1 DB Civil Special Appeal (Writ) No.180/2009 Baroda Rajasthan Gramin Bank. vs. Megh Raj Soni & Ors. & connected appeal. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT 1. D.B. CIVIL SPECIAL APPEAL(W) NO.180/2009 Baroda Rajasthan Gramin Bank. vs. Megh Raj Soni & Ors. 2. D.B. CIVIL SPECIAL APPEAL(W) NO.281/2009 Baroda Rajasthan Gramin Bank. vs. Pankaj Mishra & Ors. Date of Judgment :: 26th May, 2009 HON'BLE MR. PRAKASH TATIA, J. HON'BLE DR. VINEET KOTHARI, J. Mr.NM Lodha, for the appellant. Mr.AK Rajvanshy ) Dr.PS Bhati ) for the respondents. - - - BY THE COURT (Per HON'BLE MR.PRAKASH TATIA, J.) REPORTABLE Heard learned counsel for the parties. 2 DB Civil Special Appeal (Writ) No.180/2009 Baroda Rajasthan Gramin Bank. vs. Megh Raj Soni & Ors. & connected appeal. Both these appeals involve common question of law, hence, same are decided by this common order. The appellant is aggrieved against the judgment of the learned Single Judge dated 3.11.2008 by which 3 writ petitions bearing no.5137/2003, 5138/2003 and 5139/2003 were allowed on the ground that providing minimum qualifying marks in interview for the purpose of promotion to the higher post i.e. to the post of Officer Scale-II is contrary to the Regional Rural Banks (Appointment & Promotion of Officers & Other Employees) Rules, 1998 (for short 'the Rules of 1998'). Therefore, the denial of promotions to the petitioners on the ground that they did not secure minimum qualifying marks in the interview i.e. 10 out of 20 was wrong. Learned counsel for the appellant submitted that the writ petitioners knowing well about the circular issued by the appellant 3 DB Civil Special Appeal (Writ) No.180/2009 Baroda Rajasthan Gramin Bank. vs. Megh Raj Soni & Ors. & connected appeal. bank appeared in the written test and appeared for interview and when they failed to secure minimum qualifying marks in the interview and were denied promotion, they have challenged the criteria fixed by the appellant bank providing for minimum qualifying marks in the interview. Since the writ petitioners themselves accepted that condition and took chance on the basis of circular issued by the appellant bank, now after failing in that, they cannot challenge the circular issued by the appellant bank fixing minimum qualifying marks for promotion to the higher post. Learned counsel for the appellant in support of above plea relied upon the judgments of the Hon'ble Apex Court delivered in the cases of (1) Amlan Jyoti Borooah vs. State of Assam and others reported in (2009) 3 SCC 227 ;(2) Dhananjay Malik and others vs. State of Uttaranchal and others reported in (2008) 4 SCC 171 ; and (3) of this Hon'ble Court in the case of Dr.M.C. Mehta vs. State of Rajasthan and others reported in 22 ILR Raj. 711. Learned counsel for the appellant pointed 4 DB Civil Special Appeal (Writ) No.180/2009 Baroda Rajasthan Gramin Bank. vs. Megh Raj Soni & Ors. & connected appeal. out that the preliminary objection was raised seriously by the appellant before the learned Single Judge and the learned Single Judge rejected that preliminary objection by order dated 6.5.2008 and the appellant preferred DB Special Appeal No.532/2008 wherein the Division Bench of this Court observed that since the writ petition itself is pending final adjudication before the learned Single Judge, therefore, the appellant will have liberty to challenge the order as a whole on disposal of the writ petition in case any adverse order is passed. In view of the Division Bench decision dated 25.9.2008 passed in the presence of the counsel for the writ petitioners, the appellant seek dismissal of the writ petition of the petitioners solely on the ground that they cannot challenge the process of promotion after taking part in that process voluntarily. Learned counsel for the appellant also tried to satisfy this Court that prescribing of minimum qualifying marks in the interview is not illegal or contrary to the Rules. Learned counsel for the appellant relied upon yet 5 DB Civil Special Appeal (Writ) No.180/2009 Baroda Rajasthan Gramin Bank. vs. Megh Raj Soni & Ors. & connected appeal. another judgment of the Hon'ble Apex Court delivered in the case of Union of India and another vs. N. Chandrasekharan and others reported in AIR 1998 SC 795. Learned counsel for the respondents tried to submit that the decision given by the learned Single Judge on merits is just and legal and, therefore, it may not be interfered. Learned counsel for the respondents also submitted that fixing of minimum qualifying marks in interview is contrary to the rules governing the services of the respondents as there is no provision in the Rules which allows fixing of minimum qualifying marks in the interview. We considered the submissions of learned counsel for the parties and perused the facts of the case. The Division Bench of this Court vide order dated 25.9.2008 passed in SAW No.532/2008 after hearing the respondents permitted the 6 DB Civil Special Appeal (Writ) No.180/2009 Baroda Rajasthan Gramin Bank. vs. Megh Raj Soni & Ors. & connected appeal. appellant to challenge the final order which may be passed in the writ petition on the ground that the writ petition is not maintainable. Therefore, in appeal, this objection can be looked into. It is not disputed by learned counsel for the respondents, rather say facts are admitted, that the respondents had knowledge of the circular issued by the appellant bank. The appellant bank issued circular Annex.6 which is dated 8.8.2002 wherein it has been provided that the candidate has to secure minimum 10 marks out of 20 marks in the interview and it is also admitted case of the respondents that they appeared in the written test and also in the interview. However, in the interview, they failed to secure minimum qualifying marks and they were declared unsuccessful. The respondents after taking chance to get promotion as per the criteria laid down in the circular Annex.6 dated 8.8.2002 