SURESHKUMAR LALITKUMAR PATEL & ORS. versus STATE OF GUJARAT & ORS. on 20 February 2023

[2023] 2 S.C.R. 543

SURESHKUMAR LALITKUMAR PATEL & ORS.

v.

STATE OF GUJARAT & ORS.

(Civil Appeal Nos. 1355-1356 of 2023)

FEBRUARY 20, 2023

[SANJIV KHANNA AND M. M. SUNDRESH, JJ.]

Service Law – Modification of selection process – Cut-offmarks reduced after results were published to facilitate the inclusionof candidates constituting horizontal reservation – Impermissibilityof – Held: An advertisement made pursuant to a notification bindsthe parties – It has got all the trappings of a statutory prescription,unless contrary to either a rule or an Act – A change, if any, canonly be brought by an amendment and nothing else – Suchamendment even if permissible, can be tested on the touchstone ofArt.14 – It cannot be introduced to give an entry to a specialreservation, in a case where a right becomes accrued to a candidate,under a policy decision reduced in the form of an advertisement, tobe considered for a post in the absence of any eligible candidatefrom the horizontal category – In the present case, the SelectionCommittee reduced the marks to facilitate the horizontal reservationby treating it as a vertical reservation – Rules do not provide forsuch reservation to be treated as a vertical one – Admittedly, theappellants are entitled to get the respective post as per theadvertisement issued – Further, fixing cut-off marks for a particularcategory has got a rationale behind it – Reducing it only for thepurpose of providing employment to a particular category, whenthe others have already acquired some right would be an affront toArt.14 – Furthermore, relevant clauses in the advertisement do notconfer unbridled power either on the State Govt. or the SelectionCommittee to modify the selection process and reduce the cut-offmarks after the results are published – Order of Division Bench setaside – However, on facts, private respondents belonging to thespecial category comprising of women, ex-servicemen andphysically challenged be considered to be accommodated in theirrespective reserved category, provided they do not exceed thepercentage of reservation permissible, without upsetting the

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Aappointment of the appellants and others similarly placed andsubject to their eligibility – Constitution of India – Articles 14,142.

Allowing the appeal, the Court

Held: 1.1 This Court is dealing with the recruitment processby which the posts pertaining to each of the separate categoriesBis to be filled up by only one mode, i.e., written examination. Thecut-off marks have been fixed with a distinct clarification that itwould not be tinkered with by facilitating anyone to be considered,if the candidate acquired lesser marks. There is a differencebetween qualification for making an application, and the eligibilityCto be determined in the process of selection. The present case isconcerned with an eligibility after the examination is conducted.Selection Committee reduced the marks to facilitate thehorizontal reservation by treating it as a vertical reservation.Admittedly, the rules do not provide for such reservation to betreated as a vertical one. Likewise, the rules do not fix any cut-Doff marks. An advertisement, made pursuant to a notification,binds the parties. It has got all the trappings of a statutoryprescription, unless it becomes contrary to either a rule or anAct. A change, if any, can only be brought forth by way of anamendment and nothing else. Such an amendment even if it isEpermissible can be tested on the touchstone of Article 14 of theConstitution of India. It cannot be introduced to give an entry toa special reservation, in a case where a right becomes accrued toa candidate, under a policy decision reduced in the form of anadvertisement, to be considered for a post in the absence of anyeligible candidate from the horizontal category. It is true that aFcandidate may not have a vested right to the post, however, itcannot be confused with a right to be considered in accordancewith law. A law which enables a candidate to get a post cannot bechanged to facilitate another group of persons, since the candidateacquires a vested right to be considered in accordance with law.G[Paras 22-24][552-D-H; 553-A-B]

1.2 Admittedly, in the case on hand, the appellants areentitled to get the respective post as per the advertisementissued. The said advertisement has not been amended. It wassought to be modified on the advice of the Government. FixingHcut-off marks for a particular category has got a rationale behind it. Reducing it only for the purpose of providing employment to aparticular category, when the others have already acquired someright would be an affront to Article 14 of the Constitution of India.The relevant clauses contained in the advertisement do not conferunbridled power either on the State Government or on theSelection Committee to modify the selection process, and thereby,reduce the cutoff marks after the results are published. [Paras25, 26][554-C-E]

