Deepak Narayan Gaude vs State Of Goa

        Â

Category","No.of

Vacancies",

Scheduled Caste,3,

Scheduled Tribe,2,

General Category,1,

Total,6,

Category,"No. of Vacancies

Advertised","Appointments

made

Scheduled

Caste",2,0

Scheduled

Tribe",2,1

General

Category",2,6

OBC,0,1

Total,6,8

Sr.no,     General Category,Against Roster Pt.No.

1,Gaurish Vaman Khedkar,2

2,Sudesh Bablo Naik,3 (against Ex-Serviceman)

3,Preeti Anil Naik,4

4,Shilpa H.P.Desai,5

5,Pallavi S.Patil Â,7

,      OBC Category.,

Sr.no,"Â Â Â Â Â Â Â Â

General",Against Roster Pt.No.

1,Subhash Gurav,3 (against Ex-Serviceman)

2,Laxmi Lawande,4

3,Atish Mandrekar,5

4,Vamdana V.Bhave,7

5,Sandeep Lotlikar,10

6,Vivita Ambe,8

,"Â Â Â Â Â Â Â Â Â

OBC",

1,Amey P. Naik,6

,"Â Â Â Â Â Â Â Â Â Â

ST",

1,Sukanti Pilgaonkar,9

Scheduled Castes,         2 and 51,(2%)

Scheduled Tribes,"4, 13, 22, 30, 39, 48, 56, 64, 73, 81,

91 and 99.",12%

The learned counsel for the Petitioner relied upon a judgment of the Supreme Court in case of Anurag Kumar Singh and others Vs. State of,,

Uttarakhand and others (supra). The observations of paragraph 11 of the said judgment read thus :,,

“11.It is clear from the pleadings and the various documents filed by the appellants that no additional posts were created between 1.7.2008 and,,

30.6.2009. 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 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 1.7.2008 and 30.6.2009, 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.â€,,

In the case at hand, the Respondent nos.1 and 2 have not made any exercise for filling up the future vacancies. What has been done in the case",,

at hand is that, the Government has followed the ratio in the judgment of R.K. Sabharwal and others Vs. State of Punjab and others. Thus, the ratio in",,

Anurag's case can be distinguished accordingly.,,

The Petitioner has placed reliance on another judgment of the Supreme Court in the case of Rakhi Ray and others Vs. High Court of Delhi and,,

others reported in (2010) 2 SCC 637 (supra). It is observed in paras 7, 12, 18 and 24 thus:",,

“7 It is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as ""the recruitment of the",,

candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the,,

Constitution"", of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of",,

notification of vacancies. Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to",,

improper exercise of power and only in a rare and exceptional circumstance and in emergent situation, such a rule can be deviated and such a",,

deviation is permissible only after adopting policy decision based on some rational"", otherwise the exercise would be arbitrary. Filling up of vacancies",,

over the notified vacancies amounts to filling up of future vacancies and thus, not permissible in law.(Vide Union of India and Ors.v.Ishwar Singh",,

Khatri & Ors. (1992) Supp 3 SCC 84; Gujarat State Deputy Executive Engineers' Association v. State of Gujarat & Ors. (1994) Supp 2 SCC 591;,,

State of Bihar & Ors. v. The Secretariat Assistant S.E. Union 1986 & Ors AIR 1994 SC 736; Prem Singh & Ors. v. Haryana State Electricity Board,,

& Ors. (1996) 4 SCC 319; and Ashok Kumar & Ors. v. Chairman, Banking Service Recruitment Board.",,

 12 In view of above, the law can be summarised to the effect that any appointment made beyond the number of vacancies advertised is without",,

jurisdiction, being violative of Articles 14 and 16 (1) of the Constitution of India, thus, a nullity, inexecutable and unenforceable in law. In case the",,

vacancies notified stand filled up, process of selection comes to an end. Waiting list etc. cannot be used as a reservoir, to fill up the vacancy which",,

comes into existence after the issuance of notification/advertisement.The unexhausted select list/waiting list becomes meaningless and cannot be,,

pressed in service any more.,,

In Malik Mazhar Sultan's case (2008) 17 SCC 703 (supra), this Court made it clear that appointments in Judicial Service have to be made as per",,

the existing statutory rules. However, direction was issued to amend the rules for future selections. This Court considered the correspondences",,

between various authorities of the States and also the decision taken in the conference of the Chief Ministers and Chief Justices held on 11.3.2006,",,

and observed as under:,,

... Before we issue general directions and the time schedule to be adhered to for filling vacancies that may arise in subordinate courts and district",,

courts, it is necessary to note that selections are required to be conducted by the concerned authorities as per the existing Judicial Service Rules in the",,

respective States/Union Territories...... As already indicated, the selection is to be conducted by authorities empowered to do so as per the existing",,

Rules. ... In view of what we have already noted about the appointments to be made in accordance with the respective Judicial Services Rules in the,,

