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PREM NARAYAN SHARMA & OTHERS V/S STATE OF RAJASTHAN & OTHERS , decided on Monday, November 30, 2015.
[ In the High Court of Rajasthan Jaipur Bench, Special Appeal (Writ) Nos. 966 of 2013, 926 of 2013, 873 of 2013 & 365 of 2015. ] 30/11/2015
Judge(s) : AJAY RASTOGI & J.K. RANKA
Advocate(s) : Ashok Gaur, Senior Counsel assisted by Ashwini Jaiman P.K. Sharma, Rishabh Khandelwal. N.C. Sharma, Banwari Sharma, S.K. Gupta, Additional General assisted by Aniket Vyas, S.P. Sharma, Senor Counsel assisted by Abhishek Pareek, H.V. Nandwana, M.A. Khan.
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    Ajay Rastogi J.1.  Instant batch of special appeals are directed against order of the ld. Single Judge impugned dated 04.07.2013.2. This is second round of litigation and in order to appreciate the grievance of the appellants it will be necessary to glance through few relevant background facts which are agreed by the parties and have been taken note of from D.B.Special Appeal (Writ) No. 966/2013 for better appreciation of the controversy raised for our consideration.3. The post of Ayurved Chikitsak with which we are concerned is included in the Schedule appended to the Rajasthan Ayurvedic Unani Homoeopathy and Naturopathy Service Rules 1973 and prior to the amendment under the scheme of Rules there was no explicit procedure provided laying down the mode of selection and the selections were made on the basis of interviews. However at a later point of time the State Government in exercise of the powers conferred by the proviso to Article 309 of the Constitution made certain amendments under the scheme of Rules which came into force with immediate effect and new proviso was added to R.19 of the Rules 1973 and it is mandated that the merit shall be prepared by the Appointing Authority on the basis of marks obtained in the qualifying examination. However details of the amendment shall be referred later at the appropriate stage.4. Under the special scheme introduced by the State Government namely the National Rural Health Mission ad-hoc appointments on the post of Ayurved Chikitsak Homoeopathy Chikitsak & Unani Chikitsak were to be made on a fixed honorarium of Rs. 8 000/- per month on contract basis and a short term advertisement came to be notified by the State Health Society (National Rural Health Mission) dated 22.09.2008 for filling up total 500 posts of Ayurved Chikitsak Homoeopathy Chikitsak & Unani Chikitsak. We are concerned with the selection process held for the post of Ayurved Chikitsak and in all 374 posts came to be advertised. The selection was to be made District-wise by the Selection Committee under the Chairmanship of the District Collector and on recommendations concerned Chief Medical & Health Officer was to appoint & criteria of selection came to be notified under Clause No. 7 of the terms of advertisement dated 22.09.2008 indicating the procedure to be followed by the Committee for preparing merit list of the candidates who have participated in the selection process and the merit list indeed was to be prepared on the basis of the marks obtained by the candidates in the qualifying examination.5. It may be relevant to note that the post which came to be advertised by the State Health Society of Rajasthan Government (National Rural Health Mission) vide its advertisement dated 22.09.2008 is not under the Rules 1973 but it appears that guidelines of the Rules 1973 have been adopted in the process of selection for the post of Ayurved Chikitsak. The Appointing Authority under the instant matter when issued advertisement holding selection for the posts under National Rural Health Mission took a decision to select the candidates on the basis of marks obtained in the qualifying examination for preparing merit list of the candidates for final selection to the post in question.6. Before issuance of advertisement dated 22.09.2008 it has come on record a letter addressed by the Director Department of Ayurved Rajasthan Ajmer dated 13.04.2008 to the Deputy Secretary Medical (Group-4) Ayurved Department Jaipur sending proposed guidelines which may be followed by the Appointing Authorities for filling the vacancies which the State Health Society is intending to advertise and in the proposed guidelines it was provided that if any candidate has failed in a particular subject and qualify the failing paper in second attempt his merit is to be evaluated based on minimum marks in the failing paper/subject. But it may be noticed that this proposal was not carried out and when the advertisement came to be notified on 22.09.2008 the Appointing Authority in terms of condition No. 7 of which we have earlier made reference indicated that merit list of the candidates shall be prepared on the basis of marks obtained in the qualifying examination.7. It may further be noticed that after the advertisement came to be notified dated 22.09.2008 a letter was sent by the Project Director Rajasthan Health Society (National Rural Health Mission) Rajasthan Jaipur dated 08.10.2008 addressed to all the Chief Medical & Health Officers directing them in terms of Clause 11 of the communication dated 08.10.2008 to prepare merit list of candidates who have participated in the selection process and such of the candidates who qualified in second attempt (supplementary examination) minimum marks be awarded to them.8. It appears that condition No. 7 of the advertisement dated 22.09.2008 and Clause 11 of the letter sent by the Project Director Rajasthan Health Society (National Rural Health Mission) Rajasthan Jaipur dated 08.10.2008 are contradictory to each other and since selections are to be made at District Level by the Selection Committee constituted under Chairmanship of the District Collector different criteria were adopted for preparing merit list of the candidates. In some of the Districts as per condition No. 7 of the advertisement dated 22.09.2008 merit list was prepared of the candidates based on the marks obtained in the qualifying examination irrespective of the fact that it was obtained in second attempt at the same time in some of the Districts invoking Clause 11 of the letter dated 08.10.2008 the candidates who qualified the failing papers in second attempt they were awarded minimum marks and accordingly the merit list was prepared. At this very outset it may be noticed that under the University Ordinance for a professional course there is no provision of supplementary examination to award minimum marks to a candidate who qualified failing paper in second or third attempt as the case may be.9. Since there was apparent discrepancies in the criteria of selection for preparation of merit