Judgment Ravi R. Tripathi, J.—The appellant– original Petitioner No. 2 is before this Court being aggrieved by judgment and order dated 23.07.2012 whereby the learned Single Judge is pleased to dismiss the Special Civil Application filed by the petitioners. Learned advocate for the appellant vehemently submitted that the learned Single Judge has committed an error in not granting the relief as prayed for. The relief sought for in the petition is as under : “(a) Issue an appropriate writ, order or direction, to quash and set aside Rule 8(3) of the Gujarat State Judicial Service Rules, 2005 (as amended in 2011) that requires minimum qualifying marks of forty percent (40%) in the Viva-voce conducted for direct recruitment to the cadre of District Judges. (b) Issue a writ of mandamus or any other appropriate writ, order or direction to quash and set aside the Select List dated 15.02.2012 (annexed hereto as Annexure F) for direct recruitment to the cadre of District Judges from amongst Advocates issued by Hon’ble Gujarat High Court, and to direct the Respondent No. 1 to prepare a fresh Select List filing all notified vacancies declared vide Advertisement dated 24.06.2011 of Respondent No. 1 (annexed hereto as Annexure B) without requrement of any minimum cut-off marks in the Viva-voce test and on the basis of aggregate marks obtained by the candidates in the Written Test and the Viva-voce as per the recommendations of Justice Shetty Commission and as approved by the Hon’ble Supreme Court. (c) Issue a writ of mandamus or any other appropriate writ, order or direction, directing the Respondent No. 1 to consider the Petitioners herein for selection in the impugned selection process on the basis of merit of aggregate marks obtained by the candidates in the Written Test and the Vivavoce without requirement of any minimum cutoff marks in the Viva-voce test. (d) Issue a writ of mandamus or any other appropriate writ, order or direction, directing the Respondent No. 1 to declare the marks of all candidates in the Written Test and Viva-voce conducted during the selection process to appoint District Judges by direct recruitment as notified vide Advertisement dated 24.06.2011 of Respondent No. 1 (annexed hereto as Annexure B). (d) Issue a writ of mandamus or any other appropriate writ, order or direction, directing the Respondent No. 1 to declare the marks of all candidates in the Written Test and Viva-voce conducted during the selection process to appoint District Judges by direct recruitment as notified vide Advertisement dated 24.06.2011 of Respondent No. 1 (annexed hereto as Annexure B). (e) Issue a writ of mandamus or any other appropriate writ, order or direction, directing the Respondent No. 1 to consider Petitioner No. 2 herein on merit in the Scheduled Caste category on the aforesaid criterion of aggregate marks without requirement of any minimum cut-off marks in the Viva-voce test. (f) Issue a writ of mandamus or any other appropriate writ, order or direction, directing the Respondents to provide relaxation in the percentage of cut-off marks for the candidates belonging to reserved categories such as SC/ST as per the rules of the Government of Gujarat and High Courts of other States, and also to make provision for further relaxation in age limit from the current 3 years to 5 years as per the rules of the Government of Gujarat and High Courts of other States. 1.1 Learned advocate for the appellant submitted that by Sub-rule (3) of Rule-8 of the Gujarat State Judicial Service Rules, 2005, the Authority has provided the cut-off of marks in viva voce. Sub-rule (3) of Rule-8 reads as under : “...The minimum qualifying marks in the viva-voce conducted for direct recruitment to the cadre of District Judge and Civil Judge, shall be forty percent (40%) of marks.” 1.2 In view of submitting that the said Sub-rule (3) of Rule-8 is unjust, arbitrary and illegal. Learned advocate for the appellant invited attention of the Court to the report of the Shetty Commission. Relevant part of which is placed at Annexure-G (Page-79) onwards. At Page-82, Sub-para (iv) of Para.10.97 is produced. Para.10.97 reads as under : “10.97 The Commission has received innumerable complaints that the selection by only viva-voce has more often led to arbitrariness if not whimsical selection, unjust if not unreasonable. With respect to High Courts, we do not want to carry any such impression. But we do feel that there is less transparency and objectivity in the selection process. With respect to High Courts, we do not want to carry any such impression. But we do feel that there is less transparency and objectivity in the selection process. We would, therefore, like to recommend the following procedure to reduce degrees of subjectivity and arbitrariness and to promote more fairness and objectivity; (iv) The viva-voce Test should be in a thorough and Scientific Manner and it should be taken anything between 25 and 30 minutes for each candidate. The viva-voce shall carry 50 marks. There shall be no cut-off marks in viva-voce Test.” (Emphasis Supplied) 1.3 Learned advocate for the appellant submitted that this is a mandatory requirement and therefore, Sub-rule (3) of Rule-8 of Gujarat State Judicial Service Rules, 2005 is required to be quashed and set aside. 1.4 Learned advocate himself cited and relied upon Para-10.97, wherein, it is specifically mentioned that – ‘we would, therefore, like to recommend the following procedure to reduce degrees of subjectivity and arbitrariness and to promote more fairness and objectivity’. Learned advocate for the appellant relied upon a decision of the Hon’ble the Apex Court in the matter of ‘All India Judges’ Association And Others vs. Union of India And Others’ reported in (2002) 4 SCC 247 . Learned advocate invited attention of the Court to Para-37 which reads as under : “37....Subject to the various modifications in this judgment, all other recommendations of the Shetty Commission are accepted.” 