ORDER
K. Ramamoorthy, J.
1. The Petitioner was undergoing motor training of light vehicle as per the programme of Centralised Accident Trauma Services (CATS) by the Government of the National Capital Territory of Delhi. He was to appear in the examination held on 10.04.1996 to 19.04.1996. The details regarding the examination are given by the petitioner and they are as under:
S. Date Subject for Language for Comments,
No. examination written Exam. if any.
1. 10.04.96 Wireless Written Examination Training
Procedure in was in
Theory. English. Hindi
medium
2. 11.04.96 Practical Medium -do-
12.04.96 and viva Hindi
voce & English.
3. 13.04.96 Medical Written examination -do-
(1st) in
English.
4. 15.04.96 Medical - -
(IInd)
5. 16.04.96 Practical The tests were -
17.04.96 and Viva in optional
18.04.96 voce Hindi or English
19.04.96 Medium.
2. The petitioner, as per the counter affidavit filed by respondents 3 and 4 had secured the following marks:
Theory and Assessment Practical
Medical 136/300 (failed) 56.5/100
Wireless 89/140 131/200
3. It is stated in the counter affidavit that the qualifying marks are 50% in each of the papers separately and for the purpose of evaluation the respondents had taken the marks of internal assessment. The method adopted
by the CATS is described as under:
Training
l
Examination
l
----------------------------------------------
l l l
Medical Driving Test Wireless & Communication
l l l
-------------- ------------- ----------------
l l l l l l
Theory Internal Practicals Theory Internal Practical
assessment assessment
l l l l
Marks 150/300 50/100 70/140 30/60
(50%) (50%) (50%) (50%)
4. The petitioner was selected because he has not secured 50% marks in each of the papers. As he was not selected he had approached this court claiming the following reliefs:
a) Allow this petition and issue a writ of mandamus, certiorari or any other appropriate writ, order or direction declaring that the system and method of examination conducted by the third and fourth respondents from 10.04.1996 to 19.04.1996 is bad in law and that the same is liable to be struck down;
b) The examination conducted in pursuance of the said system and methodology be declared as had in law and the results declared in the end of July 1996 in pursuance of the said examination be also declared as null and void;
c) Without prejudice to the relief under prayers a & b and in the alternative, to direct the respondents to have a reappraisal of the answer sheets of the petitioner through an independent agency and to declare in his results on the basis of such reappraisal;
d) To direct the third and forth respondent not to issue oral directions for the candidates to write their answer sheet in pencil and also to direct the said respondents to evolve a proce dure for conduct of examinations that would ensure fair, reasona ble objective and unbiased assessment of the performance of the candidates who are examined by the said respondents; and
5. The learned counsel for the petitioner Mr. Vijay Gupta submitted that while offering a chance to the petitioner to appear in the examination he was not informed or in that matter no one was apprised of the fact that the candidates should secure 50% marks in each of the papers. According to Mr. Vijay Gupta, the learned counsel for the petitioner, the petitioner who has secured more than 50% marks in the aggregate ought to have been selected. In otherwords, the submission of the learned counsel for the petitioner is that respondents 3 and 4 are duty bound to inform the candidates and that is the position in law.
6. The learned counsel for the petitioner Mr. Vijay Gupta relied upon the judgement of the Supreme Court reported in Sanatan Gauda Vs. Berhampur University & Ors. . The facts considered by the Supreme Court are as follows:
The appellant passed his M.A. examination in July 1981 securing in the aggregate 364 marks out of 900 marks i.e., more than 40% of total marks. In 1983, he secured admission in Ganjam Law College for threeyear Law Course. There is no dispute that at the time he took admission, he had submitted his marksheet along with his M.A degree certificate. The appellant completed his first year course known as the “PreLaw Course” and in 1984 was promoted to the second year course known as the “Intermediate Law Course”. In 1985, he appeared for the PreLaw and InterLaw examinations held by the Berhampur University to which the Ganjam Law College is affiliated. He gave the said examination and in the same year he was admitted to the Final Law course in the same College.
