JUDGMENT : Sudhanshu Dhulia, J. 1. Mr. Shobit Saharia, Advocate present for the petitioner. 2. Mr. Subhash Upadhyaya, Chief Standing Counsel, present for the State. 3. All the petitioners before this Court had competed in a selection process for the post of Sub-Inspector (Ranker) in Uttarakhand Civil Police. Only Constables and Head Constables in Uttarakhand Civil Police and other branches of the Police Force, who had put in three years of service in Police Force were eligible to participate in the selection process. In all there were 340 posts of Sub-Inspector (Ranker) against which nearly 10,000 candidates applied and out of which 2290 candidates were declared successful in the written examination and these successful candidates then had to undergo, inter-alia, a Physical Endurance Test, which was mandatory for all the candidates. A candidate who fails in this test would be out of the selection. The test was a 5 km run, which a male candidate had to finish within 30 minutes, and for female candidates it was a 3 km run which had to be finished within 20 minutes. 4. All the petitioners before this Court are the ones who have qualified the written examination and participated in the Physical Endurance Test but have failed the Physical Endurance Test. Some of them collapsed during the run and were declared unsuccessful, others could not finish the run within the stipulated time. They have hence challenged the Physical Endurance Test calling it arbitrary, illegal, de-hors the rules, etc. 5. The counter affidavit was called from the State Government, which has been filed in the leading writ petition (WPSS No. 2150 of 2015) and rejoinder of the same is being filed by the petitioner today itself in the Court in WPSS No. 2150 of 2015. Petitioners and respondents agree that the stand taken by them in these counter affidavit and rejoinder affidavit be adopted in the remaining petitions as well since the issue is common. 6. The main objection of the State Government to the relief sought by the writ petitioners is that all the petitioners are the Constables or Head Constables, who have participated in the Physical Endurance Test and having failed to qualify the same, have challenged the said test on the ground of arbitrariness and illegality. 6. The main objection of the State Government to the relief sought by the writ petitioners is that all the petitioners are the Constables or Head Constables, who have participated in the Physical Endurance Test and having failed to qualify the same, have challenged the said test on the ground of arbitrariness and illegality. This ground is not available to the petitioners for the simple reason that having participated in the test and then becoming disqualified, they cannot turn-around and question the test on any ground. 7. The learned counsel for the petitioner, on the other hand, would argue that he is actually challenging the “procedure” for the Endurance Test per se and not the test or its validity. What is actually being challenged is the manner in which the test was conducted and not the test itself. On this aspect the learned counsel submits that this was a State level test and many of the petitioners were posted in hill areas of the State, some of them in remote hill areas, who had to undergo this test in different climatic conditions in the “plains” of Haridwar (which is a plain region). They reached Haridwar on 27.09.2015 and within 48 hours they had to compete for the race. There was hence not enough time to acclimatize themselves! Moreover, the learned counsel for the petitioners pointed out the fact, (a fact which has been admitted by the respondents), that two of the participants not only collapsed during the run, but subsequently passed away in a hospital, due to the rigorous condition of the Physical Endurance Test. It is then alleged that none of them were properly examined medically for the test nor were there sufficient medical facilities on the ground, which could have taken care of any such a contingency. It is further been argued that all the participants were asked to run 5 Km (3 Km in the case of women) not in a play ground but inside the BHEL (Bharat Heavy Electrical Limited is a Public Sector Undertaking) Colony on a road, which was not even properly metalled, and to top it all they were asked to run in a batch of 200 candidates on a road which was only 20 feet wide, which made it very difficult for the participants. In short, it is alleged that the conditions were such that proper evaluation of Physical Endurance could not have been made in the run. Hence, the entire exercise is liable to be declared illegal and directions be made to make a fresh exercise. 8. At this point, we must note that there are many vacancies of Sub-Inspector (Ranker) in the Uttarakhand Civil Police, which have to be urgently filled by way of the present selection. This exercise for selection was initiated as far back as on 12.02.2014, by way of a notification by the Police Department. Subsequent to which selections were to be made. But since the entire selection was challenged in a writ petition before this Court where initially a stay was granted but ultimately the writ petition was disposed of on 26.11.2014 directing the State Government to go ahead with the selection with certain conditions such as the Police Establishment Committee must take a decision as to why members of the entire Police force are being included instead of just the Civil Police place. Its decision was then to be placed before the Government and sanctioned, before formally starting the exercise. 9. Thereafter, when the process was re-initiated, it has again been challenged again before this Court which is presently pending consideration (in WPSS No. 256 of 2015 and 257 of 2015). In some other petitions an interim order was granted by this Court directing the respondents to go ahead with the written test but not to declare the result of the written examination, but subsequently interim order was modified and the results were declared and it was directed that no appointment can be made till final decision in the matter. The Physical Endurance Test and the run was hence permitted by the order of this Court. 