JUDGMENT & ORDER : In this writ petition, the petitioner is questioning the legality of the select list dated 5-9-2007 and the consequential orders appointing the private respondents to the posts of Warder under the Jail Department, Government of Tripura. 2. The case of the petitioner is that in response to the advertisement dated 4-9-2006 published in the local daily, Sandan Patrika, he applied for the post of Warder (Jail) and was issued the Admit Card dated 19-9-2006 for recruitment examination of the posts of Warder. After the recruitment examination, the names of the selected candidates were published in the said select list, which did not find a place for the petitioner. By the order dated 2-11-2007, the Inspector General of Prison appointed 44 persons including the private respondents. According to the petitioner, he received an information to the effect that those appointments were made contrary to the criteria laid down in the Recruitment Rules of Warder (“the Rules” for short) published in the Notification dated 10-9-1982. As per the Rules, the candidates would be measured physically first and thereafter those who get through the required physical fitness would be required to go through endurance test. The Rules further provides that those who are qualified in the endurance test would undergo a simple written examination and that the qualified candidates in the written test would be called for viva voce; there is no minimum qualifying mark in the viva voce test. The appointment is to be made from the merit list. 3. According to the petitioner, his height is about 173 cms, which is more than the required height of 167.64 cms. for general candidates. The petitioner got qualified in both the endurance test as well as the written examination. He was then called for the viva voce in which he appeared and was quite confident of being selected and eventually appointed. It is the specific case of the petitioner that even those candidates who were physically disqualified for having height less than the minimum height prescribed by the Rules found a place in the impugned Select List. Two other candidates such as one Alok Debnath and Jayanta Kumar Kar are also aggrieved by the irregularities committed by the respondent authorities in the selection as well as appointment to the posts of Warders. Two other candidates such as one Alok Debnath and Jayanta Kumar Kar are also aggrieved by the irregularities committed by the respondent authorities in the selection as well as appointment to the posts of Warders. For example, as per the enquiry report submitted by the Superintendent, Central Jail to the Inspector General of Prisons, Tripura on the basis of the complaint lodged by the said Alok Debnath, one Shankar Deb, who was of the height of 161 cms., was selected and appointed. In the said enquiry report, it was clearly stated that the Superintendent of Jail had taken measurement of the said Shankar Deb in the presence of Shri Harekrishna Biswas, Head Clerk, Shri Tapan Kumar Chakraborty, L.D. Clerk and Shri Subash Kar, Warder. On the appeal preferred by the said Jayanta Kumar Kar, the Appellate Authority under Right to Information Act, received information from the State Public Information Officer that he could not supply the physical measurement of height and chest of the selected general candidates as the same were not recorded by the Board constituted for taking physical measurement and endurance test of the candidates. This was the statement made by the said State Public information Officer in the judgment dated 9-4-2008 in Appeal No. 2/2007-08. The writ petition filed by the said Alok Debnath and Jayanta Kumar Kar being W.P.(C) No.81/08 and WP(C) No.146/08 challenging the same recruitment process are still pending before this Court. 4. It is also the case of the petitioner that as per the Rules, the maximum mark for viva voce is 50 with no minimum qualifying standard, which confers arbitrary and untrammelled powers to the respondent authorities to manipulate makes at their own sweet will. The writ petition was subsequently amended by the petitioner by incorporating additional pleas. According to the petitioner, during the pendency of the writ petition, he received various information on 18-5-2011 in 11 sheets from the State Public Information Officer, Prisons Directorate, Agartala under the RTI Act that the private respondent No.20 had secured 33 marks in total for the purpose of his selection for the post of Warder (Jail). According to the petitioner, during the pendency of the writ petition, he received various information on 18-5-2011 in 11 sheets from the State Public Information Officer, Prisons Directorate, Agartala under the RTI Act that the private respondent No.20 had secured 33 marks in total for the purpose of his selection for the post of Warder (Jail). He was further provided with the information that 70% of the posts were selected on the basis of merit whereas the remaining 30% were selected on need based and that the respondent No.20 was shown to be selected in the quota for need based i.e. BPL quota though he belongs to APL category vide the information furnished by SPIO, Prisons Directorate, Agartala. On further enquiry, he also came to learn from the State Public Information Officer in the Office of the Sub-Divisional Magistrate, Dharmanagar that the ration card of the family of the respondent No.20 was numbered 274 under Sripur Fair Price Shop indicating therein that the same belong to APL category ration card. It is the case of the petitioner that he had secured 47 marks in total whereas the respondent No.20 secured only 33 marks in total and that the total marks were calculated by adding marks obtained in written examination and oral test. It thus turns out that the petitioner belongs to APL category and the respondent No.20 also belongs to APL category, and not BPL category. The respondent No.20 could not have been made on need based, for which 30% of the posts advertised were reserved. As the respondent No.20 does not belong to BPL category and scored much less mark as APL category candidate and cannot be appointed on need based, the petitioner is entitled to be selected and appointed in preference to the respondent No.20 in order of merit. He, therefore, contends that the selection and appointment of the respondent No.20 is contrary to the Rules, arbitrary and discriminatory and is liable to be quashed. 