ORDER
Lakshmanan, CJ.
(1). The petitioner filed the above writ petition with the following prayers:
(a) The writ petition filed by the petitioner may kindly be allowed and the relevant record may kindly be called for and be perused by this Hon’ble Court, if so pleases;
(b) By an appropriale writ, order or direction, the complete selection procedure which is being followed by the respondent for making direct recruitment on the post of ADJs may kindly be declared as null and void and be quashed and set-aside and it may further be directed to firstly declare the result of the petitioner including all other candidates of written examination and the marks obtained by him in the said examination and also the marks and the percentage of the last candidate who has been called for interview and it may further be directed to call 110 candidates for interview in the ratio which has been notified by it and if the petitioner as per his merit position falls within 110 or within the extended zone, if the vacancies are increased due to compulsory retirement of DJs and ADJs, then he may be called for interview and be considered for appointment on the post of ADJs;
(c) by an appropriate writ, order or direction, the selections and appoiniments, if made in pursuance of the impugned selection proceedings, same may kindly be quashed and set aside;
(d) any other relief which this Hon’ble Court may deem fit just and proper in the facts and circumstances of the case, same may kindly be granted in favour of the petitioner.
(e) Cost of the writ petition may kindly be awarded in favour of the petitioner.
(2). The petitioner is a practising Advocate from 1978. He suspended his practice from 1980 to 1993 since he was in service. He resumed his practice in the year 1993 and now practising at the Civil Court, Jaipur and also before this Court.
(3). A Notification dated, 28.10.99 was issued under the signature of the Registrar General whereby applications were invited from the Advocates for filling up 22 vacant posts of Additional District and Sessions Judge, by direct recruitment in RHJS in accordance with the provisions of the Rules of 1969. According to the petitioner, out of 22 posts advertised, 5 were reserved for women candidates, 4 posts for S.C. candidates, 4 for ST candidates, 3 for OBC category candidates and 11 for General category candidates. According to him, he has fulfilled all the eligibilities as prescribed under the Rules of 1969 and that he belongs to OBC category since he is a Jat by caste. It is his further case that as per the percentage of reservation fixed by the State of Rajaslhan, 16% posts were to be filled by SC candidates, 12% by ST and 21% by OBC and in that case, 4 posts should have been reserved for SC, 3 for ST and 4 for OBC candidates, whereas, 3 posts have been shown as reserved for OBC candidates. The petitioner submitted his application in response to the aforesaid Notification and was found fit and therefore, one Admission Card was issued to him for appearing in the written examination. The petitioner appeared in the written test which was held on 6th August 2000 at Jodhpur. Even according to the petitioner, as per the notes mentioned in the admission Card, a written lest was to be held for the purpose of scrutiny and short listing with a view of calling the candidates for interview in the ratio of 1 : 5 of the vacancies and marks obtained at the written test shall in no way form any basis for final evaluation in the interview. Thus, according to the petitioner, a total of 110 candidates were to be called for interview. However, a total of 88 candidates were
declared as passed in the written test as per Annexure-3. According to the petitioner, the marks obtained by the petitioner in the written examination has not been disclosed, though, he has a right to know the marks awarded to him and even the cut-off marks were to be disclosed. The petitioner submitted a notice for demand of justice through his counsel, which was sent by Registered Post on 20.11.2000, though, even after sending the notice for demand of justice nothing was done and the petitioner has come to know that interviews for making direct recruitment on the post of ADJs have already commenced since 15.1.2001 and neither the marks obtained by the petitioner have been informed nor the cut-off percentage of marks obtained by the last candidate has been disclosed nor 110 candidates have been called for interview.
(4). It is also submitted by the petitioner that 26 persons belonging to RHJS cadre have been compulsorily retired and, therefore, those vacancies are also available and the respondents should have increased the vacancies and the number of candidates to be called for interview should have been accordingly increased on the basis of the existing vacant posts before the interview as the posts of ADJs are to be filled on the basis of interview and the wrilien test has to be held only with a view to make scrutiny and the .marks obtained by a candidale are not to be included in the marks oblained in inlerview and, therefore, written examination is meant only for scrutiny purposes and the real selection procedure starls from selection procedure itself. Under these circumstances, the petitioner filed the present writ pelition with the prayers extracted above.