1.3 The decision to reduce the cut-off marks is not basedupon an objective-criteria, namely, the suitability of the candidateto the post, but for extraneous reason, i.e., to accommodateotherwise ineligible candidates. Earlier cut-off marks were fixedon a conscious consideration of the marks required to be eligiblefor the post, which could not be reduced, unless there is a soundreason that the reduced marks also would be sufficient to besuitable for that post. Having held that the order of the DivisionBench of the High Court of Gujarat cannot be sustained in theeye of law, this Court is inclined to balance the equities and dojustice by exercising power under Article 142 of the Constitutionof India. The object behind the decision is laudable and the privaterespondents belong to the special category comprising of women,ex servicemen and physically challenged. They are waiting toget their appointments for long years with fond hopes. They havethe order of the Division Bench to their benefit which wasoccasioned by the policy decision of the State Government andthe Selection Committee. In such view of the matter, taking noteof the peculiar facts of the case, particularly in the light of thefinding that the situation has been brought forth by RespondentNos. 1 and 2 and the vacancies that still remain, direction issuedto them to consider accommodating the private respondents intheir respective reserved category, provided they do not exceedthe percentage of reservation made permissible, withoutupsetting the appointment of the appellants and others similarlyplaced and subject to their eligibility. [Paras 30-32][558-D-F, H559-A-B]

N.T. Devin Katti v. Karnataka Public ServiceCommission (1990) 3 SCC 157; Tamil Nadu ComputerScience B.Ed. Graduate Teachers Welfare Society (1)

v. Higher Secondary School Computer Teachers AB

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AAssociation & Ors. (2009) 14 SCC 517 : [2009] 10SCR 522 – relied on.

Tej Prakash Pathak & Ors. v. Rajasthan High Court &Ors. (2013) 4 SCC 540; Veerendra Kumar Gautam &Ors. v. Karuna Nidhan Upadhyay & Ors. (2016) 14BSCC 18 : [2016] 7 SCR 223; Anupal Singh & Ors. v.State of Uttar Pradesh & Ors. (2020) 2 SCC 173 :[2019] 12 SCR 1071; Ashok Kumar Thakur v. Unionof India & Ors. (2008) 6 SCC 1 : [2008] 4 SCR 1; K.Manjusree v. State of Andhra Pradesh & Anr. (2008) 3SCC 512 : [2008] 2 SCR 1025; Ramjit Singh KardamCv. Sanjeev Kuma (2020) 20 SCC 209 – referred to.

Prajapati Ishwarbhai Joitaram v. State of Gujarat,Letters Patent Appeal No.1350 of 2012 dated20.03.2013 – referred to.

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CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.1355-1356 of 2023.

FFrom the Judgment and Order dated 18.01.2021 of the High Courtof Gujarat at Ahmedabad in LPA Nos.1496 and 1501 of 2019.

With

Civil Appeal Nos.1357-1358 of 2023.

Paramjit S. Patwalia, Sr. Adv., Sameer Parekh, Ms. TanyaGChaudhary, Ms. Pratyusha Priyadarshini, Hemang Shah, PrateekKhandelwal, M/s. Parekh & Co., Advs. for the Appellants.

Vikas Singh, Sr. Adv., Purvish Jitendra Malkan, Rajivkumar,Krishna M Singh, Meenesh Dubey, Ms. Archana Pathak Dave, Ms.Deepanwita Priyanka, Advs. for the Respondents.H

The Judgment of the Court was delivered by

M. M. SUNDRESH, J.

1. Leave granted. Applications for impleadment are allowed.

2. The decision of the Division Bench of the High Court of Gujaratgiving its imprimatur to the decision of the Departmental SelectionCommittee in reducing the qualifying marks for the post of SupervisorInstructor Class III, after the publication of result to facilitate the inclusionof candidates constituting horizontal reservation, is under challenge inthese civil appeals.

