Service Law – Modification of selection process – Cut-off marks reduced after results were published to facilitate the inclusion of candidates constituting horizontal reservation – Impermissibility of – Held: An advertisement made pursuant to a notification binds the parties – It has got all the trappings of a statutory prescription, unless contrary to either a rule or an Act – A change, if any, can only be brought by an amendment and nothing else – Such amendment even if permissible, can be tested on the touchstone of Art.14 – It cannot be introduced to give an entry to a special reservation, in a case where a right becomes accrued to a candidate, under a policy decision reduced in the form of an advertisement, to be considered for a post in the absence of any eligible candidate from the horizontal category – In the present case, the Selection Committee reduced the marks to facilitate the horizontal reservation by treating it as a vertical reservation – Rules do not provide for such reservation to be treated as a vertical one – Admittedly, the appellants are entitled to get the respective post as per the advertisement issued – Further, fixing cut-off marks for a particular category has got a rationale behind it – Reducing it only for the purpose of providing employment to a particular category, when the others have already acquired some right would be an affront to Art.14 – Furthermore, relevant clauses in the advertisement do not confer unbridled power either on the State Govt. or the Selection Committee to modify the selection process and reduce the cut-off marks after the results are published – Order of Division Bench set aside – However, on facts, private respondents belonging to the special category comprising of women, ex-servicemen and physically challenged be considered to be accommodated in their respective reserved category, provided they do not exceed the percentage of reservation permissible, without upsetting the appointment of the appellants and others similarly placed and subject to their eligibility – Constitution of India – Articles 14,142. Allowing the appeal, the Court
Held: 1.1 This Court is dealing with the recruitment process by which the posts pertaining to each of the separate categories is to be filled up by only one mode, i.e., written examination. The cut-off marks have been fixed with a distinct clarification that it would not be tinkered with by facilitating anyone to be considered, if the candidate acquired lesser marks. There is a difference between qualification for making an application, and the eligibility to be determined in the process of selection. The present case is concerned with an eligibility after the examination is conducted. Selection Committee reduced the marks to facilitate the horizontal reservation by treating it as a vertical reservation. Admittedly, the rules do not provide for such reservation to be treated as a vertical one. Likewise, the rules do not fix any cutoff marks. An advertisement, made pursuant to a notification, binds the parties. It has got all the trappings of a statutory prescription, unless it becomes contrary to either a rule or an Act. A change, if any, can only be brought forth by way of an amendment and nothing else. Such an amendment even if it is permissible can be tested on the touchstone of Article 14 of the Constitution of India. It cannot be introduced to give an entry to a special reservation, in a case where a right becomes accrued to a candidate, under a policy decision reduced in the form of an advertisement, to be considered for a post in the absence of any eligible candidate from the horizontal category. It is true that a candidate may not have a vested right to the post, however, it cannot be confused with a right to be considered in accordance with law. A law which enables a candidate to get a post cannot be changed to facilitate another group of persons, since the candidate acquires a vested right to be considered in accordance with law. [Paras 22-24][552-D-H; 553-A-B]
1.2 Admittedly, in the case on hand, the appellants are entitled to get the respective post as per the advertisement issued. The said advertisement has not been amended. It was sought to be modified on the advice of the Government. Fixing cut-off marks for a particular category has got a rationale behind it. Reducing it only for the purpose of providing employment to a particular category, when the others have already acquired some right would be an affront to Article 14 of the Constitution of India. The relevant clauses contained in the advertisement do not confer unbridled power either on the State Government or on the Selection Committee to modify the selection process, and thereby, reduce the cutoff marks after the results are published. [Paras 25, 26][554-C-E]
1.3 The decision to reduce the cut-off marks is not based upon an objective-criteria, namely, the suitability of the candidate to the post, but for extraneous reason, i.e., to accommodate otherwise ineligible candidates. Earlier cut-off marks were fixed on a conscious consideration of the marks required to be eligible for the post, which could not be reduced, unless there is a sound reason that the reduced marks also would be sufficient to be suitable for that post. Having held that the order of the Division Bench of the High Court of Gujarat cannot be sustained in the eye of law, this Court is inclined to balance the equities and do justice by exercising power under Article 142 of the Constitution of India. The object behind the decision is laudable and the private respondents belong to the special category comprising of women, ex servicemen and physically challenged. They are waiting to get their appointments for long years with fond hopes. They have the order of the Division Bench to their benefit which was occasioned by the policy decision of the State Government and the Selection Committee. In such view of the matter, taking note of the peculiar facts of the case, particularly in the light of the finding that the situation has been brought forth by Respondent Nos. 1 and 2 and the vacancies that still remain, direction issued to them to consider accommodating the private respondents in their respective reserved category, provided they do not exceed the percentage of reservation made permissible, without upsetting the appointment of the appellants and others similarly placed and subject to their eligibility. [Paras 30-32][558-D-F, H 559-A-B]
N.T. Devin Katti v. Karnataka Public Service
Commission (1990) 3 SCC 157; Tamil Nadu Computer Science B.Ed. Graduate Teachers Welfare Society (1) v. Higher Secondary School Computer Teachers
Association & Ors. (2009) 14 SCC 517 : [2009] 10 SCR 522 – relied on.
Tej Prakash Pathak & Ors. v. Rajasthan High Court & Ors. (2013) 4 SCC 540; Veerendra Kumar Gautam & Ors. v. Karuna Nidhan Upadhyay & Ors. (2016) 14 SCC 18 : [2016] 7 SCR 223; Anupal Singh & Ors. v. State of Uttar Pradesh & Ors. (2020) 2 SCC 173 : [2019] 12 SCR 1071; Ashok Kumar Thakur v. Union of India & Ors. (2008) 6 SCC 1 : [2008] 4 SCR 1; K. Manjusree v. State of Andhra Pradesh & Anr. (2008) 3 SCC 512 : [2008] 2 SCR 1025; Ramjit Singh Kardam v. Sanjeev Kuma (2020) 20 SCC 209 – referred to. Prajapati Ishwarbhai Joitaram v. State of Gujarat, Letters Patent Appeal No.1350 of 2012 dated
20.03.2013 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.