SURESHKUMAR LALITKUMAR PATEL & ORS.versusSTATE OF GUJARAT & ORS.

                          [2023] 2 S.C.R. 543                             543


        SURESHKUMAR LALITKUMAR PATEL & ORS.                               A
                                  v.
                   STATE OF GUJARAT & ORS.
                (Civil Appeal Nos. 1355-1356 of 2023)
                        FEBRUARY 20, 2023                                 B
       [SANJIV KHANNA AND M. M. SUNDRESH, JJ.]
      Service Law – Modification of selection process – Cut-off
marks reduced after results were published to facilitate the inclusion
of candidates constituting horizontal reservation – Impermissibility
                                                                          C
of – Held: An advertisement made pursuant to a notification binds
the parties – It has got all the trappings of a statutory prescription,
unless contrary to either a rule or an Act – A change, if any, can
only be brought by an amendment and nothing else – Such
amendment even if permissible, can be tested on the touchstone of
Art.14 – It cannot be introduced to give an entry to a special            D
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 – In the present case, the Selection
Committee reduced the marks to facilitate the horizontal reservation
                                                                          E
by treating it as a vertical reservation – Rules do not provide for
such reservation to be treated as a vertical one – Admittedly, the
appellants are entitled to get the respective post as per the
advertisement issued – Further, 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            F
the others have already acquired some right would be an affront to
Art.14 – Furthermore, relevant clauses in the advertisement do not
confer unbridled power either on the State Govt. or the Selection
Committee to modify the selection process and reduce the cut-off
marks after the results are published – Order of Division Bench set
                                                                          G
aside – However, on facts, private respondents belonging to the
special category comprising of women, ex-servicemen and
physically challenged be considered to be accommodated in their
respective reserved category, provided they do not exceed the
percentage of reservation permissible, without upsetting the
                                                                          H
                                 543
544            SUPREME COURT REPORTS                        [2023] 2 S.C.R.


A     appointment of the appellants and others similarly placed and
      subject to their eligibility – Constitution of India – Articles 14,142.
            Allowing the appeal, the Court
             Held: 1.1 This Court is dealing with the recruitment process
      by which the posts pertaining to each of the separate categories
B     is to be filled up by only one mode, i.e., written examination. The
      cut-off marks have been fixed with a distinct clarification that it
      would not be tinkered with by facilitating anyone to be considered,
      if the candidate acquired lesser marks. There is a difference
      between qualification for making an application, and the eligibility
C     to be determined in the process of selection. The present case is
      concerned with an eligibility after the examination is conducted.
      Selection Committee reduced the marks to facilitate the
      horizontal reservation by treating it as a vertical reservation.
      Admittedly, the rules do not provide for such reservation to be
      treated as a vertical one. Likewise, the rules do not fix any cut-
D     off marks. An advertisement, made pursuant to a notification,
      binds the parties. It has got all the trappings of a statutory
      prescription, unless it becomes contrary to either a rule or an
      Act. A change, if any, can only be brought forth by way of an
      amendment and nothing else. Such an amendment even if it is
E     permissible can be tested on the touchstone of Article 14 of the
      Constitution of India. It cannot 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. It is true that a
F     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 the candidate
      acquires a vested right to be considered in accordance with law.
G     [Paras 22-24][552-D-H; 553-A-B]
            1.2 Admittedly, in the case on hand, the appellants are
      entitled to get the respective post as per the advertisement
      issued. The said advertisement has not been amended. It was
      sought to be modified on the advice of the Government. Fixing
H     cut-off marks for a particular category has got a rationale behind
    SURESHKUMAR LALITKUMAR PATEL v. STATE OF                            545
                   GUJARAT