lists at District Levels by the Chief Medical & Health Officers writ petitions came to be filed before the ld. Single Judge by both the sets of candidates one batch of writ petitions was filed by the candidates who have objection that there is no justification to award minimum qualifying marks in failing papers to a candidate who qualified in second attempt as it jeopardise their fair right of consideration and their demand was that the marks obtained and awarded by the University shall be considered for preparing the merit list which is in consonance with condition No. 7 of the advertisement and at the same time another batch of writ petitions was filed before the ld. Single Judge by those candidates who qualified in first attempt and their grievance was that in terms of Clause 11 of the letter dated 08.10.2008 issued by the Project Director Rajasthan Health Society (National Rural Health Mission) Rajasthan Jaipur such of the candidates who qualified the failing papers in second attempt minimum marks be awarded and merit list be prepared accordingly. Since the demand of petitioners was in conflict to each other taking note of the rival submissions both the batch of writ petitions were decided by a common judgment dated 25.08.2011 by the ld. Single Judge and it will be appropriate for us to quote the directions of the ld. Single Judge mandating the State authorities to prepare fresh merit list of the candidates who have participated in the selection process pursuant to the advertisement dated 22.09.2008 which reads ad infra:-In view of the above these writ petitions are disposed of with the direction that respondents will prepare a fresh merit list after taking marks of qualifying examination into consideration. It should be as per law. If rules permit counting of actual marks in second attempt then it may be taken into consideration accordingly however if rules provide otherwise then marks may be taken to the extent permissible. All the parties have agreed to aforesaid more so when they are representing both set of cases.After determination of the merit as per the rules respondents will give appointment to the meritorious candidates who were left out earlier and continue others who were appointed earlier and again fall in merit. If a candidate appointed earlier goes out of merit then he may be served with show cause notice before his discontinuation however if vacancies exist then respondents may try to accommodate them by continuing them in service subject to condition that no candidate is left out in merit above them and not otherwise. Compliance of the order be made within two months from the date of receipt of copy of this order. Till then termination orders may not be given effect to rather it will remain subject to outcome of the exercise as indicated above.10. It may be noticed from the directions of the ld. Single Judge of this court that it was left upon the authority to prepare fresh merit list after taking marks of qualifying examination into consideration as demanded by the set of writ petitioners if the Rules permit taking note of the marks obtained in second attempt for appointment and if the Rules provide otherwise the marks may be taken to the extent permissible and as a consequence of the fresh merit list to be prepared of the candidates who were to be given appointment if such of the candidates who do not fall in merit after fresh merit list being prepared liberty was granted to the State authority to initiate process of terminating their services by serving show cause notice before discontinuing their services in accordance with law.11. It may be noticed at this stage that neither the scheme of the Rules nor Ordinance of University of Rajasthan which lays down the scheme of examination for faculty of Ayurved as referred to under Chapter-XXXIX nor the condition No. 7 of the advertisement dated 22.09.2008 nor any other Rules if exist have been taken into consideration by the ld. Single Judge & everything was left upon the authority to go ahead in its own wisdom while taking decision and to prepare & recast merit list afresh. We may at least like to notice that after the matter being adjudicated by the court noticing the rival claims of the parties it was expected to decide the issue raised for consideration and leaving it open for the authority as to how marks is to be evaluated and complied with for redressal of grievance of the petitioners is the basic cause giving rise to multiplicity of litigation.12. It appears that a fresh merit list was prepared by the State authorities in giving effect to the letter dated 08.10.2008 issued by the Project Director Rajasthan Health Society (National Rural Health Mission) to all the Chief Medical & Health Officers and all the candidates who qualified failing paper in second attempt minimum marks were awarded to them and that certainly changed their placement in the merit list or ousted them from the list and as liberty was granted by the ld. Single Judge while disposing of the batch of writ petitions of which we have made a reference vide order dated 25.08.2011 of serving show cause notice and terminating their services in consequence thereof the petitioners were completely unaware regarding the guidelines which were later on issued by the Project Director Rajasthan Health Society (National Rural Health Mission) dated 08.10.2008 and this fact has been admitted by Shri S.K.Gupta Additional Advocate General during the course of arguments and also in the affidavit which he has filed during the course of proceedings that neither the draft proposal which was sent by the Director Department of Ayurved Rajasthan Ajmer to the Deputy Secretary Medical (Group-4) Ayurved Department Jaipur dated 13.04.2008 nor the letter sent by the Project Director Rajasthan Health Society (National Rural Health Mission) Jaipur dated 08.10.2008 was made available in public domain and the candidates were at least not aware of both the letters referred to above and the only guiding factor available which was made known to the candidates and which this court can also take note of from the available material is that the Appointing Authorities at District Levels have to prepare merit list of the candidates who have participated in the selection process strictly in accordance with condition No. 7 of the advertisement dated 22.09.2008.13. In the second round of litigation when the matter came before the ld. Single Judge the question arose as to whether the Appointing/Recruiting Authority was justified in awarding minimum marks to the candidates who qualified the paper in second attempt and in consequence thereof how far termination was justified after examining the controversy at that