1 S/12 S.B. CIVIL MISC.WRIT PETITION No. 5706/2007 [SHAZADA LATIF VS. STATE OF RAJ. & ORS.] Dated : 27.02.2008 HON'BLE MR. MUNISHWAR NATH BHANDARI, J. Mr.Vinay Srivastava for the petitioner. Mr.Ravi Bhansali for the respondent. ***** By this writ petition petitioner has made a challenge to the selection list so prepared by the respondents in a discriminative manner. According to the learned counsel for the petitioner respondents issued an advertisement calling for the application for the post of technical helper by issuing an advertisement on 18.11.2006. Petitioner having the required qualification and otherwise belonging to the OBC category submitted his application. After submission of the application, petitioner was called for the interview and thereafter he had appeared before the interview board but then was shocked to notice that on final declaration of the select list the name of the petitioner did not appear though petitioner had secured 74.71% marks in the qualifying examination and even after excluding the marks of sessional he had secured 73.45% marks. As stated by the respondents necessary percentage of the marks secured by the petitioner comes to 59.77% yet the petitioner was not 2 given appointment. According to the learned counsel, petitioners marks were quite higher in side but only for the reason that excessive marks were provided for interview, petitioner was not given appointment. Relying on the judgment in the case of Mohinder Sain Garg Vs. State of Punjab JT 1990 (40 SC 704 it is contended that 20% marks prescribed for the interview are excessive hence the whole selection deserves to be set aside in view of the aforesaid judgment itself. It is lastly contended that the petitioner has impleaded even candidates who were then selected by the respondents with less merit in qualifying exam therefore, effective relief should be given to him. Learned counsel for the respondents on the other hand submits that the respondents conducted selection as per decision of the Board and subsequent order passed on 01.03.2007 providing the criteria of selections as well as other conditions. Referring to the order dated 01.03.2007 it was submitted that total 100 marks were bifurcated on two parts, first part was based on marks in the qualifying examination and weightage to the extent of 80% marks was given to it and remaining 20% was kept for interview. Petitioner appeared in the interview pursuant to the call letter given and it is only when he was declared unsuccessful, present writ petition has been filed without challenging the order dated 01.03.2007 providing criteria and even no protest in that respect was made immediately 3 after appearing in the interview on the ground otherwise raised during the course of argument. Learned counsel for the respondent further submits that once petitioner has failed to challenge the selection process immediately after appearing for interview, then subsequent to declaration of the result, challenge is not maintainable on the ground of estopple. Further pursuant to the directions of this Court, record of selection was produced to show that on an average in interview marks between 7 to 13 have been given to the candidates. The average marks of qualifying examination has also been disclosed in the statement prepared by the respondents and therein the marks of the petitioner has been shown the same as has been stated by the learned counsel for the petitioner. Learned counsel for the petitioner in rejoinder submits that since the order dated 01.03.2007 was not made known to the petitioner thus a question of challenge to the said circular had not occasioned for the petitioner before filing of the reply inasmuch as the aforesaid order dated 01.03.2007 was not made public. On the strength of aforesaid argument it was also contended that principle of estopple does not arise because if the petitioner knowing about the scheme of selection does not challenge the same before declaration of result, then only doctrine of estopple can be applied against him. 4 It is lastly contended that the facts narrated in the reply are well clarified by way of filing a rejoinder, therefore, arguments raised by learned counsel for the respondents should not be accepted for grant of relief as prayed in the writ petition. After considering the rival submissions of the learned counsel for the parties I have scan the material placed before me which includes even the original record pertaining to the selection. Perusal of the writ petition shows that the petitioner has not challenged the process of selection. This position exist even after filing of the reply because even after getting the order dated 01.03.2007 along with the reply, the petitioner did not made any effort to amend the writ petition not only to make proper ground to challenge the action of the respondent but even to challenge the order dated 01.03.2007. The rejoinder contains certain fact in that regard but a rejoinder cannot substitute the writ petition as basically is to be filed to clarify the facts given in