(5). It is submitted on behalf of the petitioner and by the petitioner himself:-
(A) That the action of the respondents in not declaring marks oblained by the candidates in the written examination is unjustified, illegal and arbitrary.
(B) That the total posls being 22, total 110 candidates should have been short listed after written examination for being called for interview, but only 88 candidates have been short- listed and are to be interviewed which is tolally wrong and against the selection procedure as fixed by the respondent itself. Therefore, the entire selection procedure is vitiated.
(C) That as per the notification total 22 posts have been advertised out of which 4 posts have been reserved for SC candidates, 4 for ST candidates and 3 for OBC category candidates, whereas as per the percentage of reservation in the State of Rajasthan 16% posls should have been filled by SC, 12% by ST and 21% by the OBC candidates. Therefore, it comes to 4 SC, 3 ST, and 4 OBC and the petilioner belongs to OBC being Jat by caste and has already submitted the caste certificate alongwith his application form. Therefore, the reservation of post for OBC category is not proper.
(6). Along with the writ petition Annexures-1 to 4 have been filed.
(7). Annexure-1 is the Nolificalion issued by the Rajasthan High Court, Jodhpur, No. Estt. (RJS)/109/99 dated, 28.10.99 inviting applications from the Advocates for filling up 22 vacant posts of Additional District & Sessions Judges by direct recruitment in the Rajasthan Higher Judicial Service. Annexure-2 is the Admission Card. It has been specifically mentioned the Admission Card that the written test is being held for the purpose of scrutiny and short-listing with a view to calling the candidates for interview in the ratio 1 : 5 of the vacancies and marks obtained at the written test shall in no way form any basis for final evaluation in the interview. Annexure-3 is the result of written test held for recruitment on the post of ADJs by direct recruitment published in the newspaper. Annexure-1 is the notice for demand of justice sent by the pelitioner on November 20, 2000.
(8). This Writ Petition was filed by the petitioner on 21.1.2001. When the matter came up before this Bench on 25th January 2001, which was the last date for interview, this Division Bench after hearing the petitioner in person and Shri Prem Asopa, Senior Advocate for the respondent, passed the following order:
“Heard, Shri Pratap Singh, petitioner in person. We have very little time to go into the merits of the claim raised in this writ petition. Though the Notification advertising the vacancies of RHJS was issued on 28.10.99 and a notice for demand was issued on November 20, 2000 demanding justice, the writ petition has been filed only on 22.1.2001 with a prayer to declare the entire selection process as null and void and set aside and further to declare the result of the petitioner including all other candidates appeared in the written examination and also the cut off percentage and also the marks and the percentage of the last candidate who has been called for interview and to call 110 candidates for interview in the ratio which has been notified by the Registrar. There are other incidental prayers. The petitioner appeared in the written examination. Since he was not successful in the examination, he was not called for interview. The list of the candidates who were to be called for interview was published in newspapers as early as on 19th of September, 2000. The writ petition has been filed at this belated stage. “Though the writ petition itself is liable to be dismissed on the question of latches, we permit the petitioner to provisionally to appear in the interview today at 2.00 p.m. before the Committee constituted for this purpose. The Registrar is directed to inform the Hon’ble Members of the Committee about this order. However, the result of the petitioner wilt not be declared until further orders of this Court.
Mr. Prem Asopa appears for the respondents and accepts notice. He is at liberty to file reply to the writ petition before the next date of hearing.
List this case before this Court when Hon’ble the Chief Justice is in Jaipur.”
(9). Accordingly, the petitioner was permitted to appear before the interview Committee provisionally at 2 p.m. on 25.1.2001. The respondent filed a detailed counter affidavit explaining the specific stand by the respondent. A preliminary objection was raised in regard to the maintainability of the writ petition on merits. It is submitted that the Rule-20(1) of the Rajasthan Higher Judicial Service Rules, 1969, gives power to the Court on administrative side to consider the fitness of the candidates for calling them for interview and that the Screening Test and the ratio for calling the candidates is as per the said rule. Shri Asopa invited our attention to Rule 20 (1) of the Rules, which is reproduced here-under:
“20. Scrutiny of application and interview:
(1) The court shall scrutinise the applications received in accordance with the provisions of Rule 19 and thereafter call for interview only those who, in its opinion, are fit to be called for that purpose.”
