Arup Das & Ors vs State Of Assam & Ors

Petition Nos.3812 of 2010 and 2279 of 2011 on the

ground that when vacancies were available, there

was no bar in the same being filled up from the

Select List of 560 candidates.

3. The aforesaid case sought to be made out on

behalf of the Petitioners was contested by the

Respondents on the ground that even if there were

vacant seats available, the same could not have

been filled up beyond the number of seats

advertised as such action would be contrary to the

law laid down by this Court relating to deviation

from the contents of the advertisement.

4 4. The submissions made on behalf of the Writ

Petitioners were rejected by the learned Single

Judge upon holding that if any appointment was to

be made beyond the number of seats advertised, the

Director was required to publish a fresh

advertisement for selecting the next batch of

candidates in accordance with Rule 20 of the Rules

in this regard. The learned Single Judge also

observed that it was evident from the judgment and

order dated 29th January, 2010 passed in W.P. (C)

No.3909 of 2009, as well as the order dated 1st

December, 2007 passed in Writ Appeal No.413 of

2007, that 560 candidates were called for the viva

voce test for the 160 seats which had been

advertised and if other candidates from the second,

third and fourth lists were to be admitted, it

would amount to depriving other candidates, who had

not been called for the viva voce test because of

the Government's decision to limit the number of

candidates in the written test, of an opportunity

5

of being selected. Some of the candidates may

have, in the meantime, acquired the eligibility to

undergo such training. Relying on the decision of

this Court in Union of India Vs. Ishwar Singh

Khatri & Ors. [(1992) Supp.3 SCC 84] and several

other judgments expressing the same view, the

learned Single Judge held that filling up of

vacancies over and above the number of vacancies

advertised would be contrary to the provisions of

Articles 14 and 16 of the Constitution. On the

basis of the above, the learned Single Judge

dismissed the said Writ Petitions.

5. The decision of the learned Single Judge was

challenged by the Writ Petitioners in Writ Appeal

No.132 of 2011 before the Division Bench of the

Gauhati High Court, along with Writ Appeal No.151

of 2011, which were dismissed by the Division Bench

of the Gauhati High Court by the judgment impugned

herein dated 16.9.2011. Agreeing with the views

6

expressed by the learned Single Judge, the Division

Bench dismissed the Writ Appeals against which

these Special Leave Petitions have been filed.

6. Appearing in support of the Special Leave

Petitions, Mr. Joydeep Gupta, learned Senior

Advocate, submitted that both the learned Single

Judge and the Division Bench of the High Court had

proceeded on the wrong premise that despite

available vacancies, selection could not be made

against the seats available beyond those mentioned

in the advertisement. Mr. Gupta submitted that the

legal position to the contrary had been clarified

by this Court in Civil Appeal No.3423 of 1996, Prem

Singh & Ors. Vs. Haryana State Electricity Board &

Ors. [(1996) 4 SCC 319], where the following two

questions fell for consideration, namely,

(i) Whether it was open to the Board to

prepare a list of as many as 212

candidates and appoint as many as 137 out

7

of that list when the number of posts

advertised was only 62?

(ii) Whether the High Court was justified in

quashing the selection of all the 212

candidates and appointment of 137?

7. While deciding the matter, this Court referred

to various earlier decisions in which the view

expressed by this Court that appointments or

selections could not be made beyond the number of

posts advertised, was reiterated. One of the

decisions which was relied upon was the decision

rendered by this Court in Madan Lal Vs. State of

J&K [(1995) 3 SCC 486], where one of the questions

which fell for consideration was whether

preparation of a merit list of 20 candidates

against 11 advertised vacancies was bad. The

learned Judge observed that this Court had held

that the said action of the Commission by itself

was not bad, but at the time of giving actual

8

appointments, the merit list was to be so operated

that only 11 vacancies were filled up. It was

further observed that the reason given for such a

finding was that as the requisition was for 11

vacancies, the consequent advertisement and

recruitment could also be for 11 vacancies and no

more. The learned Judges went on to quote a

passage from the decision in Madan Lal's case

(supra) which is extracted hereinbelow :-

"It is easy to visualise that if

requisition is for 11 vacancies and that

results in the initiation of recruitment

process by way of advertisement, whether

the advertisement mentions filling up of

11 vacancies or not, the prospective

candidates can easily find out from the

Office of the Commission that the

requisition for the proposed recruitment

is for filling up 11 vacancies. In such a

case a given candidate may not like to

compete for diverse reasons but if

requisition is for larger number of

vacancies for which recruitment is

initiated, he may like to compete.

