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CASE NO.:

Appeal (civil) 4347 of 2007

PETITIONER:

Union of India & Others

RESPONDENT:

S. Vinodh Kumar & Others

DATE OF JUDGMENT: 18/09/2007

BENCH:

S.B. Sinha & Harjit Singh Bedi

JUDGMENT:

J U D G M E N T

CIVIL APPEAL NO. 4347 OF 2007

[Arising out of S.L.P. (Civil) No. 23403 of 2005]

S.B. SINHA, J :

1. Leave granted.

2. On or about 09.05.1998, 382 vacancies were advertised for the post of

'Gangman' by the Waltair Division of the then South Eastern Railways (now

known as East Coast Railways). By a corrigendum issued, the right of the

authority to increate or decrease the number of posts projected for

recruitment was reserved. The educational qualification for the candidates

was prescribed at 8th class pass. Applicants were required to be physically

strong to carry out the job. They were to pass the requisite physical test.

Reservation was provided for the candidates belonging to Scheduled Castes,

Scheduled Tribes and Other Backward Classes. The number of vacancies

was, however, enhanced to 792 posts. The appropriate authority, however,

gave a final clearance for filling up 480 posts pursuant to the notification

dated 09.06.1998. The category-wise vacancies were as under :

General : 240

Other Backward Classes : 115

Scheduled Castes : 72

Scheduled Tribes : 53

3. Out of 480 vacancies, 240 posts were meant for general category

candidates. The cut-off marks were provided for different categories of

candidates in the following terms :

General : 71

Other Backward Classes : 56

Scheduled Castes : 20

Scheduled Tribes : 20

4. Indisputably, 426 posts were filled up which were earmarked for

candidates belonging to General Category, Other Backward Classes,

Scheduled Castes and Scheduled Tribes. 12 posts reserved for Scheduled

Castes and 42 posts reserved for Scheduled Tribes, however, could not be

filled up owing to non-availability of the qualified eligible candidates.

Respondents herein had not been appointed although they had obtained the

qualifying marks specified in terms of the notification dated 09.06.1998. 39

unsuccessful candidates filed an application before the Central

Administrative Tribunal. The said application was disposed of directing the

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Railway Administration to consider the question in regard to lowering of

cut-off marks.

5. The competent authority of the Railways, however, took a decision

that it would not be conducive to general merit of the candidates if the cut-

off marks were further lowered, whereafter another application was filed

before the Tribunal. The said application was marked as OA No. 1750 of

2000. By an order dated 02.05.2001, the said application was dismissed by

the Tribunal, inter alia, opining that the appellants could not be directed to

lower down the cut-off marks. A writ petition filed thereagainst by the

respondents herein, however, by reason of the impugned judgment has been

allowed, directing the appellants to appoint them by lowering the cut-off

marks against the posts reserved for candidates belonging to Scheduled

Caste and Scheduled Tribe candidates, stating :

"According to Railways, the following is the break

up of vacancies. Out of 480 vacancies, 240 posts are

meant for OC category, 72 for SC category, 53 for ST

category and 115 for OBC category. As far as OC and

OBC categories are concerned, all the posts were filled,

and for want of eligible candidates the posts meant for

SC category were not filled up. In such a situation, the

only way to salvage the issue is to direct the authorities to

appoint the petitioners in the posts of Gangmen in the

unfilled vacancies of SC/ST duly protecting the interests

of SC/ST reservation in future selections. Out of 30

petitioners, 1 belongs to SC, 7 OC and 22 OBC.

Inasmuch as the vacancy meant for SC candidate, there is

no difficulty for him to be appointed as the are vacancies

in SC category. But as far as OC candidates and OBC

candidates are concerned, since their quota had already

been filled up, they should be appointed in the quota

meant for SC and ST vacancies. In the future vacancies,

the quota meant for OC and OBC categories the

vacancies unfilled shall be reduced and the same could be

allotted to SC and ST categories, as in this case the

petitioners are directed to be appointed from out of the

quota meant for SC and ST categories. By this process

the ratio between the reserved categories will be

maintained. Since the petitioners have been languishing

for the last more than seven years, this Court has to pass

this order in the interest of justice."

