ORDER :

(Ananda Sen, J.)

1. This intra-court appeal under Clause 10 of the Letters Patent has been filed by the appellant-writ petitioner challenging the order dated 16.12.2021 passed in W.P.(S) No. 4824 of 2009, whereby, the writ petition filed by the petitioner has been dismissed.

2. The learned counsel for the appellant-writ petitioner submitted that the writ petitioner was not allowed to use his own typing machine, rather in the typing examination, he was provided with a machine of the Department, which did not work properly, thus the writ petitioner could not succeed in the typing test. It is his contention that opportunity be given to the petitioner by taking fresh typing test. He further submitted that the condition that the candidates had to arrange their own typing machine is evident from column No. 3 of the result of the written test, published in the newspaper (Annexure-4 at page-28 of the appeal). As per him, the machine, which he arranged was not allowed to be used by the respondents, which itself is illegal and the said fact has been over-looked by the learned Single Judge, thus he prays to set aside the order dated 16.12.2021 passed in the writ petition. He also contended that in fact, the writ petitioner was allowed to appear in the typing test examination by virtue of interim order passed by this Court on 15.10.2009.

3. Counsel for the respondent-State submitted that the written examination was conduced, which was of 200 marks: 100 marks was for General Hindi and 100 marks for General Knowledge. He further submitted that as per the terms and conditions laid down in the advertisement, only those candidates were declared to be successful, who secured minimum 50% marks in each subject, but the petitioner did not get the required 50% marks in each of the above subject, hence, he was not declared to be successful in the written examination. As per them, the petitioner did not even qualify to appear in the typing test, but by virtue of the interim order dated 15.10.2009, he was allowed to appear in the typing test. He submitted that the learned Single Judge also considered that the writ petitioner immediately at the earliest opportunity did not take the plea of not allowing him to use his own typing machine, though he had filed an amendment application to the writ petition, thus the Court held that the plea of not allowing to use his own typing machine, resulting in poor performance in the typing examination, does not hold good and is afterthought. As per the State, the learned Single Judge has rightly decided the writ petition against the petitioner.

4. The petitioner applied for the post of Lower Division Clerk under the respondent-State, pursuant to Advertisement No. 01/2008. The petitioner appeared in the written examination, but he was declared unsuccessful. He preferred writ petition praying therein to allow him to sit in the typing test along with successful candidate, as he contended that even though he secured 50% marks in the written examination, the respondent authorities arbitrarily did not declare him successful in the written examination. The learned Single Judge on the very first date of hearing i.e. on 15.10.2009 by way of an interim measure, allowed the petitioner to sit in the typing test, which was scheduled to be held on 18.10.2009, with a condition that the result should be kept in a sealed cover. Pursuant to the said order, the petitioner was allowed to sit in the typing examination, pending disposal of the writ petition.

5. In fact, by virtue of the said interim order, one of the main prayers of the petitioner in the writ petition was allowed. The Hon'ble Supreme Court in the case of State of U.P. Vs. Ram Kukhi Devi, reported in (2005) 9 SCC 733 has held that by interim measure, the Court cannot give relief to the petitioner which he has sought for as final relief. Para No. 8 of the said judgment is quoted herein below:

“8. To say the least, approach of the learned Single Judge and the Division