it. Reducing it only for the purpose of providing employment to a       A
particular category, when the others have already acquired some
right would be an affront to Article 14 of the Constitution of India.
The relevant clauses contained in the advertisement do not confer
unbridled power either on the State Government or on the
Selection Committee to modify the selection process, and thereby,
                                                                        B
reduce the cutoff marks after the results are published. [Paras
25, 26][554-C-E]
      1.3 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. Earlier cut-off marks were fixed       C
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. Having held that the order of the Division
Bench of the High Court of Gujarat cannot be sustained in the           D
eye of law, this Court is inclined to balance the equities and do
justice by exercising power under Article 142 of the Constitution
of India. 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        E
the order of the Division Bench to their benefit which was
occasioned by the policy decision of the State Government and
the Selection Committee. In such view of the matter, taking note
of the peculiar facts of the case, particularly in the light of the
finding that the situation has been brought forth by Respondent         F
Nos. 1 and 2 and the vacancies that still remain, direction issued
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. [Paras 30-32][558-D-F, H       G
559-A-B]
      N.T. Devin Katti v. Karnataka Public Service
      Commission (1990) 3 SCC 157; Tamil Nadu Computer
      Science B.Ed. Graduate Teachers Welfare Society (1)
      v. Higher Secondary School Computer Teachers                      H
546            SUPREME COURT REPORTS                      [2023] 2 S.C.R.


A           Association & Ors. (2009) 14 SCC 517 : [2009] 10
            SCR 522 – relied on.
            Tej Prakash Pathak & Ors. v. Rajasthan High Court &
            Ors. (2013) 4 SCC 540; Veerendra Kumar Gautam &
            Ors. v. Karuna Nidhan Upadhyay & Ors. (2016) 14
B           SCC 18 : [2016] 7 SCR 223; Anupal Singh & Ors. v.
            State of Uttar Pradesh & Ors. (2020) 2 SCC 173 :
            [2019] 12 SCR 1071; Ashok Kumar Thakur v. Union
            of India & Ors. (2008) 6 SCC 1 : [2008] 4 SCR 1; K.
            Manjusree v. State of Andhra Pradesh & Anr. (2008) 3
            SCC 512 : [2008] 2 SCR 1025; Ramjit Singh Kardam
C           v. Sanjeev Kuma (2020) 20 SCC 209 – referred to.
            Prajapati Ishwarbhai Joitaram v. State of Gujarat,
            Letters Patent Appeal No.1350 of 2012 dated
            20.03.2013 – referred to.

D                           Case Law Reference
      [2016] 7 SCR 223               referred to             Para 19
      [2019] 12 SCR 1071             referred to             Para 19
      [2008] 4 SCR 1                 referred to             Para 19
E     [2009] 10 SCR 522              relied on               Para 27
      [2008] 2 SCR 1025              referred to             Para 29
            CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.1355-
      1356 of 2023.
F           From the Judgment and Order dated 18.01.2021 of the High Court
      of Gujarat at Ahmedabad in LPA Nos.1496 and 1501 of 2019.
            With
            Civil Appeal Nos.1357-1358 of 2023.
           Paramjit S. Patwalia, Sr. Adv., Sameer Parekh, Ms. Tanya
G
      Chaudhary, Ms. Pratyusha Priyadarshini, Hemang Shah, Prateek
      Khandelwal, M/s. Parekh & Co., Advs. for the Appellants.
            Vikas Singh, Sr. Adv., Purvish Jitendra Malkan, Rajivkumar,
      Krishna M Singh, Meenesh Dubey, Ms. Archana Pathak Dave, Ms.
      Deepanwita Priyanka, Advs. for the Respondents.
H
     SURESHKUMAR LALITKUMAR PATEL v. STATE OF                                       547
                    GUJARAT

