Gujarat High Court
Lekhabahen Kanaiyalal Modi & vs State Of Gujarat & 89 on 24 August, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/8894/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8894 of 2015
With
SPECIAL CIVIL APPLICATION NO. 8987 of 2015
With
SPECIAL CIVIL APPLICATION NO. 8991 of 2015
With
SPECIAL CIVIL APPLICATION NO. 8992 of 2015
With
SPECIAL CIVIL APPLICATION NO. 8995 of 2015
With
SPECIAL CIVIL APPLICATION NO. 9556 of 2015
With
SPECIAL CIVIL APPLICATION NO. 9697 of 2015
With
SPECIAL CIVIL APPLICATION NO. 10634 of 2015
With
SPECIAL CIVIL APPLICATION NO. 10822 of 2015
With
SPECIAL CIVIL APPLICATION NO. 10823 of 2015
With
SPECIAL CIVIL APPLICATION NO. 10829 of 2015
With
SPECIAL CIVIL APPLICATION NO. 10863 of 2015
With
SPECIAL CIVIL APPLICATION NO. 9636 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
==========================================================
1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
Page 1 of 53
HC-NIC Page 1 of 53 Created On Tue Aug 25 01:45:26 IST 2015
C/SCA/8894/2015 CAV JUDGMENT
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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LEKHABAHEN KANAIYALAL MODI & 1....Petitioner(s)
Versus
STATE OF GUJARAT & 89....Respondent(s)
==========================================================
Appearance:
MR KAUSHAL D PANDYA, ADVOCATE for the Petitioner(s) No. 1 - 2
ADVANCE COPY SERVED TO GP/PP for the Respondent(s) No. 1
MR HEMANG M SHAH, ADVOCATE for the Respondent(s) No. 3 - 40 , 42 - 90
MR PREMAL R JOSHI, ADVOCATE for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 24/08/2015
CAV JUDGMENT
1. Since the issues arising for my consideration in the captioned writapplications are more or less the same those were heard analogously and are being disposed of by this common judgment and order.
2. Rule. Mr. Premal R. Joshi, the learned Page 2 of 53 HC-NIC Page 2 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT advocate waives service of notice of rule for and on behalf of the Gujarat Public Service Commission. Mr. Rohan Yagnik, the learned AGP waives service of notice of rule for and on behalf of the Staterespondent. Mr. Hemang M. Shah, the learned advocate waives service of notice of rule for and on behalf of the respondents Nos. 3 to 40 and 42 to 90.
3. The petitioners, desirous of seeking appointment to the post of the Assistant Inspector of Motor Vehicle, ClassIII, seek to challenge the mode and method of the recruitment in light of the 30% reservation provided for the women candidates in the advertisement issued by the Gujarat Public Service Commission.
4. The case of the petitioner may be summarized as under:
5. The respondent No.2Gujarat Public Service Commission published an advertisement dated 13th Page 3 of 53 HC-NIC Page 3 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT February 2014, No.118/201314 inviting applications from the eligible candidates for the recruitment to the post of the Assistant Inspector of Motor Vehicle, ClassIII. The period for the submission of the application was fixed between 13th February, 2014 and 28th February, 2014. The total number of posts to be filled up was 120 out of which 36 posts were kept reserved for the women candidates in different categories.
6. The petitioners submitted there applications online in response to the advertisement referred to above.
7. Each of the petitioners received the call letters dated 21st May, 2014 to appear in the competitive examination which was held on 8th June, 2014.
8. The provisional result of the competitive examination held on 8th June, 2014 was declared by the GPSC and all the petitioners were able to Page 4 of 53 HC-NIC Page 4 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT successfully clear the exam.
9. In all 378 candidates were declared as successful in the provisional list.
10. In all 378 candidates the petitioners appeared for the fitness examination.
11. The final common merit list of 309 candidates was prepared belonging to the General, SEBC, SC and ST categories.
12. It appears that the qualifying marks were fixed by the GPSC. None of the petitioners were able to secure the qualifying marks and therefore were not considered for being appointed to the post of the Assistant Inspector of Motor Vehicles, ClassIII despite 30% reservation for the women.
13. Being dissatisfied, the petitioners have come up with their respective writpetitions.
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14. The learned advocates appearing for the petitioners vehemently submitted that the GPSC failed to comply with the rules governing the appointment to the post of the Assistant Inspector of Motor Vehicle, ClassIII. They submitted that the commission failed to comply with the rule15(2) of the rules which provides that the commission is obliged to prepare a separate list of the successful candidates belonging to the schedule castes, scheduled tribes, socially and educationally backward classes including women to the extent of the number of vacancies reserved for such categories.
The learned advocates further submitted that the commission could not have fixed the qualifying marks on the basis of the marks obtained by the last candidate selected of the general category.
15. It was also argued that the commission ought to have declared the qualifying standard much in advance. In short, the submission of the learned advocates appearing for the petitioners is that Page 6 of 53 HC-NIC Page 6 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT although the commission has the power to fix the qualifying standard of the written test yet the petitioners could not have been kept in dark so far as the qualifying marks were concerned.
16. It was also contended that the reservation for the women being horizontal, the commission should have gone below the cut off marks so as to include the petitioners.
17. It was sought to be contended that if the State Government thought fit to provide for 30% reservation for the women then the commission should have seen to it that at any cost the women candidates were appointed to the post irrespective of their merit.
18. The learned advocates vehemently submitted that the whole object of providing reservation for the women has been frustrated by not appointing the women candidate i.e. the petitioners.
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19. In support of their above noted submissions reliance has been placed on the following decisions of the Supreme Court;
(i) P.V. Indiresan V. Union of India. 2011 (8) SCC 441.
(ii) Yogesh Yadav V. Union of India, AIR 2013 SC 3372
(iii) Government of Andhara Pradesh V. P.B. Vijaykumar and another, AIR 1995 SC 1648
(iv) Himani Malhotra V. High Court of Delhi, 2008 (7) SCC 11.
20. On 19th June, 2015 the following order was passed: "These matters have been heard by now for quite some time. I have heard the learned counsel appearing for the parties at length. Many issues have cropped up in the course of the hearing of these matters. The challenge in these petitions is substantially to the method and process adopted by the GPSC in selecting the candidates. Out of 9000 and odd Page 8 of 53 HC-NIC Page 8 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT applications received for the posts, a list of 378 candidates was prepared. The same was, thereafter, reduced to 309. 120 posts were to be filled up.
It appears, prima facie, subject to further deliberations on the issues, that the GPSC did not lay down any qualifying standards or marks from the inception. While preparing the final select list of 120 candidates, the method obtained was that it took into consideration the marks obtained by the last candidate of each of the categories i.e. General, SC, ST and SEBC. Thus, the benchmark was the marks obtained by the last candidate in the list of the specified category and, thereafter, the same was reduced by 10%.
The stance of the GPSC is that the procedure adopted was quite correct and in accordance with law. Despite giving relaxation of 10% to the woman candidates of each of the categories, they did not qualify as they failed to obtain the requisite marks.
