Judgment : These two appeals have been preferred against a common judgment and order dated July 9, 2002 by which the learned Trial Judge allowed two writ petitions being WP No. 20647 (W) of 1998 (Rakesh Kumar Singh and another-vs- Union of India and others) and WP No. 9413 (W) of 2001 (Prabir Sengupta –vs.- Union of India and others). Both these writ petitions were filed challenging the finally published select list prepared for the recruitment to the posts of Sub-inspectors (Executive) in Railway Protection Force/Railway Protection Special Force (for short R.F.F./R.P.S.F. respectively) with prayers to hold fresh selection and not to give any appointment to the said posts on the basis of the published select list. The petitioners further prayed for a declaration that allocation of 40% or 33% marks as qualification in the viva voce test was ultra vires. The writ petitioners in W.P. No. 20647 (W) of 1998 had inter alia alleged that an employment notice was issued by the Chief Security Commissioner, R.P.F./ R.P.S.F. Western Railway, Mumbai for recruitment to the posts of Sub-inspectors (Executive) in R.P.F./R.P.S.F. in different zonal railways and applications were invited for appointment to the said posts. The petitioners had applied for those posts and a Selection Committee was constituted. The petitioners insist that the test consisted of 200 marks which, as per the advertisement, was restricted to physical, written and viva voce tests. It is the petitioners’ case that both of them had qualified in the physical and the written tests and were called for the viva voce test, but were not ultimately selected. The petitioners seemed to stay at that. However, a bunch of writ petitioners had challenged the said select list in another writ petition. In course of hearing of the same, High Court directed the respondents to produce relevant records and a Broad Sheet prepared by the Selection Committee was produced in Court. The petitioners say, they collected the information from that and they were surprised to find that despite securing high marks in the physical and written tests they were not included in the final select lists because of their poor marks in the viva voce test. They further discovered that the candidates securing lesser marks than them were included in the final select list. They further discovered that the candidates securing lesser marks than them were included in the final select list. Their grievance is that the notification inviting application for the posts of Sub-Inspectors mentioned that selection would be made on the basis of 200 marks which included physical efficiency, written test and interview and the Selection Committee could never exceed its power and jurisdiction beyond 200 marks, but in this case selection has been made on the basis of 300 marks, i.e. 100 marks were added for the performance in the viva voce test which, the petitioners alleged, was wholly outside the jurisdiction of the Selection Committee. The petitioners could further gather from the Broad Sheet that the Selection Committee had considered 40 % marks as the minimum qualifying marks in the viva voce test which was arbitrary and violative of their fundamental rights as the interview had played an overwhelmingly dominant role in the matter of selection. Accordingly the petitioners prayed for the reliefs mentioned earlier. On behalf of the respondents nos.-1 to 3 to the writ petition the Chief Security Commissioner, R.P.F., had affirmed an affidavit denying the material allegations in the said writ petition. The specific point made out was that the Selection Committee had acted on the basis of the rules and directions of Director General, R.P.F./ Railway Board. There was a clear circular dated January 14, 1988 that on completion of the evaluation of the answer books candidates who secured 40 % marks out of 100 in the interview would be declared qualified and as such only those successful candidates who secured 40% marks have been included in the select list. A copy of the said circular has been annexed to the writ petition as Annexure-P-I. The reason for the petitioners’ not being selected was their failure to secure qualifying 40% marks in interview. The Selection Committee had acted according to the rules and directions of the D.G., R.P.F./ Railway Board and on the basis of these rules and instructions the Broad Sheets were prepared. After getting a copy of the affidavit-in-opposition the petitioners had filed a supplementary affidavit to their writ petition wherein they had challenged the circular dated January 14, 1988 issued by the D.G., R.P.F., as not framed in consonance with Article 309 of the Constitution of India. After getting a copy of the affidavit-in-opposition the petitioners had filed a supplementary affidavit to their writ petition wherein they had challenged the circular dated January 14, 1988 issued by the D.G., R.P.F., as not framed in consonance with Article 309 of the Constitution of India. The petitioners also prayed