JUDGMENT : 1. With the consent of the parties, hearing of this matter has been done through video conferencing. 2. The instant intra-court appeal has been filed against the order/judgment dated 03.09.2019 passed by the learned Single Judge in W.P.(S) No.5528 of 2013, whereby and whereunder the learned Single Judge has declined to interfere with by passing any positive direction upon the respondents to consider the case of the appellant for appointment to the post of Civil Judge, Junior Division (Munsif), pursuant to Advertisement No.13/2008 published by the respondent no.2. 3. The brief facts of the case which requires to be enumerated, reads hereunder as: The respondent no.2 had come out with an advertisement being Advertisement No.13/2008 for appointment to the post of Civil Judge, Junior Division (Munsif). The appellant being eligible in all respect, applied for his appointment to the post of Civil Judge, Junior Division (Munsif), in pursuant to the said advertisement. The appellant was found eligible to participate in the selection process and as such, Admit Card was issued in the preliminary examination in which he appeared and found qualified, subsequent thereto, he appeared in the mains examination in which also he was found qualified and as such, he was called in the viva voce (interview). The appellant appeared in the interview which held on 16.07.2010 in the office of the Jharkhand Public Service Commission, Ranchi but when the result was published, the name of the appellant was not found in the final selection list. The petitioner not being qualified, made an application under the Right to Information Act to know about his marks and accordingly, due information was furnished vide letter dated 25.06.2013 from which the appellant came to know that he has obtained 82 marks in the mains and 8 marks in interview i.e. total 90 marks. The appellant also came to know that the final cut off marks to the category to which petitioner belongs is 90 marks (unreserved). The grievance of the writ petitioner-appellant is that, although he obtained total 90 marks but due to less marks secured in the interview i.e. 8 marks he has been found to be disqualified. The appellant also came to know that the final cut off marks to the category to which petitioner belongs is 90 marks (unreserved). The grievance of the writ petitioner-appellant is that, although he obtained total 90 marks but due to less marks secured in the interview i.e. 8 marks he has been found to be disqualified. According to the writ petitioner-appellant, the Jharkhand Public Service Commission is not empowered to fix more than 12.2% of the total marks for the interview but the respondents had fixed maximum marks in the interview as 20 and 10 marks as qualifying, which was arbitrary, illegal and unconstitutional and hence, the writ petitioner-appellant approached the writ Court by invoking power conferred under Article 226 of the Constitution of India which has been dismissed, on the ground that the marks of the mains as also the interview have been reflected in the advertisement and the writ petitioner-appellant knowing about the same had participated in the process of selection and when he became unsuccessful, he cannot turn around and challenge the decision of the authority in fixing the qualifying marks in the interview. 4. Mr. Manoj Tandon, learned counsel for the appellant while questioning the judgment passed by the learned Single Judge, has submitted that the law laid down about fixing the marks in the interview is well settled which cannot be more than 12.2% of the total marks earmarked for interview but without considering the same out of 20 marks earmarked for the interview 10 marks has been said to be qualifying marks but the same has not been appreciated by the learned Single Judge and hence the impugned order suffers from infirmity and therefore, the same may be quashed. 5. Per contra, Mr. Sanjay Piprawall, learned counsel for the Jharkhand Public Service Commission as also Mr. Mukesh Kumar Sinha, learned counsel for the State of Jharkhand have submitted that the learned Single Judge has committed no error in passing the impugned judgment on the ground that the recruitment process has been initiated and concluded specially on the basis of recruitment rules. It has further been submitted that in the advertisement marks for written and interview were provided. As per the Clause 7 and 9 qualifying marks for written examination as also for interview were mentioned. It has further been submitted that in the advertisement marks for written and interview were provided. As per the Clause 7 and 9 qualifying marks for written examination as also for interview were mentioned. The writ petitioner-appellant, after knowing the details of the marks vis a vis qualifying marks category wise, had participated in the selection process and when found to be unsuccessful under the unreserved category having less marks than the last selected candidate, he had approached the writ Court questioning the fixation of qualifying marks in the interview which is not available to the writ petitioner as per the position of law that if any condition is reflected in the advertisement and if the candidate has participated by going through the conditions of the advertisement and if found to be unsuccessful he cannot be allowed to challenge the condition of the advertisement and considering the aforesaid legal position, the learned Single Judge has declined to pass any positive direction in favour of the writ petitioner, therefore, there is no infirmity in the impugned order, hence the same may not be