stage the ld. Single Judge took note of certificate signed by the Controller of Examination of University Rajasthan dated 06.03.2013 which has been quoted in the order impugned is nothing but a gist of scheme of Chapter-XXXIX of the Ordinance of University of Rajasthan which envisages the procedure of holding examinations of a professional course with which we are presently concerned – faculty of Ayurveda that as per the University Ordinance under the scheme of Ayurvedacharya Examinations a candidate has to pass first second third fourth & final Ayurvedacharya in four attempts and the actual marks obtained by the candidate in the failing papers in first second third fourth & final Ayurvedacharya examinations are indicated in the mark sheet & no division is awarded by the University in examinations of Ayurvedacharya and taking that to be the sole basis the ld.Single Judge disposed of the batch of writ petitions vide order dated 04.07.2013 which is impugned before us holding that the action of the respondents to count minimum passing marks in failing papers of the candidates who have participated in the selection process is not in accordance with the University Ordinance and since there are no Rules to provide that actual marks should be reduced to minimum passing marks and not being in conformity with Chapter-XXXIX of the University Ordinance it was held that the decision of respondent authorities in awarding minimum passing marks in failing subjects to the candidates who qualified in second third or fourth attempt was held to be unjustified and contrary to law and further directed the respondent-authorities to re-determine the merit list after taking note of actual marks obtained in the qualifying examination without reducing it to the minimum.14. As a consequence whereof the candidates whose services were terminated by the respondents but otherwise found to be meritorious was quashed & set aside and this gave a cause of action to such of the candidates whose demand was that minimum marks have to be awarded to the candidates who qualified failing paper in second attempt by the respondents while preparing merit list and such of candidates who qualified the qualifying examination in first attempt must be given preference in the selection process and their grievance is that if the Appointing Authority is of the view that the candidates who qualified failing papers in second attempt even if the marks obtained by them are being indicated in the mark sheet as per the procedure of examination conducted by the University for the course of Ayurvedacharya u/Chapter-XXXIX of the University Ordinance which may not be relevant for the purpose of preparation of merit list of the candidates who have participated in the selection process pursuant to the advertisement dated 22.09.2008 they could not be treated at par with them and directions issued by the ld. Single Judge to revise the merit list and to award marks obtained by the candidates who qualified failing papers in second attempt is in violation to the guidelines issued by the recruiting authority dated 08.10.2008 to the respective Chief Medical & Health Officers and according to them those who qualified the failing papers in second attempt at least cannot be considered that meritorious in comparison to the candidates who qualified in first attempt and taking note thereof the present batch of appeals has been preferred before us assailing order of the ld. Single Judge.15. Mr. Ashok Gaur Senior Counsel Mr. Ashwini Jaiman Mr. Rishabh Khandelwal Mr. N.C. Sharma Mr. Banwari Sharma & Mr. P.K. Sharma Counsel for appellants jointly submit that it is the domain of Appointing Authority to prescribe the criteria of selection of participating candidates and it is not open for judicial review for the courts and this court may be reluctant to substitute its view laying down any other criteria which may be better for conducting the process of selection and such interference made by the ld. Single Judge in changing the criteria for recruitment based on the relevant Ordinance of University of Rajasthan is neither relevant nor binding upon the Appointing Authority to consider the University Ordinance for prescribing the criteria of selection and such directions issued by the ld. Single Judge is not sustainable in law and in support of their submissions counsel placed reliance on judgments of Hon'ble Supreme Court in Surinder Singh v. Union of India & Others reported in (2007) 11 SCC 599 & Chandigarh Administration v. Usha Kheterpal Waie & Others reported in (2011) 9 SCC 645.16. Their further submission is that after the candidates have participated in the selection process they cannot turn around and challenge the criteria of selection and they are estopped to assail at the later stage.17. Counsel further jointly submit that such of the candidates who qualified failing papers in second attempt certainly cannot be considered as meritorious as the candidates who have qualified the examination in first attempt and the later being better meritorious no comparison amongst the two different classes could be made and it is the wisdom of employer in taking decision as to whether the candidates who qualified failing paper in second attempt would be placed at par or they should be considered less meritorious in comparison to the candidates who qualified in first attempt and the criteria of selection laid down by the Appointing Authority for preparation of merit list of the candidates who have participated in the selection process so long it has direct nexus to the object sought to be achieved and not violative of any of the provisions of the Constitution or Rules could not have been interfered by the ld. Single Judge and in support of their submissions counsel placed reliance on judgment of the Apex Court in State of J&K & Others v. Ajay Dogra reported in (2011) 14 SCC 243.18. Their further grievance is that in the absence of challenge to the criteria laid down for selection before the ld. Single Judge what has been observed under order impugned mandating the Appointing Authority to change the criteria of selection is arbitrary and violative of Article 14 of the Constitution and it certainly requires interference by this court and further submit that being a policy matter relating to the recruitment of candidates this court would not like to interfere under its limited scope of judicial review u/Art.226 of the Constitution since it is not the scope of judicial review of this court either to prescribe the qualification or entrench upon the power of the authority so long as the criteria laid down has rational nexus with the functions & duties attached to the post and is not violative of any of