ORDER : Sujoy Paul, J. 1. This petition under Article 226 of the Constitution of India was initially filed to assail the select list (Annexure P/4) for the post of Forest Guard. It was further prayed that appropriate direction be issued for conducting the inquiry regarding whole selection process of Forest Guard Examination of Chhindwara. It is prayed that a fresh examination by independent agency be directed to be conducted. Later on, the petition was amended and it was prayed that selection/appointment of respondent No.4 Premlal Karode be set aside and in place thereof, petitioner be selected being more meritorious candidate. The challenge is also made to select list Annexure P/8 dated 13.09.2008 whereby appointment of respondents No.4 to 12 were made. 2. The facts briefly stated by the petitioner in the petition are that pursuant to an advertisement, the petitioner submitted his candidature for the post of Forest Guard in the category of OBC. The advertisement dated 05.06.2008 published in 'Dainik Bhasker' is also filed as Annexure P/1. In due course, Roll No.10245 was allotted to the petitioner. The Admit Card is filed as Annexure P/2. The result was declared in 'Dainik Bhaskar' dated 06.07.2008. The petitioner obtained 50 out of 70 marks as per said result. After passing the written test, petitioner appeared in personal interview conducted on 10.07.2008. Petitioner contends that he has received 06 out of 09 marks in the interview. 3. Shri K.K. Pandey contends that after personal interview, a select list was published in 'Dainik Bhaskar' on 14.09.08 (Annexure P/4). Petitioner's roll number does not find place in the said list. It is submitted that persons who have been selected in OBC category got less marks than petitioner in the written examination. The whole selection process was unfair and non transparent. Petitioner, being more meritorious candidate had preferential right of selection. It is submitted that candidates who were having political backing of MLAs and MPs of ruling party, were selected. 4. The respondents filed their return on 10.12.2008. The averments of the petition were denied in the return. It is averred that petitioner is claiming relief of quashing the select list Annexure P/4 but has not impleaded all the selected candidates as party. In absence of impleadment of necessary parties, the petition is not tenable. 5. 4. The respondents filed their return on 10.12.2008. The averments of the petition were denied in the return. It is averred that petitioner is claiming relief of quashing the select list Annexure P/4 but has not impleaded all the selected candidates as party. In absence of impleadment of necessary parties, the petition is not tenable. 5. It is further stated in the return that entire process of selection was conducted as per statutory Recruitment Rules of 1999, namely (M.P. Class III Forest (Non Ministerial) Recruitment Rules, 1999) as well as per M.P. Lok Seva (Anusuchit Jatiyon, Anusuchit Jan jati Aur Anya Pichhada Vargo Ke Liye) Adhiniyam, 1994. It is stated that for OBC category, 33% is the minimum qualifying marks. The candidates who have secured 33% marks in written examination are included in the select list. A consolidated merit list needs to be prepared by considering the candidates three times the number of vacancies by fixing the cut-off marks. The candidates so included in the merit list were called for interview so that a valid short listing can take place. In para-6 of the return, it is submitted that the select list is to be prepared on the basis of aggregate performance of the candidates in the written examination followed by interview. In the present case, against 137 vacancies, a merit list of 319 was prepared i.e three times the number of vacancies. It is submitted that for OBC category the number of seats were 18. Seventy candidates of this category could find place their names in the select list. The cut-off marks were 55.40. It is averred that petitioner obtained 49.50 marks in the written examination and 4.40 marks in interview. Thus, in total 53.90 marks were obtained by the petitioner which were below the cut-off marks. It is submitted that last OBC candidate was Sunil Sonkushre who obtained 55.40 marks. The respondents have denied that selection was not done fairly. It is important to note here that in para-12 of the return, the respondents have categorically stated that for the purpose of evaluation of answer-sheets, as many as 73 Teachers and Forest Officers had been deployed at forest Research Centers at Chhindwara. The answer-sheet were evaluated under tight security arrangements. The examination was conducted on 30.06.2008 under the able invigilation of trained staff. The answer-sheets were collected and brought for evaluation till evening of 1.7.2008 to 3.07.2008. The answer-sheet were evaluated under tight security arrangements. The examination was conducted on 30.06.2008 under the able invigilation of trained staff. The answer-sheets were collected and brought for evaluation till evening of 1.7.2008 to 3.07.2008. On the same day, valuation was initiated under proper security and under supervision of higher Forest Officials. All the answer-sheets have been evaluated by the team of as many as 64 teachers. All the evaluators have been provided with a model answer script on the basis of which evaluation has been done successfully. Along with this return, the respondents have filed the select list dated 13.09.2008. However, it is noteworthy that in this select list roll number and names of the candidates were shown, marks obtained by these candidates were not shown. 