10. In view of the above, the written examination was held (as already referred above) and subsequently the selection process was on of which the Physical Endurance Test was a part, which is the subject matter in this present bunch of writ petitions. 11. It has also been stated that the selection by a competitive examination consists of a written paper of 300 marks, which are in three parts i.e. (a) General Knowledge (b) General Hindi and (c) Police Procedure and Law, of 100 marks each. There is qualifying marks of 50% in each of the above three subjects. 12. 11. It has also been stated that the selection by a competitive examination consists of a written paper of 300 marks, which are in three parts i.e. (a) General Knowledge (b) General Hindi and (c) Police Procedure and Law, of 100 marks each. There is qualifying marks of 50% in each of the above three subjects. 12. The present petitioners, before this Court, are the ones who have already qualified the written examination and the result of the said examination is known to them and according to the petitioners they are right at the very top in the merit list. But since the petitioners have not qualified the Physical Endurance Test, which is mandatory, they are now out from the selection process. It may further be stated that apart from 300 marks, there are further 100 marks, which is sub divided into past service record, good conduct, etc. The Physical Endurance Test, which has already mentioned, is a mandatory qualification in which all the petitioners here have failed. 13. The learned counsel for the petitioners has heavily relied on a decision of a learned Single Judge of Lucknow Bench of High Court of Judicature at Allahabad (in WPSS No. 5254 of 2011 decided on 01.02.2013) where similarly situated persons (as the petitioners in the present matter), who had participated but failed to qualify the Physical Endurance Test in the same examination (examination of Sub-Inspector Ranker in Uttar Pradesh) had challenged the manner in which the Physical Endurance Test was conducted and had succeeded in the writ petition and the Government was directed to take the Physical Endurance Test again of such candidates. The judgment relied upon by the learned counsel for the petitioners is the judgment given by learned Single Judge of Lucknow Bench of Allahabad High Court in (Sudhakar Pandey Vs. State of U.P. in WPSS No. 5254 of 2011 decided on 01.02.2013). The copy of the judgment has been placed before this Court, which has been perused. 14. The order dated 01.02.2013 passed by the learned Single Judge of Lucknow Bench has been perused by this Court. It is true, that in almost similar circumstances as the present the writ petition before the Allahabad High Court did succeed. The copy of the judgment has been placed before this Court, which has been perused. 14. The order dated 01.02.2013 passed by the learned Single Judge of Lucknow Bench has been perused by this Court. It is true, that in almost similar circumstances as the present the writ petition before the Allahabad High Court did succeed. All the same, I am not able to agree with the ratio given in the said judgment (referred above), for the simple reason that the law on this is already well settled, which is that a candidate who has participated in a test and has failed to qualify the same cannot turn around and challenge the legality or illegality of the test, unless there is an inherent unfairness, and illegality in the process. 15. The Hon’ble Apex Court in a recent judgment, (which interestingly arose from a decision of this Court) in Ramesh Chandra Shah & others Vs. Anil Joshi & others, 2013 (11) SCC 309 has held that such candidates who have already taken part in the process of selection with full knowledge that the recruitment was made under a particular rule and having waived their right to question the advertisement or methodology adopted by the selection Board, cannot challenge the process in a writ petition. In this case the Uttarakhand High Court had decided that the selection of “Physiotherapist” in government service had taken place under the General Rules, though there were “special rules” pertaining to Physiotherapist, and therefore though the petitioners had participated in the selection but since the selection itself was patently wrong as it was under the wrong Rules, the entire selection process was to be set aside. This order which was largely upheld in special appeal by the Division Bench but set aside by the Hon’ble Apex Court in Ramesh Chandra Shah (supra). The Hon’ble Apex Court held as under:- “24. In view of the propositions laid down in the above noted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents. 25. 25. We are also prima facie of the view that the learned Single Judge committed an error by holding that despite the non obstante clause contained in Rule 2 of the General Rules, the Special Rules would govern recruitment to the post of Physiotherapist. However, we do not consider it necessary to express any conclusive opinion on this issue and leave the question to be decided in an appropriate case.” 16. Not just in the above noted case but this has been the consistent view of the Hon’ble Apex Court on such matters. A reference of a judgment in Manish Kumar Shahi Vs. State of Bihar, reported in 2010 (12) SCC 576 while elaborating the settled position of law stated it has been held in para 16, which reads as under:- “We also agree with the High Court 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. 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.” 