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Gujarat High Court · body

2019 DIGILAW 593 (GUJ)

Patel Sureshkumar Lalitkumar v. State of Gujarat

2019-06-14

A.S.SUPEHIA

body2019
ORDER : A.S. Supehia, J. 1. In the present writ petition, the petitioners have challenged the decision taken by the Selection Committee of respondent No. 2, after declaration of the result of written examination and document verification stage by which, the cutoff marks for general category came to be reduced to 40%, whereas for all reserved categories (including female) the cut-off marks was fixed at 35%. 2. On 27.12.2016, the respondent No. 2 declared the select list as well as waiting list by complying with the decision taken by the selection committee. In view of implementation of such decision, the petitioners, who have scored higher marks than the initially prescribed cutoff marks (i.e. 60% = 180 marks) do not find their names in the select list and waiting list, whereas the candidates (especially female candidates) having lesser marks than the petitioners as well as lesser than the initial prescribed cut-off marks, are placed in the select list and waiting list. 3. The brief facts of the case are as under: 3.1. The petitioners are candidates, who had applied in the recruitment process undertaken for appointment of Supervisor Instructor, Class-III in various Industrial Training Institutes across the State. The said posts are to be filled in through the direct recruitment. 3.2. The respondent No. 1 has framed the rules regulating the recruitment of the post of Supervisor Instructor (Engineering Trade, Non-Engineering Trade), Class-III in the sub-ordinate service of respondent No. 2, which are known as Supervisor Instructor (Engineering Trade, Non-Engineering Trade), Class-III, Recruitment Rules, 2015. 3.3. The respondent No. 2 has issued an advertisement No. DET/201516/1 to DET/201516/15 for the purpose of filling up 1226 vacant posts of Supervisor Instructor (Engineering Trade, Non-Engineering Trade), Class-in. The salient features of the advertisement are as under: (A) cut-off marks: Two papers of 150 marks each(total 300 marks). Out of 300 marks, the cut-off marks for General Category would be 60%, which is equivalent to 180 marks and any one scoring less than 180 marks would not be considered as pass. Cut-off marks for Socially and Educationally Backward Class is 57% (171 marks, whereas, cut-off marks for Scheduled Caste and Scheduled Tribe would be 55% (165 marks). Anyone scoring less than that would not be entitled for appointment. (B) Reservation: Reservation of 33% for female candidates against concerned category. In the event of non-availability of female candidates, such vacant post shall be filled up. Anyone scoring less than that would not be entitled for appointment. (B) Reservation: Reservation of 33% for female candidates against concerned category. In the event of non-availability of female candidates, such vacant post shall be filled up. by male candidates from the concerned category. - Reservation of 3% for physically handicapped candidates. In the event of non-availability of physically handicapped candidates, such vacant posts shall be filled up by suitable candidates. - Reservation of 10% for ex-servicemen against the relevant category. In case of non-availability of ex-servicemen candidates, such vacant posts shall be filled up by suitable candidates from the relevant category. 3.4. In addition to the aforesaid, the respondent No. 2 has also issued an advertisement No. DET/201516/101 for the purpose of filling up 189 vacant posts Supervisor Instructor (employability skill). The salient feature of the advertisement is as under: (A) Cut-off marks: Two papers of 150 marks each (total 300 marks). Out of 300 marks, the cut-off marks for General Category would be 60%, which is equivalent to 180 marks and any one scoring less than 180 marks would not be considered as pass. Cut-off marks for Socially and Educationally Backward Class is 57%(171 marks, whereas, cut-off marks for Scheduled Caste and Scheduled Tribe would be 55% (165 marks). Anyone scoring less than that would not be entitled for appointment. 3.5. The respondent No. 2 had to fill up 1415 vacant posts of Supervisor Instructor, pursuant to the aforesaid advertisements, the petitioners have filled in the online application forms. The last date for submission of the applications was 14.10.2015, which had been extended up to 14.11.2015. 3.6. The written examinations of the post of Supervisor Instructor were conducted by the respondent No. 2 between March-April, 2016. 3.7. On 06.03.2016, the respondent No. 2 declared the results pertaining to employability skill (service group). In September, 2016, the respondent No. 2 declared the marks scored by the candidates, who had appeared in the written examination of Automobile, Fabrication, Mechanical and Electrical Branch. 3.8. On 10.09.2016, the respondent No. 2 issued a notification calling those candidates, who had scored more than the cutoff marks to remain present on 14.09.2016 for document verification. While issuing the notification; it had been specifically stated that the document verification is mandatory, failing which, the name from the selection process would be cancelled. 