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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 8334 of 2013

Anurag Kumar Singh & Ors. .... Appellant(s)

Versus State of Uttarakhand & Ors.

….Respondent(s)

With

CIVIL APPEAL No. 8335 of 2013

Shri Sharwan Kumar Tripathi & Ors. .... Appellant(s)

Versus State of Uttarakhand & Ors.

….Respondent(s)

J U D G M E N T

L. NAGESWARA RAO, J.

These Appeals  are  filed against  the  judgment of  the

High Court of Uttarakhand at Nainital by which a direction

was issued to restrict the selection of Assistant Prosecuting

Officers only to the number of posts that were advertised.  

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2. An  advertisement  was  issued  by  the  Uttarakhand

Public Service Commission (hereinafter referred to as

‘the  Second  Respondent’)  on  19.09.2009  for

appointment  to  the  posts  of  Assistant  Prosecuting

Officers.  The number of posts notified were 38.  It was

mentioned in  the  advertisement  that  the  number  of

posts  may  be  increased  or  decreased  by  the  State

Government.  A  preliminary  examination  was

contemplated  in  case  there  were  a  large  number  of

applications.  It was mentioned in the advertisement

that  the  ‘year  of  recruitment’  was  a  period  of  12

months commencing from the 1st day of  July of  the

calendar year.   3. As a large number of candidates applied, a preliminary

examination was conducted on 31.10.2010, the result

of  which  was  declared  on  04.02.2011.   The  Third

Respondent who was an applicant filed an application

under  the  Right  to  Information  Act,  2005  seeking

information about the number of posts for which the

preliminary examination was conducted.   The Second

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Respondent  responded  stating  that  the  number  of

vacancies for which the selection was being held was

74.  The Third Respondent filed a Writ Petition in the

High Court of Uttarakhand at Nainital for a direction

that  only  38  posts  of  Assistant  Prosecuting  Officers

which were advertised on 19.09.2009 should be filled

up.  4. A counter  was filed by the First  Respondent stating

that  37  additional  posts  of  Assistant  Prosecuting

Officers were created by an order dated 25.08.2009.  It

was also stated in the counter that a requisition for

additional  36 posts of  Assistant  Prosecuting Officers

was sent to the Second Respondent.  It  was further

stated  that  there  was  acute  shortage  of  Assistant

Prosecuting  Officers  and  hence  there  was  need  for

filling up of 74 vacant posts of Assistant Prosecuting

Officers without delay.  5. The High Court allowed the Writ Petition.  The High

Court  relied  on  Uttar  Pradesh  Prosecuting  Officers

Service  Rules,  1991  (hereinafter  referred  to  as  ‘the

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Rules’)  to  hold  that  the  selection  pursuant  to  an

advertisement  can  be  only  for  clear  vacancies  and

anticipated  vacancies  but  not  for  future  vacancies.

Referring to the definition of  ‘year of  recruitment’  in

the  Rules,  the  High  Court  held  that  vacancies  that

arose between 1st of July, 2008 and 30th of June, 2009

alone can be filled up.  The High Court directed that

selection  should  be  confined  to  only  38  posts  of

Assistant Prosecuting Officers.  A further direction was

given by the High Court to the Second Respondent to

commence the process of selection for the additional

36  vacancies  which  were  requisitioned  by  the  letter

dated 06.01.2011. 6. The  Appellants  would  have  been  selected  and

appointed  as  Assistant  Prosecuting  Officers  if  the

selection was for 74 posts.  They are aggrieved by the

judgment  of  the  High  Court.   They  have  sought

permission  to  file  the  above  Appeals  which  was

granted on 16.08.2012.  We heard     Mr. Harin P.

Raval  and  Ms.  Meenakshi  Arora,  learned  Senior

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Counsels  appearing  for  the  Appellants  and  Mr.

Saurabh  Trivedi,  Counsel  appearing  for  the  First

Respondent.   Mr. Harin Raval submitted that there

was only one Assistant Prosecuting Officer working in

the State of Uttarakhand on the date of advertisement

dated  19.09.2009.   Mr.  Raval  took  us  through  the

material on record to show that more than 38 posts

were  available  on  the  date  of  advertisement.   He

referred to the condition in the advertisement which

enabled the State Government to vary the number of

vacancies.    He  also  referred  to  the  pleadings  to

contend that  a  requisition  was  made to  the  Second

Respondent for filling up the additional 36 vacancies

as well.  He submitted that the High Court went wrong

in  allowing  the  Writ  Petition  without  taking  into

account the shortage of Assistant Prosecuting Officers

in the State of  Uttarakhand.   Mr.  Saurabh Trivedi,

counsel  appearing  for  the  State  supported  the

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Appellants  and  sought  permission  to  fill  up  the

additional 36 vacancies.   7. Thirty seven candidates were declared successful for

being appointed as Assistant Prosecuting Officers by a

Notification  dated  26.06.2012.  It  is  stated  in  the

written submission filed by the First Respondent that

31  out  of  37  candidates  joined  and  were  sent  for

training.  Two candidates out of 31 resigned and the

remaining  29  candidates  were  assigned  postings  as

Assistant Prosecuting Officers. 8. The  recruitment  to  posts  of  Assistant  Prosecuting

