UNION OF INDIA AND ORS.versusS. VINODH KUMAR AND ORS.

          I
- -~




                               UNION OF INDIA AND ORS.                            A
                                          v.
                              S. VINODH KUMAR AND ORS.

                                   SEPTEMBER 18, 2007
                                                                                  B
                             [S.B. SINHA AND H.S. BEDI, JJ.]


     .)             Service Law-Recruitment-Different cut-off-marks provided
              for different categories of candidates-Non-filling offew reserved
              posts due to non-availability of qualified candidates-Unsuccessful c
              candidates seeking appointment against reservedpost by lowering cut-
               off marks-Denied by Central Administrative Tribunal-Allowed by
               High Court-On appeal, held : The candidates of general category
               can.wt be appointed against reserved posts-The Authority was
               having requisite jurisdiction to fix cut-off marks-Jn the facts, it D
              cannot be said that fixing of cut-off was arbitrary so as to offend
--\           Article I 4 of the Constitution-It was for the Authority to decide as
               to whether the post was to be dereserved or carried forward-The
               candidates, having taken part in the selection process, knowing the
              procedure thereof, estoppedfrom challenging the same-Constitution E
               ofIndia, 1950-Article 14-Estoppel.
                   Vacancies were advertised for recruitment to the post of
 r
              'Gangman' by Railways. The Authority had reserved the right to
              increase or decrease the number of posts. Certain seats were also
              reserved for the candidates belonging to Scheduled Castes, F
              Scheduled Tribes and Other Backward Classes. Cut-off marks were
              provided for different categories of candidates. Out of the total
              vacancies, the post belonging to General and Other Backward Class
              Category were filled. However, some posts belonging to Scheduled
              Caste and Scheduled Tribe category could not be filled up due to G
J-            non-availability of qualified eligible candidates.
                   Some unsuccessful candidates from General Category
              (respondents), filed application before Central Administrative
                                              41                                  H
    42           SUPREME COURT REPORTS               [2007] 10 S.C.R.


A Tribunal. The same was disposed of, directing the Administration         y
  to consider the question oflowering of cut-off marks of the general
  candidates. The Competent Authority decided that lowering of cut-
  off-marks would not be conducive to general merit of the candidates.
  Thereafter another application was filed and the same was dismissed
B by the Central Administrative Tribunal. In Writ Petition, High Court
  directed the concerned Authority to appoint the general category
  candidates by lowering the cut-off marks against the reserv~d posts.
  Hence the present appeal.
                                                                           A._
         Appellant contended that the direction of the High Court was
c   illegal, as the reserved vacancies could not be filled up by general
    candidates.
       Respondents contended that specification of cut-off-marks for
  general candidates was arbitrary; and the order of High Court could
D not be said to be illegal because previously Railway Board, itself
  had directed to fill up the unfilled reserved vacancies by general
  candidates in terms of Circular dated 12.3.1976.                         >--
         Allowing the appeal, the Court

E       HELD: 1. Only because the cut-off marks of general category
  candidates had been fixed on the basis of certain criteria, the same
  by itself, 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
                                                                               -f
F category as also reserved category candidates is evident from the
  fact that different cut-off marks were fixed for different categories
  of candidates. Therefore, it cannot be said that the cut-off marks
  fixed was wholly arbitrary so as to offend the principles of equality
  enshrined under Article 14 of the Constitution oflndia. The power
  of the employer to fix the cut-off marks is neither denied nor
G
  disputed. If the cut-off mark was fixed on a rational basis, no
                                                                            .~
  exception thereto can be taken. [Para 10] [48-H; 49-A-C]
      2. Respondents herein had approached the Tribunal in the year
  2000. The Tribunal directed the appellants to consider this case of
H lowering of the cut-off marks. An inference, therefore, can be drawn
                  U.0.1. v. S. VINODHKUMAR                          43


    from the aforementioned fact that the main prayer of the A
    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 B
    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 dire~ted 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 C
    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.                 D
                                                      [Para 11] [49-C-G]
        Banking Service Recruitment Board, Madras v. Ramalingam
    and Ors., [1998] 8 SCC 523, referred to.
         3. The contention with regard to the Railway Board's circular E
    letter dated 12.03.1976, had not been raised before the Tribunal.
    Respondents herein did not have any occasion to meet the said
    contention. In any event, only because in a case of this nature,
    the said circular had not been complied with, the same, would not
    lead to a conclusion that action on the part of the appellants in its
    entirety was unwarranted or ma/a fide in nature.                      F
                                            [Para 12] [49-G-H; 50-A]
         4. 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 G
    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, 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 H
   44            SUPREME COURT REPORTS                [2007] 10 S.C.R.


