Judgment : This writ petition is filed for a declaration that the 2nd respondent herein, High Court of Kerala is legally bound to apply Rule 14(e) of the KS&SSR for the selection and appointment of District and Sessions Judge, based on Ext.P1 notification and for a direction to the High Court to apply Rule 14(e) of KS&SSR for the selection of candidates based on written test conducted pursuant to Ext.P1 notification. Alternatively petitioner seeks for a direction to the 2nd respondent to apply Rule 14(e) of KS&SSR for selection of candidates to the notified posts in Ext.P1. 2. The facts involved in the present writ petition would disclose that the petitioner was an applicant for selection and appointment to the post of District Judges in the Kerala State Higher Judicial Service by direct recruitment pursuant to Ext.P1 notification dated 16/4/2007. Petitioner is a Hindu Vaniyan classified as Other Backward Classes (OBC) eligible for reservation as per Rules 14 to 17 of KS&SSR and does not belong to creamy layer. 3. The mode of selection in terms of Ext.P1 was by written examination and viva voce. General candidates and OBC candidates were to obtain a minimum of 50% marks in the written examination for being eligible to be called for viva voce. 4. Petitioner and certain other persons were included in the select list for interview based on moderation given by the Selection Committee. After the interview, petitioner was selected and posted as District and Sessions judge, in the reservation category earmarked for OBC. 5. The selection and appointment came to be challenged in WP(C) No. 2021 of 2009 and other connected cases on the decision taken by the Selection Committee to delete candidates who had not attained the age of 35 years. This Court held that such deletion was illegal and the High Court was directed to revise the selection list. On such revised list coming into effect there was no change in the petitioner's position. 6. Another writ petition came to be filed before this Court as W.P.(C) No. 16206 of 2010, challenging the grant of moderation of 20 marks uniformly to all the candidates, as only seven candidates passed in the written test without moderation. As per judgement dated 13/09/2010, this Court held that the award of moderation was illegal and directed to recast the select list. As per judgement dated 13/09/2010, this Court held that the award of moderation was illegal and directed to recast the select list. Ext.P2 is the said judgment which has become final by the dismissal of Special Leave Petition on 08/10/2010. Based on the said judgement, a new list was prepared and the petitioner's service was terminated as per Ext.P4 notification dated 22/12/2010. By the said process two reservation seats, one for OBC and the other for SIUC Nadar fell vacant. 7. Since there were no candidates among the seven candidates who scored 50% marks to fill up the reservation seats, the second respondent invited application to fill up the said vacancies as per Ext.P5 notification dated 18/02/2011. Petitioner participated in the said selection. None of the applicants could be selected as they could not secure the minimum of 60% marks for written test as specified in Ext.P5 notification. 8. The contention of the petitioner is that the High Court did not prepare a supplementary list of sufficient number of suitable candidates in terms of Rule 14(e) of KS&SSR for the purpose of appointment pursuant to Ext.P1 notification. Rule 14(e) reads as under: “A supplementary list of sufficient number of suitable candidates, not less than five times the reservation quota, if available from each community or group of communities for the purpose of satisfying the reservation quota, shall be prepared and published. Note: Suitable candidates for the purpose of this Rule shall mean candidates with notified minimum qualification and marks in selection procedure lowered to the extent necessary.” 9. The main contention urged by the petitioner is that Rule14(e) was incorporated in the Statute based on the report submitted by former Justice Narendran, who was appointed to study and report on the adequacy or otherwise of the representation of the backward classes in public service and to avoid loss of representation of the community who had reservation in appointment. 10. Petitioner submits that in W.P.(C) No.16206 of 2010 the respondents therein defended the action of the High Court relying upon Rule 14(e) of KS&SSR. The contention was rejected on a finding that the moderation awarded cannot be considered as an exercise under Rule 14 (e) of KS&SSR and also for the reason that application of the Rule would arise only at the threshold and not after the selection process has commenced. 11. The contention was rejected on a finding that the moderation awarded cannot be considered as an exercise under Rule 14 (e) of KS&SSR and also for the reason that application of the Rule would arise only at the threshold and not after the selection process has commenced. 11. Counter affidavit is filed by the 2nd respondent contending that specific mention is made in paragraph 4 of Ext.P1 notification that general candidates and candidates belonging to the Other Backward Classes securing not less than 50% marks and candidates belonging to Scheduled Castes and Scheduled Tribes securing not less than 40% marks in each paper of the written examination shall alone be eligible for being called for the viva-voce. The High Court has prescribed minimum marks in the written examination and oral examination so that only efficient and suitable candidates are selected for appointment as District and Sessions Judges. Once the minimum cut off marks is prescribed in the Notification, Rule 14(e) of KS & SSR cannot be made applicable. The petitioner had not challenged the notification, prescribing the minimum cut off marks, when the notification was issued despite the fact that the petitioner was aware of the prescription of the minimum cut off marks in the written examination. That apart, petitioner had participated in the selection processes as per the procedure as stipulated by the High Court in the Notification. The petitioner was removed from the service as a consequence of implementation of Ext.P2 judgment. The petitioner has filed the writ petition only on 24/09/2012 i.e. after a lapse of five years from the date of the notification and after two years of his removal from service. Hence it is contended that the petitioner is estopped from challenging the selection process and he has acquiesced in the selection process. Reference is made to the judgment of the Supreme Court in RakhiRay and Others v. High Court of Delhi and Others [2010(2) SCC 637] to contend that the petitioner who has participated in the selection process pursuant to a notification is estopped from challenging the said notification. Further it is stated that the minimum marks in the notification is prescribed to evolve a procedure to choose the best available talent. Further it is stated that the minimum marks in the notification is prescribed to evolve a procedure to choose the best available talent. Reference is also made to the First National Pay Commission (Shetty Commission) recommendation which inter alia states that the authority which is empowered to prescribe the procedure for the conduct of tests in the case of selection of District Judges is entitled to fix the cut off marks in the written examination. Further reliance is placed on the judgment in Sirajv. High Court of Kerala[2006(2) KLT 923 (SC)], wherein the Supreme Court held that it is open for the High Court