On the other hand, the case of the petitioners is that the method adopted is quite contrary to the settled position of law. The learned counsel appearing for the respective petitioners have pointed out various decisions of the Supreme Court on this issue. If I allow these writapplications and hold that the entire selection process is vitiated on account of the method adopted by the GPSC, then the entire select list will have to be cancelled. 120 candidates have already been selected and they are not before the Court. Before passing any further orders in the matter, I am of the view that it is necessary to hear them. None of the petitioners have joined the selected candidates. The petitions could have been rejected solely on that ground alone, however, having regard to the fine issues which have cropped up, I deem it necessary to invite all those 120 candidates selected, to make their submissions, if they at all want to make before the Court. The petitioners have expressed their inability to join all those 120 candidates because they do not have the addresses of them.
Page 9 of 53HC-NIC Page 9 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT I am of the view that ends of justice would be met if a public notice is given in the newspapers at the cost of the petitioners regarding these writpetitions which have been filed.
The registry shall prepare a draft in this regard and hand it over to the learned counsel appearing for the petitioners. The petitioners, in turn, shall get it published in the newspapers; one, in English, and the other, in vernacular, i.e. the Times of India and the Gujarat Samachar, respectively. The public notice should specify that all these matters shall now be heard by the Court on 17th July 2015 at 11:00 a.m. sharp and if any of the selected candidates has anything to submit, it shall be open for them either to appear in person or through their advocate. Till 17th July 2015, the State Government shall not process further with the appointments."
21. In response to the public notice issued in the news papers few candidates figuring in the final select list and appointed to the post got themselves impleaded as the party respondents and opposed the writ applications through their learned senior advocate Mr. Shalin Mehta.
Submissions on behalf of the GPSC
22. Mr. Premal Joshi, the learned advocate appearing for the commission submitted that no illegality could be said to have been committed Page 10 of 53 HC-NIC Page 10 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT by the commission in preparing the final select list. Mr. Joshi submitted that as total 120 posts were to be filled up, the provisional list was prepared three times as under: Total Male Female General 62 43 43X3=129 19 19X3=57 SEBC 32 22 22X3=66 10 10X3=30 SC 08 06 06X3=09 02 02X3=06 ST 18 13 13X3=39 05 05X3=15 243 108 === ===
23. Mr. Joshi submitted that the cut off marks/qualifying standard for the candidates of the general category was fixed at 161. The GPSC relaxed 10% of the cut of marks for the women. In such circumstances, for the women candidates falling within the general category, the cut of marks was fixed at 145 (16116). He submitted that the commission went up to 145 marks to fill up the remaining 18 posts reserved for the women.
He pointed out that the required number of women Page 11 of 53 HC-NIC Page 11 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT candidates in the general category could not be selected even after relaxing 10% of the cut off marks (qualifying standard) of the general category. He pointed out that the last male candidate (GFM19) secured 156 marks. Thus, 18 posts had to be filled up by the male candidates and therefore the qualifying standard for the male candidate was fixed at 156 marks. Even after relaxing 10% from the said qualifying marks (156 16=140) not a single women candidate was available. There was only one women candidate who could find place in the merit list of the general category having secured 137 marks. All the remaining posts reserved for women had to be filled up by the male candidates. Mr. Joshi pointed out that the same procedure was under
taken in case of the other category of candidates.
24. Mr. Joshi submitted that the commission has the power under the rules to fix the cut off marks which is popularly known as the qualifying Page 12 of 53 HC-NIC Page 12 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT marks for the purpose of final select list. He submitted that therefore, it is only after the result of the written test, the commission would be in a position to know as to how many candidates are to be interviewed and the qualifying marks or the cut of marks would be fixed accordingly. He submitted that therefore the argument of the learned advocates appearing for the petitioners that the petitioners were kept in dark so far as the qualifying marks are concerned is without any merit.
25. Mr. Joshi, submitted that even in the reserved categories like women while making appointment, the efficiency of the administration could not have been completely ignored and although the reserved category candidates would deserve a relaxed standard of the minimum qualification, the minimum prescribing of the qualification cannot be completely done away with.
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26. In such circumstances, referred to above, Mr. Joshi submitted that there being no merit in the challenge raised by the petitioners all the writ applications deserve to be rejected. Mr. Joshi placed reliance on the following decisions:
(i) Professor A. Marx v. Government of Tamilnadu, 2014 (13) SCC 329;
(ii) An order passed by a learned Single Judge of this Court in the case of Hemlata R. Joshi v.
GPSC, SCA No.5733/2004, decided on 11th March, 2005.
(iii) A decision of the learned Single Judge of this Court in the case of Dr. Mehta Rakshaben Kantilal v. GPSC, SCA No.25773/2007, decided on 13th December, 2007.
(iv) A Division Bench decision of this Court in the case of Asha M. Barasara v. GPSC, LPA No. 1/2008, decided on 11th February, 2008.
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(v) Nagori Ruksana Ahmedkhan v. State of Gujarat, LPA No.2474/2010, decided on 25th January, 2011.
27. Mr. Rohan Yagnik, the learned AGP appearing for the State Government submitted that there is no challenge by any of the petitioners to the advertisement. He submitted that under rule6 of the rules the GPSC has the power to prescribe the qualifying standard. He submitted that rule15(2) would come into play only if the candidate is successful. He submitted that there being no merit in these writapplications they may be rejected.
28. Mr. Mehta, the learned senior advocate appearing for the newly impleaded respondents submitted that no illegality or any irregularity could be said to have been committed by the commission in preparing the final select list for the post. He submitted that his clients are the successful candidates to whom the appointment Page 15 of 53 HC-NIC Page 15 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT orders were issued by the Commissioner of Motor Vehicles dated 10th June, 2015 asking them to report for work on 21th June, 2015. He submitted that the petitioners have misinterpreted the rules and the government resolutions issued from time to time. He submitted that none of the fundamental rights or any legal rights of the petitioners could be said to have been infringed so as to make these writapplications maintainable. He submitted that there being no merit in any of the writapplications they deserve to be rejected.
29. Mr. Mehta in support of his submission has relied on a Supreme Court decision in the case of Yogesh Yadav v. Union of India, 2013 (14) SCC
623.
30. On behalf of the Commission an affidavitin reply has been filed making the following averments: "4. I state and submit that the GPSC released Page 16 of 53 HC-NIC Page 16 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT the advertisement No.118/1314 dated 13/2/2014 for filling up total 120 posts of Assistant Inspector of Motor Vehicles, ClassIII as under: No. Category Total Posts Out of total posts reserved for women candidates 1 GENERAL 62 19 2 SEBC 32 10 3 SC 8 2 4 ST 18 5 Total 120 36 I state and submit that GPSC has first prepared the list of all the candidates in order of merit in the descending order i.e. the candidate with highest total marks is that merit no.1 and the candidates during lowest mark is at the bottom.
5. I state and submit that GPSC has determined the lower qualifying marks for women candidates in comparison with the male candidates of the respective category for recruitment. In the present case, in the advertisement (page 11) (AnnexureA), it is categorically stated that total reserved seats for women candidates is 36 in all the categories. It is further noted that on the posts which are reserved for the women, if the women candidates are not available, in that case, the said post in the concerned category would be allotted to the male candidate of the said category.
6. I state and submit that GPSC has taken into consideration the following rules/circulars of the State of Gujarat;
(i) the Gujarat Civil Services (Reservation of posts for women) Rules, 1997;
(ii) the Gujarat Civil Services (Reservation of posts for women) (Amendment) Rules, 2012;
(iii) Circular no. CRR10962213/G2 dated Page 17 of 53 HC-NIC Page 17 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT 22nd May, 1997 issued by the General Administration Department, Government of Gujarat;
(iv) Decision of GPSC dated 25/10/2001 based on the legal opinion of the learned the then Advocate General dated 6th of October, 2001 pertaining to relaxation of 10% marks for women candidates in the qualifying standard of male candidates of respective categories.
