Reducing Cut-Off Marks After Publication Of Results Only To Provide Employment To A Particular Category Violates Article 14 : Supreme Court

“The decision to reduce the cut-off marks is not based upon an objective criteria, namely, the suitability of the candidate to the post, but for extraneous reason, i.e., to accommodate otherwise ineligible candidates. In other words, earlier cut-off marks were fixed on a conscious consideration of the marks required to be eligible for the post, which could not be reduced, unless there is a sound reason that the reduced marks also would be sufficient to be suitable for that post.”

According to the advertisement, in addition to ‘vertical’ reservation for Scheduled Castes, Scheduled Tribes, and Other Backward Classes by way of prescribing different cut-off marks, 33 per cent of the total number of seats were reserved for women, 10 per cent for former service members, and three per cent for persons with physical disabilities (4-40 per cent), to be set off against the respective categories. It was also categorically mentioned that should a suitable candidate not be found for the seats reserved in this manner, the said vacancies would be filled by other suitable candidates of the respective categories who were not beneficiaries of this scheme of ‘horizontal’ reservation.

What led to the controversy over appointments is a departure from this norm laid down by the labour department. Instead of selecting and appointing other suitable candidates in order to fill the vacancies, the Gujarat government in 2016 relaxed the cut-off marks for candidates belonging to the horizontal reserved categories. In other words, the state government took a decision to treat the special reservation, despite it being a horizontal one, as vertical reservation. Aggrieved by the move to accommodate the beneficiaries of horizontal reservation, appellants who would have otherwise been selected to fill the vacant seats approached the Gujarat High Court. Although initially, a single judge allowed the writ petitions, the decision was overturned by a division bench of the high court, when an appeal was preferred by candidates of the horizontal reserved categories who had been selected.

The apex court put an end to the controversy by allowing the appeal and setting aside the selection committee’s decision to relax the cut-off marks to accommodate women, persons with disabilities, and former members of armed forced on the following grounds:

First, unlike the eligibility criteria for making an application, the qualifying marks determining the eligibility of candidates who have already taken an examination could not be ‘tinkered with’ by facilitating anyone who acquired fewer marks. “There is a difference between qualification for making an application, and the eligibility to be determined in the process of selection. We are not concerned with the qualification for making an application in the present case, but rather an eligibility after the examination is conducted,” the court clarified.

Second, in the absence of a duly introduced amendment, an advertisement made pursuant to a notification would bind the parties, since it had all the trappings of a statutory prescription, unless it became contrary to either a rule or an act. As such, any change could only be introduced by way of an amendment and nothing else. “The said advertisement has not been amended. It was sought to be modified on the advice of the government.”

Third, while a candidate did not have a vested right to the advertised post, they had the right to be considered for appointment to the post in accordance with law. “A law which enables a candidate to get a post cannot be changed to facilitate another group of persons, since the candidate acquires a vested right to be considered in accordance with law,” Justice Sundresh explained.

Fourth, even if such an amendment were permissible, it would still need to pass muster of the right of equality enshrined in Article 14 of the Constitution. “An amendment could not be introduced to give an entry to a special reservation, in a case where a right becomes accrued to a candidate, under a policy decision reduced in the form of an advertisement, to be considered for a post in the absence of any eligible candidate from the horizontal category,” Justice Sundresh wrote. The court noted that the rules did not provide for the special reservation for women, persons with physical disabilities, and former service members to be treated as a scheme of vertical reservation. Neither did the recruitment rules prescribe any cut-off marks. However, unlike the cut-off marks, which could be traced back to a particular rationale, reducing the marks only for the purpose of providing employment to a particular category and therefore, enabling them to enjoy the benefit of a special reservation, when other suitable candidates had already acquired some right, was an ‘affront’ to Article 14, the court held.

It was also pointed out that the decision to relax the qualifying marks was not based on an objective criteria such as the suitability of the candidate, but for ‘extraneous reasons’ namely, to accommodate otherwise ineligible candidates. “In other words, earlier cut-off marks were fixed on a conscious consideration of the marks required to be eligible for the post, which could not be reduced, unless there was a sound reason that the reduced marks also would be sufficient to [determine suitability] for that post,” Justice Sundresh wrote.