to prescribe bench marks for the written test and oral test in order to achieve the purpose of getting the best available talent and that the High Court alone knows what are the requirements of the Subordinate Judiciary and what qualities the Judicial Officers should possess. Since the High Court is the best judge of what should be the proper mode of selection, High Court can follow such procedures as it deems fit. The High Court has to exercise its powers in the light of the constitutional scheme so that the best available talent, suitable for manning the judiciary may get selected. It is also contended that minimum cut off marks are prescribed by the High Court in accordance with the directions of the Supreme Court in the judgment in All India Judges’ Assn. (3) v. Union of India, [(2002) 4 SCC 247]. The High Court has prescribed lower minimum cut off marks only in respect of candidates belonging to Scheduled Caste/Scheduled Tribe candidates. Hence it is contended that the provisions of Rule 14(e) cannot be automatically attracted in the case of recruitment to District and Sessions Judges. The question of filling up the reserved turns for reservation communities which could not be filled up from the candidates selected based on Ext.P1 notification was considered by the Division Bench of this Court in paragraph 33 of Ext.P2 judgment and it is held that the High Court should resort to the procedure contemplated under Rule 15(a) of KS & SSR. It is further held that it should be open to the High Court to fix cut off marks as minimum qualifying marks in such limited recruitment as they deem fit and proper in the circumstances. It is further held that it should be open to the High Court to fix cut off marks as minimum qualifying marks in such limited recruitment as they deem fit and proper in the circumstances. As per the judgment at Ext.P2, unfilled reservation vacancies were to be filled by separate recruitment as envisaged in Rule 15(a) of KS & SSR. Hence the petitioner is estopped from contending that supplementary list shall be prepared for the unfilled vacancies in the 2007 recruitment. In compliance with Rule 15(a) of KS & SSR the 2nd respondent issued Ext.P5 notification dated 18/02/2011. In the said notification, no lower minimum cut off marks were prescribed because the 2nd respondent did not consider that it is proper to prescribe lower minimum marks for filling the notified vacancies. None of the candidates who responded to Ext.P5 notification had secured the prescribed minimum marks in the written examination and hence another notification has to be issued as prescribed in the Rules. 12. The 1st respondent has filed counter affidavit supporting the stand taken by the High Court. 13. Heard Sri.A.Mohammed Mushtaq, learned counsel appearing for the petitioner, learned Government pleader Sri.Noushad Thottathil and Sri.K.R.B.Kaimal senior counsel appearing for respondents 1 and 2 respectively. 14. Having regard to the nature of contentions urged, the first question that arises for consideration is whether the present writ petition is maintainable. The 2nd respondent relies upon the fact that the petitioner having participated in the selection process on the basis of Ext.P1 notification is estopped from taking such a contention. That apart such a contention was raised and rejected by this Court in W.P.(C) No.16206 of 2010 and hence the writ petition is barred by the general principles of res judicata. Further since the selection process is already over and fresh notification is issued, the writ petition is liable to be dismissed on the ground of delay and laches. 15. First I shall consider whether the writ petition is barred by the general principles of res judicata. The learned counsel for the petitioner contends that the ratio of the judgment in W.P.(C)No.16206 of 2010 does not anywhere indicate that the High Court had decided the issue as to whether a supplementary list in terms of the Note to Rule 14 (e) of KS&SSR ought to have been prepared during the selection process. The learned counsel for the petitioner contends that the ratio of the judgment in W.P.(C)No.16206 of 2010 does not anywhere indicate that the High Court had decided the issue as to whether a supplementary list in terms of the Note to Rule 14 (e) of KS&SSR ought to have been prepared during the selection process. It is argued that the findings in the above judgment can at best be treated as an 'obiter' as the substantial issue involved in those writ petitions were regarding the award of moderation marks and the issue raised in the present writ petition is whether the minimum marks could have been reduced to such an extent to enable the High Court to give appointment to persons coming under the reserved category. 16. It is not in dispute that the issue involved in W.P. (C)No.16206 of 2010 and the connected case was whether the award of moderation to all the candidates were legally sustainable. The respondents therein placed reliance on Rule 14(e) of KS&SSR to contend that minimum marks could be lowered by the High Court, to identify suitable candidates belonging to reservation categories. The judgment in W.P.(C) No.16206 of 2010 is reported in Jayachandranv. High Court of Kerala [2010 (4) KLT 49] wherein a Division Bench of this Court held as under: “31. Clause (e) essentially stipulates the preparation of a supplementary list with reference to each community or group of communities belonging to the reserved categories in any selection for the purpose of finalising the select list in order to satisfy the requirements of rules of reservation. The expression 'suitable candidates' under cl. (e) is sought to be explained under the note to mean a candidate who has the notified minimum qualifications and minimum marks in the selection procedure lowered to the extent necessary. According to the learned counsel for the respondents the decision to award moderation is an exercise of lowering the marks to the extent necessary to identify the suitable candidates belonging to the reserved candidates. According to the learned counsel for the respondents the decision to award moderation is an exercise of lowering the marks to the extent necessary to identify the suitable candidates belonging to the reserved candidates. We reject the submission for more than one reason, (1) granting of moderation to all the candidates who participated in the selection process without reference to the fact whether such candidate belongs to reserved category or not, is not contemplated under cl.(e), (2) assuming for the sake of argument that granting of moderation (only in favour of candidates belonging to reserved categories) tantamounts to “lowering of marks to the extent necessary” for the purpose of identifying suitable candidates from the reservation categories, in our opinion, such an exercise is permissible only at the threshold, but not after the selection process commenced and (3) if such a procedure of lowering of the marks subsequent to the initiation of the selection process is permitted, the procedure contemplated under R.15 which provides for resort to the limited recruitment mentioned above, would become wholly redundant. It is well settled in law of interpretation of statutes that any construction of a provision which would render another provision of the same law redundant is to be avoided as far as possible. We do not see any reason why the construction such as the one suggested by the respondents should be accepted on the face of the express language of R.15(a).” 