3.8. On 10.09.2016, the respondent No. 2 issued a notification calling those candidates, who had scored more than the cutoff marks to remain present on 14.09.2016 for document verification. While issuing the notification; it had been specifically stated that the document verification is mandatory, failing which, the name from the selection process would be cancelled. It had also been stated that in the event, if due to unavoidable circumstances, a candidate could not remain present for document verification, then such candidate can remain present on 16/17.09.2016 for getting the document verified. The candidates from Mechanical Branch were not called for the document verification. Accordingly, the document verification for Automobile, Electrical, Refrigeration and Air-conditioning, Fabrication and Employability Skill were carried out and the names of the petitioners appear in the document verification list. 3.9. On 14.09.2016, the respondent No. 2 issued a notification calling those candidates, who had scored more than the cut-off marks to remain present on 19.09.2016 for the document verification. While issuing the notification, it had been specifically stated that the document verification is mandatory, failing which the name from the selection process would be cancelled. It had also been stated that in the event, if due to unavoidable circumstance, a candidate could not remain present for the document verification, then such candidate can remain present on 20.09.2016 for getting the document verified. Accordingly, the document verification was carried out and the names of the petitioners appear in the document verification list. 3.10. Despite the completion of the document verification stage, on 07.10.2016, the respondent No. 2 issued a notification calling upon the additional candidates of female category, physically handicapped and ex-servicemen categories for the document verification. The respondent No. 2, while issuing the notification had directed that only those candidates should remain present to whom Short Message Service (SMS) had been sent and whose names appear in the list should remain present on 09.10.2016 for getting their document verified. It was also mentioned in the notification that if the candidate is not present, then such candidate would not be entitled to appear again. Accordingly, the document verification was carried out for additional female candidates, physically handicapped candidates and ex-servicemen candidates. 3.11. On 20.10.2016, the respondent No. 2 issued another notification, whereby the candidates, who had not annexed the copy of the application, photo identity card, etc. were directed to remain present on 24.10.2016 for the document verification. Accordingly, the document verification was carried out for additional female candidates, physically handicapped candidates and ex-servicemen candidates. 3.11. On 20.10.2016, the respondent No. 2 issued another notification, whereby the candidates, who had not annexed the copy of the application, photo identity card, etc. were directed to remain present on 24.10.2016 for the document verification. It was also mentioned in the notification that the last date for the document verification would be 26.10.2016. Accordingly, the candidates were present and document verification process was carried out. As a result of which, many candidates who had secured less than cut-off marks were permitted to appear at the document verification stage and the documents were verified. 3.12. On 24.10.2016, the petitioners and various other candidates addressed a letter to the respondent No. 2 informing them that female candidates/physically handicapped candidates/ex-servicemen candidates, who had failed were directed to remain present for the document verification and, therefore, no appointment should be given to such candidates. It had been specifically stated that in the event of non-availability of female candidates/ex-servicemen candidates/physically handicapped candidates, such vacant posts should be filled in by male or suitable candidates. 3.13. On 24.10.2016, the petitioner No. 1-Sureshkumar Lalitkumar Patel addressed a letter to the respondent No. 2 appraising him of the facts and requesting him not to select the candidates, who have scored below the cutoff marks and who are to be treated as "fail". 3.14. On 26.12.2016, the selection committee of the respondent No. 2 had resolved that the cutoff marks for the General Category shall be reduced to 40%, whereas for all the reserved categories (including female) the cutoff marks shall be 35% and thereafter, the select list and waiting list be prepared. 3.15. On 27.12.2016, the respondent No. 2 implemented the decision taken by the selection committee and declared the selection list as well as the waiting list. As a result of which, the candidates having less marks than the petitioners came to be selected in the select list and waiting list. 3.16. After declaration of the select list and waiting list, the respondent No. 2 had also placed the same on its website stating that if any representation is required to be made against the select list and waiting list, the same should be made telephonically or by email. 