Gujarat High Court
Kanubhai Ramsingbhai Hathila vs State Of Gujarat on 18 January, 2021
Author: Vikram Nath
Bench: Vikram Nath, Ashutosh J. Shastri
C/LPA/1496/2019 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1496 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 21988 of 2016
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2019
In R/LETTERS PATENT APPEAL NO. 1496 of 2019
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 2 of 2019
In R/LETTERS PATENT APPEAL NO. 1496 of 2019
With
R/LETTERS PATENT APPEAL NO. 1501 of 2019
In SPECIAL CIVIL APPLICATION NO. 21988 of 2016
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 2 of 2019
In R/LETTERS PATENT APPEAL NO. 1501 of 2019
In SPECIAL CIVIL APPLICATION NO. 21988 of 2016
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/LETTERS PATENT APPEAL NO. 1501 of 2019
In SPECIAL CIVIL APPLICATION NO. 21988 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH Sd/-
and
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed to Yes see the judgment ?
2 To be referred to the Reporter or not ? Yes 3 Whether their Lordships wish to see the fair copy of the No judgment ?
4 Whether this case involves a substantial question of law No as to the interpretation of the Constitution of India or any order made thereunder ?
Page 1 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021 C/LPA/1496/2019 CAV JUDGMENT ========================================================== KANUBHAI RAMSINGBHAI HATHILA Versus STATE OF GUJARAT ========================================================== Appearance:
MR RAMNANDAN SINGH(1126) for the Appellants in LPA No.1496/2019 MR MOUSAM YAGNIK with MR NIRAD BUCH for the appellants in LPA No.1501 of 2019 MR JK SHAH, AGP (99) for the State Respondent MR SHALIN MEHTA, SENIOR ADVOCATE WITH MR HEMANG M SHAH(5399) for the Private Respondents ========================================================== CORAM: HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH and HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI Date : 18/01/2021 COMMON CAV JUDGMENT (PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH)
1. The neat point involved in the present two appeals is with regard to the powers of the Selection Committee to reduce the cut-off marks of different categories of posts at the time of verification of documents and preparation of the final select list.
2. Brief facts giving rise to the present dispute are as under:
2.1 A recruitment process was undertaken for Page 2 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021 C/LPA/1496/2019 CAV JUDGMENT selection to the post of Supervisor Instructor, Class-III in different Industrial Training Institutes in the State of Gujarat. Such selection is governed by the Rules known as Supervisor Instructor (Engineering Trade, Non-
Engineering Trade), Class-III, Recruitment Rules, 2015. 2.2 An advertisement was issued in 2015 for filling up 1226 vacant posts of Supervisor Instructor (Engineering Trade, Non-Engineering Trade), Class-III. Apart from other conditions mentioned in the advertisement, it was provided that the cut-off marks for General Category would be 60%, for Socially and Educationally Backward Class, it would be 57% and for the Scheduled Caste and Scheduled Tribe, it would be 55%. It was further mentioned that any candidate obtaining less than the cut-off marks would not be eligible for appointment. There were two papers of 150 marks each. Total maximum marks would thus be 300. According to the cut-off percentage mentioned above, the minimum marks to clear the cut-off range would be 180 for General Category, 171 for Socially and Educationally Backward Class and 165 for the Scheduled Caste and Page 3 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021 C/LPA/1496/2019 CAV JUDGMENT Scheduled Tribe Category. The reservation was also to be applied as per the existing rules, both vertical and horizontal.
2.3 There was another advertisement also issued at the same time for filling up 189 vacant posts of Supervisor Instructor (Employability Skill) whereof cut-off marks were the same.
2.4 Thus, in all, selection was to be made for 1415 (1226+189) posts of Supervisor Instructor. 2.5 The written examinations were held in the months of March and April, 2016 and results were declared in September, 2016. The marks were declared of the candidates who had appeared in the examination for some of the branches. Thereafter, candidates were notified to get their documents verified on given dates. The dates were extended from time to time. Different notifications were issued from time to time calling upon the candidates to get their documents verified. 2.6 Some candidates of reserved categories Page 4 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021 C/LPA/1496/2019 CAV JUDGMENT belonging to Female, Physically Handicapped and Ex- servicemen Categories who scored marks less than the cut-off marks made certain representations. 2.7 The Selection Committee vide decision dated 26.12.2016 resolved that the cut-off marks for the General Category to be reduced to 40% whereas for all the reserved categories including female, the cut-off marks were reduced to 35%. Based on the said decision, the result was declared on 27.12.2016 of the selected candidates as also of the candidates in the wait list.
3. Aggrieved by the said decision, two petitions were filed before this Court registered as Special Civil Application No.21988 of 2016 and Special Civil Application No.4708 of 2017. The learned Single Judge after hearing the learned counsels for the parties vide CAV judgment and order dated 14.06.2019 allowed the writ petitions relying upon the following four judgments of the Supreme Court and one Division Bench judgment of this Court by holding that after declaration of result, the Selection Committee had no such power and exercise of such power Page 5 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021 C/LPA/1496/2019 CAV JUDGMENT by the Selection Committee was illegal and accordingly quashed the decision of the Selection Committee to reduce the cut-off marks:-
i) Hemani Malhotra Vs. High Court of Delhi, 2008(7) SCC 11;
ii) Union of India and Ors. Vs. Vinod Kumar and Ors., 2007(8) SCC 100;
iii) K. Manjusree Vs. State of A.P. and Anr., 2008(3) SCC 512;
(iv) Tamilnadu Computer Science B.Ed. Graduate Teachers Welfare Society Vs. Higher Secondary School Computer Teachers Association and Ors., 2009(14) SCC 517 and
(v) Division Bench judgment of this Court dated 20.03.2013 passed in Letters Patent Appeal No.1350 of 2012.
4. The operative portion of the judgment as contained in paragraph 18 thereof is reproduced below :
"18. On the bedrock of the foregoing observations and the analysis, the impugned decision dated 26.12.2016 and the subsequent action of the respondent state of reducing the cut-off marks after the completion of the selection process, are quashed and set aside. The respondent-authorities are further directed to prepare the select list and wait list as per the cut-off marks and norms prescribed in the advertisement. Necessary orders shall be passed in terms of the direction issued by this Court within the two months from the date of receipt of the writ of the order of this Court. The petition succeeds."Page 6 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021 C/LPA/1496/2019 CAV JUDGMENT
5. Aggrieved by the aforesaid judgment dated 14.06.2019, above two appeals have been preferred by the candidates who were respondents in the writ petitions and who were benefited on account of the reduction in the cut-off marks.
6. We have heard Mr. Ramnandan Singh, learned counsel for the appellants in Letters Patent Appeal No.1496 of 2019, Mr. Mousam Yagnik and Mr. Nirad Buch, learned counsels appearing for the appellants in Letters Patent Appeal No.1501 of 2019, Mr. Shalin Mehta, learned Senior Advocate assisted by Mr. Hemang M. Shah, learned counsel appearing for the private respondents in both the appeals and Mr. J.K.Shah, learned Assistant Government Pleader for the State respondents in both the appeals.
7. Since there are no factual disputes, we straightaway come to the legal issue.
8. Mr. Ramnandan Singh, learned counsel for the appellants in Letters Patent Appeal No.1496 of 2019 submitted that in view of specific clauses in the advertisement being Clause No.15 and Clause No.19 Page 7 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021 C/LPA/1496/2019 CAV JUDGMENT which clearly conferred power on the Selection Committee not only to increase or decrease the number of vacancies advertised but also to change or modify any of the conditions of the advertisement, the learned Single Judge committed an error in setting aside the decision of the Selection Committee dated 26.12.2016.
9. He further submitted that the recruitment rules did not provide for fixing cut-off marks. The Selection Committee decided the cut-off figures and it was mentioned in the advertisement. As the Selection Committee had the power to fix the cut-off marks it also had the power to change or modify any of the conditions mentioned in the advertisement. It was well within its power to reduce the same vide its decision dated 26.12.2016. There was no illegality or irregularity committed by the Selection Committee.
