Union of India & Others Vs. S. Vinodh Kumar & Others  Insc
959 (18 September 2007)
Sinha & Harjit Singh Bedi
APPEAL NO. 4347 OF 2007 [Arising out of S.L.P. (Civil) No. 23403 of 2005] S.B.
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.
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:
240 Other Backward Classes: 115 Scheduled Castes: 72 Scheduled Tribes : 53
of 480 vacancies, 240 posts were meant for general category candidates. The
cut-off marks were provided for different categories of candidates in the
71 Other Backward Classes: 56 Scheduled Castes : 20 Scheduled Tribes : 20
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.
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
consider the question in regard to lowering of cut-off marks.
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:
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.
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."
Appellants are, thus, before us.
Amarendra Sharan, learned Additional Solicitor General of India appearing on
behalf of the appellants, submitted :
The vacancies reserved for Scheduled Castes and Scheduled Tribes should not
have been directed to be filled up by general candidates.
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.
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
The High Court had no jurisdiction to lower the cut-off marks as it was the
sole prerogative of the employer.
A.K. Ganguly, learned Senior Counsel appearing on behalf of the respondents, on
the other hand, contended :
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
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.
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.
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.
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.
Respondents herein had approached the Tribunal in the year 2000.
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].
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 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.
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.
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].
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].
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].
Pitta Naveen Kumar and Others v. Raja Narasaiah Zangiti and Others (2006) 10
SCC 261], this Court observed:
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"
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 2006 (11) SCALE 5]
Chandra Prakash Tiwari and Others v. Shakuntala Shukla and Others [(2002) 6 SCC
127], it was held:
In conclusion, this Court recorded that the 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.
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."
was further observed:
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."
are, however, not oblivious that there are certain exceptions to the
aforementioned rules but we are not concerned therewith in the present case.
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.