       The Judgment of the Court was delivered by                                   A
       M. M. SUNDRESH, J.
       1. Leave granted. Applications for impleadment are allowed.
       2. The decision of the Division Bench of the High Court of Gujarat
giving its imprimatur to the decision of the Departmental Selection                 B
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.
       3. Heard Mr. P.S. Patwalia, learned senior counsel appearing for             C
the appellants, Ms. Archana Dave Pathak, learned counsel for
Respondent Nos. 1 and 2 and Mr. Vikas Singh, learned senior counsel
for the private respondents.
       FACTS IN BRIEF:
       4. Two advertisements were issued on 05.09.2015 to fill up the               D
posts for Supervisor Instructor (Engineering Trade and Non-Engineering
Trade) and Supervisor Instructor (Employability skill). The aforesaid two
categories of posts carrying similar eligibility criteria in the nature of
qualification with a difference in the respective degree required, including
the sub-categories in the Engineering Group, such as Automobile,
                                                                                    E
Chemical, Electrical, Mechanical, Marine etc. with a total of 13.
       5. Prior to the issuance of the advertisement, the Departmental
Selection Committee (for short ‘the Selection Committee’) on 03.09.2015
resolved its procedure for the recruitment process. Accordingly, out of
300 marks, cut-off marks were fixed at 60% equivalent to 180 marks
                                                                                    F
for General Category; 57% equivalent to 171 marks for Socially and
Educational Backward Class and 55% equivalent to 165 marks for
Schedule Caste and Schedule Tribe. It was amplified that any candidate
scoring less than the cut-off marks would not be entitled for selection
and appointment.
      6. Clause (1) of the Advertisement in clear terms speaks about                G
the horizontal reservation meant for females, ex-servicemen and
physically handicapped. We shall reproduce the aforesaid clause:
       “(1)…
       * The posts for the females are reserved as per 33% which shall              H
548             SUPREME COURT REPORTS                              [2023] 2 S.C.R.


A            be set off against the respective categories. If for the reserved
             post of the female candidate, if no suitable candidate is available
             then, the said post shall be filled by the male candidate of the
             same category.
             * The posts are reserved by 10% of the total posts for the ex-
B            serviceman. The same shall be set off against the respective
             category. if no suitable ex-serviceman candidates are available
             then, the said post shall be filled by the other suitable candidate of
             the respective category.
             * The appointment of the physically handicapped having physical
C            defect from 40% to 4%, shall be kept as 3% in the aforesaid
             posts as per the rules of the Government. The selection of the
             most suitable handicap candidate shall be selected by keeping in
             to the notice that, the disability is not coming in the way of
             educational work in I.T.I. If the suitable candidate having physical
             disability is not available then, the said posts shall be filled with the
D            other suitable candidates of the respective category.”
            7. Thus, for the above said three special reservations, it is made
      abundantly clear that in the event of inadequate candidates in each sub-
      category, the unfilled seats would be filled by the other eligible candidates.

E            8. The decision made by the Selection Committee was once again
      reiterated in the advertisement under Clause (5) which deals with the
      selection process.
             “(5)…That means, out of total 300 marks, cut-off marks 60%.
             i.e. 180 marks shall be for General Category. The candidate getting
F            fewer marks than the same shall not be eligible. For the candidate
             of the Socially and educationally backward class·these marks shall
             be 57% (171 marks) whereas, the for the candidate of Schedule
             Caste and the Schedule Tribe these marks shall be 55% (165
             marks). The candidate getting less marks than the same, shall not
             be eligible for getting the appointment…”
G
            9. Sub-clause (15) of Clause (7) (General Instructions) of the
      advertisement empowers the Selection Committee to cancel the entire
      process in the event of any necessity that may arise or, alternatively, to
      make an appropriate amendment. It further facilitates any addition or
      reduction in the number of posts originally announced. In the aforesaid
H     circumstances, a candidate will not be entitled for any refund.
    SURESHKUMAR LALITKUMAR PATEL v. STATE OF                                    549
           GUJARAT [M. M. SUNDRESH, J.]

