of 2005) also, the blood sugar level was not within the limit and he was referred for second opinion and based on the second medical opinion, he was offered employment even though he was initially found unfit like that of the writ petitioners. (e) Writ petitioner in W.P.No.40768 of 2002, having not been selected, has filed the writ petition and prayed for quashing the employment notice No.6 of 2001 dated 28.9.2001 with a direction to give employment to him as Driver (MT) by adhering to section 25H of the Industrial Disputes Act, 1947. Writ petitioners in W.P.Nos.7822 and 7908 of 2003 have challenged the order dated 27.2.2003 declaring them as not selected as they are medically found unfit with a direction to the first respondent to give employment to the petitioners as Drivers (MT) based on the employment notice No.6 of 2001 dated 28.9.2001.
4. All the above writ petitions were opposed by the Indian Airlines Limited, by contending as follows. (i) Writ petitioners having taken part in the selection process pursuant to the employment notice without any protest, are estopped from challenging the employment notice and the procedure followed in the selection. The writ petitioners, as casual employees, have no right to claim any preference nor claim regularisation of their services as their original entry as casual employees itself are not in conformity with the regular selection rules. (ii) It is further stated that 29 vacancies of driver posts were notified by the Headquarters to be filled up in various stations in all the four southern states. Out of the said vacancies, 15 are to be filled up in Tamil Nadu. The procedure to be followed for filling up the vacancies are as per the recruitment and promotion rules, subject to reservation. Out of the 15 vacancies in Tamil Nadu, five posts are reserved for Scheduled Castes, three posts for other backward classes and seven posts for general category. The eligibility criteria prescribed under the employment notice was that the candidate must have passed 8th standard; must hold heavy vehicle transport driving licence; and at least five years experience in a business house, undertaking the job of driver. The age relaxation was given to casual daily rated employees. (iii) The said qualification must be satisfied as on 1.10.2001 and such of those candidates who qualified the above criteria were called for trade test and those who have qualified in the trade test were subjected to interview by a duly constituted selection board. A merit list was prepared in the order of merit and appointment was made against the available vacancy in the order of merit. About 439 applications were received from four states including casual daily rated employees. 216 cndidates fulfilled the eligibility criteria and they were called for trade test. About 20 candidates were called for trade test each day followed by interview. The interview was held for 11 days in the month of Apri, 2002. Petitoner in W.P.No.40768 of 2002 belongs to OBC category and he was given age relaxations as he was an ex-casual driver and was called for trade test and interview and he was empanelled in the merit list of selected OBC candidate and he has to await his turn. The said panel was valid for two years. (iv) Only to meet the contingencies and unforseen circumstances, casual drivers were employed and they were provided equal opportunity by rotation to those who were willing to make themselves available. The casual drivers were not selected as regular employees. The provisions under section 25H of the Industrial Disputes Act, 1947, will not apply to the present case as the casual employment will not confer any calim for permanency. Petitioners in the other two writ petitions were also selected in the trade test and interview and they were found unfit during medical test and the same was intimated to them.
5. After hearing the matters, the learned single Judge found that the petitioners in W.P.Nos.7822 and 7908 of 2003 are found medically unfit by the medical experts and no relief could be granted to them and dismissed the writ petitions. Insofar as W.P.No.40768 of 2002 is concerned, the learned single Judge allowed the writ petition on the ground that the persons selected, who are private respondents, are far juniors than the writ petitioner therein and also they have worked as Loaders and not as drivers and the said allegation having not been denied specifically, came to the conclusion that the Indian Airlines Limited overlooked the seniority of the writ petitioner therein as casual employee and not giving weightage as casual employee is unjust and consequently without disturbing the selection already made, gave a direction to appoint the writ petitioner with continuity of service from the date when orders were issued to the private respondents, but without backwages.
6. As against the dismissal of W.P.Nos.7822 and 7908 of 2003, writ petitioners therein filed W.A.Nos.2113 and 2112 of 2005 respectively. The Indian Airlines Limited in W.A.No.2077 of 2005, challenged the order made in W.P.No.40768 of 2002 allowing the writ petition.