10. Further according to Mr. Ramnandan Singh, the Selection Committee was fully justified in the facts and circumstances of the case in reducing the cut-off marks as the same would enure to the benefit of the reservation in Page 8 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021 C/LPA/1496/2019 CAV JUDGMENT the woman category or other reserved categories otherwise large number of such vacancies meant for the reserved categories would have gone vacant and transposed to the benefit of the general category or other categories for male candidates depriving the reserved category of getting full representation as per the mandate of the Constitution and the Reservation Rules. The learned Single Judge without adverting to the justification of the decision of the Selection Committee dated 26.12.2016 proceeded to set aside the same thereby committed gross illegality.
11. It is also submitted by Mr.Singh that the fixation of the cut-off marks has to be reasonable so that vacancies meant for specific categories are filled up. If the cut-off marks are kept so high as to exclude the candidates of the reserved category, then it would not be doing justice to the candidates of the reserved category. The Selection Committee was only striking a balance to fill up the vacancies from all categories while maintaining minimum standards thereby doing justice and being fair to all. Page 9 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021 C/LPA/1496/2019 CAV JUDGMENT
12. It was next submitted that the reliance placed upon by the learned Single Judge on the various judgments was misplaced. None of the judgments relied upon had any application to the facts of the present case. Mr. Singh further placed reliance upon the judgment of Barot Vijaykumar Balakrishna Vs. Modh Vinaykumar Dasrathlal reported in (2011) 7 SCC 308.
13. Mr. Singh also pointed out that despite reduction in the cut-off marks, large number of vacancies have remained vacant which clearly shows that the Selection Committee in order to fill up all the vacancies did not lower the cut-off marks to a level which would compromise with the minimum standards.
14. Mr. Mousam Yagnik and Mr. Nirad Buch, learned counsels for the appellants in Letters Patent Appeal No.1501 of 2019 submitted that the writ petition itself was not maintainable inasmuch as the inclusion of the name of the candidates in the select list does not confer any vested right to seek appointment. The original petitioners therefore had no right to maintain the petition. Page 10 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021 C/LPA/1496/2019 CAV JUDGMENT Reliance was placed on the judgment of the Supreme Court in the case of Commissioner of Police and Another Vs. Umesh Kumar reported in (2020) 10 SCC
448.
15. It was further submitted by the learned counsels that the system of cut-off marks which does not find place in the 2015 Rules came to be introduced for the first time in the present selection by way of mentioning the same in the advertisement and as the Selection Committeehad the power to alter or modify any of the conditions of the advertisement, no illegality could be attributed to the decision of the Selection Committee dated 26.12.2016. Reliance is placed upon the judgment of the Supreme Court in the case of Arunachal Pradesh Public Service Commission Vs. Tage Habung and othersreported in (2013)7 SCC 737 where again the Supreme Court had held that prescription of cut-off marks after commencement of the recruitment process was just and proper.
16. The learned counsels have again tried to distinguish the cases relied upon by the learned Single Page 11 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021 C/LPA/1496/2019 CAV JUDGMENT Judge which have already been covered in the arguments of Mr. Ramnandan Singh. The learned counsels have placed reliance upon the judgment in the case of Rajasthan Public Service Commission and Another Vs. Harish Kumar Purohit and Others reported in (2003) 5 SCC 480 wherein it was held that it is for the employer to decide whether to reserve the posts or carry them forward or transpose them. The Selection Committee rightly thought it fit to make an effort to fill up the posts while balancing the minimum standard and not to reduce the cut-off marks to an extent so as to compromise with the minimum standard. The learned Single Judge wrongly placed reliance upon the note appended to the Appendix-I that any vacancies not filled up from the reserved category would go to the main category. Such reasoning of the learned Single Judge cannot be sustained.
17. Lastly the learned counsels placed reliance upon the judgment of the Supreme Court in the case of Aarti Gupta and Others Vs. State of Punjab and Others reported in (1988) 1 SCC 258 for the proposition that Page 12 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021 C/LPA/1496/2019 CAV JUDGMENT once the advertisement provided the authority of the Selection Committee to have the power to modify the process, then any decision under such power of the authority of the Selection Committee cannot be faulted with.
18. Based on the above submissions, learned counsels for the appellants submitted that the appeals be allowed, judgment and order of the learned Single Judge impugned in the appeals be set aside and the decision of the Selection Committee dated 26.12.2016 and the results declared pursuant thereto be upheld.
19. Mr. Shalin Mehta, learned Senior Counsel appearing for the original writ petitioners-private respondents in both the appeals submitted that the judgment of the learned Single Judge was just, valid and proper. It was in accordance with the canons of law and as such did not require any interference in the appeals and the appeals are liable to be dismissed. Mr. Mehta, after giving details of the different notifications issued by the Selection Committee calling candidates with different Page 13 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021 C/LPA/1496/2019 CAV JUDGMENT cut-off marks to remain present on different dates for documents verification, submitted that the Selection Committee on 26.12.2016 resolved to reduce the cut-off marks for general category to 40% and for all the reserved categories to 35% and based upon the said reduction of the cut-off marks, the select list along with the wait list was prepared and the same were declared on 27.12.2016.
20. According to Mr. Mehta, the effect of such reduction of marks was that the writ petitioners who had secured higher marks than many of the selected candidates who got entry into the select list and the waiting list in the reserved categories in particular for women reservation, were left out. The decision of the Selection Committee for such reduction of the cut-off marks could not have been allowed in order to accommodate candidates belonging to horizontal reservation.
21. According to Mr. Mehta, the reliance upon Clauses 15 and 19 of the advertisement cannot come to the Page 14 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021 C/LPA/1496/2019 CAV JUDGMENT rescue of the Selection Committee as these clauses nowhere provide that any modification or change in the conditions could be made after preparation of the select list. According to him, there could be no deeming practice of reading such power in the Selection Committee. It is also submitted that if such action is permitted, it would set a bad precedent and would result into questioning each and every recruitment process.
22. According to Mr. Mehta, where conditions are mentioned in the advertisement, then they must be strictly adhered to in letter and spirit and no alteration can be permitted.
23. According to Mr. Mehta, the rights of the candidate were crystallized on the date of publication of the advertisement and such rights could not be taken away by way of changing the conditions set out in the advertisement.
24. It was next submitted that the criteria for marks could have been altered or amended prior to the commencement of the written examination so that there Page 15 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021 C/LPA/1496/2019 CAV JUDGMENT is a level playing field for all candidates. In the present case, the amendment/alteration having been made after completion of examination and declaration of select list, the same has been rightly set aside by the learned Single Judge.
25. It was also submitted that under the rules, the vacant posts under the 33% quota reserved for women, have to be filled up by the male candidates from the respective categories. The learned Single Judge rightly placed reliance upon the said provision.
26. Mr. Mehta submitted that in order to accommodate or fill up vacant posts of reserved category, the cut-off marks could not be lowered as the same would amount to compromising with the minimum standards. For the said submission, he has again placed reliance upon the Division Bench judgment of this Court passed in Letters Patent Appeal No.1350 of 2012.
27. It is next submitted by Mr. Mehta that the select list ought to have been prepared at the same cut-off marks which were notified in the advertisement and after Page 16 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021 C/LPA/1496/2019 CAV JUDGMENT applying the same, whatever vacancies remained in the reserved categories should be reverted to the open category or the respective categories for the vertical reservation where sufficient number of women candidates were not available under the quota.
28. It is also submitted by Mr.Mehta that the decision of the Selection Committee dated 26.12.2016 was based upon direction issued by the State Government to lower the cut-off marks and the said decision of the Selection Committee was signed by two persons namely, Ms. Ashaben Patel and Mr. D.K.Parekh and is not signed by Mr. N.R.Oza and Ms. Jyotsnaben Chauhan, as such, the decision becomes questionable and raises serious doubt.