Fifth, the advertisement did not confer unbridled power either on the state government or on the selection committee to modify the selection process by reducing the qualifying marks after the results had already been published. “What was done by way of publishing the selection list after the change is nothing but a ministerial act,” the court held.

However, even though the appeals were allowed, in order to “balance the equities and do justice”, the court exercised its extraordinary powers under Article 142 to direct the state government to ‘consider’ accommodating the private respondents in their respective reserved category, provided that the permissible percentage of reservation was not exceeded, without upsetting the appointment of the appellants and others similarly placed, and subject to their eligibility. The private respondents, if so accommodated in the manner suggested, would be new entrants and would not be eligible to seek precedence, the court clarified. Justice Sundresh wrote,

“The object behind the decision is laudable and the private respondents belong to the special category comprising of women, ex-servicemen and physically challenged. They are waiting to get their appointments for long years with fond hopes. They have the order of the division bench to their benefit which was occasioned by the policy decision of the state government and the selection committee. Thus, the impact of our decision requires moderation, at least insofar as the private respondents before us are concerned, as the others similarly placed being fence sitters cannot be extended the same benefit. We are inclined to issue a direction to them to consider accommodating the private respondents in their respective reserved category, provided they do not exceed the percentage of reservation made permissible, without upsetting the appointment of the appellants and others similarly placed and subject to their eligibility. On the question of inter-se seniority, we do not need to delve much, as the order of the division bench stands set aside, and therefore, the private respondents are certainly new entrants, and hence cannot seek precedence. The appeals are allowed.”

Case Title

Sureshkumar Lalitkumar Patel & Ors. v. State of Gujarat & Ors. | Special Leave Petition (Civil) Nos. 4302-4303 of 2021 and another connected matter

Citation : 2023 LiveLaw (SC) 137

For Petitioner(s) Mr. Paramjit S. Patwalia, Sr. Adv. Mr. Sameer Parekh, Adv. Ms. Pratyusha Priyadarshni, Adv. Mr. Prateek Khandelwal, Adv. M/S. Parekh & Co., AOR

For Respondent(s) Mr. Purvish Jitendra Malkan, AOR Mr. Rajivkumar, AOR Mr. Sanjeev Gupta, Adv. Ms. Deepanwita Priyanka, AOR Ms. Archana Pathak Dave, Adv

Headnotes

Service Law - Selection Process- Reduction in cut-off marks to accommodate candidates whose seats were reserved due to horizontal reservation – Difference between qualification for making an application and eligibility criteria determined after examination is conducted – Present matter dealt with not the qualification for making an application, but the eligibility of candidates determined on the basis of cut-off marks – Held, eligibility determined after examination is conducted could not be disturbed. (Para 22)

Service Law - Selection Process-Whether advertisement made pursuant to notification could be changed – No amendment duly introduced – Modification on the advice of state government – An advertisement made pursuant to a notification would bind the parties – Had all the trappings of a statutory prescription unless it became contrary to either a rule or an act – Held, any change could only be introduced by way of an amendment and nothing else. (Para 23)

Right of candidate to be considered in accordance with law – No vested right to advertised post Candidates had right to be considered for appointment to the post in accordance with law – Held, a law which enabled a candidate to get a post could not be changed to facilitate another group of persons, since the candidate acquired a vested right to be considered in accordance with law. (Para 24)

Constitution of India - Article 14- Equality test for permissible amendments – Right to Equality –  Even permissible amendments would have to be tested on the touchstone of the right to equality enshrined in Article 14 of the Constitution – Reducing cut-off marks only for the purpose of providing employment to a particular category when other candidates had already acquired some right – Held, violative of right to equality being based not on objective criteria such as the candidates’ suitability but on extraneous reasons namely to accommodate otherwise ineligible candidates – Further held, cut-off marks could not be reduced in the absence of a sound reason that would indicate that the reduced marks also would be sufficient to determine suitability for appointment to advertised posts. (Paras 25, 30)

Power of state government and selection committee to reduce cut-off marks after publication of results – Held, advertisement did not confer unbridled power either on state government or on selection committee to modify the selection process by reducing the qualifying marks after the results had already been published – Appeal allowed. (Para 26)

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