JUDGMENT : VIKRAM NATH, J. 1. This Letters Patent Appeal under Clause-15 of the Letters Patent has been preferred by the unsuccessful writ-petitioner, assailing the correctness of the judgment and order of the learned Single Judge dated 6th February 2017 passed in Special Civil Application No. 13823 of 2015 (Heenaben Pravinsinh Chauhan Vs. Uttar Gujarat Vij Company Ltd & others), whereby the learned Single Judge, after considering the material on record and legal propositions, dismissed the writ petition. 2. The sole writ petitioner-appellant was a candidate for selection to the post of Junior Engineer (Vidhya Sahayak) Electrical in the respondent No.1 Company, pursuant to an advertisement issued by the respondent No.1 Company. It is the case of the appellant that there was 30% reservation for women (Special - Horizontal Reservation). The competitive examination was held and thereafter the results were declared. A list of 56 candidates short listed as per merit was issued. Depending upon the number of posts available including the vacancies that had arisen the appointment letters were issued on different dates. 3. The name of the petitioner-appellant was not included in the list nor the appointment letter was issued to her. As such, she approached the High Court by way of Special Civil Application No. 13823 of 2015, praying for appropriate direction to the respondents to consider her case for appointment to the post of Junior Engineer (Vidhya Sahayak) Electrical. 4. The writ petition was filed on the ground that the special reservation meant for women was not correctly applied and secondly that after the competitive examination the respondent company fixed the cut-off marks, which could not be done as it was not provided in the advertisement. 5. Affidavit in reply was filed by the respondent No.1 Company in which the contents of the writ petition were denied. Select List of 56 candidates was prepared and from that List, total 33 appointments were made from time to time. In paragraph-9 of the affidavit in reply, it was stated that cut-off marks fixed for Unreserved and Socially and Economically Backward Class (SEBC) categories was 65, for Scheduled Caste category, it was 62 and for Scheduled Tribe category, it was 58 marks. In paragraph-10 of the affidavit in reply, it was mentioned that the writ-petitioner had secured 56 marks and therefore, she could not fall in the merit list. There were candidates having higher merit. In paragraph-10 of the affidavit in reply, it was mentioned that the writ-petitioner had secured 56 marks and therefore, she could not fall in the merit list. There were candidates having higher merit. It is further stated in paragraph-11 of the affidavit in reply that in all 2 women candidates had been appointed; one belonging to the Unreserved category and one belonging to the Scheduled Caste category. In the same paragraph, it is further stated that in all 6 candidates from the Scheduled Caste category, 4 candidates from the Scheduled Tribe category, 11 candidates from the Socially and Educationally Backward Class and 12 candidates from the Unreserved category (total 33) were given appointment. 6. Affidavit in rejoinder was filed by the writ petitioner in which the plea taken was basically that no cut-off marks could have been fixed, the fixing of the cut-off marks after the start of the examination process amounted to meddling with the rules of the game after the game had started. Further affidavit on behalf of the respondent No.1 Company was filed to place on record that after 33 candidates were appointed as per the statement given in the affidavit in reply, 4 more candidates were appointed, thus, making appointments of total 37 candidates. 7. The learned Single Judge, after considering the entire arguments advanced by the learned counsels for the parties and also perusing the pleadings, came to the conclusion that there was no illegality in the fixing of the cut-off marks at the stage of preparation of the merit list. The findings are recorded in paragraphs 21, 22, 23 and 24, which are reproduced below: 21. Admittedly, in the instant case, there was no prescription of any minimum or cut off marks in the advertisement. Neither the rules nor any guidelines provided for any minimum marks. There is one written test to be conducted. It is admitted in the written statement so also on the specific query raised to this Court that the minimum prescription of the marks has not been set for the written examination. It is only with a vie to do the comparative merit and for better selection that the marks have been prescribed, which are to be treated as benchmarks. 22. It is only with a vie to do the comparative merit and for better selection that the marks have been prescribed, which are to be treated as benchmarks. 