Two advertisements were issued on 05.09.2015 to fill up the posts for Supervisor Instructor (Engineering Trade and Non-Engineering Trade) and Supervisor Instructor (Employability skill). We shall reproduce the aforesaid clause: “(1)…
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The posts for the females are reserved as per 33% which shall be set off against the respective categories.
If the suitable candidate having physical disability is not available then, the said posts shall be filled with the other suitable candidates of the respective category.” 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. 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. In connection with the recruitment process of this post, in 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…” 11. The Selection Committee held a meeting on 05.10.2016 proposing to further relax the cut-off marks fixed only for the candidates belonging to the horizontal reserved categories. “… 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 relaxation, it 6 was decided to make recruitment thereon for 1415 posts of supervisor instructors and publish final selection list thereof.
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 of the result.
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. Patwalia, learned senior counsel appearing for the appellants submitted that the Selection Committee did not have a power to reduce the cut-off marks. Learned senior counsel for the appellants has pressed into service the following decisions, while seeking an order of reversal. Archana Dave Pathak, learned counsel appearing for Respondent Nos.
Vikas Singh, learned senior counsel appearing for the private respondents, submitted that what was done before making the change is a mere publication of the marks obtained.
The learned senior counsel appearing for both sides have submitted that the issue of inter-se seniority between the appellants 9 and the private respondents would also be considered to avoid any confusion at a later point of time. We are not concerned with the qualification for making an application in the present case, but rather an eligibility after the examination is conducted. 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, as held by this Court in N.T. 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. 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 vested right of selection, but if he is eligible and is otherwise qualified in accordance with the relevant rules and the terms 11 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.
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In our considered view, they do not confer unbridled power either 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.
It is thus established, that the State Government reduced the 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. 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. 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 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. 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. 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. 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 put on the internet.
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.”
Case Title: SURESHKUMAR LALITKUMAR PATEL Vs. THE STATE OF GUJARAT (2023 INSC 145)
Case Number: C.A. No.-001355-001356 / 2023