17. A perusal of the above judgment does not disclose that this Court has considered the applicability of Rule 14(e) to the notification and preparation of a supplementary list for reserved category. What was considered was only whether the decision to award moderation is an exercise of lowering the marks to the extent necessary to identify the suitable candidates belonging to the reserved candidates, as provided under Rule 14 (e). What was considered was only whether the decision to award moderation is an exercise of lowering the marks to the extent necessary to identify the suitable candidates belonging to the reserved candidates, as provided under Rule 14 (e). But while opining that such a contention is unsustainable this Court narrated three reasons "(1) granting of moderation to all the candidates who participated in the selection process without reference to the fact whether such candidate belongs to reserved category or not, is not contemplated under cl.(e), (2) assuming for the sake of argument that granting of moderation (only in favour of candidates belonging to reserved categories) tantamounts to “lowering of marks to the extent necessary” for the purpose of identifying suitable candidates from the reservation categories, in our opinion, such an exercise is permissible only at the threshold, but not after the selection process commenced and (3) if such a procedure of lowering of the marks subsequent to the initiation of the selection process is permitted, the procedure contemplated under R.15 which provides for resort to the limited recruitment mentioned above, would become wholly redundant." 18. Let me now consider the case law relied upon by the learned counsel for petitioner. (i) InSushilKumar Mehta v. Gobind Ram Bohra, [(1990) 1 SCC 193] the Supreme Court held as under: “26. xxxxx Thus the decision of a competent court over the matter in issue may operate as res judicata in subsequent suit or proceedings or in other proceedings between the same parties and those claiming under them. But the question relating to the interpretation of a statute touching the jurisdiction of a court unrelated to questions of fact or law or mixed questions does not operate as res judicata even between the parties or persons claiming under them. xxxxx Therefore, the doctrine of res judicata does not apply to a case of decree of nullity. If the court inherently lacks jurisdiction consent cannot confer jurisdiction. Where certain statutory rights in a welfare legislation are created, the doctrine of waiver also does not apply to a case of decree where the court inherently lacks jurisdiction.” (ii) In Supreme Court Employees’ Welfare Assn. v. Union of India, [(1989) 4 SCC 187], the Supreme Court held as under: “24. Thus, a decision on an abstract question of law unrelated to facts which give rise to a right, cannot operate as res judicata. v. Union of India, [(1989) 4 SCC 187], the Supreme Court held as under: “24. Thus, a decision on an abstract question of law unrelated to facts which give rise to a right, cannot operate as res judicata. Nor also can a decision on the question of jurisdiction be res judicata in a subsequent suit or proceeding. But, if the question of law is related to the fact in issue, an erroneous decision on such a question of law may operate as res judicata between the parties in a subsequent suit or proceeding, if the cause of action is the same. The Delhi High Court judgments do not decide any abstract question of law and there is also no question of jurisdiction involved. Assuming that the judgments of the Delhi High Court are erroneous, such judgments being on questions of fact would still operate as res judicata between the same parties in a subsequent suit or proceeding over the same cause of action.” (iii) In State of Gujarat v. M.P. Shah Charitable Trust, [(1994) 3 SCC 552] the Supreme Court held as under: “xxxxxx The judgment in Nanavati is not a judgment in rem. It is a judgment in personam. It was in a writ petition filed by a student, in her individual capacity, seeking a direction to the college to admit her in MBBS Ist year course. She arrayed both the respondent-trust and the Government of Gujarat as respondents to the writ petition. Both the trust and the Government supported the arrangement and contended that it was valid and binding. There was no conflict of interest between the trust and the Government. There was no issue in controversy between the trust and the Government nor was there any adjudication by the court on such an issue. For attracting the rule of res judicata between codefendants — according to the terms in Section 11 of the Civil Procedure Code which provision of course is not, in terms, applicable to proceedings in a writ petition — it is necessary that there should have been some issue directly and substantially in controversy between them which has been heard and finally decided by the court. Same would be the position, where a plea of res judicata is sought to be raised between correspondents in a writ petition, on the general principles of res judicata. Same would be the position, where a plea of res judicata is sought to be raised between correspondents in a writ petition, on the general principles of res judicata. Since the said basic requirement is not satisfied, the said judgment cannot be treated as res judicata between the trust and the Government. At the most, it can be used as an instance where the Government had affirmed the binding nature of the said arrangement but no more. That does not even give rise to an estoppel in the facts of this case. Merely because the Government had contended in 1974 that the said arrangement is a valid one and binding upon it, it cannot be said that it is precluded from resiling from the said position even when it has realised that such an arrangement is contrary to Article 14. There can be no acquiescence or waiver in such matters. If an individual cannot waive the fundamental rights conferred upon him by Part III, the State cannot equally be prevented from discharging its obligations placed upon it by Part III by rules of evidence like estoppel, acquiescence or waiver.” (iv) In Daryaov. State of U.P., [(1962) 1 SCR 574], [AIR 1961 SC 1457] Supreme Court held as under: “18. xxxxx The binding character of judgments pronounced by courts of competent jurisdiction is itself an essential part of the rule of law, and the rule of law obviously is the basis of the administration of justice on which the Constitution lays so much emphasis. As Halsbury has observed: “subject to appeal and to being amended or set asidea judgment is conclusive as between the parties and their privies, and is conclusive evidence against all the world of its existence, date and legal consequences”. Similar is the statement of the law in Corpus Juris: “the doctrine of estoppel by judgment does not rest on any superior authority of the court rendering the judgment, and a judgment of one court is a bar to an action between the same parties for the same cause in the same court or in another court, whether the latter has concurrent or other jurisdiction”. This rule is subject to the limitation that the judgment in the former action must have been rendered by a court or tribunal of competent jurisdiction. This rule is subject to the limitation that the judgment in the former action must have been rendered by a court or tribunal of competent jurisdiction. “It is, however, essential that there should have been a judicial determination of rights in controversy with a final decision thereon”. In other words, an original petition for a writ under Article 32 cannot take the place of an