(10). Thus, It is submitted that as far as the reservation for the OBC category is concerned, the same were rightly determined as three as per the roster register maintained by the answering respondent and the government circular dated, 20.11.1997. The same is the position with the ST category vacancies which were determined four in number. At the time of hearing we directed the learned counsel for the respondent to place before” us the entire records pertaining to this particular selections of RHJS and accordingly, the entire records were placed before us for our perusal. The records were summoned by us in order to satisfy ourselves with regard
to the correctness of the averments made by the petitioner in his writ petition and the statements made in the reply filed by the respondent on the judicial side. We have perused the entire records and also the pleadings of the parlies. In our opinion, the writ petition filed by the petitioner is liable to be rejected on the ground of latches.
(1) Latches : In the instant case, the result of the Screening Test was declared on 19.9,2000 and the petitioner was aware that his name does not appear in the result of Screening Test, bul still he slept over the matter and at a belated stage, a notice for demand of justice was given on 20.11.2000, which was received, by the Regislrar General on 25.11.2000. The petitioner, in our opinion, had approached this Court at highly belated stage when the interviews were almosl at the end. Therefore, the writ petition, in our opinion, is liable to be dismissed on this sole ground. The petitioner, in our view, took a calculated chance and appeared in the Screening Test without protest, then only because the result of Screening Test was not palatable to him, is now stopped turning round and assailing the selection procedure.
Screening Test : It is submitted by the petilioner that for one post, five candidates were called for interview and there being 22 posts, 110 candidates should have been short-listed and called for interview, bul only 88 candidates have been short-listed and called for interview, which is totally wrong and therefore, the entire selection procedure is vitiated. In our opinion, the above contention has no merit. The candidates for the interview have been called in the ratio of 1 : 5 category-wise, i.e. for the 9 posts of General (men) 46 candidates have been called for and for two posts of OBC (men), 12 candidates have been called for the interview on account of the fact that the last three candidates have secured equal marks as per the report of the four Hon’ble Judges Committee. Likewise, the candidates for other categories have also been called. It is further submitted that the written examination was only a Screening Test for the interview. In the writ petition itself, the petitioner has admitted that in the Admission Card it was clearly stated that the written examination is only a Screening Test and marks obtained will not be taken into account for the final selection.
(11). We have perused the recommendations of the Committee made, in its meeting held on 24.8.2000, at Jaipur, which resolved to recommend 88 candidates for interview. We have also perused the report submitted by the Hon’ble Judges Committee. It is seen from the repori that the Hon’ble Judges Committee have recommended 12 candidates for OBC (for two vacancies for men and one vacancy for woman). For the female candidates in OBC category, altogether six female candidates appeared and the Committee had recommended six candidates for the interview. As far the Scheduled Caste, though, four posts were reserved for this category out of which one is reserved for female and three for male candidates. Five male candidates had appeared and only one female candidate had appeared altogether in the test. Therefore, all tile five male candidates and one female candidate were recommended for interview.
(12). As far the Scheduled Tribe candidates are concerned, four posts were reserved, out of which one is reserved for female candidate. However, only six male candidates had appeared and no female candidate had appeared in the test and therefore, all the six persons were recommended for the interview. In so far as General Category is concerned, there are 11 posts, out of which two posts are reserved for female candidates. Altogether, 288 candidates appeared in the male category and 45 candidates should be recommended for the interview. Bul, some of the candidates have secured equal marks, the Committee instead of recommending 45 candidates, have recommended 46 candidates for the interview. So far as the female candidates are concerned, against two posts, 47 candidates had appeared and the Committee had recommended 10 candidates, but in view of the fact that some candidales have secured equal marks in the merit list, the Committee had recommended 12 women candidates for the interview. Thus, it is clearly seen that the respondent has adopted the reasonable and fair ratio of 1 : 5, but in the category of S.C. (men) — 3 vacancies,
S.C. (Women)-l vacancy, S.T. (Men)-3 vacancies and ST. (Women) 1 vacancy, the requisite number of candidates were not available in the ratio which has resulted in calling of lesser number of candidates than the ratio. As regards the OBC category, it is submitted mat in all there were 3 posts- 2 for men and 1 for women. Against 2 posts for men 12 candidates were called as per the marks obtained in the Screening Test, but the name of the petitioner did not appear upto merit No. 12 and the same appeared at merit No.25 of the candidates called for the interview, therefore, the petitioner was not called for the interview.