7. Mr.M.Sundar, learned counsel appearing for the appellants in W.A.Nos.2112 and 2113 of 2005, who is also the counsel for the first respondent in W.A.No.2077 of 2005 submitted that the writ petitioners having been found fit to serve as casual drivers, the Indian Airlines Limited is not justified in rejecting the candidature of the appellants on the ground that they are medically unfit and when the appellants proved that they are fit enough to drive the vehicle without any blemish, they cannot be denied permanent appointment on the ground that they are medically not fit. The learned counsel also contended that discriminatory treatment is given to the appellants in W.A.Nos.2112 and 2113 of 2005 even insofar as medical test is concerned as one Masanamuthu, third respondent in W.A.Nos.2112 and 2113 of 2005 was referred to the second Medical Board and based on the report submitted by the second Medical Board, he was found fit and permitted to join duty and the appellants were not referred to the second medical board which is discriminatory and therefore the appellants are entitled to succeed in the writ petitions challenging the non-selection on the ground that they are not medically fit. The learned counsel further submitted that in any event petitioners in these writ petitions having been employed as casual drivers, they should have been given preference for regular appointment as per section 25H of the Induatrial Disputes Act, 1947, particularly when the Indian Airlines Limited selected persons, who served as casual Loaders, who served long after the service of the petitioners. The learned counsel ultimately submitted that the notification issued by the Indian Airlines Limited is also bad as it has not given any preferential treatment to the ex-casual drivers and also cited various judgments in support of his contentions.
8. Mr.N.G.R.Prasad, learned counsel appearing for the Indian Airlines, who is first respondent in W.A.Nos.2112 and 2113 of 2005 and appellant in W.A.No.2077 of 2005 submitted that the writ petition challenging the notification is not maintainable since the writ petitioners applied for the post in terms of the notification, participated in selection process and after their non-selection it is not open to them to challenge the notification as it is hit by the principles of estoppel. Insofar as the claim made under section 25H of the Industrial Disputes Act, 1947, the learned counsel submitted that only when casual vacancies arise, the writ petitioners can get preference under section 25H. According to the learned counsel, for the permanent vacancies to be filled on the basis of regular selection, writ petitioners were given age relaxation for the period for which they worked in the Indian Airlines. The learned counsel further submitted that for appointment as drivers, no medical test is contemplated and only for regular selection the rule requires medical fitness. M/s.L.Radhakrishnan and G.Murugan, who are appelants in W.A.Nos.2112 and 2113 of 2005 were found medically unfit due to the high blood sugar level and Masanamuthu, who is the second respondent in W.A.Nos.2112 and 2113 of 2005, whose blood sugar level was only marginally high at the first medical test and he was not a diabetic and therefore he was referred to the second medical board, which found that he is fit to take up the job as driver and he need not have any anti-diabetic drugs and he will do well with diet, exercise and weight reduction. Hence according to the learned counsel for the Indian Airlines, there is no discrimination in referring the said Masanamuthu to the second medical board. The learned counsel ultimately submitted that out of the 20 posts available in Tamil Nadu, 9 posts were filled up from among the ex-casuals on due selection and one candidate was the internal candidate and only five out of 15 posts were filed up by candidates from the open market. Hence due consideration was given to the ex-casuals and therefore the selection was conducted in a fair and transparent manner. Insofar as calling 13 candidates on different date for interview, it is submitted that the interview was conducted from 1.4.2002 to 5.4.2002 and 8.4.2002 to 12.4.2002 and the interview Committee members being Section Heads, they had to attend to their regular duties and hence there was break and again intervew resumed on 19.4.2002 and the 13 candidates were interviewed on that date. Learned counsel also cited several judgments in support of his contention and prayed for dismissal of W.A.Nos.2112 and 2113 of 2005 and for allowing W.A.No.2077 of 2005.
9. We have considered the rival submissions made by the learned counsel appearing for the appellants as well as the respective respondents.
10. The point in issue is whether the ex-casuals are entitled to get appointment without reference to further selection as contended by the learned counsel for the writ petitioners and whether the first respondent in W.A.No.2077 of 2005 is entitled to challenge the employment notification after taking part in the selection and found that he was not selected on the principle of estoppel.
11. It is not in dispute that the appellants in W.A.Nos.2112 and 2113 of 2005 and first respondent in W.A.No.2077 of 2005 are ex-casual drivers of Indian Airlines Limited. It is also not in dispute that at the time when they were engaged as casuals, no selection procedures were followed by the Indian Airlines Limited and no medical test was conducted to assess their medical fitness to work as drivers. It is also not in dispute that all the three persons applied for the regular driver posts pursuant to the notification dated 28.9.2001, participated in the Trade test, interview and medical test. Admittedly, appellants are selected as casual drivers by the Indian Airlines Limited by not following the recruitment rules and therefore they have no right to claim regularisation in view of the judgment of the Honourable Supreme Court reported in (2006) 4 SCC 1 (Secretary, State of Karnataka and Others v. Umadevi and others). In paragraph 43 of the Judgment, the Honourable Supreme Court held thus, "43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees who se period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. ....."
