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Judgment
Dhirubhai Naranbhai Patel, J.
I.A. No. 8579 of 2013
This interlocutory application has been preferred under Section 5 of the Limitation Act for condonation of delay of 6 days in preferring this Letters Patent Appeal.
Heard learned counsel appearing for both the sides and looking to the reasons stated in this interlocutory application especially in paragraph Nos. 1, 2 and 3, there are reasonable reasons for condonation of delay. We, therefore, condone the delay of 6 days in preferring this Letters Patent Appeal.
Accordingly, I.A. No. 8579 of 2013 stands allowed and disposed of.
L.P.A. No. 336 of 2013
Learned counsel appearing for the appellants submitted that the appellants (original-petitioner) were selected for the class-IV posts and selection panel was published on 03.02.2009 and despite this selection, these appellants (Original-petitioners) have not been appointed as class-IV employees whose serial Nos. are 35,45,47 and 50 in the selection list. From the very same select list, few persons have already been appointed. The petitioners are duly qualified for Class-IV employees and this aspect of the matter has not been properly appreciated by the learned Single Judge and hence this letter patents appeal has been preferred against the order passed by the learned Single Judge dated 12.08.2013 in W.P. (S) No. 4369 of 2012.
Learned counsel appearing for the respondents submitted that the select list was prepared on 03.02.2009. It is true that these appellants (original-petitioners) are in the select list, but the life of the select list is now over as on 03.02.2010 and therefore, the said select list cannot be made operative for the future vacancies. This aspect of the matter has been properly appreciated by the learned Single Judge and hence this L.P.A. cannot be entertained by this Court.
Reasons:--
Having heard learned counsel for both the sides and looking to the facts and circumstances of the case, we see no reason to entertain this L.P.A mainly for the following facts and reasons:--
"(i) Health Department in the District Deoghar of the State of Jharkhand had given requisitions through Civil Surgeon Deoghar for appointment of the Class-IV employees. Now the question before us is whether selection list prepared on 03.02.2009 which was expired on 03.02.2010 can be operated or not?.
(ii) It appears that these appellants (original-petitioner) were selected for Class-IV employee and they are in the selection panel prepared by the respondents-State authorities. The said select list was prepared on 03.02.2009 which comes to an end on 03.02.2010, the select list prepared can be operated only for the vacancies published and not for the future vacancies.
(iii) Select list once prepared, cannot be made operative, for all time to come and it cannot be used as reservoir for appointment for the future vacancies. For every future vacancies of the next year or next years, the advertisement ought to have been given by the State and the public at large should be given chance to get the employment in the public posts, otherwise, long select list of thousand persons will be prepared and the said select list will be operative for minimum 2 or 3 decades. This is not permissible in the eye of law."
It has been held by the Supreme Court Judgment in the case of Rakhi Ray and Others Vs. The High Court of Delhi and Others, AIR 2010 SC 932 : (2010) 124 FLR 867 : (2010) 2 JT 121 : (2010) 2 SCALE 93 : (2010) 2 SCC 637 : (2010) 1 SCC(L&S) 652 : (2010) 2 SCR 239 : (2010) 2 SLR 193 : (2010) 2 UJ 933 : (2010) AIRSCW 7068 as under:--
"11. In Mukul Saikia v. State of Assam this Court dealt with a similar issue and held that "if the requisition and advertisement was only for 27 posts, the State cannot appoint more than the number of posts advertised." The select list "got exhausted when all the 27 posts were filled." Thereafter, the candidates below the 27 appointed candidates have no right to claim appointment to any vacancy in regard to which selection was not held. The "currency of select list had expired as soon as the number of posts advertised are filled up, therefore, appointments beyond the number of posts advertised would amount to filling up future vacancies" and said course is impermissible in law.
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, in executable and unenforceable in law. In case the vacancies notified stand filled up, the 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."