reply and to further show that any document or contention made in reply are not correct. In view of the above oral argument made by the learned counsel for the petitioner is not otherwise in consonance to the prayer made in the writ petition thus matter can be decided on this ground itself. Even though it has been noted that a challenge has not been made to the process of selection but even for the sake of argument 5 it is assumed that the issue orally raised by the learned counsel for the petitioner by referring the facts made in the rejoinder, regarding providing excessive 20% of marks for interview is to be looked into. Firstly the petitioner has failed to show that as to why necessary protest was not made immediately after appearing in the interview inasmuch as now it is a settled preposition of law that a challenge to the selection process cannot be made after declaration of result specially when a candidate fails to secure necessary marks. Considering the argument of the learned counsel for the petitioner that the order dated 01.03.2007 was not known to the petitioner before filing of the reply, suffice it to say that the petitioner had not made any effort to know about the procedure of selection not only immediately after submission of the application for selection but even at the stage when a call letter was sent for his interview. Infact no effort was made by the petitioner to know about the procedure of the selection even after appearing in the interview and even after declaration of the result wherein his name was not shown in the merit list of the selected candidates thus literally present writ petition was filed for making a fishing inquiry into the matter. Even no representation was made before filing of this writ, as for securing the writ of mandamus the petitioner was under an obligation to make representation / a notice for demand of justice before filing of writ but petitioner has failed to do so and now the outcome of the aforesaid situation is that there is nothing on record to show that 6 challenge has been made by the petitioner to the order dated 01.03.2007 immediately after appearing in interview. May it be that the said order was not made public but there exist no effort of the petitioner to get the necessary information in that regard more so even under the provisions of Right to Information Act the petitioner could have secured necessary information, therefore, if the petitioner failed to make an effort on the aforesaid aspect, a default cannot be used to his benefit, hence taking note of the aforesaid aspect, even the issue of providing 20% marks for interview deserves rejection. Even if, the second aspect above is also ignored and the matter is even judged on the issue as to whether the 20% of marks provided for interview was excessive and contrary to the judgment referred to above and whether it has cause serious prejudice to the petitioner or not. Look at the record shows that petitioner was awarded 10 marks in the interview out of 20 and it has already been stated that the average marks awarded in the interview were 7 to 13 marks though in exceptional case it goes less as well as high but then taking into consideration the overall facts any circumstances, the result does not demonstrate any undue favour and now the percentage of marks of petitioner for qualifying examination being 59.77%, the statement of the result shown in regard to the category to which the petitioner belongs, a candidate who obtained much lesser marks has not been given appointment. This is apart from the 7 fact that even in subsequent judgments, the Hon'ble Apex Court held that even 20 marks provided for the interview cannot be held to be excessive in all circumstances In the case of Inder Prakash Gupta, 2004 (6) SCC 386, aforesaid issue has been discussed at length. Same way, in the following reported cases, the Hon'ble Supreme Court reiterated the same position while holding that even marks for interview can be provided above 12.50 and 15%. The reference of the following Supreme Court judgments is relevant in that regard : 2003 (2) SCC 132. AIR 2007 SC 3242. AIR 2007 SC 2840 2003 (9) SCC 401. In all these judgments, the basic judgment of A.K.Yadav's case was then considered, therefore, judgment in the case of A.K.Yadav or Mohinder Sain Garg cannot be applied rigidly in all the cases. In view of the above also, I do not find any merit in the contention of the petitioner though not pleaded in the writ petition. The facts further remains that even it is lastly assumed that 20% marks for interview were excess and it is ordered to be scaled down on 15%, looking to the result placed before me the petitioner is not going to be benefited because he does not secure sufficient marks and does not hold position for getting appointment as last candidate given appointment had secured 70.22% marks. 8 In view of the above discussion made on all the issues, I do not find any merit in the present writ petition. Hence the same is dismissed with no order as to costs. (MUNISHWAR NATH BHANDARI), J. mamta