JUDGMENT : B.S. Chauhan, C.J. - All these three Writ Petitions have been filed for quashing the appointment of Opposite Party Nos. 3 to 7 in the cadre of District Judge being the selection illegal, null & void and contrary to law and to reassess the merit of the candidates as per Rule 6(4) of the Orissa Superior Judicial Service and Orissa Judicial Service Rules, 2007 (hereinafter called the 'Rules, 2007') without fixing any cutoff marks in the interview and without reference to the condition stipulated in proviso to Clause C to Appendix- B of the Rules, 2007. 2. The facts and circumstances giving rise to these cases are that a notification dated 4.4.2008 (Annex.-1) was issued inviting application for as many as 37 vacancies in the cadre of District Judge, out of which 22 vacancies had to be filled up by direct recruitment and the remaining vacancies to be filled up by the accelerated promotions of the Judicial Officers. Petitioners applied in pursuance of the said advertisement, appeared in the written test and vide notice dated 4.9.2008 they were declared successful and were asked to face the interview on the dates so fixed for them. Petitioners faced the interview and subsequently vide notification dated 28.09.2008 the final result was declared only making recommendation in favour of the five candidates i.e. the private Opposite Parties and High Court took a decision not to fill up the other vacancies for non-availability of suitable candidates. Hence these petitions. 3. The sheet anchor of the argument of the Petitioners is that cut-off marks for interview could not stipulated in any statutory rules being in contravention of the observations made by the Hon'ble Supreme Court in various Judgments i.e. All India Judges' Association and Others Vs. Union of India and Others All India Judges Association and Others Vs. Union of India (UOI) and Others, ; and Hemani Malhotra Vs. High Court of Delhi, . 4. We have heard Learned Counsel for the Petitioners. It has been contended by them that the statutory rules providing for a cut-off marks for assessing the suitability of a candidate is illegal in view of the law laid down by the Supreme Court in the aforesaid Judgments. 5. High Court of Delhi, . 4. We have heard Learned Counsel for the Petitioners. It has been contended by them that the statutory rules providing for a cut-off marks for assessing the suitability of a candidate is illegal in view of the law laid down by the Supreme Court in the aforesaid Judgments. 5. Therefore, the statutory rules providing for and particularly the proviso to Clause- C of Appendix-B of the Rules, 2007 to the effect that a candidate shall not be included in the final merit list unless he secures a minimum of 40% of marks in the interview runs contrary to and is inconsistent with Rule 6(4) of the Rules, 2007. The grievance of the Petitioners is only in respect of the last part of the said provision that statutory rules provides for minimum of 40% marks in interview for inclusion of the name of the candidate in the merit list. 6. Reliance has been placed on the Shetty Commission's Report and its acceptance by the Hon'ble Supreme Court in the aforesaid cases and particularly in Hemani Malhotra (supra) wherein the Apex Court has held that there could not be cut-off marks in interview for inclusion of the name of a candidate. Suitability to be included in the merit list as recommended by the Shetty Commission. 7. We have heard the matter at length and given our serious thoughts to the issue involve herein. 8. Appointment of any public post is to be made as per the statutory requirement which must be in consonance with the provisions of Articles 14 and 16 of the Constitution of India. Laying down the service conditions fall with within the exclusive domain of the employer and it does not fall within the competence of the Court to change such condition by prescribing fresh conditions. The conditions are not to be interfered by the Court unless the same is found to be in violation of the mandate of the constitutional provisions. 9. In case of a public office selection/appointment is to be in strict adherence to the statutory rules. The authority may prescribe the criteria for selection on the basis of written test or depending upon the nature of the post on the basis of viva-voce only or on the basis of both. 9. In case of a public office selection/appointment is to be in strict adherence to the statutory rules. The authority may prescribe the criteria for selection on the basis of written test or depending upon the nature of the post on the basis of viva-voce only or on the basis of both. While providing for the same, it is also open for the competent authority to prescribe minimum marks to be secured in written examination for calling the candidates for viva-voce. Further more it is always permissible in law to prescribe the minimum marks in interview separately for qualifying for selection. 