6. The petitioner on 09.09.2009 filed additional rejoinder. Along with this, petitioner filed Annexure P/8 received under the RTI Act, 2005. 7. Shri K.K. Pandey submits that as per this document, it is clear that result of main examination was declared on 13.09.2008. The select list dated 16.03.2009 (page-5) contains the names of candidates, their roll numbers, category, marks obtained in written examination, interview and in physical/walking test. By taking this court to the name of petitioner and private respondents, it is contended that most of the private respondents were declared failed yet their names were included in the select list and they were appointed. 8. Shri K.K. Pandey during the course of arguments relied on additional submission of the respondents dated 23.2.2010. It is submitted that the select list dated 16.03.2009 is provided to the petitioner by Public Information Officer/DFO. In additional submission dated 23.2.2010, the respondents stated that petitioner secured 53.90 marks, Shri Premlal Korade belonged to OBC category as well as Ex-serviceman category. Thus, his case cannot be compared with the petitioner because Shri Korade was appointed against the Ex-serviceman quota. Shri Pandey, learned counsel for the petitioner by placing reliance on Annexure R-2 dated 28.09.2008 and 10.07.2008 (Annexure R-2A) submits that after completion of the entire selection including physical test, certain persons were recalled for undergoing physical/walking test. This second examination/walking test is wholly impermissible. By way of this second examination, they were given much higher marks in order to favour them and include their names in the select list. This second examination/walking test is wholly impermissible. By way of this second examination, they were given much higher marks in order to favour them and include their names in the select list. He place reliance on judgment of Gwalior Bench in W.P.No. 3407/2008 (Vinod Kumar Katare v. State of M.P. and others) decided on 05.092008. Learned counsel contends that the case of Vinod Kumar (supra) pertains to same selection of District Morena. This court disapproved similar action of giving second chance to some candidates regarding physical test. He also placed reliance on order passed in WA No.48/2009 whereby the appeal against the order of writ court in Vinod Kumar (supra) is rejected. For the same reasons, it is urged that second examination needs to be declared as illegal. He placed reliance on a letter dated 10.07.2008 on the strength of which second walking test was conducted. He drew attention of this court to the judgment of Gwalior Bench wherein the same document was held to be insufficient for holding second test and was found contrary to Rules. The petitioner further contends that the selection list (Annexure R-2) shows that Shri Premlal Korade was a failed candidate. He placed reliance on the relevant entries of select list relating to the petitioner and private respondents to contend that failed and less meritorious candidates have been selected and appointed. 9. The next submission of Shri K.K. Pandey is based on the document dated 10.03.2010 (Annexure B) filed with additional submissions of respondents dated 23.3.2010. It is argued that this document shows that some inquiry was conducted about the fairness of the selection process. The respondents earmarked nine candidates and decided to withhold their results. Learned counsel for the petitioner contends that once nine candidates were earmarked, at best, revaluation of those could have been done whereas the respondents erred in revaluating the answer-sheet of the petitioner also. 10. In nutshell, the contention of Shri K.K. Pandey is that the petitioner was declared as pass but in order to accommodate unsuitable candidates, for no valid reasons, petitioner's copies were revaluated and he was declared as failed. The revaluation could have been done only in relation to such candidates (nine in number) whose names are mentioned in said document. It is submitted that second examination/walking test was impermissible. Hence the entire process of examination was bad in law. 11. The revaluation could have been done only in relation to such candidates (nine in number) whose names are mentioned in said document. It is submitted that second examination/walking test was impermissible. Hence the entire process of examination was bad in law. 11. Shri Girish Kekre, GA relied on the pleadings of return and other additional submissions. He fairly admitted that petitioner's copy was subjected to revaluation. He further admits that for certain candidates, second chance of walking test was given. In the main select list, petitioner's name does not find place. Petitioner has secured less than cut-off marks. Selection alone does not confer any right. As per Rule 12(3) of Recruitment Rules of 1999, the competent authority has power to undertake necessary inquiry. Thus power to undertake the exercise of revaluation or re-walking test is implied. Hence, no relief can be granted. 