7. At this stage, the circular No.CRR/1096/2213/G2 dated 22/5/1997 issued by the State of Gujarat, General Administration Department would be relevant. I crave leave of the Honourable Court to refer to the said circular which provides that on the posts which are reserved for the women, if the women candidate is not available, in that case, the said post in the concerned category would be allotted to the male candidate of the said category. The copy of circular dated 22/5/1997 is annexed here with and marked as AnnexureI.
8. I further state and submit that in the present case, cut off/qualifying standard in general category was 161. In general category only one woman candidate has secured 171 marks. I state and submit that GPSC has relaxed 10% of the cut off marks for the women. Under the circumstances, for women, cut off marks was 145 (161 marks16 marks). I stated and submit that required number of women candidates could not be selected even after relaxing 10% of the cut off marks (qualifying standard) of general category. In the present case, the GPSC has prepared the final merit list including the women candidates who have secured 145 marks which is to be considered as cut off marks/qualifying standard. Since the required number of women candidates could not be selected, considering the circular dated 22.05.1997 issued by the State of Gujarat, General Administration Department, remaining 18 posts reserved for women candidates of general category, male candidates of general category were selected. Thus, 18 posts have to be filled by male candidate and that is Page 18 of 53 HC-NIC Page 18 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT why the qualifying standard for the male candidate was 156 marks. Even after relaxing 10% from the said qualifying marks of 156 not a single woman candidate was available. I state and submit that the first woman candidate in the merit list of general category who has secured the highest marks is 137 i.e. far below the qualifying marks of
140.
9. I state and submit that cut off/qualifying standard in SEBC category was 145. I state and submit that GPSC has relaxed 10% of the cut off marks for the women in reserved category also. Under the circumstances, for SEBC women, cut off marks/qualifying standard was 130 [145 marks - 15 marks (10% of 145=14.5 i.e. 15 marks)]. I state and submit that required number of women candidates of SEBC category could not be selected even after relaxing 10% of the cut off marks (qualifying standard) of their respective category. Thus, 10 posts were to be filled by male candidate and that is why the qualifying standard for the male candidate was 142 marks. Even after relaxing 10% from the said qualifying marks 142 i.e. 128 marks, not a single woman candidate was available in required criteria.
I state and submit that the first woman candidate in the merit list of SEBC category who has secured the highest marks is 78 i.e. below the qualifying marks. I state and submit that the petitioners have secured only 43 marks and only 38 marks respectively.
10. I state and submit that cut off/qualifying standard in Schedule Caste Category was 147. I state and submit that GPSC has relaxed 10% of the cut off marks for the women in reserved category also. Under the circumstances, for women, cut off marks/qualifying standard was 132 [147 marks
- 15 marks 910% of 147=14.5 i.e. 15)]. I state and submit that required number of women candidates of SC category could not be selected even after relaxing 10% of the cut off marks (qualifying standard) of their respective category. Thus, the 2 posts are to Page 19 of 53 HC-NIC Page 19 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT be filled by male candidate. That is why the qualifying standard for the male candidate was 146 marks. Even after relaxing 10% from the said qualifying marks 146, not a single woman candidate was available in required criteria.
I state and submit that the first woman candidate in SC category who has secured the highest marks is 39 i.e. far below the qualifying marks of 131.
11. I state and submit that cut off/qualifying standard in Schedule Tribe category was 131. I state and submit that GPSC has relaxed 10% of the cut ff marks for the women in reserved category also. Under the circumstances, for women, cut off marks/qualifying standard was 118 [131 marks
- 13 marks (10% of 131=13.1 i.e. 13]. I state and submit that required number of women candidates of SC category could not be selected even after relaxing 10% of the cut off marks (qualifying standard) of their respective category. Thus, 5 posts are to be filled by male candidate. That is why the qualifying standard for the male candidate was 123 marks. Even after relaxing 10% from the said qualifying marks 123, not a single woman candidate was available in required criteria.
I state and submit that the first women candidate in SC category who has secured the highest marks is 58 i.e. far below the qualifying marks of 111.
12. I state and submit that Article 16(4) of the Constitution of India provides for social reservation in favour of the Scheduled Castes, Scheduled Tribes and OBC which is vertical reservation. The special reservation in favour of women, physically handicapped etc. under Article 16(1) or 15(3) of the Constitution of India is horizontal reservation."
31. On behalf of the respondent Nos. 3 to 90 Page 20 of 53HC-NIC Page 20 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT affidavitinreply has been filed, interalia, stating as under: "20. The respondent's no.390 had filed Civil Application no.7231/15 for being impleaded as party respondents in present Special Civil Application. On 03.07.2015. Civil Application no.7231/15 came to be allowed by this Hon'ble Court.
21. The petitioners have misinterpreted the provisions of the advertisement and the Government Resolutions issued by the State Government from time to time.
22. The respondent no.2 had reserved 19 posts in general category. 10 posts in SEBC category; 02 posts in SC category and 18 posts in ST category. The entire recruitment process had to be filled in through competitive selection method. Therefore, the candidate securing highest mark would have to be given preference over others. In the advertisement it was specifically mentioned that in the event of nonavailability of woman candidate in the relevant category, such post would be filled up through male candidate from the same category.
23. In the present instance, posts of male candidates were filled up first. Accordingly, in each category the posts of male candidates were filled up. After filling up the last male candidate the marks secured by the last male candidate were taken into consideration and relaxation of 10% was applied. The marks obtained after relaxation were considered as the qualifying/passing marks for the female candidate in the relevant category.
24. In SEBC category, 32 posts had to be filled up. Out of which 22 posts had to be filled up through male candidates and the remaining 10 posts had to be filled up through female candidates. The 1st male candidate had secured 159 marks, whereas the 22nd male candidate had secured 145 marks. Now after applying the relaxation of 10% marks (as per Page 21 of 53 HC-NIC Page 21 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT the decision of GPSC dated 25.10.2001 on the basis of the opinion of Advocate General) the qualifying mark for female candidates would be 130 marks (i.e. 14515=130). Therefore, a female candidate in SEBC category would have to secure minimum 130 marks so as to secure appointment on the post of Assistant Inspector of Motor Vehicle. The 1st female candidate in SEBC category had secured only 78 marks. Whereas, the petitioner no.1 had secured 43 marks and petitioner no.2 had secured 38 marks. Thus none of the female candidate in SEBC category had scored the minimum required marks (i.e. 130 marks).
25. Since none of the female candidates (including the present petitioners) had scored the minimum qualifying/passing marks, their posts were filled up through male candidates from the same category.
26. It would be pertinent to state that even on the previous occasions when recruitment was undertaken, the very same procedure was followed as is followed in the present recruitment. A copy of the notification issued during the earlier recruitment is annexed hereto and marked as AnnexureZ10.
27. I state that pursuant to issuance of the appointment letter on 10.06.2015, many of the respondents have quit their earlier jobs so as to join duty on the post of Assistant Inspector of Motor Vehicle. In view of the stay granted by this Hon'ble Court, many of the respondents are adversely affected as they are restrained from joining their duty. In some instances. The respondent is the sole earning member of the family and without any salary, it would be really for him/her to maintain his/her family.