10. In Mehmood Alam Tariq and Others Vs. State of Rajasthan and Others the Apex Court held that prescribing 33% as minimum qualifying marks in interview was not unreasonable or invalid. It also considered the relevance of viva voce observing that the test tended to become a determining factor in the selection process. Further, it has been held that the maximum marks for interview should not be so high that it may tilt the merit list and a top candidate securing higher marks in written papers may not be selected if he gets lesser marks in viva voce for some other reason. 11. Thus, the Court came to the conclusion that minimum qualifying marks in viva voce can be prescribed for selection. 12. In State of U.P. Vs. Rafiquddin and Others the Apex Court held that Commission/Board has to satisfy itself that a candidate had obtained such aggregate marks in the written test as to qualify for interview and obtained sufficient marks in viva voce which would show his suitability for service. Thus it is settled legal proposition that if the minimum marks either in the written test or in viva voce test is fixed to determine the suitability of the candidate, the same has to be adhered to strictly. Such prescription of marks is valid in laws. 13. A similar view has been reiterated in Majeet Singh, UDC and others Vs. Employees' State Insurance Corpn. and another, wherein the Apex Court held as under: ...It would be appropriate to require every candidate to pass the interview test and for that purpose there should be a basic limit provided. In the absence of any prescription of qualifying marks for the interview test the same prescription of 40% as applicable for the written examination seems to be reasonable. (Emphasis added). In the absence of any prescription of qualifying marks for the interview test the same prescription of 40% as applicable for the written examination seems to be reasonable. (Emphasis added). In that case the Apex Court held that prescribing 40% marks in interview separately on qualifying for service was valid. 14. In Jasvinder Singh and Others Vs. State of Jammu & Kashmir and Others the Apex Court reconsidered its earlier Judgment in Ashok Kumar Yadav and Others Vs. State of Haryana and Others, ; Majeet Singh (supra) Mehmood Alam Tariq (supra), and held that decision taken by the Board/Selection Committee cannot be a subject matter of judicial review unless allegations of mala fides or arbitrariness are alleged and established. There can be no guarantee that the person who fared well in the written test will or should be presumed to have fared well in the viva voce test also and the expert opinion about as well as experience in viva voce does not lend credence to any such general assumptions, in all circumstances and for all eventualities. 15. In Inder Parkash Gupta Vs. State of Jammu and Kashmir and Others the Supreme Court held that as what should be the marks allocated for viva voce test depends on the nature of post and no hard and fast rule of universal application which would meet the requirements of all cases can be laid down. However, an intention which is capable of being abused or misused in its exercise, it is liable to be struck down as ultra vires Article 14 of the Constitution of India. 16. In Union of India and Another Vs. N. Chandrasekharan and Another the Apex Court considered the issue of spreading of marks under the head Interview, written test and Annual Confidential Report etc. The Court held that much spreading of marks is permissible considering the nature of post to which the candidate is to be selected as well as to the nature of duties the employee has to discharge/perform. 17. In Lila Dhar Vs. State of Rajasthan and Others the Apex Court held that the written examination assesses the man's intellect and the interview test the man himself and "the twain shall meet" for a proper selection. Therefore, both written examination and interview test are the essential features of proper selection. 17. In Lila Dhar Vs. State of Rajasthan and Others the Apex Court held that the written examination assesses the man's intellect and the interview test the man himself and "the twain shall meet" for a proper selection. Therefore, both written examination and interview test are the essential features of proper selection. Interview is held to assess the candidate's personality and to identify the personal qualities for which greater importance may have to be attached in later life. The object of any process of selection for entry into public service is to secure the best and the most suitable person for the job, avoiding patronage and favouritism. 