the provisions of the Constitution statute or any Rules framed thereunder.19. Thus according to them order of the ld. Single Judge is not sustainable in law and deserves to be quashed & set aside and the respondent-State of Rajasthan may be directed to re-draw merit list of the candidates who have participated in the selection process pursuant to the advertisement dated 22.09.2008 and the candidates who have obtained marks in failing subject in second attempt be awarded minimum marks and the merit list prepared by the respondent-State which has been questioned by the ld. Single Judge may be restored and for such of the candidates who do not find place in the order of merit the State Government may be directed to take appropriate action for termination of their services and consider the candidature of such of the candidates who are left out and the candidates who have now come in the order of merit may be considered for appointment.20. Mr. S.P. Sharma Senior Counsel Mr. Abhishek Pareek & Mr. Harsh Vardhan Nandwana Counsel for respondents while opposing in counter jointly submit that the very basis on which the appellants have proceeded in filing the instant special appeals is ill-founded. In fact it was the condition No. 7 of the advertisement dated 22.09.2008 which has been given wide circulation & was to be taken into consideration by the respective Authority as a criteria of selection at the District level and that only indicates the criteria of selection based on the marks obtained by the candidates in the qualifying examination and as regards circular on which a strong reliance has been placed by the appellants' counsel dated 08.10.2008 counsel submits that it has neither been known to the candidates nor it could be acted upon as it being not in consonance with the conditions of the advertisement dated 22.09.2008 the later change in the conditions/criteria of selection could not have been carried out and the respondent-State is under an obligation to prepare the merit list strictly in conformity with the criteria of selection indicated by the respondents in their advertisement dated 22.09.2008 and it is a contractual appointment on honorarium of Rs. 8 000/- for a fixed term and the post is not regulated under the Rules 1973 and thus in absence of any Rules the terms & conditions of the advertisement were to be strictly followed by the recruiting authority while holding selections and any deviation thereto was not permissible in law.21. Counsel further submits that even if for the sake of submission this court may take note of the later circular issued by the Project Director Rajasthan Health Society (National Rural Health Mission) Rajasthan Jaipur dated 08.10.2008 it appears that the issuing authority was not aware of the distinction between supplementary examination and attempt inasmuch as Clause 11 of the circular which lays down directions for the Appointing Authorities to be followed for preparation of merit list indicates 'second attempt (supplementary examination)'.22. Counsel submits that the University of Rajasthan conducts different examinations at under-graduate/post-graduate level and so also professional examinations. In the under-graduate/post-graduate examinations if a candidate fails in a particular subject(s) he has to appear in supplementary examination and in such supplementary examination irrespective of the marks obtained under the relevant examination only minimum marks shall be indicated in the mark sheet but in the present selection the qualifying examination is of the professional examination of Ayurved Chikitsak and while dealing Examination in Faulty of Ayurveda (Chapter-XXXIX of the University Ordinance) there is no concept of supplementary examination and the examinations are held twice a year in the months of April & October and a candidate who fails in few of the papers has an option to qualify in the second or third attempt the marks obtained by the student in the failing subject are awarded and indicated in the mark-sheet.23. Counsel further submit that as regards the present selection process which was initiated by the State Government under National Rural Health Mission pursuant to advertisement dated 22.09.2008 holding selection for the post of Ayurved Chikitsak there are no Rules however the very post of Ayurved Chikitsak is included in the Schedule appended to the Rules 1973 and the rule making authority in its wisdom vide amendment notification dated 13.05.2013 added proviso to R.19 to the Rules 1973 and mandated that the merit list of the candidates shall be prepared by the Appointing Authority on the basis of marks obtained in the qualifying examination.24. Counsel submits that in the regular selections under the scheme of Rules 1973 for the post of Ayurved Chikitsak their merit list has to be prepared on the basis of marks obtained in the qualifying examination and any other criteria if considered appropriate by this court may not be sustainable in law and the same at least cannot be said to be in consonance with Article 14 of the Constitution.25. Counsel further submit that they all are appointed immediately after selections are made pursuant to the advertisement dated 22.09.2008 and are working for sufficient long time and any order passed at this stage may certainly deprive them from their employment and apart from it it is informed to this court that regular selection process was initiated by the respondents for the post of Ayurved Chikitsak under the Rules 1973 vide advertisements dated 01.06.2013 (for 745 posts) & dated 01.07.2013 (for 400 posts) and merit list has been prepared by the Appointing Authority of the candidates who have participated in selection process on the basis of marks obtained by them in qualifying examination which is obviously in terms of the amendment Notification dated 13.05.2013 and while supporting order of the ld. Single Judge counsel submits that appeals deserve to be dismissed.26. During the course of arguments we directed Mr. S.K. Gupta Additional Advocate General to file affidavit and clarify the factual position to this court for better appreciation of the grievance which has been either side raised before us and in compliance whereof additional affidavit has been filed by Dr. Shriram Tiwari who is Officer-in-Charge of the case and it is stated that prior to the issuance of advertisement dated 22.09.2008 a letter was issued by the Director Ayurved to Deputy Secretary Medical (Group-4) Ayurved Department dated 13.04.2008 sending proposed guidelines to be considered while issuance of advertisement. However further stated that there is no record available with the State Government as to what steps have been taken thereafter and