12. The claim of the petitioners that they should be given preference under section 25H of the Industrial Disputes Act, 1947, cannot be countenanced on the simple reason that section 25H of the Industrial Disputes Act, 1947, gives preference only on re-employment of ex-casuals and is not applicable for seeking permanency of the employment contrary to the recruitment rules.
13. The Division Bench decision of this Court (presided over by one of us - P.Sathasivam, J.) reported in (2006) 1 MLJ 295 (M.Sekaran v. General Manager, Tamil Nadu State Transport Corporation, Coimbatore Division) cited by Mr.M.Sundar, learned counsel for the writ petitioners will not help the writ petitioners since that judgment was rendered on the basis of Sec.12(3) settlement entered into between the management and workmen, which gives preference to casual employees of conductors and drivers, who have completed 240 days of service entitling them to seek permanency. This Court on the basis of the settlement between the parties held that the writ petitioners, who completed 240 days in the respective Corporations and satisfied other conditions, if any, are to be given preference under section 25H of the Industrial Disputes Act, 1947, in preference to new entrants and the other writ petitioners who worked less than 240 days, shall also be given re-employment and their services will be regularised only after completion of 240 days and subject to fulfilling other conditions, if any. As rightly contended by the learned counsel for the Indian Airlines, the said judgment was pronounced based on 12(3) settlement.
14. The other decision cited by Mr.M.Sundar, learned counsel, reproted in (1996) 5 SCC 419 (Central Bank of India v. S.Satyam and others) will not help the writ petitioners as it deals with only re-employment of the retrenched workmen. The said principle will apply only if the Indian Airlines is again taking casual drivers and during the employment of casual drivers, the ex-casuals should be given preference.
15. Per contra, Mr.N.G.R.Prasad, learned counsel appearing for the Indian Airlines Limited, cited (1999) 6 SCC 101 (Indian Airlines Limited v. Samaresh Bhowmick and others), which supports the case of the Indian Airlines. The said judgment was rendered on the basis of a scheme for regularisation framed by the Indian Airlines Limited. Based on the scheme extracted in para 6 of the judgment, which specifically states that it will be one time exercise, the direction issued by the Division Bench of the Calcutta High Court is contrary to the scheme was held unsustainable by the Honourable Supreme Court.
16. The decision in (2005) 5 SCC 100 (Manager, Reserve Bank of India, Bangalore v. S.Mani and others) is also based on a settlement arrived at between the Workers Federation and the Management. In the absence of any settlement between the writ petitioners and the management in these cases, as rightly contended by the learned counsel for the respondents, petitioners are not entitled to seek permanency or regular employment.
17. A Division Bench of Kerala High Court considered similar issue wherein the Labour Court directed 50 of the permanent vacancy should be filled by ex-casuals, which was slightly modified by the learned single Judge and the award of the Labour Court. The award of the Labour Court as well as the order of the learned single Judge were set aside by the Division Bench by allowing W.A.No.534 of 1989 by order dated 5.7.1990. SLP (Civil) No.11413-14 of 1990 filed was also dismissed by the Honourable Supreme Court on 23.10.1990, wherein the Honourable Supreme Court observed that casual employees worked in the past should be considered afresh by the management for being employed as casual labourers, subject to availability of work.
18. In the Division Bench decision reported in 2003 (2) LLN 40 (Asservadham and others and Indian Airlines Ltd.) it is held that unless there is a scheme for reappointment, there cannot be any legal right for automatic continuation of the service of ex-casuals.
19. In (2007) 1 SCC 408 (Indian Drugs & Pharmaceuticals Ltd. v. Workmen) the right of temporary employees/casual daily rated adhoc employees are considered in paragraph 16 and in paragraphs 37 and 38 it is held as follows, "37. Creation and abolition of posts and regularisation are purely executive functions vide P.U.Joshi v. Accountant General ((2003) 2 scc 632). Hence, the court cannot create a post where none exists. Also we cannot issue any direction to absorb the respondents or continue them in service, or pay them salaries of regular employees, as these are purely executive functions. This Court cannot arrogate to itself the powers of the executive or legislature. There is broad separation of powers under the Constitution, and the judiciary, too, must know its limits.