      “(15) In case any necessity arises for cancelling this advertisement      A
      for any reason, or to make amendment in the same or to make
      addition or decrease in the numbers of posts, then, the Department
      shall have complete right/authority to do so, and, for this it will not
      bound to give reasons. Further, under such circumstances, the
      application made and the examination fee shall not be refundable.”
                                                                                B
       10. Sub-clause (19) of Clause (7) concerns itself with the
recruitment process which confers a power on the Selection Committee
as provided under sub-clause (15) in connection with the recruitment
process.
      “(19)…In connection with the recruitment process of this post, in         C
      case any necessity arises for cancelling this advertisement or
      instruction for any reason, or to make amendment in the same,
      then, the complete right/authority shall be with the Selection
      committee to do so, and for this the Selection Committee shall not
      be bound to give reasons for the same…”
                                                                                D
       11. Enclosure (1) of the advertisement 05.09.2015 once again
reiterates Clause (1) by making the position abundantly clear on the
posts being filled up with other eligible candidates, when the reserved
candidate under the horizontal reservation is not available.
       12. The aforesaid advertisement does not give any room for any           E
interpretation otherwise. It thus speaks about the manner by which a
post has to be filled up, inclusive of a special reservation in the form of a
horizontal one. The power of either cancellation or amendment has to
be exercised by way of an amendment to the advertisement, except in a
case of reduction of seats. Further, such a power has to be exercised
either at the initial stage, which only means before writing the examination    F
or during the process, and thus giving ample indication that publishing
the result would mean the completion and, therefore, the declaration of
selected candidates would only be consequential.
      13. The Selection Committee held a meeting on 05.10.2016
proposing to further relax the cut-off marks fixed only for the candidates      G
belonging to the horizontal reserved categories. Accordingly, the cut-off
marks for the General Category have been kept intact. Thereafter, a
subsequent meeting was held on 17.12.2016 by which the earlier decision
proposed to be implemented on 05.10.2016 was cancelled. The meeting
was attended by all the members of the Selection Committee.
                                                                                H
550             SUPREME COURT REPORTS                             [2023] 2 S.C.R.


A            14. The State Government took a decision to give effect to the
      special reservation despite it being a horizontal one. The aforesaid decision
      was made apparently for the reason that the percentage of candidates
      expected to fill the post meant for the aforesaid reservation, were found
      inadequate. The decision of the State Government was taken note of
      and incorporated in the Selection Committee meeting held on 26.12.2016.
B
            “…In the meeting of the selection committee held on 05.10.2016,
            it was decided to reduce the aforesaid cut of marks up to 10%
            and later on also, when the posts for women and specially abled
            candidates were remained vacant thus in the meeting held on
            17.10.2016 while cancelling the provision of giving aforesaid
C           relaxation, it was decided to make recruitment thereon for 1415
            posts of supervisor instructors and publish final selection list thereof.
            In this regard, as per guidance availed from the Gujarat
            Government, it was decided to fix the cut of marks (minimum
            eligible standard) as 40% for the candidates of general category
D           and 35% for the candidates of Scheduled Caste, Scheduled Tribe,
            Socially and Educationally Backward Class and other reserved
            posts for filling total 1415 posts of Supervisor Instructor.”
              15. The aforesaid decision is made by treating the special
      reservation which was otherwise horizontal, as a vertical reservation.
E     As a consequence, the clause contained in the advertisement, as decided
      by the resolution of the Selection Committee dated 03.09.2015, providing
      for the consequence of non-filling of a post meant for a special category
      to be filled up with the other eligible candidates, was overturned without
      even bringing an amendment, that too unilaterally, after the declaration
F     of the result.
            16. Aggrieved by the aforesaid action, the appellants who would
      otherwise secure selection to the post, approached the High Court. Finding
      due merit, the learned Single Judge allowed the writ petitions filed.
             17. The State and the official Respondents did not choose to
G     challenge the decision made which was actually done based upon an
      earlier decision made by the Division Bench, but rather decided to give
      effect to it. However, certain individuals who were affected by the order
      of the learned Single Judge, having secured the benefit of the Selection
      Committee in a decision dated 26.12.2016, and accordingly got selected,
      filed the appeals before the Division Bench. The appeals were allowed
H
    SURESHKUMAR LALITKUMAR PATEL v. STATE OF                                 551
           GUJARAT [M. M. SUNDRESH, J.]