(Emphasis supplied)
It has been held by the Hon''ble Supreme Court in the case of Surinder Singh and Others Vs. State of Punjab and Another, AIR 1998 SC 18 : (1997) 7 JT 537 : (1997) 5 SCALE 567 : (1997) 8 SCC 488 : (1997) 3 SCR 538 Supp : (1999) 1 SLJ 75 : (1997) 2 UJ 630 as under:--
"14. A waiting list prepared in an examination conducted by the Commission does not furnish a source of recruitment. It is operative only for the contingency that if any of the selected candidates does not join then the person from the waiting list may be pushed up and be appointed in the vacancy so caused or if there is some extreme exigency the Government may as a matter of policy decision pick up persons in order of merit from the waiting list. But the view taken by the High Court that since the vacancies have not been worked out properly, therefore, the candidates from the waiting list were liable to be appointed does not appear to be sound. This practice, may result in depriving those candidates who become eligible for competing for the vacancies available in future. If the waiting list in one examination was to operate as an infinite stock for appointments, there is a danger that the State Government may resort to the device of not holding an examination for years together and pick up candidates from the waiting list as and when required. The constitutional discipline requires that this Court should not permit such improper exercise of power which may result in creating a vested interest and perpetrate waiting list for the candidates of one examination at the cost of entire set of fresh candidates either from the open or even from service.
Exercise of such power has to be tested on the touchstone of reasonableness..... It is not as a matter of course that the authority can fill up more posts than advertised."
(Emphasis supplied)
It has been held by the Hon''ble Supreme Court in the case of Rakhi Ray and Others Vs. The High Court of Delhi and Others, AIR 2010 SC 932 : (2010) 124 FLR 867 : (2010) 2 JT 121 : (2010) 2 SCALE 93 : (2010) 2 SCC 637 : (2010) 1 SCC(L&S) 652 : (2010) 2 SCR 239 : (2010) 2 SLR 193 : (2010) 2 UJ 933 : (2010) AIRSCW 7068 as under:--
"22. In view of the above, we do not find any force in the submissions that the High Court have filled vacancies over and above the vacancies advertised on 19.05.2007, as per the directions issued by this Court in Malik Mazhar Sultan case. More so, no explanation could be furnished by Shri Ranjit Kumar, learned Senior Counsel for the appellants as to why the appellants could not challenged the advertisement itself, if it was not in conformity with the directions issued by this Court in the said case."
(Emphasis supplied)
It has been held by the Hon''ble Supreme Court in the case of Prem Singh and Others Vs. Haryana State Electricity Board and Others, (1996) 4 AD 593 : (1996) 5 JT 219 : (1996) 2 LLJ 786 : (1996) 4 SCALE 354 : (1996) 4 SCC 319 : (1996) 2 SCR 401 Supp : (1996) 2 UJ 239 as under:--
"23. In State of Bihar v. Madan Mohan Singh this Court has in terms held that if the advertisement and the consequent selection process were meant only to fill up a certain number of vacancies then the merit list will hold good for the purpose of filling up those notified vacancies and no further. In that case 32 vacancies were advertised but a select list of 129 candidates were prepared. A question arose whether more candidates could be appointed on the basis of the said select list. This Court held that once the 32 vacancies were filled up the process of selection for those 32 vacancies got exhausted and came to an end. 11 was further held that if the same list has to be kept subsisting for the purpose of filling up other vacancies also that would naturally amount to deprivation of rights of other candidates who would have become eligible subsequent to the said advertisement and selection process.
One of the questions which fell for consideration in Madan Lal v. State of J&K was whether preparation of merit list of 20 candidates was bad as the vacancies for which the advertisement was issued by the Commission were only 11 and the requisition that was sent by the Government for selection was also for those 11 vacancies. This Court held that the said action of the Commission by itself was not bad but at the time of giving actual appointments the merit list had to be so operated that only 11 vacancies were filled up. The reason given by this Court was that as the requisition was for 11 vacancies the consequent advertisement and requirement could also be for 11 vacancies and no more. This Court further observed:
"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 who are lower in the merit list of candidates can only be treated as waitlisted 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 vacancy are filled by candidates taken in order of merit from the select list that list will get exhausted, having served its purpose."
It may also be stated that while making the aforesaid observations this Court 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.
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 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.
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 recruitment etc. by the time the 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 recruitment and 12 because of deaths. The vacancies which were likely to arise as a result of recruitment 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."
(Emphasis Supplied)
As a cumulative effect of the aforesaid facts and reasons and judicial pronouncements, there is no substance in this letter patents appeal, and we here by upheld the decision rendered by the learned Single Judge in W.P. (S) No. 4369 of 2012 dated 12.08.2013.
Accordingly, this L.P.A. is hereby dismissed.