JUDGMENT Mutum B.K. Singh, J. 1. Heard Mr. K.N. Bhattacharjee, learned senior counsel assisted by Mr. R. Debnath, learned Counsel appearing for the petitioner. I have also heard Mr. S. Chakraborty, learned Counsel for the respondent No. 1, Mr. S. Deb, learned senior counsel, assisted by Mr. Somik Deb and Mr. P. Dutta, learned Counsels appearing for the respondent Nos. 2 & 3, and Mr. A. Ghosh, learned Counsel appearing for the respondent Nos. 4 to 8. 2. The petitioner filed this writ petition under Article 226 of the Constitution of India challenging the selection of respondent Nos. 4 to 8 for appointment to the post of Assistant Professor of Government Degree College for Commerce stream and their appointments as illegal, violative of the legal right of the petitioner and also prayed for directing the official respondents to appoint the petitioner to the post of Assistant Professor in Commerce stream. 3. That, the petitioner, a post graduate degree holder in Commerce, belongs to the Scheduled Caste community of Tripura and has also passed M. Phil. (Commerce) Examination in 1990 from Nagpur University. Pursuant to an advertisement bearing No. 8/2000 issued by the Secretary, Tripura Public Service Commission for filling up of 94 (ninety four) Group-B Gazetted Posts (Assistant Professor) under the Government of Tripura, the petitioner having possessed the essential educational qualification as per advertisement, applied for the post of Assistant Professor in Commerce stream. All the 94 (ninety four) advertised posts are reserved for the candidates belonging to Scheduled Tribe and Scheduled Caste of the State of Tripura at the ratio of 70 (seventy) posts for Scheduled Tribe candidates and 24 (twenty four) posts for Scheduled Caste candidates. However, a Note has been incorporated in the said advertisement indicating the procedure to be followed for filling up of the said vacant posts in case of non- availability of Scheduled Tribe and Scheduled Caste candidates. For proper appreciation of the procedure to be followed the Note is reproduced hereinbelow: In case the required number of suitable ST candidates are not available, the vacancies will be filled up by suitable SC candidates by applying exchange method. In case the required number of eligible SC candidates are also not available even after such exchange, 50% of the total vacancies but not exceeding 47 (forty seven) will be de-reserved and will be filled up by general candidates. In case the required number of eligible SC candidates are also not available even after such exchange, 50% of the total vacancies but not exceeding 47 (forty seven) will be de-reserved and will be filled up by general candidates. Further, at Serial No. 7, besides other instructions, under the heading "Instruction to the candidates" it has been specifically mentioned that the selection may be made by interview or written examination/test or both at the discretion of the Commission. 4. The Respondent No. 2 decided to select the suitable candidates by means of interview and as such an interview for selection of suitable candidates for filling up of the vacant posts of Assistant Professor in Commerce stream was held on 29.12.2001 in which the petitioner, one another Scheduled Caste candidate and others have appeared without any protest. The Respondent No. 2 (Tripura Public Service Commission) published the names of the selected candidates in its Office Notice Board on 16.03.2002 and that no Scheduled Caste candidates was found selected for appointment as Assistant Professor in the Commerce stream. The respondent Nos. 4 to 8 who are General candidates were selected for appointment as Assistant Professors in the Commerce stream. Out of 6 (six) vacant posts of Assistant Professor for Commerce stream, only 5 (five) candidates were selected) by Respondent No. 2 and thus, 1 (one) post was left vacant, may be for want of suitable candidate and the said post is still lying vacant. 5. That, the petitioner, on his being unsuccessful in the said interview, challenged the selection of the respondent Nos. 4 to 8 and their appointments to the posts of Assistant Professor in the Commerce stream, as illegal amongst other grounds. 6. That, the Respondents resisted the claims of the petitioner by filing 3(three) separate Affidavit-in-oppositions and one of the common ground pleaded by the Respondents in all the responses is that the petitioner is barred by the principles of estoppel, waiver and acquiescence, he cannot challenge the procedure adopted by the Tripura Public Service Commission after his taking part in it and on being unsuccessful and this writ petition is, accordingly, liable to be dismissed. 7. That, Mr. K.N. Bhattacharjee, learned Senior Advocate, assisted by Mr. R. Debnath, learned Advocate strenuously contended that all the 94 (ninety four) vacant posts of Assistant Professors are reserved posts for Scheduled Tribe and Scheduled Caste candidates. 