4. Learned Senior Counsel Mr. Shalin Mehta with learned advocate Mr. 3.16. After declaration of the select list and waiting list, the respondent No. 2 had also placed the same on its website stating that if any representation is required to be made against the select list and waiting list, the same should be made telephonically or by email. 4. Learned Senior Counsel Mr. Shalin Mehta with learned advocate Mr. Hemang Shah for the petitioners submitted that the decision of the selection committee came to be implemented by the respondent No. 2 unilaterally and without any intimation being provided to the candidates. It was submitted that at no point of time, the petitioners were made aware that there would be a change in the cut-off marks in the event of non-selection of female candidates in various categories. 4.1. Learned Senior Counsel further submitted that the decision taken by the selection committee of the respondent No. 2 for reducing the cut-off marks has been done with a deliberate intention for the purpose of accommodating the female candidates, who have scored much less than the original cutoff marks and even much lesser than the petitioners and thus, the candidates, who have failed in the written examination are sought to be appointed as Supervisor Instructors, which would affect the quality of teaching that would be imparted to the students, who come for learning a particular subject. It was submitted that as per the advertisement, the respondent No. 2 had called those candidates for the document verification, who had secured 180 or more marks and thus, the advertisement is explicitly clear and there could not be deviation thereof. 4.2. Learned Senior Counsel further submitted that if the female candidates were not available, then it was mandatory for the respondent No. 2 to fill up such vacant posts by selecting the male candidates or suitable candidates from the concerned category. It was submitted that the respondent No. 2 did not follow this and instead called for the document verification from the female candidates of general category, who had scored much less than the petitioners. 4.3. Learned Senior Counsel Mr. Mehta submitted that the respondent-State cannot change the criteria of selection after the same is concluded. It was submitted that the respondent No. 2 did not follow this and instead called for the document verification from the female candidates of general category, who had scored much less than the petitioners. 4.3. Learned Senior Counsel Mr. Mehta submitted that the respondent-State cannot change the criteria of selection after the same is concluded. In support of his submissions, the learned Senior Counsel placed reliance on the judgments of the Apex Court in the cases of (i) Hemani Malhotra v. High Court of Delhi, 2008 (7) SCC 11 : ( AIR 2008 SC 2103 ); (ii) Union of India and Ors. v. S. Vinodh Kumar and Ors., 2007 (8) SCC 100 : ( AIR 2008 SC 5 ); (iii) K. Manjusree v. State of A.P. and Anr., 2008 (3) SCC 512 : ( AIR 2008 SC 1470 ); (iv) Tamil Nadu Computer Science B.Ed. Graduate Teachers Welfare Society v. Higher Secondary School Computer Teachers Association and Ors., 2009 (14) SCC 517 : (2010 AIRSCW 2825), (v) and the judgment dated 20.03.2013 passed in Letters Patent Appeal No. 1350 of 2012 by the Division Bench of this Court. 5. Per contra, Ms. Manisha Luvkumar, Government Pleader with Mr. Ronak Raval, Assistant Government Pleader for the respondent Nos. 1 and 2 submitted that it appears from the record that by virtue of Government Resolution dated 04.12.2011, the posts of Supervisor Instructor, Class-III in Government Industrial Training Commission, which have been earlier under the domain and jurisdiction of the Gujarat Subordinate Services Commission, have now been put forward under the Department of Labour and Employment and other incidental direction to that effect have been resolved and directed. 5.1. It was further submitted that in view of Government Resolution dated 04.12.2014, vide communication dated 09.12.2014, the Department of Labour and Employment has directed the Director of Employment and Training Officer to proceed further for filling up the said posts. It was submitted that thereafter, by virtue of Government Resolution dated 13-08-2015, the change has been effectuated in the Constitution of Committee which is constituted for the purpose of filling up the said posts. It was submitted that aforesaid committee met on 03.09.2015 for resolving the incidental matters. It was submitted that the recruitment rules for the appointment of the said post have been framed vide notification dated 03.09.2015. It was submitted that aforesaid committee met on 03.09.2015 for resolving the incidental matters. It was submitted that the recruitment rules for the appointment of the said post have been framed vide notification dated 03.09.2015. It was submitted that pursuant to the examination held from 06.03.2016 to 10.04.2016 for the post of Supervisor Instructor, the results were declared on 01.09.2016. 