18. In Ashok Kumar Yadav (supra) nearly a Constitution Bench of the Supreme explained the relevance of viva voce test observing as under: It is now admitted on all hands that while a written examination assesses the candidate's knowledge and intellectual ability, a viva voce test seeks to assess a candidate's overall intellectual and personal qualities. While a written examination has certain distinct advantages over the viva voce test, there are yet no written tests which can evaluate a candidate's initiative, alertness, resourcefulness, dependableness, cooperativeness, capacity for clear and logical presentation, effectiveness in discussion, effectiveness in meeting and dealing with others, adaptability, Judgment, ability to make decision, ability to lead, intellectual and moral integrity. Some of these qualities can be evaluated, perhaps with some degree of error, by viva voce test, much depending on the constitution of the interview board. 19. Thus it is evident from the aforesaid Judgments of the Hon'ble Supreme Court that competent authority/legislature can frame the rules providing for cut-off marks even for interview and the selection has to be made giving strict adherence to the statutory provisions. 20. Any appointment contrary to the statutory provisions is illegal/void. (vide M.P. Housing Board and Another Vs. Manoj Shrivastava, ; Branch Manager, M.P. State Agro Industries Development Corpn. Ltd. and Another Vs. Shri S.C. Pandey, .; Secretary, State of Karnataka and Others Vs. Umadevi and Others, ; National Fertilizers Ltd. and Others Vs. Somvir Singh, ; and Commissioner, Municipal Corporation, Hyderabad and Ors. v. P. Mary Manoranjani and Anr. 2008 AIR SCW 704). Therefore, the statutory rules cannot be ignored. 21. Ltd. and Another Vs. Shri S.C. Pandey, .; Secretary, State of Karnataka and Others Vs. Umadevi and Others, ; National Fertilizers Ltd. and Others Vs. Somvir Singh, ; and Commissioner, Municipal Corporation, Hyderabad and Ors. v. P. Mary Manoranjani and Anr. 2008 AIR SCW 704). Therefore, the statutory rules cannot be ignored. 21. There is also no dispute to the settled legal proposition that vacancies are to be filled up as per the law in force on the last date of submissions of the application as the recruitment process starts with the initiation of the advertisement to fill up the vacancies. 22. In Y.V. Rangaiah and Others Vs. J. Sreenivasa Rao and Others, ; A.A. Calton Vs. Director of Education and Another, ; P. Ganeshwar Rao and Others Vs. State of Andhra Pradesh and Others, ; and P. Mahendran and others Vs. State of Karnataka and others the Hon'ble Supreme Court has taken the view that candidates have to be assessed for selection as per the eligibility criteria and rules existing on the date of advertisement of vacancies for the reason that selection process starts with advertisement and all those persons who apply in response to the same, would be eligible to be considered strictly in accordance with the then existing law. If the Rules have been amended subsequent to the date of advertisement, the same shall not be applicable to fill up the said vacancies. 23. A similar view has been taken by the Supreme Court in Rajasthan Public Service Commission Vs. Kaila Kumar Paliwal and Another, referring its larger number of earlier Judgments. 24. In All India Judges' Association (supra) several directions have been issued by the Hon'ble Apex Court from time to time and in view there of a notification dated 21st March, 1996 was issued appointing K.J. Shetty Commission to consider about the service conditions of judicial officers through out the country. The said commission made recommendations which had been approved by the Hon'ble Supreme Court. 25. In All India Judges Association and Others Vs. Union of India (UOI) and Others the Hon'ble Supreme Court considered various aspects of Shetty Commission reports and approved the same. The said commission made recommendations which had been approved by the Hon'ble Supreme Court. 25. In All India Judges Association and Others Vs. Union of India (UOI) and Others the Hon'ble Supreme Court considered various aspects of Shetty Commission reports and approved the same. However, the question arose as to whether it can be implemented by the Court or it is required to be incorporated in the statutory rules governing the service conditions of the judicial officers or alteration of any rules applicable and held as under: we are aware that it will become necessary for service and other rules to be amended so as to implement this Judgment... 26. Therefore, it is clear that certain directions were issued for enacting or amending the existing laws to adopt the recommendation of the Shetty Commission as approved by the Apex Court. 