7. That, Mr. K.N. Bhattacharjee, learned Senior Advocate, assisted by Mr. R. Debnath, learned Advocate strenuously contended that all the 94 (ninety four) vacant posts of Assistant Professors are reserved posts for Scheduled Tribe and Scheduled Caste candidates. As per the advertisement, in case of non-availability of suitable ST candidates, such posts should be filled up by suitable SC candidates by adopting the exchange method, and in case of non-availability of suitable SC candidates even after such exchange method, 50% of the total vacancies but not exceeding 47 posts are to be de-reserved for filling up by General candidates. According to the learned senior counsel, the reservation roster should be subject-wise according to vacancy position of each stream. In the Commerce stream there were 6(six) vacant posts and no Scheduled Tribe candidate except 2(two) Scheduled Caste candidates have applied for the said posts. Thus, out of the said 6(six) posts, even after applying the above exchange method, not more than 3 (three) posts can be de-reserved and filled up by General candidates. But, in the instant case, 5(five) General candidates were selected by the Respondent No. 2 and such selection is illegal, arbitrary, unsustainable in law and the selection was not done fairly. The next contention of the learned senior counsel is that the entire selection process was against the conditions provided under the caption "Note" of the advertisement. Mr. K.N. Bhattacharjee's contention is that as per the said advertisement, the Respondent No. 2 should conduct first the suitability test of the candidates belonging to Scheduled Tribe and in case of non-availability of suitable candidates from amongst the Scheduled Tribe candidates, the suitability test of the Scheduled Caste candidates should be followed by adopting exchange method and lastly, in the event of non-availability of suitable candidates from amongst the Scheduled Tribe and Schedule Caste candidates, 50% of the total vacancies but not beyond 47 posts may be de-reserved for filling up by General candidates. The de-reservation of the reserved posts is the last resort to be followed after the required numbers of suitable ST/SC candidates are not available. Hence, separate merit or suitability test must be conducted exclusively for the ST and SC candidates and thereafter in case of non-availability of required numbers of suitable candidates from the ST and SC candidates, the test for the General candidates is to be conducted separately. Hence, separate merit or suitability test must be conducted exclusively for the ST and SC candidates and thereafter in case of non-availability of required numbers of suitable candidates from the ST and SC candidates, the test for the General candidates is to be conducted separately. However, in the instant case, the Respondent No. 2 conducted the interview of the reserved candidates and General candidates jointly by putting all of them at par for the purpose of suitability test, such procedure adopted by the Respondent No. 2 is not only strange to law but also against the "Note" given in the advertisement. Since an unknown/illegal procedure has been adopted by the Respondent No. 2 in selecting suitable candidates, the petitioner has every right to challenge the same even though he had appeared in the said interview, the learned senior counsel forcefully contended. 8. That, Mr. S. Deb, learned Senior Advocate, assisted by Mr. Somik Deb and Mr. P. Datta, learned Advocates on behalf of Respondent Nos. 2 & 3 while repelling the rival contention, submits that the petitioner has no locus standi to file the present writ petition challenging the procedure adopted by the Respondent No. 2 as he had appeared in the interview without any protest. The petitioner, after knowing that he has not been selected by the Selection Committee, can't turn round and challenge the Selection Process as illegal or otherwise, the petitioner is barred by the principles of estoppel, waiver etc. and as such the writ petition is not maintainable. The learned Counsel appearing for the State-respondent further submits that due to acute shortage of teachers (Assistant Professor) in the Government Degree Colleges, the Government of Tripura felt it necessary to fill up the vacant posts. Thus, the Government of Tripura, after verifying from the ST & SC Welfare Department, Govt. of Tripura, as per the relevant roster programme, decided to fill up all the 94 (ninety four) posts of Assistant Professor by ST & SC candidates and it was also decided, with the prior approval of the ST & SC Welfare Department, to deserve 50% of the total vacancies but not excluding 47 posts for filling up by General candidates in case of non-availability of suitable number of ST & SC candidates for appointment. Such decision was taken in accordance with provisions of the relevant Act and Rules. Such decision was taken in accordance with provisions of the relevant Act and Rules. Since the entire 94 vacant posts of Assistant Professors has been reserved for ST & SC candidates, the question of subject-wise reservation does not arise and that apart these entire vacant posts of Assistant Professors having taken together as a cadre unit, the number of posts to be filled up by ST and SC candidates respectively were calculated as per reservation rules/policy. According to the learned Counsel, the de-reservation of 47 posts was done as per rules. Mr. S. Deb, learned senior counsel, as directed by this Court, produced the relevant proceeding File of the Commission relating to the selection of candidates for appointment to the post of Assistant Professors and the answer sheets of the candidates who have appeared in the interview for the posts of Assistant Professor in Commerce stream. 