5. The State-respondents and most of the private respondents resisted the writ petition and filed their respective counter-affidavits. Interestingly, the State-respondents did not file counter-affidavit to the amended writ petition of the petitioner. He, therefore, contends that the selection and appointment of the respondent No.20 is contrary to the Rules, arbitrary and discriminatory and is liable to be quashed. 5. The State-respondents and most of the private respondents resisted the writ petition and filed their respective counter-affidavits. Interestingly, the State-respondents did not file counter-affidavit to the amended writ petition of the petitioner. In their original counter-affidavit, the pleas taken by the respondent authorities are that the petitioner, having participated in the recruitment process, cannot now challenge the validity of the selection process after could not get the selection; he is barred by the principles of acquiescence/estoppel by conduct/waiver. The selection was made in accordance with the procedure laid down by the Rules and on the basis of the aggregate marks obtained in both the viva voce and written examination. 50% marks were allocated for written examination while another 50% marks were allocated for viva voce. How much mark is to be allocated for the written examination and viva voce is purely a policy matter lying within the domain of the respondent authorities. In the case at hand, 20 out of 50 marks was the pass mark for the written examination, and those who secured 20 marks were given the opportunity to appear in the vivo voce. The said Shankar Deb was erroneously allowed to participate in the written examination and when this was so detected, his candidature was cancelled. No unqualified candidates were given appointment, and no wrong was done to the petitioner or other unselected candidates. Candidates were given yellow cards after physical measurement to sit for endurance test and written examination. In fact, no measurement records were maintained at the material time since those who crossed the minimum height and weight were put to endurance test. The answering respondent authorities deny that candidates who did not pass the measurement test were selected; no prejudice was caused to the petitioner as also he passed the measurement test. No illegality was committed by the respondent authorities in the impugned selection or appointment process. The writ petition also suffers from delay and is not maintainable. 6. As the learned senior counsel for the petitioner has confined his submissions on the legality of the selection of the respondent No.20 in the course of hearing, let me refer to the counter affidavit filed by the respondent No.20. The writ petition also suffers from delay and is not maintainable. 6. As the learned senior counsel for the petitioner has confined his submissions on the legality of the selection of the respondent No.20 in the course of hearing, let me refer to the counter affidavit filed by the respondent No.20. It is the case of the respondent No.20 that he never applied for the advertised post against the quota for BPL category; he had clearly indicated in the application form that he was an APL category candidate. He successfully cleared all the tests including viva voce and had the height of 170 cms against the prescribed qualifying height of 167.64 cms. When the result of the selection test was published, his name found a place at Serial No.18 in the select list; nowhere in the selection list was mentioned as to whose selection was made under what category. He had no knowledge and was not even supposed to know about his selection under BPL category. If his name was wrongly enlisted under the BPL category and without his knowledge, he cannot be faulted for that; he cannot be made to suffer due to the act of omission or commission on the part of the respondent authorities. He has already rendered dedicated service to the respondent authorities for the last almost ten years and is now aged about 34 years old. The petitioner, having participated in the impugned selection process, cannot now challenge the legality of the selection and appointment of the respondent No.20. He, therefore, submits that the writ petition has no merit and is, therefore, liable to be dismissed with costs. 