appeal against the order passed by the High Court in the petition filed before it under Article 226.” (v) In MakhijaConstruction & Engg. (P) Ltd. v. Indore Development Authority, [(2005) 6 SCC 304] the Supreme Court held as under: x x x x x The principle of res judicata has been held to bind co-defendants if the relief given or refused by the earlier decision involved a determination of an issue between codefendants (or correspondents as the case may be). This statement of the law has been approved as far back as in 1939 in Munni Bibi v. Tirloki Nath, IA at p. 165, where it has been said that to apply the rule of res judicata as between co-defendants three conditions are requisite: (AIR p. 117) “(1) There must be a conflict of interest between the defendants concerned; (2) it must be necessary to decide this conflict in order to give the plaintiff the relief he claims; and (3) the question between the defendants must have been finally decided.” This view has been consistently followed by this Court. (See Iftikhar Ahmed v. Syed Meharban Ali where the principle was extended to bind coplaintiffs; Mahboob Sahab v. Syed Ismail.) (vi) In KrishenaKumar v. Union of India, [(1990) 4 SCC 207] the Supreme Court held as under: “19. The doctrine of precedent, that is being bound by a previous decision, is limited to the decision itself and as to what is necessarily involved in it. It does not mean that this Court is bound by the various reasons given in support of it, especially when they contain “propositions wider than the case itself required”. This was what Lord Selborne said in Caledonian Railway Co. v. Walker’s Trustees and Lord Halsbury in Quinn v. Leathem. It does not mean that this Court is bound by the various reasons given in support of it, especially when they contain “propositions wider than the case itself required”. This was what Lord Selborne said in Caledonian Railway Co. v. Walker’s Trustees and Lord Halsbury in Quinn v. Leathem. Sir Frederick Pollock has also said : “Judicial authority belongs not to the exact words used in this or that judgment, nor even to all the reasons given, but only to the principles accepted and applied as necessary grounds of the decision.” 20. In other words, the enunciation of the reason or principle upon which a question before a court has been decided is alone binding as a precedent. The ratio decidendi is the underlying principle, namely, the general reasons or the general grounds upon which the decision is based on the test or abstract from the specific peculiarities of the particular case which gives rise to the decision. The ratio decidendi has to be ascertained by an analysis of the facts of the case and the process of reasoning involving the major premise consisting of a pre-existing rule of law, either statutory or judge-made, and a minor premise consisting of the material facts of the case under immediate consideration. If it is not clear, it is not the duty of the court to spell it out with difficulty in order to be bound by it. In the words of Halsbury (4th edn., Vol. 26, para 573) “The concrete decision alone is binding between the parties to it but it is the abstract ratio decidendi, as ascertained on a consideration of the judgment in relation to the subject matter of the decision, which alone has the force of law and which when it is clear it is not part of a tribunal’s duty to spell out with difficulty a ratio decidendi in order to bound by it, and it is always dangerous to take one or two observations out of a long judgment and treat them as if they gave the ratio decidendi of the case. If more reasons than one are given by a tribunal for its judgment, all are taken as forming the ratio decidendi.” (vii) In Punjab Land Development and Reclamation Corpn. Ltd. v. Presiding Officer, Labour Court, [(1990) 3 SCC 682] the Supreme Court held as under: “46. If more reasons than one are given by a tribunal for its judgment, all are taken as forming the ratio decidendi.” (vii) In Punjab Land Development and Reclamation Corpn. Ltd. v. Presiding Officer, Labour Court, [(1990) 3 SCC 682] the Supreme Court held as under: “46. To consider the ratio decidendi of a case we have, therefore, to ascertain the principle on which the case was decided. Sir George Jessel in Osborne v. Rowlatt, remarked that (Ch D, p. 785) ‘the only thing in a Judge’s decision binding as an authority upon a subsequent Judge is the principle upon which the case was decided’.” (viii) In Director of Settlements, A.P. v. M.R. Apparao, [(2002) 4 SCC 638] the Supreme Court held as under: “7. So far as the first question is concerned, Article 141 of the Constitution unequivocally indicates that the law declared by the Supreme Court shall be binding on all courts within the territory of India. The aforesaid Article empowers the Supreme Court to declare the law. It is, therefore, an essential function of the Court to interpret a legislation. The statements of the Court on matters other than law like facts may have no binding force as the facts of two cases may not be similar. But what is binding is the ratio of the decision and not any finding of facts. It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence. To determine whether a decision has “declared law” it cannot be said to be a law when a point is disposed of on concession and what is binding is the principle underlying a decision. A judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered. An “obiter dictum” as distinguished from a ratio decidendi is an observation by the Court on a legal question suggested in a case before it but not arising in such manner as to require a decision. An “obiter dictum” as distinguished from a ratio decidendi is an observation by the Court on a legal question suggested in a case before it but not arising in such manner as to require a decision. Such an obiter may not have a binding precedent as the observation was unnecessary for the decision pronounced, but even though an obiter may not have a binding effect as a precedent, but it cannot be denied that it is of considerable weight.” (ix) In ArunKumar Aggarwal v. State of Madhya Pradesh [AIR 2011 SC 3056] the Supreme Court elaborately considered as to what is obiter dictum and held as under: “31. In view of above, it is well settled that obiter dictum is a mere observation or remark made by the court by way of aside while deciding the actual issue before it. The mere casual statement or observation which is not relevant, pertinent or essential to decide the issue in hand does not form the part of the judgment of the Court and have no authoritative value. The expression of the personal view or opinion of the Judge is just a casual remark made whilst deviating from answering the actual issues pending before the Court. These casual remarks are considered or treated as beyond the ambit of the authoritative or operative part of the judgment.” 19. In Daryaov. State of U.P., [(1962) 1 SCR 574], [AIR 1961 SC 1457] the Supreme Court held that on general considerations of public policy there seems to be no reason why the rule of res judicata should be treated as inadmissible or irrelevant in dealing with petitions filed under Article 32 and 226 of the Constitution. In SushilKumar Mehta (supra) the Supreme Court held that question relating to the interpretation of a statute touching the jurisdiction of a court unrelated to questions of fact or law or mixed questions does not operate as res judicata even between the parties or persons claiming under them and hence, the doctrine of res judicata does not apply to a case of decree of nullity. In Supreme Court Employees’ Welfare Assn.