22. Considering the fact that for all the persons in unreserved category, 65% marks is decided and as the petitioner has only 58% of marks, she is not selected in unreserved category where 30% was meant for women. There is no discrimination towards her, as she was even otherwise required to obtain 65% marks in unreserved category. There was no possibility of any relaxation in the basic criteria of selection for the candidates belonging to unreserved category. 23. Bearing in mind the fact that years after years, the board choses the benchmark after the process, even though permitted, for better quality of candidates, without any disturbance of result in this petition, it is being directed that there should be necessary changes in the rules for prescribing minimum or set such minimum criteria before the selection process begins. 24. In competitive examination also, minimum criteria is prescribed because otherwise it may give way to a very substandard quality of candidates to be selected and, if left to the board to select a benchmark without the minimum criteria, it may sometimes act in discriminatory way to select candidates without very low percentages. Therefore, having set the benchmark for higher percentage of marks for all the categories, no indulgence is shown, for the future purpose, it is being directed that the respondents shall follow the decision discussed herein above and make it more clear and transparent for the candidates.” 8. Aggrieved by the aforesaid judgment of the learned Single Judge, the present Letters Patent Appeal has been preferred. 9. We have heard Shri Anshin Desai, learned Senior Counsel assisted by Ms. Dilbur Contractor, learned counsel for the appellant and Shri Dipak R. Dave, learned counsel for the respondent No.1 Company and have perused the material placed on record. 10. Before proceeding to consider the respective arguments, we mention here that no service rules have been placed on record either by the appellant or by the respondent No.1 Company which would have laid down the procedure for selection and appointment to the post of Junior Engineer (Vidhya Sahayak) Electrical. The only rules mentioned is of the State of Gujarat providing for special reservation for women to the extent of 33%. The only rules mentioned is of the State of Gujarat providing for special reservation for women to the extent of 33%. According to the advertisement, there was to be a written competitive examination and based upon the performance of the candidates in the written examination, merit list were to be prepared for offering appointments. In the present case, it is not disputed that cut-off marks were fixed and merit list of 56 candidates was prepared which we have already recorded above and is not disputed by the other side. Out of these 56 candidates included in the merit list, total of 37 candidates were given appointment as per the statement given in the affidavit in reply and further affidavit on behalf of the respondent No.1 Company. 11. Shri Anshin Desai, learned Senior Counsel assisted by Ms. Dilbur Contractor, appearing for the writ petitioner-appellant submitted that the respondent No.1 Company committed grave illegality in not offering appointment to 11 women candidates against their quota of 30% as against 37 appointments made. The respondent No.1 Company gave appointment to only 2 women candidates thereby flouting the constitutional mandate of providing special reservation for women as also the rules framed by the State of Gujarat in 1997 itself. According to Shri Desai, the merit for women candidates could have been lowered and separate list ought to have been prepared. If this exercise was not undertaken, then it would result in defeating the very purpose of providing special reservation. Shri Desai has placed reliance upon the following two judgments: (1) Rajesh Kumar Daria Vs. Rajasthan Public Service Commission and Ors., reported in (2007) 8 Supreme Court Cases 785. (2) Shiv Prasad Vs. Government of India and Others, reported in (2008) 10 Supreme Court Cases 382. 12. On the other hand, Shri Dipak R. Dave, learned counsel appearing for the respondent No.1 Company submitted that no illegality was committed by the recruiting body in fixing the cut-off marks after the competitive examination was held and the answer sheets had been evaluated. Shri Dave further submitted that the recruiting body had to fix the cutoff marks in order to find out the best of the candidates in the competitive examination. Further, according to him, it is of the comparative merit that matters. Shri Dave further submitted that the recruiting body had to fix the cutoff marks in order to find out the best of the candidates in the competitive examination. Further, according to him, it is of the comparative merit that matters. The merit list was prepared almost the double the candidates of the number of vacancies advertised, although later on more than the advertised vacancies were filled up as there was need and the vacancies had arisen during the intervening period. 