on the ground that the original petitioners do not have a vested right,      A
adequate power is available to the Selection Committee, and there is no
change in the rule after the game has started.
       18. In the present appeals, the private respondents alone are the
contesting ones as even before the Division Bench, many others did not
choose to contest the decision of the learned Single Judge for the reasons   B
best known to them. The order of the learned Single Judge has in fact
been given effect to by the official respondents, and therefore, they are
actually in service for the past few years. With the aforesaid backdrop,
we shall consider the respective contentions.
      SUBMISSIONS:                                                           C
       19. Mr. P.S. Patwalia, learned senior counsel appearing for the
appellants submitted that the Selection Committee did not have a power
to reduce the cut-off marks. The Respondent Nos. 1 and 2 cannot be
permitted to change the rules of the game after it has begun. The exercise
of power, if any, is arbitrary. In any case, the State of Gujarat cannot     D
usurp the power of the Selection Committee, and in turn the same ought
not to have been followed by it. The Division Bench has committed an
error in wrongly applying the law to the facts of the case. Learned
senior counsel for the appellants has pressed into service the following
decisions, while seeking an order of reversal.
                                                                             E
      •      Tej Prakash Pathak & Ors. v. Rajasthan High Court &
             Ors. (2013) 4 SCC 540;
      •      Veerendra Kumar Gautam & Ors. v. Karuna Nidhan
             Upadhyay & Ors., (2016) 14 SCC 18;
      •      Anupal Singh & Ors. v. State of Uttar Pradesh & Ors.,           F
             (2020) 2 SCC 173;
      •      Ashok Kumar Thakur v. Union of India & Ors. (2008) 6
             SCC 1.
       20. Ms. Archana Dave Pathak, learned counsel appearing for
Respondent Nos. 1 and 2 and Mr. Vikas Singh, learned senior counsel          G
appearing for the private respondents, submitted that what was done
before making the change is a mere publication of the marks obtained.
The selection was done subsequently. So long as the power is available
with the Selection Committee, and the objective being reasonable, there
is no ground for any interference. The appellants do not have a vested       H
552             SUPREME COURT REPORTS                             [2023] 2 S.C.R.


A     right for appointment to a post. The Division Bench has correctly
      considered the legal issues while upholding the decision of Respondent
      Nos. 1 and 2, as being a policy decision. One has to see the objective
      behind the special reservation. Therefore, there is no need for any
      interference in these appeals.
B           21. On a query raised by us, Ms. Archana Dave Pathak, learned
      counsel appearing for Respondent Nos. 1 and 2 submitted that there are
      adequate posts available and if a direction is issued, the same would be
      given effect to by considering either the appellants or the private
      respondents. It is also acknowledged that filling up of the vacancies are
      to be made with respect to each of the sub-categories along with the
C     reservation either vertical or horizontal. The learned senior counsel
      appearing for both sides have submitted that the issue of inter-se seniority
      between the appellants and the private respondents would also be
      considered to avoid any confusion at a later point of time.
             DISCUSSION:
D
             22. We are dealing with the recruitment process by which the
      posts pertaining to each of the separate categories is to be filled up by
      only one mode, i.e., written examination. The cut-off marks have been
      fixed with a distinct clarification that it would not be tinkered with by
      facilitating anyone to be considered, if the candidate acquired lesser
E     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.
              23. Another unique feature of the present case is that the Selection
F     Committee has reduced the marks to facilitate the horizontal reservation
      by treating it as a vertical reservation. Admittedly, the rules do not provide
      for such reservation to be treated as a vertical one. Likewise, the rules
      do not fix any cut-off marks. An advertisement, made pursuant to a
      notification, binds the parties. It has got all the trappings of a statutory
G     prescription, unless it becomes contrary to either a rule or an Act. A
      change, if any, can only be brought forth by way of an amendment and
      nothing else. Such an amendment even if it is permissible can be tested
      on the touchstone of Article 14 of the Constitution of India. It cannot 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
H     in the form of an advertisement, to be considered for a post in the absence
    SURESHKUMAR LALITKUMAR PATEL v. STATE OF                                  553
           GUJARAT [M. M. SUNDRESH, J.]