28. In view of the aforesaid facts and circumstances, non of the fundamental rights of the petitioners are violated by the State Authorities. The petitioners have no fundamental right to appointment. They only have a right to be considered for appointment provided they are eligible and they pass the recruitment process. Here they failed to Page 22 of 53 HC-NIC Page 22 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT secure the qualifying marks. The respondent no.2 has prerogative to fix qualifying marks. A candidate who fails to secure the qualifying marks cannot clamour for appointment. So the petitioner's case is doomed."
32. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the GPSC adopted the correct procedure in preparing the final select list for the recruitment to the post of the Assistant Motor Vehicles, ClassIII in the Gujarat Motor Vehicles Department.
33. The State Government vide its notification dated 17th May, 2012 framed the rules called the Assistant Inspector of Motor Vehicle, ClassIII, competitive examination rules, 2012, in exercise of its powers conferred by the proviso to Article 309 of the Constitution of India. Rule5 provides for the holding of examination. It reads thus: "5. Holding of Examination. (1) The Commission, on receiving the requisition from the concerned appointing authority shall hold the examination Page 23 of 53 HC-NIC Page 23 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT for recruitment to the post of Assistant Inspector of Motor Vehicles, ClassIII.
(2) The date, time and the place for holding the examination shall be decided by the Commission."
34. Rule6 provides for the mode of examination.
It reads thus: "6. Mode of Examination. (1) The Commission shall hold the written test comprising of the papers as specified in Appendix.
(2) The qualifying standard of the written test shall be fixed by the Commission."
35. Rule15 provides for the preparation of merit (select list). It reads as under: "15. Preparation of Merit/Select List. (1) The Commission shall cause to prepare the select list of the successful candidates in order of merit on the basis of aggregate marks finally awarded to each candidate in examination and in that order, the Commission shall recommend the names of qualified/successful candidates for appointment to the extent of the number of vacancies advertised for, to the Government:
Provided that where the vacancies reserved for the candidates belonging to the Scheduled Castes, Scheduled Tribes, Socially and Educationally Backward Classes including Nomadic Tribes and Denotified Tribes cannot be filled in on the basis of qualifying marks fixed for the candidates of general category, the Commission may relax the standard of marks to make up the deficiency in the reserved posts/categories.Page 24 of 53
HC-NIC Page 24 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT (2) The Commission shall also recommend the names of successful candidate belonging to the Scheduled Castes, Scheduled Tribes, Socially and Educationally Backward Classes including Nomadic Tribes and Denotified Tribes and Women to the extent of the number of vacancies reserved for such categories."
36. Rule18 reads as under: "18. No Right to Appointment. The successful candidates shall ordinarily be considered for appointment to the post in order of merit determined by the Commission up to the number of posts to be filled in. The mere success in the examination shall not itself confer any right to appointment unless the appointing authority is satisfied after such inquiry as may be considered necessary that the candidate is suitable in all respect for appointment to the post."
37. I may also quote the Gujarat Civil Services (Reservation of Posts for Women) Rules 1997 as under: "RULE 2 : Reservation of posts for women Notwithstanding anything contained in any rules or orders relating to recruitment to public services and posts in connection with the affairs of the State :
(a) there shall be reserved in favour of women belonging to the Scheduled Castes thirty percent of the posts reserved in favour of such Castes;
(b) there shall be reserved in favour of women belonging to the Scheduled Tribes thirty percent of the posts reserved in favour of such Tribes;
(c) there shall be reserved in favour of women belonging to the Socially and Educationally Backward Classes thirty percent of the posts reserved in favour of such Classes;
(d) there shall be reserved in favour of women Page 25 of 53 HC-NIC Page 25 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT thirty percent of the posts not being posts reserved in favour of the Scheduled Castes; Scheduled Tribes and Socially and Educationally Backward Classes.
Explanation. For the purposes of these rules.
(a) "Scheduled Castes" means such castes , races or tribes or parts of groups within such castes, races or tribes as are deemed to be Scheduled Castes , in relation to the State of Gujarat under Article 341 of the Constitution of India.
(b) "Scheduled Tribes" means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed to be Scheduled Tribes in relation to the State of Gujarat under Article 342 of the Constitution.
(c) "Socially and Educationally Backward Class"
means such castes, classes or groups as are determined by the State Government as Socially and Educationally Backward Class under Government Resolution, Labour,Social Welfare and Tribal Development Department No. BCR10734H, dated the 1st April, 1978, as amended from time to time."
38. The reservation by its very nature implies a separate quota which is reserved for a special category of persons and within that category the appointments to the reserved seats may be made in the order of merit. The Category for whose benefit the reservation is provided is not required to compete with the open category. Their selection to the reserved seats is independently, on their inter se merit and not as compared with the merit of the candidates in the General Page 26 of 53 HC-NIC Page 26 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT (Unreserved) category. The very purpose of reservation is to protect the weak category against competition from the open category candidates. (See Govt. of Andhra Pradesh v. P.B. Vijaykumar, 1995 4 SCC 520).
39. The Supreme Court in Indra Sawhney Vs. Union of India, (1992) 3 Supp SCC 217 also held in para 836 that the very idea of reservation implies selection of a less meritorious person. It was held that this much cost has to be paid if the Constitutional promise of social justice is to be redeemed. It is the lack of opportunity which has led to the social backwardness and reservation is one of the Constitutionally recognized methods of overcoming this type of backwardness.
40. The Constitution Bench of the Supreme Court in Dr. Preeti Srivastava Vs. State of M.P., 1999 7 SCC 120 while dealing with the reservation for the Post Graduate courses in Medicine, overruled the earlier judgment in the Post Graduate Page 27 of 53 HC-NIC Page 27 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT Institute of Medical Educationa & Research V. K.L. Narasimhan, 1997 6 SCC 283 and in para 115 (per Majmudar J., partly dissenting) reiterated:
"It is axiomatic that the reserved category candidates competing for being selected to the seats reserved from them have to compete inter se with their own colleagues from the same categories and not necessarily have to compete with general category candidates who form an entirely different class. Once such classification is countenanced, as a necessary concomitant, separate provision for the reserved category of candidates forming a separate class for which reservation of seats is permitted cannot be faulted and hence the dilution of minimum qualifying marks for the reserved category of candidates cannot by itself be treated to be unauthorised or illegal from any view point. Otherwise the very purpose of reserving seats for such class of candidates would be denuded of its real content and the purpose of reservation would fail. The seats reserved for such category of persons would go unfilled and will swell the admission of the general category of candidates for whom these seats are not at all meant to be made available, once the scheme of reservation of reservation of seats under Article 15(4) is held applicable."
41. The above takes me to deal with the first contention canvassed on behalf of the petitioners as regards not declaring the qualifying standard or rather the qualifying marks fixed by the Commission in advance. I am not impressed by such submission for the simple reason that if the number of candidates to be called for the written Page 28 of 53 HC-NIC Page 28 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT test for the purpose of selection based on the marks obtained by them should be equivalent to three times the number of posts advertised then only those candidates who stand on merit up to three times the number of vacancies will be required to be considered for final select list and in such circumstances, the last candidate in the select list who secure the particular marks at the written test could be termed as the qualifying marks/cut off marks of the candidates for the post.