It appears that although he was admitted to the Final Law class es, his results for the PreLaw and InterLaw examinations were not declared. The appellant made representations to the Bar Council of India and the Administrator of the Berhampur Universi ty, on February 12, 1986. On October 30, 1986, the University replied that since the appellant had secured less than 39.05 per cent marks in his M.A degree examination, he was not eligible for admission to the Law Course. On November 11, 1986, the appellant made a representation pointing out that he had secured more than 40 per cent marks in the said examination and, therefore, he was entitled to be admitted to the Law Course. On November 14, 1986, the Chairman of the Board of Studies also wrote to the Deputy Registrar of the University pointing out that the Board of Stud ies in its meeting held on October 29, 1986 had recommended that those students who had passed their M.A. examination and had secured more than 40 per cent of the total marks should be considered eligible for admission to the Law Course even though they had secured less than 20 per cent marks in any one of the papers in the said examination.
In spite of this, the University did not take any step to an nounce the appellant’s results. Hence, the appellant approached the Orissa High Court by a writ petition on May 11, 1987 chal lenging the nondeclaration of his results and the University’s refusal to permit the appellant to appear in the Final Law exami nation. The writ petition was dismissed by the High Court by the impugned order of July 30, 1987. Against the said decision the present appeal was filed. By an interim order of March 15, 1988, the appellant was permitted to continue his Final Law course and to appear in the examination of the said course. It was also directed that the results of the examinations in which the appel lant had appeared should be declared in due course.
7. In para 11 His Lordship Mr. Justice Sawant observed: This is apart from the fact that I find that in the present case the appellant while securing his admission in the Law College had admittedly submitted his markssheet along with the application for admission. The Law College had admitted him. He had pursued his studies for two years. The University had also granted him the admission card for the PreLaw and Intermediate Law examina tions. He was permitted to appear in the said examinations. He was also admitted to the final year of the course. It is only at the stage of the declaration of his results of the PreLaw and InterLaw examinations that the University raised the objection to his socalled ineligibility to be admitted to the Law course. The University is, therefore, clearly estopped from refusing to declare the results of the appellant’s examination or from pre venting his from pursuing his final year course.
8. On the basis of this view, his Lordship was inclined to allow the appeal. His lordship Mr. Justice Sharma agreeing with the view taken by His Lordship Mr. Justice Sawant observed: Mr. P.N. Misra, the learned counsel for the respondent, contended that the University had informed the Colleges about the necessary condition for admission to the Law course which, it appears, was not respected by the College. When the applications by the candi dates for sitting at the examination were forwarded by the Col lege, the University asked the Principal to send the marks of the candidates for the purpose of verification, but the Principal did not comply. The letters annexures ‘F’ and ‘G’ to the counter affidavit have been relied upon for the purpose. The learned counsel pointed out that instead the Principal sent a letter Annexure ‘I’ stating that the markslist would be sent in a few days for “your kind reference and verification” which was never sent. The Principal wrongly assured the University authorities that he had verified the position and that all the candidates were eligible. In these circumstances, the argument is, that the appellant cannot take advantage of the fact that the University allowed him to appear at the examination. I am afraid, the stand of the respondent cannot be accepted as correct. From the letters of the University it is clear that it was not depending upon the opinion of the Principal and had decided to verify the situation for itself. In that situation it cannot punish the student for the negligence of the Principal or the University authorities. It is important to appreciate that the appellant cannot be accused of making any false statement or suppressing any relevant fact before anybody. He had produced his markssheet before the Col lege authority with his application for admission, and cannot be accused of any fraud or misrepresentation. The interpretation of the rule on the basis of which the University asserts that the appellant was not eligible for admission is challenged by the appellant and is not accepted by the College and my learned Brother accepts the construction suggested by him as correct. In such a situation even assuming the construction of the rule as attempted by the University as correct, the Principal cannot be condemned for recommending the candidature of the appellant for the examination in question. It was the bounden duty of the University to have scrutinised the matter thoroughly before permitting the appellant to appear at the examination and not having done so it cannot refuse to publish his results.