29. Mr.Mehta, learned Senior Counsel referring to the judgment in the case of Barot Vijaykumar Balakrishna (supra) relied upon by the learned counsels for the appellants submitted that the same would have no application to the facts of the present case wherein minimum marks for viva voce were reduced at the time of commencement of the viva voce although no such Page 17 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021 C/LPA/1496/2019 CAV JUDGMENT minimum marks were prescribed in the advertisement whereas in the present case, the minimum cut-off marks were prescribed in the advertisement which could not have been lowered. According to Mr.Mehta, in the said case, the minimum marks for English subject were reduced from 40% to 35% but before declaration of the select list whereas in the present case, it is after the declaration of the select list that the cut-off marks have been reduced.
30. Lastly it was submitted that the State has not preferred any appeal against the judgment of the learned Single Judge as it had accepted the said judgment.
31. In view of the above submissions, Mr. Mehta contended that the appeals being bereft of merit are liable to be dismissed.
ANALYSIS :
32. The 2015 Rules do not provide for cut-off marks. In the advertisement, the cut-off marks were mentioned. The advertisement also clearly stipulated that the Page 18 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021 C/LPA/1496/2019 CAV JUDGMENT Selection Committee had the power to reduce or increase the number of posts advertised as also alter, modify or rescind any of the conditions mentioned in the advertisement vide Clauses 15 and 19 thereof.
33. The learned Single Judge noticed the above clauses but failed to apply the same for the reason that the results were declared on 3rd September, 2016 whereas the policy decision to reduce the cut-off marks was taken on 26.12.2016 which the Selection Committee could not have taken post declaration of the results. The learned Single Judge was of the view that once the results were declared, there could be no change. The Selection Committee therefore erred in passing the resolution dated 26.12.2016.
34. In our considered opinion, this finding/observation of the learned Single Judge is not correct. Mere declaration of results does not confer any right on a candidate whose name is included in the select list to seek appointment. Admittedly, the final results had not been declared and appointment letter had not been Page 19 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021 C/LPA/1496/2019 CAV JUDGMENT issued. The candidates were only being called for document verification and it was only after document verification that the final list would be declared and appointment letters would be issued. The learned counsels for the appellants are right in submitting that as a matter of fact the petition itself at the behest of the candidates whose names were included in the final select list would not be maintainable challenging the decision of the Selection Committee. The Selection Committee would be well within its right to even cancel the entire selection after declaring the results so long as the appointments were not issued. It is only after issuance of the appointment letters that the selected candidates may claim right of being appointed but not prior to that stage. Law is well settled on this point. Reference may be had to the following decisions:-
(i) Commissioner of Police v. Umesh Kumar, reported in 2010 (10) SCC 448 :
"19. The real issue, however, is whether the respondents were entitled to a writ of mandamus. This would depend on whether they have a vested right of appointment. Clearly the answer to this must be in the negative. In Punjab SEB v. Malkiat Singh [Punjab SEB v. Malkiat Singh, (2005) 9 SCC 22 : 2006 SCC (L&S) 235] , this Court held that the mere inclusion of candidates in a Page 20 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021 C/LPA/1496/2019 CAV JUDGMENT selection list does not confer upon them a vested right to appointment. The Court held: (SCC p. 26, para 4) "4. ... the High Court [Malkiat Singh v. Punjab SEB, 1999 SCC OnLine P&H 75 : ILR (1999) 2 P&H 329] committed an error in proceeding on the basis that the respondent had got a vested right for appointment and that could not have been taken away by the subsequent change in the policy. It is settled law that mere inclusion of name of a candidate in the select list does not confer on such candidate any vested right to get an order of appointment. This position is made clear in para 7 of the Constitution Bench judgment of this Court in Shankarsan Dash v. Union of India [Shankarsan Dash v. Union of India, (1991) 3 SCC 47 : 1991 SCC (L&S) 800] which reads:
(SCC pp. 50-51) "7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies.
However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subash Chander Marwaha [State of Haryana v. Subash Chander Marwaha, (1974) 3 SCC 220 : 1973 SCC (L&S) 488], Neelima Shangla v. State of Haryana [Neelima Shangla v. State of Haryana, (1986) 4 SCC 268 :
1986 SCC (L&S) 759] or Jatinder Kumar v. State of Punjab [Jatinder Kumar v. State of Punjab, (1985) 1 Page 21 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021 C/LPA/1496/2019 CAV JUDGMENT SCC 122 : 1985 SCC (L&S) 174] .'"
(emphasis in original)
20. In the present case, after the name of the respondents appeared in the results declared on 17- 7-2015, the process of recruitment was put in abeyance since the results were challenged before the Tribunal. The process of revising the results during the course of the recruitment was necessitated to align it in accordance with law. An Expert Committee was specifically appointed following the institution of proceedings before the Tribunal. The report of the Expert Committee established errors in the answer-key, and thereafter a conscious decision was taken, after evaluating the report, to revise the results on 1-2- 2016. In the fresh list which was drawn up, both the respondents have admittedly failed to fulfil the cut-off for the OBC category to which they belong. As the learned ASG submitted before the Court, as many as 228 candidates are ranked above Umesh Kumar on merit while 265 candidates stand above Satyendra Singh. The submission of Mr Khurshid that these are the only two candidates before this Court would not entitle them to a direction contrary to law since they had no vested right to appointment."
(ii) State of Orissa v. Rajkishore Nanda, reported in 2010 (6) SCC 777 :
"14. A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at the best is a condition of eligibility for the purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate.
15. A Constitution Bench of this Court in Shankarsan Dash v. Union of India [(1991) 3 SCC 47 : 1991 SCC (L&S) 800 : (1991) 17 ATC 95 : AIR 1991 SC 1612] held that appearance of the name of a candidate in the select list does not give him a right of appointment. Mere inclusion of the candidate's name in the select list does not confer any right to be selected, even if some of the vacancies Page 22 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021 C/LPA/1496/2019 CAV JUDGMENT remain unfilled. The candidate concerned cannot claim that he has been given a hostile discrimination. (See also Asha Kaul v. State of J&K [(1993) 2 SCC 573 : 1993 SCC (L&S) 637 : (1993) 24 ATC 576] , Union of India v. S.S. Uppal [(1996) 2 SCC 168 : 1996 SCC (L&S) 438 : (1996) 32 ATC 668: AIR 1996 SC 2340], Bihar Public Service Commission v. State of Bihar [(1997) 3 SCC 198 : 1997 SCC (L&S) 775 : AIR 1997 SC 2280] , Simanchal Panda v. State of Orissa [(2002) 2 SCC 669 : 2002 SCC (L&S) 369], Punjab SEB v. Malkiat Singh [(2005) 9 SCC 22 : 2006 SCC (L&S) 235] , Union of India v. Kali Dass Batish [(2006) 1 SCC 779 : 2006 SCC (L&S) 225 : AIR 2006 SC 789], Divisional Forest Officer v. M. Ramalinga Reddy [(2007) 9 SCC 286 : (2007) 2 SCC (L&S) 410 : AIR 2007 SC 2226] , Subha B. Nair v. State of Kerala [(2008) 7 SCC 210 :
(2008) 2 SCC (L&S) 409], Mukul Saikia v. State of Assam [(2009) 1 SCC 386 : (2009) 1 SCC (L&S) 186 : AIR 2009 SC 747] and S.S. Balu v. State of Kerala [(2009) 2 SCC 479 : (2009) 1 SCC (L&S) 388] .)