(13). It is pertinent to mention herein that even the Rajasthan Public Service Commission calls candidates for interview category wise in the ratio of 1 : 3. The said methodology of short listing the candidates for interview has been upheld by the Supreme Court and also by this Court in several of its decisions. The following five cases can be referred to for short listing and ratio of the candidates:
(14). In Rajasthan Public Service Commission & others vs. Dr. (Miss) Damyanti Dadhich etc. etc. (1), a similar question raised was answered by the Division Bench in Para-29 of its judgment, which is reproduced hereunder:
“We may also mention here that Mr. Kuhad, learned counsel for the writ petitioners, raised some argument as to what he described as arbitrary ratios fixed by the Commission for calling candidates for interviews in different subjects. He placed on record a chart giving ratios of candidates called for interview with reference to the number of vacancies to be filled in and pointed out that whereas in one subject the Commission called seven candidates for each vacancy, in another it called only two candidates for one vacancy. This, according to Mr. Kuhad is discriminatory. We are unable to agree. It is for the Commission to decide about such ratios depending on various factors considered relevant by it. No hard and fast rule can be laid down by the Court for fixation of such ratios.”
(15). In S.B. Mathur and others vs. Hon’ble the Chief Justice of Delhi High Court and others (2), the Supreme Court held as under :
“The Bench, however, went on to hold that, in its view, merely because the Haryana Public Service Commission had called all Ihe. 1300 candidates who obtained 45 percent or more marks in the written examination to appear in the interview that did not invalidate the selection made. ‘This decision points out that the minimum eligibility qualification has to be kept distinct from the zone of consideration and even if there are a large number of candidates who satisfy the minimum eligibility requirement it is not always required that they should be included in the zone of consideration, it being open to the authority concerned to restrict the zone of consideration amongst the eligible candidates in any reasonable manner.
In the case before us, zone has been restricted by prescribing that out of the total number of candidates who satisfy the eligibility requirement, the zone of consideration will be limited to a multiple of 3 to 5 times of the number of vacancies and the persons to be considered will be determined on the basis of their seniority in the combined seniority list. It appears to us that there is nothing unreasonable in this resiriclion. It was open to the Delhi High Court to restrict the zone of consideration in any reasonable manner and limiting the zone of consideration to a multiple of the number of vacancies and basing it on seniority according to the combined seniority list, in our view, it cannol be regarded as arbitrary or capricious or mala fide. Nor can it be said that such restriction violates the principle of selection on
merit because even experience in service is a relevant consideration in assessing merit.”
(16). In the Gujarat State Sales Tax Non Gazetted Employees’ Association vs. The State of Gujarat and another (3), the Gujarat High Court has held that the Screening Committee can restrict the field of choice and only such candidates can be called for
interview.
The head Note (Para-8) reads as under :
“Though the Recruitment Rules may prescribe the minimum eligibility qualification, it is competent to an appointing authority to demarcate the field of choice, that is to say, lo prescribe some rational screening test by the adoption of which the necessity of calling for interview or for examination, as the case may be, every eligible candidate is eliminated and the zone of selection is restricted to candidates with merit bearing a reasonable proportion to the number of vacancies to be filled up. In other words, though an obligation to consider every qualified candidate may be implicit in the recruitment rules as also in the equal opportunity right enshrined in Arlicles 14 and 16 of the Constilution, screening a candidate out of consideralion at an initial stage of the process of selection is not illegal or unconstitutional, if a legitimate field demarcating the choice by reference to some ralional formula is carved out. The power to prescribe a zone of selection or field of choice cannot be denied even in a case where there is a preference clause inasmuch as the rule of preference will still continue to operate in the restricted zone of consideralion. In the present limes of large- scale unemployment, unless such power is recognised, the appointing authority will have to allow every eligible candidate to complele in the process of selection at all stages upto the final appointment, involving such waste of public lime, money and energy and arousing false hopes in the minds of the competing candidates. There is, therefore, nothing inherently wrong in restricting the field of choice in the present case to First Class graduates of various faculties. The test adopted is undoubtedly rational and time-honoured and it has direct nexus with the object of selection, for the object is to draw upon the best talent in order to fill up the requisite number of posts.”