whether it was approved by the State Government but this fact can be noticed that while issuance of advertisement dated 22.09.2008 condition No. 7 of the advertisement which is a guiding factor laying down the criteria of selection clearly indicates that merit list has to be prepared on the basis of 'marks obtained in the qualifying examination'.27. It has been further stated that the Project Director Rajasthan Health Society (National Rural Health Mission) Rajasthan Jaipur issued certain guidelines of his own to all the Chief Medical & Health Officers without any approval from the State Government laying down criteria of selection vide circular dated 08.10.2008 and that created a lot of confusion and the Chief Medical & Health Officers who were responsible for preparation of merit lists adopted different criteria and some of the Chief Medical & Health Officers took note of the circular dated 08.10.2008 and awarded minimum marks in respect of the failing subject to such of the candidates who qualified in second attempt and some of the Chief Medical & Health Officers have not adhered to the circular dated 08.10.2008 issued by the Project Director Rajasthan Health Society (National Rural Health Mission) Rajasthan Jaipur and proceeded on the basis of condition No. 7 of the advertisement and prepared the merit list on the basis of marks obtained in the qualifying examination irrespective of the attempts and confusion has given rise to cause of litigation.28. However submits that after the first round of litigation the revised merit list was finally prepared of the candidates and those who qualified the failing papers in second attempt minimum marks were awarded to them and that was again made subject matter of challenge before the ld. Single Judge. However the State Government took a decision to revise the merit list in terms of the directions issued by the ld. Single Judge and to proceed accordingly and at the same time amendment has now been made under the scheme of Rules 1973 while making regular selection for the post of Ayurved Chikitsak vide Notification dated 13.05.2013 according to which the merit list has to be prepared by the Appointing Authority on the basis of the marks obtained in the qualifying examination counsel submits that at least the State Government is clear in its approach that the marks obtained in qualifying examination would be the criteria which could alone serve the purpose and added the proviso to R.19 of the Rules 1973.29. Counsel for State Mr. S.K. Gupta Additional Advocate General further submits that under the Hand Book of the University of Rajasthan as per Chapter-XXXIX in particular in the examination for faculty of Ayurveda the mark sheet indicates second third and fourth attempt in which the student qualify the failing paper but the experience shows that the candidates from other Universities their mark sheet does not indicate as to whether the student has qualified the failing papers in first second third or fourth attempt and their mark sheet only indicates the marks obtained by them irrespective of the attempts and in these facts & circumstances if at all what has been prayed for by the appellants' counsel is taken note of that will create a lot of confusion and the candidates who had qualified examination from University of Rajasthan regulated by Chapter-XXXIX their mark sheet will indicate about qualifying the failing papers in first second third or fourth attempts and the candidates who are coming from outside the State of Rajasthan and who too are eligible since their mark sheet does not indicate number of attempts for qualifying failing paper it is not possible to prepare merit list of the candidates who have participated in the selection process and that is one of the reason which the State Government by experience has taken note of while making amendment in the Rules 1973 vide Notification dated 13.05.2013.30. Counsel submits that in the selection process which was initiated by the respondents pursuant to the Notifications dated 01.06.2013 & 01.07.2013 under the scheme of Rules 1973 merit list of the candidates has been strictly prepared on the basis of marks obtained in the qualifying examination and any deviation to this procedure will certainly create a lot of confusion and will deprive the candidates who are otherwise eligible to seek appointment on the post of Ayurved Chikitsak not only under the advertisement in question but also in the process which the State Government has initiated under Rules 1973 or will initiate in future and taking note of the submissions made by appellants' counsel Shri S.K.Gupta Additional Advocate General submits that the present batch of appeals certainly has no merit and accordingly deserve to be dismissed.31. We have heard counsel for the parties at length and with their assistance perused the material available on record. Before we may proceed with the matter in addition to the narration of facts which have been taken note of by us in detail salient facts which are relevant for our purpose are narrated herein below.32. Indisputably the State Government vide advertisement dated 22.09.2008 initiated selection process for the post of Ayurved Chikitsak Homoeopathy Chikitsak & Unani Chikitsak on a fixed honorarium of Rs. 8 000/- per month and as per the advertisement selection was originally for a period upto 31.03.2009 but that appears to be extended thereafter and there are no Rules prevailing which may be followed and carried out for holding selections pursuant to the advertisement dated 22.09.2008 however the Appointing Authority in its wisdom laid down the criteria of selection in terms of condition No. 7 of the advertisement. It will be appropriate to quote condition No. 7 of the advertisement the criteria of selection of candidates which reads ad infra:-7- vH;FkhZ dk p;u fu/kkZfjr ;ksX;rk esa izkIrkadksa dh ojh;rk esfjV ds vk/kkj ij fd;k tk;sxkA33. A bare reading of condition No. 7 indicates that the selection will be made on the basis of marks obtained in the qualifying examination and the marks obtained indicates the actual marks awarded to the student. The draft terms of advertisement along with criteria to be laid down for preparing merit list which was sent earlier by the Director Department of Ayurved Rajasthan Jaipur addressed to Deputy Secretary Medical (Group-4) Ayurved Department Jaipur dated 13.04.2008 was never carried out and the criteria for selection mentioned therein was not taken note of by the Appointing/Recruiting Authority in its wisdom while issuing advertisement dated 22.09.2008 and considered it appropriate to hold selection in terms of condition No. 7 of the advertisement. It will be relevant to quote