ORDER
Lakshmanan, C.J.
1. The petitioner being Soni (Swarankar) by caste belongs to O.B.C. category. He was one of the candidates for RHJS. He had participated in the selection process without any protest and when the result of the selection is not palatable to him, is now turning round and assailing the selection process. The prayer in the writ petition reads as follows:
“(i) An appropriate writ, order or direction may be issued against the respondents quashing the advertisement vide Annex. I and the selections made vide the result-sheet vide Annex.3 on the basis of the Annex. 1.
(ii) Without prejudice to prayer clause (i), the selections in Other Backward Classes quota of the respondents Nos. 9 and 14 may be set aside on the basis of the grounds a,b and c.
(iii) Without prejudice to prayer clauses (i) and (ii), the respondents may be directed to Fill up the fourth vacancy of Other Backward Classes quota in order of merit.
(iv) Without prejudice to prayer clauses (i),(ii),(iii), the actual carrying forward of the vacancies of SC/ST vide advertisement Annex.6 may be set aside and the vacancies of SC/ST remaining unfilled may be ordered to be filled up by normal procedure and may be deemed to be vacant and only thereafter to be carried forward; and
(v) Any other order which this Hon’ble Court thinks fit in favour of the petitioner may also kindly be passed in the interest of justice.”
(2). The Jaipur Bench of the Rajasthan High Court comprising of Hon’ble the Chief Justice Dr. AR. Lakshmanan and Hon’ble Ashok Parihar, J., in the case of Pratap Singh vs. High Court of Rajasthan (1) and in the case of Ramji Lal Meena vs. The High Court of Judicature for Rajasthan & Anr. (2), filed by OBC and ST candidates for the Rajasthan Higher Judicial Service respectively, elaborately discussed the following issues:
(a) Determination of vacancies
(b) Inviting applications
(c) Screening Test
(d) Interview
(e) Recommendation and fresh initiation of selection process for SC/ST category vide Notification dated 13th February, 2001 on account of non-availability of suitable candidates in the general as well as reserve categories.
(3). It is useful in this context to reproduce the relevant portion of the discussion in Ramji Lal Meena’s case hereunder:
“A Notification dated 28.10.99 was issued under the signatures of the Registrar General, Rajasthan high Court, whereby applications were invited from Advocates for filling up 22 vacancies in Rajasthan Higher Judicial Service in accordance with the Rajasthan Higher Judicial Service Rules of 1969. Out of 22 vacancies advertised, 5 vacancies were reserved for the women candidates in all categories, 4 posts for S.C., 4 posts for S.T., 3 posts for OBC and 11 posts for general category candidates. Out of 4 vacancies in ST category, one post was reserved for woman candidate. On 6.8,.2000, the screening test for all categories was held and result of the said screening test was declared on 19.9.2000. In the said screening test 88 candidates were declared passed. Since against the three vacancies of ST(M) category, only 6 candidates were available, therefore, it was decided to call all the 6 candidates including the petitioner irrespective of their performance in the screening test. Before the commencement of the interviews, the interview Committee constituted for selection had resolved that no general category candidate obtaining less than 50% marks should be taken to be suitable for-appointment to RHJS. So far as the candidates belonging to reserved category were concerned, it was scaled down by 10% i.e. upto 40% marks obtained at the interview. It was also resulted by the interview committee that the total marks of the interview shall be 400 and each of the member of the Committee would give marks out of 100. The interviews were held from 15.01.2001 to 25.01.2001.
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 6 female candi-dates appeared and the Committee had recommended 6 candidates for the interview. As far the SC, though, 4 posts were reserved for this category out of which I is reserved for female and 3 for male candidates. 5 male candidates had appeared and only one female candidate had appeared altogether in the test. Therefore, all the 5 male candidates and 1 female candidate were recommended for interview. As far as 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 2 posts are reserved for female candidates. Altogether, 288 candidates appeared in the male category and 45 candidates should be recommended for the interview. But 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 2 posts, 47 candidates had appeared and the Committee had recommended 10 candidates, but in view of the fact that some candidates have secured equal marks in the merit list, the Committee had recommended 12 women candidates for the interview. Thus 11 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) -1 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, 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.