9. The learned counsel for the petitioner Mr. Vijay Gupta also relied upon the judgment of this court in Puja Lal Vs. University of Delhi 1997 II AD (Delhi) 705. The matter came up before this court under the following circumstances as stated by the learned Judge:
The case of the petitioner is that she joined the course of M.Sc. Part I in Applied Operational, Research (South Campus) in the University of Delhi for the year 199495. She passed the first year examination of the said course and she was issued a provi sional certificate (previous) dated 2.8.95. Aforesaid course was introduced for the first time in July/August 1994 as two years Master Degree Course and the petitioner belongs to the first batch of the aforesaid course, the petitioner took admission on the basis of Bulletin of information and Courses of Studies published and circulated by the respondent which has treated the M.Sc PartI Course in Operational Research and M.Sc Part I in Applied Operational Research on the same footing and the said bulletin did not provide for the minimum qualifying marks a student has to secure in each paper. Petitioner has been a good student having secured 64.8 per cent marks in her Graduate de gree. The petitioner took M.Sc (Previous) examination and was declared successful alongwith other successful candidates. Provisional sional Certificate and mark sheet were also issued to the peti tioner some time in August 1995. Provisional Certificate is at page 18 and mark sheet is at page 19 of the paper book, she secured 541 marks out of 800 marks and in the statement of marks it was mentioned that she was eligible for promotion with the remarks “E.P”. However, as she secured less marks in Paper V she applied for revaluation on 29.8.95. No reply or action has been taken on her application dated 29.8.95 by the respondent as alleged by the petitioner.
Thereafter, she was admitted to M.Sc (Final) for the aforesaid course for Academic Session 199596. The petitioner secured an aggregate marks of 621 out of 800 marks but was declared unsuc cessful, although she secured 77.6 per cent marks in final exami nation. Thereafter petitioner was told that though she had cleared all the papers in Part II examinations but as she had secured 42 per cent marks in Paper V of Part I examination which is below 50 per cent marks in M.Sc in Applied operational Re search Course for the Academic Sessions 199496.
10. The University in that case sought to rely upon the Ordinance which prescribed that student was bound to secure 50% in each of the papers. The learned Judge posed the question in para 4: By no stretch of imagination it can be said that there was any stipulation to by the Notification of the University while declaring the petitioner having passed the first year examination that she has to secure 50% marks in each subjects and not having secured 50% marks in Paper V of Part I examination, she was to reappear for the said paper. The stipulation was with regard to the confirmation of petitioners admission to the first year course. Therefore, it is manifestly clear from the aforesaid Notification filed by the respondent themselves that till they issued this notification no such stipulation regarding minimum percentage of marks regarding all the papers was the considera tion for promoting the petitioner. Strangely enough,, Annexure A which has been much relied upon by the respondent in the counter affidavit the respondents are silent as to when this Ordinance pertaining to M.A course in Applied Operational Research separately for the year 199495. That being the situation, the peti tioner was fully justified in view of the provisional certificate issued by the despondency and the noting on the mark sheet. “E.P” that she has been declared successful in Part I examination without any reservation. Even otherwise on account of bulletin made available to the petitioner being silent about the minimum marks thereof and general impression given by it being that two courses were similar i.e. applied Research and `Applied Opera tional Research”, the petitioner was justified in holding the view that she has passed the M.Sc Part I examination.
11. The petitioner drew support from the judgement of a Division Bench of this Court referred to Kanishka Aggarwal Vs. University of Delhi and Ors. 1991 (2) Delhi Lawyer 14743 wherein the Division Bench considered the question of estoppel. The learned Single Judge found himself in complete agreement with the view expressed by the Division Bench and observed:
I am in complete agreement with the view expressed by the Divi sion Bench of this Court. Similarly, the petitioner was given a provisional certificate to the effect that she has passed M.Sc. Part I examination having been given marksheet with endorsement “E.P” and nor “E.R.” having received not a word from 1995 till October 1996 or intimation that the petitioner has not qualified Part I of Final Year examination if has does not obtain 50% of marks in Paper V of Part I examination. All this does constitute a representation by the respondents. This was what precisely answered by Supreme Court in Sanatan Gauda Vs. Berhampur Univer sity & Ors. . The applicant was justified, under the circumstances to raise assumption. The petitioner on the representation of the University on the basis of the Bulletin of Information which had equated M.Sc Part I Course in Operational Research with M.Sc Part I in Applied Opera tional stipulation of having at least 50 per cent marks in all the papers/subjects was a condition precedent at the time when she took admission in the first year of the said Ordinance. Nothing relevant has been brought on record to show that Ordi nance prescribing 50 per cent marks in each paper was a sine qua non for promotion at the relevant time. There is considerable force in the arguments advanced by learned counsel for the peti tioner that the prospectus which in this case is the Bulletin of Information published by the respondent in an instrument through which the Department of Applied Operational Research holds out its contents and represents the general public as well as to a student the terms and conditions. I do not see any force in the arguments of the learned counsel for the respondent that ordi nance only dealt with terms of the admission and not of examina tion more particularly in view of the Ordinance issued for Opera tional Research which was in force at the time when the admission was given to the petitioner for Applied Operational Research for the year 199495. The condition of said Ordinance particularly Condition No.2(b) is as follows.