12. Shri Sanjay Dwivedi, learned counsel for respondent No.4 contends that all the selected persons are not impleaded as party. Respondent No.4 is an Ex-serviceman and hence no comparison can be made with him. 13. Shri Dwivedi placed heavy reliance on the averments of additional submission of respondent dated 23.2.2010. In para-3 of this submission it is stated that Premlal Karode was the only candidate of OBC category who had secured lesser marks than the petitioner. However, he was selected because he was given further privilege of ex-serviceman. Petitioner cannot compare his case with Premlal Karode. It is specifically stated that Premlal Karode was selected from OBC category because he had applied from"ex-serviceman" quota for which reservation was provided. 14. After hearing of this matter was concluded, Shri Girish Kekre, GA filed written arguments and provided some record of the impugned selection. In the written arguments, it is reiterated that appointment procedure was for 137 posts of Forest Guards in Chhindwara circle. Petitioner has not impleaded all the selected candidates and hence petition suffers from non-joinder of necessary parties. It is submitted that copies of all 363 candidates were revalued/retotalled. Petitioner had initially secured 62.9 marks which were reduced after revaluation to 53.9 marks. The cut-off marks were 55.40. Since, petitioner's marks were less than the cut-off marks, he was not given appointment. In the written submission, respondents have justified the second walk test on the basis of circular/executive instructions dated 10.07.2008 issued by the Principal Chief Conservator of Forest, Bhopal. The cut-off marks were 55.40. Since, petitioner's marks were less than the cut-off marks, he was not given appointment. In the written submission, respondents have justified the second walk test on the basis of circular/executive instructions dated 10.07.2008 issued by the Principal Chief Conservator of Forest, Bhopal. Reliance is placed on Rule 12 of Recruitment Rules of 1999 to bolster the submission that mere selection does not confer any right. Respondents have reproduced a comparative chart showing the position of marks of the candidates in different selection. This chart shows that respondent Premlal Karode was unsuccessful in the first walk test and became successful only in pursuance to second walk test. It is submitted that as per Rule 18(4) of the Recruitment Rules, the life of Select Panel was 18 months and since that life is already over by now, in the absence of any interim relief being granted, this petition cannot be entertained. In para-12 of the written submission, it is urged that in W.P.6850/2010, this court issued directions for ensuring that walk test of petitioner is taken again in accordance with law. The second walk test is justified on the basis of this ground. In support of these arguments respondents have relied on following judgments :- (1) East Cost Railway v. Mahadev Appa Rao- 2010(7) SCC 678 , Shankarashan Das v. Union of India- (1991) 3 SCC 47 and Ishwar Singh v. Kuldeep Singh-1995 suppl.(1) SCC 179. 15. The parties confined their arguments to the extent indicated above. 16. On the basis of rival contentions mentioned herein above, following points needs serious consideration : (i) Whether this writ petition is not maintainable because of non-impleadment of all the selected candidates ? (ii) Whether respondent No.4 was eligible, more meritorious qua petitioner for the post in question ? And Whether department's action is justifiable in revaluating petitioner's copy ? (iii) Whether department was justified in conducting second walk/physical test for failed candidate ? (iv) Whether as per Recruitment Rules of 1999 department has any discretion to deprive more meritorious candidate from fruits of selection and appointment ? (v) Whether waiting list is liable to be dismissed because of life of select panel is expired during the pendency of case ? (vi) Relief and cost of litigation ? Point No. (i) : 17. (iv) Whether as per Recruitment Rules of 1999 department has any discretion to deprive more meritorious candidate from fruits of selection and appointment ? (v) Whether waiting list is liable to be dismissed because of life of select panel is expired during the pendency of case ? (vi) Relief and cost of litigation ? Point No. (i) : 17. The petitioner has impleaded certain OBC candidates who, as per petitioner's version, had secured less marks than the petitioner. It is relevant to mention here that during the course of arguments, Shri Pandey confined his arguments to the extent Shri Premlal Karode and other OBC candidates were selected and appointed. He did not press the prayer to set aside the entire selection. In this backdrop, it is to be seen whether this petition for non-impleadment of all selected candidates is tenable. This point is no more res integra. In Prabodh Verma and others v. State of U.P.