3. Heard Mr. P.S. Patwalia, learned senior counsel appearing forthe appellants, Ms. Archana Dave Pathak, learned counsel forRespondent Nos. 1 and 2 and Mr. Vikas Singh, learned senior counselfor the private respondents.

FACTS IN BRIEF:

4. Two advertisements were issued on 05.09.2015 to fill up theposts for Supervisor Instructor (Engineering Trade and Non-EngineeringTrade) and Supervisor Instructor (Employability skill). The aforesaid twocategories of posts carrying similar eligibility criteria in the nature ofqualification with a difference in the respective degree required, includingthe sub-categories in the Engineering Group, such as Automobile,Chemical, Electrical, Mechanical, Marine etc. with a total of 13.

5. Prior to the issuance of the advertisement, the DepartmentalSelection Committee (for short ‘the Selection Committee’) on 03.09.2015resolved its procedure for the recruitment process. Accordingly, out of300 marks, cut-off marks were fixed at 60% equivalent to 180 marksfor General Category; 57% equivalent to 171 marks for Socially andEducational Backward Class and 55% equivalent to 165 marks forSchedule Caste and Schedule Tribe. It was amplified that any candidatescoring less than the cut-off marks would not be entitled for selectionand appointment.

6. Clause (1) of the Advertisement in clear terms speaks aboutthe horizontal reservation meant for females, ex-servicemen andphysically handicapped. We shall reproduce the aforesaid clause:

“(1)…

* The posts for the females are reserved as per 33% which shall A

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Abe set off against the respective categories. If for the reservedpost of the female candidate, if no suitable candidate is availablethen, the said post shall be filled by the male candidate of thesame category.

* The posts are reserved by 10% of the total posts for the ex-Bserviceman. The same shall be set off against the respectivecategory. if no suitable ex-serviceman candidates are availablethen, the said post shall be filled by the other suitable candidate ofthe respective category.

* The appointment of the physically handicapped having physicalCdefect from 40% to 4%, shall be kept as 3% in the aforesaidposts as per the rules of the Government. The selection of themost suitable handicap candidate shall be selected by keeping into the notice that, the disability is not coming in the way ofeducational work in I.T.I. If the suitable candidate having physicaldisability is not available then, the said posts shall be filled with theDother suitable candidates of the respective category.”

7. Thus, for the above said three special reservations, it is madeabundantly clear that in the event of inadequate candidates in each sub-category, the unfilled seats would be filled by the other eligible candidates.

E8. The decision made by the Selection Committee was once againreiterated in the advertisement under Clause (5) which deals with theselection process.

“(5)…That means, out of total 300 marks, cut-off marks 60%.i.e. 180 marks shall be for General Category. The candidate gettingFfewer marks than the same shall not be eligible. For the candidateof the Socially and educationally backward class·these marks shallbe 57% (171 marks) whereas, the for the candidate of ScheduleCaste and the Schedule Tribe these marks shall be 55% (165marks). The candidate getting less marks than the same, shall notbe eligible for getting the appointment…”G

9. Sub-clause (15) of Clause (7) (General Instructions) of theadvertisement empowers the Selection Committee to cancel the entireprocess in the event of any necessity that may arise or, alternatively, tomake an appropriate amendment. It further facilitates any addition orreduction in the number of posts originally announced. In the aforesaidHcircumstances, a candidate will not be entitled for any refund.

“(15) In case any necessity arises for cancelling this advertisementfor any reason, or to make amendment in the same or to makeaddition or decrease in the numbers of posts, then, the Departmentshall have complete right/authority to do so, and, for this it will notbound to give reasons. Further, under such circumstances, theapplication made and the examination fee shall not be refundable.”

10. Sub-clause (19) of Clause (7) concerns itself with therecruitment process which confers a power on the Selection Committeeas provided under sub-clause (15) in connection with the recruitmentprocess.