6. Appellants are, thus, before us.

7. Mr. Amarendra Sharan, learned Additional Solicitor General of India

appearing on behalf of the appellants, submitted :

(i) The vacancies reserved for Scheduled Castes and Scheduled Tribes

should not have been directed to be filled up by general candidates.

(ii) Having appeared at the competitive examination for public posts, the

respondents had no vested legal right and, thus, the writ of mandamus

issued by the High Court directing the appellants to fill up the

vacancies is illegal.

(iii) Respondents, in any event, having participated in the selection process

knowing fully well to the procedure laid down therefor and having

become unsuccessful therein, the writ application filed by them before

the Tribunal was not maintainable.

(iv) The High Court had no jurisdiction to lower the cut-off marks as it

was the sole prerogative of the employer.

8. Mr. A.K. Ganguly, learned Senior Counsel appearing on behalf of the

respondents, on the other hand, contended :

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(i) The cut-off mark for the general candidates was specified in an

arbitrary manner inasmuch as the marks obtained by the 240th

candidate was made the basis thereof.

(ii) The Railway Board itself having directed to fill up the unfilled

reserved vacancies by general candidates in terms of their circular

letter dated 12.03.1976, the impugned judgment of the High Court

should not be interfered with.

(iii) Despite the fact that the respondents did not have any legal right to be

appointed but as they have been deprived of a valuable right by reason

of a mala fide action on the part of the appellant in soar as they had

not followed the aforementioned circular dated 12.03.1976 issued by

the Railway Board, the High Court must be held to have acted in

accordance with law.

9. The fact that the posts of Gangmen were required to be filled up by

persons being physically strong and healthy is not denied or disputed. That

would not, however, mean that the Railway Administration could not have

fixed the other criteria therefor. As indicated hereinbefore, even the

educational qualification was prescribed. The mode and manner of

selection, as noticed hereinbefore, was laid down in the aforementioned

notification dated 09.05.1998. It was also laid down that the candidates

concerned would not only must procure the requisite educational

qualification but must also pass the written test followed by an interview as

also the physical test.

10. It may be true that the cut-off 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 marks were fixed for Other Backward Classes candidates and 20 marks

were fixed for Scheduled Caste and Scheduled Tribe candidates. Only

because the cut-off 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 cut-off mark had been fixed. The fact that the Railway

Administration intended to fix the cut-off 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 cut-off marks were fixed for

different categories of candidates. We are, therefore, unable to accept the

submission of the learned counsel that the cut-off 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 cut-off

marks is neither denied nor disputed. If the cut-off 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

cut-off marks. An inference, therefore, can be drawn from the

aforementioned fact that the main prayer of the respondents was that the cut-

off 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 view point 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 cut-off 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 cut-off 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 cut-off marks fixed

will depend upon the importance of the subject for the post in question. It is

permissible to fix different cut-off marks for different categories of

candidates. [See Banking Service Recruitment Board, Madras v. V.

Ramalingam and Others (1998) 8 SCC 523].

12. So far as the submission of the learned senior counsel in regard to the

Railway Board's circular letter dated 12.03.1976 is concerned, we may at

the outset notice that such a contention had not been raised before the

Tribunal. Respondents herein did not have any occasion to meet the said

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contention. In any event, only because in a case of this nature, the said

circular had not been complied with, the same, in our opinion would not lead

to a conclusion that action on the part of the appellants in its entirety was

unwarranted or mala fide in nature.

13. Even assuming that the appellants should have filled up the unfilled

vacancies meant for the reserved category candidates by the general

candidates, but then for the said purpose, the general candidates were

required to fulfill the eligibility clause including the cut-off marks fixed

therefor. Respondents admittedly did not do so. The High Court, in our

opinion, committed a serious error in directing the appellants to lower the

cut-off marks. The cut-off mark 20 was fixed for the Scheduled Caste and

Schedule Tribe candidates. The same was not meant to be applied to the

general category candidates. The jurisdiction of the appellants to fix

different cut-off marks for different category of candidates has never been

questioned and in that view of the matter only because the Railway Board

had issued a circular as far back as in the year 1976 to fill up the vacancies

by unreserved candidates in the event the reserved category of candidates

was not available therefor, in our opinion, the same would not mean that

irrespective of the qualification and performance of general category

candidates they were entitled to be appointed.

