REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NO.     OF 2012                                  (CC 27/2012)

ARUP DAS & ORS. …  PETITIONERS Vs.

STATE OF ASSAM & ORS.  … RESPONDENTS

J U D G M E N T

ALTAMAS KABIR, J.

1. A short but interesting question of law arises  

in  these  Special  Leave  Petitions,  as  to  whether

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appointments  can  be  made  in  Government  service  

beyond the number of vacancies advertised.   

2. An 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.

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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.

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.

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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