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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.