16. A select list cannot be treated as a reservoir for the purpose of appointments, that vacancy can be filled up taking the names from that list as and when it is so required. It is the settled legal proposition that no relief can be granted to the candidate if he approaches the court after the expiry of the select list. If the selection process is over, select list has expired and appointments had been made, no relief can be granted by the court at a belated stage. (Vide J. Ashok Kumar v. State of A.P. [(1996) 3 SCC 320 : 1996 SCC (L&S) 707] , State of Bihar v. Mohd. Kalimuddin [(1996) 2 SCC 7 : 1996 SCC (L&S) 389 : (1996) 32 ATC 821 : AIR 1996 SC 1145] , State of U.P. v. Harish Chandra [(1996) 9 SCC 309 : 1996 SCC (L&S) 1240 : AIR 1996 SC 2173] , Sushma Suri v. Govt. of NCT of Delhi [(1999) 1 SCC 330 : 1999 SCC (L&S) 208] , State of U.P. v.Ram Swarup Saroj [(2000) 3 SCC 699] , K. Thulaseedharan v. Kerala State Public Service Commission [(2007) 6 SCC 190 : (2007) 2 SCC (L&S) 427] , Deepa Keyes v. Kerala SEB [(2007) 6 SCC 194 : (2007) 2 SCC (L&S) 430] and Subha B. Nair [(2008) 7 SCC 210 : (2008) 2 SCC (L&S) 409] .)"
"20. It appears from the judgment of the Tribunal that Rule 11(1) of the 1985 Rules did not provide originally to prepare the list double the number of determined Page 23 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021 C/LPA/1496/2019 CAV JUDGMENT vacancies and it was only for preparing the list containing the names equal to the number of vacancies advertised/determined. In such a fact situation, the select list could have been prepared only containing 33 names i.e. equivalent to the number of vacancies determined. In such a fact situation, selection process would come to an end automatically whenever 33 candidates are appointed. However, if the appellant had prepared a list double the number of vacancies determined, that would not create any vested right in favour of the respondents. Thus, the Tribunal committed grave error in issuing direction to offer appointments to all the leftover candidates."
"24 [Ed.: Para 24 corrected vide Official Corrigendum No. F.3/Ed.B.J./71/2010 dated 9-7-2010.] . The aforesaid view taken by the High Court cannot be held to be in consonance with law. More so, if the State has committed an error in preparing the merit list containing the names of the candidates double the number of vacancies determined, that would not mean that the select list has become immortal and all those persons whose names appeared in the list would be offered appointment even after the expiry of the life of select list.
25. In view of the above, the judgment and order impugned hereinabove cannot be sustained in the eye of the law. The appeal is allowed. The judgments and orders of the Tribunal dated 7-4-2000 and the High Court dated 26-10-2005 [State of Orissa v. Rajkishore Nanda, (2006) 7 SLR 178 (Ori)] are set aside. No order as to costs."
Punjab SEB v. Malkiat Singh, reported in
(iii) (2005) 9 SCC 22 :
"4. Having considered the respective submissions made by the learned counsel for the parties, we are of the view that the High Court committed an error in proceeding on the basis that the respondent had got a vested right for appointment and that could not have been taken away by the subsequent change in the policy. It is settled law that mere inclusion of name of a candidate in the select list does not confer on such candidate any vested right to get an order of appointment. This position is made clear in para 7 of the Constitution Bench judgment of this Court in Page 24 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021 C/LPA/1496/2019 CAV JUDGMENT Shankarsan Dash v. Union of India [(1991) 3 SCC 47 :
1991 SCC (L&S) 800 : (1991) 17 ATC 95] which reads: (SCC pp. 50-51) "7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subash Chander Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488 : (1974) 1 SCR 165] , Neelima Shangla v. State of Haryana [(1986) 4 SCC 268 : 1986 SCC (L&S) 759] or Jatinder Kumar v. State of Punjab [(1985) 1 SCC 122 : 1985 SCC (L&S) 174 : (1985) 1 SCR 899] ." (emphasis supplied)
5. The same position is reiterated and followed by this Court in All India SC & ST Employees' Assn. v. A. Arthur Jeen [(2001) 6 SCC 380] and State of Orissa v. Bhikari Charan Khuntia [(2003) 10 SCC 144 : 2004 SCC (L&S) 188].
6. It is not disputed that neither homoeopathic dispensary at Lehra Mohabbat Power Station nor a post of Homoeopathic Physician was available on 18-7-1994. The decision to set up a homoeopathic dispensary at Lehra Mohabbat and to create a post of Homoeopathic Physician in the dispensary was taken only on 1-7-1998 long after the policy decision dated 18-7-1994 and subsequent to the change in the policy dated 15-5-1998 and 2-6-1998.
This being the position, the question of the respondent Page 25 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021 C/LPA/1496/2019 CAV JUDGMENT seeking appointment to the said post pursuant to policy decision of 18-7-1994 itself did not arise. At any rate, there could be no vested right in him to claim the appointment to the said post. The High Court also committed an error in taking a view that the policy decision of 2-6-1998 could not have retrospective application to the disadvantage of the respondent. There is no question of applying the policy retrospectively. On 17-9-1998 when the names of suitable candidates were sought from the employment exchange pursuant to the decision of the Board dated 1-7-1998, it could not be said that the right of the respondent was taken away when he did not have any such vested right to get an appointment to Class II post of Homoeopathic Physician. It may also be added that the respondent was not eligible to claim appointment on priority basis having regard to the changed policy from 2-6-1998 inasmuch as the land acquired from him was less than 2 acres and he was also overage as on 17-9-1998. The revised policy made the position clear that there could be no relaxation in regard to qualification and the age-limit. Further, the scheme was devised on 18-7-1994 and subsequently it was revised only as a concession to give a helping hand as far as possible to rehabilitate the displaced families whose lands were acquired. The respondent has got compensation for his land which was acquired. The scheme giving appointment on priority basis was only in the nature of concession to eligible candidates which the respondent could not claim as a matter of right having taken compensation amount for his land which was acquired, more so when he did not fulfil the necessary requirements under the revised scheme. The High Court in the impugned order has observed that:
"Obviously, if the effort of the respondent is to deny to the petitioner the job that he seeks in the present case on the ground that he is overage, action of the respondents cannot but be termed as discriminatory."
This observation is not based on proper foundation or facts. It is not a case where any mala fides is alleged against the appellant or its officers. There is nothing to show that anybody was bent upon denying the appointment to the respondent."
