The principle of estoppel applied in the context of challenging the selection process and qualifying marks for the viva voce test.

HEMANT GUPTA, J.

The petitioner has sought for quashing of Clause 3 of the Advertisement for interview, whereby the qualifying marks were fixed for interview in the midst of selection process.

2. An Advertisement No. 1/2012 (28th Bihar Judicial Service Competitive Examination, 2012) was published for selection of candidates for appointment on the post of Civil Judge (Junior Grade). After viva voce, the final result was published on 18th of October, 2014. It is the said result, which is challenged, inter alia, on the ground that it is in violation of Rule 15(c) and 19 of the Bihar Civil Services (Junior Branch) Recruitment) Rules, 1955 and the law, which stands settled, in this regard, that the rule of selection cannot be changed in the midst of the selection process.

3. It has come on record that the preliminary test was conducted by Bihar Public Service Commission (hereinafter referred to as “the Commission”) on 13th of July, 2013, the result whereof was declared on 23rd of December, 2013. The Commission published an advertisement, in the newspaper, for holding Mains Examination. The petitioner appeared in the Mains Examination, result of which was published on 22nd/26th of August, 2014. The petitioner is a candidate, who has passed the Mains Examination.

4. It has come on record that on 27th of August, 2014, the High Court, while recommending the two Hon’ble Judges for the purpose of conducting viva voce test, communicated that there would be minimum percentage of marks for qualifying in the interview, i.e., 35 per cent would be required for qualifying in the viva voce test. In pursuance of such communication, the candidates were called for interview for viva voce test from 8th of October, 2014, till 18th of October, 2014, vide Advertisement, Annexure-5. The Condition No. 3 was specific that as per the direction of the High Court, the minimum qualifying marks in the interview (viva voce test) would be 35 per cent. It is in pursuance of such advertisement that the petitioner appeared for interview, but has remained unsuccessful in the result published.

5. It may be stated that subsequently, Rule 15 (c) of the Bihar Civil Services (Junior Branch) (Recruitment) Rules, 1955, that there shall be no qualifying marks for the viva voce test stands amended vide notification, dated 3rd of December, 2014, as the amended clause provided that there shall be qualifying marks of 35 per cent for the viva voce test.

6. It has been brought to our notice that it was on 13th of September, 2014, that the Full Court took a decision to amend Rule 15 (c) of the Rules and the communication to this effect was sent to the State on 21st of October, 2014, and, thereafter, the notification, amending the Rules, was published on 3rd of December, 2014.

7. The sole argument of the learned counsel for the petitioner is that the rules of the game have been changed after selection process was set in motion and, therefore, such change cannot be sustained.

8. On the other hand, learned counsel for the respondents argued that the petitioner is estopped to challenge the qualifying marks since there was a condition in the advertisement itself fixing 35 per cent marks as the minimum qualifying marks for viva voce. Once the petitioner was aware of such a condition, he is estopped to challenge such condition after appearing in the interview without any protest. The petitioner was a fence sitter, who took a chance for appearing in the interview, and, having remained unsuccessful, has, now, chosen to dispute the selection process.

9. We have heard learned counsel for the parties and find no merit in the writ petition.

10. There is no change of rules of the game, which have been altered. The only change is fixing minimum qualifying marks for the viva voce test. Such condition has been incorporated to ensure that only suitable candidates make it to judicial service. Such a condition is in the interest of better administration of justice and cannot be faulted with. The Stat