interfered with. 6. This Court has heard learned counsel for the parties and appreciated their arguments as also gone across the finding recorded by the learned Single Judge. The fact which is not in dispute is that State of Jharkhand has come out with a rule known as Jharkhand Judicial Service (Recruitment) Rules 2004 (hereafter referred to as The Rule 2004.) The respondent no.2 has issued an advertisement being Advertisement No.13 of 2008 inviting applications for eligible candidate to participate in the selection process for appointment as Civil Judge, Junior Division (Munsif) in order to fill up 65 posts, out of which 33 posts have been earmarked as unreserved category. It is evident from the advertisement as under Clause-7 and 9 respectively, the minimum qualifying marks for the written examination category wise as also in the interview, have been provided which reads hereunder as: “7. 1.Unreserved Category - 45 marks out of 100 marks. 2. OBC Category - 40 marks out of 100 marks. 3. ST/SC Category - 35 marks out of 100 marks 9. 1.Unreserved Category - 10 marks out of 20 marks. 2. OBC Category - 08 marks out of 20 marks. 3. ST/SC Category - 06 marks out of 20 marks” 7. 1.Unreserved Category - 45 marks out of 100 marks. 2. OBC Category - 40 marks out of 100 marks. 3. ST/SC Category - 35 marks out of 100 marks 9. 1.Unreserved Category - 10 marks out of 20 marks. 2. OBC Category - 08 marks out of 20 marks. 3. ST/SC Category - 06 marks out of 20 marks” 7. The writ petitioner-appellant participated in the process of selection and finding him eligible to participate in the process of selection, the Admit Card was issued to him to participate in the preliminary examination in which the writ petitioner-appellant appeared and found to be successful. The writ petitioner-appellant was asked to participate in the written examination in which he appeared and got 82 marks in the mains examination. The appellant was found successful and was asked to participate in the interview in which he participated and obtained 8 marks out of 20 marks. It is evident from the provision of rule as also the terms and conditions of the advertisement as provided under Clause 9 showing therein total 20 marks in the interview for the unreserved category, out of which 10 marks have been fixed as qualifying marks but the writ petitioner-appellant since has got 8 marks and he has been disqualified in the interview and finally not found in the list of selected candidate, the petitioner approached to this Court invoking extraordinary jurisdiction conferred under Article 226 of the Constitution of India, questioning the qualifying marks in the interview which has been fixed as 10 marks out of 20 marks, saying it arbitrary and beyond the permissible limit of 12.2% of the total marks of interview since according to the writ petitioner-appellant, the Jharkhand Public Service Commission is not empowered to fix more than 12.2% of the total marks for the interview. It is not in dispute that the recruitment process is to be governed on the basis of recruitment rule, thus, advertisement is to be published on the basis of recruitment rule. It is the admitted case herein that in the advertisement in question, the category wise marks have been provided for mains as well as interview itself as referred above. It is not in dispute that the recruitment process is to be governed on the basis of recruitment rule, thus, advertisement is to be published on the basis of recruitment rule. It is the admitted case herein that in the advertisement in question, the category wise marks have been provided for mains as well as interview itself as referred above. The Jharkhand Public Service Commission on being requisitioned by the Personnel, Administrative Reforms and Rajbhasha Department, had come out with the advertisement in question laying down the criteria of selection as under Clause 7 showing therein the total marks category wise for written examination along with the qualifying marks for interview under Clause-9. The contention which has been agitated by the writ petitioner that the Jharkhand Public Service Commission is not empowered to lay down the qualifying marks in interview more than 12.2% which is not correct ground of the writ petitioner-appellant. It is for the reason that under the Rule 2004 it has been provided under Rule 14 that the Commission in consultation with the High Court may fix the minimum qualifying marks for the Preliminary Written Entrance Test and also the minimum qualifying marks for the Main Examination. Based on such minimum qualifying marks, the Commission may decide to call for such number of candidates in order of merit in the main written examination, depending upon the number of vacancies available as it may appropriately decide. Further, it has been provided under Rule 16 of the Rule 2004 which reads here under: “16.