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(iv) N. Mohanan v. State of Kerala, reported in (1997) 2 SCC 556 :
"2. The petitioner herein, while working as an Assistant in the Economics and Statistics Department, had applied for recruitment as Legal Assistant, Grade II, by transfer under the Kerala Secretariat Subordinate Service Special Rules (for short "the Rules"). Rule 7 of the Rules prescribes the method of appointment to the post of category 7, viz., Legal Assistants, Grade II, (i) by direct recruitment; or (ii) appointment from Assistant Tamil Translators, and Assistant Kannada Translators; or (iii) appointment or promotion from any other category in the Kerala Secretariat Subordinate Service; or (iv) transfer from any category in any Department under the Government or in the service of the High Court of Kerala. Pursuant thereto, the petitioner and others applied for appointment by transfer as Legal Assistant. Rules of rotation and quota have been prescribed in the Rules. Applications were made through Departments. Written test was conducted on 8-8-1989 and a merit list was prepared on 23-10-1989 for filling up one post of Legal Assistant, Grade II by transfer from other departments. The petitioner was included at No. 13 in the merit list. Though vacancies were existing, he was not appointed. Therefore, he filed a writ petition for a direction for appointment. Pursuant to the interim direction, he came to be appointed on 15-10-1992. By notification dated 15- 12-1992 applications were called for to fill up the post of Legal Assistant, Grade II, from other departmental candidates. Consequently, the waiting list was cancelled. It was contended that the list prepared in 1989 was still in operation. It was not intended that the list will be restricted to a particular period. The petitioner was appointed to the existing vacancy pursuant to the direction. Therefore, he is required to be regularised irrespective of the notification published on 15-12-1992 calling for applications from other departments. In this background, the High Court held that the appointment of the petitioner, though under the directions of the Court, could not be regularised. The petitioner relied upon Union of India v. Ishwar Singh Khatri [1992 Supp (3) SCC 84 :
1992 SCC (L&S) 999 : (1992) 21 ATC 851] and contended that the existing vacancies should be filled up from the select list and that the omission therein is arbitrary and Page 27 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021 C/LPA/1496/2019 CAV JUDGMENT violative of his right. We find no force in the contention. In Shankarsan Dash v. Union of India [(1991) 3 SCC 47 : 1991 SCC (L&S) 800 : (1991) 17 ATC 95 : (1991) 2 SCR 567] a Constitution Bench had held that mere inclusion of the name in the list of selected candidates does not confer any right upon any candidate to be selected unless the relevant rules so indicate. In Babita Prasad v. State of Bihar [1993 Supp (3) SCC 268 : 1993 SCC (L&S) 1076 : (1993) 25 ATC 598] though the life of the panel was not prescribed, it was directed to be confined to a reasonable time. A long waiting-list cannot be kept in infinitum in view of the principle "infinitum in jure reprobatur". A distinction has to be made for the purpose of appointment between those who have already been appointed and those who are in the waiting list or had undergone training and waiting for appointment. It cannot be treated as arbitrary. This Court has held that the panel was too long and was intended to last indefinitely barring the future generations for decades for being considered for the vacancies arising much later. In fact, the future generations would have been kept out for a very long period, if the panel would have been permitted to remain effective till it got exhausted. A panel of that type cannot be equated with a panel which is prepared having corelation to the existing vacancies or anticipated vacancies arising in the near future. In Union Territory of Chandigarh v. Dilbagh Singh [(1993) 1 SCC 154 : 1993 SCC (L&S) 144 : (1993) 23 ATC 431] it was held that a candidate whose name finds place in the select list for appointment to a civil post does not acquire an indefeasible right to be appointed in such post in the absence of any specific rule entitling him for such appointment and he could be aggrieved by his non-
appointment only when the administration does so either arbitrarily or for no bona fide or valid reason. In Nagar Mahapalika v. Vinod Kumar Srivastava [(1987) 1 SCC 602 : (1987) 3 ATC 25 : AIR 1987 SC 847] it was observed that the reason underlying the limitation of the period of life of waiting list for one year is obviously to ensure that other qualified persons are not deprived of their chances of applying for the posts in the succeeding years on being selected for appointment. In State of Haryana v. Subash Chander Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488 : (1974) 1 SCR 165] this Court had held that though vacancies were existing selected candidates had no right to appointment. It would be open to the Page 28 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021 C/LPA/1496/2019 CAV JUDGMENT Government not to appoint the candidates from the list for valid reasons. In State of Bihar v. Secretariat Asstt. Successful Examinees' Union 1986 [(1994) 1 SCC 126 :
1994 SCC (L&S) 274 : (1994) 26 ATC 500] this Court had held that a person having been selected, does not, on account of being empanelled alone, acquire any indefeasible right to appointment. Empanelment is, at the best, a condition of eligibility for purposes of appointment and by itself does not amount to selection or creating right to be appointed unless relevant rules state to the contrary. In that case, select list was prepared on the basis of merit in the examination without any qualifying marks. All the persons who wrote the examination were ranked in the merit list. They claimed the right to get appointment contending that till the list was exhausted no fresh list could be prepared and that they were entitled to the appointment. The contention was negatived and it was held that there is no provision in the relevant rules giving indefeasible right to the persons whose names appeared in the list to get appointed. There is no provision under the Rules prohibiting authorities to fix the time-limit."
(v) State of U.P. v. Rajkumar Sharma, reported in (2006) 3 SCC 330 :
"14. Selectees cannot claim the appointment as a matter of right. Mere inclusion of candidate's name in the list does not confer any right to be selected, even if some of the vacancies remained unfilled and the candidates concerned cannot claim that they have been given a hostile discrimination. (See Shankarsan Dash v. Union of India [(1991) 3 SCC 47 : 1991 SCC (L&S) 800 : (1991) 17 ATC 95 : AIR 1991 SC 1612] ; Asha Kaul v. State of J&K [(1993) 2 SCC 573 : 1993 SCC (L&S) 637 : (1993) 24 ATC 576] ; Union of India v. S.S. Uppal [(1996) 2 SCC 168 : 1996 SCC (L&S) 438 : (1996) 32 ATC 668 : AIR 1996 SC 2340] ; Hanuman Prasad v. Union of India [(1996) 10 SCC 742 : 1997 SCC (L&S) 364] ; Bihar Public Service Commission v. State of Bihar [(1997) 3 SCC 198 : 1997 SCC (L&S) 775 : AIR 1997 SC 2280] ; Syndicate Bank v. Shankar Paul [(1997) 6 SCC 584 : AIR 1997 SC 3091] ; Vice-Chancellor, University of Allahabad v. Dr. Anand Prakash Mishra [(1997) 10 SCC 264 : 1997 SCC (L&S) Page 29 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021 C/LPA/1496/2019 CAV JUDGMENT 1265] ; Punjab SEB v. Seema [1999 SCC (L&S) 629] ; All India SC & ST Employees' Assn. v. A. Arthur Jeen [(2001) 6 SCC 380 : AIR 2001 SC 1851] ; Vinodan T. v. University of Calicut [(2002) 4 SCC 726 : 2002 SCC (L&S) 606] ; S. Renuka v. State of A.P. [(2002) 5 SCC 195 : 2002 SCC (L&S) 689 : AIR 2002 SC 1523] and Batiarani Gramiya Bank v. Pallab Kumar [(2004) 9 SCC 100 : 2004 SCC (L&S) 715 : AIR 2003 SC 4248] .)
15. Even if in some cases appointments have been made by mistake or wrongly that does not confer any right on another person. Article 14 of the Constitution does not envisage negative equality, and if the State committed the mistake it cannot be forced to perpetuate the same mistake. (See Sneh Prabha v. State of U.P. [(1996) 7 SCC 426 : AIR 1996 SC 540] ; Secy., Jaipur Development Authority v. Daulat Mal Jain [(1997) 1 SCC 35] ; State of Haryana v. Ram Kumar Mann [(1997) 3 SCC 321 : 1997 SCC (L&S) 801] ; Faridabad C.T. Scan Centre v. D.G., Health Services [(1997) 7 SCC 752] ; Jalandhar Improvement Trust v. Sampuran Singh [(1999) 3 SCC 494 : AIR 1999 SC 1347] ; State of Punjab v. Dr. Rajeev Sarwal [(1999) 9 SCC 240 : 1999 SCC (L&S) 1171] ; Yogesh Kumar v. Govt. of NCT, Delhi [(2003) 3 SCC 548 : 2003 SCC (L&S) 346] ; Union of India v. International Trading Co. [(2003) 5 SCC 437] and Kastha Niwarak Grihnirman Sahakari Sanstha Maryadit v. President, Indore Development Authority [(2006) 2 SCC 604 : JT (2006) 2 SC 259] .)"