States, the apprehension of interference seems to be wholly misplaced...."" (Emphasis added).",,

Therefore, it is clear that this Court clarified that selection was to be made as per the existing rules and direction was issued for amending the existing",,

laws to adopt the recommendations of Justice Shetty Commission as approved by this Court for the future.,,

A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at the best is a condition of,,

eligibility for purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled,,

up as per the statutory rules and in conformity with the constitutional mandate. In the instant case, once 13 notified vacancies were filled up, the",,

selection process came to an end, thus there could be no scope of any further appointmentâ€​",,

Since the Petitioner has participated in the process of selection and that there was no question of recruitment of candidates in excess of the notified,,

vacancies, the ratio in this case can be distinguished accordingly.",,

The learned Senior Counsel appearing for the Respondent nos.9 to 16, relied upon the judgment of the Supreme Court in the case of Amlan Jyoti",,

Borooah Vs. State of Assam and others . It is observed by the Supreme Court in paragraphs 8,15, 30, 31 and 32, which reads thus:",,

On or about 4.7.2000, 169 candidates who had cleared the physical test/medical test were appointed on the post of Sub-Inspector of Police. The",,

said order, appointing the aforementioned 169 posts was not the subject matter of the challenge before the High Court. However, it appears that",,

during the currency of the life of the select list, the Director General of Police, by a letter dated 21.12.2000, addressed to the CommissionerSecretary",,

to the Home Department, Dispur, asked for sanction of the State-Level Empowered Committee (SLEC) to fill up 77 additional vacancies that had",,

arisen from the aforementioned select list, stating :",,

I am writing to inform you that presently, there are 2154 number of vacancies in the rank of constables (Battalion 1136, District AB 504, District UB",,

514) and 77 Nos. of vacancies in the rank of SIs in the Assam Police. These are all functional posts. In the context of insurgency situation obtained in,,

the state and that there will be Assembly Election within the next four months, we will need to mobilize all the manpower. In view of this, it is",,

requested that permission of the State Level Empowered Committee may be conveyed to us to fill up these vacancies by direct recruitment from the,,

results of the records of the previous recruitment rallies already available with us. Government orders on the same may kindly be issued immediately.""",,

Allegedly, urgency and compelling reasons for which the said vacancies were to be filled up was vast deteriorating law and order situation in the State",,

as also sudden spurt of extremists related incidents of violence.,,

15. Indisputably, during pendency of the said writ petition, posts were filled up as 75 persons who had been found suitable were offered appointment",,

to the post of Sub-Inspector of Police on 2.3.2001. The respondents who were 74 in number had accepted the said offer of appointment on 3.3.2001;,,

one of them, however, did not join the post. They were sent for and completed their training. Indisputably, they have been working in the said post.",,

30 . The appellant concededly did not question the appointment of 169 candidates. It is idle to contend that he was not aware thereof. If he was to,,

challenge the validity and/or legality of the entire select list in its entirety, he should have also questioned the recruitment of 169 candidates which took",,

place as far as back as on 4.7.2000.,,

The appellant was aware of his positionin the select list. He was also aware of the change in the procedure adopted by the Selection Committee.,,

He appeared at the interview without any demur whatsoever although was not called to appear for the physical ability test prior thereto. The appellant,,

chose to question the appointment of 77 candidates not only on the premise that the procedure adopted by the Selection Committee was illegal but also,,

on the premise that no new vacancy could have been filled up from the select list.,,

The appellant, in our opinion, having accepted the change in the selection procedure sub silentio, by not questioning the appointment of 169",,

candidates, in our considered opinion, cannot now be permitted to turn round and contend that the procedure adopted was illegal. He is estopped and",,

precluded from doing soâ€​.,,

The ratio is squarely applicable to the present set of facts inasmuch as the Petitioner did not question the appointments of Kum. Ahswini,,

Navrekar and Kum. Kirti M. Kerkar. It is not the case of the Petitioner that he is not aware of the appointments of these two candidates. Thus,",,

the Petitioner having accepted the aforesaid fact by not questioning their appointments, he cannot now be permitted to question the entire selection",,

process and the appointments of the Respondents by the State Government. He is estopped from doing so.,,

Even if the advertisements published in the local daily werekept as it is and the vacancies filled up, the Petitioner could not have been appointed.",,

If the Respondent nos.1 and 2 have corrected their action as per the judgment in the case of R.K. Sabharwal and others Vs. State of Punjab and,,

others, we cannot direct them to act contrary to the said dicta. Rather appointment of the Petitioner ignoring the ratio by judgment in case ofÂ",,

R.K. Sabharwal and others Vs. State of Punjab and others would have been counter productive.,,

The corollary of the aforesaid discussion is that there is no meritin the petition, which deserves to be dismissed. As such, the petition stands",,

dismissed. Rule is discharged. There is no order as to costs.,,