“(19)…In connection with the recruitment process of this post, incase any necessity arises for cancelling this advertisement orinstruction for any reason, or to make amendment in the same,then, the complete right/authority shall be with the Selectioncommittee to do so, and for this the Selection Committee shall notbe bound to give reasons for the same…”

11. Enclosure (1) of the advertisement 05.09.2015 once againreiterates Clause (1) by making the position abundantly clear on theposts being filled up with other eligible candidates, when the reservedcandidate under the horizontal reservation is not available.

12. The aforesaid advertisement does not give any room for anyinterpretation otherwise. It thus speaks about the manner by which apost has to be filled up, inclusive of a special reservation in the form of ahorizontal one. The power of either cancellation or amendment has tobe exercised by way of an amendment to the advertisement, except in acase of reduction of seats. Further, such a power has to be exercisedeither at the initial stage, which only means before writing the examinationor during the process, and thus giving ample indication that publishingthe result would mean the completion and, therefore, the declaration ofselected candidates would only be consequential.

13. The Selection Committee held a meeting on 05.10.2016proposing to further relax the cut-off marks fixed only for the candidatesbelonging to the horizontal reserved categories. Accordingly, the cut-offmarks for the General Category have been kept intact. Thereafter, asubsequent meeting was held on 17.12.2016 by which the earlier decisionproposed to be implemented on 05.10.2016 was cancelled. The meetingwas attended by all the members of the Selection Committee.

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A14. The State Government took a decision to give effect to thespecial reservation despite it being a horizontal one. The aforesaid decisionwas made apparently for the reason that the percentage of candidatesexpected to fill the post meant for the aforesaid reservation, were foundinadequate. The decision of the State Government was taken note ofand incorporated in the Selection Committee meeting held on 26.12.2016.B

“…In the meeting of the selection committee held on 05.10.2016,it was decided to reduce the aforesaid cut of marks up to 10%and later on also, when the posts for women and specially abledcandidates were remained vacant thus in the meeting held on17.10.2016 while cancelling the provision of giving aforesaidCrelaxation, it was decided to make recruitment thereon for 1415posts of supervisor instructors and publish final selection list thereof.

In this regard, as per guidance availed from the GujaratGovernment, it was decided to fix the cut of marks (minimumeligible standard) as 40% for the candidates of general categoryDand 35% for the candidates of Scheduled Caste, Scheduled Tribe,Socially and Educationally Backward Class and other reservedposts for filling total 1415 posts of Supervisor Instructor.”

15. The aforesaid decision is made by treating the specialreservation which was otherwise horizontal, as a vertical reservation.EAs a consequence, the clause contained in the advertisement, as decidedby the resolution of the Selection Committee dated 03.09.2015, providingfor the consequence of non-filling of a post meant for a special categoryto be filled up with the other eligible candidates, was overturned withouteven bringing an amendment, that too unilaterally, after the declarationof the result.F

16. Aggrieved by the aforesaid action, the appellants who wouldotherwise secure selection to the post, approached the High Court. Findingdue merit, the learned Single Judge allowed the writ petitions filed.

17. The State and the official Respondents did not choose toGchallenge the decision made which was actually done based upon anearlier decision made by the Division Bench, but rather decided to giveeffect to it. However, certain individuals who were affected by the orderof the learned Single Judge, having secured the benefit of the SelectionCommittee in a decision dated 26.12.2016, and accordingly got selected,filed the appeals before the Division Bench. The appeals were allowedH

on the ground that the original petitioners do not have a vested right,adequate power is available to the Selection Committee, and there is nochange in the rule after the game has started.

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18. In the present appeals, the private respondents alone are thecontesting ones as even before the Division Bench, many others did notchoose to contest the decision of the learned Single Judge for the reasonsbest known to them. The order of the learned Single Judge has in factbeen given effect to by the official respondents, and therefore, they areactually in service for the past few years. With the aforesaid backdrop,we shall consider the respective contentions.

