JUDGMENT : The State of Uttarakhand while exercising it’s powers under the proviso to Article 309 of the Constitution of India, had made an amendment in Uttarakhand Government (Primary Education) Teachers’ (Fifth Amendment) Service Rules, 2018. By virtue of the amendment, which was carried, Rule was amended and the amendment thus permitted to be carried by Modification dated 14.12.2018 reads as under :- ^^fu;e 15 7- ewy fu;ekoyh esa uhps LrEHk&1 esa fn;s x;s orZeku fu;e 15 ds mifu;e ¼3½ ds LFkku ij LrEHk&2 esa fn;k x;k mifu;e j[k fn;k tk;sxk vFkkZr~& LrEHk&1 LrEHk&2 ¼3½ mifu;e ¼1½ ds v/khu rS;kj dh xbZ lwph esa vH;FkhZ ds uke muds }kjk ch0Vh0lh0 vFkok Mh0,y0,M0 Áf'k{k.k Áek.k i= ijh{kk esa ÁkIrkadks ds Áfr'kr dk 60 Áfr'kr rFkk Vh0bZ0Vh0&1 ijh{kk esa ÁkIr ÁkIrkdkas ds Áfr'kr dk 40 Áfr'kr ds ;ksx ds vojksgh Øe esa j[ks tk;saxsA ¼3½ mifu;e ¼1½ ds v/khu rS;kj dh xbZ lwph esa vH;FkhZ ds uke muds }kjk mRrjk[k.M v/;kid ik=rk ijh{kk&1@dsUnzh; v/;kid ik=rk ijh{kk&1 esa ÁkIr ÁkIrkadksa dh Js"Brk ds vojksgh Øe esa j[ksa tk;saxsa( ijUrq ;g vkSj fd nks ;k nks vf/kd vH;fFkZ;ksa dh Js"Brk lwph esa vad leku gksus dh fLFkfr esa vf/kd vk;q okys vH;fFkZ;ksa dk uke lwph esa Åij j[kk tk;saxkA ;fn mDr esa Hkh nks ;k nks ls vf/kd vH;fFkZ;ksa dh tUefrfFk leku gks rks o.kZekyk ¼vaxszth½ ds Øe esa lwph esa uke j[kk tk;sxkA 15¼[k½ ewy fu;ekoyh esa fu;e 15¼5½ ds i’pkr mifu;e ¼6½ fuEuor vUr% LFkkfir dj fn;k tk;sxk vFkkZr~& ¼6½ fu;ekoyh ds fu;e 9¼d½ ds vuqlkj ;ksX;rk/kkjh vH;FkhZ ls ÁkIr vkosnu i=ksa ij ÁFke ojh;rk f}o"khZ; Mh0,y0,M0@pkj o"khZ; ch0,y0,M0 Áf'kf{kr vH;fFkZ;ksa dks nh tk;sxhA Mh0,y0,M0 Áf'kf{kr vH;fFkZ;ksa dh vuqiyC/krk dh fLFkfr esa gh ch0,M0@f'k{kk 'kkL= ¼fo'ks"k f'k{kk½ Áf'kf{kr ;ksX;krk/kkjh vH;fFkZ;ksa ds vkosnu i= ij fopkj fd;k tk;sxk( ijUrq ;g fd ,sls f'k{kd tks iwoZ esa leku in ij dk;Zjr gS] ¼vFkkZr~ jkT;kUrxZr fdlh jktdh; ÁkFkfed fo|ky; esa lgk;d v/;kid ÁkFkfed ds in ij dk;Zjr½ os leku in ij iqu% vH;FkZu (Apply) gsrq vgZ ugha gksaxsA^^ 2. In fact the amendment, which was made enforceable law by a Gazette Notification of 14.12.2018 and as soon as it is notified the amendment falls to be within the public domain. In fact the amendment, which was made enforceable law by a Gazette Notification of 14.12.2018 and as soon as it is notified the amendment falls to be within the public domain. Hence, as a consequence of publication of Gazette Notification by the State, a person cannot take the liberty to contend that the amendment, thus made under Rule 15 providing for the classification of giving preferences to the appointment based on the qualifications held by the candidates, who have admittedly responded to the advertisement issued by the respondent on 20.11.2020, they cannot be permitted to plead that it was not within the knowledge of the petitioner or any such other candidate, who has responded to the advertisement on their own, which was issued by the State. In the case at hand, the respondent no.2 had issued a publication being an Advertisement No. Primary Education 2-357/vigyapti dated 2020–2021 dated 19.12.20. As a consequence of the issuance of the advertisement, the applications were invited from the probable eligible candidates under the terms of the advertisement, to be considered for recruitment as an Assistant Teacher (Primary School) as against the total number of vacancies, which were advertised for the respective Districts. 3. The petitioner contents that in pursuance to the advertisement which was published in relation to the different districts, where the posts were advertised, the petitioner had responded to the advertisement. After having participated in the counselling, which was conducted on 02.12.2021, the petitioner has preferred this writ petition praying for the following relief:- “I. Issue a writ, order or direction in the nature of mandamus directing the respondents to consider the case of the petitioners like D.Led. Diploma holder candidates for the appointment of Assistant Teacher, Primary (Elementary Education Class I to v) pursuant to the advertisement published in November 2020. II. Issue a writ, order or direction in the nature of the mandamus directing the respondents to keep 03 posts vacant of present selection process subject to the result of present writ petition. III. Issue a writ, order or direction in the nature of the mandamus directing the respondents to give the similar status and equality to the candidates bearing the qualification (D.Ed. Diploma) registered in the RCI holder certificate). IV. Issue any other or further writ, order or direction which this Hon’ble Court may deem fit and proper in the circumstances of the case. Diploma) registered in the RCI holder certificate). IV. Issue any other or further writ, order or direction which this Hon’ble Court may deem fit and proper in the circumstances of the case. V. To award the cost of the petition in favour of the petitioners.” 4. In fact a writ of mandamus which has been sought in the nature referred above, to consider the case of the petitioner to be in equivalence to the D.Led. Diploma holders, who are the aspirants to be considered for appointment, as Assistant Teacher, (Primary) and had prayed that D.Ed, the same be read as equal to the qualification of the D.Led, which is possessed by the petitioners. 