(a) The viva voce test shall be conducted by the Board consisting of three members, two of whom shall be sitting judges of the High Court nominated by the Chief Justice and the Chairman of the commission or any one member of the commission as may be nominated by the Chairman. (b) The viva voce test shall be conducted by the Board in such a manner so as to assess the merit, suitability and fitness of the candidate; shall be as objective as is possible and shall endeavor to elicit such answer from the candidate as would convey the candidate’s aptitude towards judicial service; his understanding of law; sharpness of mind; his intellect, knowledge and potential for becoming a good Judicial Officer. In this regard the decision of the majority member of the Board shall be final. In this regard the decision of the majority member of the Board shall be final. (c) All members of the Board shall be assigned equal marks for assessing the fitness and suitability of the candidate. At the end of the viva voce test each day the Board shall not disperse unless it has recorded the marks allocated to each candidate in that day’s viva voce test in the manner as prescribed under the Regulation and in a sealed cover hand it over to the Official of the commission as may be nominated for this purpose by the chairman. Each such sealed cover shall be in a turn deposited by such nominated official of the commission in safe custody in such manner as may be prescribed by the Chairman. (d) Any candidate who obtains less than qualifying marks as may be fixed by the Board for Viva Voce Test shall be ineligible to be appointed, irrespective of the marks obtained by him in the written examination.” It is evident from the provision of Rule 16 (a) as referred above that the viva voce test shall be considered by the Board consisting of three members, two of whom shall be sitting judges of the High Court nominated by the Chief Justice and the Chairman of the commission or any one member of the commission as may be nominated by the Chairman. Sub rule (b) of Rule 16 thereof, provides that the Viva voce test shall be conducted by the Board in such a manner so as to assess the merit, suitability and fitness of the candidate; shall be as objective as is possible and shall endeavor to elicit such answer from the candidate as would convey the candidate’s aptitude towards judicial service; his understanding of law; sharpness of mind; his intellect, knowledge and potential for becoming a good Judicial Officer. Sub rule (c) of Rule 16 thereof provides that all members of the Board shall be assigned equal marks for assessing the fitness and suitability of the candidate. At the end of the viva voce test each day the Board shall not disperse unless it has recorded the marks allocated to each candidate in that day’s viva voce test in the manner as prescribed under the Regulation and in a sealed cover hand it over to the Official of the commission as may be nominated for this purpose by the chairman. Sub rule (d) of Rule 16 provides that any candidate who obtains less than qualifying marks as may be fixed by the Board for Viva Voce Test shall be ineligible to be appointed, irrespective of the marks obtained by him in the written examination. Thus, it is evident that it is the Board herein the Jharkhand Public Service Commission, has been conferred with power under the statute to fix the qualifying marks in the viva voce test and in authority of such provision the Jharkhand Public Service Commission in order to achieve the object and intent of the Rule 2004 by way of making selection of a candidate having the suitability as reflected under sub rule (b) of Rule 16 as referred above in pursuance to the said power, the advertisement has been issued by the Jharkhand Public Service Commission earmarking the qualifying marks vis a vis the viva voce test. Admittedly, the appellant had participated in the written examination in which he had been found to be qualified but found to be unsuccessful in the interview since he could not get qualifying marks out of 20 rather he obtained only 8 marks. The question which is here to be answered as to whether after participating in the selection process of knowing about the terms and conditions of the advertisement and on being declared to be unsuccessful the writ petitioner can be allowed to challenge the terms and conditions of the advertisement. 8. The aforesaid issue has already been dealt with by the Hon’ble Apex Court in the case of Omprakash Shukla Vs. Akhilesh Kumar Shukla and Ors. reported in (1986) (supp) SCC 285 had held that if a candidate has appeared in the examination without protest, he cannot invoke the jurisdiction of the High Court conferred under Article 226 realizing that he would not succeed in the examination. Further reference in this regard is made to the judgment rendered by the Hon’ble Supreme Court in the case of Marripati Nagaraja and Ors. Vs. Govt of Andhra Pradesh and Ors. reported in (2007) 11 SCC 522 wherein it has been held that if the appellants had appeared at the examination without any demur, they did not question the validity of fixing of the said date before the appropriate authority, therefore, they were estopped and precluded from questioning the selection process. Vs. Govt of Andhra Pradesh and Ors. reported in (2007) 11 SCC 522 wherein it has been held that if the appellants had appeared at the examination without any demur, they did not question the validity of fixing of the said date before the appropriate authority, therefore, they were estopped and precluded from questioning the selection process. In the judgment rendered by the Apex Court in the case of Vijendra Kumar Verma vs. Public Service Commission, Uttarakhand and Ors. reported in (2011) 1 SCC 150 at paragraph 24 it has been held that "....All the candidates knew the requirements of the selection process and were fully aware that 20 must possess the basis knowledge of computer operation meaning thereby Microsoft Operating System and Microsoft Office Operation. Knowing the said criteria, the appellants also appeared in the interview, faced the questions from the expert of computer application and has taken a chance and opportunity therein without any protest at any stage and now they cannot turn back to state that the aforesaid procedure adopted was wrong and without jurisdiction." This Court has also found from the impugned order passed by the learned Single Judge wherein reliance has been placed by the Hon’ble Apex Court in the case of Union of India & Others vs. S. Vinodh Kumar & Others reported in (2007) 8 SCC 100 . 