2023 Supreme(SC) 143

SUPREME COURT OF INDIA
Sanjiv Khanna, M.M. Sundresh, JJ.
Sureshkumar Lalitkumar Patel & Ors. - Appellants
Versus
State of Gujarat & Ors. - Respondents
Civil Appeal Nos. 1355 of 2023 [Arising out of SLP (Civil) Nos. 4302-4303 of 2021] With Civil Appeal Nos. 1356 of 2023 [Arising out of SLP (Civil) Nos. 5026-5027 of 2021]
Decided On : 20-02-2023

IMPORTANT POINTS
(1) Advertisement, made pursuant to a notification, binds parties – It has got all trappings of a statutory prescription unless it becomes contrary to either a rule or an Act – Change can only be brought forth by way of amendment and nothing else.
(2) Appointment – Reduction of qualifying marks – A candidate may not have a vested right to the post, however, it cannot be confused with a right to be considered in accordance with law – A law which enables a candidate to get a post cannot be changed to facilitate another group of persons.

Headnote:

(A) Service Law – Appointment – Reduction of qualifying marks – Cut-off marks have been fixed with a distinct clarification that it would not be tinkered with by facilitating anyone to be considered, if candidate acquired lesser marks – There is difference between qualification for making application and eligibility to be determined in process of selection – Selection Committee has reduced marks to facilitate horizontal reservation by treating it as a vertical reservation – Rules do not provide for such reservation to be treated as a vertical one – Likewise, rules do not fix any cut-off marks – Advertisement, made pursuant to a notification, binds parties – It has got all trappings of a statutory prescription unless it becomes contrary to either a rule or an Act – Change can only be brought forth by way of amendment and nothing else – Such amendment even if it is permissible can be tested on touchstone of Article 14 of Constitution of India – It cannot be introduced to give entry to a special reservation, in a case where a right becomes accrued to a candidate, under a policy decision reduced in form of an advertisement, to be considered for a post in absence of any eligible candidate from horizontal category. (Paras 22 and 23)

(B) Service Law – Appointment – Reduction of qualifying marks – A candidate may not have a vested right to the post, however, it cannot be confused with a right to be considered in accordance with law – A law which enables a candidate to get a post cannot be changed to facilitate another group of persons, since candidate acquires a vested right to be considered in accordance with law – In case on hand, appellants are entitled to get respective post as per advertisement issued – Advertisement has not been amended – It was sought to be modified on advice of Government, though an earlier decision was taken on similar line but wisely withdrawn – Fixing cut-off marks for a particular category has got a rationale behind it – Reducing it only for the purpose of providing employment to a particular category, when others have already acquired some right would be affront to Article 14 of Constitution of India – Earlier cut-off marks were fixed on a conscious consideration of marks required to be eligible for the post which could not be reduced unless there is a sound reason that reduced marks also would be sufficient to be suitable for that post – Order of Division Bench of High Court of Gujarat set aside. (Paras 24, 25, 30, 31 and 32)

Facts of the case:

Decision of the Division Bench of the High Court of Gujarat giving its imprimatur to the decision of the Departmental Selection Committee in reducing the qualifying marks for the post of Supervisor Instructor Class III, after the publication of result to facilitate the inclusion of candidates constituting horizontal reservation, is under challenge in these civil appeals.

Findings of Court:

Taking note of peculiar facts of the case, particularly in the light of our finding that situation has been brought forth by Respondent Nos. 1 and 2 and vacancies that still remain, 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, private respondents are certainly new entrants, and hence cannot seek precedence.

Result : Appeals allowed.