27. In Syed T.A. Naqshbandi and Others Vs. State of Jammu and Kashmir and Others the Hon'ble Supreme Court reconsider the same issue while examining the appointments to the post of District & Sessions Judges (Selection Grade) in the State of Jammu & Kashmir and relying upon its earlier Judgment in All India Judges' Association (supra), held as under: Reliance placed upon the recommendations of Justice Jagannatha Shetty Commission or the decision reported in All India Judges' Assn. v. Union of India or even the resolution of the Full Court of the High Court dated 27-4-2002 is not only inappropriate but a misplaced one and the grievances espoused based on this assumption deserve a mere mention only to be rejected. The conditions of service of members of any service for that matter are governed by statutory rules and orders, lawfully made in the absence of rules to cover the area which has not been specifically covered by such rules, and so long as they are not replaced or amended in the manner known to law, it would be futile for anyone to claim for those existing rules/ orders being ignored yielding place to certain policy decisions taken even to alter, amend or modify them. Alive to this indisputable position of law only, this Court observed at SCC p. 273, para 38, that "we are aware that it will become necessary for service and other rules to be amended so as to implement this Judgment". Alive to this indisputable position of law only, this Court observed at SCC p. 273, para 38, that "we are aware that it will become necessary for service and other rules to be amended so as to implement this Judgment". Consequently, the High Court could not be found at fault for considering the matters in question in the light of the Jammu and Kashmir Higher Judicial Service Rules, 1983 and the Jammu and Kashmir District and Sessions Judges (Selection Grade Post) Rules, 1968 as well as the criteria formulated by the High Court. Equally, the guidelines laid down by the High Court for the purpose of adjudging the efficiency, merit and integrity of the respective candidates cannot be said to be either arbitrary or irrational or illegal in any manner to warrant the interference of this Court with the same. Even dehors any provision of law specifically enabling the High Courts with such powers in view of Article 235 of the Constitution of India, unless the exercise of power in this regard is shown to violate any other provision of the Constitution of India or any of the existing statutory rules, the same cannot be challenged by making it a justiciable issue before Courts. The grievance of the Petitioners, in this regard, has no merit of acceptance. 28. Mr. Mohanty, Learned Senior Counsel appearing for the Petitioners has placed a very heavy reliance upon the Judgment of the Hon'ble Supreme Court dated 4th January, 2007 in Civil Appeal No. 1867 of 2006, Malik Mazhar Sultan and Anr. v. U.P. Public Service Commission and Ors. However, in the said Judgment also the Apex Court made it clear that appointments in judicial service have to be made as per the existing statutory rules and in certain cases recommendations have been made to amend the same for future selections. 29. While considering the recommendations by the Shetty Commission that selection of sub-ordinate judicial officers be taken up by the High Court and not by the Public Service Commissions, the Apex Court observed as under: .... where selection of subordinate judicial officers is not being done by the High Courts, such selection be entrusted to the High Courts by amending relevant Rules.... The Court further referred to the correspondences between the High Court of Calcutta and State Government of West Bengal, and further observed as under: .. where selection of subordinate judicial officers is not being done by the High Courts, such selection be entrusted to the High Courts by amending relevant Rules.... The Court further referred to the correspondences between the High Court of Calcutta and State Government of West Bengal, and further observed as under: .. .As already indicated, the selection is to be conducted by authorities empowered to do so as per the existing Rules In view of what we have already noted the respective Judicial Services Rules in the States, the apprehension of interference seems to be wholly misplaced... 30. Therefore, it is evident from the aforesaid Judgment that in spite of acceptance of the recommendations made by the Shetty Commission by the Hon'ble Apex Court, the Apex Court insisted that the existing law/statutory rules in making the appointment of judicial officers be amended accordingly. In Syed T.A. Naqshbandi (supra) the Apex Court repealed the contention which are being advanced by the Learned Counsel for the Petitioners in these cases and the Court in crystal clear words held that appointments have to be made giving strict adherence to the existing statutory provisions and not as per the recommendations made by the Shetty Commission. 