Officers is governed by the Uttar Pradesh Prosecuting

Officers Service Rules, 1991.  Rule 3 (l) defines ‘year of

recruitment’  as  a  period  of  12  months  commencing

from  the  1st day  of  July  of  calendar  year.   The

requisition  made  by  the  First  Respondent  to  the

Second Respondent on 17.11.2008 was for selection of

38  Assistant  Prosecuting  Officers.   The  year  of

recruitment for conducting selection would be between

1st  July, 2008 and 30th June, 2009.  As stated earlier,

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only 38 posts were notified in the advertisement.  As

per the advertisement the Government could vary the

number of  posts to be filled up.   Such power could

have  been exercised by the  Government  only  to  the

extent of posts that arose between 1st July, 2008 and

30th June,  2009.   The  Second  Respondent  filed  a

counter in this Court in which it was stated that the

advertisement issued on 19.09.2009 was for 38 posts

and  that  it  was  only  on  06.01.2011  that  the

Government intimated 36 additional posts to be filled

up. The letter dated 25.08.2009 of the Chief Secretary,

State  of  Uttarakhand  was  relied  upon  by  the

Appellants to contend that additional vacancies were

created and they were available to be filled up. 9. It  is  clear  from  the  pleadings  and  the  various

documents filed by the Appellants that no additional

posts  were  created  between  1st July,  2008  and  30th

June, 2009.  It is significant that the Rules refer to the

recruitment  year.   It  is  a  well-accepted  principle  of

service law that only the number of vacancies that are

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advertised can be filled up.  If the advertisement gives

liberty to the Government to vary the number of posts,

such power cannot be exercised for filling up future

vacancies.   If additional posts were created during the

recruitment year i.e. between 1st July, 2008 and 30th

June, 2009, the Government could have directed the

Second Respondent to include those posts also in the

selection  list  that  was  made  pursuant  to  the

advertisement dated 19.09.2009. 10. This Court in Prem Singh and Ors. v. Haryana

State Electricity Board reported in (1996)  4 SCC

319 at paragraph 25 held as follows:

“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 the requisition and

advertisement  are  for  a  certain  number  of  posts

only the State cannot make more appointments then

the  number  of  posts  advertised,  even  though  it

might  have  prepared  a  select  list  of  more

candidates.  The  State  can  deviate  from  the

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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

extra-ordinary  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.”

It was further held by this Court that strictly speaking the

authorities  were  not  justified  in  making  appointments  to

posts more than those advertised.  This Court also found

that only actual vacancies were taken into account without

considering  the  anticipated  vacancies  that  were  likely  to

arise due to retirement, etc.  As appointments were already

made,  taking  into  account  the  peculiar  facts  and

circumstances,  this  Court  approved  the  appointments

beyond  those  advertised  only  to  the  extent  of  vacancies

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which  arose  because  of  death  and  retirement,  etc.   The

appointments  that  were  made  to  future  vacancies  were

declared as invalid.     11. Pursuant  to  the  directions  issued  by  the  High

Court  in  the  impugned  judgment,  37  persons  were

declared  selected  for  appointment.   In  view  of  the

interim  order  passed  by  this  Court  in  the  above

Appeals, selection to the remaining posts was not held.

Seven years have passed after the advertisement was

issued  on  19.09.2009.   A  large  number  of  persons

would have become eligible for selection to the post of

Assistant Prosecuting Officers.  They have a right to be

considered for appointment guaranteed under Articles

14 and 16 of the Constitution of India.  There would be

an infraction of such right if the additional posts are

not filled up by a fresh selection.   The attempt made

by the  First  and Second Respondents  to  fill  up  the

additional  posts  is  contrary  to  the  Rules.   After  a

careful  consideration  of  the  matter,  we  are  of  the

opinion  that  the  Appellants  cannot  be  selected  and

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appointed  to  the  additional  posts  that  were  not

advertised on 19.09.2009 and were created after the

relevant recruitment year ending on 30.06.2009. 12. We  have  examined  the  possibility  of  granting

relief to the Appellants by taking into account the facts

and  circumstances  of  this  case.    The  Appellants

participated in the selection which was initially for 38

posts which later increased to 74 posts.  They could

not  be  appointed  due  to  the  judgment  of  the  High

Court which directed the selection to be only for 38

posts.   In view of there being no fault on the part of

the  Appellants,  we  examined  whether  we  could

exercise  our  judicial  discretion  to  direct  their

appointments.    We  realise  that  any  such  direction

given by us for their appointments would be contrary

to the Rules.   Judicial discretion can be exercised by a

Court only when there are two or more possible lawful

solutions.    In  any  event,  Courts  cannot  give  any

direction  contrary  to  the  Statute  or  Rules  made

thereunder in exercise of judicial discretion. It will be

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useful to reproduce from Judicial Discretion (1989) by

Aharon Barak which is as follows: “Discretion assumes the freedom to choose among

several  lawful  alternatives.   Therefore,  discretion

does not exist when there is but one lawful option.

In this situation, the judge is required to select that

option and has no freedom of choice.   No discretion

is involved in the choice between a lawful act and

an unlawful act.  The judge must choose the lawful

act, and he is precluded from choosing the unlawful

act.   Discretion,  on  the  other  hand,  assumes  the

lack  of  an  obligation  to  choose  one  particular

possibility among several.”      

13. As we have held that the selection pursuant to

the  advertisement  dated  19.09.2009  should  be

confined  only  to  posts  that  were  advertised,  the

additional posts that were created after the expiry of

the recruitment year shall be filled up by issuance of

an advertisement afresh.  In view of the shortage of

Assistant  Prosecuting  Officers  in  the  State  of

Uttarakhand, we direct the authorities to expedite the

process of selection.  

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14. For the aforementioned reasons, the judgment of

the  High Court  is  upheld and the  Civil  Appeals  are

dismissed.     

.…............................J.       [SHIVA KIRTI SINGH]

               ................................J. [L. NAGESWARA RAO]

New Delhi, October 5, 2016

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