42. I may quote with profit a Division Bench decision of this Court in the case of Prajapati Ishwarbhai Joitaram v. State of Gujarat, Letters Patent Appeal No.1350 of 2012 decided on 20th March, 2013. His lordship (Jayant Patel, J.) speaking for the bench observed as under: "Therefore, if the number of candidates to be called for interview by express language of the Recruitment Rules should be equivalent to three times the number of post advertised. Only those candidates who stand on merit upto three times the number of vacancies will be required to be called for interview and under these circumstances, the last candidate in the list Page 29 of 53 HC-NIC Page 29 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT who secured particular marks at the written test could be termed as qualifying marks/cut off marks of the candidates for the post of Police Inspector. Therefore, if the respondents have fixed the qualifying marks accordingly keeping in view the said aspects, it cannot be said that there is no power or authority with the recruiting board to provide for qualifying marks. It is hardly required to be stated that fixation of qualifying marks for entering into the select list and/or waiting list is essentially the domain of recruiting agency or the authority conducting the examination. For example, if the number of posts are 50 and the candidates appearing at the written test are 500 and about 300 candidates have passed the written test, that does not mean that all the 300 candidates would be eligible for the purpose of interview. It is open to the recruiting agency or the authority conducting the examination to fix the cutoff marks which is popularly known as qualifying marks for the purpose of entering in the zone of consideration for the purpose of interview. In the present case, it is three times the number of posts advertised. Therefore, it is only after the result of the written test, the recruiting agency may be in a position to know that how many candidates are to be interviewed and the qualifying marks or the cutoff marks may be fixed. Such cannot be termed as beyond the power or competence of the recruiting agency for providing of the cutoff marks or qualifying marks for the purpose of interview.
7. Same principle would apply even in the case of candidates who are to be included in the select list or waiting list on the basis of the performance at the written examination. This court in exercise of the power under Article 226 of the Constitution, cannot decide the suitability of a particular candidate based on the minimum requirement, but it is to be left to the recruiting agency or authority for such purpose. At that stage, when the cutoff mark is fixed, various criteria are to be considered and the major criteria is the number of post advertised and accordingly the select list and the waiting list are to be prepared while Page 30 of 53 HC-NIC Page 30 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT fixing such qualifying or cutoff marks. The relaxation as may be available in law for any reserved category or for a particular category having horizontal reservation may also be considered. In our view, merely because the cutoff marks have been provided or are fixed at the later stage would not result into vitiation of the selection process, more particularly when there is no allegation of any malafide exercise of power or bias in order to see that a particular candidate is included in the select list or a particular candidate is intended to be kept outside the select list by name or the relation of the person having authority in the recruitment board or otherwise. In our view, fixation of cutoff marks and providing of cutoff marks, keeping in view the the number of posts available are essentially in the domain of the recruiting agency. If expressly provided by Rule, such power would be available as per the Rule and if it is not expressly provided in the Rule, such power may be termed as incidental power in the process of selection for any post. Therefore, we cannot accept the contention of the learned counsel for the appellants that merely because the cutoff marks or qualifying marks have been provided at the later stage after conducting of the written test, the same is illegal.
43. I may also quote with profit a decision of this Court rendered by a learned Single Judge in the case of Dr. Mehta Rakshaben Kantilal v.
Gujarat Public Service Commission, Special Civil Application No.25773 of 2007, decided on 13th December, 2007. His lordship (Jayant Patel, J.) observed thus: Page 31 of 53 HC-NIC Page 31 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT "14. The learned Counsel for the petitioners next alternatively contended that even if this Court finds that there was authority on the part of GPSC to hold the elimination test, the petitioners were already declared as passed at that elimination test and thereafter it was not open to GPSC to provide additional cutoff marks for the purpose of interview and thereby to deprive the petitioners from the zone of consideration for interview. They have submitted that, therefore, the cutoff marks provided in addition to the standard for passing of the elimination test is without authority and hence, the action of depriving the petitioners from the zone of consideration for interview is illegal and deserves to be quashed.
15. It deserves to be recorded that in the advertisement at ClauseA of the important instructions, it was, inter alia, provided that the selection shall be made after interview. Further, it was also provided that if the number of applications are more and if required, the preliminary written test shall be held and the merit order shall be prepared and after considering the eligibility, the candidate shall be considered for interview. Therefore, eligibility for interview would include not only passing of the elimination test, but would also include securing of requisite marks, equivalent for the criteria fixed of the interview for the candidates, who have passed the elimination test. In a matter of recruitment, the authority who undertakes the process of recruitment, has to find out its own mechanism for scanning the merit of the candidates, who have applied for the post. If the elimination test is held with a view to scanning the merit of the candidates concerned, such cannot be said to be outside the authority of the recruitment agency or the authority. If the number of candidates, who have cleared elimination test are far exceeding the available posts, it is open to the authority to fix up a cutoff mark with a view to consider more meritorious candidates and to exclude the candidates, who have secured less number of marks than the cutoff mark. Providing the cut off mark is within the power of the recruitment Page 32 of 53 HC-NIC Page 32 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT authority, keeping in view the number of posts available, the candidates to be interviewed and the number of persons, who have cleared the elimination test.
16. At this stage, it is also required to be recorded that the total number of posts for open category candidates were eight and, therefore, as against the same, GPSC has decided to call 27 candidates for interview in the open category. However, as per the order passed by this Court, one more candidate was called for interview and three more candidates were also called for interview pursuant to the order passed by the Division Bench of this Court. Therefore, in all 31 candidates were called for interview and the marks obtained at the elimination test from amongst the candidates, who have been called for interview have ended at 134 and the cutoff mark for all candidates, who have been called for interview in the general category, including female candidates is 134. None of the petitioners has secured 134 marks or above. Further, as against the total eight posts, if GPSC has decided to call for interview the candidates, who secured higher marks at the elimination test namely; all aforesaid 27 candidates plus four candidates pursuant to the orders passed by this Court, by the fixation of cutoff mark with a view to include more meritorious candidates at the elimination test and to exclude less meritorious candidates at the elimination test, such fixation of cutoff mark cannot be said as arbitrary or unreasonable, nor can be said as beyond the authority of the recruitment agency, which is GPSC in the present case. Hence, the said contention cannot be accepted.
17. The learned Counsel for the petitioners also contended that with a view to make room for accommodation of female candidates, the GPSC ought to have lowered down the cutoff mark at the elimination test for interview and it was submitted that if such was not permitted or not fixed, it would frustrate the reservation policy for female candidates in the employment and, therefore, the action is against the Page 33 of 53 HC-NIC Page 33 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT policy of the Government for reservation of female candidates.
18. The reservation of female candidates in open category cannot be equated with the reservation made for SCST or OBC in any recruitment. The reservation of female candidates is reservation within the reservation as well as reservation for open category. Therefore, when the reservation is there in the open category, in normal circumstances, it is also open to the recruitment authority to fix up the same merit, may be between male candidates or female candidates and between equal merits, priority may be given to the female candidates for offering appointment or for inclusion in the select list. However, if a reasonable relaxation is given for considering more number of female candidates for entering the zone of consideration, the same also cannot be said as arbitrary or unreasonable. In the present case, it appears that for the male candidates GPSC has provided cutoff mark in open category at 152, whereas for female candidates, such standard of cutoff mark is lowered down and is fixed at 134, which has resulted into inclusion of about seven more female candidates in the zone of consideration for interview. Therefore, when the attempt is made for permitting entry of more female candidates in comparison to the posts available for female candidates, the action cannot be said as frustrating or contrary to the policy for reservation made for female candidates. Further, it is an admitted position that none of the petitioners, not called for interview, has secured 134 or more marks at the elimination test. Therefore, the cutoff mark is relaxed for female candidates to enter the zone of consideration for interview."
