JUDGMENT Hon’ble Shishir Kumar, J.—Heard learned counsel for petitioners and Sri D.S.P. Singh appearing for respondents and learned Standing learned Standing. 2. It appears that petitioners who are working as Munsarim Reader in the Court of Additional District Judge, Bulandshahr challenging the selection of respondent No. 4 on the ground that there was no criteria for the purpose of holding examination.The rule only provides seniority-cum-merit, therefore, marks bifurcated for the purposes of written test, interview and other service records cannot be held and criteria for selection itself is bad. Further submission has been made according to Rules that if there was only one vacancy then maximum five candidate should have been called for consideration but ten candidate have been called for the purposes of promotion on the post of Sadar Munsarim. Further submission has been made that marks bifurcated for the purposes of service record, Hindi letter drafting, English letter drafting, written test and interview are not provided under the Rules 1946. 3. Sri Vinod Sinha, learned counel appearing for petitioners has placed reliance upon a judgment of this Court in Sayyed Muttaqui Raza v. District Judge, Banda and others, 1999 ALJ 2650 and has placed reliance upon paragraph 14 of the said judgment. The same is being quoted below : “14. A very plausible, forceful and pertinent submission was made by learned counsel for the petitioner to which the respondents had virtually no reply, that if the provisions of Section 20(3) of the Rules of 1947 are found to be applicable, in that event, the petitioner cannot be by passed in the matter of promotion unless, as has been held in the decisions in Hari Mohan Lal and Iqbal Bahadur Srivastava (supra) the respondent No. 4 was found to be a person of outstanding merit, and, if the Rules of 1994, as amended in 1998, are applied in that event, the petitioner being senior most, was entitled to be promoted to the post of Sadar Munsarim, unless his claim was rejected as being unfit. It appears that the learned District Judge, Banda was swayed away with the finding of the committee that the previous record of Deen Bandhu Awasthi, respondent No. 4 was better than that of the petitioner. It appears that the learned District Judge, Banda was swayed away with the finding of the committee that the previous record of Deen Bandhu Awasthi, respondent No. 4 was better than that of the petitioner. The yardstick applied by the learned District Judge is not enough to satisfy the requirement either of Rule 20(3) of the Rules of 1947 or of the Rules of 1994, as amended in the year 1998. The petitioner is admittedly senior to respondent No. 4. His seniority could not be disregarded simply because the character roll of the two officials is only of degree and not of kind. As held in Hari Mohan Lal’s case (supra) the note of Rules 20(3) of the Rules of 1947 emphasizes that the difference between the two must be of a category, i.e. junior is found of ‘outstanding merit’ while the senior is not. the criterion of ‘seniority subject to rejection of unfit’ in the matter of promotion postulates that given the minimum necessary merit requisite for efficiency, competency as well acknowledge of rules, the senior, even though less meritorious shall have priority and a comparative assessment of merit is not required be made. The committee constituted by District Judge, as well as the District Judge himself have not come to the conclusion that the respondent No. 4-Deen Bandhu Awasthi was a person of outstanding merits and, therefore, he could not be appointed. If the criteria of seniority subject to rejection of unfit is applied in that event, the question of comparison of character rolls of various employes did not arise. The petitioner was not found to be unfit. In the absence of a finding of petitioner being unfit, he being the senior most employee, his claim could not be ignored. On the other hand, his seniority was to be respected. There can be no escape from the finding that the promotion of Deen Bandhu Awasthi-respondent No. 4 stands faulted on account of the fact that the petitioner who admittedly is senior to him has been denied the promotion in an arbitrary manner on insufficent and untenable grounds.” 4. On the other hand, Sri Amit Sthalekar, learned counsel appearing for respondents has placed reliance upon a judgment of the Apex Court in Om Prakash Shukla v. Akhilesh Kumar Shukla and others, AIR 1986 SC 1043 and reliance has been placed upon para 23 of the same judgment. On the other hand, Sri Amit Sthalekar, learned counsel appearing for respondents has placed reliance upon a judgment of the Apex Court in Om Prakash Shukla v. Akhilesh Kumar Shukla and others, AIR 1986 SC 1043 and reliance has been placed upon para 23 of the same judgment. The same is being quoted below : “23. Moreover, this is a case where the petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without protest. He filed the petition only after he had perhaps realised that he would not succeed in the examination. The High Court itself has observed that the setting aside of the results of examinations held in the other districts would cause hardship to the candidates who had appeared there. The same yardstick should have been applied to the candidates in the District of Kanpur also. They were not responsible for the conduct of the examination.” 5. Further reliance has been placed upon a judgment in Sardara Singh and others v. State of Punjab and others, AIR 1991 SC 2248 . Paragraph 8 of the said judgment is being quoted below : “8. It is next contended that the appellants have now become over-aged and that they are 22 in all. Therefore, directions may be given to the Government to relax their age qualification and given appointments to them.We find no justification to give such a direction. Admittedly, the appellants have taken the chance for selection and they were not selected on the basis of comparative merits. Therefore, merely because appellants are carrying on the litigation, there cannot be any justification to give direction to the Government to consider their cases by relaxing the age qualification for appointment as Patwari. it is not in dispute that hundreds of candidates who could not be selected would in that event seek similar relief. Under these circumstances we do not find any cause to add to the selection and appointment of the candidates as Patwaris. The High Court, though for different reasons, has rightly dismissed the writ petitions. The appeals are accordingly dismissed, but without costs.” 6. Under these circumstances we do not find any cause to add to the selection and appointment of the candidates as Patwaris. The High Court, though for different reasons, has rightly dismissed the writ petitions. The appeals are accordingly dismissed, but without costs.” 6. Taking support of aforesaid judgment learned counsel for respondents submits that as petitioner has appeared in the test and interview without any protest and he has not succeeded in the examination, then he cannot raise dispute regarding constitution of the Selection Committee and procedure adopted for the purposes of selection. The Apex Court has held that it is not permissible. 7. I have considered the submissions made on behalf of parties and have perused the record. There is no dispute to this effect that petitioner has never challenged the constitution of the Selection Committee and criteria and procedure made by respondents for the purposes of consideration of the merit of the candidates who appeared in the written test and other test. Petitioner has also not protested during appearing in the examination before the Selection Committee or Interview Board regarding the criteria made thereunder. He appeared in the examination and test and when he has not become successful then he is raising a dispute by filing present writ petition saying therein that criteria for the purposes of selection was not in accordance with Rules and as the Rule does not provide for any written examination, therefore, if the criteria is seniority-cum-merit subject to unfit, such procedure adopted by respondent is not correct and total selection is vitiated. I have considered the Apex Court judgment and the Apex Court has clearly held that in case, a person has appeared in the examination and failed and has never challenged the criteria or process of examination, he cannot challenge subsequently unless and until there was any protest at the time of selection. 8. In my opinion, there is no occasion to differ from the Apex Court judgment. 9. The writ petition is devoid of merits and is hereby dismissed, however, without imposing any cost. ————