5.2. It was submitted that at the relevant time, whereby the results were declared, number of posts remained vacant and thereby no proper composition and distribution of posts was there and, therefore, to stimulate the said situation, the committee decided to reduce the cutoff marks so as to avail more candidates in the different categories including that of reserved categories and thereby the earlier threshold limit was of 60% for the general category, 57% for the SC/BC category and 55% was of SC/ST category, the selection committee in the meeting held on 26.12.2016, in the interest of the general welfare of all the categories, including that of reservation category has resolved to reduce the said limit to 40% for general category and 35% for rest of the categories. It is contended that after the cut-off marks were reduced the number of candidates belonging to the aforesaid categories were considerably increased, and the requisite number of candidates were available. She has invited the attention of this Court to various clauses of the advertisement. Learned Government Pleader while pointing out the various clauses of the advertisement has submitted the same empowers the State authorities to rescind of alter any of the conditions mentioned therein, and hence the State authorities had acted accordingly. Thus, she has submitted that no illegality can be found in the action of the respondents in lowering down the cut-off marks. 5.3. Learned Government Pleader has further contended that the decision of the Apex Court in the case of K. Manjusree (supra) has been referred to the larger Bench, hence no reliance can be placed on the same. Further, she has placed reliance on the judgment of the Apex Court in the case of Jitendra Kumar Singh v. State of U.P., 2010 (3) SCC 119 : ( AIR 2010 SC 1851 ). 5.4. It was further submitted that the respondents have not prejudiced the rights of any person and decided to reduce the cut-off marks in view of increasing employment opportunities. Hence, the writ petition may be dismissed. 6. 5.4. It was further submitted that the respondents have not prejudiced the rights of any person and decided to reduce the cut-off marks in view of increasing employment opportunities. Hence, the writ petition may be dismissed. 6. Learned advocate Mr. G.M. Joshi appearing for the private respondents, while adopting the arguments of the learned Government pleader has submitted that the State Government has acted very fairly by reducing the merits for accommodating the women candidates. He has submitted that no infirmity or illegality has been said to have been committed by the State. Learned advocates Ms. Mamta Vyas, Mr. Hardik Mehta and Mr. Vatsal Parikh have supported the arguments of learned GP. 7. I have given my thoughtful consideration to the submissions advanced by the learned advocates for the respective parties and the averments made in the petition. This Court has also perused the documents on record. 8. The respondent-State has issued an advertisement No. DET/201516/1 to DET/201516/15 for the purpose of filling up 1226 vacant posts of Supervisor Instructor (Engineering Trade, Non-Engineering Trade), Class-III. Since there is no dispute on the number of candidates who had appeared, the cut-off marks, and the number of candidates after the reduction of the cut-off marks no detailed discussion is necessitated. 9. The kernel of issue involved in the present writ petitions, is whether the State authorities can lower down the cut-off marks provided in the advertisement after the completion of the selection process and after fixing the merits in order to accommodate the candidates belonging to the horizontal reservations. 10. Before adverting to the aforementioned issue it would be apposite to refer to the relevant clauses of the advertisement. The same are incorporated as under: "Clause 5: General Instructions: xxxxxxxxx The examination will be conducted in Non-Engineer Group as under:- Paper 1: 150 Marks 180 Minutes - Subject: Core subject. - Paper 2: 150 Marks 180 Minutes - Subject: Employability Skill and Soft Skill, Teaching Skill and English. The cut-off marks for General Category Candidate will 60% of 300 Marks, i.e. 180 marks, the candidates securing less marks then the same will not considered as "pass". The cutoff marks for SEBC(socially and economically backward class) will be 57% (171 marks), whereas for Schedule Caste and Schedule Tribes candidates the cut-off marks will be 55% (165 marks). The candidates securing less marks shall not be entitled to the appointment. The cutoff marks for SEBC(socially and economically backward class) will be 57% (171 marks), whereas for Schedule Caste and Schedule Tribes candidates the cut-off marks will be 55% (165 marks). The candidates securing less marks shall not be entitled to the appointment. - The selection list shall be prepared on the basis of the marks obtained in the examination. There will be no interview. Clause 15: In the present advertisement, the department will have the full right/authority to rescind the same as well as to alter the number of seats in case of necessity, and the department is not bound to give assign any reasons for it. In these circumstances neither the application nor the fees shall be returned. Clause 19: xxxxxxxxxx "The selection committee shall have the right/authority to alter/rescind any of the instructions, and the selection committee shall be bound to give reasons for the same." Appendix-1 Table (xxxxxxx) "Note: There will be 33% reservation for women. If no women candidates are available, then the post shall be filled in by male candidates belonging to the same category." 