Petitioner Cannot Blow Hot and Cold: J&K HC Dismisses Challenge to Dental College Recruitment Against Candidate Who Participated Without Protest
Safiya Malik
The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Javed Iqbal Wani held that a writ petition challenging a government order altering selection criteria for academic posts in medical education institutions could not be sustained once the petitioner had participated in the very selection process. The Court dismissed the petition on the ground of suppression of material facts and the principle that one cannot accept and reject the same order simultaneously. No relief was granted, and the petition was disposed of in its entirety.
The petitioner, a resident of Srinagar, filed a writ petition under Article 226 of the Constitution of India seeking quashing of Government Order No. 383-JK(HME) of 2024 dated June 20, 2024, issued by the Health and Medical Education Department of the Union Territory of Jammu and Kashmir. The petition also sought a mandamus directing the authorities to make appointments to the posts of Senior Residents/Registrars in accordance with the previously notified Government Order No. 282-JK(HME) of 2023 dated April 4, 2023.
The petitioner submitted that the 2023 order had established a uniform selection process applicable to faculty positions including Senior Residents and Registrars across medical and dental institutions in the Union Territory. While this selection criteria was reportedly followed by most institutions, the petitioner contended that the Government Dental College & Hospital, Shireen Bagh, Srinagar had deferred appointments based on a communication dated October 30, 2023, despite the availability of posts.
Challenging this communication in an earlier writ petition, the petitioner had secured an interim order from the High Court on June 7, 2024, stating that the process should proceed as per the 2023 order unless superseded by a formal government order. Despite this direction, the respondents issued Government Order No. 383-JK(HME) of 2024 altering the selection criteria, including provisions for a written examination.
The petitioner alleged that the 2024 order was arbitrary, discriminatory, and unauthorized, issued by an official who lacked the requisite authority under Government Order No. 810-JK(GAD) of 2020. The petition claimed that the new order contradicted the earlier court order and was aimed at achieving extraneous objectives.
The official respondents contended that the revised order was intended to enhance competitiveness and select meritorious candidates through a written test mechanism, which aligns with practices followed by premier institutions such as the All India Institute of Medical Sciences (AIIMS). They argued that the petitioner lacked locus standi to challenge the revised criteria, especially after having participated in the selection process initiated under the impugned order.
Respondent No. 4, a selected candidate, submitted that the petitioner had applied and participated in the selection process pursuant to an advertisement dated July 3, 2024, under the new criteria, scoring 63.75 marks and appearing at position eight in the merit list. The respondent claimed 72.75 marks and ranked second. The respondent asserted that by participating in the selection process, the petitioner was estopped from challenging its validity.
Justice Javed Iqbal Wani stated: “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 around and subsequently contend that the process of interview was unfair or the selection committee was not properly constituted.”
The Court referenced the Supreme Court ruling in State of UP vs. Karunesh Kumar and Others, noting: “Unsuccessful candidates cannot turn back and assail the selection process.” It cited Union of India v. N. Murugesan, stating: “One cannot take advantage of one part while rejecting the rest. A person cannot be allowed to have the benefit of an instrument while questioning the same.”
It was further recorded: “The petitioner indisputably has appeared in the process of selection initiated by the respondents... and has not made the grade, so much so, the petitioner has even concealed the said fact about her said participation in the selection process held during the pendency of the petition.”
Citing Prestige Lights Ltd. v. State Bank of India, the Court noted: “If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the writ court may refuse to entertain the petition and dismiss it without entering into merits of the matter.”
It additionally quoted the judgment in K.D. Sharma v. Steel Authority of India Limited and Others, where it was held: “The petitioner must come with clean hands... If there is no candid disclosure... his petition may be dismissed at the threshold.”
The Court concluded: “It will not be open to the petitioner to contend, on one hand, that the impugned order has been issued without any authority or for mala fide considerations, and on the other hand, acknowledge the validity of the said order... and conceal the said fact before this court.”
The Court issued the following directive: “Thus, for what has been observed, considered and analysed hereinabove, the petition is found to be without any merit and is accordingly dismissed.”
Advocates Representing the Parties
For the Petitioners: Mr. G. A. Lone, Advocate; Mr. Mujeeb Andrabi, Advocate; Mr. N. A. Baba, Advocate
For the Respondents: Mr. Rais ud Din Ganaie, Government Advocate for R1–R3; Mr. M. I. Dar, Advocate with Ms. Sana Imman and Mr. Ruaani A. Baba, Advocates for R4
Case Title : Falak Mukhtar v. UT of Jammu & Kashmir & Ors.
Case Number: WP(C) 1383/2024
Bench: Justice Javed Iqbal Wani
[Read/Download order]