(supra) it is held that if the question of law is related to the fact in issue, an erroneous decision on such a question of law may operate as res judicata between the parties in a subsequent suit or proceeding, if the cause of action is the same. In Supreme Court Employees’ Welfare Assn.(supra) it is held that if the question of law is related to the fact in issue, an erroneous decision on such a question of law may operate as res judicata between the parties in a subsequent suit or proceeding, if the cause of action is the same. In M.P. Shah Charitable Trust (supra) the Supreme Court held that for attracting the rule of general principles of res judicata between co-defendants it is necessary that there should have been some issue directly and substantially in controversy between them which has been heard and finally decided by the court. If the said basic requirement is not satisfied, the said judgment cannot be treated as res judicata between the co-defendants. In the facts of that case it is held that, at the most, it can be used as an instance where the Government had affirmed the binding nature of the said arrangement and does not even give rise to an estoppel. It is also held in the facts of that case that merely because the Government had contended in 1974 that the said arrangement is a valid one and binding upon it, it cannot be said that it is precluded from resiling from the said position even when it has realised that such an arrangement is contrary to Article 14. There can be no acquiescence or waiver in such matters. If an individual cannot waive the fundamental rights conferred upon him by Part III, the State cannot equally be prevented from discharging its obligations placed upon it by Part III by rules of evidence like estoppel, acquiescence or waiver. In Indore Development Authority, (supra) the Supreme Court held that the principle of res judicata has been held to bind codefendants if the relief given or refused by the earlier decision involved a determination of an issue between codefendants (or co-respondents as the case may be). It is held that to apply the rule of res judicata as between codefendants three conditions are requisite: (1) There must be a conflict of interest between the defendants concerned; (2) it must be necessary to decide this conflict in order to give the plaintiff the relief he claims; and (3) the question between the defendants must have been finally decided. 20. 20. In KrishenaKumar (supra) the Supreme Court held the enunciation of the reason or principle upon which a question before a court has been decided is alone binding as a precedent. The ratio decidendi is the underlying principle, namely, the general reasons or the general grounds upon which the decision is based on the test or abstract from the specific peculiarities of the particular case which gives rise to the decision. In PunjabLandDevelopment and Reclamation Corpn. Ltd. (supra) the Supreme Court held that to consider the ratio decidendi of a case the principle on which the case was decided is to be ascertained. M.R. Apparao (supra) the Supreme Court held that It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence. An “obiter dictum” as distinguished from a ratio decidendi is an observation by the Court on a legal question suggested in a case before it but not arising in such manner as to require a decision. Such an obiter may not have a binding precedent as the observation was unnecessary for the decision. But even though an obiter may not have a binding effect as a precedent, it has considerable weight. In ArunKumar Aggarwal (supra) the Supreme Court held that obiter dictum is a mere observation or remark made by the court while deciding the actual issue before it. Having regard to the legal propositions as aforesaid and applying the same to the facts of the case I am of the view that the judgment in M.P. Shah Charitable Trust, (supra) and Indore Development Authority, (supra) applies to the facts of the present case. Apparently the petitioner and respondents were co-respondents in W.P.(C) No.16206 of 2010. The Supreme Court held that the principle of res judicata has been held to bind co-defendants if the relief given or refused by the earlier decision involved a determination of an issue between co-defendants (or co-respondents as the case may be). It is held that to apply the rule of res judicata as between co-defendants three conditions as aforesaid are requisite. 21. It is held that to apply the rule of res judicata as between co-defendants three conditions as aforesaid are requisite. 21. None of the parameters specified in Indore Development Authority (supra) applies to the facts of the case and therefore I am of the view that the writ petition cannot be dismissed on the ground of general principles of res judicata. 22. Now let me consider whether the petitioner has while participating in the selection process waived his right to challenge the selection process or is estopped from raising the present contention. The learned counsel for petitioner relied upon the following judgments: (i) In NarSingh Pal v. Union of India, [(2000) 3 SCC 588], the Supreme Court was considering the claim made by a casual labour and held that: “The appellant was a casual labour who had attained the “temporary” status after having put in ten years of service. Like any other employee, he had to sustain himself, or, maybe, his family members on the wages he got. On the termination of his services, there was no hope left for payment of salary in future. The retrenchment compensation paid to him, which was only a meagre amount of Rs 6350, was utilised by him to sustain himself. This does not mean that he had surrendered all his constitutional rights in favour of the respondents. Fundamental Rights under the Constitution cannot be bartered away. They cannot be compromised nor can there be any estoppal against the exercise of Fundamental Rights available under the Constitution.” ii) In ProvashChandra Dalui v. Biswanath Banerjee, [1989 Supp (1) SCC 487], the Supreme Court held as under: “24. The essential element of waiver is that there must be a voluntary and intentional relinquishment of a known right or such conduct as warrants the inference of the relinquishment of such right. It means the forsaking the assertion of a right to the proper opportunity. The first respondent filed suit at the proper opportunity after the land was transferred to him, and no covenant to treat the appellants as thika tenants could be shown to have run with the land. Waiver is distinct from estoppel in that in waiver the essential element is actual intent to abandon or surrender right, while in estoppel such intent is immaterial. The necessary condition is the detriment of the other party by the conduct of the one estopped. Waiver is distinct from estoppel in that in waiver the essential element is actual intent to abandon or surrender right, while in estoppel such intent is immaterial. The necessary condition is the detriment of the other party by the conduct of the one estopped. An estoppel may result though the party estopped did not intend to lose any existing right. Thus voluntary choice is the essence of waiver for which there must have existed an opportunity for a choice between the relinquishment and the conferment of the right in question. Nothing of the kind could be proved in this case to estop the first respondent. (iii) In SaurabhJain v. State of Kerala (2011 (1) KLT 888 (F.B.) this Court held that waiver of a right also is an aspect of estoppel falling under the head of 'election'. The Full Bench placing reliance on the Constitution Bench judgment in BashesharNath v. Commissioner of Income Tax, Delhi and Rajasthan [AIR 1959 SC 149] and Olga Tellis and others v. Bombay Municipal Corporation & Ors. [AIR 1986 SC 180] held that: "Therefore, we are of the opinion that estoppel is not a defence available to the State when its action is challenged on the ground of violation of any fundamental right or the provisions of the Constitution." 