Clause 11 of the application form which was to be filled in by the candidates and to indicate the marks obtained by the candidate in 1st 2nd 3rd 4th & 5th year to be separately shown which reads ad infra:-“LANGUAGE”34. Under the University Ordinance while holding examination u/Chapter-XXXIX indisputably the marks obtained by the student irrespective of the attempts is reflected in the mark sheet which in the application form is to be indicated by the candidate while filling up the same and even in the application form there is no requirement for the candidate to disclose as to whether he has qualified in first second third or fourth attempt. Thus indisputably if we stick to the terms & conditions of the advertisement dated 22.09.2008 each of the Appointing Authority was under obligation to proceed in accordance with condition No. 7 of the terms & conditions of the advertisement and adopt the selection criteria strictly on the basis of the marks obtained by the candidate in qualifying examination but the confusion in fact was created after the letter was sent by the Project Director Rajasthan Health Society (National Rural Health Mission) Rajasthan Jaipur dated 08.10.2008 addressed to all the Chief Medical & Health Officers as the selections are to be made at District level laying down Clause 11 by which it was notified that while preparing merit list of the candidates who have participated in the selection process such of the candidates who qualified in second attempt (supplementary examination) the minimum marks be awarded to them which indisputably is in conflict with what has been indicated in condition No. 7 of the advertisement dated 22.09.2008. It will be appropriate to quote Clause 11 of the communication dated 08.10.2008 sent by the Project Director Rajasthan Health Society (National Rural Health Mission) Rajasthan Jaipur which reads ad infra:-“LANGUAGE”35. Even from perusal of Clause 11 of the communication dated 08.10.2008 it appears that the authority was not even clear in his mind regarding the distinction between attempt & supplementary examination but being conscious of this fact it has also mentioned supplementary examination to make its intention clear. However we may take note of Chapter-XXXIX of University Ordinance which relates to the professional course with which we are presently concerned& it no where indicates/refers supplementary examination. In the University Ordinance wherever there is a provision of Supplementary Examination it is clear that the scheme relates to those candidates who appeared in the main examination at under-graduate/post-graduate level and when a candidate fails in a particular subject he has to appear in supplementary examination and irrespective of the marks awarded in the supplementary examination minimum marks are awarded and indicated in his mark sheet but in the professional course like Ayurvedacharya (Chapter-XXXIX of the University Ordinance) with which we are concerned in the failing subject twice examinations are held in a year & candidate who qualifies failing subject in second or third attempt marks obtained are reflected in the mark sheet.36. It has come on record that in some of the Districts while interpreting Clause 11 of the circular dated 08.10.2008 merit list was prepared at District level by the concerned Chief Medical & Health Officer of the candidates by awarding minimum marks to candidates who qualified failing paper in second attempt and in some of the Districts irrespective of the attempts which are being provided u/Chapter-XXXIX of the University Ordinance marks obtained and reflected in the mark sheet are being taken note of while preparing the merit list which indeed was in conflict with condition No. 7 of the advertisement dated 22.09.2008 and it became the cause of litigation and rival submissions were made in first round of the litigation and the ld. Single Judge disposed of the batch of writ petitions and left it open to the authority to consider what is permissible under the Rules and after the discretion being left to the authority with whatever wisdom prevailed upon revised the merit list considering the fact that it has been mandated to consider & award minimum marks to the candidates who qualified failing paper in second attempt and when the decision was taken to terminate services of the candidates who were given appointment and working for a long time liberty was granted by the ld. Single Judge to authority while disposing of the batch of writ petitions vide judgment dated 25.08.2011 to initiate process of terminating their services by serving show cause notice and that gave a cause of action to the candidates to approach this court by filing of writ petitions which came to be disposed of vide judgment impugned dated 04.07.2013 passed by the ld. Single Judge in the second round of litigation which is subject matter of challenge in the instant batch of appeals.37. Indisputably under the examinations of faculty of Ayurveda (Chapter-XXXIX) a bare look reveals that it has old scheme and a new scheme and if we look at both the schemes at least for our purpose it reveals that under the old scheme duration of course is five years and under the new scheme the duration of main course is 4½ years and there is one year's internship and it has been specifically indicated u/Ord. 329-N-10 that there shall be no supplementary examination for the candidates failing in five years course and Ord. 329-N-16 (a) clearly provides that a candidate who has failed in the subjects will get four attempts to qualify and marks obtained shall be reflected in the mark sheet. It is a facility provided to the students either under old or new scheme u/Chapter-XXXIX of the University Ordinance to qualify the failing paper in the professional examination which will be held twice a year in the months of April and October and the candidate has to qualify the papers within the attempts available and marks obtained by him shall be reflected in the mark sheet and there shall be no supplementary examination. As the scheme of examination is not that relevant for our purpose as it deals with the examinations of Faculty of Ayurveda the same is not extracted. At the same time when we look into the scheme of examination for under graduate courses u/Ord. 193-B-I we find that the pattern of examination indicates main examination and supplementary examination and those candidates who could not qualify a particular subject in main examination and qualifies the subject in supplementary examination irrespective of marks obtained in the supplementary examination only minimum marks are to be reflected in the mark sheet. These are two different patterns which are laid down by the