5. The petitioner submits, that this classification which has been made by the respondents of giving preferences in the appointment of Assistant Teacher, (Primary School), is arbitrary and violative of Article 14 of the Constitution of India, because the ultimate effect of the said amendment of 2018, would be that the petitioners who had Diploma of D.Ed. would be deprived to be considered for being appointed in pursuance to the advertisement issued by the respondent for all times to come. It is not in dispute that the petitioners were applicants to the process of selection. It has further been informed by the Brief Holder that in the counselling process, which was resorted to on 02.12.2021, the petitioners candidature was considered, but the consideration of grant of appointment would be subject to the conditions, which has been provided under Clause 3 of the advertisement which goes in consonance to the amendment made in 2018 whereby classification in preferences based on the educational qualification, which are possessed by the candidate as it has been described. Clause 3 of the advertisement is extracted here under:- ^^5& ;ksX;rk/kkjh vH;fFkZ;ksa ls ÁkIr vkosnu i=ksa ij ÁFke ojh;rk f}o"khZ; Mh0,y0,M0@pkj o"khZ; ch0,y0,M0 Áf'f{kr vH;fFkZ;ksa dks nh tk;sxhA Mh0,y0,M0 Áf'kf{kr vH;fFkZ;ksa dh vuqiyC/krk dh fLFkfr esa gh ch0,M0@f'k{kk 'kkL= ¼fo'ks"k f'k{kk½ Áf'kf{kr ;ksX;rk/kkjh vH;fFkZ;ksa ds vkosnu i= ij fopkj fd;k tk;sxkA ijUrq ;g fd ,sls f'k{kd tks iwoZ esa leku in ij dk;Zjr gSa] ¼vFkkZr~ jkT;kUrxZr fdlh jktdh; ÁkFkfed fo|ky; esa lgk;d v/;kid ÁkFkfed ds in ij dk;Zjr½ os leku in ij iqu% vH;FkZu (Apply) gsrq vgZ ugh gksaxsA^^ 6. The contention of the petitioners, is that, in support of his relief sought for is that: i. It is discriminatory ii. The contention of the petitioners, is that, in support of his relief sought for is that: i. It is discriminatory ii. The amendment of 2018 was not in their knowledge. ii. He had sought a liberty to permit him to make the amendment in the petition by putting a challenge to the amended Rules of 2018. iv. That the third that amendment has already been put to challenge by other petitioners in a pending writ petition. 7. To answer the arguments which had been extended by the counsel for the petitioners in support of his relief sought in the writ petition, the contention of the petitioners are the amendment of 2018 is discriminatory, is not accepted by this Court for the reason being that:- a. That because the amendment itself was not made as a subject matter of the scrutiny or a challenge in the present writ petition and rightly so because it could not have been also too at the behest of the petitioners, when they have extended their candidature in pursuance to the advertisement of 20.11.2020. b. Particularly once the petitioners have voluntarily without any duress have extended their candidature based on the said advertisement under the normal parlance, it would be inferred that the petitioners had the knowledge of the notification dated 14.12.2018 of 2018 by virtue of which the amendment was made into the Rules and they had knowledge of the stipulations which were provided in the advertisement, as against which the petitioners have responded. 8. After having submitted and responded to the terms of the advertisement, the petitioners cannot be now permitted to revert back and put a challenge to the condition on the pretext that the classification of preferences given to, based on the educational qualification possessed by the probable candidates is arbitrary and particularly when Article 16 of the Constitution of India in itself provides an exception; Article 16 of the Constitution of India is not an absolute in nature and it confers enough power to the State to lay down the stipulations providing the prescribed qualification, while extending the offer of appointment to the candidates and it is always the choice of the employer to select the better qualified candidates according to their choice of the qualification as per rules, which has been prescribed under the Rules framed under the proviso to Article 309 of the Constitution of India. 9. 9. This argument of the learned counsel for the petitioners, as per the opinion of this Court attracting an argument of discrimination on the ground, that it would be having an effect of rendering the qualification possessed by the petitioners, as to be a redundant educational qualification possessed by the petitioners, as for all time to come they would be deprived to be considered for appointment, because of the preferences given under the amended provisions of 2018; for the purposes of appointment. This argument that the qualification possessed by the petitioners would be rendered redundant is yet again a notion, which is not accepted by this Court because under the terms of the advertisement or under the terms of the amended Rules as applicable, the petitioners had not been absolutely de-bared from participating in the process of selection, rather their applications were invited, to which they submitted and they have applied, they were considered for appointment and even they were included in the list, but the only restriction which the effect of amendment would be having is that the petitioners candidature would be called upon for appointment subject to the condition of the preferences provided under the amended Rules of 2018. 