17. The same position has also been stated by the Hon’ble Apex Court in Sadanand Halo & others Vs. Momtaz Ali Sheikh & others, reported in 2008 (2) SCC (L&S) 9, the Hon’ble Apex Court has held as under:- “It is also a settled position that the unsuccessful candidates cannot turn back and assail the selection process. There are of course the exceptions carved out by this Court to this general rule. This position was reiterated by this Court in its latest judgment in Union of India & Ors. Vs. S. Vinod Kumar & Ors. (2007) 8 SCC 100 where one of us (Sinha, J.) was a party. This was a case where different cut off marks were fixed for the unreserved candidates and the Scheduled Caste and Scheduled Tribes candidates. This position was reiterated by this Court in its latest judgment in Union of India & Ors. Vs. S. Vinod Kumar & Ors. (2007) 8 SCC 100 where one of us (Sinha, J.) was a party. This was a case where different cut off marks were fixed for the unreserved candidates and the Scheduled Caste and Scheduled Tribes candidates. This Court in para 10 of its judgment endorsed the action and recorded a finding that there was a power in the employer to fix the cut off marks which power was neither denied nor disputed and further that the cut off marks were fixed on a rationale basis and, therefore, no exception could be taken. The Court also referred to the judgment in Om Prakash Shukla vs. Akhilesh Kumar Shukla & Ors. (1986) Supp. SCC 285, where it has been held specifically that when a candidate appears in the examination without protest and subsequently found to be not successful in the examination, the question of entertaining the petition challenging such examination would not arise.” 18. In the present case at hand the petitioners were aware well in advance that they have to undergo a Physical Endurance Test where they have to run 5 km in 30 minutes (3 km in case of women). They never challenged this condition before this Court earlier and as already stated above they willingly participated and having failed to qualify and have challenged the said Physical Endurance Test! It is absolutely unimaginable that if the petitioners would have succeeded in the said examination i.e. the Physical Endurance Test, they would have ever challenged the same before this Court! Therefore, in view of the settled position of law laid down by the Hon’ble Apex Court, the petitioners are in fact barred from challenging the said Physically Endurance Test. 19. Another challenge at the hands of the petitioners is regarding many of the petitioners performing duties in the hill regions and these not being used to the climatic condition of the plain area and were not given sufficient time to acclimatize them in the area etc. This argument cannot be accepted as it is firstly not rooted in facts as pointed out by the learned Chief Standing Counsel for the State that as many as 25 of the petitioners are actually posted in plain areas. This argument cannot be accepted as it is firstly not rooted in facts as pointed out by the learned Chief Standing Counsel for the State that as many as 25 of the petitioners are actually posted in plain areas. Therefore, the complaint that they were not given sufficient time to acclimatize, is neither true nor relevant. Secondly, nothing has been shown to this Court to prove that a person who comes from a hill area to a plain area actually needs acclimatization! (the reverse may be true). Lastly these conditions in any case were uniform to all the participants. Many candidates actually belonging to the hill region and having spent a life time there have qualified the test, as stated by the learned Chief Standing Counsel. 20. The contention of the petitioners that the condition was hazardous and they were asked to run on road with “potholes” and there being not enough medical facility, etc. even if true cannot be a ground for interference as these conditions were common to all, and if they existed they were equally difficult or hazardous to each of the participants. It is not the case of the petitioners that some participants were asked to run 5 kms and others were asked to run 4 km or less! There is hence no arbitrariness or favouritism as far as this Physical Endurance Test is concerned. The challenge of the petitioners hence fails and the writ petitions are hereby dismissed, subject to a condition that those candidates who actually had a physical ailment such as a fractured limb or any such ailment by which on a proper medical advise they could not have run, and for which they also had given a proper medical certificate from an appropriate authority prior to commencement of the race, their case alone can be individually considered by the “committee” and if in such an individual case the committee comes to a conclusion that there is a reasonable explanation another Physical Endurance Test may be considered. As far as the rest of the petitioners are concerned, they have no case, the writ petitions are dismissed, subject to the above exception. 21. Having said this, however, it must be stated that this Court cannot loose sight of the fact that many of the candidates collapsed during the race and two out of them eventually died in a hospital! 21. Having said this, however, it must be stated that this Court cannot loose sight of the fact that many of the candidates collapsed during the race and two out of them eventually died in a hospital! This shows that there were not enough precautions taken by the authorities, who conducted the said Physical Endurance Test! Though this itself does not give any benefit to the petitioners, yet in order to avoid such tragedies in future, the State Government is well advised to take appropriate medical tests of each of the candidates who is participating in the test and further keep its logistics and medical help in place as regarding emergency, so that tragedies of this nature should be avoided in future! 22. Let a copy of this order be given to the Chief Secretary, Principal Secretary (Home), and the Director General of Police, Uttarakhand for onward compliance by the Registrar General of this Court.