(17). In The Government of Andhra Pradesh vs. F. Dilip Kumar and another (4), the Supreme Court held as under:
“The second decision lo which our attention was invited is a Judgment of a learned Single Judge of the Gujarat High Courl in Gujarat State Sales Tax Non Gazetted Employees’ Association vs. The State of Gujarat and another (1997 (1) SLR 452). In that case 120 posts of Sales Tax Inspectors were required lo be filed in by direcl selection. As advertisement was issued in the Newspapers and as many as 15,000 candidates applied in response thereto. This necessitated screening of the candidates at the threshold. It was found that more than 1000 applicants were holding first class degrees in different faculties of recognised Universities; 580 of them were first class Commerce graduates, 101 first class Arts graduates and about 500 first class Science graduates. Having regard to the number of vacancies the field of choice was restricted to first class graduates only and it was decided not to call for interview a second class or third class graduate including graduates having Commerce degree wilh Accountancy as a subject. It was this decision which was put in issue
before the learned Single Judge by candidates who were eliminated at the threshold from considcralion. The relevant rule provided that the appointment to the post of Sales Tax Inspectors shall be made either (a) by direct selection or (b) by promotion. Insofar as direct selection was concerned, the educational qualification required was staled to be a degree of a recognised University. The proviso laid down as under:-
“Provided that preference shall be given to a candidate who possesses a degree of B.Com with Accountancy or Chartered Accountants, or possesses a qualification recognized to be equivalent to such examination by the Govt. of Gujarat.”
(18). In the context of this preference rule It was observed in para 7 of the Judgment as under: –
“To hold that the rule of preference was enacted to give to Commerce graduates with Accountancy or to candidates having other prescribed qualifications an absolute preference over the graduates of other faculties would be to denude the substantive provision of much of its force and effect and to covert the rule of preference into a rule of reservation thereby obliterating altogether the right of other ‘ candidates possessing degree of recognised Universities in various other faculties to be considered for the post.
It is true that notwithstanding the preference rule it is always open to the recruiting agency to prescribe a minimum eligibility qualification with a view to demarcating and narrowing down the field of choice with the ultimate objective of permitting candidates with higher qualification to enter the zone of consideration. It was, therefore, held that screening a candidate out of consideration al the threshold of the process of selection is neither illegal nor unconstitutional if a legitimate field demarcating the choice by reference to some rationale formula is carved out. Thus the challenge based on Articles 14/16 of the Constitution was repelled. We are in agreement with the ratio of this decision and that is enough to negative the claim of candidates who had preferred O.A. Nos. 1736 to 1739 of 1990 who were not called for interview on their failing to secure the minimum qualifying marks in the written test.
In the present case also the zone of consideration was narrowed by eliminating candidates who did not succeed in the qualifying test and out of those who succeeded in the qualifying test and secured the minimum marks after interview were considered and thereafter in the process of selection the preference rule was applied by first choosing the post-graduates and thereafter the graduates. We have already pointed out above that classification on the basis of higher educational qualification with a view to achieving improvement in administrative performance is not abhorrent to Articles 14/16 of the Constitution. We are, therefore, of the opinion that the view taken by the learned single Judge of the High Court on a true interpretation of the relevant rule in the context of the historical background was a plausible view and should commend acceptance as it would advance the cause of efficiency in a highly technical service. We, therefore, think that even if two views were possible, the Tribunal ought not to have unsettled the legal position settled earlier by the High Court with which even this court refused to interfere in SLP. For the foregoing reasons we do not approve of the view subsequently taken by the Tribunal.”