44. It is not the case of the petitioners that the Commission deviated from something stated in the advertisement. If that would have been so Page 34 of 53 HC-NIC Page 34 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT then probably I may have taken a view in favour of the petitioners that the rules of the game could not have been changed once the process starts. However, in the absence of anything specific in the advertisement it is always open to the GPSC to resort for any rational method of shortlisting of its choosing (provided it was fair and objective) etc. To put in other words criteria once notified in the advertisement must be adhered to. The deviation is not permissible at a later stage although it is open to the Commission not to fix any prior criterion. If that be so then normally the Court should not interfere in such administrative decision.
45. Thus, so far as the first contention of not declaring the qualifying standard or qualifying marks before hand is concerned should fail and is hereby rejected.
46. The above takes me to deal with the second Page 35 of 53 HC-NIC Page 35 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT contention as regards giving true effect to the reservation for women. I am not impressed by the submissions canvassed on behalf of the petitioners that as 30% of the seats were reserved for the women and there are statutory rules providing for such reservation than at any cost irrespective of the marks obtained by such women candidates they should have been appointed in accordance with there inter se merit. In my view this issue is also no longer res integra. In the case of Prajapati Ishwarbhai (Supra), the Division Bench observed as under: "11. The attempt to contend that in order to apply horizontal reservation, one has to go below the cutoff marks so as to include the candidates falling in the horizontal reservation, which is ExServicemen in the present case, is illfounded inasmuch as in the case of application of all horizontal reservation, the requirement would be that one has to meet with the minimum qualifying criteria or the standard provided by way of cutoff marks or otherwise.
It is not that for accommodation of any candidate of horizontal reservation, any merit which is less than minimum merit is to be accepted. If such argument is accepted, it would mean that the recruiting authority would be required to go down upto below the passing standard for accommodating the candidate of Page 36 of 53 HC-NIC Page 36 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT horizontal reservation. Such is not the purpose nor could be the interpretation for applying horizontal reservation by damaging or adversely affecting the minimum standard or the minimum qualifying marks provided for such purpose in the respective category. In normal circumstances, if any horizontal reservation is to be applied, the candidate concerned has to meet with the merit of the other candidates in the respective category. If only sufficient number of candidates are not available or accommodated, the recruiting agency may go further down but with the condition that in no case, such action of going further down will go below the cutoff marks for the respective category and if any relaxation has been provided, only upto the relaxed limit provided for such purpose.
12. At this stage, we may refer to the decision of the Apex Court in the case of Rajesh Kumar Daria (supra) and more particularly, the observations made at para 9, which reads as under:
9. The second relates to the difference between the nature of vertical reservation and horizontal reservation. Social reservations in favour of SC, ST and OBC under Article 16(4) are vertical reservations. Special reservations in favour of physically handicapped, women etc., under Articles 16(1) or 15(3) are horizontal reservations. Where a vertical reservation is made in favour of a backward class under Article 16(4), the candidates belonging to such backward class, may compete for nonreserved posts and if they are appointed to the nonreserved posts on their own merit, their numbers will not be counted against the quota reserved for the respective backward class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under Open Page 37 of 53 HC-NIC Page 37 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT Competition category. [Vide Indira Sawhney (Supra), R. K. Sabharwal vs. State of Punjab (1995 (2) SCC 745), Union of India vs. Virpal Singh Chauvan (1995 (6) SCC 684 and Ritesh R. Sah vs. Dr. Y. L. Yamul (1996 (3) SCC 253)].
But the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations. Where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for scheduled castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of Scheduled Castes Women. If the number of women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the special reservation quota. Only if there is any shortfall, the requisite number of scheduled caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to Scheduled Castes. To this extent, horizontal (special) reservation differs from vertical (social) reservation. Thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women. Let us illustrate by an example :
If 19 posts are reserved for SCs (of which the quota for women is four), 19 SC candidates shall have to be first listed in accordance with merit, from out of the successful eligible candidates. If such list of 19 candidates contains four SC women candidates, then there is no need to disturb the list by including any further SC women candidate. On the other hand, if the list of 19 SC candidates contains only two woman candidates, then the next two SC woman candidates in accordance with merit, will have to be included in the list and corresponding number of candidates from the bottom of such list shall have to be deleted, so as to ensure that the final 19 selected SC candidates contain four women SC candidates. [But if the list of 19 SC candidates contains more than four women candidates, selected on own merit, all of them Page 38 of 53 HC-NIC Page 38 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT will continue in the list and there is no question of deleting the excess women candidate on the ground that SCwomen have been selected in excess of the prescribed internal quota of four.)
13. In our view, even after consideration of the above referred observations of the Apex Court, the applicability of horizontal reservation would be the same as observed by us hereinabove and nowhere it has been provided that for operation of the horizontal reservation, the recruiting agency has to go further down below the minimum qualifying marks for the respective category. Under these circumstances, the said decision is of no help to the appellants for canvassing the contention that for applying horizontal reservation, the recruiting agency has to go further down below the qualifying marks provided for the respective category."
47. A learned Single Judge of this Court in the case of Hemlata R. Joshi, Special Civil Application No.5733 of 2004, decided on 11th March, 2005, observed thus: "7. Having considered the rival submissions it is apparent that though the petitioner was the sole lady candidate seeking appointment on the reserved vacancy meant for woman candidates of general category, she failed to secure the minimum marks prescribed by the GPSC at the oral interview. As noted earlier though minimum 40 marks were prescribed for general category candidates, this requirement was relaxed by prescribing 36 marks as the minimum qualifying standard for lady candidates. The petitioner received only 25 marks. No allegations have been made with respect to the conduct of interview. The only question, therefore, that is required to be considered is whether the GPSC could have disqualified the petitioner for appointment Page 39 of 53 HC-NIC Page 39 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT on the ground that she failed to receive the minimum required marks at the interview.
8. It is now well settled that even in reserved categories while making appointment, efficiency of administration cannot be completely ignored and though reserved category candidates would deserve a relaxed standard of minimum qualification, minimum prescribing of qualification cannot be completely done away with.
In the decision of M.P.Public Service Commission v. Navnit Kumar Potdar reported in AIR 1995 SC 77, the Hon'ble Supreme Court upheld the action of the MP Public Service Commission in shortlisting the candidates for interview by increasing the requirement to 7 1/2 years against the statutory requirement of 5 years of experience by an administrative decision. The Hon'ble Supreme Court upheld the power of the State Public Service Commission to shortlist the number of candidates to be called for oral interview.
In the decision of Dr.Sadhna Devi v. State of U.P., reported in (1997) 3 SCC 90, the Hon'ble Supreme Court observed that though regulating selection procedure is within the competence of the State Government while prescribing eligibility criteria for maintaining proper standards falls within the competence of Medical Council of India, but the State having chosen to hold entrance examination for selection instead of making selection merely on the basis of performance in MBBS examination, and having prescribed the minimum qualifying marks for admission, it would not be open to it to altogether do away with that criterion for the reserved category candidates, though it could have prescribed lesser qualifying marks for them.