University of Rajasthan for conducting examinations of under-graduate/postgraduate on the one hand and professional course on the other hand.38. Thus from the scheme of examination of University of Rajasthan it is explicit that there is no concept of supplementary examination in the faculty of Ayurveda and twice a year examinations are held and students have to qualify failing papers in four attempts and whatever marks obtained by them have to be reflected in their mark sheets.39. When we proceed to now examine the present controversy we find that there are no Rules available and the respondents have to proceed in terms of the conditions of advertisement dated 22.09.2008 at the same time we find that the very post of Ayurved Chikitsak is included in Schedule appended to scheme of Rules 1973 and the Rules earlier do not provide any criteria for preparation of merit list and selection are based on interview which has now been taken care of by the Authority and amendment has been made by the rule making authority in exercise of powers conferred by the proviso to Article 309 of the Constitution and vide amendment Notification dated 13.05.2013 a new proviso to R.19 of the Rules 1973 has been added and no discretion is left with the Appointing Authority and mandated that the merit list shall be prepared on the basis of marks obtained in the qualifying examination in the instant case in the absence of any Rules the Recruiting Authority under the terms of advertisement dated 22.09.2008 irrespective of the attempts which have been availed & provided u/Chapter-XXXIX of the University Ordinance in particular marks obtained and indicated in the mark sheet has taken care of by the Recruiting Authority while preparing merit list of candidates and it will be appropriate to quote the amendment which has been made by the rule making authority under the scheme of Rules 1973 vide amendment Notification dated 13.05.2013 which reads ad infra:-6. Amendment of rule 19:- Before the existing proviso to rule 19 of the saidrules the following new proviso shall be added namely:-Provided further that the Appointing Authority shall scrutinise the applications received by it to the posts of Ayurved Chikitsadhikari Homoeopathy Chikitsadhikari Unani Chikitsadhikari. The merit shall be prepared by the Appointing Authority on the basis of marks obtained in such qualifying examination as specified in the Schedule appended to these rules and such bonus marks as may be specified by the State Government having regard to the length of experience on similar work under the Government Chief Minister BPL Jeevan Raksha Kosh and National Rural Health Mission as the case may be. The decision of the Appointing Authority regarding the eligibility or otherwise of a candidates shall be final.40. It may be noticed that after the amendment Notification dated 13.05.2013 selection process was initiated by the respondents for holding regular recruitment for the post of Ayurved Chikitsak vide Notifications dated 01.06.2013 & 01.07.2013 respectively and it is informed to this court that merit list has been prepared strictly on the basis of marks obtained in the qualifying examination irrespective of the attempts. Obviously when the University under its Chapter-XXXIX indicates in the mark sheet marks obtained by the students in the qualifying examination irrespective of the attempts there appears no reasonable justification for the Authority to reduce and award minimum marks which has not been acknowledged by the University under Chapter-XXXIX of University Ordinance. As we have noticed that under the present advertisement pursuant to which selection process was initiated under National Rural Health Mission dated 22.09.2008 condition No. 7 clearly indicates the criteria of selection on the basis of marks obtained in qualifying examination and the letter issued by the respondents at a later stage dated 08.10.2008 created a lot of confusion and in our considered view the respondents could not alter the criteria of selection of the candidates after initiation of the selection process pursuant to the advertisement dated 22.09.2008 vide its later letter dated 08.10.2008 in the midstream of the process of selection.41. It is settled principles of law that in absence of any Rules what is being desired by the Appointing Authority must be specifically stated in the advertisement itself and has to be strictly followed & in the matter of selection of candidates in particular opinion of the Selection Committee should be final but at the same time the Selection Committee is not supposed to act arbitrarily and cannot change the criteria/qualification of the selection process in the midstream.42. In the instant case selection was to be in terms of condition No. 7 of the advertisement available with the Appointing Authority for preparation of merit list at District level and the Appointing Authority was under an obligation to prepare merit list of the candidates who have participated in the selection process on the basis of marks obtained in the qualifying examination and there was no room or discretion left to consider & to award minimum qualifying marks in the failing subject which the candidate has qualified in second or third attempt & the authority was not justified in changing the criteria of selection after initiation of the selection process in the midstream and such change in the criteria of selection at a later point of time cannot be given effect to. This has been settled by the Apex Court in Madan Mohan Sharma & Anr. v. State of Rajasthan & Others reported in (2008) 3 SCC 724 that once advertisement has been issued laying down guidelines which are to be followed at that particular point of time the selection process has to continue on the basis of the criteria which was laid down and that cannot be permitted to be changed in the midstream or at a later point of time. The extract of the relevant portion is reproduced ad infra:-11. ….. Once the advertisement had been issued on the basis of the circular obtaining at that particular time the effect would be that the selection process should continue on the basis of the criteria which were laid down and it cannot be on the basis of the criteria which has been made subsequently.43. It is true that the ld. Single Judge has not considered factual matrix of the matter and has proceeded on the basis of certificate issued by the Controller of Examination dated 06.03.2013 which may not have any relevance in the matter but once condition No. 7 of the advertisement dated 22.09.2008 was the basis for the Appointing Authority laying down the criteria of selection of the candidates who have participated in the selection process the