JUDGMENT
Aruna Suresh, J.
1. Rule DB. With the consent of the learned Counsel for the parties, this writ petition is taken up for final hearing. This writ petition arises from the challenge to the letter dated 17th June 2003 issued by the Assistant Director, Staff Selection Commission, Northern Region before the Central Administrative Tribunal (CAT), Delhi in O.A. 2376/2003. The petitioner was appointed as Constable on 20th December, 1988 and applied for the post of Sub-Inspector in response to the advertisement published in the Employment News, as departmental candidate, for which 10% vacancies out of total vacancies, were reserved under Rule 7 of the Delhi Police (Appointment and Recruitment) Rules 1980. The relevant portion of the advertisement in so far as is concerned with the present writ petition is as follows:
8. Physical Endurance Tests and Physical Requirements for the post of Sub-Inspectors (Ex.) in Delhi Police.
Candidates who qualify in the Main Examination shall be required to undergo, before the Personality Test, Physical endurance test and physical measurements (including vision tests) to be conducted by the Delhi Police. These tests would be held in Delhi only)
The physical Endurance Tests are as under:
(i) 1000 meter race in 7 minutes (Refer to Corrigendum published in the Employment News dated 4-10, Nov 2000)
(ii) Broad Jump/Long Jump : 3.5 meter, and
(iii) High Jump : 1.05 meter.
Candidates who are competing for the posts of Sub-Inspector (Executive) Delhi Police should satisfy the following physical requirements, failing which they will not be eligible for appointment:
(i) Height: 170 cms (minimum)
Relaxable by 5 cms for Gorkhas and Garhwalis (only residents of Distts. Paurigarhwal, Tehri, Chamoli and Uttarkashi.)
(ii) Chest: 81 cms (85 cms after expansion)
Relaxable by 5 cms for Gorkhas and Garhwalis (only residents of Distts. Paurigarhwal, Tehri, Chamoli and Uttarkashi).
(iii) Should possess sound Health free from defect/deformity/disease. Vision in both eyes should be 6/12 (without glasses). There should be no colour blindness. No relaxation in these conditions can be allowed.
Note I ***
Note II only those candidates who qualify in the physical efficiency test and physical measurements (including vision test) shall be eligible for being called for the Personality Test/ Interview.
2. The petitioner was appointed as Constable (Ex.) in Delhi Police on 20.12.1988. After qualifying the Combined Graduate Level Examination for the post of Sub Inspector, the petitioner was called for Physical Endurance Test on 14.07.2003 vide letter dated 17.06.2003, which admittedly, he could not clear. Aggrieved by the disqualification he filed an OA bearing No. 1843/2003 praying that the Physical Endurance Test be dispensed with in his case or some other date may be fixed keeping in view his ailment. The application was disposed of with a direction to the respondents to consider his case. The respondents considered his case and nothing was shown by him to support his claim of having informed the authorities to accommodate him because of his ailment prior to his appearing for the Physical Endurance Test. He also submitted that he was suffering from backache and stiffness, which fact was brought to the knowledge of the respondents for their consideration. In fact the records revealed that he was declared fit to resume duties 3 days before the Physical Endurance Test. It was only after his disqualification that he procured a certificate of illness that too from a private doctor. Keeping all this in view the petitioner’s case was rejected by Staff Selection Commission on 25th August 2003.
3. The petitioner, upon being unsuccessful, moved another OA bearing No. 2376/2003 impugning the action of the respondents and sought to challenge the terms of the advertisement and sought to contend that he could not be called upon for ‘physical endurance test’ because it is against the rules and judgments of this Hon’ble Court. He contended that being a departmental candidate he was not required to undergo any such test, as he had cleared physical tests at the time of his initial appointment.
4. The said OA was dismissed by the impugned judgment on 8th March 2004 as being devoid of any merit interalia holding that if he could not clear the Physical Endurance Test then the question of his selection for the post of Sub- Inspector in the 10% quota of departmental candidates does not arise, particularly in view of the nature of duties to be discharged by him in the Delhi Police.
5. This has resulted in the filing of the present writ petition. It is not in dispute that in spite of three attempts, the petitioner could not clear the ‘physical endurance test’ in so far it pertained to the High Jump of 1.05 meters. It has been contended that the petitioner was suffering from ailment of backache and stiffness, and therefore, could not clear the ‘physical endurance test’. Even if this is so, ‘physical endurance test’ was a must and without qualifying it the petitioner could not have been selected.
