TMI Blog2007 (9) TMI 700X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. So 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. Respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - S.B. Sinha Harjit Singh Bedi, JJ. JUDGMENT S.B. SINHA, J : 1. Leave granted. 2. On 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. Reservation 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 : General : 240 Other Backward Classes : 115 Scheduled Castes : 72 Schedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Inasmuch 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. 6. Appellants are, thus, before us. 7. Mr. Amarendra Sharan, learned Additional Solicitor General of India appearing on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 11. Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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. 14. It 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]. 15. It 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]. 16. In any view of the matter, the respondents appeared in a competitive examinati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. It was further observed : 34. 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. 20. We are, however, not oblivious that there are certain exceptions to the aforementioned rules but we are not concerned therewith in the present case. 21. For the reasons aforementioned, the impugned judgment cannot be sustained, which is set aside accordingly. The appeal is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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