(vi) Union of India v. N.R. Banerjee, reported in (1997) 9 SCC 287 :
"12. Considered from that perspective, the question arises whether the view taken by the Tribunal is justified in law. It is true that filling up of the posts are for clear or anticipated vacancies arising in the year. It is settled law that mere inclusion of one's name in the list does not confer any right on him/her to appointment. It is not incumbent that all posts may be filled up. But the authority must act reasonably, fairly and in public interest and omission thereof should not be arbitrary. In Page 30 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021 C/LPA/1496/2019 CAV JUDGMENT Shankarsan Dash v. Union of India [(1991) 3 SCC 47 :
1991 SCC (L&S) 800 : (1991) 17 ATC 95 : (1991) 2 SCR 567] the Constitution Bench had held that inclusion of the name of a candidate in a merit list does not confer any right to be selected unless the relevant recruitment rules so indicate. The State is under no legal duty to fill up all or any of the vacancies even though the State acts in an arbitrary manner. In Babita Prasad v. State of Bihar [1993 Supp (3) SCC 268 : 1993 SCC (L&S) 1076 : (1993) 25 ATC 598] it was held that mere inclusion of one's name in the panel does not confer on him/her any indefeasible right to appointment. It was further held that the purpose of making a panel was to finalise the list of eligible candidates for appointment. The preparation of the panel should be to the extent of the notified or anticipated vacancies. Unduly wrong panel should not be operated. In Union Territory of Chandigarh v. Dilbagh Singh [(1993) 1 SCC 154 : 1993 SCC (L&S) 144 : (1993) 23 ATC 431] it was held that the mere fact that a candidate's name finds a place in the select list as a selected candidate for appointment to a post, does not confer on him/her an indefeasible right to be appointed in such post in the absence of any specific rule entitling him to such appointment. In State of Bihar v. Secretariat Asstt. Successful Examinees Union 1986 [(1994) 1 SCC 126 : 1994 SCC (L&S) 274 : (1994) 26 ATC 500] it was held that a person who is selected and empanelled does not on account of empanelment alone acquire any indefeasible right to appointment. Empanelment is, at the best, a condition of eligibility for the purposes of appointment and that by itself does not amount to selection or creation of a vested right to appointment unless relevant rules state to the contrary. However, in the light of the above principles and in the light of the clear rules extracted hereinbefore, it is seen that the exercise of preparation of the panel is undertaken well in advance to fill up the clear vacancies or anticipated vacancies. The preparation and finalisation of the yearly panel, unless duly certified by the appointing authority that no vacancy would arise or no suitable candidate was available, is a mandatory requirement. If the annual panel could not be prepared for any justifiable reason, yearwise panel of all the eligible candidates within the zone of consideration for filling up the vacancies each year should be prepared and appointment made in accordance therewith. In Nagar Mahapalika v. Vinod Kumar Srivastava [(1987) 1 SCC 602 : (1987) 3 ATC 25 :Page 31 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021 C/LPA/1496/2019 CAV JUDGMENT
AIR 1987 SC 847] this Court had pointed out with respect to the prescription of the limitation of one year of the waiting list thus:
"The reason underlying the limitation of the period of a list for one year is obviously to ensure that other qualified persons are not deprived of their chances of applying for the posts in the succeeding years and being selected for appointment."
(vii) State of Haryana v. Subash Chander Marwaha, reported in (1974) 3 SCC 220 :
"10. One fails to see how the existence of vacancies give a legal right to a candidate to be selected for appointment. The examination is for the purpose of showing that a particular candidate is eligible for consideration. The selection for appointment comes later. It is open then to the Government to decide how many appointments shall be made. The mere fact that a candidate's name appears in the list will not entitle him to a mandamus that he be appointed. Indeed, if the State Government while making the selection for appointment had departed from the ranking given in the list, there would have been a legitimate grievance on the ground that the State Government had departed from the rules in this respect. The true effect of Rule 10 in Part C is that if and when the State Government propose to make appointments of Subordinate Judges the State Government (i) shall not make such appointments by travelling outside the list, and (ii) shall make the selection for appointments strictly in the order the candidates have been placed in the list published in the Government Gazette. In the present case neither of these two requirements is infringed by the Government. They have appointed the first seven persons in the list as Subordinate Judges. Apart from these constraints on the power to make the appointments, Rule 10 does not impose any other constraint. There is no constraint that the Government shall make an appointment of a Subordinate Judge either because there are vacancies or because a list of candidates has been prepared and is in existence.Page 32 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021 C/LPA/1496/2019 CAV JUDGMENT
11. It must be remembered that the petition is for a mandamus. This Court has pointed out in Dr Rai Shivendra Bahadur v. Governing Body of the Nalanda College [AIR 1962 SC 1210 : 1962 Supp (2) SCR 144 :
(1962) 2 SCJ 208 : (1962) 1 Lab LJ 247 : (1962) 4 FIR
507.] that in order that mandamus may issue to compel an authority to do something, it must be shown that the statute imposes a legal duty on that authority and the aggrieved party has a legal right under the statute to enforce its performance. Since there is no legal duty on the State Government to appoint all the 15 persons who are in the list and the petitioners have no legal right under the rules to enforce its performance the petition is clearly misconceived."
35. The learned Single Judge further committed an error in relying upon the judgments referred to in the opening paragraph of this judgment i.e. Hemani Malhotra (supra), S.Vinod Kumar (supra), K.Manjusree (supra), Tamilnadu Computer Science B.Ed. Graduate Teachers Welfare Society (supra) and Letters Patent Appeal No.1350 of 2012 (supra). The reasons for not placing reliance on these judgments and as to why these judgments were clearly justifiable and not applicable to the facts of each case are briefly referred to hereinafter.
36. The reliance placed upon by the learned Single Page 33 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021 C/LPA/1496/2019 CAV JUDGMENT Judge on the judgment of K.Manjusree (supra) was not proper as the said view had already been referred to a Larger Bench by the Supreme Court in the case of Tej Prakash Pathak Vs. Rajasthan High Court and others reported in (2013)4 SCC 540.
37. The judgment in the case of Hemani Malhotra (supra), has also been relied upon by the learned Single Judge. Facts of the said case were different and not applicable to the facts of the present case where in the advertisement itself, no minimum cut-off marks for the viva voce were prescribed for Delhi Higher Judicial Service and as such the question which cropped up for consideration was whether introduction of requirement of minimum cut-off marks for interview after entire selection was completed would amount to changing the rules of the game. Further, in the said case of Hemani Malhotra (supra), there was no such clause mentioned in the advertisement that it could change any of the criteria published in the advertisement during the selection process whereas in the present case, specific clauses were mentioned in the advertisement itself. Thus, Page 34 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021 C/LPA/1496/2019 CAV JUDGMENT the reliance upon the judgment on the case of Hemani Malhotra (supra) by the learned Single Judge was misplaced.
38. In the case of Tamilnadu Computer Science B.Ed. Graduate Teachers Welfare Society (supra) also, there was no clause mentioned in the advertisement giving power to the Selection Committee to alter any of the conditions of the advertisement and, therefore, the said case also would not have any application.
39. Again in case of S. Vinod Kumar (supra), the competent authority was conferred with the power to fix the cut-off marks but not vested with any power to change/alter/lower the same. Again this case would be distinguishable on facts and is of no help to the original petitioners. The learned Single Judge wrongly placed reliance upon the said case.
40. The Division Bench judgment of this Court dated 20.03.2013 passed in Letters Patent Appeal No.1350 of 2012 relied upon was also not applicable as the facts of the said case were also different.
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41. In the judgment of the Supreme Court in the case of Barot Vijaykumar Balakrishna (supra), wherein distinguishing the judgments of the Supreme Court in the cases of K.Manjusree (supra) and Hemani Malhotra (supra), it was held that introduction of cut-off marks for viva voce was justified and no error was committed by the GPSC in introducing cut-off marks. In the said case, the rules had permitted fixing of the cut-off marks for viva voce. In the present case, the rules did not provide for any cut-off marks, and it was a policy decision of the Selection Committee to mention the cut-off marks in the advertisement. Any policy decision of the Selection Committee could always be altered by the Selection Committee for which it had specific powers which had been duly notified in the advertisement. We may record here that the decision of the Selection Committee to reduce the cut-off marks for general category from 60% to 40% and for the reserved categories from 57% and 55% to 35% was a reasonable and valid decision. The attempt of the Selection Committee was to ensure maximum benefit being extended to the reserved Page 36 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021 C/LPA/1496/2019 CAV JUDGMENT categories while maintaining minimum standards.