14. It is now a well-settled principle of law that even wait-listed

candidates have no legal right to be appointed. [See Ashwani Kumar Singh

v. U.P. Public Service Commission and Others (2003) 11 SCC 584 and State

of Rajasthan & Ors. V. Jagdish Chopra, [2007 (10) SCALE 470].

15. It was for the appellant to decide as to whether the posts were to be

dereserved or carried forwarded. [See Rajasthan Public Service Commission

and Another etc. v. Harish Kumar Purohit and Others etc. (2003) 5 SCC

480].

16. In any view of the matter, the respondents appeared in a competitive

examination. The posts advertised were public posts. They did not have any

vested right for appointment. It is well-known that even selected candidates

do not have legal right in this behalf. [See Shankarasan Dash v. Union of

India - 1991 (2) SCR 567 : (1991) 3 SCC 47], Asha Kaul (Mrs.) and

Another v. State of Jammu and Kashmir and Others (1993) 2 SCC 573, All

India SC & ST Employees' Association and Another v. A. Arthur Jeen and

Others (2001) 6 SCC 380, Food Corporation of India and Others v. Bhanu

Lodh and Others (2005) 3 SCC 618].

17. In Pitta Naveen Kumar and Others v. Raja Narasaiah Zangiti and

Others (2006) 10 SCC 261], this Court observed :

"The legal position obtaining in this behalf is not

in dispute. A candidate does not have any legal right to

be appointed. He in terms of Article 16 of the

Constitution of India has only a right to be considered

therefor. Consideration of the case of an individual

candidate although ordinarily is required to be made in

terms of the extant rules but strict adherence thereto

would be necessary in a case where the rules operate only

to the disadvantage of the candidates concerned and not

otherwise\005"

18. It is also well-settled that those candidates who had taken part in the

selection process knowing fully well the procedure laid down therein were

not entitled to question the same. [See Munindra Kumar and Others v. Rajiv

Govil and Others - AIR 1991 SC 1607]. [See also Rashmi Mishra v. Madhya

Pradesh Public Service Commission and Others \026 2006 (11) SCALE 5]

19. In Chandra Prakash Tiwari and Others v. Shakuntala Shukla and

Others [(2002) 6 SCC 127], it was held :

"32. In conclusion, this Court recorded that the

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issue of estoppel by conduct can only be said to be

available in the event of there being a precise and

unambiguous representation and it is on that score a

further question arises as to whether there was any

unequivocal assurance prompting the assured to alter his

position or status - the situation, however, presently does

not warrant such a conclusion and we are thus not in a

position to lend concurrence to the contention of Dr.

Dhawan pertaining the doctrine of Estoppel by conduct.

It is to be noticed at this juncture that while the doctrine

of estoppel by conduct may not have any application but

that does not bar a contention as regards the right to

challenge an appointment upon due participation at the

interview/selection. It is a remedy which stands barred

and it is in this perspective in Om Prakash Shukla (Om

Prakash Shukla v. Akhilesh Kumar Shukla and Ors. , a

three Judge Bench of this Court laid down in no

uncertain terms that when a candidate appears at the

examination without protest and subsequently found to

be not successful in the examination, question of

entertaining a petition challenging the said examination

would not arise."

It was further observed :

"34. There is thus no doubt that while question of

any estoppel by conduct would not arise in the contextual

facts but the law seem to be well settled that in the event

a candidate appears at the interview and participates

therein, only because the result of the interview is not

'palatable' to him, he cannot turn round and subsequently

contend that the process of interview was unfair or there

was some lacuna in the process."

20. We are, however, not oblivious that there are certain exceptions to the

aforementioned rules but we are not concerned therewith in the present case.

21. For the reasons aforementioned, the impugned judgment cannot be

sustained, which is set aside accordingly. The appeal is allowed. However,

in the facts and circumstances of the case, there shall be no order as to costs.