38. The respondents have not been able to point out any statutory rule on the basis of which their claim of continuation in service or payment of regular salary can be granted. It is well settled that unless there exists some rule no direction can be issued by the court for continuation in service or payment of regular salary to a casual, ad hoc, or daily-rated employee. Such directions are executive functions, and it is not appropriate for the court to encroach into the functions of another organ of the State. The Court must exercise judicial restraint in this connection. The tendency in some courts/tribunals to legislate or perform executive functions cannot be appreciated. Judicial activism in some extreme and exceptional situations can be justified, but resorting to it readily and frequently, as has lately been happening, is not only unconstitutional, it is also fraught with grave peril for the judiciary."
20. In AIR 1993 SC 2447 (State Bank of India v. G.K.Deshak) the Honourable Supreme Court considered the scope of judicial review in respect of the medical fitness of a candidate. In paragraph 3 the Honourable Supreme Court held as follows, "3. We have heard the learned counsel for the parties at length. The medical opinion, which is on the records of the case, clearly indicates that the defect in his eyes is very serious and he is unfit for the post. He was allowed to join in obedience to the writ issued by the High Court. The reasons given in the impugned judgment indicate that the High Court took upon itself to decide the question of medical fitness of the respondent and on reaching a conclusion in favour of the respondent, preferred the same as against the medical opinion of the specialist doctor. It is significant to note that it is not suggested on behalf of the respondent that the authorities of the appellant State Bank of India have acted mala fide or with any malice against the respondent. In the circumstances, we do not approve of the approach adopted by the High Court in allowing the writ petition."
21. In view of the above referred decisions, it is not open to the writ petitioners to contend that they should have been given preference by excluding others from the realm of selection to the regular post. The submission with regard to discrimination in not referring the appellants in W.A.No.2112 and 2113 of 2005 for second medical check-up is also unsustainable because the said Masanamuthu, who is the second respondent in the above writ appeals, was found to have fasting blood sugar of 112 mgs, which was only slightly on the higher side. Therefore the management referred the said Masanamuthu for the second medical check up to M.V.Diabetes Specialities centre (P) Ltd., and Madras Diabetes Research Foundation, which certified on 9th November, 2002, as follows, "Mr.V.Masanamuthu (our ref.No.89023) was referred to us for pre-employment diabetic evaluation. Mr.Masanamuthu has no family history of diabetes. He is slightly overweight. GTT was done using 75 gms glucose load which shows a slightly raised fasting blood sugar value with a elevated peak value but a normal 2 hour value. This GTT is not diagnostic either of diabetes or Impaired Glucose Tolerance (IGT). Moreover the glycosylated haemoglobin is also only marginally abnormal at 6.3 which is a range normally seen in IGT. He does need any anti-diabetic drugs and would do well with diet, exercise and weight reduction, which should also help to normalize the GTT. In my opinion, he is fit to take up the job as a Driver." The medical report of G.Murugan, appellant in W.A.No.2113 of 2005, issued by the M.V.Diabetes Specialities Centre (P) Ltd., dated 9.11.2002 reads as follows, "Mr.G.Murugan (our ref.No.M 89025) was referred to us for pre-employment diabetic evaluation. Mr.Murugan has a family history of diabetes (father and elder brother have diabetes). He is almost of ideal body weight. GTT shows evidence of diabetes with a fasting of 176 mgs and 2 hour value of 185 mgs%. The HbA1c was also elevated at 7.8% confirming that he has diabetes." The medical certificate dated 15.11.2002 with regard to L.Radhakrishnan, appellant in W.A.No.2112 of 2005 reads as follows, "Mr.L.Radhakrishnan (our ref.No.M 89217) was referred to us for evaluation of his diabetic status for pre-employment check up for the post of Driver. From the history, the patient is a known diabetic for the past 1 year and has been taking Daonil (Glibenclamide) 1 tablet all along. GTT was done today to reassess his diabetic status which shows severe diabetes with a fasting of 176 mgs, peak value of 372 mgs% and a 2 hour value of 289 mgs%. The glycosylated haemoglobin is also grossly elevated at 10.5%. He is therefore a severe diabetic."