10.1. The close analysis of the foregoing clauses of the advertisement reveal that any candidate who secures below the cut-off marks is to be declared as fail, and he would not be entitled to the appointment. It is an established fact that the aforesaid clause is neither rescinded nor modified. The specific condition of declaring such candidates who have secured less mark as "pass" is not incorporated by the State authorities in the subsequent amendment. Thus, by the subsequent amendment, the respondents have declared the unsuccessful/failed candidates, who were unable to secure their position in the select/merit list, as successful by lowering down the cut-off marks. 11. The Note below the Appendix-I specifically provides that in case no women candidates are available then the vacant post can be filled in by the male candidates of the same category. Thus, the respondents should have filled in the vacant posts by the male candidates instead of lowering down the cutoff marks after the selection process was over. 12. The reliance placed by the learned GP on the Clauses 15 and 19 incorporated in the advertisement empowering the section committee to alter/rescind any of the conditions in the advertisement cannot rescue the respondents since such powers are required to be exercised before the completion of selection process. 12. The reliance placed by the learned GP on the Clauses 15 and 19 incorporated in the advertisement empowering the section committee to alter/rescind any of the conditions in the advertisement cannot rescue the respondents since such powers are required to be exercised before the completion of selection process. If the respondents are allowed to take shelter under non-obstante clause after the completion of selection process, the same will create a chaotic and frenzied situation, as exercise of such powers would amount to altering the conditions of the advertisement after the selection, which if sustained will affect the meritorious candidates who have participated in the selection process reposing faith in the instructions incorporated in the advertisement. The reliance placed by the learned GP on the decision of Jitendra Kumar Singh ( AIR 2010 SC 1851 ) (supra) is ill-conceived since the same does not deal with the issue raised in the present petitions and will not apply to the facts of the case. 13. I shall now endeavour to deal with the issue raised in the instant writ petitions. I may with profit quote the observations of the Supreme Court in this regard. 14. The Supreme Court in the case of Hemani Malhotra ( AIR 2008 SC 2103 ) (supra), has observed thus: "9. From the proposition of law laid down by this Court in the above mentioned case it is evident that previous procedure was not to have any minimum marks for vive voce. Therefore, prescribing minimum marks for vive voce was not permissible at all after written test was conducted. There is no manner of doubt that the authority making rules regulating the selection can prescribe by rules the minimum marks both for written examination and vive voce, but if minimum marks are not prescribed for vive voce before the commencement of selection process, the authority concerned, cannot either during the selection process or after the selection process add an additional requirement/qualification that the candidate should also secure minimum marks in the interview. Therefore, this Court is of the opinion that prescription of minimum marks by the respondent at vive voce, test was illegal. 10. Therefore, this Court is of the opinion that prescription of minimum marks by the respondent at vive voce, test was illegal. 10. The contention raised by the learned Counsel for the respondent that the decision rendered in K. Manjusree ( AIR 2008 SC 1470 ) (supra) did not notice the decisions in Ashok Kumar Yadav v. State of Haryana, (1985) 4 SCC 417 : ( AIR 1987 SC 454 ) as well as K.H. Siraj v. High Court of Kerala and others, (2006) 6 SCC 395 : ( AIR 2006 SC 2339 ) and therefore should be regarded either as decision per incuriam or should be referred to larger Bench for reconsideration, cannot be accepted. What is laid down in the decisions relied upon by the learned Counsel for the respondent is that it is always open to the authority making the rules regulating the selection to prescribe the minimum marks both for written examination and interview. The question whether introduction of the requirement of minimum