ARUP DAS & ORS. Vs STATE OF ASSAM & ORS.
Bench: ALTAMAS KABIR,SURINDER SINGH NIJJAR
Case number: PC(CC) 27 of 2012
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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