Arup Das & Ors.
Vs. State of Assam & Ors.
Petition (Civil) No. of 2012 (Cc 27/2012)]
J U D G M E N T
ALTAMAS KABIR, J.
short but interesting question of law arises in these Special Leave Petitions, as
to whether 2appointments can be made in Government service beyond the number of
advertisement dated 4th November, 2006, was published by the Director of Land Records
and Survey, Assam, inviting applications for selection for admission in the Assam
Survey and Settlement Training Institute in respect of 160 seats. About 12,000 candidates
applied for the said advertised seats and a written test was conducted which was
followed by a viva voce examination. The viva voce test was limited to only 560
candidates. The restriction of the vive voce test to only 560 candidates was challenged
before the Gauhati High Court in W.P.(C)No.3419 of 2007, which was dismissed and
Writ Appeal No.413 of 2007 preferred from the Order of the learned Single Judge
was also dismissed.
The Director of Land Records
and Survey, Assam, published a select list of 160 candidates and sent the candidates
for training. Subsequently, the Director sent three more lists, hereinafter referred
to as "the second, third and fourth lists", but the same were not approved
by the Government. The Government's refusal to approve the second, third and fourth
lists against the seats available, was again challenged in Writ 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.
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.
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 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.
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 6expressed by the learned Single Judge, the Division Bench dismissed the
Writ Appeals against which these Special Leave Petitions have been filed.
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 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?
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
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 8appointments, 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 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.
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
If 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
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 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.
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 12make 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
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.
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
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 there from and instead fresh advertisement was issued for
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
15selected 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.
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 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.
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 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 18excess
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.
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 permission
to file the Special Leave Petition is rejected.
will, however, be no order as to costs.
(SURINDER SINGH NIJJAR)