IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5746 of 2002 RAVINDRA SHAHI & ORS Versus THE STATE OF BIHAR & ORS ----------- 4. 19.01.2009 Heard leaned Counsel for the petitioner and the learned Counsel for the State. An advertisement was issued on 12.1.2002 inviting applications for appointment on the post of Constable from the Indians with Gorkha origins. The advertisement clearly stipulated the minimum height of 162.5 cm for the candidates. The petitioners applied in response to the same. The appointment has been denied to them that they were short in height than the minimum prescribed. Learned Counsel for the petitioner sought to persuade this Court that the fixation of minimum height of 162.5 cm by the advertisement was not in accordance with the Bihar Police Manual and the Bihar and Orissa Military Police Manual which provided that no minimum height could be prescribed for candidates of Gorkha origins. The advertisement was published. The qualifications were prescribed. The petitioners applied in response to the same. After they have been declared unsuccessful in terms of the requirement of the advertisement they seek to assail the advertisement itself. The petitioners cannot be permitted to approbate and reprobate. The court can do no better than to quote from paragraphs 72 and 74 of the judgement of the Apex Court in 2 2006 (6) SCC 395 (K.H.Siraj Vs High Court of Kerala and others) which reads as follows:- “72. The appellant-petitioners, in any event, are not entitled to any relief under Article 226 of the Constitution of India for more reasons than one. They had participated in the written test and in the oral test without raising any objection. They knew well from the High Court’s notification that minimum marks had to be secured both in the written test and in the oral test. They were also aware of the High Court decision on the judicial side in Remany V. High Court of Kerala. This case deals with prescription of minimum qualifying marks of 30% for viva voce test. C.S.Rajan,J., in the above judgement, observed as under (KLT pp. 441- 42,para 5) “On the basis of the aggregate marks in both the tests, the selection has to be made. In I.C.A.R. case also the relevant rules did not enable the Selection Board to prescribe minimum qualifying marks to be obtained by the candidate at the viva voce test. In Delhi Judicial Service case as also Umesh Chandra the rules did not empower the committee to exclude candidates securing less than 600 marks in the aggregate. Therefore, in all these cases, the Supreme Court came to the conclusion that prescription of separate minimum marks for viva voce test is bad in law because under the rules, no minimum qualifying marks were prescribed.” The High Court also relied on P.K.Ramachandra Iyer case and Umesh Chandra case. 73. The appellant-petitioners having participated in the interview in this background, it is not open to the appellant-petitioners to turn round thereafter when they failed at the interview and contend that 3 the provisions of a minimum mark for the interview was not proper. It was so held by this Court in para 9 of Madan Lal v. State of J & K as under: (SCC p. 493) “9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidates takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In Om Prakash Shukla v. Akhilesh Kumar Shukla it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.” 4 74. Therefore, the writ petition filed by the appellant-petitioners should be dismissed on the ground of estoppel is correct in view of the above ruling of this Court. The decision of the High Court holding to the contrary is per incuriam without reference to the aforesaid decisions.” The petitioners, for the aforesaid reasons are not entitled to any relief. The writ application is dismissed. Snkumar/- (Navin Sinha,J.)