LAKSHMANAN, CJ. - (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. 1 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 13. 02. 2001 on account of non-availability of suitable candidates in the general as well as reserve categories. 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 candidates 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 1 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 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) - 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. 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 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 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. 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 recommendations of the interview Committee were placed before the Hon'ble 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. " 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 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 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. " Apart from the above issue, the issue of estoppel 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 estopped 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 estopped by his conduct to assail the selection process and the criteria laid down. 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. Narration of the aforestated 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 to accord approval to her selection and, on the contrary, she applied afresh for the said post in response to re-advertisement 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 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. "
(3.) 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. " 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. In Om Prakash Shukla vs. Akhilesh 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. " ;