42. Thus, the judgments relied upon by the learned Single Judge were misplaced.
43. Further, the role of the Selection Committee continues till such time as the final results are not declared. In the present case, the Selection Committee was still considering and issuing notifications inviting candidates for document verification. No fault could be found with the decision of the Selection Committee dated 26.12.2016 by which the cut-off marks had been reduced for which the Selection Committee had specific powers under the advertisement itself. Even in the absence of specific Clauses 15 and 19 in the advertisement, the decision of the Selection Committee to reduce cut-off marks for justifiable reasons would be well within its domain being a policy decision. Reduction of cut-off marks cannot be said to be changing the rules of the game. A change in the rules of the game would be in terms of eligibility or qualifications for making application. Here, it is a part of the process of selection as to what would be Page 37 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021 C/LPA/1496/2019 CAV JUDGMENT the cut-off marks to consider the candidates for being selected and to fill up the vacant posts. This is exactly the issue referred for consideration in the reference order in the case of Tej Prakash Pathak (supra). It would depend upon the results received by the Selection Committee upon the respective markings in the examinations while evaluating the answer sheets and taking into consideration the candidates found eligible as against the vacancies available. Reference may also be had to the following decisions with regard to increase or reduce of cut-off marks or even inclusion of cut-off marks being a policy decision within the realm of the Selection Committee:-
(i) M.I. Hussain v. N. Singh, reported in 2005 SCC OnLine Del 1149 :
"25. In Tamil Nadu Education Dept., Ministerial and General Subordinate Services Association v. State of Tamil Nadu, (1980) 3 SCC 97 : AIR 1980 SC 379, the Supreme Court while examining the scope of interference by the Courts in public policy held that the Court cannot strike down a circular/Government Order or a policy merely because there is a variation or contradiction. The Court observed: "Life is sometimes contradiction and even inconsistency is not always a virtue. What is important is to know whether mala fides vitiates or irrational and extraneous factors fouls"."
"49. Learned counsel for the respondent (writ petitioner) has also submitted that imposing of cut-off marks is Page 38 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021 C/LPA/1496/2019 CAV JUDGMENT without any statutory sanction. In our opinion it is not necessary that there must be a statutory sanction for imposing of such cut-off marks. The school is free to take such policy decision as it deems fit for ma-intaining its standards and reputation.
50. An administrative decision does not always require a statutory sanction. For instance, it is well settled that for holding interviews for selection/admissions short- listing can be done, and it is not necessary that all those who have got marks above the statutory minimum marks must necessarily be called for the interview. In such cases the authorities can impose a non-statutory cut-off minimum marks at their discretion, and as long as there is no discrimination, the Court will not interfere, vide M.P. Public Service Commission v. Navnit Kumar Potdar, JT 1994 (6) SC 302 : (1994) 6 SCC 293."
(ii) Veerendra Kumar Gautam v. Karuna Nidhan Upadhyay, reported in (2016) 14 SCC 18 :
"22. The learned Senior Counsel Mr Jaideep Gupta submitted that the Rules only provided for interview and there was no written test prescribed and therefore where the selection is based on academic qualification and interview, there is no limit for prescription of marks for interview. The learned Senior Counsel argued that the screening guidelines were issued as early as on 6- 11-2006 both for degree colleges as well as postgraduate colleges and that for postgraduate colleges by subsequent proceedings of the Commission dated 10-4-2008, 13-5-2008 and 22-5-2008, guidelines were altered and cut-off marks were fixed as per the guidelines and necessary resolutions were passed for the ultimate cut-off mark of 34.1. The learned Senior Counsel would contend that the Commission taking into account the total number of applications received decided to call all the candidates for interview irrespective of the cut-off marks as it had possessed necessary powers under Regulation 6. The learned Senior Counsel submitted that the decision was not with any ill-motive, in order to hold that the whole selection should be set aside."
"27.3. The Commission gave reasons for the ratio it Page 39 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021 C/LPA/1496/2019 CAV JUDGMENT adopted while making the selection, that is, between 6- 11-2006 and 22-5-2008 viz. on 6-11-2006, 10-4-2008, 13-5-2008 and 22-5-2008, the Commission fixed the norms after the advertisements, reframed the guidelines for the postgraduate college selection, the cut-off index was fixed which was subsequently altered, all of which were done well before the interview was held."
"40. In the case on hand, initially, the Commission decided to limit the number of candidates by fixing the norms. The Commission by fixing the cut-off mark as 34.9 for female candidates and 35.1 for male candidates proceeded to process the applications. But it came to light that subsequently the index norms were altered and ultimately it decided to call all the candidates. Such decisions were taken on 6-11-2006, 10-4-2008, 13-4- 2008 and 22-5-2008. When we take into account the above facts, we find that while initially the Commission decided to limit the number of candidates by fixing index norms for female and male candidates, and proceeded to hold the interview, based on such norms, the question for consideration is whether the Commission could have resorted to variation of such index norms and ultimately allow all the candidates to participate in the selection. Such variation in the norms was resorted to by the Commission and the ultimate selection came to be made and it was alleged that such variation was adopted by the Commission with a view to favour certain candidates who otherwise did not come within the zone of consideration for participation in the interview. Such an allegation is definitely a very serious allegation and therefore it cannot be held that such allegations are to be simply brushed aside by accepting the stand of the Commission that ultimately the ratio was far below 1:8 or within the said range. We are concerned with the decision of the Commission which it took at the initial stages before the commencement of the interview, though not before the last date of submission of the application viz. 3-4-2006. Though the Commission has been invested with ample powers under Regulation 6, in the matter of calling of the candidates for interview and also limit such calling of the candidates, the Commission is expected to display its honest approach in its dealings. The Commission cannot follow certain practices, which gives scope for serious criticisms especially where it relates to the matter of selection for Page 40 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021 C/LPA/1496/2019 CAV JUDGMENT very responsible post of Principal to various aided and affiliated colleges of the State University."
"46. So far as the said principle is concerned, in the case on hand, it is not merely a violation of the proportion of the candidates called for the interview vis-à-vis the number of posts, which were to be filled up. The Division Bench has noted, which we have also seen, where we have found that the Commission even while exercising its power under Regulation 6(1) was not consistent in the matter of calling the candidates for the interview. For very valid reasons, stated by the Division Bench, we have found that for reasons best known to it, the Commission was varying the cut-off index and in that process it came to light that ineligible candidates numbering more than 100 were allowed to participate and amongst whom 15 got selected for the post of Principal. That apart, the Division Bench has also pointed out various other discrepancies in the selection to show that everything was wrong in the selection made especially when it declined to examine the plea of quo warranto on the ground by applying the de facto doctrine. Therefore, the said decision does not anyway apply to the facts of this case."
(iii) Anupal Singh v. State of U.P., reported in (2020) 2 SCC 173 :
"47. The case in hand is distinguishable from those cases where the mode of selection was altered by fixing the cut-off marks after the selection process had completed/commenced; whereas in the present case only wrongful calculation in the number of vacancies in different categories had been corrected in order to satisfy the percentage of reservation against various categories as per the provisions of the U.P. Reservation Act, 1994. Such correction cannot be said to be changing the rules or basis of selection. The eligibility criteria was not changed.
48. It is also pertinent to note that the proposition of law that rules of game cannot be changed after the selection has been commenced itself has been referred for reconsideration by a larger Bench in Tej Prakash Pathak v. Rajasthan High Court [Tej Prakash Pathak v. Rajasthan High Court, (2013) 4 SCC 540 : (2013) 2 SCC (L&S) 353] . While referring the matter to a larger Bench, in Tej Page 41 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021 C/LPA/1496/2019 CAV JUDGMENT Prakash [Tej Prakash Pathak v. Rajasthan High Court, (2013) 4 SCC 540 : (2013) 2 SCC (L&S) 353] , the Supreme Court explained the ambit of the expression "changing the rules of the game" as under : (SCC pp. 544-46, paras 11 &
15) "11. Those various cases deal with situations where the State sought to alter (1) the eligibility criteria of the candidates seeking employment, or (2) the method and manner of making the selection of the suitable candidates. The latter could be termed as the procedure adopted for the selection, such as, prescribing minimum cut-off marks to be secured by the candidates either in the written examination or viva voce as was done in K. Manjusree v. State of A.P. [K. Manjusree v. State of A.P., (2008) 3 SCC 512 : (2008) 1 SCC (L&S) 841] or the present case or calling upon the candidates to undergo some test relevant to the nature of the employment (such as driving test as was in Maharashtra SRTC v.