(19). In Madhya Pradesh Public Service Commission vs. Navnil Kumar Potdar & another (5), (he Supreme Court has held as under:
“In Kothari Committee’s Report on the “Recruitment Policy and Selection Methods for the Civil Services Examination” it has also been pointed out in respect of interview where a written test is also held as follows:
“The number of candidates to be called for interview, in order of the total marks in written papers, should not exceed, we think, twice the number of vacancies lo be filled…”
In this background, it is all the more necessary to fix the limit of the applicants who should be called for interview where there is no written lesi, on some rational and objective basis so that personality and merit of the persons who are called for interview are properly assessed and evaluated. It need not be pointed out that this decision regarding short-listing the number of candidates who have applied for the post must be based not, on any exlraneous consideralion, but only to aid and held the process of selection of the best candidales among the applicants for the post in question. This process of shortlisting shall not amount to aliering or substituting the eligibilily criteria given in statutory rules or prospectus. In substance and reality, this process of short-listing is part of process of seleclion. Once the applications are received and the Seleclion Board or the Commission applies its mind to evolve any rational and reasonable basis, on which the list of applicants should be short-listed, the process of selection commences. If with five years of experience an applicant is eligible, then no fault can be found with the Commission if the applicants having compleled seven and half years of practice are only called for interview because such applicants having longer period of practice, shall be presumed (o have better experience. This process will nol be in conflict with the requirement of Section 8(3)(c) which prescribes the eligibility for making an application for the post in question. In a sense Section 8(3)(c) places a bar that no person having less than five years of practice as an Advocate or a pleader shall be entitled to be considered for appointment lo the post of Presiding Officer of the Labour Court. But if amongst several hundred appli-tants, a decision is taken to call for interview only those who have completed seven and half years of practice, it is neither violalive nor in conflict with the requirement of Section 8(3)(c) of (he Act.”
(20). In Union of India and Another vs. T. Sundarataman & Others (6), it has been held as under:
“The Tribunal has clearly erred in doing so. Nole 21 to the advertisement expressly provides that if a large number of applications are received the commission may short list candidates for interview on the basis of higher qualifications although all applicants may possess the requisite minimum qualifications. In the case of M.P. Public Service Commission vs. Navnit Kumar Poldar & Anr., JT (1994) 6 SC 302 this Court has upheld short listing of candidates on some rational and reasonable basis. In this case, for the purpose of short listing, a longer period of experience than the minimum prescribed was used as acrilerion by the Public Service Commission for calling candidates for an interview. This was upheld by this Court in the case of Govt. of A.P. vs. P. Dilip Kumar & Anr.: JT (1993) 2 SC 138 also this Court said that it is always open to the recruiting agency to screen candidates
due for considcralion at the threshold of the process of selection by prescribing higher eligibility qualification so that the field of selection can be narrowed down with the ultimate objective of promoting candidates with higher qualifications to enter the zone of consideration. The procedure, therefore, adopted in the present case by the Commission was legitimate. The decision of the Tribunals is, therefore, set aside and the appeal is allowed. There will, however, be no order as to costs.”
(21). This Court, in Dr. Narpat Singh vs. RPSC and Another (7), has held that the Public Service Commission being expert body is entitled to fix criteria for short-listing. Para 5 of the judgment reads as follows:
“The Rajasthan Pub.lic Service Commission being repert body is entitled to fix the criteria for short listing which is within the purview of the concerned body. Their lordships of the Supreme Court also in – a decision reported in AIR 1988 SC 2073 have held that an authority can restrict zone of consideration in a reasonable manner if so many candidates satisfy minimum eligibility requirement and all need not to be considered. In view of this, no interference is called for. That apart this Court is identical matter pertaining to different subject arising out of the same advertisement in S.B.C.W. Petition No. 13-13/95, has already dismissed the writ petition on.20.4.1995 (K.C. Sharma & Anr. vs. State & Anr.) which has been affirmed by the Division Bench in Special Appeal No. 423/95 (Def.) decided on 27.4.95. Under these circumstances, no relief can be granted to the petitioner in this writ petition. The ad-interim otder dt. 17.7.1995 directing the respondents to issue provisional interview letter to the petitioner, stands discharged. The petitioner cannot take advantage of the interview being given by him in pursuance of the interim order dt. 17.7.95 since it was made clear that the same will be subject to the decision of the writ petition.”