10. Under the service jurisprudence the processes of recruitment as against the public posts, which are advertised, it cannot be subjected to a judicial review, particularly by a candidate, who had already offered his candidature and had himself participated in the process of selection. As soon as, he or any candidate responds to an advertisement, participates in the process of selection, the principle of estoppel would automatically come into play and after having been determined as to be an unsuccessful candidate, he cannot thereafter pose a challenge to the recruitment process or the criteria describing the educational qualification, on a pretext that the educational qualifications were or the educational qualification has to be interpreted in a manner to enable him to come within the ambit or zone of consideration. This principle is a most reckoned principles, because of the fact that in case if at all the candidate without any demeanour has an objection against the terms of advertisement, he should given a challenge to it even prior to his participation in the selection, this is what has been laid down by the Hon’ble Apex Court In a judgment reported in (2008) 4 Supreme Court Cases 171 Dhananjay Malik & others versus State of Uttaranchal and others. Relevant paragraph nos.7 and 8 are extracted here under:- “7. It is not disputed that the writ petitioners- respondents herein participated in the process of selection knowing fully well that the educational qualification was clearly indicated in the advertisement itself as B.P.E. or graduate with diploma in physical education. Having unsuccessfully participated in the process of selection without any demur they are estopped from challenging the selection criterion inter alia that the advertisement and selection with regard to requisite educational qualifications were contrary to the Rules. 8. In Madan Lal v. State of J & K, this Court pointed out that when the petitioners appeared at the oral interview conducted by the members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned, the petitioners took a chance to get themselves selected at the said oral interview. Therefore, only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed writ petitions. This Court further pointed out that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted.” 11. An identical principle was yet again considered in a bunch of matters as decided by the Hon’ble Apex Court, in a judgment reported in (2008) 4 Supreme Court Cases 619 Sadananda Halo and Others vs. Momtaz Ali Sheikh and others. An identical principle was yet again considered in a bunch of matters as decided by the Hon’ble Apex Court, in a judgment reported in (2008) 4 Supreme Court Cases 619 Sadananda Halo and Others vs. Momtaz Ali Sheikh and others. In the said judgment too it has yet again reiterated almost a similar process that challenging of selection process, being irregular and contrary to the prescribe Rules or the procedure as anticipated by a candidate, it could not be done by and through an unsuccessful candidate, because an unsuccessful candidates after having participated in the selection process, the process of roving and fishing inquiry on the factual aspects by the court of law testing the fairness of the selection, is not envisaged under law. This is what has been laid down in para 35 and 59 of the said judgment, which is expected hereunder :- “35. Similarly, we are also not impressed with the complaint that the district wise restrictions were removed by the Government by its letter dated 16.11.2004 apart from the fact that both the courts have not commented on this aspect adversely against the selection process. We are of the opinion that, that by itself cannot be a reason to find fault with the selection process, again on the ground that the petitioners were not able to show as to what prejudice was caused because of the removal of such step taken by the Government on 16.11.2004. On the other hand we are of the clear opinion that the Government had made the selection process broader by removing the District-wise restrictions. As regards, the complaint that 50 marks were allotted for the personal interview or viva voce, the learned Single Judge as well as the Division Bench have found that in the peculiar circumstances it was of no consequence. We also endorse this view as no arguments were addressed on this point before us. Therefore, even that complaint has to go. In the earlier part of this judgment we have already noted that these 50 marks were also distributed on as many as six factors and each factor had separate marks. The oral test, after the distribution of the marks over the factors like educational qualifications, smartness, general ambience in reading, writing, extra qualifications, proficiency in sports and martial arts, is only left with 20 marks which, in our opinion, is quite reasonable. The oral test, after the distribution of the marks over the factors like educational qualifications, smartness, general ambience in reading, writing, extra qualifications, proficiency in sports and martial arts, is only left with 20 marks which, in our opinion, is quite reasonable. We do not, therefore, find anything wrong on account of the allotment of 50 marks for viva voce. This is apart from the fact that the unsuccessful candidates, after having taken part in the interview process could not turn back and call names to the system. 59. 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 v. S. Vinod Kumar and Ors. 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 v. Akhilesh Kumar Shukla and Ors. 