Advocates:
Advocate Appeared:
For the Appellant :Mr. G.S. Brar, Advocate
For the Respondent: Mr. S.K. Sharma, Mr. Arihant Goyal, Central Government Counsel

JUDGMENT :

Jagmohan Bansal, J. (Oral) 

By this common order CWP-8865-2021, CWP-10521-2021 and CWP-10582-2021 are being disposed of since issues involved in all the petitions and prayer sought are common. With the consent of parties and for the sake of brevity, facts are borrowed from CWP-8865-2021.

2. The petitioner through instant petition under Articles 226/227 of the Constitution of India is seeking:

(i) setting aside result dated 25.02.2021 (Annexure P-4).

(ii) direction to respondents to consider the claim of the petitioner for Practical (Skill) Test.

3. The petitioner, pursuant to an advertisement by respondent-ITBP applied for the post of Constable (Driver). He cleared Physical Efficiency Test (for short 'PET') and Physical Standard Test (for short 'PST').

4. On 19.01.2020, he appeared for written test and qualified the same. He secured 79 marks, out of 100. He was further subjected to qualifying Practical (Skill) Test on 25.02.2021. He secured 10.5 out of 50 marks whereas minimum qualifying marks were 16.5. The respondent rejected candidature of the petitioner on the ground that he has failed to secure minimum qualifying marks in the Practical (Skill) Test. Thus, he could not be considered for the post of Driver.

5. Mr. G.S. Brar, Advocate submits that petitioner cleared PET, PST and written test. He secured 79 marks out of 100 marks which are more than marks of last selected candidate, thus, he should be considered for the post of driver.

6. Per contra, Mr. S.K. Sharma, Senior Panel Counsel submits that the post advertised was of driver and skill test was indispensable. Post of driver is a post of a skilled workman. The petitioner(s) could not secure minimum qualifying marks in the skill test, thus, they could not be considered, despite being in merit list.

7. I have heard the arguments of learned counsel for the parties and perused the record.

8. Mr. G.S. Brar, Advocate does not dispute the fact that respondent had prescribed qualifying marks for Skill Test and petitioners had undergone said test.

9. It is prerogative of the Recruitment Agency to prescribe qualifying marks. If qualifying marks are prescribed, no candidate after participating in the selection process can claim that he should be considered for the post, despite not securing qualifying marks.

10. The petitioners consciously participated in the selection process and after having been declared unsuccessful, they are now disputing the criteria of qualifying marks.

11. A two Judge Bench of Apex Court in Tajvir Singh Sodhi and Others v. State of Jammu and Kashmir and Others 2023 SCC OnLine SC 344 has held that candidates, having taken part in the selection process without any demur or protest, cannot challenge the same after having been declared unsuccessful. The candidates cannot approbate and reprobate at the same time. A candidate cannot allege that selection process was unfair or there was some lacuna in the process just because selection process was not palatable to a candidate. The relevant extracts of the judgment read as:

"67. Thus, Courts while exercising the power of judicial review cannot step into the shoes of the Selection Committee or assume an appellate role to examine whether the marks awarded by the Selection Committee in the viva-voce are excessive and not corresponding to their performance in such test. The assessment and evaluation of the performance of candidates appearing before the Selection Committee/Interview Board should be best left to the members of the committee. In light of the position that a Court cannot sit in appeal against the decision taken pursuant to a reasonably sound selection process, the following grounds raised by the writ petitioners, which are based on an attack of subjective criteria employed by the selection board/interview panel in assessing the suitability of candidates, namely, (i) that the candidates who had done their post-graduation had been awarded 10 marks and in the viva-voce, such PG candidates had been granted eithe