for a declaration that fixation of 40% marks as the qualifying marks of the interview was arbitrary and violative of Articles 14 and 16 of the Constitution of India. Their further grievance was that such fixation of qualifying marks is contrary to the terms and conditions of the employment notification. By another writ petition i.e. W.P. No. 9413 (W) of 2001 the writ petitioner therein had challenged the said select list prepared for filling up the posts of Sub- Inspectors (Executive) in respect of the same employment notice as in the first writ petition. The grievances of the petitioner in this writ petition are broadly similar to those in the first one and the line of attack was also more or less the same. In the affidavit-in-opposition to the second writ petition, affirmed by the Chief Security Commissioner, Eastern Railway, it was specifically mentioned that the test was not to consist of 200 marks only. In fact, 200 marks were earmarked for the written test only which would be evident from the employment notification itself. 100 marks were earmarked for the interview for which there was no mention in the employment notice. The respondents have asserted that physical efficiency test was only a qualifying test without carrying any marks. The respondents seemed to justify the action on their part by referring to the marks obtained by the writ petitioner in the viva voce which fell far below the qualifying marks. The Selection Committee did not add any marks as those marks were already stipulated in the instructions. The respondents further denied that the result of the viva voce played an overwhelming and dominant role and there was nothing wrong in the entire selection process. They further clarified that the petitioner in the second writ petition obtained 105 marks in the written test alone and not in the written test and physical efficiency test as the latter was a mere qualifying test without carrying any marks. In both the writ petitions the respective petitioners had filed their affidavits-in reply. They further clarified that the petitioner in the second writ petition obtained 105 marks in the written test alone and not in the written test and physical efficiency test as the latter was a mere qualifying test without carrying any marks. In both the writ petitions the respective petitioners had filed their affidavits-in reply. As mentioned earlier the learned Trial Judge disposed of both the writ petitions by a common judgment and order holding inter alia that the qualifying marks for the viva voce was fixed on the basis of a circular subsequent to the initiation of the selection process. And these subsequent instructions issued after the initiation of the selection process were contrary to the rules and liable to be set aside. Consequently, the learned Trial Judge quashed and set aside the gradation list and directed the respondents to prepare a fresh list without taking into account the qualifying marks fixed for the interview and to give appointment in order of merit on the basis of the total marks obtained by the candidates including the petitioners and private respondents. Aggrieved by this judgment and order the appellants have filed the present two writ appeals. At this stage it is imperative to consider the relevant employment notification being 1 of 97. By the said notification applications were invited from eligible male candidates for filling up the posts of Sub-Inspectors (Executive) in the R.P.F./R.P.S.F. The posts were scheduled to be filled up through a process of recruitment “in accordance with the instructions spelt out in the following paras”. Obviously, by the “following paras” it was meant the paragraphs which followed this statement in the notification itself. The said notification set out the physical standard to be fulfilled by a candidate in order to be eligible. It was also mentioned that the written test would consist of 200 marks with a break-up of General Knowledge of 100 marks, General English of 50 marks and Essay of 50 marks. 40% would be its qualifying marks. The notification further recited: “selection will be on the basis of physical efficiency test, written test and interview. Candidates who satisfy the educational and physical standards would be eligible to appear in physical Efficiency tests, written test and interview". Then followed the details of the physical efficiency tests. 