As already noticed, the interview committee constituted for selection of candidates had resolved that no general category candidate obtaining less- than 50% marks at the interview should be taken to be suitable for appointment to RHJS. 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 100. ‘ 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. Since 15 candidates from the General, OBC and SC category candidates were found 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 recommended. 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 candidate suitable for recommendation for appointment to the Rajasthan 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. First. (RJS) 12/2001, dated 13lh Feb., 2001, calling applications from the Advocates belonging to the SC/ST category for filling 07 reserved unfilled vacant posts of Additional District & Sessions Judges by direct recruitment 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.
it is also pertinent to notice that the number of vacancies of reserved category have been worked out as per the rosier register and the Government Circular dated 20.11.97, the vacancies in ST category were determined four in number as per the roster 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 rosier register maintained by the respondent and the Government Circular dated 20.11.1997.
The recommendations of the interview Committee were placed before the Hon’blc Full Court in Feb., 2001 and the recommendation of the interview Committee was accepted and on 13.02.2001, the unfilled 7 posts of reserved category were re-advertised. Out of which 3 posts are for the SC category and 4 posts for ST category. Out of 4 posts of ST, 1 post is for ST (Woman) candidate.”
(4). The issue of determination of OBC category has been discussed in the case of Pratap Singh vs. High Court of Judicature for Rajasthan (supra) and the same is also extracted hereunder:-
“It is also pertinent to notice that the number of vacancies of reserved category have been worked oul 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 roster register and the government Circular dated 20.11.97. 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 20.11.97.”
(5). Apart from the above issue, the issue of estoppels has also been discussed extensively. It was held that the petitioner having appeared before the Selection Committee without any prejudice and having taken a chance, is now stopped by conduct from challenging the selection process and the selections now made. In our opinion, the same is applicable in the instant case also. The petitioner, in our opinion, is slopped by his conduct to assail the selection process and the criteria laid down.
(6). In Suneeta Aggarwal vs. State of Haryana and Others (3), in para 4 of the judgment, the Supreme Court has held as follows:
“We have heard learned counsel for the parties. Narralion of the aforestated facts would show thal 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 to accord approval to her selection and, on the contrary, she applied afresh for the said post in response to re-advertise ment of the post without any kind of protest. Not only did she apply for the post, but she also appeared before the Selection Committee constituted consequent upon re-advertisement of the post and that too without any kind of protest, and on the same day she filed a wril 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.”
(7). In Union of India and another vs. N. Chandrasekharan and Others (4), 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 sat 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 challenging 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 had 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 done arbitrarily.”
(8). In Madan Lal and Others vs. State of J & K and Others (5), 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.
(9). In Om Prakash Shukla vs. Akhitesh Kumar Shukla and Others (6), 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 that he would not succeed in the examination. The High Court itself has observed that the setting 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.”
(10). 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.
(11). In the present writ petition Mr. B.M. Aggrawal, learned counsel for the petitioner, at the time of hearing submitted that the reservation for OBC in RHJS was made for the first time vide Notification dated 25.10.99 whereby Rule 10 of RHJS Rules of 1969 was amended and the reservation of 21% for OBC and 20% reservation for women was provided. 22 vacancies in Rajasthan Higher Judicial Service were advertised on 28.10.99, out of which only 3 vacancies have been reserved for OBC [2 + 1, for
men and women respectively). This is contrary to Rule 10 and it should have been 4 -5 vacancies for OBC. In this context para 9 and ground (a) of Para 15 of the writ petition can be beneficially reproduced hereunder:
“9. That it is worthwhile to mention her that prior to the amendment of 1999 there was no reservation provided for Other Backward Classes. Hence, when the 22 vacancies were advertised for direct recruitment vide Advertisement Annex. I then 16% of 22 posts i.e. to say 3-4 posts could have gone to Scheduled Caste candidates, 12% i.e. to say 2-3 posts could have gone to Scheduled Tribe candidates and 21% of 22 posts i.e. to say 4-5 posts could have gone to Other Backward Classes. Thus minimum 4 candidates and maximum 5 candidates ought to have been taken from Other Backward Classes. Thus the advertisement vide Annex.1 showing only 3 reserved posts for Other Backward Classes in respect of 22 total number of vacancies which was contrary to the Rules.”