13. Shri Dave further submitted that different cut-off marks were fixed for different categories of social - vertical reservation. It is also submitted that the appellant had scored marks lesser than the minimum cut-off marks fixed for the Scheduled Tribe category, although the petitioner-appellant belongs to the Unreserved category where cut-of marks was much higher. 14. Lastly it was submitted that the lowering of marks could not be to an extent that it would adversely affect the standard performance or that it could result into compromising with the quality of selections which is not permissible. Shri Dave placed reliance upon the following judgment of the Hon’ble Supreme Court: (1) Yogesh Yadav Vs. Union of India & Ors, reported in (2013) 14 Supreme Court Cases 623. 15. We have considered the submissions in view of the admitted facts as recorded in the earlier part of the judgment and the submissions advanced by the learned counsels for the parties. The only issue which needs to be examined by us is as to whether fixing of the cut-off marks after the answer sheets of the competitive examination had been evaluated was right or wrong. Since there was only one stage of examination, fixing of the cut-off marks at the initial stage may not have been in the interest of the respondent No.1 Company, as such, there was nothing wrong on the part of the examining body in fixing the cut-off marks after the results had been declared so as to strike a balance in making the selection and also maintaining the standard. 16. The learned Single Judge relied upon the same judgment of the Hon’ble Supreme Court in the case of Yogesh Yadav (supra) referred to by Shri Dipak R. Dave, learned counsel for the respondent No.1 Company. The said judgment was dealing with more or less similar facts as the present case. 16. The learned Single Judge relied upon the same judgment of the Hon’ble Supreme Court in the case of Yogesh Yadav (supra) referred to by Shri Dipak R. Dave, learned counsel for the respondent No.1 Company. The said judgment was dealing with more or less similar facts as the present case. Paragraphs-14 to 17 of the said judgment are relevant and clinch the issue in favour of the respondent No.1 Company, the same are reproduced hereunder:- “14. Instant is not a case where no minimum marks prescribed for viva voce and this is sought to be done after the written test. As noted above, the instructions to the examinees provided that written test will carry 80% marks and 20% marks were assigned for the interview. It was also provided that candidates who secured minimum 50% marks in the general category and minimum 40% marks in the reserved categories in the written test would qualify for the interview. Entire selection was undertaken in accordance with the aforesaid criterion which was laid down at the time of recruitment process. After conducting the interview, marks of the written test and viva voce were to be added. However, since benchmark was not stipulated for giving the appointment. What is done in the instant case is that a decision is taken to give appointments only to those persons who have secured 70% marks or above marks in the unreserved category and 65% or above marks in the reserved category. In the absence of any rule on this aspect in the first instance, this does not amount to changing the “rules of the game”. The High Court has rightly held that it is not a situation where securing of minimum marks was introduced which was not stipulated in the advertisement, standard was fixed for the purpose of selection. Therefore, it is not a case of changing the rules of game. On the contrary in the instant case a decision is taken to give appointment to only those who fulfilled the benchmark prescribed. Fixation of such a benchmark is permissible in law. This is an altogether different situation not covered by Hemani Malhotra case. 15. The decision taken in the instant case amounts to short listing of candidates for the purpose of selection/appointment which is always permissible. Fixation of such a benchmark is permissible in law. This is an altogether different situation not covered by Hemani Malhotra case. 15. The decision taken in the instant case amounts to short listing of candidates for the purpose of selection/appointment which is always permissible. For this course of action of the CCI, justification is found by the High Court noticing the judgment of this Court in the State of Haryana vs. Subhash Chander Marwaha & Ors. (1974) 3 SCC 220 . In that case, Rule 8 of the Punjab Civil Service (Judicial Branch) Service Rules was the subject matter of interpretation. This rule stipulated consideration of candidates who secured 45% marks in aggregate. Notwithstanding the same, the High Court recommended the names of candidates who had secured 55% marks and the Government accepted the same. However, later on it changed its mind and High Court issued Mandamus directing appointment to be given to those who had secured 45% and above marks instead of 55% marks. In appeal, the judgment of the High Court was set aside holding as under: “It is contended that the State