31. So far as the Judgment of Hon'ble Supreme Court in Hemani Malhotra (supra) is concerned the facts are quite distinguishable. Delhi High Court did not frame any statutory rules providing for cut-off marks in interview for assessing the suitability for selection. After the selection process had been initiated such a resolution was adopted. Therefore, the basic issue for consideration before the Apex Court had been as to whether it was permissible for the High Court to change the selection criteria at the midst of the selection process. The Apex Court placing reliance upon its earlier Judgments held that once the selection process starts, it is not permissible for the competent authority to change the selection criteria and in that view observation was made that a fresh merit list is to be prepared ignoring the said resolution of the High Court taking cut-off marks in interview. Undoubtedly the Apex Court had taken note of the Shetty Commission Report in this regard and held that such a criteria could not have been provided. Undoubtedly the Apex Court had taken note of the Shetty Commission Report in this regard and held that such a criteria could not have been provided. Therefore, the issue as to whether the statutory rules would stand washed off by such recommendation was not in issue in Hemani Malhotra (supra) before the Hon'ble Supreme Court. 32. In Syed T.A. Naqshbandi (supra) and Malik Mazhar Sultan and Anr. the Hon'ble Supreme Court placing reliance upon its earlier Judgment in All India Judges' Association (supra) repealed such an argument. 33. In Mehboob Dawood Shaikh Vs. State of Maharashtra, the Court observed as under: A Judgment should be understood in the light of facts of that case and no more should be read into it than what it actually says. It is neither desirable nor permissible to pick out a word or a sentence from the Judgment of the Supreme Court divorced from the context of the question under consideration and treat it to be complete law decided by the Supreme Court. The Judgment must be read as a whole and the observations from the Judgment have to be considered in the light of the questions which were before the Supreme Court. 34. While deciding the said case, reliance has been placed by the Apex Court upon the Judgment in Commissioner of Income Tax Vs. M/s. Sun Engineering Works (P.) Ltd. where it has been held as under: The Judgment must be read as a whole and the observations from the Judgment have to be considered in the light of the questions which were before this Court. A decision of this Court takes its colour from the questions involved in the case which it is rendered and while applying the decision to a later case, the Courts must carefully try to ascertain the true principle laid down by the decision of this Court and not to pick out words or sentences from the Judgment, divorced from the context of the questions under consideration by this Court, to support their reasonings. 35. Similarly in H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior and Others Vs. 35. Similarly in H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior and Others Vs. Union of India and Another the Apex Court held as under: It is not proper to regard a word, a clause or a sentence occurring in a Judgment of the Supreme Court, divorced from its context, as containing a full exposition of the law on a question when the question did not even fall to be answered in that Judgment. 36. Therefore, the Judgment of the Supreme Court in Hemani Malhotra (supra) cannot be read in isolation. The ratio of that Judgment has to be considered in view of the facts involved in that case and we are not impressed on the submissions so advanced on behalf of the Petitioners as the same is preposterous. More so, the observation made in Hemani Malhotra (supra) may be a ground for considering the amendment of the rules for future selections, but the said observation did not wash away the statutory provision. The another issue involved herein that as to why none of the Petitioners had challenged the selection process or validity of the advertisement prior to appearing in the examinations though the Judgment in Hemani Malhotra (supra) is prior to the date of advertisement in the instant case. 37. Acquiescence, being the principle of equity must be made applicable in a case where the order has been passed and complied with without raising any objection. 