40% would be its qualifying marks. The notification further recited: “selection will be on the basis of physical efficiency test, written test and interview. Candidates who satisfy the educational and physical standards would be eligible to appear in physical Efficiency tests, written test and interview". Then followed the details of the physical efficiency tests. Impugning the judgment and order of the learned Trial Judge it was contended on behalf of the appellants that an ineligible candidate cannot be considered for selection to any post and since the petitioners had failed to secure the minimum qualifying marks as set out in the Circular dated January 14, 1988 the names of the petitioners were not rightly included in the selection list. It was the further contention of the appellants that the petitioners challenged the select list after the said was published and if they considered that the purported allocation of 100 marks for the viva voce test was improper it would have been appropriate for them to challenge it before the results were published. In other words, the petitioners had taken a calculated chance and were sitting on the fence and it was only after the select list was published that they decided to impugn the same which in equity is not permissible. The learned Trial Judge relied on certain decisions of the Supreme Court and deduced therefrom two broad principles of law: one, if the rules permit there could be fixation of the minimum marks in the written test as well as in the viva voce test and, secondly, in case the rules do not permit fixing qualifying marks for viva voce test subsequently would be bad and would vitiate the selection process. The learned Trial Judge found that the qualifying marks for the viva voce test was fixed on the basis of a circular issued by the Director General, R.P.F., subsequent to the initiation of the selection process. This, His Lordship held, was contrary to the rules issued by way of qualification and was liable to be quashed and was set aside. On this reasoning both the writ petitions succeeded in the Trial Court. This judgment of the learned Trial Judge is the result of a clear mistake about the date of the concerned circular. This, His Lordship held, was contrary to the rules issued by way of qualification and was liable to be quashed and was set aside. On this reasoning both the writ petitions succeeded in the Trial Court. This judgment of the learned Trial Judge is the result of a clear mistake about the date of the concerned circular. His Lordship had initially recorded the date of Circular to be January 14, 1988 but subsequently His Lordship had recorded its date as January 14, 1998 and proceeded as if the circular was issued subsequent to the publication of the employment notification in 1997. There is thus a definite a chronological inconsistency with regard to the basis of the judgment itself. We could set aside the judgment and send it back for a fresh decision. But after a full fledged hearing of the appeal we have decided to dispose of the same on merits instead of further lengthening its longevity. According to Mr. Bandhapadhay, the learned Senior Advocate for the appellants, the competent authorities had set the rules fixing the minimum qualifying marks for the viva voce examination and therefore there was nothing wrong in declaring results on the basis thereof. The Circular having been issued long before the employment notice was published, was a valid one and it was within the competence of the employer to hold the examination according to the conditions set out therein. In support of his contention Mr. Bandhapadhay relied on a case reported in P.K. Ramachandra Iyer and others-vs.-Union of India, reported in AIR 1984 S.C. 541 . It was held that because of allocation of 100 marks for the viva voce test for the recruitment of Agricultural Scientists the result had not been unduly affected. The Supreme Court held this for want of adequate materials on record. The Supreme Court held that the power to add to the required qualification had to be explicit and cannot be read by necessary implication and such deviation from the rules was likely to cause irreparable and irreversible harm. This judgment may, however, be distinguished on the facts. There the Supreme Court held that addition of 100 marks the for viva voce test was not unduly high compared to 600 marks allocated to written test. But here 100 marks were allocated for the viva voce test as against 200 marks for the written test. Mr. This judgment may, however, be distinguished on the facts. There the Supreme Court held that addition of 100 marks the for viva voce test was not unduly high compared to 600 marks allocated to written test. But here 100 marks were allocated for the viva voce test as against 200 marks for the written test. Mr. Bandhapadhay further relied on the case of All India Judges’ Associations and others-vs.-Union of India and others, reported in (2002) 4 S.C.C. 247 . This judgment amongst others prescribed the method of recruitment to the Higher Judicial service by competitive examinations, consisting both of written and viva voce tests and the Supreme Court held that there should be an objective method of testing the suitability of the subordinate judicial officers for appointment to the Higher Judicial service. The contention culled out from it is that the importance of the viva voce test cannot be minimized and has to be held simultaneously with the written test to assess the suitability of a candidate. The next case relied upon by the appellants was Union of India and others-vs.