- (1984) 4 SCC 251 , the Apex Court held that those who were vitally concerned are made party in representative capacity, the petition is maintainable. In All India S.C. & S.T.Employees Association v. A.Arthur Jeen- (2001) 6 SCC 380 , the Apex Court held that if some of the successful candidates are impleaded in representative capacity, it is sufficient to maintain the petition. Same view is taken in Tridip Kumar Dingal v. State of W.B- (2009) 1 SCC 768 . In Public Service Commission, Uttaranchal v. Mamta Bisht- (2010) 12 SCC 204 , the Apex Court again held that last selected candidate of OBC category was necessary party without whose impleadment, writ petition could not have been entertained. In the present case, the petitioner has impleaded those persons who are said to be less meritorious. Thus, it cannot be said that petition suffers from non-joinder or mis-joinder of necessary parties. In the facts and circumstances of this case, the judgment of Ishwar Singh (supra) is of no assistance to the respondents. Point No.(ii) : 18. As noticed above, the respondents in their additional submission dated 23.2.2010 stated that Premlal Karode obtained lessor marks than the petitioner. However, he was selected because he belongs to another quota namely a "ex - serviceman" quota. Before dealing with this aspect, it is apt to quote the relevant entries from the original candidature submitted by respondent Premlal Karode. As noticed above, the respondents in their additional submission dated 23.2.2010 stated that Premlal Karode obtained lessor marks than the petitioner. However, he was selected because he belongs to another quota namely a "ex - serviceman" quota. Before dealing with this aspect, it is apt to quote the relevant entries from the original candidature submitted by respondent Premlal Karode. This original application is produced before this court along with the relevant record. The relevant portion of this application reads as under :- 1& vkosnd dk uke%& PREMLAL KORDE 2& firk@ifr dk uke%& SHRI TULARAMJI KORDE 3& fyax% iq:"k@efgyk %& MALE 4& tUefrfFk ¼vadksa esa ,oa 'kCnksa esa½ 05-02-1969 ikap Qjojh mUuhl lkS mugRrj 5& vk;q %& ¼01-01-2008 dh fLFkfr esa½%&---------------------o"kZ ----------------------ekg ---------------------fnu 6& vk;q esa NwV dh Js.kh %& HkqriqoZ lSfud 7& tkfr%& iokj oxZ fiNMk oxZ 8& 'kS{kf.kd ;ksX;rk %& gk;j lsdaMjh 9& igpku fpUg% BROWN MOLE PALM OSPECT RIGHT INDEX FINGER 10& iwoZ@orZeku lsok dk fooj.k o dk;kZy; dk irk%& CORPS OF SIGNAL JABALPUR (M.P.) 11& i= O;ogkj dk orZeku irk %& PREMLAL KORDE 12& LFkk;h irk PREMLAL KORDE C/O BOMBAY JAILORS JARBAZAR PANDHURNA xzke@uxj PARDI rglhy PANDHURNA fiu dksM 480334 ftyk CHHINDWARA jkT; M.P. ,l0Vh0Mh0 dksM lfgr nwjHkk"kk dzekad@eksckby ua0 9993145177 ¼vxj miyC/k gks rks½ 13& fookfgr@vfookfgrA ;fn fookfgr gks rks%&¼d½ fookg dk fnukad 19-05-1997 ¼[k½ thfor cPpksa dh la[;k 02 ¼x½ vafre cPps dh tUefrfFk 25-06-2001 14& cSd M~kQ~V dk fooj.k %& dzekad 0862210174 fnukad 27-05-2008 cSad dk uke SBI PANDHURNA ?kks"k.kk&i= eSa izekf.kr djrk@djrh gwa fd iwoZ of.kZr tkudkjh tgka rd eq>s irk gS vkSj tgka rd esjk fo'okl gS] lgh vkSj iw.kZ gSA ,slh fdlh Hkh ifjfLFkfr;ksa ls eSa voxr ugha gwa ftuds dkj.k 'kklu ds v/khu fu;kstu gsrq esjh mi;qDrrk {kh.kZ gksrh gksA vkosnd ds gLrk{kj 19. A plain reading of this application of Shri Premlal Karode shows that he himself described the category as "OBC". Mention of "ex-serviceman" in the application is with regard to claim of relaxation of over age. Thus, Shri Karode was aware that he submitted his candidature against "OBC" category. There is no mention in the application about any quota of ex-serviceman. Interestingly, the advertisement (Annexure P/2) makes it clear that applications were invited to fill-up the posts of SC, ST and OBC candidates. The advertisement does not show that there was any separate quota for exserviceman. Thus, Shri Karode was aware that he submitted his candidature against "OBC" category. There is no mention in the application about any quota of ex-serviceman. Interestingly, the advertisement (Annexure P/2) makes it clear that applications were invited to fill-up the posts of SC, ST and OBC candidates. The advertisement does not show that there was any separate quota for exserviceman. The clarification-4 of the advertisement reads as under 4& ,sls vH;FkhZ dks] tks HkwriwoZ lSfud gks] viuh vk;q esa ls muds }kjk iwoZ esa dh x;h laiw.kZ izfrj{kk lsok dh dkykof/k de djus ds fy;s vuqKkr fd;k tkosxk] fdarq mlds ifj.kke Lo:i tks vk;q fudys og mPprj vk;q lhek ls 3 o"kZ ls vf/kd u gksA This clarification shows that ex-serviceman can get age relaxation to the extent indicated in the said clause. Although the question