Consequently the actual appointments to

the posts have to be confined to the posts

for recruitment to which requisition is

sent by the Government. In such an

eventuality, candidates in excess of 11

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who are lower in the merit list of

candidates can only be treated as wait-

listed candidates in order of merit to

fill only the 11 vacancies for which

recruitment has been made, in the event of

any higher candidate not being available

to fill the 11 vacancies, for any reason.

Once the 11 vacancies are filled by

candidates taken in order of merit from

the select list that list will get

exhausted, having served its purpose."

8. Referring to the observations made in the

aforesaid extract, the learned Judges went on to

state that while making the aforesaid observations,

this Court had agreed with the contention that

while sending a requisition for recruitment to

posts, the Government can keep in view not only

actual vacancies then existing, but also

anticipated vacancies. Based on its aforesaid

findings, the learned Judges went on to observe as

follows:-

"25. From the above discussion of the

case-law it becomes clear that the

selection process by way of requisition

and advertisement can be started for clear

vacancies and also for anticipated

vacancies but not for future vacancies. If

10

the requisition and advertisement are for

a certain number of posts only the State

cannot make more appointments than the

number of posts advertised, even though it

might have prepared a select list of more

candidates. The State can deviate from the

advertisement and make appointments on

posts falling vacant thereafter in

exceptional circumstances only or in an

emergent situation and that too by taking

a policy decision in that behalf. Even

when filling up of more posts than

advertised is challenged the court may

not, while exercising its extraordinary

jurisdiction, invalidate the excess

appointments and may mould the relief in

such a manner as to strike a just balance

between the interest of the State and the

interest of persons seeking public

employment. What relief should be granted

in such cases would depend upon the facts

and circumstances of each case.

26. In the present case, as against the 62

advertised posts the Board made

appointments on 138 posts. The selection

process was started for 62 clear vacancies

and at that time anticipated vacancies

were not taken into account. Therefore,

strictly speaking, the Board was not

justified in making more than 62

appointments pursuant to the advertisement

published on 2-11-1991 and the selection

process which followed thereafter. But as

the Board could have taken into account

not only the actual vacancies but also

vacancies which were likely to arise

because of retirement etc. by the time the

11

selection process was completed it would

not be just and equitable to invalidate

all the appointments made on posts in

excess of 62. However, the appointments

which were made against future vacancies --

in this case on posts which were newly

created -- must be regarded as invalid. As

stated earlier, after the selection

process had started 13 posts had become

vacant because of retirement and 12

because of deaths. The vacancies which

were likely to arise as a result of

retirement could have been reasonably

anticipated by the Board. The Board

through oversight had not taken them into

consideration while a requisition was made

for filling up 62 posts. Even with respect

to the appointments made against vacancies

which arose because of deaths, a lenient

view can be taken and on consideration of

expediency and equity they need not be

quashed. Therefore, in view of the special

facts and circumstances of this case we do

not think it proper to invalidate the

appointments made on those 25 additional

posts. But the appointments made by the

Board on posts beyond 87 are held invalid.

Though the High Court was right in the

view it has taken, we modify its order to

the aforesaid extent. These appeals are

allowed accordingly. No order as to

costs."

9. Mr. Gupta urged that in view of the fact that

this Court had approved the right of the State to

deviate from the advertisement published and to

12

make appointments to posts falling vacant

thereafter in exceptional circumstances only or in

an emergent situation, the Director of Land Records

and Survey, Assam, had not committed any illegality

in publishing the second, third and fourth lists

for the purpose of making appointments therefrom

against the total number of known vacancies

numbering 690. Mr. Gupta submitted that both the

Single Judge and the Division Bench of the High

Court had completely misconstrued the decision in

Prem Singh's case (supra), although the same had

been cited before them. Accordingly, the

decisions, both of the Single Judge as well as of

the Division Bench, were liable to be set aside

with appropriate directions to the State Government

and its authorities to take steps to fill up the

total number of vacancies from the second, third

and fourth lists published by the Director, Land

Records and Survey, Assam.

13 10. Having carefully considered the submissions

made on behalf of the Petitioners, we are unable to

accept Mr. Gupta's submissions, since the issue

raised by him is no longer res integra and has been

well settled by a series of decisions of this Court

after the decision in Prem Singh's case (supra).