“a) That it is submitted that it is settled law that no advertisement can be issued contrary to the Rules and Law governing the appointments. It is evident that the amendment in Rule 10 of the Rules took place by notification dated October 25, 1999 which was published in the Gazette on 25.10.1999 itself. The applications were invited subsequent to this amendment as per notification issued on October 28, 1999 as published in the Gazelle on 3.11.1999. Therefore, the amendment In Rule 10 came into force prior to the invitation of the applications vide Annex.1. Hence, the quota of reservation finding mention in the amended Rule 10 of the Rules could not have been violated by the subsequent advertisement vide Annex.1. Thus, the 21% of quota of Other Backward Classes of the total vacancies would have ranged between 4-5 posts whereas reservation was awarded for Other Backward Classes only to the extent of 3 candidates. Thus the quota of Scheduled Tribes was 12% that means the quota of Scheduled Tribes could have ranged between 2-3 posts whereas it was advertised to be 4 posts, therefore, the quota of Scheduled Tribes was inflated at the cost of the quota of Other Backward Classes. It is diametrically opposite that a category having 12% reservation is assigned 4 seats in reservation and a category having 21% reservation is assigned 3 seats in the reservation. Thus, the advertisement vide Annex. 1 being votives of Rules of 1969 is per se illegal, void and liable to be set aside.”
(12). This Court in the case of Pratap Singh (supra) was satisfied with the determination of vacancies of reserved category including OBC as per roster register maintained by the Rajasthan High Court and the Government Circular dated 28th November, 1997. The issue is covered by the said judgment and, therefore, in our view
has no substance.
(13). It is contended by the learned counsel for the petitioner that in OBC category there were two vacancies for OBC (men), therefore, 10 candidates ought to have been called for interview in ratio of 1:5, but the High Court has called 12 candidates which has resulted in increase of zone of consideration for OBC (men). This point has been urged in Paras 10 and 11 of the writ petition, which are reproduced hereunder:
“10. That during the interview process also, it was incumbent upon the respondent to have called candidates in the ratio of 1:5. Since there were mentioned 3 posts for Other Backward Classes quota including one woman candidate in the advertisement, then for two posts of male candidates 10 candidates could have been invited for interview and for one female post, 5 ladies could have been called
for interview, thus, in aggregating for three posts, 15 candidates could have been called for interview, but in practice 12 male candidates from Other Backward Classes and 6 female candidates from Other Backward Classes quota aggregating 18 candidates from Other Backward Classes quota were called for interview. Thus the condition of zone of consideration mentioned in the Admission Card for interview was itself violated. This fact is evident from the result-sheet itself and thus, the interview process is vitiated by extending the zone of consideration.
11. That it is respectfully submitted that to the best estimation of the petitioner, the petitioner faired well in the interview and he was very much hopeful of being selected and appointed as Additional District & Sessions Judge. However, on the basis of the interview, the respondent No.1 declared the results whereby Shri Bhawani Shanker Ku-mawat, Shri Devendra Kachhawaha and Smt. Santosh Choudhary have been selected as Other Backward Class candidates. It is submitted that the results do not disclose the merit of Shri Bhawani Shanker Kumawat, Shri Devendra Kachhawaha and Smt. Santosh Choudhary on the basis of the written_test results. Since five c&.ididales were to be called against one vacancy and 12 candidates have been called so two candidates have been called in excess to the zone of consideration. However, in case it is revealed before this Hon’ble Court that Shri Devendra Kachhawaha and Shri Bhawani Shanker Kumawat stood at S.No.11 and 12 in the merit list on the basis of the results of the written test. In that circumstance, the petitioner reserves the right to challenge their selection on this ground.”
(14). It is pertinent to notice that the Committee had recommended 12 candidates for the interview on account of the fact that the last three candidates have secured equal marks as per the report of the Hon’ble Judges’ Committee. This point has already been referred to and dealt with in Pratap Singh’s case (supra). Therefore, the submission made by the learned counsel for the petitioner on the above issue has no force and that the action of the High Court is fully justified.
(15). Learned counsel next contended that giving 100% weightage to the Viva-voce test to the exclusion of the merit of the written test, is arbitrary as held by the Supreme Court in the case of Praveen Singh vs. State of Punjab (7). The said judgment has already been distinguished on facts by the Division Bench while disposing of and dealing with the same issue in the case of Ramji Lal Meena (supra). It is useful to reproduce the relevant para of the said judgment as under:
“Learned counsel for the petitioner has relied upon the judgment Praveen Singh vs. State of Punjab and Ors. (2000(7) SCC 464). In that case, the selection and appointment was made on the basis of marks in viva-voce test alone. Their Lordships of the Supreme Court held that the action of the Public Service Commission suffers from vice of arbitrariness and unreasonableness and that the marks secured in the written test cannot be avoided and that both written and viva voce test be taken into consideration for purpose of effecting appointment. in the instant case, there was no written competitive test. Therefore, the said judgment is distinguishable on facts.”