-S. Vinod Kumar and others, reported in AIR 2008 S.C. 5 . The principle re-iterated therein is very well accepted in service jurisprudence that it is for the employer or the expert body to determine the cut-off marks for any competitive examination. The court while excising its power of judicial review would not ordinarily intermeddle with that. The jurisdiction of the Court in this respect is limited. The cut-off marks fixed will depend upon the importance of the subject for the post in question and it is permissible to fix different cutoff marks for different categories of candidates. The same judgment also lays down another well settled principle of law that candidates who had taken part in the selection process knowing it fully well the procedure laid down for the examination were not entitled to subsequently question the same. This judgment was also passed in the context of appointment to the railways. The railways advertised certain posts and in selection of candidates the reserved quota remained unfilled up due to unavailability of suitable candidates. The High Court directed the railways to appoint the writ petitioners by lowering the cut-off marks against the posts reserved for the Scheduled Caste and Scheduled Tribe candidates. The railways advertised certain posts and in selection of candidates the reserved quota remained unfilled up due to unavailability of suitable candidates. The High Court directed the railways to appoint the writ petitioners by lowering the cut-off marks against the posts reserved for the Scheduled Caste and Scheduled Tribe candidates. The Union of India moved the Supreme Court and it was in this context that the Court held that it was evident that in respect of general and reserved category candidates different cut-off marks were fixed and the power of the employer to fix the cut-off marks was not denied or disputed. The other contention of the appellants that the petitioners could have challenged the selection process before they had appeared at the test and by appearing at the test they had taken a calculated chance and having once appeared at the examination they were not entitled to question is a principle of law which is far too well settled. Mr. Bandhapadhay further relied on the case of K. Manjushri etc.-vs.-State or A.P. and another, reported in A.I.R. 2008 S.C. 1470. There the Supreme Court has held that the introduction of requirement of minimum marks for interview after the entire selection process was completed would amount to changing the rules of the game after the game was played and hence was impermissible. The Supreme Court relied on the judgment of P.K. Ramachandra Iyer (Supra). For the same proposition the appellants had also relied on the decision of Hemani Malhotra-vs.-High Court of Delhi, reported in AIR 2008 S.C. 2103 . There the Supreme Court had held that there was no doubt that the authority making the rules regarding the selection can prescribe by rules the minimum marks both for written examination and viva voce test. But if the minimum marks are not prescribed for viva voce test before the commencement of the selection process the authority concerned cannot either during of after the selection process add an additional requirement or qualification that the candidate should also secure minimum marks in the interview. Mr. Bandhapadhay submitted that the circular concerned laying down the minimum qualifying marks for the interview was issued long before the selection process started. Mr. Bandhapadhay submitted that the circular concerned laying down the minimum qualifying marks for the interview was issued long before the selection process started. Therefore, it was within the competence of the authorities concerned to rely on the same and they cannot be faulted if they had decided to stick to that and a candidate after appearing at the examination and after not being selected in the same cannot turn back to question the propriety of the examination rules. Mr. Bandhapadhay further relied on the decision of K.A. Nagamani-vs.-Indian Airlines and others, reported in AIR 2009 S.C. 3240 . In that case the appellants inter alia made an attempt to challenge the selection procedure in which 50 % marks were reserved for interview and 50 % marks on the evaluation of the Annual Confidential Reports. The Court held this allocation of marks to be not arbitrary. There the Court relied on the decision in Indian Airlines Corporation-vs.-Capt. K.C. Sukla and others, reported in (1993) 1 S.C.C. 171. In the latter case the Supreme Court in turn again relied on an earlier decision in Lila Dhar-vs.