A candidates. The same was not meant to be applied to the general
  category candidates. The jurisdiction ofthe 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
B the vacancies by unreserved candidates in the event the reserved
  category of candidates was not available therefor, the same would
  not mean that irrespective of the qualification and performance of
  general category candidates they were entitled to be appointed. It
  was for the appellant to decide as to whether the posts were to be        J.._
c dereserved or carried forwarded. [Para 13] [50-A-FJ
       Ashwani Kumar Singh v. UP. Public Service Commission and
  Ors., [2003] 11 SCC 584; State of Rajasthan and Ors. v. Jagdish
  Chopra, (2007) 10 SCALE 470 and Rajasthan Public Service
  Commission and Anr. etc. v. Harish Kumar Purohit and Ors. etc.,
D (2003) 5 SCC 480, referred to.
       5. 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.
E                                                 [Para 16] [50-G-HJ
       Shankarasan Dash v. Union ofIndia, [1991J2 SCR 567; Asha Kaul
  (Mrs.) and Anr. v. State ofJammu and Kashmir and Ors., [1993] 2 SCC
  573; All India SC and ST Employees' Association and Anr. v. A. Arthur
F Jeen and Ors., [2001] 6 SCC 380 and Food Corporation ofIndia and
  Ors. v. Bhanu Lodh and Ors., [2005] 3 SCC 618, referred to.
        Pitta Naveen Kumar and Ors. v. Raja Narasaiah Zangiti and
   Ors., [2006] 10 SCC 261, relied on.
       6. Those candidates who had taken part in the selection process
G knowing fully well the procedure laid down therein were not entitled
  to question the same. [Para 18]                                             A
     Munindra Kumar and Ors. v. Rajiv Govil and Ors., AIR (1991)
  SC 1607; Rashmi Mishra v. Madhya Pradesh Public Service
H Commission and Ors., (2006) 11 SCALE 5 and Chandra Prakash
             U.0.1. v. S. VINODHKUMAR[SINHA,J.]                           45

     Tiwari and Ors. v. Shakuntala Shukla and Ors., [2002] 6 SCC 127, A
     referred to.
         CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4347
     of2007.
         From the Judgment and Order dated 17.03.2005 of the High B
     Court of Judicature Andhra Pradesh at Hyderabad in Writ Petition No.
     10166of2001.
          Amarendra Sharan, ASG, Asha G. Nair, R.C. Kathia and B.
j
     Krishna Prasad for the Appellants.
          A.K. Ganguli, S. Madhusudhan Babu and Mukesh K. Giri for             c
     the Respondents.
          The Judgment of the Court was delivered by
          S.B. SINHA, J. 1. Leave granted.
           2. On or about 09.05.1998, 382 vacancies were advertised for ti
     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 increase or decrease the number of
     posts projected for recruitment was reserved. The educational
     qualification for the candidates was prescribed at 8th class pass. E'
     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 F
     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
                                                                                 G
           Scheduled Castes                                72
.k
           Scheduled Tribes                                53
           3.0ut 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 :                           H
                                                                                 ~--
    46             SUPREME COURT REPORTS                     [2007] 10 S.C.R.