7. Having heard Mr. A.K. Bhowmik, the learned counsel for the petitioner, Mr. B.C. Das, the learned Advocate General, Tripura, Mr. P.R. Barman, the learned counsel for the respondent Nos.3, 4, 5, 7, 14, 15, 18, 24, 25, 26, 33 and 45, Mr. R. Saha, the learned counsel for the respondent Nos.6, 8, 10, 17, 19, 22, 23, 27, 28, 30, 32, 35, 37, 38, 39, 40, 41, 42, 43, 44 and 46, Mr. S. Lodh, the learned counsel for the respondent Nos.12 and 16 and Ms. R. Purkayastha, the learned counsel for the respondent No.20, the first point for consideration is whether there is an inordinate delay in filing the writ petition. S. Lodh, the learned counsel for the respondent Nos.12 and 16 and Ms. R. Purkayastha, the learned counsel for the respondent No.20, the first point for consideration is whether there is an inordinate delay in filing the writ petition. In my opinion, this issue need not detain us inasmuch as a delay of hardly ten months cannot possibly be considered as inordinate and fatal to the writ petition. The next point for consideration is whether the respondent No.20 was appointed against the post of Warder reserved for BPL category and, if so, what is the effect in the light of the decision of the Division Bench of this Court in Tanmoy Nath and Ors. V. State of Tripura and Ors., (2014) 2 TLR 731, which quashed the Revised Employment Policy of the State-respondents contained in the Memorandum dated 30-8-2003, among others, reserving 30% of the vacancies on the need basis. For better appreciation of this controversy, the plea made by the petitioner in this behalf is found at paras 12-A and 12-B of the amended writ petition may be reproduced below: “12-A. That during pendency of the writ petition, the petitioner has received various information on 18-05-2011 in 11 sheets from the State Public Information Officer, Prisons Directorate, Agartala, Tripura under the provisions of the Right to Information Act, 2005 including information that the private respondent No.20 had secured 33 marks in total for the purpose of his selection for the post of Warder (Jail). On subsequent inquiory, the petitioner was furnished with records of select list in order of merit in respect of 70% recruitment and select list on the basis of need in respect of 30% recruitment showing therein the selection of the respondent No.20 in the quota of and on consideration of need i.e. his purported BPL category as furnished by the SPIO, Prisons Directorate, Agartala, Tripura authenticated on 22-7-2011. On further query, your Petitioner has received further information from the State Public Information Officer in the Office of the Sub-Divisional Magistrate, Dharmanagar, North Tripura dated 22-11-2011 that the ration card of the family of the respondent No. 20 is numbered 274 under Sripur Fair Price Shop and it was an APL category ration card. On further query, your Petitioner has received further information from the State Public Information Officer in the Office of the Sub-Divisional Magistrate, Dharmanagar, North Tripura dated 22-11-2011 that the ration card of the family of the respondent No. 20 is numbered 274 under Sripur Fair Price Shop and it was an APL category ration card. Your petitioner annexes hereto a copy of the said 11 information sheets authenticated by SPIO, Prisons Directorate, Agartala dated 18-05-2011, copies of 8 information sheets in respect of selection particulars issued by the SPIO, Prisons Directorate dated 22-07-2011 and the information dated 22-11-2011 regarding ration card of the respondent No.20 issued by the SPIO in the Office of the Sub-Divisional Magistrate, Dharmanagar, North Tripura and those are marked Annexures-7, 8 & 9 respectively. 12-B. That it would appear from the aforesaid annexure-7 that your petitioner had secured 47 marks in total whereas the respondent No.20 secured 33 marks in total and that the total marks were calculated by adding the marks obtained in the written examination and oral test. The petitioner belongs to APL category and it now appears from Annexure-9 above that the respondent No.20 also belongs to APL category, by practicing fraud and on the basis of falsehood, the respondent No.20 was selected and appointed in preference to the petitioner on consideration that the respondent No.20 belong to BPL category and would fall within 30% posts earmarked for needy persons. Your petitioner states that according to the Employment policy of the State Government 30% of the posts were reserved for candidates belonging to needy persons and the said Employment Policy provides that the candidates belonging to BPL families would be treated to be needy. It is, therefore, evident that the respondent No.20 not being a needy candidate within the meaning of the Employment Policy, the State-respondents allowed him to supersede the petitioner in the matter of selection and appointment to the post of Warder. The petitioner was entitled to be selected and appointed in preference to the respondent No.20 inasmuch as both belonging to APL category, the petitioner was admittedly above the respondent No.20 in order of merit. The selection and appointment of the respondent No.20 in particular is liable to be quashed and the petitioner is entitled to be selected and appointed in his place.” 8. The selection and appointment of the respondent No.20 in particular is liable to be quashed and the petitioner is entitled to be selected and appointed in his place.” 