6. The cases relied upon by the petitioner in support of his contentions are Sunder Dev v. UOI 1983(23) DLT 115 and Shambhu Dayal v. UOI CWP No. 1227/1983, which decisions we must point out have no application to the present case inasmuch as they do not pertain to the requirement of clearing physical endurance test (which is a better test to ascertain the physical fitness of the candidate). There the examination was in two parts that is written test and personality test, unlike the present case where clearing physical endurance test was the condition precedent to be called for personality test. In those cases the petitioners were given relaxation in physical standards (height) at the time of initial appointment and as such that concession was held to continue, while no such concession / relaxation in physical standards was given to the petitioner at the time of his initial recruitment nor is any such relaxation provided for in the advertisement.
7. The respondents have submitted that the there are 2 channels of recruitment to the post of Sub- Inspector; 50% by promotion and 50% by Direct recruitment inclusive of 10% quota for the departmental candidates. It is against this quota that the Petitioner was competing for the post of Sub-Inspector and therefore can not claim parity with the candidates competing for vacancy to be filled by promotion only. Further, in view of standing orders dated 23rd June 1988 every officer of Delhi Police was compulsorily required to undergo physical proficiency test during the month of march every year in order to check the fitness of such officer.
8. In our view, the petitioner having appeared in the examination pursuant to the advertisement, which stipulated the ‘physical endurance test’ and having failed in the said test, could not be permitted to turn around and question the ‘physical endurance test’ later on upon being unsuccessful, as being unconstitutional. This is contrary to the following position of law laid down by the Hon’ble Supreme Court in Chandra Prakash Tiwari and Ors. v. Shakuntala Shukla and Ors. , the relevant porition of which reads as follows:
32. In conclusion, this Court recorded that the issue of estoppel by conduct can only be said to be available in the event of there being a precise and unambiguous representation and it is on that score a further question arises as to whether there was any unequivocal assurance prompting the assured to alter his position or status – the situation, however, presently does not warrant such a conclusion and we are thus not in a position to lend concurrence to the contention of Dr. Dhawan pertaining the doctrine of Estoppel by conduct. It is to be noticed at this juncture that while the doctrine of estoppel by conduct may not have any application but that does not bar a contention as regards the right to challenge an appointment upon due participation at the interview/selection. It is a remedy which stands barred and it is in this perspective in Om Prakash Shukla (Om Prakash Shukla v. Akhilesh Kumar Shukla and Ors. 1986 Suppl. SCC 285, a Three Judge Bench of this Court laid down in no uncertain terms that when a candidate appears at the examination without protest and subsequently found to be not successful in the examination, question of entertaining a Petition challenging the said examination would not arise.
33. Subsequently, the decision in Om Prakash stands followed by a later decision of this Court in Madan Lal and Ors. v. State of J and K and Ors. , wherein this Court as below:
9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this state there is no dispute between the parties. 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 selected to have emerged successful as a result of the 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 (1986) Suppl SCC 285 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.
10. Therefore, the result of the interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful. It is also to be kept in view that in this petition we cannot sit as a court of appeal and try to reassess the relative merits of the candidates concerned who had been assessed at the oral interview nor can the petitioners successfully urge before us that they were given less marks though their performance was better. It is for the Interview Committee which amongst others consisted of a sitting High Court Judge to judge the relative merits of the candidates who were orally interviewed, in the light of the guidelines laid down by the relevant rules governing such interviews. Therefore, the assessment on merits as made by such an expert committee cannot be brought in challenge only on the ground that the assessment was not proper or justified as that would be the function of an appellate body and we are certainly not acting as a court of appeal over the assessment made by such an expert committee.
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.
9. Furthermore, in a calling such as Delhi Police no aspirant for promotion can claim that the physical endurance test should not be undergone. In this view of the matter, we are satisfied that the CAT was absolutely justified in declining to entertain the O.A. filed by the petitioner challenging his non-selection as Sub-Inspector.
Furthermore, the learned Counsel for the petitioner informed us that the petitioner was promoted as Sub-Inspector in the year 2003 and the dispute pertains only for seniority sought from the year 2001. Accordingly, no grievance can be raised about the non-selection. The writ petition is dismissed.