-State of Rajasthan, reported in AIR 1981 S.C. 1777 and other cases. In the case of Capt. K.C. Sukla (Supra) the Supreme Court held that a distinction appears to have been drawn in respect of interviews held for competitive examinations or admissions to educational institutions and those for selection to higher posts and that an effort has been made to eliminate this scope of arbitrariness in the former by narrowing down its proportion as various factors are likely to creep in. But the same standard cannot be applied for higher selections. The Supreme Court further held that the appellant having participated in the selection process along with the contesting respondents without any demur cannot be allowed to turn around and question the very same process having failed to qualify for the promotion. Neither of the points, however, is applicable to the facts of this case. The present case did not involve any selection to a higher managerial post. As such the distinction drawn on the basis of the nature of jobs cannot be made applicable to this case. The second principle regarding waiver of the right by the petitioners too has no application to this case. Why, we shall discuss it later. Mr. The present case did not involve any selection to a higher managerial post. As such the distinction drawn on the basis of the nature of jobs cannot be made applicable to this case. The second principle regarding waiver of the right by the petitioners too has no application to this case. Why, we shall discuss it later. Mr. Bandhapadhay next relied upon a judgment of Sadananda Halo and others-vs.-Mamtaz Ali Sheikh and others, reported in (2008) 4 S.C.C 619 . There the Supreme Court justified the allotment of 50 marks for the viva voce test which were distributed on as many as six factors and found any complaint about that was unsustainable. There also the Supreme Court had reiterated that the unsuccessful candidates after having taken part in the interview process could not turn back and call names to the system. This case was, however, in respect of posts of Armed Constables. But the two principles laid down by the Supreme Court are very important. First, the court in a writ petition cannot make a roving enquiry on the factual aspects of the case and should restrict itself to the pleadings of the parties. Secondly, if the selected candidates are not made parties it amounts to denial of opportunities to them. And the selected candidates not being made parties nor even any notice being served upon them for contesting the proceeding the writ petitioners cannot ask for the relief of canceling or withdrawing the final select list in the case in hand. Mr. Bandhapadhay further relied on the decision of Jyotish Kaiborta-vs.-State of Assam, reported in 2009-JT 51. There the controversy related to appointments to the vacant posts of Lower Division Assistants in the Transport Department of Government of Assam for which the concerned authorities after following a selection process prepared a selection list. The selection list was prepared on the basis of both written and viva voce tests. The Guwahati High Court by a Full Bench decision had held that the selection process was not fair and proper and set aside the select list on various grounds. One of the grounds that weighed with the High Court was that the marks awarded to the selected candidates were very high in the interview and it is only on account of such high marks in the interview that the said candidates were selected. One of the grounds that weighed with the High Court was that the marks awarded to the selected candidates were very high in the interview and it is only on account of such high marks in the interview that the said candidates were selected. The Supreme Court did not agree with the view taken by the High Court and held that in case in viva voce test very high marks were given to the candidates who secured low or very low marks in the written test that might be a ground for suspicion. But if the candidates securing high marks in the written test were able to secure equally high marks in viva voce there was no anomaly. On behalf of the respondents Mr. Lakshmi Kanta Gupta, learned Senior Advocate, relied on the case of Ashok alias Somanna Gowda and another-vs.–State of Karnataka and others, reported in AIR 1992 S.C. 80 . In that case the Govt. of Karnataka invited applications for recruitment of Assistant Engineers, Civil and Mechanical, according to the relevant rules. Total marks for the qualifying examination were 100 and 50 respectively for the interview. The marks allocated for interview amounted to 33.3 percent of the total marks. The appellants in that case applied for the posts, appeared at the examinations but were not selected. They moved the Karnataka Administrative Tribunal challenging the rules on the ground that the percentage of marks for viva voce test was excessive. In that context the Hon’ble Supreme Court held that 50 marks for interview out of 150 marks are clearly in violation of the judgment of this Court in Ashok Kumar Yadav-vs.