J&K HC Dismisses Plea Challenging Dental College Recruitment, Says Candidates Who Participated Without Protest Cannot Subsequently Challenge Process

Dismissing a writ petition filed by one Dr. Falak Mukhtar, Justice Javed Iqbal Wani observed that once a candidate participates in a selection process without protest and fails to succeed, they cannot later challenge the rules of that process. The Court emphasized the principles of fairness, clean hands, and estoppel in public law remedies, and held that the conduct of the petitioner disentitled her to relief.

The dispute arose when the UT government initially issued the impugned order on April 4, 2023, prescribing uniform selection criteria for faculty posts. However, the process for appointing Senior Residents/Registrars at Government Dental College & Hospital, Shireen Bagh, Srinagar, was deferred following a communication dated October 30, 2023.

The petitioner Falak , challenged this deferment in an earlier writ petition wherein the court directed that selections proceed as per the 2023 order unless a new Government Order was lawfully issued.

Despite this interim order, the respondents issued the Order introducing a written examination as part of the selection process. Aggrieved, Mukhtar filed the instant petition, seeking quashing of the new order and a mandamus to appoint candidates as per the 2023 criteria.

The petitioner, through Advocates Mr. G. A. Lone, Mr. Mujeeb Andrabi, and Mr. N. A. Baba, contended that the impugned order was arbitrary, discriminatory, issued without jurisdiction, and aimed to fulfill vested interests. It was further alleged that the Administrative Secretary (Respondent No. 2) had no legal authority to make such policy decisions, and the change in rules violated the legal rights vested under the previous selection criteria.

On the other hand, the official respondents, represented by Mr. Rais ud Din Ganaie (GA), defended the order, arguing it was introduced with proper application of mind to enhance merit and transparency via a written examination, a method in practice at premier institutions like AIIMS. They contended that the petitioner suppressed key facts, including her participation in the selection process under the new order.

Referring to a long line of Supreme Court precedents including State of U.P. vs. Karunesh Kumar, Madan Lal vs. State of J&K, Om Prakash Shukla vs. Akhilesh Kumar Shukla, and Sadananda Halo vs. Momtaz Ali Sheikh, the Court held that a candidate who participates in a selection process without objection cannot later turn around and challenge the validity of that very process.

It was noted that the petitioner, despite knowing the revised selection process, willingly appeared and failed to secure a higher rank, and subsequently suppressed this material fact before the Court.

The Court strongly invoked the principle of “approbate and reprobate”, ruling that no litigant can accept benefits under a policy and later challenge it when it does not favor them. Justice Wani cited the doctrine of estoppel and equitable conduct, as affirmed in judgments such as Union of India vs. N. Murugesan and R.N. Gosain vs. Yashpal Dhir, to reinforce that "one cannot blow hot and cold."

“… 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 without registering any protest or reserving any right thereto in the process of selection undertaken by the official respondents pursuant to the said order and conceal the said fact before this court”, the court remarked.

In view of these observations the court found the petition devoid of any merit and dismissed the same.

Case Title: Falaq Mukhtar Vs UT Of J&K

Citation: 2025 LiveLaw (JKL) 157

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