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. The Court further made observations in para 34 of the judgment to the effect: “19........’34. There is thus no doubt that while question of any estoppel by conduct would not arise in the contextual facts but the law seem to be well settled that in the event a candidate appears at the interview and participates therein, only because the result of the interview is not 'palatable' to him, he cannot turn round and subsequently contend that the process of interview was unfair or there was some lacuna in the process.” In para 20 this Court further observed that there are certain exceptions to the aforementioned rule. However, the court did not go into those exceptions since the same were not material.” 12. It is a settled law and particularly as it has been laid down by the Hon’ble Apex Court, that once a candidate had responded to the advertisement and has extended the candidature to be considered for appointment simultaneously, at a later stage he cannot thereafter later on revert back and challenge the terms of the advertisement itself on the ground that it is arbitrary. Once he has submitted his candidature. In relation thereto the reference may be had to the judgment as rendered by the Hon’ble Apex Court reported in AIR 1990 SC 1233 N.T. Bevin Katti and Ors. Vs. Karnataka Public Service Commission and Ors. Paragraph 11 is extracted hereunder:- “11. There is yet another aspect of the question. Where advertisement is issued inviting applications for direct recruitment to a category of posts, and the advertisement expressly states that selection shall be made in accordance with the existing Rules or Government Orders, and if it further indicates the extent of reservations in favour of various categories, the selection of candidates in such a case must be made in accordance with the then existing Rules and Government Orders. Candidates who apply, and undergo written or viva voce test acquire vested right for being considered for selections in accordance with the terms and conditions contained in the advertisement, unless the advertisement itself indicates a contrary intention. Generally, a candidate has right to be considered in accordance with the terms and conditions set out in the advertisement as his right crystalises on the date of publication of advertisement, however he has no absolute right in the matter. If the recruitment Rules are amended retrospectively during the pendency of selection, in that event selection must be held in accordance with the amended Rules. Whether the Rules have retrospective effect or not, primarily depends upon the language of the Rules and its construction to ascertain the legislative intent. The legislative intent is ascertained either by express provision or by necessary implication, if the amended Rules are not retrospective in nature the selection must be regulated in accordance with the Rules and orders which were in force on the date of advertisement. The legislative intent is ascertained either by express provision or by necessary implication, if the amended Rules are not retrospective in nature the selection must be regulated in accordance with the Rules and orders which were in force on the date of advertisement. Determination of this question largely depends on the facts of each case having regard to the terms and conditions set out in the advertisement and the relevant Rules and orders. Lest there be any confusion, we would like to make it clear that a candidate on making application for a post pursuant to an advertisement does not acquire any vested right for selection, but if he is eligible and is otherwise qualified in accordance with the relevant Rules and the terms contained in the advertisement, he does acquire a vested right for being considered for selection in accordance with the Rules as they existed on the date of advertisement. He cannot be deprived of that limited right on the amendment of Rules during the pendency of selection unless the amended Rules are retrospective in nature.” 13. The plea taken by the petitioners about the discrimination is being meeted out is answered accordingly. As far as the petitioners when they sought a liberty to permit them to put a challenge to the amendment, I am of the view that at this stage when the process of selection in pursuance to the advertisement has already culminated, and as a consequence of a conclusion of the counselling which was held on 02.12.2021 and particularly the petitioners having themselves responded to it, they cannot at this stage, once they have accepted the terms and condition of the advertisement revert back and seek a liberty to put a challenge to the advertisement and conditions contained in it, when they have renounced to their rights to give the challenge, at the first instance when the petitioners have preferred the writ petition itself by instituting the same before this Court on 30.12.2021. 14. For the reasons aforesaid, I am not inclined to interfere in the writ petition, the writ petition fails and is accordingly dismissed. 14. For the reasons aforesaid, I am not inclined to interfere in the writ petition, the writ petition fails and is accordingly dismissed. But however this would be with a clarification that dismissal of the writ petition will not preclude the petitioners, that in case if the they falls to be within the category of preferences provided under the Rules, as per the select list already published, they may be offered with an appointment as per the criteria provided under the amended Rules of 2018. 15. Accordingly, the writ petition lacks merit and the same is dismissed.