of any eligible candidate from the horizontal category.                       A
       24. It is true that 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 the
candidate acquires a vested right to be considered in accordance with         B
law, as held by this Court in N.T. Devin Katti v. Karnataka Public
Service Commission, (1990) 3 SCC 157,
      “11. There is yet another aspect of the question. Where
      advertisement is issued inviting applications for direct recruitment
      to a category of posts, and the advertisement expressly states          C
      that selection shall be made in accordance with the existing rules
      or government orders, and if it further indicates the extent of
      reservations in favour of various categories, the selection of
      candidates in such a case must be made in accordance with the
      then existing rules and government orders. Candidates who apply,
      and undergo written or viva voce test acquire vested right for          D
      being considered for selection in accordance with the terms and
      conditions contained in the advertisement, unless the advertisement
      itself indicates a contrary intention. Generally, a candidate has
      right to be considered in accordance with the terms and conditions
      set out in the advertisement as his right crystallises on the date of   E
      publication of advertisement, however he has no absolute right in
      the matter. If the recruitment Rules are amended retrospectively
      during the pendency of selection, in that event selection must be
      held in accordance with the amended Rules. Whether the Rules
      have retrospective effect or not, primarily depends upon the
      language of the Rules and its construction to ascertain the             F
      legislative intent. The legislative intent is ascertained either by
      express provision or by necessary implication; if the amended
      Rules are not retrospective in nature the selection must be
      regulated in accordance with the rules and orders which were in
      force on the date of advertisement. Determination of this question      G
      largely depends on the facts of each case having regard to the
      terms and conditions set out in the advertisement and the relevant
      rules and orders. Lest there be any confusion, we would like
      to make it clear that a candidate on making application for
      a post pursuant to an advertisement does not acquire any
                                                                              H
554             SUPREME COURT REPORTS                           [2023] 2 S.C.R.


A           vested right of selection, but if he is eligible and is otherwise
            qualified in accordance with the relevant rules and the terms
            contained in the advertisement, he does acquire a vested
            right of being considered for selection is accordance with
            the rules as they existed on the date of advertisement. He
            cannot be deprived of that limited right on the amendment
B
            of rules during the pendency of selection unless the
            amended rules are retrospective in nature.”
                                                            (emphasis supplied)
             25. Admittedly, in the case on hand, the appellants are entitled to
C     get the respective post as per the advertisement issued. The said
      advertisement has not been amended. It was sought to be modified on
      the advice of the Government, though an earlier decision was taken on
      the 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 the others have
D     already acquired some right would be an affront to Article 14 of the
      Constitution of India.
             26. We have already discussed the scope and ambit of the relevant
      clauses contained in the advertisement, particularly sub-clauses (15) and
      (19). In our considered view, they do not confer unbridled power either
E     on the State Government or on the Selection Committee to modify the
      selection process, and thereby, reduce the cut- off marks after the results
      are published. The submission made that the selection was made only
      thereafter, will not hold water. What was done by way of publishing the
      selection list after the change is nothing but a ministerial act.
F           27. We wish to place reliance on the judgment of this Court in
      Tamil Nadu Computer Science B.Ed. Graduate Teachers Welfare
      Society (1) v. Higher Secondary School Computer Teachers
      Association & Ors., (2009) 14 SCC 517,
            20. It is thus established, that the State Government reduced the
G           minimum qualifying marks for the post of computer instructors to
            35% which is contrary to an earlier decision taken in a meeting
            held on 10-10-2006 that the minimum qualifying marks for filling
            up the posts of computer instructors would be 50% i.e. 75 marks
            out of total 150 marks. It is thus established that the Government
            changed the rules of recruitment and terms and conditions of
H
SURESHKUMAR LALITKUMAR PATEL v. STATE OF                                555
       GUJARAT [M. M. SUNDRESH, J.]