“No candidate shall be permitted to proceed to the second year class unless he had secured at least 40% marks in aggregate at least half the number of courses, written and practical taken together prescribed for the first year. (For this purpose the Courses in which the candidate has secured the least marks will be ignored)”.
12. The learned Judge further observed: Nothing has been brought on the record by the respondent as to whether any other Ordinance except the Ordinance which has been annexed with the counter affidavit, was in vogue when the petitioner took admission to the first year course for the year 199495. As a matter of fact, respondent failed to communicate to the petitioner before 1.10.96 what has been stated by the re spondents thereafter regarding qualifying marks in paper. The delay has not been explained by the respondent. I must comment adversely on the action of the respondent. After petitioner having applied on 29.8.95 for revaluation of the result in Paper V, the result of revaluation was not informed till filing of this writ petition to the petitioner. Even in AnnexureC filed with the counter affidavit, socalled revaluation result, photocopy of which has been filed, nowhere it states as to what is the result of revaluation. Admittedly the date of issue of 9.4.96, though the same is denied by the petitioner as not received and that is why she has made a prayer in ClauseC of the writ petition directing University to inform about the revaluation result.
13. On this view, the learned Judge was inclined to allow the writ petition. According to Mr. Vijay Gupta, the learned counsel for the petitioner, the ratio in the two cases would on all forces apply to the case of the petitioner and therefore, the writ petition should be declared successful in the examination.
14. Mr. S.S. Sabharwal, the learned counsel for respondents 3 and 4 referred to the judgment of the Supreme Court in Mangej Singh and Ors. Vs. Union of India & Ors. . The facts of the case could be stated thus. By a Circular dated 22.07.1982 the Railway Administration invited applications from Class IV employees of Transportation and Commercial Departments for selection as Ticket Collectors in the grade of Rs. 260400. The appeal before the Supreme Court that the appellants and respondents 5 to 8 applied for the post. Respondent No. 5 passed in the written examination but failed in the viva voce. Respondents 6 to 8 failed in the written test and were not called for interview.
15. The appellants before the Supreme Court qualified in the written test and were selected in the viva voce and they were selected for regular appointment.
16. Respondent no. 5 to 8 before the Supreme Court filed a writ petition before the High Court which was subsequently transferred to the Central Administrative Tribunal, Jodhpur Branch. The Central Administrative Tribunal Jodhpur Branch set aside the selection on two grounds which are as under:
The Tribunal has set aside the selection test on two grounds(1) it has held that vacancies arising from 1979 to 1982 were clubbed together and this has caused prejudice to some candidates be cause, in respect of vacancies which arose in 1979, only those who had completed three years’ service in 1979, should have completed and so on for each year up to 1982. There is, however, no factual data on record to show how many vacancies arose in 1979 and in each of the subsequent years up to 1982; and whether, and if so, how many of the selected candidates had completed three years of service in 1979 or in any subsequent year up to 1982. In the absence of any factual data we fail to see how the Tribunal could have held that the clubbing of vacancies from 19791982 has caused any prejudice to Respondents 5 to 8.