(22). A Division Bench of this court comprising of the Chief Justice, Dr. AR. Lakshmanan and Justice Arun Mandan, has upheld the validity of calling of candidates category-wise in the judgment reported in Dharamveer Tholia etc. vs. State of Rajasthan & Ors. (8) and held that the field is occupied by the judgments of this Court interpreting the scope and ambit of the very rule and reported in 1994(1) RLR 533 = 1995(2) WLC 223 (9), 1996(1) RLR 749 = 1996 (3) RLW 344 (10) and 1996(11) SCC 742 (11) and further held as under :
“As rightly pointed out by Mr. Joshi, a person declared successful in preliminary examination only has a right to appear in the main examination and as has been held by the Supreme Court in Chattar Singh’s case (supra). The arguments of the learned Senior Counsel that the list of successful candidates in the preliminary examination should be prepared. On the basis of the merits of the candidates secured by them in the preliminary examination and should not be prepared category-wise, has no merit and force. As per the scheme of the examination, final merit list is prepared only after holding the main examination and interview as per Rule 17 of the rules of 1999 and the marks obtained by the candidates In the main examination and the interviews are taken into account and on the basis of the aggregate marks final merit list is prepared. Such a situation, in our view, is not envisaged at the time of holding the screening test for short-listing the candidates as no merit list is prepared by the Commission at the stage of holding the preliminary test and marks obtained by the candidates in the preliminary examination are not taken
into account while preparing the final list of the candidates. The interpretation given by the learned counsel for the petitioner, will in our opinion, result in denying the reserved category candidate aright of consideration in the main examination as reserved category candidate which will run again the scheme of reservation provided under the Rules and various notification issued by the State Government.”
(23). It was argued by the learned counsel for the petitioner that list of candidates should be published categorywise by the Rajasthan Public Service Commission and since the same has not been done, seleclion is bad. This contenlion has no merit. In our opinion, mere is no requirement of any rule to intimate the marks obtained by the candidate. However, as directed by us, all the relevant records of the case upto the commencement of the interview were placed before us for our perusal on the judicial side.
(24). In so far as the submission of the petitioner that since number of persons have been compulsorily retired, those vacancies are also available and, therefore, the respondents should have increased the vacancies and also increased number of candidates to be called for interview on the basis of existing vacant posts before the interview as the posts of ADJs are filled on the basis of interview. This contention has absolutely no merit. The pelilioner has given wrong number of compulsorily retired persons in the RHJS cadre as 26; whereas, in fact only 17 persons have been compulsorily retired. In the present case, the advertisement issued on 28.10.99, much before the order of compulsory retirement was issued on 9.11.2000. Further, in our opinion, the petitioner cannot make any claim against the post which has fallen vacant on account of compulsory retirement. Promotions and appointments against the said posts have to be made only as per the Rules of 1969.
(25). It is also brought to our notice that the petitioner has obtained 74 marks out of 200 which is far less than the last person called for interview in the OBC category and that the last person called for interview obtained 83 marks out of 200.
(26). At the time of hearing, the sealed cover was opened in the Court as per our earlier order. The petitioner has secured a total of 90 marks in the interview. It is seen from the recommendations dated, 21.01.2001 of the interview Committee constituled for selection of candidates that the Committee interview Committee constituted for selection of candidates that (he Commitlee before the commencement of the interviews, had resolved that no general category candidate obtaining less than 50% marks at the interview should be taken to be suitable for appointment to the Rajasthan Higher Judicial Service. So far as the candidates belonging to the reserved categories, it was decided to scale down the criteria by 10% i.e. upto 40% of the marks obtained at the interview. Before the commencement of the interviews, the interview Committee resolved that the total marks for the interview shall be 400 and each member of the Committee would give marks out of 100k. Accordingly, marking was done individually and total marks obtained by a candidate were tabulated and signed and kept in sealed cover pursuant to the directions issued by this Court. The petitioner was interviewed as a candidate and marks allotted to him by individual members and total marks obtained by him were kept in separate sealed cover and opened in Court. The petitioner has secured only 90 marks, he was not selected for the post in question as the last candidate in OBC category had secured 190 marks and the last candidate in the general category has secured 205 marks. Since 15 candidates from the General, OBC and SC category candidates were found suitable for recommending for the post of RHJS, their names were recommended by the Committee. The Committee did not find any candidate suitable for being recommended for appointment against the four vacancies reserved for ST (General) and ST (Women) candidates and against the one vacancy reserved for SC (Women), the Committee found one candidate suitable for recommendation and her name has been included in the list of candidates recom-
mended. The Committee also did not find any other candidate in the SC category against the three remaining vacancies in that category for recommendation. Since the Committee did not find any other candidale suitable for recommendation for appointment to the Rajaslhan Higher Judicial Service, no reserved list is prepared and the remaining seven vacancies in the SC and ST category are recommended to be carried forward to the next recruitment. Accordingly, a notification No, Estt. (RJS) 12/2001, dated, 13th Feb., 2001, calling applications from the Advocates belonging to the SC/ST category for filling 07 reserved unfilled vacant posls of Additional District & Sessions Judges by direct recruilmenl in the Rajasthan Higher Judicial Service, in accordance with the provisions of the Rajasthan Higher Judicial Service Rules, 1969, was also issued and published in the Hindustan Times dated, February 16, 2001 and in other newspapers.