9. That, upon hearing the rival submissions of both sides, the question now arises before this Court is whether the procedure followed by the Respondent No. 2 (Commission) for selection of suitable candidates for appointment to the posts of Assistant Professor in Commerce stream was in accordance with the "Note" given in the advertisement and the relevant rules. I have carefully perused these documents produced by the Commission through its learned senior counsel as well as the official documents produced by the learned Additional Government Advocate. The result-sheets of the candidates who have appeared in the interview conducted by the Commission for appointment to the posts of Assistant Professor in Commerce stream reveal the following facts: 1) 1st interview was held on 29.12.2001, 10(ten) candidates including the petitioner appeared in the said interview but there was no candidate belonging to ST community; 2) 2nd interview was held on 09.01.2002, 17 (seventeen) candidates (General) were called for interview on that day but only 8(eight) candidates appeared; 3) Total 18 (eighteen) candidates have faced the interview. Besides the other members of the Commission, the Subject Expert-Advisor was a highly qualified retired Professor of the concerned subject and ex-Vice Chancellor of an University. 4) The petitioner secured 30 points in the said interview; 5) The Respondent Nos. 4 to 8 secured 87, 59, 54, 53 and 51 points respectively; 6) There are other candidates who have secured 50, 47, 46 points etc. 10. 4) The petitioner secured 30 points in the said interview; 5) The Respondent Nos. 4 to 8 secured 87, 59, 54, 53 and 51 points respectively; 6) There are other candidates who have secured 50, 47, 46 points etc. 10. That, the above facts clearly demonstrate that there was no Scheduled Tribe candidate, only 2(two) Scheduled Caste candidates have applied for the posts of Assistant Professor in commerce stream. In the above factual scenario, holding of a separate test for 2(two) SC candidates for filling up of 6(six) reserved vacant posts appears to be quite meaningless. Since the number of applicants from the SC & ST communities were less than the number of vacant posts, it was quite obvious to allow the General candidates also to face the interview along with the SC candidates before the same interview board. This is not the case where one interview board should be for ST & SC candidates and another for the General candidates. In my considered view, there was no illegality or irregularity on the part of the Respondent No. 2 in holding the selection test jointly for both SC and General candidates. Besides, on examination of the documents produced by the State-respondents, it can be safely concluded that the de-reservation of 47 posts has been done rightly in accordance with the provisions of relevant Act and Rules and as per the conditions incorporated under the Note of the advertisement. 11. The last contention of the petitioner's counsel is that, the performance of the SC candidates should not be assessed in comparison with the performance of General candidates. It is true that the merit of the ST and SC candidates shall not be treated at par with the merit of the General candidates in the selection test, there shall be a different Bench Mark for ST and SC candidates besides the Bench Mark fixed for the General candidates in such test. According to the learned senior counsel, in the present case, the Respondent No. 2 treated the unequals equally against the spirit of reservation. 12. That, on a careful scanning of the documents produced by the Commission, it appears that the Commission sets different "Bench Marks" one for Scheduled Tribe/Caste candidates and another for the general candidates, though all the candidates were interviewed by the same Interview Board on 29.12.2001. 12. That, on a careful scanning of the documents produced by the Commission, it appears that the Commission sets different "Bench Marks" one for Scheduled Tribe/Caste candidates and another for the general candidates, though all the candidates were interviewed by the same Interview Board on 29.12.2001. These facts are clearly shown in the assessment sheets and marks obtained by each of the candidates. Amongst the General candidates, those candidates who have secured 51 and above points were only selected and those candidates who obtained 50 and below points were left out. It shows that the Commission has set 51 points as the Bench Mark for the General candidates, otherwise there is no reason why the Commission should left out the candidate who secured 50 points in the said interview since one more vacant post was/is available for appointment. In the instant case, the petitioner, as stated above, could secure only 30 points in the said interview but what was the Bench Mark set for the Scheduled Tribe and Scheduled Caste candidates has not been reflected in the documents produced before this Court. However, it appears that the Commission did not select the petitioner as the points secured by him was not upto the "Bench mark" so fixed for the Scheduled Tribe and Caste candidates. 