38. A Constitution Bench of the Supreme Court, in Pannalal Binjraj Vs. Union of india (UOI) explained the scope of estoppel observing that once an order is passed against a person and without raising any objection he submits to the jurisdiction or complies with such order, he cannot be permitted to challenge the said order merely because he could not succeed there, for the reason that such conduct of that person would disentitle him for any relief before the Court. A similar view has been reiterated by the Supreme. Court in Manak Lal Vs. Dr. Prem Chand, ; Maharashtra State Road Transport Corporation Vs. Balwant Regular Motor Service, Amravati and Others, . 39. When a candidate appears at the examination without protest and is subsequently found to be not successful in the examination, question of entertaining a petition at his behest challenging the said examination would not arise. (Vide G. Sarana Vs. Dr. Prem Chand, ; Maharashtra State Road Transport Corporation Vs. Balwant Regular Motor Service, Amravati and Others, . 39. When a candidate appears at the examination without protest and is subsequently found to be not successful in the examination, question of entertaining a petition at his behest challenging the said examination would not arise. (Vide G. Sarana Vs. University of Lucknow and Others, ; Major Chandra Bhan Singh Vs. Latafat Ullah Khan and Others, ; Om Prakash Shukla Vs. Akhilesh Kumar Shukla and Others, ; Madan Lal and Others Vs. State of Jammu and Kashmir and Others, ; Utkal University Vs. Dr. Nrusingha Charan Sarangi and Others, ; and Vijay Syal and Another Vs. State of Punjab and Others, ). 40. In State of Punjab and others Vs. Krishan Niwas the Apex Court examined a case where the services of the employee were terminated in exercise of the powers under Article 311(2)(b) of the Constitution. The Appellate Court reduced the punishment imposed by the Trial Court. In the Departmental Appeal, the order of dismissal from service was also converted into that of a lesser punishment. The employee had acted upon it and joined the post. He was held not entitled to challenge the reduced punishment as he was stopped by his conduct. 41. In Union of India and Another Vs. N. Chandrasekharan and Another, the Apex Court observed as under: It is not in dispute that all the candidates were made aware of the procedure for promotion before they sat for the written test and before they appeared before the Departmental Promotion Committee. Therefore, they cannot turn around and contend later when they found that they were not selected, by challenging that procedure.... 42. In Power Control Appliances and Others Vs. Sumeet Machines Pvt. Ltd., the Apex Court held as under: Acquiescence is sitting by, when another is invading the rights.... It is a course of conduct inconsistent with the claim... It implies positive acts; not merely silence or inaction such as involved in laches. In HarCourt v. White 54 ER 382, Sir John Romilly said: 'It is important to distinguish mere negligence and acquiescence.' Therefore, acquiescence is one facet of delay. If the acquiescence in infringement amounts to consent, it will be a complete defence as was laid down in Mouson (J.G.) & Co. v. Boehm (1884) 26 Ch.D. 406. In HarCourt v. White 54 ER 382, Sir John Romilly said: 'It is important to distinguish mere negligence and acquiescence.' Therefore, acquiescence is one facet of delay. If the acquiescence in infringement amounts to consent, it will be a complete defence as was laid down in Mouson (J.G.) & Co. v. Boehm (1884) 26 Ch.D. 406. The acquiescence must be such as to lead to the inference of a licence sufficient to create a new right in the Defendant as was laid down in Rodgers v. Nowill (1847) 2 DeGM & G 614. 43. Similar principle had been made applicable even in contractual matters. (Vide State of Orissa and others Vs. Narain Prasad and others, etc. etc., ; and State of Rajasthan and Ors. v. Anil Kumar Sunil Kumar & Party and Anr. AIR 2000 SC 1441 ). 44. Mr. Sahoo Learned Counsel for the Petitioner in W.P.(C) No. 16313 of 2008, has submitted that Clause-C of Appendix-B is in contravention of the Rule 6 of the Rules, 2007, as the Rule 6 provides for making the selection by having aggregate in written test and viva-voce. It is only Clause-C of Appendix-B which provides cut-off marks in interview for selection. Therefore, Appendix-B is in contravention of the Rule 6 and is liable to be quashed. 45. We find no force in the submissions for the reason that Appendix supplements the Rules and it is the part and parcel of the said Rules furnishing further explanation how to implement the Rule 6. Therefore, it cannot be held to be in contravention of Rule 6 and hence his contention is rejected. 46. Therefore, in view of the above as the instant cases are squarely covered by the Judgment of the Hon'ble Supreme Court in Syed T.A. Naqshbandi (supra), and Malik Mazhar Sultan and Anr. (supra), we are not inclined to entertain the Writ Petitions, they lacks merit and are accordingly dismissed. No costs. B.N. Mahapatra, J. 46. I agree. Final Result : Dismissed