22. Since the first medical report itself clearly established the fact that the appellants in W.A.Nos.2112 and 2113 of 2005 are diabetes, there is no necessity to refer them to second medical board like Masanamuthu, whose first medical report showed that his blood sugar was marginally higher and no confirmation of diabetes was made. In view of the said clear distinction available, discrimination alleged by the counsel for the appellant is unsustainable.
23. The argument of the learned counsel for the writ petitioners in W.A.No.2112 and 2113 of 2005 that 13 candidates were interviewed subsequently and the management shown favour to them is also unsustainable in view of the fact stated in paragraph 12 of the counter affidavit filed in W.P.No.7822 of 2003, which is extracted hereunder, "... I submit that as many as 216 candidates fulfilled the eligibility criteria and it is humanly impossible to conduct the test for all the candidates on one day. I submit that the candidates were called for Trade Test/ interview in lots. The said tests were held from 1.4.2002 to 5.4.2002 and 8.4.2002 to 12.4.2002 and in view of the intervening holidays and the selection board comprised of Sectional Heads and they were engaged in the selection process for nearly two weeks, they had to attend to their duties and the selection process resumed on 19.4.2002 and on that date the tests for remaining 13 candidates were held. Hence the selection is in order. The allegation of the petitioner to the contrary is baseless."
24. The learned counsel for the management is also right in contending that the first respondent in W.A.No.2077 of 2005 having taken part in the selection process, is estopped from challenging the notification inviting application, mode of selection, etc., after his participation and non-selection as held by the Honourable Supreme Court in the decision reported in AIR 1998 SC 795 (Union of India and another v. N.Chandrasekharan and others), wherein in paragraph 13 it is held thus, "13. We have considered the rival submissions in the light of the facts presented before us. It is not in dispute that all the candidates were made aware of the procedure for promotion before they sat for the written test and before they appeared before the Departmental Promotion Committee. Therefore, they cannot turn around and contend later when they found they were not selected by challenging that procedure and contending that the marks prescribed for interview and confidential reports are disproportionately high and the authorities cannot fix a minimum to be secured either at interview or in the assessment on confidential report. ......."
25. The principle of estoppel is considered by the Honourable Supreme Court in various decisions. (i) In the decision reported in AIR 1978 SC 28 (I.L.Honnegouda v. State of Karnataka and others) the Honourable Supreme Court held thus, "In view of our judgment in Appeals Nos.883 and 898 to 905 of 1975 : (Reported in AIR 1977 SC 876) which has just been delivered and the fact that the appellant acquiesced to the 1970 Rules by applying for the post of the Village Accountant, appearing before the Recruitment Committee for interview in 1972 and 1974 and taking a chance of being selected, the present appeal which questions the constitutionality of Rules 4 and 5 of the 1970 Rules cannot be allowed. It is accordingly dismissed but without any order as to costs." (ii) In 1986 (Supp) SCC 285 (Om Prakash Shukla v. Akhilesh Kumar Shukla) in paragraph 24, the Honourable Supreme Court held thus, "24. Moreover, this is a case where the petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without protest. He filed the petition only after he had perhaps realised that he would not succeed in the examination. The High Court itself has observed that the setting aside of the results of examinations held in the other districts would cause hardship to the candidates who had appeared there. The same yardstick should have been applied to the candidates in the district of Kanpur also. They were not responsible for the conduct of the examination." (iii) In AIR 1995 SC 1088 = (1995) 3 SCC 486 (Madan Lal v. State of Jammu & Kashmir), (SCC p.9) it is held thus, "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. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla (AIR 1986 SC 1043) it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner." (iv) The above said decisions of the Honourable Supreme Court were folowed by the Full Bench of this Court in the decision reported in AIR 2000 MADRAS 174 (R.Murali v. R.Kamalakkannan)(FB) and in paragraph 55, question No.2 was answered thus, "Question No.2: We hold that writ petitioners are not entitled to challenge the selection after having participated in the written examination on the principle of estoppel."
26. In view of the above findings, we find no merit in the W.A.Nos.2112 and 2113 of 2005 filed by the writ petitioners and therefore the the same are dismissed and W.A.No.2077 of 2005 filed by the Indian Airlines is allowed. No costs. Connected miscellaneous petitions are closed. vr
The General Manager (Personnel),
Indian Airlines Limited (Southern Region),
Chennai 600 027.
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