 appointment in the midway after the selection process was initiated.   A
 The said decision was taken on a Sunday i.e. on 12-10-2008, after
 the candidates had taken their exams.
         xxx                     xxx                    xxx
 29. The counsel appearing for the respondents, however, submitted
 that since these contract employees have been working for a very       B
 long time in the government schools, therefore, the Government
 had taken the decision to reduce the minimum qualifying marks to
 see that at least some of them who could qualify in the special
 recruitment test could be recruited and absorbed so as not to
 deprive them from getting absorbed in the government                   C
 employment through a regular process.
 30. It was also submitted that out of 1714 candidates, who have
 written the special recruitment test only 894 candidates could
 receive more than 50% marks whereas 906 candidates could
 obtain less than 50%, which was minimum qualifying marks               D
 prescribed by the Government in its earlier policy decision but
 obtained more than 35% marks. Consequently, it was submitted
 that the Government thought it fit that the said minimum qualifying
 marks should be reduced to 35% so as to absorb more people,
 who are still working in the government schools as computer
 instructors.                                                           E

 31. We have considered the aforesaid rival submissions of the
 counsel appearing for the parties in the light of the records placed
 before us. It is clearly established from the records that in order
 to give one-time opportunity, a special recruitment test was ordered
 to be held for selection and recruitment as also absorption of         F
 existing computer instructors. The said decision was taken on
 sympathetic consideration and with the intention of doing justice
 to those existing computer instructors who were working in
 government schools for a very long time. Such a recruitment drive
 and test was held by laying down rules of recruitment thereby          G
 providing a level playing field for all concerned.
 32. Prior to holding of the said test guidelines were formulated
 through a policy decision laying down the criteria that the minimum
 qualifying marks in the said test would be at least 50%. The said
 guidelines of recruitment as laid down through a policy decision
                                                                        H
556            SUPREME COURT REPORTS                          [2023] 2 S.C.R.


A            were sacrosanct and were required to be followed for all practical
             purposes even if we accept that the Government could have filled
             up the said posts of computer instructors by holding a special
             recruitment test of the aforesaid nature as one-time exception.
             33. We, however, cannot hold that the subsequent decision of the
B            Government thereby changing qualifying norms by reducing the
             minimum qualifying marks from 50% to 35% after the holding of
             the examination and at the time when the result of the examination
             was to be announced and thereby changing the said criteria at the
             verge of and towards the end of the game as justified, for we find
             the same as arbitrary and unjustified. This Court in Hemani
C            Malhotra v. High Court of Delhi [(2008) 7 SCC 11 : (2008) 2
             SCC (L&S) 203] has held that in recruitment process changing
             rules of the game during selection process or when it is over are
             not permissible.”
             28. The aforesaid judgment would certainly govern the issue,
D     therefore, the decision of the Division Bench in holding the aforesaid
      decision as having no application to the facts of the present case cannot
      be sustained. In fact, the case we are dealing with, stands on a better
      footing than the facts governing the aforesaid case, wherein the selection
      process was not completed when a decision to reduce the marks was
      made. The Division Bench is also not correct in not following the earlier
E     decisions of the Co-ordinate Bench in Prajapati Ishwarbhai Joitaram
      v. State of Gujarat, Letters Patent Appeal No.1350 of 2012 dated
      20.03.2013, which dealt with the issue of reduction in cut-off marks to
      accommodate horizontal reservations.
             29. Much argument has been made based upon the decision of
F     this Court in K. Manjusree v. State of Andhra Pradesh & Anr., (2008)
      3 SCC 512 and the reference pending before the Constitution Bench in
      Tej Prakash Pathak v. Rajasthan High Court., (2013) 4 SCC 540.
      On the facts of the case, we do not think that the said issue has any
      bearing, as held by this Court, while dealing with a case of arbitrary
      change in criteria, in Ramjit Singh Kardam v. Sanjeev Kumar, (2020)
G
      20 SCC 209,
             “Was the Chairman competent to take policy decisions like
             “selection criteria” or “mode of selection”?
             51. As per the notification extracted above it is the Commission,
             which “shall devise the mode of selection and fix the criteria for
H
SURESHKUMAR LALITKUMAR PATEL v. STATE OF                                 557
       GUJARAT [M. M. SUNDRESH, J.]