23. Having regard to the above view expressed by the Apex Court and the Full Bench of this Court, I am of the view that, the writ petition cannot be dismissed on the ground of estoppel, waiver or acquiscence. 24. The next contention is regarding the question whether the writ petition can be rejected on the ground of delay. The notification Ext. P1 was issued on 16/04/2007. Even at the time when the notification was issued it was specifically indicated that the minimum marks required for OBC candidates was the same marks that are required for open category candidates. Non application of Note in Rule 14(e) of KS&SSR was known to the petitioner at that point of time. Therefore even at the time when the petitioner participated in the selection process and even contested the earlier writ petitions with reference to the very same select list he had all the opportunity to challenge the notification and the selection process. The process of selection became complete in terms of Ext. P1 notification when the High Court complied with the directions issued in Jayachandran'scase (supra). 25. The process of selection became complete in terms of Ext. P1 notification when the High Court complied with the directions issued in Jayachandran'scase (supra). 25. Thereafter Exhibit P5 notification is issued on 18/2/2011 for filling up the vacancies of SIUC Nadar and one OBC candidate. The last date for submitting the said application was on 19/03/2011. Petitioner participated in the said selection process. None of the candidates obtained the minimum marks and therefore the said vacancies remained vacant. This writ petition is filed only on 24/09/2012. It is argued that the cause of action is a continuing one and therefore there was no delay in filing the writ petition. It is also argued that there was no laches on the part of the petitioner in the matter as even the vacancies notified in terms of Ext. P5 cannot be filled up as there were no candidates who were qualified for the same. 26. The learned counsel for the petitioner relied upon the following judgments: (i) In BalakrishnaSavalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan, [1959 Supp (2) SCR 476] Supreme Court held as under: “xxxxxxx It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong.” (ii) In Union of India v. Tarsem Singh, [(2008) 8 SCC 648], the Supreme Court held as under: “7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.” (iii) In A.P. Public Service Commission v. B. Sarat Chandra, [(1990) 2 SCC 669], the Supreme Court held as under: “If the word ‘selection’ is understood in a sense meaning thereby only the final act of selecting candidates with preparation of the list for appointment, then the conclusion of the Tribunal may not be unjustified. But round phrases cannot give square answers. Before accepting that meaning, we must see the consequences, anomalies and uncertainties that it may lead to. The Tribunal in fact does not dispute that the process of selection begins with the issuance of advertisement and ends with the preparation of select list for appointment. Indeed, it consists of various steps like inviting applications, scrutiny of applications, rejection of defective applications or elimination of ineligible candidates, conducting examinations, calling for interview or viva voce and preparation of list of successful candidates for appointment.” (iv) In Moon Mills Ltd. v. M.R. Meher, President, Industrial Court [AIR 1967 SC 1450] “It is true that the issue of a writ of certiorari is largely a matter of sound discretion. It is also true that the writ will not be granted if there is such negligence or omission on the part of the applicant to assert his right as, taken in conjunction with the lapse of time and other circumstances, causes prejudice to the adverse party. The principle is to a great extent, though not identical with, similar to the exercise of discretion in the Court of Chancery. The principle has been clearly stated by Sir Barnes Peacock in Lindsay Petroleum Company v. Prosper Armstrong Hurd, Abram Farewell, and John Kemp as follows: “Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.” (v) In Maharashtra SRTC v. Balwant Regular Motor Service, [(1969) 1 SCR 808][AIR 1969 SC 329] the Supreme Court followed Moon Mills Ltd. and held as under: “In our opinion, the principle of this decision applies to the present case and since Respondent 1 and the other private operators had not even pleaded any circumstances justifying the delay or their conduct, the High Court was in error in granting a writ of certiorari in their favour.” (vi) In DurgaPrashad v. Controller of Imports and Exports, [(1969) 1 SCC 185] [AIR 1970 SC 769] the Supreme Court held as under: “3. It is well-settled that the relief under Article 226 is discretionary, and one ground for refusing relief under Article 226 is that the petitioner has filed the petition after delay for which there is no satisfactory explanation.” (vii) In State of M.P. v. Nandlal Jaiswal, [(1986) 4 SCC 566], the Supreme Court held as under: “24. Now, it is well settled that the power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. The evolution of this rule of laches or delay is premised upon a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy under the writ jurisdiction because it is likely to cause confusion and public inconvenience and bring in its train new injustices. The rights of third parties may intervene and if the writ jurisdiction is exercised on a writ petition filed after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. When the writ jurisdiction of the High Court is invoked, unexplained delay coupled with the creation of third party rights in the meanwhile is an important factor which always weighs with the High Court in deciding whether or not to exercise such jurisdiction. When the writ jurisdiction of the High Court is invoked, unexplained delay coupled with the creation of third party rights in the meanwhile is an important factor which always weighs with the High Court in deciding whether or not to exercise such jurisdiction. We do not think it necessary to burden this judgment with reference to various decisions of this Court where it has been emphasised time and again that where there is inordinate and unexplained delay and third party rights are created in the intervening period, the High Court would decline to interfere, even if the State action complained of is unconstitutional or illegal.” (viii) In Shri. Vallabh Glass Works Ltd. v. Union of India, [(1984) 3 SCC 362], the Supreme Court held as under: “It is not disputed that the High Courts have power, for the purpose of enforcement of fundamental rights and statutory rights, to make consequential orders for repayment of money realised by Government without the authority of law under Article 226 of the Constitution. This is an alternative remedy provided by the Constitution in addition to but not in supersession of the ordinary remedy by way of suit in the absence of any provision which would bar such a suit either expressly or by necessary implication. While there are different periods