-State of Hariana ( AIR 1987 S.C. 454 ) and Mohinder Sain Garg–vs. State of Panjab ((1990) 4-JT (S.C.) 704). In that context, the Supreme Court allowed the appeal and directed the respondents to give appointment to the appellants within two months from the date of the communication of the order. Mr. Gupta then relied on the case of Raj Kumar and others – vs. – Shakti Raj and others, reported in (1997) 9 S.C.C. 527 . In that case there were two recruitment rules; one was of 1955 and other was a notification of 1970 in modification of the 1955 rules for appointment to the posts of canal patwaris. Mr. Gupta then relied on the case of Raj Kumar and others – vs. – Shakti Raj and others, reported in (1997) 9 S.C.C. 527 . In that case there were two recruitment rules; one was of 1955 and other was a notification of 1970 in modification of the 1955 rules for appointment to the posts of canal patwaris. The government chose to select candidates according to its convenience, i.e. at times it appointed patwaris under the 1955 Rules and some times according to the 1970 modification. The Court held that the Govt. had committed glaring illegalities in the procedure to get the candidates for examination under the 1955 Rules and also in the method of selection and exercise of the power. In that case the criteria for merit list was abruptly changed by the State Government. This was struck down by the Supreme Court and it held that there was no question of promissory estoppel. The Selection Committee had evolved a criteria of awarding marks under different heads. For viva voce test 30 marks were set apart out of a total marks of 100. But they did not themselves follow this method and awarded marks in the lump sum. Moreover, the Supreme Court held that the prescription of marks for different items was valid and legal, but cutting off the marks actually secured by the candidates in the common written examination was unwarranted. Again, in that case the Government had taken the posts out of the purview of the Board after the results were declared. Mr. Gupta also relied on the case of M.A. Murthy-vs.-State of Karnataka and others, reported in (2003) 7 S.C.C. 517 wherein it was in inter alia decided that selection of a candidate who was not qualified on the last date of submission of application is imperssible. The Supreme Court also adjusted the rights of the parties in the facts of that particular case by directing that the appellant in that case should rank senior to the respondent No. 5 by treating his appointment to be with effect from the date of selection of the respondent No. 4 for the purpose of fixing seniority and continuity in service only. Mr. Mr. Gupta also relied on the case of Rajesh Kumar Gupta-vs.- State of U.P. and others, reported in (2005) 5 S.C.C. 172 for a proposition that full effect of the result of selection to undergo special BTC training would be given effect to only after the verification of the testimonials, etc. and mere publication of the select list did not result in accrual of any right in favour of the candidates whose names had found place in the select list. The Supreme Court approved the view taken by the Division Bench of the Allahabad High Court that even though such candidates were not made parties to the writ petition the same could not be summarily dismissed on that ground. Coming back to the submission of Mr. Bandhapadhay, the learned Senior Advocate for the appellant, it seems that the point of waiver is not attracted here. It is true that a candidate who with full knowledge appears at an examination cannot subsequently turn around and question the legality and propriety of the same as thereby he had taken a calculated chance. This principle, however, does not apply to the facts of the particular case as the respondents’ specific case is that they came to know about the irregularities committed by the appellants only after the records in connection with another case were produced before the Court and it was from those records only that they came to know of this for the first time. In other words, when they appeared at the examination they had no knowledge about it and as such the question of waiver of right does not apply. It is now a well settled principle of law that waiver is an international relinquishment of a known right. There can be no waiver unless the person against whom it is claimed has full knowledge of his rights and of facts enabling him to effectual action for the enforcement of such rights (Ref: Associated Hotels –vs.-Ranjit Singh- A.I.R. 1968 S.C. 933). It is true that in the advertisement inviting applications for the posts of Sub-Inspectors (Executive) in R.P.F./R.P.S.F. it was specifically mentioned that selection would be on the basis of physical efficiency test, written test and interview. So far as the written test is concerned, for General Knowledge 100 marks were allotted; for General English and Essay 50 marks for each were allotted. So far as the written test is concerned, for General Knowledge 100 marks were allotted; for General English and Essay 50 marks for each were allotted. For each of these written tests the maximum duration of the examination was also specifically mentioned and the qualifying marks were kept at 40%. The respondents to the writ petition have categorically stated in their affidavit-in- opposition to