SUBMISSIONS:

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19. Mr. P.S. Patwalia, learned senior counsel appearing for theappellants submitted that the Selection Committee did not have a powerto reduce the cut-off marks. The Respondent Nos. 1 and 2 cannot bepermitted to change the rules of the game after it has begun. The exerciseof power, if any, is arbitrary. In any case, the State of Gujarat cannotusurp the power of the Selection Committee, and in turn the same oughtnot to have been followed by it. The Division Bench has committed anerror in wrongly applying the law to the facts of the case. Learnedsenior counsel for the appellants has pressed into service the followingdecisions, while seeking an order of reversal.

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•Tej Prakash Pathak & Ors. v. Rajasthan High Court &Ors. (2013) 4 SCC 540; •Veerendra Kumar Gautam & Ors. v. Karuna NidhanUpadhyay & Ors., (2016) 14 SCC 18; •Anupal Singh & Ors. v. State of Uttar Pradesh & Ors.,F(2020) 2 SCC 173;

•Ashok Kumar Thakur v. Union of India & Ors. (2008) 6SCC 1.

20. Ms. Archana Dave Pathak, learned counsel appearing forRespondent Nos. 1 and 2 and Mr. Vikas Singh, learned senior counselappearing for the private respondents, submitted that what was donebefore making the change is a mere publication of the marks obtained.The selection was done subsequently. So long as the power is availablewith the Selection Committee, and the objective being reasonable, thereis no ground for any interference. The appellants do not have a vested G

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Aright for appointment to a post. The Division Bench has correctlyconsidered the legal issues while upholding the decision of RespondentNos. 1 and 2, as being a policy decision. One has to see the objectivebehind the special reservation. Therefore, there is no need for anyinterference in these appeals.

B21. On a query raised by us, Ms. Archana Dave Pathak, learnedcounsel appearing for Respondent Nos. 1 and 2 submitted that there areadequate posts available and if a direction is issued, the same would begiven effect to by considering either the appellants or the privaterespondents. It is also acknowledged that filling up of the vacancies areto be made with respect to each of the sub-categories along with theCreservation either vertical or horizontal. The learned senior counselappearing for both sides have submitted that the issue of inter-se senioritybetween the appellants and the private respondents would also beconsidered to avoid any confusion at a later point of time.

DISCUSSION:D

22. We are dealing with the recruitment process by which theposts pertaining to each of the separate categories is to be filled up byonly one mode, i.e., written examination. The cut-off marks have beenfixed with a distinct clarification that it would not be tinkered with byfacilitating anyone to be considered, if the candidate acquired lesserEmarks. There is a difference between qualification for making anapplication, and the eligibility to be determined in the process of selection.We are not concerned with the qualification for making an application inthe present case, but rather an eligibility after the examination is conducted.

23. Another unique feature of the present case is that the SelectionFCommittee has reduced the marks to facilitate the horizontal reservationby treating it as a vertical reservation. Admittedly, the rules do not providefor such reservation to be treated as a vertical one. Likewise, the rulesdo not fix any cut-off marks. An advertisement, made pursuant to anotification, binds the parties. It has got all the trappings of a statutoryGprescription, unless it becomes contrary to either a rule or an Act. Achange, if any, can only be brought forth by way of an amendment andnothing else. Such an amendment even if it is permissible can be testedon the touchstone of Article 14 of the Constitution of India. It cannot beintroduced to give an entry to a special reservation, in a case where aright becomes accrued to a candidate, under a policy decision reducedHin the form of an advertisement, to be considered for a post in the absence of any eligible candidate from the horizontal category.