In the case of Dr.Preeti Srivastava v. State of M.P., reported in (1999) 7 SCC 120, the Hon'ble Supreme Court observed that it is for the Medical Council of India to lay down the extent of reservation and lowering of qualifying marks on the basis of proper Page 40 of 53 HC-NIC Page 40 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT balance of public interests. It further observed that special provisions for SC/ST candidates at the speciality level have to be minimum and that there cannot be a big disparity in the qualifying marks for the reserved category of candidates and the general candidates at the post graduate level.
9. From the above discussion, it is clear that it was well within the powers of the GPSC to prescribe minimum qualifying standard for appointment even on reserved seats. The standard fixed cannot be said to be arbitrary or unjust. Against the prescribed minimum marks of 40 for the general category candidates, the standard was lowered down to 36 marks for woman candidates and only when the petitioner failed to meet with even the relaxed requirement, her candidature was rejected. The petitioner who got only 25 marks in the interview, therefore, cannot claim appointment as a matter of right.
10. In the result, the petition fails and is hereby rejected. Notice is discharged with no order as to costs."
48. I may also quote with profit a decision of the Supreme Court in the case of the Union of India and others v. S. Vinodkumar and others, AIR 2008 SC 5. I may quote the observations made by the Supreme Court in paragraphs Nos. 10 and 11: "10.It may be true that the cutoff marks at 71 had been fixed for unreserved candidates on the basis that marks obtained by the last candidate, i.e. 240th candidate, calculated at 50% of the 480 candidates, but concededly 56 Page 41 of 53 HC-NIC Page 41 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT marks were fixed for Other Backward Classes candidates and 20 marks were fixed for Scheduled Caste and Scheduled Tribe candidates. Only because the cutoff marks at 71 had been fixed on the basis of the aforementioned criteria, the same by itself, in our opinion, would not mean that no cutoff mark had been fixed. The fact that the Railway Administration intended to fix the cutoff mark for the purpose of filling up the vacancies in respect of the general category as also reserved category candidates is evident from the fact that different cutoff marks were fixed for different categories of candidates. We are, therefore, unable to accept the submission of the learned counsel that the cutoff marks fixed was wholly arbitrary so as to offend the principles of equality enshrined under Article 14 of the Constitution of India. The power of the employer to fix the cutoff marks is neither denied nor disputed. If the cutoff mark was fixed on a rational basis, no exception thereto can be taken.
11. Respondents herein had approached the Tribunal in the year 2000. The Tribunal directed the appellants to consider this case of lowering of the cutoff marks. An inference, therefore, can be drawn from the aforementioned fact that the main prayer of the respondents was that the cutoff marks should be lowered. Appellants admittedly did not agree to the said proposal. The action of the appellants impugned before the Tribunal must, therefore, be considered from the viewpoint as to whether it had the requisite jurisdiction to do so. The Tribunal upheld the contention of the appellant. Once it is held that the appellants had the requisite jurisdiction to fix the cutoff marks, the necessary corollary thereof would be that it could not be directed to lower the same.It is trite that it is for the employer or the expert body to determine the cutoff marks. The Court while exercising its power of judicial review would not ordinarily intermeddle therewith. The jurisdiction of the Court, in this behalf, is limited. The cutoff marks fixed will depend upon the importance of Page 42 of 53 HC-NIC Page 42 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT the subject for the post in question. It is permissible to fix different cutoff marks for different categories of candidates. (See Banking Service Recruitment Board, Madras v. V. Ramalingam and others (1998) 8 SCC 523)."
49. In a very recent pronouncement of the Supreme Court in the case of Yogesh Yadav v.
Union of India and others (2013) 14 SCC 623 the Supreme Court while dealing with the matter pertaining to the appointment to the post of Deputy Director (Law) in the other backward class (OWC Category) observed as under: "13. Instant is not a case where no minimum marks prescribed for viva voce and this is sought to be done after the written test. As noted above, the instructions to the examinees provided that written test will carry 80% marks and 20% marks were assigned for the interview. It was also provided that candidates who secured minimum 50% marks in the general category and minimum 40% marks in the reserved categories in the written test would qualify for the interview. Entire selection was undertaken in accordance with the aforesaid criterion which was laid down at the time of recruitment process. After conducting the interview, marks of the written test and viva voce were to be added. However, since bench mark was not stipulated for giving the appointment. What is done in the instant case is that a decision is taken to give appointments only to those persons who have secured 70% marks or above marks in the unreserved category and 65% or above marks in the reserved category. In the absence of any Page 43 of 53 HC-NIC Page 43 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT rule on this aspect in the first instance, this does not amount to changing the "rules of the game". The High Court has rightly held that it is not a situation where securing of minimum marks was introduced which was not stipulated in the advertisement, standard was fixed for the purpose of selection. Therefore, it is not a case of changing the rules of game.On the contrary in the instant case a decision is taken to give appointment to only those who fulfilled the benchmark prescribed. Fixation of such a benchmark is permissible in law. This is an altogether different situation not covered by Hemani Malhotra case (AIR 2008 SC 2103 : 2008 AIR SCW 3205)."
50. I may also quote a Division Bench decision of this Court in the case of Nagori Ruksana Ahmedkhan v. State of Gujarat, Letters Patent Appeal No.2474 of 2010, decided on 25th January, 2011 wherein the Court observed thus: "7. In our view, it is by now well settled that the reservation for women is horizontal and not vertical. Therefore, in respect of the seats for women, the merit will be at par with the male candidates. Under these circumstances, if the requisite merit is not available, the conversion of posts, reserved for women, in the respective category cannot be said to be arbitrary. Hence, the said contention cannot be accepted."
51. The Supreme Court in the case of Prof. A. Marx v. Government of Tamil Nadu, reported in (2014) 13 SCC 329, observed as under: "5. We find it difficult to accede to the Page 44 of 53 HC-NIC Page 44 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT request of the counsel. The question as to whether the cut off marks stipulated for the served category candidates have to be reduced or not, is entirely a matter for the State Government to decide. The Court exercising writ jurisdiction cannot grant such relaxation/concessional marks, as the same is the decision to be taken by the State Government. Taking into consideration a veriety of factors, State/Authorities concerned in their wisdom would fix the cut off marks and court cannot substitute its views to that of the experts. We, in such circumstances, are not inclined to interfere with these special leave petitions and the same are dismissed."
52. Thus from the above two things are very clear (1) that the Commission was not obliged in the facts of this case to declare the qualifying standard in advance and such the disclosure at the last stage would not amount to changing the rule of the game and (2) although the reservation for women is horizontal and not vertical yet if the requisite merit fixed by the Commission is not available then only on the basis of such reservation a candidate cannot seek appointment to the post.
53. The statutory rules providing for the 30% reservation for the women in the public Page 45 of 53 HC-NIC Page 45 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT employment would not confer any indefeasible right of being appointed to the post.
54. Judging of merit may be at several tiers. It may undergo several filtrations. Ultimately, the constitutional scheme is to have the candidates who would be able to serve the society and discharge the functions attached to the office.
Vacancies are not filled up by way of charity.
Emphasis has all along been made, times without number, to select candidates and/or students based upon their merit in each category. The disadvantaged group or the socially backward people may not be able to compete with the open category people but that would not mean that they would not be able to pass the basic minimum criteria laid down therefore. (See Andhra Pradesh Public Service Commission v. Baloji Badhavath and others (2009) 5 SCC 1.)
55. I have also considered the decisions relied upon by the learned counsel appearing for the Page 46 of 53 HC-NIC Page 46 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT petitioners. In my view none of those are helpful in any manner to the petitioners.