marks for interview after the entire selection process was completed was valid or not, never fell for consideration of this Court in the decisions referred to by the learned Counsel for the respondent. While deciding the case of K. Manjusree (supra) the Court noticed the decisions in P.K. Ramachandra Iyer v. Union of India, (1984) 2 SCC 141 : ( AIR 1984 SC 541 ); Umesh Chandra Shukla v. Union of India, (1985) 3 SCC 721 : ( AIR 1985 SC 1351 ); and Durgacharan Misra v. State of Orissa (1987) 4 SCC 646 : ( AIR 1987 SC 2267 ), and has thereafter laid down the proposition of law which is quoted above. On the facts and in the circumstances of the case this Court is of the opinion that the decision rendered by this Court in K. Manjusree (supra) can neither be regarded as judgment per incuriam nor good case is made out by the respondent for referring the matter to the larger Bench for reconsidering the said decision." 14.1. The Supreme Court has enunciated that though the authority has the power to regulate the selection process and prescribe the necessary marks, but the the same has to be done before the commencement of the selection process and the authority cannot prescribe such marks, either during the selection process or after the selection process. 15. The Supreme Court has enunciated that though the authority has the power to regulate the selection process and prescribe the necessary marks, but the the same has to be done before the commencement of the selection process and the authority cannot prescribe such marks, either during the selection process or after the selection process. 15. Similarly, in the decision rendered in the case of K. Manjusree (supra), the Apex Court has made the following observations: "30. ..............Once the selection process was completed with reference to the criteria adopted by the Administrative Committee and the results were placed before it, the Full Court did not find fault with the criteria decided by the Administrative Committee (as per resolution dated 30.11.2004) or the process of examinations and interviews conducted by the Administrative Committee and Interview Committee. If the Full Court had found that the procedure adopted in the examinations or interviews was contrary to the procedure prescribed, the Full Court could have set aside the entire process of selection and directed the Administrative Committee to conduct a fresh selection. The resolution dated 30-11-2004 was approved. It did not find any irregularity in the examination conducted by the Administrative Committee or the interviews held by the Selection Committee. The assessment of performance in the written test by the candidates was not disturbed. The assessment of performance in the interview by the Selection Committee was not disturbed. The Full Court however, introduced a new requirement as to minimum marks in the interview by an interpretative process which is not warranted and which is at variance with the interpretation adopted while implementing the current selection process and the earlier selections. As the Full Court approved the resolution dated 30.11.2004 of the Administrative Committee had also decided to retain the entire process of selection consisting of written examination and interviews it could not have introduced a new requirement of minimum marks in interviews, which had the effect of eliminating candidates, who would otherwise be eligible and suitable for selection. Therefore, we hold that the action of Full Court in revising the merit list by adopting a minimum percentage of marks for interviews was impermissible." 16. In Tamil Nadu Computer Science B.Ed. Graduate Teachers Welfare Society, 2010 AIR SCW 2825, (supra), the Apex Court has enunciated thus: "20. Therefore, we hold that the action of Full Court in revising the merit list by adopting a minimum percentage of marks for interviews was impermissible." 16. In Tamil Nadu Computer Science B.Ed. Graduate Teachers Welfare Society, 2010 AIR SCW 2825, (supra), the Apex Court has enunciated thus: "20. 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. 75 marks out of total 150 marks. It is thus established that the Government changed the rules of recruitment and terms and conditions of appointment in the midway after the selection process was initiated. The said decision was taken on a Sunday i.e. on 12-10-2008, after the candidates had taken their exams. 29. xxxxxxxxx 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 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. 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 onetime opportunity, a special recruitment test was ordered to be held for selection and recruitment as also absorption of 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 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%. Such a recruitment drive and test was held by laying down rules of recruitment thereby 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 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 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 Malhotra v. High Court of Delhi, (2008) 7 SCC 11 : (AIR 2008 SC 2013) : (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. 