24. It is true that a candidate may not have a vested right to thepost, however, it cannot be confused with a right to be considered inaccordance with law. A law which enables a candidate to get a postcannot be changed to facilitate another group of persons, since thecandidate acquires a vested right to be considered in accordance withlaw, as held by this Court in N.T. Devin Katti v. Karnataka PublicService Commission, (1990) 3 SCC 157,

“11. There is yet another aspect of the question. Whereadvertisement is issued inviting applications for direct recruitmentto a category of posts, and the advertisement expressly statesthat selection shall be made in accordance with the existing rulesor government orders, and if it further indicates the extent ofreservations in favour of various categories, the selection ofcandidates in such a case must be made in accordance with thethen existing rules and government orders. Candidates who apply,and undergo written or viva voce test acquire vested right forbeing considered for selection in accordance with the terms andconditions contained in the advertisement, unless the advertisementitself indicates a contrary intention. Generally, a candidate hasright to be considered in accordance with the terms and conditionsset out in the advertisement as his right crystallises on the date ofpublication of advertisement, however he has no absolute right inthe matter. If the recruitment Rules are amended retrospectivelyduring the pendency of selection, in that event selection must beheld in accordance with the amended Rules. Whether the Ruleshave retrospective effect or not, primarily depends upon thelanguage of the Rules and its construction to ascertain thelegislative intent. The legislative intent is ascertained either byexpress provision or by necessary implication; if the amendedRules are not retrospective in nature the selection must beregulated in accordance with the rules and orders which were inforce on the date of advertisement. Determination of this questionlargely depends on the facts of each case having regard to theterms and conditions set out in the advertisement and the relevantrules and orders. Lest there be any confusion, we would liketo make it clear that a candidate on making application fora post pursuant to an advertisement does not acquire any B

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Avested right of selection, but if he is eligible and is otherwisequalified in accordance with the relevant rules and the termscontained in the advertisement, he does acquire a vestedright of being considered for selection is accordance withthe rules as they existed on the date of advertisement. Hecannot be deprived of that limited right on the amendmentBof rules during the pendency of selection unless theamended rules are retrospective in nature.”

(emphasis supplied)

25. Admittedly, in the case on hand, the appellants are entitled toCget the respective post as per the advertisement issued. The saidadvertisement has not been amended. It was sought to be modified onthe advice of the Government, though an earlier decision was taken onthe similar line but wisely withdrawn. Fixing cut-off marks for a particularcategory has got a rationale behind it. Reducing it only for the purposeof providing employment to a particular category, when the others haveDalready acquired some right would be an affront to Article 14 of theConstitution of India.

26. We have already discussed the scope and ambit of the relevantclauses contained in the advertisement, particularly sub-clauses (15) and(19). In our considered view, they do not confer unbridled power eitherEon the State Government or on the Selection Committee to modify theselection process, and thereby, reduce the cut- off marks after the resultsare published. The submission made that the selection was made onlythereafter, will not hold water. What was done by way of publishing theselection list after the change is nothing but a ministerial act.

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27. We wish to place reliance on the judgment of this Court inTamil Nadu Computer Science B.Ed. Graduate Teachers WelfareSociety (1) v. Higher Secondary School Computer TeachersAssociation & Ors., (2009) 14 SCC 517,

20. It is thus established, that the State Government reduced theGminimum qualifying marks for the post of computer instructors to35% which is contrary to an earlier decision taken in a meetingheld on 10-10-2006 that the minimum qualifying marks for fillingup the posts of computer instructors would be 50% i.e. 75 marksout of total 150 marks. It is thus established that the Governmentchanged the rules of recruitment and terms and conditions ofH

appointment in the midway after the selection process was initiated.The said decision was taken on a Sunday i.e. on 12-10-2008, afterthe candidates had taken their exams.

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29. The counsel appearing for the respondents, however, submittedthat since these contract employees have been working for a verylong time in the government schools, therefore, the Governmenthad taken the decision to reduce the minimum qualifying marks tosee that at least some of them who could qualify in the specialrecruitment test could be recruited and absorbed so as not todeprive them from getting absorbed in the governmentemployment through a regular process.