1.5 Learned advocate then relied upon Para-39 and 40 of the said judgment, which reads as under : “39.....The States as well as the Union of India shall submit their compliance report by 30-09-2002. Case be listed thereafter for further orders. 40.....Any clarification that may be required in respect of any matter arising out of this decision will be sought only from this Court. The proceedings, if any, for implementation of the directions given in this judgment shall be filed only in this Court and no other court shall entertain them....” 1.6 Learned advocate submitted the fact that all other recommendations of the Shetty Commission are accepted by the Hon’ble the Apex Court and State as well as Union is given time to submit their compliance report by 30.09.2002, the recommendations of the Shetty Commission in Sub-para-(iv) of Para-10.97 should be considered to be mandatory. 2. 2. The Court is not able to accept the said submission of the learned advocate for the appellant because this Court is of the opinion that learned advocate is doing violence with the plain language of the judgment and order of the Hon’ble the Apex Court. 3. Learned advocate for the appellant then argued that it cannot be said, as is said by the learned Single Judge that the petitioner – appellant herein has acquiesced on the aspect of the providing of cut-off marks in viva-voce Test. Learned advocate for the appellant submitted that the Hon’ble Apex Court has clearly stated that when a criteria is not fixed as per the statutory provisions, the question of acquiescence would not arise. In this regard, learned advocate for the appellant relied upon a decision of the Hon’ble the Apex Court in the matter of ‘Ramesh Kumar vs. High Court of Delhi And Another’ reported in AIR 2010 SC 3714 . In this regard, he invited attention of the Court to part of Head Note-A which reads as under:— “(A).....It is true that once the petitioner had appeared in the examination and could not succeed, petitioners cannot be permitted to take U-turn and challenge the selection process on this ground at all. However, when the criteria fixed is not as per statutory provision, the question of acquiescence would not arise.” (Emphasis Supplied) 4. Learned advocate could not substantiate the submission made by him by explaining anything further than citing the aforesaid part of the Head-Note. This Court is of the opinion that once again the learned advocate for the appellant is doing violence with the plain language of the judgment of the Hon’ble the Apex Court. 5. Learned advocate Mr. Joshi appearing for the Respondent No. 1 invited attention of the Court to a decision of the Hon’ble the Apex Court in the matter of ‘Manish Kumar Shahi vs. State of Bihar And Others’ reported in (2010) 12 SCC 576 wherein Head Note-B reads as under:— “(B).....The High Court was correct that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner’s name had appeared in the merit list, he would not have even dreamed of challenging the selection. Surely, if the petitioner’s name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition. 6. The learned Single Judge while considering the case of the petitioner – appellant herein has observed in Para-5 as under : “5....The above mentioned chronology gives out that the petitioners have participated in the selection process, after having applied for the post in question, until the conclusion of the selection process without raising any objection against the selection process and/or applicable rules. Only after declaration of final results and publication of select list the petitioners have now chosen to challenge the selection process and the applicable rules. The select list was published on 15th February, 2012 and present petition came to be circulated on 26th April, 2012. During the process of selection the petitioners were aware about the applicable and relevant rules. With the said knowledge they participated in the selection process including vivavoce/interview. Now, when their names are not included in the select list i.e. when they have not succeeded in the selection process, the challenge is raised by the petitioners.” 7. The learned Single Judge has considered the decision of the Hon’ble the Apex Court in the matter of Ramesh Kumar (Supra), which reads as under:— “7.....As per the submissions advanced by the learned counsel for the Respondent No. 1, the High Court of Delhi had fixed the said criteria being empowered by the statutory provisions contained in The Delhi Higher Judicial Service Rules, 1970 (hereinafter called ‘the Rules’). Rule 10 thereof reads as under: “The High Court shall before making recommendations to the Administrator invite applications by advertisement and may require the applicants to give such particulars as it may prescribe and may further hold such tests as may be considered necessary.” (Emphasis added) 8. Having gone through the judgment and order of the learned Single Judge, this Court finds that no case is made out for interfering with the judgment and order of the learned Single Judge. Having gone through the judgment and order of the learned Single Judge, this Court finds that no case is made out for interfering with the judgment and order of the learned Single Judge. The Letters Patent Appeal is found thoroughly misconceived and misguided and hence, the same is dismissed. 9. The Court wanted to dismiss this Letters Patent Appeal with exemplary costs. But on a request made by learned advocate for the appellant, who said that appellant – original petitioner was having the last chance to apply and appear for selection, the Court restrains itself from passing or imposing any cost on the appellant.