Government have acted arbitrarily in fixing 55 per cent as the minimum for selection and this is contrary to the rule referred to above. The argument has no force. Rule 8 is a step in the preparation of a list of eligible candidates with minimum qualifications who may be considered for appointment. The list is prepared in order of merit. The one higher in rank is deemed to be more meritorious than the one who is lower in rank. It could never be said that one who tops the list is equal in merit to the one who is at the bottom of the list. Except that they are all mentioned in one list, each one of them stands on a separate level of competence as compared with another. That is why Rule 10(ii), Part C speaks of “selection for appointment”. Even as there is no constraint on the State Government in respect of the number of appointment to be made, there is no constraint on the State Government in respect of the number of appointments to be made, there is no constraint on the Government fixing a higher score of marks for the purpose of selection. Even as there is no constraint on the State Government in respect of the number of appointment to be made, there is no constraint on the State Government in respect of the number of appointments to be made, there is no constraint on the Government fixing a higher score of marks for the purpose of selection. In a case where appointments are made by selection from a number of eligible candidates it is open to the Government with a view to maintain highstandards of competence to fix a score which is much higher than the one required for mere eligibility.” 16. Another weighty reason given by the High Court in the instant case, while approving the aforesaid action of the CCI, is that the intention of the CCI was to get more meritorious candidates. There was no change of norm or procedure and no mandate was fixed that a candidate should secure minimum marks in the interview. In order to have meritorious persons for those posts, fixation of minimum 65% marks for selecting a person from the OBC category and minimum 70% for general category, was legitimate giving a demarcating choice to the employer. In the words of the High Court: “In the case at hand, as we perceive, the intention of the Commission was to get more meritorious candidates. There has been no change of norm or procedure. No mandate was fixed that a candidate should secure minimum marks in the interview. Obtaining of 65% marks was thought as a guidelines for selecting the candidate from the OBC category. The objective is to have the best hands in the field of law. According to us, fixation of such marks is legitimate and gives a demarcating choice to the employer. It has to be borne in mind that the requirement of the job in a Competition Commission demands a well structured selection process. Such a selection would advance the cause of efficiency. Thus scrutinized, we do not perceive any error in the fixation of marks at 65% by the Commission which has been uniformly applied. The said action of the Commission cannot be treated to be illegal, irrational or illegitimate.” 17. Such a selection would advance the cause of efficiency. Thus scrutinized, we do not perceive any error in the fixation of marks at 65% by the Commission which has been uniformly applied. The said action of the Commission cannot be treated to be illegal, irrational or illegitimate.” 17. It is stated at the cost of repetition that there is no change in the criteria of selection which remained of 80 marks for written test and 20 marks for interview without any subsequent introduction of minimum cut off marks in the interview. It is the short listing which is done by fixing the benchmark, to recruit best candidates on rational and reasonable basis. That is clearly permissible under the law. (M.P.Public Service Commission vs. Navnit Kumar Potdar & Anr. (1994) 6 SCC 293 ). 17. Insofar as two judgments relied upon by Shri Anshin Desai, learned Senior Advocate appearing for the appellant are concerned, we may state that they do not help the appellant. In the case of Rajesh Kumar Daria (supra) the issue was as to how the special reservation is to be applied in distinction with social reservation. In the said case, there was no issue relating to the cut off of marks which has been more closely dealt with in the case of Yogesh Yadav (supra). Further, in the case of Shiv Prasad (supra), again the issue was relating to the number of vacancies to be calculated for special reservation and this case also does not deal with the issue of cut off marks. 18. In view of the above discussion, we do not find any error in the judgment of the learned Single Judge. Fixing of the cut-off marks at the stage of final selection has been held to be accurate and sound method specially where there are no rules providing the procedure for selection. 19. For the above reasons, the appeal lacks merit and is accordingly dismissed. Consequently, the connected Civil Application stands disposed off.