30. It was also submitted that out of 1714 candidates, who havewritten the special recruitment test only 894 candidates couldreceive more than 50% marks whereas 906 candidates couldobtain less than 50%, which was minimum qualifying marksprescribed by the Government in its earlier policy decision butobtained more than 35% marks. Consequently, it was submittedthat the Government thought it fit that the said minimum qualifyingmarks should be reduced to 35% so as to absorb more people,who are still working in the government schools as computerinstructors.

31. We have considered the aforesaid rival submissions of thecounsel appearing for the parties in the light of the records placedbefore us. It is clearly established from the records that in orderto give one-time opportunity, a special recruitment test was orderedto be held for selection and recruitment as also absorption ofexisting computer instructors. The said decision was taken onsympathetic consideration and with the intention of doing justiceto those existing computer instructors who were working ingovernment schools for a very long time. Such a recruitment driveand test was held by laying down rules of recruitment therebyproviding a level playing field for all concerned.

32. Prior to holding of the said test guidelines were formulatedthrough a policy decision laying down the criteria that the minimumqualifying marks in the said test would be at least 50%. The saidguidelines of recruitment as laid down through a policy decision A

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Awere sacrosanct and were required to be followed for all practicalpurposes even if we accept that the Government could have filledup the said posts of computer instructors by holding a specialrecruitment test of the aforesaid nature as one-time exception.

33. We, however, cannot hold that the subsequent decision of theBGovernment thereby changing qualifying norms by reducing theminimum qualifying marks from 50% to 35% after the holding ofthe examination and at the time when the result of the examinationwas to be announced and thereby changing the said criteria at theverge of and towards the end of the game as justified, for we findthe same as arbitrary and unjustified. This Court in HemaniCMalhotra v. High Court of Delhi [(2008) 7 SCC 11 : (2008) 2SCC (L&S) 203] has held that in recruitment process changingrules of the game during selection process or when it is over arenot permissible.”

28. The aforesaid judgment would certainly govern the issue,

28. The aforesaid judgment would certainly govern the issue, Dtherefore, the decision of the Division Bench in holding the aforesaiddecision as having no application to the facts of the present case cannotbe sustained. In fact, the case we are dealing with, stands on a betterfooting than the facts governing the aforesaid case, wherein the selectionprocess was not completed when a decision to reduce the marks wasmade. The Division Bench is also not correct in not following the earlierEdecisions of the Co-ordinate Bench in Prajapati Ishwarbhai Joitaramv. State of Gujarat, Letters Patent Appeal No.1350 of 2012 dated20.03.2013, which dealt with the issue of reduction in cut-off marks toaccommodate horizontal reservations.

29. Much argument has been made based upon the decision ofFthis Court in K. Manjusree v. State of Andhra Pradesh & Anr., (2008)3 SCC 512 and the reference pending before the Constitution Bench inTej Prakash Pathak v. Rajasthan High Court., (2013) 4 SCC 540.On the facts of the case, we do not think that the said issue has anybearing, as held by this Court, while dealing with a case of arbitrarychange in criteria, in Ramjit Singh Kardam v. Sanjeev Kumar, (2020)G20 SCC 209, “Was the Chairman competent to take policy decisions like“selection criteria” or “mode of selection”?

51. As per the notification extracted above it is the Commission,which “shall devise the mode of selection and fix the criteria forH

selection”. The said power has to be exercised in a reasonableand fair manner to advance the purpose and object of selection.Even if it is assumed for the sake of the argument that theCommission can change the criteria of selection from time to time,the said power has to be exercised not in an arbitrary manner.