(16). The Hon’ble Supreme Court in the case of Kiran Gupta and Others vs. State of U.P. (8), has dealt with the two categories of selection; firstly, by both the written test and viva voce and secondly by viva voce alone and the question of percentage of marks of interview in the former category and not in the later category. The Supreme Court in para 22 of the said judgment held as follows :
“It is difficult to accept the omnibus contention that selection on the basis of viva voce only is arbitrary and illegal and that since allocation of 15% marks for interview was held to be arbitrary by this Court, selections solely based on interview is a fortiori illegal. It will be useful to bear in mind that there is no rule of thumb with regard to allotment of percentage of marks for interview. It depends on several factors and the question of permissible percentage of marks for an interview test has to be decided on the facts of each case. However, the decisions of this Court with regard to reasonableness of percentage of marks allotted for interview in cases of admission to educational institutions/schools will not afford a proper guidance in determining the permissible percentage of marks for interview in cases of selection/appointment to the posts in various services. Even in this class, there may be two categories (i) when the selection is by both a written test and viva voce; and (ii) by viva voce alone. The Courts have frowned upon prescribing higher percentage of marks for interview when selection is on the basis of both oral interview and a vvritten test. But, where oral interview alone has been the criteria, for selection/appointment/ promotion to any posts in senior position the question of higher percentage of marks for interview does not arise. Therefore, we think it an exercise in futilely to discuss these cases- Minor A. Peeriakaruppan vs. State of T.N. ((1971) 1 SCC 38) and Ajay Hasia vs. Khalid Mujib Sehravardi ((1981) 1 SCC 722 – relied upon by Mr. Goswami, which deal with admission to educational instilutions/schools and also cases where prescribed method of recruitment was written test followed by an interview – Ashok Kumar Yadav vs. State of Haryana ((1985) 4 SCC 417 : 1986 SCC (L&S) 88. D.V. Bakshl vs. Union of India ((1993) 3 SCC 663 : 1993 SCC (L&S) 991 : (1993) 25 ATC 206) and Krishan Yadav vs. Statn of Haryana ((1994) A SCC 165 : 1994 SCC (L&S) 937 : (1994) 27 ATC 547.”
(17). The Supreme Court held that where oral interview alone has been the criteria for selection/appointment/ promotion to any post in senior position, the question of higher percentage of marks ‘does not arise. While winding up his arguments, learned counsel for the petitioner submitted that the unfilled vacancies in SC/ST category are required to be filled by normal procedure as per Rule 10 of the RHJS Rules, 1969 and, therefore, the fresh Notification dated 13.2.2001 is liable to be set aside. This point has been urged in ground (e) of the writ petition which runs thus:
“That the re-advertisement of the unfilled vacancies of SC/ST candidates without having filled them up by normal procedure is contrary to Rule 10(1) of the Rules of 1969, the carry forward rule as per Rule 10(1) applies only in that situation when the unfilled vacancies are filled up by normal procedure and the vacancies in particular category of SC/ST are deemed to be vacant are carried forward in the next year to be adjusted against the Others quota. In such deemed carry forward situations, there cannot be actual carrying forward of the vacancies. What the re-advertisement does is to actually carry forward the vacancies which is not permissible as per Rule 10(1) of the Rules of 1969.”
While dealing with the process of selection, this Court on two earlier occasions observed that this Court was fully satisfied with the same 50% minimum marks of interview were required lo be secured by the candidates for selection to RHJS and the same was scaled down by 10% in case of reserve category for adjudging their suitability for selection. Since only 15 candidates from general, OBC, ST and SC were found
suitable for recommending for appointment to the RHJS, therefore, the High Court Administration has rightly advertised the unfilled vacancies of SC/ST categories and that the matter is under further progress. The petitioner, in our opinion, having participated before the Selection Committee, is now estopped by his conduct from challenging the selection process in any manner. This Court is justified in refusing to grant the relief prayed for by the petitioner in this writ petition, which, in our opinion, is an afterthought and hence, is liable to be dismissed.
(18). Accordingly, we do so. No order as to costs.