56. The learned counsel appearing for the petitioners placed strong reliance on the decision of the Supreme Court in the case of P.V. Indiresan (2) v. Union of India and others (2011) 8 SCC 441. The issue before the Supreme Court was one relating to the implementation of the 27% reservation for the other backward class (OBC) in the Central Educational Institutions under the Central Educational Institutions (Reservation in Admission) Act, 2006. The question raised before the Supreme Court was with regard to the meaning of the words "cut off marks" used in the case of P.V. Indiresan (1) v. Union of India (2009) 7 SCC 300 in regard to the decision of the Constitution Bench in Ashoka Kumar Thakur v. Union of India 2008 (6) SCC 1. In that case the appellant contended before the Supreme Court that the "cut off marks" referred to the marks secured by the last candidate admitted to a particular course of Page 47 of 53 HC-NIC Page 47 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT study or under a particular category. It was submitted that the "cut off marks" were decided with reference to a merit list of the candidates prepared (with reference to the eligibility marks and/or where there was an entrance exam, with reference to the qualifying marks) on the basis of the number of seats available in a program.
The marks secured by the last candidate admitted from such merit list to the program denoted the "cut off marks" for the admission to that program. The grievance was with reference to determining the minimum eligibility/qualifying marks for admission of the OBC students with reference to the marks secured by the last candidate admitted under the general category.
There grievance was to the linking of there admissions to the uncertain and fluctuating bench mark which would depend upon the quality of the last candidate admitted under the general category. It was argued before the Supreme Court that by adopting the method of determining the "cut off marks" for the OBCs with reference to Page 48 of 53 HC-NIC Page 48 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT the "cut off marks" of the last general category candidate defeated the purpose of reservation of 27% seats for the OBC candidates and denied the just and legitimate entitlement of the OBCs for the admission.
57. The Supreme Court in the said decision explained the term "cut off marks" by observing as under in paragraph No.25: "25. The term "cut off marks" in academic and judicial vocabulary has several meanings. When rejecting a person's request for selection on the ground that his marks are less than the marks secured by the last candidate who was selected, by describing the marks secured by the last candidate as "cut off marks". The words "cut off marks" are also used while notifying a body of applicants who form part of a merit list or the general public, the marks secured by the last selected candidate so that they can know that persons with lesser merit/marks had not been selected or have no chance of being selected. "Cut off marks" are also used to refer to the minimum marks (either eligibility marks or qualifying marks) required for admission to a course."
58. I may also quote the observations made in paragraph No.26 as under: Page 49 of 53 HC-NIC Page 49 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT "26. Both sides relied upon certain observations of Pasayat, J. and Bhandari, J. in Ashoka Kumar Thakur in support of the interpretation put forth by them. While the appellant argued that the said observations clearly indicated that minimum marks for admission of OBC candidates should be a prescribed percentage below the marks secured by the last candidate under general category (cut off marks for general category), the respondents argued that the observations clearly meant that the minimum marks for admission of OBC candidates should be a prescribed percentage below the minimum eligibility/qualifying marks prescribed for general candidates. We may therefore refer to the said observations."
59. In paragraph No.31, the Supreme Court observed as under: "31. The clarificatory order dated 14.10.2008 in P.V. Indiresan (1) V. Union of India which stated that the "maximum cut off marks for OBCs be 10% below the cut off marks of general category candidates" is sought to be interpreted differently by the appellant and the respondents, with reference to the said observation. The appellant contends that the "cut off marks of general category candidates"
refers to the marks secured by the last candidate who secure a seat under general category and therefore only such OBC students who have secured marks in the bandwidth of 10% below the marks secured by the last general category candidate, will be entitled to admission. On the other hand the respondents contend that the word "cut of marks of general category candidates" were used to refer to the minimum eligibility/qualifying marks prescribed for admission to the course under general category."
60. In paragraph No.32, the Supreme Court observed as under: Page 50 of 53 HC-NIC Page 50 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT "32. We find that this Court has been regularly and routinely using the words "cut off marks"
to describe the minimum marks required to be secured in the qualifying examination for being eligible for admission or to describe the minimum qualifying marks to be obtained in an entrance examination. As this Court has routinely used the words "cut off marks" to refer to "eligibility marks" or "qualifying marks", whenever this Court uses the words "cut off marks", their meaning would depend upon the context. The words may refer to either the minimum marks to be secured in the qualifying examination or the entrance examination to be eligible for admission, or to the marks secured by the last candidate admitted in a particular category. We may refer to some of the case where this Court has used the term "cut off marks" to refer to the eligibility marks or qualifying marks."
61. Finally the Supreme Court recorded its conclusion in paragraph No.52 as under: "52. The words "cut off marks" have been used thrice in the second paragraph of the order dated 14.10.2008 containing the operative direction. They are used in the first sentence of the paragraph while posing the question for decision, that is, "what should be the extent of cut off marks for admission of students of OBCs in CEIs". They are used in the second sentence of the paragraph while giving the answer to the question posed, that is, "we make it clear that the maximum cut off marks for OBCs be 10% below the cut off marks of general category candidates". The words "cut off marks" occurring in the places in the second paragraph of the order dated 14.10.2008 have three distinct and different meanings.
(i) The use of the words, "extent of cut off marks" in the first sentence refers to the "minimum eligibility marks" (or to the "minimum qualifying marks" if there is entrance examination), for admission of OBC candidates.
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(ii) The use of the words, "maximum cut off marks for OBCs" in the first part of the second sentence refers to the percentage of marks by which the eligibility/qualifying marks could be lowered from the minimum eligibility/qualifying marks prescribed for generald category students. In other words, it refers to the difference between the minimum eligibility/qualifying marks for general category and minimum eligibility/qualifying marks for OBCs and directs that such difference should not be more than 10% of the minimum eligibility/qualifying marks prescribed for general category candidates.
(iii) The use of the words, "cut off marks of general category candidates" in the latter part of the second sentence, refers to the minimum eligibility marks (or to the minimum qualifying marks if there is an entrance examination) prescribed for general category candidates. The use of the words "cut off marks" in none of three places in para 2 of the order dated 14.10.2008, refers to the marks secured by the last candidate to be admitted in general category or in any particular category, or to the minimum marks to be possessed by OBC candidates, determined with reference to the marks secured by the last candidate to be admitted under general category."
62. Thus, the Supreme Court was much concerned about the use of the words "cut off marks". This decision of the Supreme Court should not be construed as laying down an absolute proposition of law that the method adopted by the Commission in the present case of fixing the cut of marks on the basis of the marks obtained by the last candidate in the general category is arbitrary or Page 52 of 53 HC-NIC Page 52 of 53 Created On Tue Aug 25 01:45:26 IST 2015 C/SCA/8894/2015 CAV JUDGMENT unreasonable.
63. For the forgoing reasons all the petitions fail and are hereby rejected. The adinterim order earlier granted stands vacated. Rule discharged.
(J.B.PARDIWALA, J.) Manoj After the order is pronounced, the learned counsel appearing for the respective petitioners pray for stay of the operation of the order. In view of the what has stated above and taking into consideration that the appointments to the post have come to a standstill since long, the request is declined.
(J.B.PARDIWALA, J.) Manoj Page 53 of 53 HC-NIC Page 53 of 53 Created On Tue Aug 25 01:45:26 IST 2015