the writ petition being WP No- 9413-(W) of 2001 that the selection was to be held on the basis of physical efficiency test, written test and viva voce and 200 marks were earmarked for the written test alone and 100 marks were earmarked for the viva voce test for which there was no mention in the concerned notification. It was also asserted that physical efficiency test was only a qualifying test carrying no marks. This seems to be more consistent with the conditions laid down in the concerned Employment Notification. It mentioned that those who qualified in the physical efficiency test would be put through written test in General Knowledge, English and Essay. The concerned Employment Notification merely mentioned the marks allocated to written tests. The marks for interview were not mentioned. This does not mean that the entire examination was to be held on the basis of 200 marks allocated to the written examination. When interview was also a mode of recruitment it is not fair to presume that interview would not carry any marks at all. The respondents to the writ petitions had supplemented it by stating that no additional marks were added by the Selection Board. 100 marks for the viva voce test and 40% as its minimum qualifying were earmarked by the Circular issued by the Director General of R.P.F. vide its notification, dated January 14, 1988. Mr. Gupta’s contention that the employers cannot deviate from the conditions laid down in the concerned employment notification is far too well accepted. It is also very well settled that an employer cannot deviate from the qualifications published and any recruitment in deviation of the published qualification would violate Articles 14 and 16 of the Constitution of India. It appears that the case in hand involves a case of deviation of mode of selection from the published one. The notification was silent about any qualifying marks for the interview. It appears that the case in hand involves a case of deviation of mode of selection from the published one. The notification was silent about any qualifying marks for the interview. But the appellants stuck to the instruction that the qualifying marks for the interview would be 40 % and irrespective of the marks obtained by a candidate in the written examination if he had failed to obtain the minimum qualifying marks in the viva voce test he was declared to have failed in the examination. The other contention of Mr. Gupta that the allocation of such high marks for the interview may lead to arbitrariness and is likely to give a handle to the employer to adopt a pick and choose policy. It is true that in the case of Ashok Kumar Yadav and others-vs.-State of Haryana, reported in AIR 1987 S.C. 454 , the Supreme Court had, inter alia, held that allocation of 33.3% marks for the viva voce test was excessive and rendered the selection process arbitrary. In that case, the Supreme Court was considering recruitment to the posts in Haryana Civil Service Executive and other allied services. The procedure for recruitment was governed by Panjab Civil Service (Executive Branch) Rules, 1930. Undoubtedly, Civil Service (Executive) is a higher post than that of a Sub-Inspector (Executive) in R.P.F./R.P.S.F. As has already been discussed, courts have persistently drawn a distinction between higher and lower categories of posts and it has also been held that allocation of higher percentage of marks for the viva voce test for recruitment to the higher post is less vitiated than recruitment to the posts of lower categories. Even in that context i.e. Civil Service (Executive) posts, the Supreme Court held that allocation of 33.3% of marks to viva voce introduced arbitrariness and vitiated the entire selection process. The Supreme Court in that judgment had explicitly dealt with the reasons why Their Lordships considered 33.3% marks as excessive. As has already been noted earlier in the case of Ashok alias Somanna Gowda and Another-vs.-State of Karnataka and others (Supra), the Supreme Court followed case of Ashok Kumar Yadav and other cases and held that allocation of 33.3% marks even for engineering posts was excessive. The judgment in Ashok Kumar Yadav was delivered by four judges of the Supreme Court and must prevail over the contrary views expressed by any Smaller Bench. The judgment in Ashok Kumar Yadav was delivered by four judges of the Supreme Court and must prevail over the contrary views expressed by any Smaller Bench. At this stage we may again refer to the judgment of Hemani Malhotra –vs.- High Court at Delhi (Supra). Relying on an earlier Supreme Court judgment in K. Manjusree –vs.