of eligibility of respondent Premlal Karode on the aspect of age bar is not specifically raised, it is self evident and is taken note of it by this court. The advertisement shows that maximum age limit for OBC candidate was 35 years. The maximum age limit for ex-military serviceman was their age minus number of years they have served in military organization but they are entitled to maximum of three years of relaxation above the maximum age limit. Thus, maximum age limit was 35 years and Shri Karode was entitled to get the relaxation upto three years i.e upto 38 years. It is seen that his date of birth is 05.02.1969. As per advertisement, age of candidate is to be assessed as on 01st January,2008. On this date, his age was 38 years 10 months 25 days. Thus, he was clearly age bar on the date of submission of candidature. The respondents in comparative chart reproduced in the written arguments and in their aforesaid additional submissions have clearly admitted that Premlal Karode was an unsuccessful candidate and was selected because of the marks obtained in second walk test. In absence of any special quota for ex-serviceman, the contention of respondents that petitioner cannot compare his case with Shri Karode, is clearly erroneous and runs contrary to record. 20. The petitioner has successfully established that he secured more marks in the selection qua Shri Premlal Karode. The petitioner was deprived on the ground that on revaluation of his copies, his marks were reduced. This aspect requires serious consideration. 20. The petitioner has successfully established that he secured more marks in the selection qua Shri Premlal Karode. The petitioner was deprived on the ground that on revaluation of his copies, his marks were reduced. This aspect requires serious consideration. Respondents No.1 to 3 filed a document-B dated 10.03.2010 along with their additional submission dated 23.3.2010. This document shows that a Committee was constituted to examine the aspect of alleged irregularities in the impugned selection. The Committee submitted its detailed report on 05.09.2008 and opined that only nine candidates' copies are required to be revalued. This aspect requires serious consideration. Respondents No.1 to 3 filed a document-B dated 10.03.2010 along with their additional submission dated 23.3.2010. This document shows that a Committee was constituted to examine the aspect of alleged irregularities in the impugned selection. The Committee submitted its detailed report on 05.09.2008 and opined that only nine candidates' copies are required to be revalued. The relevant portion of this document reads as under :- mDr lfefr }kjk fnukad 05-09-2008 dks viuk foLr``r tkap izfrosnu izLrqr fd;k x;k ftlesa 363 ¼lk{kkRdkj gsrq p;fur½ mEehnokjksa esa ls dsoy 9 mEehnokjksa ¼1238] 15432] 19027] 19030] 19026] 19017] 16508] 19324] 1797½ dh mRrjiqfLr dk vkse vuqfpr:il ewY;kadu@NsMNkM+@vuqfpr lk/ku dk mi;ksx djus dks izFke n``"V;k lgh ik;k x;kA lfefr }kjk izLrqr mijksDr tkap izfrosnu dks/;ku esa j[krs gq;s mijksDr 9 vH;fFkZ;ksa ds ijh{kk ifj.kke jksdus rFkk 'ks"k vH;fFkZ;ksa ds ijh{kk ifj.kke ?kksf"kr djus ds laca/k esa bl dk;kZy; ls fnukad 11-09-2008 dks funsZ'k tkjh fd;s x;sA mDr funsZ'kksa ds rkjrE; esa uksMy vf/kdkjh }kjk mijksDr 9 vH;fFkZ;ks ds ijh{kk ifj.kke jksds x;s] ftlesa ;kfpdkdrkZ Jhefr uhfyek iokj Hkh 'kkfey gSA tkap lfefr ds foLr``r tkap ifj.kke ,oa eq[; ou laj{kd fNUnokMk o``Rr ds i= Ø-@o0fu0l0@2010@418 fn0 09-03-10 }kjk izsf"kr izfrosnu ds vuqlkj mRrj iqfLrdkvksa ds gLrfyfi fo'ks"kK ls ijh{k.k] iquZewY;kadu@iquZx.kuk mijkar mijksDr 9 vH;fFkZ;ksa dh fLFkfr fuEukuqlkj ikbZ tkrh gS %& Jh ehjuyky mbZds ¼jksy ua0 1238½] Jh czts'k flag ifjgkj ¼jksy ua0 19017½] Jh jkts'k 'kekZ ¼jksy ua0 19026½] Jh ftrsUnz flag Bkdqj ¼jksy ua0 19027½] Jh ckcw ns'keq[k ¼jksy ua0 15432½] Jh v'kksd dqekj iokj ¼jksy ua0 19030½ dh mRrj iqfLrdkvksa ds gLrfyfi fo'ks"kK ls ijh{k.k djkus ij dksbZ vfu;ferrk ugh ikbZ xbZA mDr 6 vH;fFkZ;ksa ,oa ,d vU; vH;FkhZ Jh jktho dqekj pkSgku ¼jksy ua0 19324½ dh mRrj iqfLrdkvksa ds iquZewY;kadu@iquZx.kuk djus ij muds }kjk izkIr dqy vad lacaf/kr laoxZ esa vafre :i ls p;fur vH;FkhZ ds izkIrkadksa ls de gksus ds dkj.k ouj{kd dh p;u dh izfdz;k esa ik=rk ugha curh gSA Jh uhys'k dqekj esJke ¼jksy ua0 1797½ dh mRrj iqfLrdk esa gLrfyfi fo'ks"kK ls tkap djkus ij mRrj iqfLrdk ds izFke i``"B ,oa vU; i``"B dh gLrfyfi vyx&vyx gksus ds dkj.k mlds }kjk vuqfpr lk/ku dk mi;ksx fd;k tkus dh iqf"V gksus ds dkj.k os ouj{kd p;u izfdz;k esa vik= ik;s tkrs gSA ;kfpdkdrkZ Jhefr uhfyek iokj ¼jksy ua0 16508½ dh mRrj iqfLrdk ds iquZewY;kadu ds le; mlds }kjk vuqfpr lk/ku iz;ksx fd;k tkuk ik;s tkus ds dkj.k ouj{kd p;u izfdz;k esa mldh ik=rk ugha curh gSaA vr% fNanokM+k ou o``Rr esa ouj{kd HkrhZ ijh{kk o"kZ 2008 esa tkap ny ds tkap izfrosnu dh vuq'kalk ,oa eq[; ou laj{kd fNUnokM+k o``Rr ds izfrosnu vuqlkj ;kfpdkdrkZ Jhefr uhfyek iokj ¼jksy ua0 16508½ }kjk fyf[kr ijh{kk esa vuqfpr lk/ku iz;ksx fd;k tkuk ik;s tkus ds dkj.k mUgsa ouj{kd ijh{kk o"kZ 2008 esa p;u ds fy;s vik= ?kksf"kr fd;k tkrk gSA blh izdkj Jh uhys'k dqekj esJke ¼jksy