52. We may in this context refer to the three-Judge Benchjudgment of this Court in T.N. Computer Science B.Ed. Govt.Welfare Society (1) v. Higher Secondary School ComputerTeachers Assn. [(2009) 14 SCC 517 : (2010) 1 SCC (L&S) 367]In the above case computer instructors were appointed on contractbasis to various schools. The Government decided to hold a specialtest by the Teacher Recruitment Board for selection of computerinstructors. On 10-10-2008 the State Government took decisionthat minimum qualification marks would be 50%. Specialrecruitment test was announced as 12-10-2008. On the night of12-10-2008 a list of candidates for appointment to the post ofcomputer instructors based on the special recruitment test wasput on the internet. While publishing the said marks of thecandidates, it was made clear that all candidates who have secured35% marks in the test would be called for certificate verification.The State Government reduced the minimum qualifying marks to35%. This Court did not approve the reduction of qualifying marksfrom 50% to 35%. The following was laid down in para 33 : (SCCp. 523)

“33. We, however, cannot hold that the subsequent decision ofthe Government thereby changing qualifying norms by reducingthe minimum qualifying marks from 50% to 35% after theholding of the examination and at the time when the result ofthe examination was to be announced and thereby changingthe said criteria at the verge of and towards the end of thegame as justified, for we find the same as arbitrary andunjustified. This Court in Hemani Malhotra v. High Court ofDelhi [(2008) 7 SCC 11 : (2008) 2 SCC (L&S) 203] , has heldthat in recruitment process changing rules of the game duringselection process or when it is over are not permissible.”

53. The learned counsel for the appellant has submitted thatjudgments of this Court laying down the criteria for selection cannotbe changed during the course of selection has been referred to a A

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Alarger Bench by a judgment of this Court in Tej Prakash Pathakv. High Court of Rajasthan [(2013) 4 SCC 540 : (2013) 2 SCC(L&S) 353], hence the judgment of this Court laying down thecriteria cannot be changed during the course of the selection isyet to be tested. For the purposes of the present case we proceedon the assumption that even if the criteria can be changed byBselecting body from time to time, the said change cannot beaffected arbitrarily. The present is a case where change in criteriahas been affected and altered arbitrarily with the object ofdowngrading and not upgrading the standards of selection. TheHigh Court did not commit any error in not upholding the changeCof criteria effected after start of selection process with whichfinding we fully concur.”

30. The decision to reduce the cut-off marks is not based upon anobjective-criteria, namely, the suitability of the candidate to the post, butfor extraneous reason, i.e., to accommodate otherwise ineligibleDcandidates. In other words, earlier cut-off marks were fixed on aconscious consideration of the marks required to be eligible for the post,which could not be reduced, unless there is a sound reason that thereduced marks also would be sufficient to be suitable for that post.

31. Having held that the order of the Division Bench of the HighECourt of Gujarat cannot be sustained in the eye of law, we are inclinedto balance the equities and do justice by exercising our power underArticle 142 of the Constitution of India. We agree with the submission ofMr. Vikas Singh, learned senior counsel, that the object behind the decisionis laudable and the private respondents belong to the special categorycomprising of women, ex-servicemen and physically challenged. TheyFare waiting to get their appointments for long years with fond hopes.They have the order of the Division Bench to their benefit which wasoccasioned by the policy decision of the State Government and theSelection Committee. Thus, we find the said submission merits moderationof the impact of our decision, at least insofar as the private respondentsGbefore us are concerned, as the others similarly placed being fence sitterscannot be extended the same benefit. Probably, they would have eithermoved on or got some other jobs.

32. In such view of the matter, taking note of the peculiar facts ofthe case, particularly in the light of our finding that the situation has beenHbrought forth by Respondent Nos. 1 and 2 and the vacancies that still SURESHKUMAR LALITKUMAR PATEL v. STATE OFGUJARAT [M. M. SUNDRESH, J.]

remain, we are inclined to issue a direction to them to considerAaccommodating the private respondents in their respective reservedcategory, provided they do not exceed the percentage of reservationmade permissible, without upsetting the appointment of the appellantsand others similarly placed and subject to their eligibility. On the questionof inter-se seniority, we do not need to delve much, as the order of theBDivision Bench stands set aside, and therefore, the private respondentsare certainly new entrants, and hence cannot seek precedence. Theappeals are allowed. No order as to costs.

A

33. All pending applications are disposed of.

C

Divya Pandey

Appeals allowed.

(Assisted by : Arjun Narang and Roopanshi Virang, LCRAs)

D

E

F

G

H