9. This Court, thus, on the basis of settled position of law as per the issue decided by the Hon’ble Apex Court hereinabove, is of the view that in the facts of the case in hand that as per the recruitment rule of the year 2004, the power has been conferred on the Board herein, the Jharkhand Public Service Commission to assess the candidature of one or other candidate as to find out the suitable candidate as per the details referred in the provision of Rule 16(b) of the Rule 2004 by conferring power to allocate marks in the process of selection and in terms of the said provision the Jharkhand Public Service Commission has come out with an advertisement laying down as under Clause 7 and 9 thereof, there is description of the total marks with the qualifying marks in the written as well as in the interview. The writ petitioner has participated in the process of selection and after going across the terms and conditions of the advertisement in which although he has been declared to be qualified in the written examination but have been found to be disqualified in the interview and when he has been declared to be unsuccessful he has questioned the terms of advertisement to the effect of fixing the qualifying marks in the interview of the unreserved category, marking 10 marks out of 20 as qualifying marks but as has been laid down by the Hon’ble Apex Court in the judgment referred hereinabove that once a candidate has been declared to be unsuccessful, he cannot be allowed to question the terms of advertisement. 10. Mr. Manoj Tandon, learned counsel for the appellant, has submitted that the instant appeal may be posted after disposal of the matter pending before the Hon’ble Apex Court in the case of Tej Prakash Pathak & Ors. vs. Rajsthan High Court and Ors. reported in (2013) 4 SCC 540 on the ground that according to him, the rules of game in the present facts and circumstances of the case, has been changed in the midst of the recruitment process. Considering the aforesaid argument, we have gone across the judgment rendered in the context, we have found that initially the Hon’ble Apex Court in the case of K. Manjusree vs. State of Andhra Pradesh & Another reported in (2008) 3 SCC 512 wherein it has been laid down that once the recruitment process begins, the rule cannot be changed. Subsequently, a similar matter came up before the Hon’ble Apex Court in the case of Tej Prakash Pathak & Ors. vs. Rajsthan High Court and Ors. reported in (2013) 4 SCC 540 wherein the correctness of the judgment laid down by the Hon’ble Apex Court in the case of K. Manjusree vs. State of Andhra Pradesh & Another (supra), has been doubted, and as such, reference to a larger Bench for authoritative pronouncement has been made. Further, similar issue was heard by a three Judges Bench in the case of Salam Samarjeet Singh vs. High Court of Manipur at Imphal & another reported in (2016) 10 SCC 484 which was heard by a three Judges Bench in view of the difference of opinion and it has also since been posted along with the case of Tej Prakash Pathak & Ors. (supra) vide order dated 10.08.2017 passed in the case of Salam Samarjeet Singh vs. High Court of Manipur at Imphal & another, W.P.(C) No.294 of 2015, wherein it was directed “we have been apprised at the Bar by the learned Senior Counsel appearing for both the sides that similar question of law has been referred to the Constitution Bench in Tej Prakash Pathak & Ors. vs. Rajsthan High Court and Ors., (2013) 4 SCC 540 . In view of the above, let this matter be tagged with the same.” The contention raised by Mr. Tandon, learned counsel for the appellant about applicability of the judgment with respect to the issue as to whether the rules of game can be changed in the midst of recruitment process, is not attracted in the facts and circumstances of the instant case since it is not the case of the writ petitioner that any rules of game has been changed after initiation of the recruitment process rather the case of the writ petitioner is that the qualifying marks fixed in the interview as 10 out of 20 marks, is arbitrary since it would not have exceeded to 12.2% of the total marks earmarked for the interview, therefore, the writ petitioner is questioning the allocation of qualifying marks which was already available in the advertisement as under Clause No.7 and 9 as referred above. Therefore, the argument as has been advanced by the learned counsel for the appellant to post this case after the disposal of the case of Tej Prakash Pathak & Ors. (supra), is unfounded. It has been informed to this Court that after the appointment in pursuant to the Advertisement No.13/2008 several subsequent advertisements have also been issued and the recruitment process has also been completed. 11. This Court, therefore, in the facts and circumstances of the case and on the basis of detailed discussion made hereinabove, is of the view that learned Single Judge has committed no infirmity in rejecting the claim of the writ petitioner-appellant, considering the fact that the petitioner after accepting the terms and conditions of the advertisement has participated in the process of selection and once he has been declared to be unsuccessful he cannot be allowed to turn around and question the terms of advertisement, therefore, there is no reason to interfere with the impugned order. 12. Accordingly, the instant appeal fails and is dismissed.