 selection”. The said power has to be exercised in a reasonable          A
 and fair manner to advance the purpose and object of selection.
 Even if it is assumed for the sake of the argument that the
 Commission can change the criteria of selection from time to time,
 the said power has to be exercised not in an arbitrary manner.
 52. We may in this context refer to the three-Judge Bench               B
 judgment of this Court in T.N. Computer Science B.Ed. Govt.
 Welfare Society (1) v. Higher Secondary School Computer
 Teachers Assn. [(2009) 14 SCC 517 : (2010) 1 SCC (L&S) 367]
 In the above case computer instructors were appointed on contract
 basis to various schools. The Government decided to hold a special
 test by the Teacher Recruitment Board for selection of computer         C
 instructors. On 10-10-2008 the State Government took decision
 that minimum qualification marks would be 50%. Special
 recruitment test was announced as 12-10-2008. On the night of
 12-10-2008 a list of candidates for appointment to the post of
 computer instructors based on the special recruitment test was          D
 put on the internet. While publishing the said marks of the
 candidates, it was made clear that all candidates who have secured
 35% marks in the test would be called for certificate verification.
 The State Government reduced the minimum qualifying marks to
 35%. This Court did not approve the reduction of qualifying marks
 from 50% to 35%. The following was laid down in para 33 : (SCC          E
 p. 523)
    “33. We, however, cannot hold that the subsequent decision of
    the Government thereby changing qualifying norms by reducing
    the minimum qualifying marks from 50% to 35% after the
    holding of the examination and at the time when the result of        F
    the examination was to be announced and thereby changing
    the said criteria at the verge of and towards the end of the
    game as justified, for we find the same as arbitrary and
    unjustified. This Court in Hemani Malhotra v. High Court of
    Delhi [(2008) 7 SCC 11 : (2008) 2 SCC (L&S) 203] , has held          G
    that in recruitment process changing rules of the game during
    selection process or when it is over are not permissible.”
 53. The learned counsel for the appellant has submitted that
 judgments of this Court laying down the criteria for selection cannot
 be changed during the course of selection has been referred to a
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558             SUPREME COURT REPORTS                            [2023] 2 S.C.R.


A            larger Bench by a judgment of this Court in Tej Prakash Pathak
             v. High Court of Rajasthan [(2013) 4 SCC 540 : (2013) 2 SCC
             (L&S) 353], hence the judgment of this Court laying down the
             criteria cannot be changed during the course of the selection is
             yet to be tested. For the purposes of the present case we proceed
             on the assumption that even if the criteria can be changed by
B
             selecting body from time to time, the said change cannot be
             affected arbitrarily. The present is a case where change in criteria
             has been affected and altered arbitrarily with the object of
             downgrading and not upgrading the standards of selection. The
             High Court did not commit any error in not upholding the change
C            of criteria effected after start of selection process with which
             finding we fully concur.”
            30. 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
D     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.
             31. Having held that the order of the Division Bench of the High
E     Court of Gujarat cannot be sustained in the eye of law, we are inclined
      to balance the equities and do justice by exercising our power under
      Article 142 of the Constitution of India. We agree with the submission of
      Mr. Vikas Singh, learned senior counsel, that 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
F     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, we find the said submission merits moderation
      of the impact of our decision, at least insofar as the private respondents
G     before us are concerned, as the others similarly placed being fence sitters
      cannot be extended the same benefit. Probably, they would have either
      moved on or got some other jobs.
             32. In such view of the matter, taking note of the peculiar facts of
      the case, particularly in the light of our finding that the situation has been
H     brought forth by Respondent Nos. 1 and 2 and the vacancies that still
     SURESHKUMAR LALITKUMAR PATEL v. STATE OF                                    559
            GUJARAT [M. M. SUNDRESH, J.]

remain, we are inclined to issue a direction to them to consider                 A
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
                                                                                 B
Division Bench stands set aside, and therefore, the private respondents
are certainly new entrants, and hence cannot seek precedence. The
appeals are allowed. No order as to costs.
       33. All pending applications are disposed of.
                                                                                 C
Divya Pandey                                                  Appeals allowed.
(Assisted by : Arjun Narang and Roopanshi Virang, LCRAs)




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