A        General                                        71                       _..,
                                                                                  I
         . Other Backward Classes                       56
         Scheduled Castes                               20
         Scheduled Tribes                               20

B      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
C 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 Railway Administration to
D 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
E 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,                   1
F 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
G          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.
H          In such a situation, the only way to salvage the issue is to direct
                  U.0.1. v. S. VINODHKUMAR[SINHA,J.]                           47


              the authorities to appoint the petitioners in the posts of Gangmeri A
 ~
              in the unfilled vacancies of SC/ST duly protecting the interests of
              SC/ST reservation in future selections. Out of 30 petitioners, l
              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 B
              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,, c
              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." D

-~
             6. Appellants are, thus, before us.
             7. Mr. Amarendra Sharan, learned Additional Solicitor General of
        India appearing on behalf of the appellants, submitted :
                                                                                      E
              (i) The vacancies reserved for Scheduled Castes and Scheduled
                  Tribes should not have been directed to be filled up by general
                  candidates.
 )-           (li) Having appeared at the competitive examination for public
                   posts, the respondents had no vested legal right and, thus, the F
                   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
                                                                                 G
                  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.
                                                                                      H
    48             SUPREME COURT REPORTS                  [2007] 10 S.C.R.


A         8. Mr. A.K. Ganguly, learned Senior Counsel appearing on behalf
    of the respondents, on the other hand, contended :
          (i)   The cut-off mark for the general candidates was specified in
                an arbitrary manner inasmuch as the marks obtained by the
B               240th candidate was made the basis thereof.
          (ri) 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.
c
          (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 ma/a fide action on the part of
                the appellant in soar as they had not followed the
D               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.
E 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
F 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
G 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
H on the basis of the aforementioned criteria, the same by itself, in our
               U.O.I. v. S. VINODHKUMAR [SINHA,J.]                             49

    opinion, would not mean that no cut-off mark had been fixed. The fact A
    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 ~
    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, B
    cut-off marks fixed was wholly arbitrary so as to offend the principles o(
    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
j
    the cut-off mark was fixed on a rational basis, no exception thereto can
    betaken.                                                                    C
          11. Respondents herein had approach~d 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 D
    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 , E
    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 F
    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 Ors., [1998] 8 sec 523].
          12. So far as the submission of the learned senior counsel in regard      tJ
    to the Railway Board's circular letter dated 12.03.1976 is concemed, 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 contention. In any event, only because in a case of this nature, the
                                                                                    H
    50             SUPREME COURT REPORTS                    [2007] 10 S.C.R.


A 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 ma/a fide in nature.
         13. Even assuming that the appellants should have filled up the unfilled
B 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
C 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
D Board had issued a circular as far back as in the year 1976 to fill up the
  vacancies by unresen'ed 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 perfonnance of general
  category candidates they were entitled to be appointed.
E        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. UP. Public Service Commission and Ors., [2003] 11 SCC
    584 and State of Rajasthan & Ors. v. Jagdish Chopra, (2007) 10
    SCALE 470].                                                                     -r
F
          15. It was for the appellant to decide as to wpether the posts were
    to be dereserved or carried forwarded. [See Rajasthan Public Service
    Commission and Anr. etc. v. Harish Kumar Purohit and Ors. etc.,
    [2003 5 sec 480].
G        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
H
           _ U.O.I. v. S. VINODHKUMAR[SINHA,J.]                         51

      SCC 47, Asha Kaul (Mrs.) and Anr. v. State ofJammu and Kashmir A
      and Ors., [1993] 2 SCC 573, All India SC & ST Employees'
      Association and Anr. v. A. Arthur Jeen and Ors., [2001] 6 SCC
      380, and Food Corporation of India and Ors. v. Bhanu Lodh and
      Ors., [2005] 3 SCC 618].
                                                                     B
           17. In Pitta Naveen Kumar and Ors. v. Raja Narasaiah
      Zangiti and Ors_, [2006] 10 SCC 261, this Court observed:

  j
                "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 oflndia has only a    c
            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.'' D
            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 Ors. v. Rajiv Govil and Ors., AIR (1991) SC 1607. See also
      Rashrni Mishra v. Madhya Pradesh Public Service Commission and E
      Ors., (2006) 11 SCALE 5]
           19. In Chandra Prakash Tiwari and Ors. v. Shakuntala
      Shukla and Ors., [2002] 6 SCC 127, it was held:
                 "32. In conclusion, this Court recorded that the issue of F
             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, presentiy does not G
J._
            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 H
    52            SUPREME COURT REPORTS                   [2007] 10 S.C.R.


A         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
B         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 :
c
               "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
D          interview is not 'palatable' to him, he cannot tum 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
E present case.

       2l. 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          --¥'
                                                                                   I


F order as to costs.
    K.K.T.                                                   Appeal allowed.