Even in Prem Singh's case, which has been strongly

relied upon by Mr. Gupta, the proposition sought to

be advanced by him does not find support. It is

well-established that an authority cannot make any

selection/appointment beyond the number of posts

advertised, even if there were a larger number of

posts available than those advertised. The

principle behind the said decision is that if that

was allowed to be done, such action would be

entirely arbitrary and violative of Articles 14 and

16 of the Constitution, since other candidates who

had chosen not to apply for the vacant posts which

were being sought to be filled, could have also

applied if they had known that the other vacancies

14

would also be under consideration for being filled

up. In fact, in the decision rendered in Ishwar

Singh Khatri's case (supra) which was referred to

by the High Court, this Court while considering the

preparation of panel of 1492 selected candidates as

against the 654 actual vacancies notified, recorded

the fact that after filling up the notified number

of vacancies from the panel, no further

appointments were made therefrom and instead fresh

advertisement was issued for further appointment.

Since a promise had been made in the minutes of the

meeting of the Selection Board that the panel would

be valid till all the candidates were offered

appointments, this Court held that the Selection

Board had taken into consideration anticipated

vacancies while preparing the panel. It is on such

basis that this Court had observed that it had to

be concluded that the Selection Board had prepared

the panels containing 1492 candidates, as against

the then available vacancies, and, accordingly, the

15

selected candidates had a right to get appointment.

It is in such circumstances that further

appointments from the published panel of 1492

candidates, as directed by the Tribunal, were

upheld.

11. In a recent decision rendered by this Court in

State of U.P. Vs. Raj Kumar Sharma [(2006) 3 SCC

330], this Court once again had to consider the

question of filling up of vacancies over and above

the number of vacancies advertised. Referring to

the various decisions rendered on this issue, this

Court held that filling up of vacancies over and

above the number of vacancies advertised would be

violative of the fundamental rights guaranteed

under Articles 14 and 16 of the Constitution and

that selectees could not claim appointments as a

matter of right. It was reiterated that mere

inclusion of candidates in the Select List does not

confer any right to be selected, even if some of

16

the vacancies remained unfilled. This Court went

on to observe further that even if in some cases

appointments had been made by mistake or wrongly,

that did not confer any right of appointment to

another person, as Article 14 of the Constitution

does not envisage negative equality and if the

State had committed a mistake, it cannot be forced

to perpetuate the said mistake.

12. Even the decision in Prem Singh's case (supra),

which had been strongly relied upon by Mr. Joydeep

Gupta in support of his claim that the State had a

right to deviate from the advertisement published

by it, has to be considered in the light of the

circumstances in which the same was made. While

holding that if the requisition and advertisement

are for a certain number of posts only, the State

cannot make more appointments than the number of

posts, this Court went on to hold that the State

could deviate from the advertisement and make

17

appointments in posts falling vacant thereafter in

exceptional cases or in an emergent situation, and,

that too, by taking a policy decision in that

behalf. The said finding cannot possibly be

interpreted in the manner in which it has been done

by Mr. Gupta that the advertisement could be

deviated from by the State, even in the present

circumstances, which, in our view, were neither

exceptional nor emergent. The fact that 690 seats

were available is not a relevant consideration for

application of the aforesaid principle. It is in

such situation that a fresh advertisement is

required to be published for filling up the

remaining number of vacancies after the vacancies

advertised are filled up. The latter portion of

paragraph 25 of the said decision in Prem Singh's

case (supra) deals with a situation where posts in

excess of those advertised had been filled up in

extra-ordinary circumstances. In such a case it

was observed that instead of invalidating the

18

excess appointments, the relief could be moulded in

such a manner so as to strike a just balance, if it

is in the interest of the State and in the interest

of the person seeking public employment, to the

facts of such case. The facts of that case are

different from the facts of the instant case, in

that no extra-ordinary and/or exceptional

circumstances exist in the present case requiring

the filling up of the vacant seats available after

filling up the 160 seats advertised. The decision

in Prem Singh's case (supra) has to be read in such

a context and cannot be said to be the rule, but

rather the exception.

13. We, therefore, are not inclined to accept Mr.

Gupta's submissions, which deal with the exception

and not the rule and, accordingly, the Special

Leave Petitions are dismissed. Consequently, the

application filed by the Petitioner Nos.4 to 58 for

19

permission to file the Special Leave Petition is

rejected.

14. There will, however, be no order as to costs.

............................................................J.

(ALTAMAS KABIR)

............................................................J.

(SURINDER SINGH NIJJAR)

New Delhi

Dated: 27.01.2012