of limitation prescribed for the institution of different kinds of suits by the Limitation Act, 1963, there is no such period prescribed by law in respect of petitions filed under Article 226 of the Constitution. Whether relief should be granted to a petitioner under Article 226 of the Constitution where the cause of action had arisen in the remote past is a matter of sound judicial discretion governed by the doctrine of laches.” (ix) In SudamaDevi v. Commr. [(1983) 2 SCC 1] the Supreme Court held as under: “There is no period of limitation prescribed by any law for filing a writ petition under Article 226 of the Constitution. It is in fact doubtful whether any such period of limitation can be prescribed by law. In any event one thing is clear and beyond doubt that no such period of limitation can be laid down either under rules made by the High Court or by practice. It is in fact doubtful whether any such period of limitation can be prescribed by law. In any event one thing is clear and beyond doubt that no such period of limitation can be laid down either under rules made by the High Court or by practice. In every case it would have to be decided on the facts and circumstances whether the petitioner is guilty of laches and that would have to be done without taking into account any specific period as a period of limitation. There may be cases where even short delay may be fatal while there may be cases where even a long delay may not be evidence of laches on the part of the petitioner.” 27. Though the petitioner relies upon the judgments in BalakrishnaSavalram PujariWaghmare (supra) and TarsemSingh (supra) to contend that the action is about a continuing wrong I do not think that the principle laid down in those cases can have application to the present case. In order to constitute a continuing wrong the wrongful act should be of such a character that the injury caused by it continues. There is no such situation here as when the selection list is published the alleged wrongful act is complete. In order to substantiate the delay in filing the writ petition one other contention urged is that the selection process is not complete. In B. Sarat Chandra (supra), the Supreme Court held that the word ‘selection’ is to be understood in a manner that the process of selection begins with the issuance of advertisement and ends with the preparation of select list for appointment and it consists of various steps like inviting applications, scrutiny of applications, rejection of defective applications or elimination of ineligible candidates, conducting examinations, calling for interview or viva voce and preparation of list of successful candidates for appointment. Therefore the argument is that since no candidates are selected so far the process of selection is not complete. I do not agree with the said view as B. Sarat Chandra, (supra) does not lay down any such proposition. As already stated the process of selection comes to end when the select list is published. That apart another selection in terms of Ext.P5 was notified. The fact that no appointments were made by itself will not indicate that the process of selection is not complete. 28. As already stated the process of selection comes to end when the select list is published. That apart another selection in terms of Ext.P5 was notified. The fact that no appointments were made by itself will not indicate that the process of selection is not complete. 28. In Moon Mills Ltd. (supra) and BalwantRegular Motor Service (supra), Supreme Court relied upon the principle stated by Sir Barnes Peacock in Lindsay Petroleum Company v. Prosper Armstrong Hurd, Abram Farewell, and John Kemp as aforestated in the matter relating to doctrine of laches. In DurgaPrashad (supra) and NandlalJaiswal (supra) it is held that the relief under Article 226 is discretionary, and one ground for refusing relief under Article 226 is that the petitioner has filed the petition after delay for which there is no satisfactory explanation. In ShriVallabh Glass Works Ltd. v. Union of India [(1984) 3 SCC 362], the Supreme Court held that in respect of petitions filed under Article 226 of the Constitution of India, to consider whether the cause of action had arisen in the remote past is a matter of sound judicial discretion governed by the doctrine of laches. It is pointed out that there may be cases where even a delay of a shorter period may be considered to be sufficient to refuse relief in a petition under Article 226 of the Constitution. There may also be cases where there may be circumstances which may persuade the court to grant relief even though the petition may have been filed beyond the period of limitation prescribed for a suit. Each case has to be judged on its own facts and circumstances touching the conduct of the parties, the change in situation, the prejudice which is likely to be caused to the opposite party or to the general public etc. Coming to facts of the present case, the petitioner's appointment was canceled on 22/12/2010. The writ petition is filed only on 24/09/2012. In between Ext.P5 notification was issued and the selection process was completed. But no candidate was selected. As already found the non inclusion of supplementary list with candidates having lesser qualifying marks is not a continuing wrong. Though no candidates were selected and the reservation seat remains vacant it is required to be filled up as per the rotation available under Rule 15 of KS & SSR. But no candidate was selected. As already found the non inclusion of supplementary list with candidates having lesser qualifying marks is not a continuing wrong. Though no candidates were selected and the reservation seat remains vacant it is required to be filled up as per the rotation available under Rule 15 of KS & SSR. By issuing Ext.P5, the High Court has acted upon the judgment in W.P.(C) No.16206/2010 and still petitioner did not challenge Ext. P1 notification. Under these factual circumstances I am of the view that the writ petition is liable to be rejected on the ground of delay and laches. 29. The learned counsel for the petitioner relied upon the judgment of the Supreme Court in State of Kerala v. N.M.Thomas, [(1976) 2 SCC 310] to contend that preferential treatment for members of Backward Classes with due regard to administrative efficiency alone can mean equality of opportunity for all citizens and that equality under Article 16 could not have a different content from equality under Article 14. Therefore, differential treatment in standards of selection are within the concept of equality. IndraSawhney v. Union of India [1992 Supp (3) SCC 217] is relied to emphasize that there is an ocean of difference between a well advanced class and a backward class. In a race of open competition in the matters of public employment unequals cannot be measured by the same yardstick. It is only to make the unequals equal, the constitutional provision under Article 16(4) has been designed and purposely introduced providing some preferential treatment to the backward class. It is further held that a programme of reservation may sacrifice merit but does not in any way sacrifice competence because the beneficiaries under Article 16(4) have to possess the requisite basic qualifications and eligibility and have to compete among themselves though not with the mainstream candidates. In Sirajv. High Court of Kerala [(2006 (2) KLT 923 (SC)] the Supreme Court held that in the case of reservation of candidates, there should be relaxation in the selection procedure. For the compliance of Rr.14 to 17 of