SURESHKUMAR LALITKUMAR PATEL & ORS. versus STATE OF GUJARAT & ORS.

Citation: [2023] 2 S.C.R. 543 · Decided: 20-02-2023 · Supreme Court of India · Bench: SANJIV KHANNA · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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   [2023] 2 S.C.R. 543
543
SURESHKUMAR LALITKUMAR PATEL & ORS.
v.
STATE OF GUJARAT & ORS.
(Civil Appeal Nos. 1355-1356 of 2023)
FEBRUARY 20, 2023
[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
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
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
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
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
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
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SUPREME COURT REPORTS
[2023] 2 S.C.R.
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
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
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-
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
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
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.
[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 t

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