ARUP DAS & ORS.versusSTATE OF ASSAM & ORS.

                    [2012] 1 S.C.R. 445


                    ARUP DAS & ORS.                              A
                              v.
               STATE OF ASSAM & ORS.
     (Special Leave Petition (C) No.4813-14 of 21}12)
                    JANUARY 27, 2012
                                                                 B
[ALTAMAS KABIR AND SURINDER SINGH NIJJAR, JJ.]

    SERVICE LAW:

     Appointment - Government's refusal to approve the           c
subsequent selection lists recommending the candidates over
and above the number of vacancies advertised - Held: It is
we/I-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         0
advertised - A fresh advertisement is required to be
published for filling up the remaining number of vacancies
after the vacancies advertised are filled up - Constitution of
India, 1950 - Arts. 14 and 16.

    Consequent upon an advertisement published by                E
the Director of Land Records and Survey, Assam inviting
applications for selection and admission in the Assam
Survey and Settlement Training Institute in respect of 160
seats, a select list of 160 candidates was published and
they were sent for training. Thereafter, ·the government         F
refused to approve subsequent three more lists. This
was challenged before the High Court. The Single Judge
dismissed the writ petition. The Division Bench of the
High Court declined to interfere.
                                                                 G
    In the instant petitions, the question for consideration
before the Court was: whether appointments could be
made in Government service beyond the number of
vacancies advertised.
                             445                                 H
    446      SUPREME COURT REPORTS             [2012] 1 S.C.R.

A         Dismissing the special leave petitions, the Court

      HELD: 1. 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
8
  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
C to be filled, could have also applied if they had known
  that the other vacancies would also be under
  consideration for being filled up. [Para 1O] [453-D-F]

       State of U.P. Vs. Raj Kumar Sharma 2006 (2) SCR 877
D   =
    (2006) 3 SCC 330 : and Madan Lal Vs. State of J&K 1995
  (1) SCR 908 ·(1995) 3 sec 486 • relied on.
      Prem Singh & Ors. Vs. Haryana State Electricity Board
                                        =
  & Ors. 1996 (2) Suppl. SCR 401 (1996) 4 sec 319 -
E explained.

       Union of India Vs. /shwar Singh Khatri & Ors. (1992)
    Supp. 3 SCC 84 - distinguished

        1.2. No extra-ordinary and/or exceptional
F circumstances exist in the instant case requiring the
  filling up of the vacant seats available after filling up the
  160 seats advertised. A fresh advertisement is required
  to be published for filling up the remaining number of
  vacancies after the vacancies advertised are filled up.
G [Para 12] [455-C·E·F]
                        Case Law Reference:
        (1992) Supp. 3 sec 84        distinguished Para 4
        1996 (2) Suppl. SCR 401      distinguished Para ·t;
H
 ARUP DAS & ORS. v. STATE OF ASSAM & ORS.                   447

    1995 (1) SCR 908                relied on        Para 7        A
    2006 (2) SCR 877                relied on        Para 11
    CIYILAPPELLATE JURISDICTION: SLP (Civil) No. 4813-
4814 of 2012.
                                                                   B
    From the Judgment & Order dated 16.09.2011 of the
Gauhati High Court at Guwahati in Writ Appeal No. 132 and
151 of2011.

    Jaydeep Gupta, Helal Uddin Chaudhary, Mohd. lrshad
Hanif, Adeel Siddiqui for the Petitioners.                         C

    The Judgment of the Court was delivered by

     ALTAMAS KABIR, J. 1. A short but interesting question
of law arises in these Special Leave Petitions, as to whether      D
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 E
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 F
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 G
 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 ·
..,y the Government. The Government's refusal to approve the
                                                                     H
    448      SUPREME COURT REPORTS                 (2012] 1 S.C.R.

A 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.
B
    · 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
C by this Court relating to deviation from the contents of the
  advertisement.

        4. The submissions made on behalf of the Writ Petitioners
   were rejected by the learned Single Judge upon holding that if
D 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
E 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
F 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
G have, in the meantime, acquired the eligibility to undergo such
  training. Relying on the decision of this Court in Union of India
  Vs. /shwar 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
H the number of vacancies advertised would be contrary to the
 ARUP DAS & ORS. v. STATE OF ASSAM & ORS.                   449
            [ALTAMAS KABIR, J.]
provisions of Articles 14 and 16 of the Constitution. On the         A
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          B
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 expressed by the learned Single Judge, the Division            C
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          D
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,        E
Prem Singh & Ors. Vs. Haryana State Electricity Board & Ors.
[(1996) 4 sec 319], where the following two questions fell for
consideration, namely,
      (i)     Whether it was open to the Board to prepare a list     F
              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            G
              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            H
     450      SUPREME COURT REPORTS                    [2012] 1 S.C.R.

A 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
B 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
   appointments, the merit list was to be so operated that only 11
   vacancies were filled up. It was further observed that the reason
C 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 La/'s
   case (supra) which is extracted hereinbelow :-
D
         "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
E       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
F       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
G       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
H      served its purpose."
 ARUP DAS & ORS. v. STATE OF ASSAM & ORS.                   451
            [ALTAMAS KABIR, J.]
     8. Referring to the observations made in the aforesaid         A
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      B
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 C
     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 than the number of posts advertised,
     even though it might have prepared a select list of more D
     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 E
     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. F
     What relief should be granted in such cases would depend
      uoon 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         G
     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
                                                                    H
    452      SUPREME COURT REPORTS                  [2012] 1 S.C.R. .


A        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 selection process was
         completed it would not be just and equitable to invalidate
B        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
c        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
         anticipatep by the Board. The Board through oversight had
         not taken them into consideration while a requisition was
D        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
E       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
F
        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 make appointments to posts
G 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
H vacancies numbering 690. Mr. Gupta submitted that both the
  ARUP DAS & ORS. v. STATE OF ASSAM & ORS.                    453
             [ALTAMAS KABIR, J.]
 Single Judge and the Division Bench of the High Court had            A
 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               B
 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.
        10. Having carefully considered the sLJbmissions made on C
  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 D
  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 E
  decision is that if that was aHowed 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 F
  up. In fact, in the decision rendered in /shwar 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, G
  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, H
     454     SUPREME COURT REPORTS                  (2012] 1 S.C.R.

A 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
B available vacancies, and, accordingly, the 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.
C    · 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
D 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
E 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
F 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
G 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
H appointments than the number of posts, this Court went on to
                                                                        \,




 ARUP DAS & ORS. v. STATE ·oF ASSAM & ORS.                  455
            [ALTAMAS KABIR, J.]
hold that the State could deviate from the advertisement and A
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 B
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 C
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. D
In such a case it was observed that instead of invalidating the
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 E
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 F
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      G
58 for permission to file the Special Leave Petition is rejected.
       14. There will, however, be no order as to costs.

R.P.                        Special Leave Petitions dismissed.      H