later change of criteria introduced subsequently in the midstream was not permissible under the law and that according to us has created a lot of confusion.44. Apart from it we find that the Appointing Authority was not aware of the distinction between attempt & supplementary examination which we have already discussed at length and in our considered view the later change in the criteria of selection which has been given effect to issued by the Project Director Rajasthan Health Society (National Rural Health Mission) Rajasthan Jaipur dated 08.10.2008 was not open to be acted upon and in our considered view the Recruiting/Appointing Authority was under an obligation to strictly follow condition No. 7 of the advertisement dated 22.09.2008 laying down the criteria of selection of the candidates participated in the selection process and as already noticed above even in the application form there was no requirement for the candidate to mention as to in which attempt he has qualified the papers/subjects and in these facts & circumstances we hold that the Recruiting/Appointing Authority was under an obligation to prepare the merit list at District Level of the candidates strictly on the basis of marks obtained in the qualifying examination which is also mandated by condition No. 7 of the advertisement dated 22.09.2008.45. The submission made by counsel for the appellants that it is in the domain of the Authority to prescribe the criteria of selection for recruitment and not open for this court under its judicial review to substitute any other criteria which would have been better for conducting the process of selection and further submitted that the candidates once have participated in the selection process cannot thereafter challenge the criteria of selection in our considered view the submissions made are without substance for the reason that the criteria laid down by the Authority for selection was to prepare the merit list in terms of condition No. 7 of the advertisement which was to be strictly adhered to and the Authority was mandated to prepare merit list of candidates who have participated in the selection process on the basis of marks obtained in qualifying examination and there was no room for the Authority to consider & award minimum qualifying marks to the candidates who qualified failing paper in second or third attempt and what is being contended is the change of criteria of selection introduced in the midstream vide circular dated 08.10.2008 which is not permissible by law and thus what has been contended before us deserves no merit.46. Further submission made by counsel for the appellants that in absence of challenge to the criteria laid down for selection before the ld. Single Judge the ld. Single Judge could not be said to be justified in interfering with the criteria of selection and mandating the respondents to prepare merit list afresh. The submission made is without factual foundation for the reason that in the very special appeal which is taken as a lead matter before us (SAW No. 966/2013 arising out of CWP No. 2302/2013) the very criteria was under challenge and as discussed above respondent-State authority has changed the criteria of selection in the midstream which was not in conformity with the terms of advertisement dated 22.09.2008 and in some of the Districts merit list was prepared because of utter confusion in terms of letter dated 08.10.2008 issued by the Project Director Rajasthan Health Society (National Rural Health Mission) Rajasthan Jaipur which was neither made available in public domain nor the candidates were aware of any change in the criteria of selection to be followed other than what was indicated in the advertisement dated 22.09.2008. Thus what has been contended before us is without substance.47. Further submission made by counsel for the appellants that the very criteria of awarding minimum qualifying marks has been followed in all the three different posts of Ayurved Chikitsak Homoeopathy Chikitsak & Unani Chikitsak for which a consolidated advertisement was published on 22.09.2008 and adopting a different criteria to prepare merit list of candidates who have participated in the selection process initiated for the post of Ayurved Chikitsak is violative of Article 14 of the Constitution. In our considered view has no substance for the reason that the dispute arose only in respect to the post of Ayurved Chikitsak in reference to the advertisement dated 22.09.2008 and not to the posts of Homoeopathy Chikitsak & Unani Chikitsak and in the absence of any grievance/objections to the participants/candidates it was not open to examine the criteria of selection adopted for other selections and mere consolidated advertisement of different posts may not give rise to discriminatory action or violative of Article 14 of the Constitution as alleged.48. As regards further submission made by counsel for the appellants that the candidates who qualified failing paper in second attempt cannot be considered as meritorious as regards the candidates who have qualified in first attempt and the later being better meritorious no comparison amongst the two different classes could be made. In our considered opinion the submission is very subjective and no opinion in this regard can be expressed by this court. However it is always open for the recruiting authority to prescribe the criteria of selection in the absence of any Rules at the same time the University under its Ordinance Chapter-XXXIX makes no such distinction it may be relevant consideration for higher studies but for recruitment/public employment the touch-stone is always on different standards and as we have also noticed amendment to the scheme of Rules 1973 vide amendment Notification dated 13.05.2013 proviso to R.19 has been added mandating the Appointing Authority to prepare merit list of the candidates on the basis of marks obtained in qualifying examination that itself shows that the Appointing Authority while making recruitment under the scheme of Rules 1973 is also of the view that marks obtained in the qualifying examination irrespective of the attempts must be given its due credence while preparing merit list of the candidates who intend to participate in the selection process for recruitment to the post of Ayurved Chikitsak under the scheme of Rules 1973.49. As we have noticed that the ld. Single Judge has not dealt with the rival submissions and the question raised for consideration but since we agree with the final view expressed by the ld. Single Judge and needs no indulgence as prayed for by the appellants.50. Consequently the instant batch of appeals are without substance accordingly stands dismissed.Appeals dismissed.