Rajendra Bhimrao Mandve [Maharashtra SRTC v. Rajendra Bhimrao Mandve, (2001) 10 SCC 51 : 2002 SCC (L&S) 720] .
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15. No doubt it is a salutary principle not to permit the State or its instrumentalities to tinker with the "rules of the game" insofar as the prescription of eligibility criteria is concerned as was done in C. Channabasavaih v. State of Mysore [C. Channabasavaih v. State of Mysore, AIR 1965 SC 1293] , etc. in order to avoid manipulation of the recruitment process and its results. Whether such a principle should be applied in the context of the "rules of the game" stipulating the procedure for selection more particularly when the change sought is to impose a more rigorous scrutiny for selection requires an authoritative pronouncement of a larger Bench of this Court. We, therefore, order that the matter be placed before the Hon'ble Chief Justice of India for appropriate orders in this regard."
"84.3. Absorption of diploma-holders was required to be done only against the "general quota". The High Court was not right in saying that the diploma-holders ought not to have been absorbed against the "general category" so as to alter the advertised number of posts Page 42 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021 C/LPA/1496/2019 CAV JUDGMENT against the "general category".
84.4. Revising the number of vacancies in different categories to satisfy the statutory requirement of reservation quota as per the U.P. Reservation Act, 1994 and this would not amount to changing the rules of the game after the commencement of the selection process.
85. In the result, the common impugned judgment dated 10-2-2017 [Manish Upadhyay v. State of U.P., 2017 SCC OnLine All 334 : (2017) 3 All LJ 610] of the High Court in WP (C) No. 34196 of 2015 and batch of writ petitions is set aside and these appeals are allowed. The private respondent intervenors and 906 candidates who were not issued appointment orders and those who filed writ petitions before the High Court shall be granted age relaxation as one-time measure to participate in the upcoming recruitment. Age relaxation is strictly a one- time measure. Consequently, all the intervenors/ impleading applications stand dismissed."
(iv) Ashoka Kumar Thakur v. Union of India, reported in (2008) 6 SCC 1 :
371 [Ed.: Para 371 corrected vide Official Corrigendum No. F.3\Ed.B.J.\53\2011 dated 18-10-2011.] . The Union of India should appreciate in proper perspective that the root cause of social and educational backwardness is poverty. All efforts have to be made to eradicate this fundamental problem. Unless the creamy layer is removed, the benefit would not reach those who are in need. Reservation sends the wrong message. Everybody is keen to get the benefit of backward class status. If we want to really help the socially, educationally and economically backward classes, we need to earnestly focus on implementing Article 21-A. We must provide educational opportunity from day one. Only then will the casteless/classless society be within our grasp. Once children are of college-going age, it is too late for reservation to have much of an effect. The problem with the Reservation Act is that most of the beneficiaries will belong to the creamy layer, a group for which no benefits are necessary. Only non-creamy layer OBCs can avail of reservations in college admissions, and once they graduate from college they should no longer be eligible Page 43 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021 C/LPA/1496/2019 CAV JUDGMENT for postgraduate reservation. 27% is the upper limit for OBC reservation. The Government need not always provide the maximum limit. Reasonable cut-off marks should be set so that standards of excellence are not greatly affected. The unfilled seats should revert to the general category.
11. Would it be reasonable to balance obc reservation with societal interests by instituting obc cut-off marks that are slightly lower than that of the general category?
627. Balaji [AIR 1963 SC 649 : 1963 Supp (1) SCR 439] concluded that reservation must be reasonable. The Oversight Committee has made a recommendation that will ensure the same. At p. 34 of Vol. I of its Report, the Oversight Committee recommended that institutions of excellence set their own cut-off marks such that quality is not completely compromised. Cut-offs or admission thresholds as suggested by the Oversight Committee are reproduced:
"4.4.2. The Committee recognises that those institutions of higher learning which have established a global reputation (e.g. IITs, IIMs, IISc, AIIMS and other such exceptional quality institutions), can only maintain that if the highest quality in both faculty and students is ensured. Therefore, the Committee recommends that the threshold for admission should be determined by the respective institutions alone, as is done today, so that the level of its excellence is not compromised at all.
4.4.3. As regards 'cut-offs' in institutions other than those mentioned in Para 7, these may be placed somewhere midway between those for SC/ST and the unreserved category, carefully calibrated so that the principles of both equity and excellence can be maintained.
4.4.4. The Committee strongly feels that the students who currently tend to get excluded must be given every single opportunity to raise their own levels of attainment, so that they can reach their true potential. The Government should invest heavily in creating powerful, well designed and executed remedial preparatory measures to achieve this objective fully."
628. Standards of excellence however should not be Page 44 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021 C/LPA/1496/2019 CAV JUDGMENT limited to the best aided institutions. The nation requires that its citizens have access to quality education. Society as a whole stands to benefit from a rational reservation scheme.
629 [Ed.: Para 629 corrected vide Official Corrigendum No. F.3/Ed.B.J./41/2008 dated 6-6-2008.] . Finding 68% reservation in educational institutions excessive, Balaji [AIR 1963 SC 649 : 1963 Supp (1) SCR 439] , at SCR pp. 470-71 admonished States that reservation must be reasonable and balanced against other societal interests. States have "to take reasonable and even generous steps to help the advancement of weaker elements; the extent of the problem must be weighted, the requirements of the community at large must be borne in mind and a formula must be evolved which would strike a reasonable balance between the several relevant considerations" (AIR p. 663, para 34).
To strike such a balance, Balaji [AIR 1963 SC 649 : 1963 Supp (1) SCR 439] slashed the impugned reservation from 68% to less than 50%. Balaji [AIR 1963 SC 649 :
1963 Supp (1) SCR 439] thus serves as an example in which this Court sought to ensure that reservation would remain reasonable. We heed this example. There should be no case in which the gap of cut-off marks between OBC and general category students is too large. To preclude such a situation, cut-off marks for OBCs should be set no lower than 10 marks below the general category. To this end, the Government shall set up a committee to look into the question of setting the OBC cut-off at not more than 10 marks below that of the general category. Under such a scheme, whenever the non-creamy layer OBCs fail to fill the 27% reservation, the remaining seats would revert to general category students."
44. One last observation by the learned Single Judge that in view of the Appendix to the advertisement, all Page 45 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021 C/LPA/1496/2019 CAV JUDGMENT vacancies of the reserved category would revert to the parent category and in particular, all female reservation would go to male category, also has no application. This observation again is based upon the assumption of the learned Single Judge that the results had been finally declared on 3rd September, 2016 or earlier, in any case prior to 26.12.2016, which fact, in our view, is not correct as already discussed above.
45. For the reasons recorded above, we are of the view that the Selection Committee did not commit any illegality in reducing cut-off marks at the stage of document verification and its decision dated 26.12.2016 being a policy decision well within its powers would be just, fair and reasonable. It has also ensured that the minimum standards are maintained while balancing to fill up all posts reserved under different categories, be it for horizontal or for vertical reservation.
46. Accordingly, the appeals succeed and are allowed.
The judgment of the learned Single Judge dated 14.06.2019 passed in Special Civil Application No.21988 Page 46 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021 C/LPA/1496/2019 CAV JUDGMENT of 2016 and Special Civil Application No.4708 of 2017 is set aside. Rule is made absolute. Consequently, connected Civil Applications stand disposed of.
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(VIKRAM NATH, CJ) Sd/-
(ASHUTOSH J. SHASTRI, J) FURTHER ORDER After the judgment was delivered, Shri Hemang Shah, learned counsel for the respondents requested for stay of the judgment to enable the respondents to avail the remedy available to them. We are not inclined to accept the request, in view of the findings recorded by us in the judgment. Request is declined.
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(VIKRAM NATH, CJ) Sd/-
(ASHUTOSH J. SHASTRI, J) P. SUBRAHMANYAM/RADHAN/GAURAV Page 47 of 47 Downloaded on : Thu Jan 21 20:47:52 IST 2021