The other ground on which the Tribunal has set aside the selec tion relates to the written test which was held. The Tribunal has quoted the letter of the Railway Board dated 29.11.1962 to the effect that the posts (sic tests) to which Class IV staff to be promoted to Class III posts should be subjected, should be correlated to the standard of proficiency that can reasonably be expected from employees who are generally nonmatriculates. The aim of the examiners should be to assess the general suitability of the Class IV employees offering themselves for promotion to Class III posts from the point of view of knowledge of English and their general standards of intelligence. There is a subse quent letter of the Railway Board of 27.02.1980 stating that ordinarily it is not necessary to test the working knowledge of English for such promotions for employees in Hindispeaking areas. There is also an earlier circular dated 24.12.1979 which is issued by the Northern Railways to the same effect. The present circular which is a subsequent circular of the Bikaner Division of the Northern Railways dated 22.07.1982 clearly re quires ability to write and read English as a qualification for promotion from Class IV to Class III posts. The policy, there fore, in relation varied from time to time, presumably depending upon the Railways’ perception of their requirements. It is for the Railways to decide qualifications relating to promotion from Class IV to Class III. They alone are the judges of their requirements relating to employees who can be considered for such promotions. If the circular of 22.07.1982 requires working knowl edge of English for promotion, the Tribunal cannot fault this requirement. Also the Tribunal was wrong in deciding that because an essay and a translation were required in the written examina tion, the test was too difficult. This again is the Tribunal’s assessment of the kind of examination which should have been conducted. The Tribunal’s assessment cannot be substituted for the assessment of the Railways. Clearly, a large number of appli cants belonging to the Class IV category passed this examination and did qualify. If they had a better knowledge of English and better general proficiency than Respondents 5 to 8 who failed, the selection of better qualified candidates cannot be faulted. The appellants relied upon two judgments of this Court; one in the case of Om Prakash Shukla Vs. Akhilesh Kumar Shukla (para 24) and the other in Madan Lal Vs. State of J&K (Para 9). They con tended that since the respondents had appeared in the examination without protest, they cannot challenge the examination only because they have failed. We need not examine this question because in any view of the matter we do not see any reason for faulting the examination. Respondents 5 to 8 had failed in the examination and were, therefore, not qualified for the selection.
17. Thus the Supreme Court held that it is for the Railways Administration to follow the procedure which it had chosen to adopt for the examination and the Tribunal cannot interfere with the process. Mr. Sabharwal, the learned counsel for the respondents referred to the judgment of Om Prakash Shukla Vs. Akhilesh Kumar Shukla and Ors. 1986 (Supp) SCC 285. The Supreme Court expressed the view that once a person had appeared in the examination without protest he cannot challenge the same when he had failed to pass the examination.
18. The learned counsel for the respondents Mr. S.S. Sabharwal referred to the judgment of the Supreme Court reported in Madan Lal and Ors. Vs. State of J & K and Ors. . One of the contentions before the Supreme Court as follows:
At the final hearing of this petition the learned Senior Counsel for the petitioners raised the following contentions in support of the petition:
(1) The impugned viva voce test conducted by Respondent 2, Com mission is patently illegal as there is nothing to show that the Members who conducted the test had assigned separate marks faculty wise for assessing the performance of the candidates concerned as per Rule 10 of the Rules.
“….. 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 stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who inter viewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves to have emerged successful as a result of their combined perform ance 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 be cause 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 Vs. Akhilesh Kumar Shukla 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.
Therefore, the result of the interview test on merits cannot be successfully challenged by a candidate who take 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”.
19. In the instant case the third respondent had conducted the examination and had selected those who had secured 50% in each of the papers. The relevant file was produced before me and I gave an opportunity to Mr. Vijay Gupta to peruse the file. Mr. Gupta perused the file. In all fairness Mr. Gupta stated that it is not the contention of the petitioner that there was any irregularity in the conduct of the examination and any of the candidates selected by the 3rd respondent had secured less than 50% in each of the papers. As laid down by the Supreme Court, this court is not sitting in an appeal over the decision of the 3rd respondent. The petitioner cannot call in aid the decision of the Supreme Court reported in Sunatan Gauda Vs. Berhampur University & Ors. and the judgment of this court reported in Puja Lal Vs. University of Delhi 1997 II AD (Delhi) 705. The facts are entirely different and I am of the view that the principle laid down by the Supreme Court in the decision referred to by Mr. S.S. Sabharwal, the learned counsel for the respondents would govern this case.
20. In this view of the matter, I am not inclined to accept the submissions made by Mr. Vijay Gupta, the learned counsel for the petitioner. Accordingly, the writ petition stands dismissed. There shall be no order as to costs.