ua0 1797½ dh mRrj iqfLrdk ds izFke i``"B ,oa vU; i``"B dh gLrfyfi vyx&vyx gksus ds dkj.k muds }kjk vuqfpr lk/ku dk mi;ksx fd;s tkus ds QyLo:i os ouj{kd p;u izfdz;k esa vik= ik;s tkrs gSA 'ks"k 7 vH;fFkZ;ksa dk p;u vafre p;u lwph esa ugha gqvk gS vr% bUgsa i``Fkd ls vik= ?kksf"kr fd;s tkus dh vko';drk ugha gSA 137 vH;fFkZ;ksa ds laca/k esa iwoZ esa tkap ny dh vuq'kalk ds vuqlkj ouj{kd ijh{kk o"kZ 2008 esa ik= ?kksf"kr fd;k tk pqdk gS] ftlesa mYysf[kr ifjfLFkfr;ksa esa fdlh izdkj ds la'kks/ku dh vko';drk ugha gSaA 21. The aforesaid para shows that respondents have earmarked the candidates whose copies were required to be revalued. Petitioner's roll number and name does not find place in the said report. Thus, there was no occasion for the respondents to undertake the exercise of revaluation of petitioner's copy. Apart from this, the respondents have produced the record. Along with it, a document dated 09.07.2008 (Ex. 26) is filed which was signed by Shri Y.P. Singh, Shri K.K. Gurwani, B.P.S. Parihar, DFO and one attached Officer M.S .Solanki Deputy Manager. The relevant portion of this document reads as under :- “ 4- fyf[kr ijh{kk ds p;fur leLr 363 ifj{kkfFk;ksa ds dkfi;kas dk iqu% ijh{k.k djuk%& fyf[kr ijh{kk ds vk/kkj ij p;fur leLr 363 ijh{kkfFkZ;ksa ds dkfi;ksa esa ewY;kdau drkZ;ksa }kjk iznRr vadks dk iqu% tksM dk ijh{k.k fd;k x;k ijarq fdlh Hkh dkWih dk iquZewY;kdau ugha fd;k x;k] vuqdzekad 1760] 4814] 15369] 4864] 4258] 4241] 1724] 1074] 16244] 6913 ,oa 9523 esa ewY;kdau ,oa iwuZewY;kdau drkZvksa }kjk iznkf;r vadks esa ;k rks fHkUurk gS ;k tksM xyr gSA vuqdzekad 9523 dh dkih esa dqN mRrj nks ckj fy[ks x, gS] ftuesa ewY;kdau drkZ }kjk nks ckj vad iznk; fd;s x;s gSA lfefr vuq'kalk djrh gS fd uksMy vf/kdkjh bu vuqdzekdksa ds dkfi;ksa dk iquZ ijh{k.k dj fu.kZ; ysosaA ” (Emphasis supplied) This document also shows that respondents have not decided to undertake the exercise of revaluation in relation to the petitioner. Yet, revaluation of petitioner's copy had taken place and his marks are reduced. This is a clear attempt to reduce the marks below the benchmark in order to deprive the petitioner from the fruits of selection. The original answer-sheet of petitioner is also produced before this court. I find no justification in reducing the marks when there was no decision to revaluate the answer-sheet of the petitioner and revaluation was even otherwise not justifiable. POINT No.(iii) : 22. The respondents have given benefit of marks to certain failed candidates including Shri Karode on the basis of second walk test. This point is no more res integra. The Gwalior Bench of this court has disapproved the said action of conducting second walk/physical test in Vinod Kumar Katare (supra). Against this judgment WA No.48/09 was filed which was dismissed. Para 7 to 9 of the judgment of writ court reads as under :- "7. This point is no more res integra. The Gwalior Bench of this court has disapproved the said action of conducting second walk/physical test in Vinod Kumar Katare (supra). Against this judgment WA No.48/09 was filed which was dismissed. Para 7 to 9 of the judgment of writ court reads as under :- "7. The State of Madhya Pradesh in exercise of the powers conferred under section 309 of the Constitution has framed the rules for recruitment of the forest guard known as the Madhya Pradesh Class III (Non-Ministrecrial) Forest Service Recruitment Rules, 1999 (however, it is pointed out by the learned counsel for the petitioner that the Rules are of the year 2000 but there is a printing mistake and it is wrongly reflected that the Rules were framed in the year 1999). The fact remains that the aforesaid rules were notified vide Notification No.F-21-13-87-X-1 dated 21-5-2001, published in the M.P. Rajpatra, pt., IV (Ga) dated 15-6-2001, p.89. As per the provisions of the recruitment rules, rule 8 deals with the conditions of Eligibility of Direct Recruitment. Sub rule (1) thereof deals with age, sub rule (2) Educational qualification and sub-rule (3) deals with physical qualification The aforesaid rule provide that a candidate must have to pass the competitive examination as prescribed by the selection committee as well as shall have to complete a walk of 25 kms., within o4 hours in case of a male candidate. The rules do not provide for a second chance to those candidates who have not qualified the physical fitness test and that too after the entire selection process is completed by the respondents in the matter. 