- State of A.P., (Supra) the Supreme Court held that the authority regulating selection can prescribe by rules the minimum marks both for the written examination and viva voce, but if minimum marks are not prescribed for the viva voce before the commencement of the selection process the authority concerned cannot either during the selection process or after the selection process add an additional qualification that the candidate should also secure minimum marks at the interview. In the said judgment the Supreme Court further relied on the case of All India Judges’ Association – vs. – Union of India (Supra) and held that prescription of the cut-off mark at viva voce test by the respondent was not in accordance with the decision of the Supreme Court. The appellants may very well argue that the cut-off marks for the interview was fixed long before the Employment Notification was published. As such there was no question of prescribing qualifying marks after the selection process was over. This argument through chronologically just is otherwise not a justifiable one. A prescription of qualifying marks not made known to the applicants is in effect an ineffective prescription. A prescription that exists on paper and kept obscured from the knowledge of those to whom it matters is an apology for a prescription of minimum marks for the viva voce examination. The confusion has been worst confounded by the fact that the Employment Notification mentioned a qualifying marks for the written test. It is true that where a recruitment process consists of an interview as well it will not be consistent with mature process of ratiocination that it will not carry any marks at all. But that it will have a qualifying marks also was an information the authorities declined to share with the prospective applicants. Ancient wisdom of law formulated a Latin maxim, based on common sense and sound logic: expressio unius est exclusio alteroius”. The specific mention of one excludes the other is what the English had translated it. But that it will have a qualifying marks also was an information the authorities declined to share with the prospective applicants. Ancient wisdom of law formulated a Latin maxim, based on common sense and sound logic: expressio unius est exclusio alteroius”. The specific mention of one excludes the other is what the English had translated it. The mention of qualifying marks in respect of the written test had excluded, at least in the mind of an unsuspecting applicant, the remotest possibility imperceptible existence of a similar prescription in respect of the viva voce. The prescription of qualifying marks in an undisclosed circular is a stale one. The petitioners became aware of it only upon the perusal of the relevant records and that too in connection with another case. This is as good as not prescribing the cut-off marks before the commencement of the selection process and as bad as adding additional qualification during the selection process. Thus, since the requirement of obtaining minimum qualifying marks for the viva voce was kept furtive the prescription cannot receive any judicial benediction. At this stage, we have an arithmetical task to perform. If we add the numbers obtained by the respondents Nos. 1 and 2 in F.M.A. 577 of 2005 in both the written as well as the viva voce test it is found that they scored higher marks in aggregate than many selected on the strength of an undisclosed qualifying marks at the interview. This cannot be said of the respondent No 1 in F.M.A. 578 of 2005. His case is different because even after the qualifying marks in the viva voce is removed, he obtained lesser than the lowest total number of marks scored by any selected candidate. In the case of Hemani Malhotra (Supra) the Supreme Court directed the respondents to prepare a combined merit list after adding the marks of the petitioners therein of the written test to those of the viva voce test. But since in the present case the selected candidates have been working for more than a decade we refrain from disturbing any incumbent, more so, when all the selected candidates have not been made parties. We direct the concerned appellants to declare the respondents Nos. But since in the present case the selected candidates have been working for more than a decade we refrain from disturbing any incumbent, more so, when all the selected candidates have not been made parties. We direct the concerned appellants to declare the respondents Nos. 1 and 2 in F.M.A. 577 of 2005 as selected to the posts they had applied for and we further direct that they should be given appointment against existing vacancies within two months from date, if there be any, and if there is no vacancy they should be appointed against next available vacancies occurring in future within two months from the date such vacancies occur. Following the decision in Hemani Malhotra –vs.-High Court of Delhi (Supra), we also make it clear that the petitioners would not be entitled to seniority or salary with retrospective effect. Their seniority shall be reckoned and their salary shall be paid from their date of appointment only. Both these appeals are thus disposed of with the directions mentioned above. There shall, however, be no order as to costs. Urgent Xerox certified copy, if applied for, will be supplied within seven days from the date of the application.