(27). It is also pertinent to notice that the number of vacancies of reserved category have been worked out as per the roster register and the Government Circular dated 20.11.97, the vacancies in ST category were determined four in number as per the rosier register and the Government Circular dated, 20.11.1997. As Far as the reservation for the OBC is concerned, the same was rightly determined as three out of which two were for men and one was for women as per the roster register maintained by the respondent and the Government Circular dated. 20.11.1997 The submission made by the petitioner that the marks obtained by the candidates should also be declared, has no force. There is no requirement of any rule to declare the marks obtained by the candidates as the written examination is only a Screening Test. In our view, the petitioner cannot make any claim for the posts which have fallen vacant subsequent to the Advertisement on account of compulsory relirement as the said post will have to be filled as per the Rules of 1969 after working out the ratio of promotion and direct recruitment. In our opinion, the petitioner is estopped from challenging the criteria laid down.
(28). In Suneeta Agarwal vs. State of Haryana and others (12), in Para-4 of the judgment the Supreme Court has held as follows:
“We have heard learned counsel for the parties. Narration of the afore-stated facts would show that the appellant had disentitled herself to seek relief in the writ petition filed by her before the High Court. The appellant did not challenge the order of the Vice-Chancellor declining lo accord approval to her selection and, on the contrary, she applied afresh for the said post in response to re-adverlisement of the post without any kind of prolest, Not only did she apply for the post, but she also appeared before the Selection Committee constituted consequent upon re-advertisement of the posl and that too without any kind of prolest, and on the same day she filed a writ petition against the order of the Vice-Chancellor declining to accord his approval and obtained an ad interim order. In the writ petition she also did not disclose that she had applied for the post consequent upon the second advertisement. The appellant having appeared before the Selection Committee without any protest and having taken a chance, we are of the view that the appellant is estopped by her conduct from challenging the earlier order of the Vice- Chancellor. The High Court was justified in refusing to accord any discretionary relief in favour of the appellant. The writ petition was rightly dismissed.”
(29). In Union of India and another vs. N. Chandrasekharan and others (13), the Supreme Court in para 13, has held as under:
“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 sal 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 challening 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. Even on merits, we agree with the learned senior counsel for the appellants that due regard must be bad to the posts to which the candidates are to be promoted as well as to the nature of duties they have to discharge/perform and so viewing the marks given to the interview cannot be considered as disproportionately high or the spread of marks was gone arbitrarily.”
(30). In Madan Lal and others vs. State of J & K and others (14), in para-9, the Supreme Court has held that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination, he is not entitled for any relief to be granted in the writ petition challenging the said examination.
(31). In Om Prakash Shukla vs. Akhilesh Kumar Shukla and others (15). The Supreme court in para 24 has observed as under:
“More-over, 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 thai he would not succeed in the examination. The High Court itself has observed that the selling 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.”
(32). The Supreme Court’also in two of its decisions reported in Hoshiar Singh vs. State of Haryana & Ors. (16), and Prem Singh and others vs. Haryana State Electricity Board &Ors. (17), have held that the selection cannot be made in excess of advertised posts, although, the vacancies had fallen vacant during the selection process.
(33). The petitioner having appeared before the Selection Committee without any protest and having taken a chance, is now estopped by conduct from challenging the selection process and the selections now made. This Court is justified in refusing to grant any relief in favour of the writ petitioner. We are fully satisfied with the entire selection procedure/and the writ petition has absolutely no merit and, therefore, is liable to be dismissed. Accordingly, we do so. However, there will be no order as to costs.