13. Generally, there are always some relaxations in favour of the ST & SC candidates while considering their eligibility, suitability or otherwise in the matter of employment, admission in educational institution etc. but the extent of relaxation to be given in favour of such candidates has to be fixed by the State Government or its instrumentalities considering their representation in the public employment, literacy percentage, economical and social conditions and other factors. The State while fixing the extent of relaxation for the ST & SC candidates, the merit and efficiency factors are also to be taken into consideration to maintain a healthy, efficient and effective atmosphere in the society. It appears that, the Commission, in the present case, in exercise of its discretion and taking into consideration all the relevant factors, conducted the interview for selection of suitable candidates from amongst the ST & SC candidates as well as General candidates. It appears that, the Commission, in the present case, in exercise of its discretion and taking into consideration all the relevant factors, conducted the interview for selection of suitable candidates from amongst the ST & SC candidates as well as General candidates. It was the Commission to evaluate the merits and performances of the candidates and such findings of the Commission cannot be looked into by this writ Court under Article 226 of the Constitution of India unless the selection procedure is found to be illegal, irregular and malafide and it was also the duty of the Commission to decide what would be the Bench Mark of the ST & SC candidates in the selection test. In view of the above discussion, the argument advanced by the learned senior counsel that the unequals have been treated equally in the selection test has no force. 14. The learned senior counsel appearing for the respondent Nos. 2 & 3 submits that since the writ petitioner has appeared before the interview without any protest, he cannot challenge the same on his being unsuccessful at the said interview, the writ petition is not maintainable at all on this count alone and as such the writ petition deserves rejections and that the petitioner is barred by the principle of estoppel. In support of his submissions, learned senior counsel relied on several decisions of the Hon'ble Apex Court in Shri Om Prakash Shukla v. Akhilesh Kumar Shukla and Ors. reported in 1986 (Supp) SCC 285; Dr. G. Sarana v. University of Lucknow and Ors. reported in 1977 (1) LLJ 68 SC; Madan Lal and Ors. v. State of J & K and Ors. reported in [1995] 1 SCR 908; Chandra Prakash Tiwari and Ors. v. Shakuntala Shukla and Ors. reported in [2002] 3 SCR 948; B.L. Sreedhar and Ors. v. KM. Munireddy and Ors. reported in AIR 2003 SC 578 ; K.H. Siraj v. High Court of Kerala and Ors. reported in AIR 2006 SC 2339 . 15. I have carefully gone through the above decisions cited by the learned senior counsel for the respondent Nos. reported in [2002] 3 SCR 948; B.L. Sreedhar and Ors. v. KM. Munireddy and Ors. reported in AIR 2003 SC 578 ; K.H. Siraj v. High Court of Kerala and Ors. reported in AIR 2006 SC 2339 . 15. I have carefully gone through the above decisions cited by the learned senior counsel for the respondent Nos. 2 & 3, the ratio of the above decisions is that if a candidate takes a calculated chance and appears at the interview without any protest and when he found that he has become unsuccessful, he cannot turn round and questioned the legality of the same by filing petition under Section 226 of the Constitution of India. Admittedly the petitioner, in the present case, did not raise any objection against the advertisement, mode of selection adopted by the TPSC rather he appeared at the interview held for selection of the suitable candidates for the post of Assistant Professor in the Commerce stream. The petitioner filed this present writ petition after the result of the said selection test has been published 16. In the above factual matrix and applying the principles laid down by the Hon'ble Apex Court, this Court has no hesitation in holding that the petitioner is barred by the principle of estoppel from challenging the result of the selection test held on 29.12.2001 and consequent appointments of the Respondent Nos. 4 to 8 to the posts of Assistant Professor in Commerce stream. 17. As a result of the above discussions and observations, I do not find any merit in this case. Consequently, this writ petition is dismissed. No costs. Petition dismissed.