have challenged one of the condition of the said circular namely, prescribing minimum pass marks in interview. If the respondents would have 7 DB Civil Special Appeal (Writ) No.180/2009 Baroda Rajasthan Gramin Bank. vs. Megh Raj Soni & Ors. & connected appeal. secured minimum marks in the interview and would have been promoted, they would not have challenged the condition and further may have been benefited by this condition above the persons who might have failed in securing the minimum marks in the interview. Before examining this legal objection, we may look into the facts. As per note appended to the said circular dated 8.8.2002, the circular was brought to knowledge of all the employees of the bank. Process of promotion was started in the year 2003. As per the respondents, they, without challenging the condition of circular, appeared in written test on 20.4.2003 that is about 8 months after the circular was issued and then faced the interview on 10.7.2003 and till then, the respondents had no grievance against the condition in question. The respondents definitely faced the interview knowing it well that whoever will fail in securing the minimum marks in the interview will not get the promotion and that situation may be beneficial 8 DB Civil Special Appeal (Writ) No.180/2009 Baroda Rajasthan Gramin Bank. vs. Megh Raj Soni & Ors. & connected appeal. to the respondents if their seniors would have been excluded in this process of promotion because of their getting less marks in interview than prescribed minimum marks. In that situation, the respondents would not have challenged the condition in question, rather they would have supported the condition of prescribing minimum marks in the interview to protect their promotions. Furthermore, the respondents had ample time to challenge the criteria laid down for promotion but they did not challenge it in time and when they failed in getting the benefit of the same condition, have challenged the said condition. In the backdrop of these facts, we may consider the law laid down by the Hon'ble Supreme Court to govern this situation. In the case of Amlan Jyoti Borooah (supra), the Hon'ble Apex Court held that the candidates who had subjected himself to a faulty selection process could not question it later on. The Hon'ble Apex Court further held that the appointments made in excess of 9 DB Civil Special Appeal (Writ) No.180/2009 Baroda Rajasthan Gramin Bank. vs. Megh Raj Soni & Ors. & connected appeal. advertised vacancies not challenged expeditiously than delay can be a ground for rejecting the challenge. The same view was taken by the Hon'ble Apex Court in the case of Dhananjay Malik (supra), wherein the Hon'ble Apex Court held that after participation in the selection process, the unsuccessful candidates posing challenge that the recruitment was not according to the statutory Rules and prescribed education qualifications were not adhered to, then those candidates who unsuccessfully participated in the process of selection, they are estopped from challenging selection criteria, even if they had any valid objection. The Hon'ble Apex Court specifically held that if they had any valid objection, they should have challenged the advertisement and selection process without participating in the selection. In the case of Dr.M.C. Mehta (supra), this Court held that even if it is assumed that the direction given in the decision in regard to reconvening of the Board and drawing up of a fresh list of Readers in the light of criteria 10 DB Civil Special Appeal (Writ) No.180/2009 Baroda Rajasthan Gramin Bank. vs. Megh Raj Soni & Ors. & connected appeal. laid down in those Rules was void or in principle nullity , even then the candidate has took chance of taking benefit of that direction, then after failing, he cannot challenge the valid constitution of the Board who selected the candidates. In the case of Union of India and another vs. N. Chandrasekharan and others reported in AIR 1998 SC 795, the Hon'ble Apex Court observed that the candidates were aware of the procedure for promotion before they appeared for written test and before departmental promotion proceeded, then subsequently their plea that the marks allotted to interview and ACR was unduly disproportionate or that authorities cannot fix minimum marks to be secured at interview or in ACR, cannot be entertained. The law laid down by the Hon'ble Apex Court in the case of Dhananjay Malik (supra) makes it clear that even if the recruitment was not made according to the statutory Rules and prescribed education qualifications were not 11 DB Civil Special Appeal (Writ) No.180/2009 Baroda Rajasthan Gramin Bank. vs. Megh Raj Soni & Ors. & connected appeal. adhered to and by this Court in the case of Dr.M.C. Mehta (supra) that even where the criteria laid down in the Rules was void or in principle nullity and in the case of N. Chandrasekharan (supra), when the plea was taken that the marks allotted to interview and ACR were unduly disproportionate or that authorities cannot fix minimum marks to be secured at interview or in ACR, then also the candidates who unsuccessfully participated in the process of selection are estopped from challenging the selection criteria even if they had any valid objection. In view of the above reasons, the order of the learned Single Judge rejecting the objections of the appellant about maintainability of the writ petition is contrary to the law laid down by the Hon'ble Apex court and the respondents' writ petitions could not have been entertained to examine the merits in their submission. In view of the above reasons, both these appeals are allowed, the judgments of the 12 DB Civil Special Appeal (Writ) No.180/2009 Baroda Rajasthan Gramin Bank. vs. Megh Raj Soni & Ors. & connected appeal. learned Single Judge dated 3.11.2008 are set aside and the writ petitions of the petitioners are dismissed. (VINEET KOTHARI), J. (PRAKASH TATIA), J. S.Phophaliya