8. As already noticed earlier, the respondent authorities did not file any affidavit denying or disputing the aforesaid averments of the petitioner to the effect that both the respondent No.20 and himself belong to APL category and not BPL category; that the respondent No.20 is not entitled to be selected and appointed against the quota of 30% reserved for the needy persons such as those belonging to BPL category and that the petitioner, who obtained 47 marks in the tests, could not be overlooked in favour of the respondent No.20 who secured a total of 33 marks in all the tests for selection and appointment to the post of Warder. In the absence of denial by the respondent authorities, these allegations of the petitioner must be deemed to be admitted. However, which is more important, the appointment of the respondent under the quota of 30% reserved for the needy in terms of the Revised Employment Policy cannot stand once that policy has been struck down by this Court in Tanmoy Nath (supra). At this stage, it will be beneficial to quote paras 78 and 79 of the Reports, which read thus: “78. Faced with this situation, learned Advocate General and Sri B.R. Bhattacharjee submitted that those citizens who are below poverty line form a class of citizens who are so poor that they can be presumed to be socially backward also. 79. We are afraid that such contention cannot be accepted in view of the law laid down by the Apex Court. The state in its reply has given no justification except saying that the idea was to help the poorest of the poor. We are not going into the question as to whether such idea is good or bad. We are only to see whether such reservation is permissible under the Constitution or not. As the Constitution stands today and in view of the law laid down in Indra Sawhney’s case, there can be no reservation on economic basis and, as such, we have no hesitation in holding that the 30% reservation on need basis is totally unconstitutional and is accordingly set aside.” 9. As the Constitution stands today and in view of the law laid down in Indra Sawhney’s case, there can be no reservation on economic basis and, as such, we have no hesitation in holding that the 30% reservation on need basis is totally unconstitutional and is accordingly set aside.” 9. Thus, the selection and appointment of the respondent No.20 against the quota of 30% reserved for the needy under the Revised Reservation Policy of the State Government cannot stand and is liable to be quashed. It may be noted that the petitioner is the only person who challenged the impugned selection and appointment. Once the appointment of the respondent No.20 against the quota of 30% reserved for need basis is found to be unsustainable in law, I do not see any legal impediment in considering the appointment of the petitioner against the resultant vacancy. In any case, by this time, many vacancies in the post of Warder must have arisen to accommodate the petitioner. It is, however, vehemently submitted by the learned Advocate General that the petitioner, having participated in the selection process, cannot now turn around and challenge the selection. He also contends that the past illegal actions, without admitting that there was any, cannot be used as a precedent for claiming the same relief. To fortify his submissions, he takes me to the following decisions of the Apex Court: Manish Kumari Shahi v. State of Bihar and others, (2010) 12 SCC 576 ; State of Kerala and others v. K. Prasad and another, (2007) 7 SCC 140 ; Union of India and another v. International Trading Co. and another, (2003) 5 SCC 437 ; Chandra Prakash Tiwari and others v. Shakuntala Shukla and others, (2002) 6 SCC 127 and Madan Lal and others v. State of J & K and others (1995) 3 SCC 486 . 10. I have carefully gone through the judgments cited by the learned Advocate General and have no quarrel with the proposition of law laid down therein. 10. I have carefully gone through the judgments cited by the learned Advocate General and have no quarrel with the proposition of law laid down therein. However, in the instant case, these decisions will not come in the way of striking down the impugned selection and appointment of the respondent No.2 for the simple reason that the very basis of his appointment i.e. the Revised Recruitment Policy in so far as need based appointment is concerned, has been wiped out, and the appointment of the respondent No.20 has thus no legs to stand upon. To uphold his appointment will amount to violating the decision of this Court in Tanmoy Nath case (supra) and perpetuate illegality. As for the argument of negative equality advanced by the learned Advocate General, I am of the view that the petitioner in this case is not claiming negative equality. Having struck down the appointment of the respondent No.20, the next question to be determined is whether the petitioner is entitled to appointment against the resultant vacancy being caused by the striking down of the appointment of the respondent No. 20. It is not the case of the petitioner, nor can it be, that he secured the highest marks among all the candidates with the exception of the remaining private respondents in the impugned recruitment process. There could be many other candidates who could be found more meritorious than the petitioner in the recruitment process. Therefore, to direct the State-respondents to consider the case of the petitioner for the appointment against the resultant vacancy may not do justice to similarly situated persons even though they may not have challenged the appointment of the respondent No.20. 11. The result of the foregoing discussion is that this writ petition is partly allowed. The selection and appointment of the respondent No.20 to the post of Warder is hereby quashed. The State-respondents are directed to re-start the recruitment process for filling up the resultant vacancy by allowing the petitioner and the respondent No.20 to participate therein by relaxing the age bar, if there be any, but by limiting the candidates to those who applied for and were found eligible in the impugned recruitment process and complete the recruitment process in accordance with law without any delay. The parties are, however, directed to bear their respective costs.