8. In the present case, the provisions of the recruitment rules are very clear and the private respondents did participate in the competitive examination and physical fitness test. The respondents have prepared a merit list of the candidates who have appeared in the competitive examination, and physical fitness test. 8. In the present case, the provisions of the recruitment rules are very clear and the private respondents did participate in the competitive examination and physical fitness test. The respondents have prepared a merit list of the candidates who have appeared in the competitive examination, and physical fitness test. Thereafter a select list was prepared by the respondents and they have given a chance to some of the candidates who have either failed in the physical fitness test to appear in the physical fitness test, however, as there is no such provisions under the recruitment rules, the respondents have placed reliance upon a letter issued by the Additional principal Conservator of Forest date 10t h July, 2008 and the regulations of physical examination of a candidate applicable in respect of Indian Forest Services. The regulations which have been relied upon by the respondents are related to the Indian Forest Service which is a recruitment of Class I post in the Indian Forest Services and the relaxation is provided under the recruitment rules in the aforesaid case whereas in the present case the recruitment rules prescribed in respect of the Forest Guard does not provide for a second chance to a candidate either in the competitive examination or in the matter of participation in the physical fitness test, and therefore, the letter issued by the Additional Principal Conservator of Forest dated 10th July, 2008 will not override the statutory provisions in the matter Keeping in view the aforesaid, this Court is of the considered view that the respondents could not have superseded the recruitment rules by granting a second chance in respect of physical fitness test to the candidates who have failed in the first instance, and therefore, in the absence of any such provisions in the recruitment rules permitting a second chance to any candidates to appear in the physical fitness test, the action of the respondents granting relaxation to the private respondents No. 9 to 14 to appear again in the physical fitness test of 25 kms, walk in 04 hours contrary to the provisions of the recruitment rules and the same is hereby quashed; 9. Resultantly the petitions are allowed. The respondents are directed to issue a revised select list of the candidates excluding all such candidates who have failed either in the competitive examination or in the prescribed physical fitness test. Resultantly the petitions are allowed. The respondents are directed to issue a revised select list of the candidates excluding all such candidates who have failed either in the competitive examination or in the prescribed physical fitness test. The aforesaid-exercise of preparing the revised select list of the candidates shall be completed within a period of thirty days from the date of receipt of a certified copy of this order." (Emphasis supplied) 23. The respondents in the present case also have relied upon some executive instruction in support of action of second walk test. For the reasons stated in Vinod Kumar Katare (supra), the said instructions cannot cut any ice and cannot justify the action of holding second walk test. Thus second walk test and the marks arising thereto in favour of Shri Premlal Karode, cannot be permitted to be added. Thus, the respondents' action in undertaking second walk test for lessor meritorious candidate, namely, Premlal Karode is arbitrary, capricious and bad in law. Point No.(iv) : 24. The respondents have placed reliance on Recruitment Rules of 1999 to bolster their submission that selection does not confer any right and therefore petitioner cannot claim any indefeasible right of selection. I do not find any merit in this contention because the comparative chart reproduced here-in-under shows that petitioner has secured more marks than Shri Karode. There exists is no such unfettered discretion with the appointing authority to deprive a more meritorious candidate from fruits of selection. It is trite that if a decision is taken without any principle or without any rule, it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law Douglas, J. in United States v. Wanderlich-342 US 98 (1951)."Law has reached its finest moments when it has freed man from the unlimited discretion of some ruler Where discretion is absolute, man has always suffered". This view is followed by the Supreme Court in Natural Resources Allocation, In Re Special Reference No.1 of 2012- (2012) 10 SCC 1 ). Selection, although does not confer any right but such non-selection should not be arbitrary, capricious, discriminatory and malicious in nature. This view is followed by the Supreme Court in Natural Resources Allocation, In Re Special Reference No.1 of 2012- (2012) 10 SCC 1 ). Selection, although does not confer any right but such non-selection should not be arbitrary, capricious, discriminatory and malicious in nature. The comparative chart prepared on the basis of record shows position at a glance :- Roll Number Name Of The Candidate Category List I List II List III (Filed With Return By Resps.) (Filed With Rejoinder By Petitioner) (Filed With Additional Submissions By Respondents.) Marks Total Marks Written Interview Physical Examination Total Marks Written Interview Physical Examination 10245 Petitioner (Jakir Khan) Obc (Name Not On The List) 53.9 49.5 4.4 Pass 62.9 58.5 4.4 Pass 4059 Respondent No. 4(Premlal Karode) Obc Na 25.6 22 3.6 Fail 25.6 22 3.6 Fail 1553 Respondent No. 5(Kanhaiyalal Belbansi) Sc Na 54.7 48 6.7 Fail 54.7 48 6.7 Fail 2226 Respondent No. 6(Kamlesh Dehariya) Sc Na 51.5 46 7 Fail 53 46 7 Fail 2707 Respondent No. 7 (Anil Khobariya) Sc Na 64.6 57 7.6 Fail 64.6 57 7.6 Fail 18043 Respondent No. 8 (Prakash Kumar Inwati) St Na 39.4 31 8.4 Fail 39.4 31 8.4 Fail 13430 Respondent No. 9 (Manjulata Dolekar) Sc Na 55.4 49 6.4 Pass 55.4 49 6.4 Pass 11310 Respondent No. 10 (Santoshi Sahu) Obc Na 54.2 49 5.2 Pass 54.2 49 5.2 Pass 11444 Respondent No. 11 (Anita Sarathe) Obc Na 51.2 46 5.2 Pass Name Not On The List. 7158 Respondent No. 12 (Reetu Kushwaha) Obc Na 45.4 41 4.4 Misprint Name Not On The List Point No.