34. Thus we hold and declare that those candidates who had secured more than 50% qualifying marks would he held to have qualified in the said test and the remaining candidates would be treated as unsuccessful/failed and therefore became ineligible to be permanently recruited and absorbed in Government schools. However, we give liberty to the State Government to hold a fresh examination/recruitment test to fill up all the remaining posts of computer instructors as against the sanctioned and vacant posts of computer instructors, which we are told would be more than 1000, by holding a recruitment test in terms of assurance given to the High Court." 16.1. However, we give liberty to the State Government to hold a fresh examination/recruitment test to fill up all the remaining posts of computer instructors as against the sanctioned and vacant posts of computer instructors, which we are told would be more than 1000, by holding a recruitment test in terms of assurance given to the High Court." 16.1. Thus, the Supreme Court, while examining a similar issue wherein the authorities had reduced the qualifying marks from 50% to 35% in the midway after the selection process was initiated in order to accommodate the employees on sympathetic ground has declared that such an action of reducing the minimum qualifying marks from 50% to 35% and thereby changing the selection criteria towards the end of the game was unjustified and arbitrary. In the present case also, the respondent authorities in order to accommodate the candidates of horizontal reservation have reduced the qualifying criteria of merit after the selection process was over which is impermissible and in direct violation of the law enunciated by the Supreme Court. If sufficient numbers of the candidates belonging to the horizontal reservations were not available, then it was always open for the State to undertake a fresh recruitment process, but no variation/alteration or deviation is permissible in the criterion of merit which is stipulated in the advertisement during the subsistence or completion of the selection process. 17. The Division Bench in the decision dated 20.03.2013 rendered in Letters Patent Appeal No. 1350 of 2012, while examining the issue of lowering down the cutoff marks in order to accommodate the Ex-Servicemen candidates belonging to horizontal reservations has held thus: "11. The attempt to contend that in order to apply horizontal reservation, one has to go below the cut-off marks so as to include the candidates falling in the horizontal reservation, which is Ex-Servicemen in the present case, is ill-founded inasmuch as in the case of application of all horizontal reservation, the requirement would be that one has to meet with the minimum qualifying criteria or the standard provided by way of cut-off marks or otherwise. It is not that for accommodation of any candidate of horizontal, any merit which is less than minimum merit is to be accepted. If such argument is accepted, it would mean that the recruiting authority would be required to go down upto below the passing standard for accommodating the candidate of horizontal reservation. It is not that for accommodation of any candidate of horizontal, any merit which is less than minimum merit is to be accepted. If such argument is accepted, it would mean that the recruiting authority would be required to go down upto below the passing standard for accommodating the candidate of horizontal reservation. Such is not the purpose nor could be the interpretation for applying horizontal reservation by damaging or adversely affecting the minimum standard or the minimum qualifying marks provided for such purpose in the respective category. In normal circumstances, if any horizontal reservation is to be applied, the candidate concerned has to meet with the merit of the other candidates in the respective category. If only sufficient number of candidates are not available or accommodated, the recruiting agency may go further down but with the condition that in no case, such action of going further down will go below the cut-off marks for the respective category and if any relaxation has been provided, only upto the relaxed limit provided for such purpose." 17.1. Thus, the Division Bench has specifically held that the recruiting agency cannot lower down the merit and go down upto below the passing standards in order to accommodate the candidates of horizontal reservations. 18. On the bedrock of the foregoing observations and the analysis, the impugned decision dated 26.12.2016 and the subsequent action of the respondent State of reducing the cut-off marks after the completion of the selection process, are quashed and set aside. The respondent authorities are further directed to prepare the select list and wait list as per the cut-off marks and norms prescribed in the advertisement. Necessary orders shall be passed in terms of the direction issued by this Court within the two months from the date of receipt of the writ of the order of this Court. The petition succeeds.