KS&SSR, there should be a supplementary list as per Kerala Public Service Commission Rules of Procedure Rr.4 (iv) and 12. In Sirajv. High Court of Kerala [(2006 (2) KLT 923 (SC)] the Supreme Court held that in the case of reservation of candidates, there should be relaxation in the selection procedure. For the compliance of Rr.14 to 17 of KS&SSR, there should be a supplementary list as per Kerala Public Service Commission Rules of Procedure Rr.4 (iv) and 12. So supplementary list of candidates coming under the reserved categories has to be prepared and the same is to be considered as part of the rank list for the purpose of filling up of reserved candidates. AjitSingh (II) v. State of Punjab, [(1999) 7 SCC 209] is relied upon to contend that whenever a reserved candidate goes for recruitment at the initial level, he is not going through the normal process of selection which is applied to a general candidate but gets appointment to a post reserved for his group. In N.T.DevinKatti v. Karnataka Public Service Commission, [(1990) 3 SCC 157] Supreme court held that candidates who apply, and undergo written or viva voce test acquire vested right for being considered for selection in accordance with the terms and conditions contained in the advertisement, unless the advertisement itself indicates a contrary intention. In Jai Narain Ram v. State of U.P. [(1996) 1 SCC 332] the Supreme Court held that the right to seek appointment to a post under Article 14 read with Articles 16(1) and (4) is a constitutional right to equality. In K.C. Vasanth Kumar v. State of Karnataka, [(1985) Supp SCC 714] Supreme Court held that different minimum standards and different modes of selection may be prescribed for different posts and for admission to different courses of study having regard to the requirements of the posts and the courses of study. The Supreme Court quoted R.H. Tawney in his classic work Equality where he says, “The truth is that it is absurd and degrading for men to make much of their intellectual and moral superiority to each other and still more of their superiority in the arts which bring wealth and power, because, judged by their place in any universal scheme, they are infinitely great or infinitely small…. The equality which all these thinkers emphasise as desirable is not equality of capacity or attainment but of circumstances, and institutions, and manner of life. The equality which all these thinkers emphasise as desirable is not equality of capacity or attainment but of circumstances, and institutions, and manner of life. The equality which they deplore is not the inequality of personal gifts, but of the social and economic environment…. Their view, in short, is that, because men are men, social institutions — property rights, and the organisation of industry, and the system of public health and education — should be planned, as far as is possible to emphasise and strengthen, not the class differences which divide but the common humanity which unite, them....” 30. Having regard to the case law aforesaid it is contended that the High Court has failed to apply the statutory provision under the Note to Rule 14(e) of KS & SSR while selecting candidates from the reserved category. The principle of law governing the issue is undoubted and the existence of the rules providing reservation for OBC is clearly indicated in KS&SSR. The learned senior counsel appearing on behalf of High Court would rely upon the judgment of the Supreme Court in All India Judges’ Assn. (3) v. Union of India, [(2002) 4 SCC 247] to contend that the High Court has issued Ext.P1 and Ext.P5 notification in terms with Article 233 to 235 of the Constitution of India and the law laid down by the Supreme Court as under: “27. Another question which falls for consideration is the method of recruitment to the posts in the cadre of Higher Judicial Service i.e. District Judges and Additional District Judges. At the present moment, there are two sources for recruitment to the Higher Judicial Service, namely, by promotion from amongst the members of the Subordinate Judicial Service and by direct recruitment. The subordinate judiciary is the foundation of the edifice of the judicial system. It is, therefore, imperative, like any other foundation, that it should become as strong as possible. The weight on the judicial system essentially rests on the subordinate judiciary. While we have accepted the recommendation of the Shetty Commission which will result in the increase in the pay scales of the subordinate judiciary, it is at the same time necessary that the judicial officers, hard-working as they are, become more efficient. The weight on the judicial system essentially rests on the subordinate judiciary. While we have accepted the recommendation of the Shetty Commission which will result in the increase in the pay scales of the subordinate judiciary, it is at the same time necessary that the judicial officers, hard-working as they are, become more efficient. It is imperative that they keep abreast of knowledge of law and the latest pronouncements, and it is for this reason that the Shetty Commission has recommended the establishment of a Judicial Academy, which is very necessary. At the same time, we are of the opinion that there has to be certain minimum standard, objectively adjudged, for officers who are to enter the Higher Judicial Service as Additional District Judges and District Judges. While we agree with the Shetty Commission that the recruitment to the Higher Judicial Service i.e. the District Judge cadre from amongst the advocates should be 25 per cent and the process of recruitment is to be by a competitive examination, both written and viva voce, we are of the opinion that there should be an objective method of testing the suitability of the subordinate judicial officers for promotion to the Higher Judicial Service.” “ X X X X “ “28. As a result of the aforesaid, to recapitulate, we direct that recruitment to the Higher Judicial Service i.e. the cadre of District Judges will be: (1)(a) 50 per cent by promotion from amongst the Civil Judges (Senior Division) on the basis of principle of merit-cum-seniority and passing a suitability test; (b) 25 per cent by promotion strictly on the basis of merit through limited competitive examination of Civil Judges (Senior Division) having not less than five years’ qualifying service; and (c) 25 per cent of the posts shall be filled by direct recruitment from amongst the eligible advocates on the basis of the written and viva voce test conducted by respective High Courts. (2) Appropriate rules shall be framed as above by the High Courts as early as possible.” 31. It is therefore clear from the above judgment that the High Court is entitled to fill up 25% of the posts by direct recruitment and rules are to be framed by the High Court. The Note to Rule 14(e) is not of a mandatory nature. It is therefore clear from the above judgment that the High Court is entitled to fill up 25% of the posts by direct recruitment and rules are to be framed by the High Court. The Note to Rule 14(e) is not of a mandatory nature. When the selection is made by the High Court it is entitled to fix minimum marks for each category. As already held by the Division Bench in Jayachandran'scase (supra) if such a procedure of lowering of the marks subsequent to the initiation of the selection process is permitted, the procedure contemplated under R.15 which provides for resort to the limited recruitment would become wholly redundant. In the light of the aforesaid findings the writ petition is dismissed.