(v) : 25. It is further argued by the department that life of select panel stood expired during pendency of this case and, therefore, no relief is due to the petitioner. This argument is also without any legal footing. Petitioner filed this petition when admittedly panel was alive. In Purushottam v. Chairman MPSEB and another- (1999) 6 SCC 49 and in State of U.P. v. Ramswarup Saroj- (2000) 3 SCC 699 , the Apex Court held that such expiry of life of panel during pendency of litigation will not deprive the petitioner from fruits of selection if he is otherwise eligible. Point No.(vi) : 26. As analysed above, it is clear that respondents have even made an attempt to mislead this court by contending that there exists a separate quota for ex-military man. Point No.(vi) : 26. As analysed above, it is clear that respondents have even made an attempt to mislead this court by contending that there exists a separate quota for ex-military man. The respondents left no stone unturned to deprive the petitioner from fruits of selection and have undertaken an exercise of revaluation which, for the reasons stated above, was impermissible. In the manner respondents have undertaken the aforesaid exercise, it can be safely said that their entire action of depriving a meritorious selected candidate and selecting a less meritorious/failed candidate amounts to malice in law. This kind of act is not expected from a government department which is under a constitutional obligation to conduct the selection with transparency and fairness. In the main return, it is stated that written examination etc. was conducted through efficient staff under the vigil of superior staff and in additional submission it is said that serious irregularities etc. had taken place. The respondents, in a well designed manner, acted to deprive the petitioner from fruits of selection. This kind of act of a government department needs to be deprecated. 27. In the light of aforesaid discussion, the action of the respondents in undertaking revaluation of petitioner's answer-sheet is disapproved. Admittedly, as per marks obtained by the petitioner before revaluation, he is qualified, selected and is found to be more meritorious candidate than Shri Premlal Karode. The second walk test because of which Shri Karode was selected is already disapproved by this court. I am not oblivious of the legal position that normally in cases where selection is found to be erroneous, the case of petitioner is remitted back before the authorities for reconsideration. However, in exceptional cases where department has not acted with fairness and there is no disputed question of fact in relation to merit of the candidates, this court can issue directions for issuing the appointment order. Petitioner has successfully established that he has secured more marks than Shri Karode. Resultantly, in the peculiar facts of this case, I deem it proper to direct the respondents to issue the appointment order in favour of the petitioner for the post of Forest Guard from the date Shri Premlal Karode was appointed in service. Selection and appointment of Shri Karode, for the reasons stated above, is set aside. Resultantly, in the peculiar facts of this case, I deem it proper to direct the respondents to issue the appointment order in favour of the petitioner for the post of Forest Guard from the date Shri Premlal Karode was appointed in service. Selection and appointment of Shri Karode, for the reasons stated above, is set aside. The appointment order in favour of petitioner be issued within thirty days from the date of production of copy of this order. However, it is made clear that petitioner will only get notional seniority and notional fixation of pay from the date appointment (the date when Shri Premlal Karode was appointed). However, from the date of joining, he will get regular pay as if he is working on notional basis from the date Shri Premlal Karode was appointed. 28. In the manner respondents have conducted selection, filed misleading return and deprived the petitioner, I deem it proper to impose Rs.50,000/- (Rs. Fifty Thousands) as cost on the respondents/department. The cost shall be paid to the petitioner within aforesaid time. It will be open for the department to recover the amount of said cost from the erring officials in accordance with law. 29. Petition is allowed.