AI Structured Summary
Not yet generated for this judgment
Judgment
Kh. Nobin Singh, J
[1] Heard Shri Kh. Tarunkumar, learned Advocate; Shri Potsangbam Boboy, learned Advocate appearing for the petitioners and Shri H. Debendra, learned Government Advocate for the respondents.
[2] Since the above two writ petitions have arisen out of a similar set of facts and the prayers are identical, the same are being disposed of by this common judgment and order.
[3] By the instant writ petitions, the petitioners have prayed for issuing a writ of mandamus or any other appropriate writ to quash and set aside the Notification dated 12.06.2017 issued by the Chief Electoral Officer, Manipur cancelling the selection process for appointment to the post of Assistant Election Supervisor held on 26.04.2014 and to direct the respondents to declare the result of the said examination as directed by this court in writ petition being WP(C) No.7 of 2017.
[4.1] Facts and circumstances as narrated in the above writ petitions, are that the Chief Electoral Officer, Manipur issued a Notification dated 26.04.2014 inviting applications from amongst the eligible candidates for recruitment of Computer Operator, Assistant Election Supervisor, Lower Division Clerk and Peon(Grade-IV) in the Election Department, followed by a Notification dated 15.07.2014 notifying that the written test for recruitment to the post of Assistant Election Supervisor and Lower Division Clerk be held on 20.07.2014 and accordingly, the written test was in fact held on the said date i.e. 20.07.2014.
[4.2] On 26.09.2015 the result of the written test which was held on 20.07.2014, was declared and accordingly, the dates of typing test to be held on 5th & 6th October, 2015 were announced. The petitioners being successful in the written test participated in the typing test, the result of which was declared on 13.10.2015 and the dates for personal interview to be conducted on 19th, 20th, 22nd and 23rd, October 2015 were announced. The personal interview/ Viva-Voce was dully conducted for the post of Assistant Election Supervisor as seen from the Notification dated 13.10.2015 issued by the Chief Electoral Officer.
[4.3] The Under Secretary, Election Commission of India addressed a letter dated 19.09.2016 to the Chief Electoral Officer, Manipur directing the State Government to withhold the selection process till the completion of election in the State. In spite of the said letter addressed to the Chief Electoral Officer, Manipur by the Chief Election Commission of India, the Additional Chief Electoral Officer, Manipur issued a Notification dated 20.10.2016 inviting applications for appointment, on regular basis, to the post of Data Entry Operators followed by a Notification dated 25.11.2016 announcing the date of written test as 06.12.2016. The written test was held on 06.12.2016 as announced and the result thereof was declared on the same day. The Data Entry Proficiency Test was held on 07.12.2016 and the result thereof was also declared on the same day showing a list of wait list candidates.
[4.4] A writ petition being WP(C) No.7 of 2017 came to be filed on 3rd January 2017 by some of the petitioners herein in respect of the said examination for appointment to the post of Assistant Election Supervisor highlighting the unnecessary delays to which an affidavit-in-opposition dated 30.01.2017 was filed on behalf of the respondents stating therein that the result could not be announced till the election was over. The said writ petition was disposed of by this Court on 06.02.2017 with the direction to declare the result of the examination within a month after the completion of the election process. A legal notice dated 18.03.2017 was sent to the respondents reminding that the result of the election to the Manipur Legislative Assembly, 2017 had been announced on 11th March, 2017. In order to enable them to implement the court's order dated 06.02.2017, the respondents filed an application being MC[WP(C)] No. 92 of 2017, seeking an extension of time to comply with the direction of this Court, which was disposed of by this Court granting two months' time for the said purpose.
[4.5] To the utter shock and surprise of the petitioners, the Chief Electoral Officer, Manipur issued a Notification dated 12.06.2017 cancelling the examination for appointment to the post of Assistant Election Supervisor in a hurried manner to avoid the contempt of this Court. Being aggrieved by the said Notification dated 12.06.2017, the instant writ petitions have been filed by the petitioners contending inter-alia that the cancellation of the examination was nothing but an afterthought; that the respondents have taken the decision of cancelling the examination on their own sweet will and convenience; that the State Government is estopped from raising the plea taken in the order dated 12.06.2017 cancelling the examination of the Assistant Election Officer in view of the stand taken by it in the earlier writ petition and that the order dated 06-02-2017 passed by this court in WP(C) No.7 of 2017 had attained finality as the same was not challenged by the respondents before any appropriate forum.
[5] An affidavit-in-opposition has been filed on behalf of the respondent No.2 in writ petition being WP(C) No.482 of 2017 wherein the facts as regards the process of selection commencing from issuing the Notification dated 12.03.2014 by the Chief electoral Officer, Manipur till holding of the viva voce test/ personal test, were not denied. But the stand taken by it in the affidavit is that many irregularities and illegalities were noticed in the process of selection and therefore, when the transparency, fair play, public accountability etc. play a great in public employment, the process of selection was cancelled declaring it as null and void and that it was decided by the State Government to undergo a fresh recruitment process which is free, fair and transparent. Moreover, the State Government took a policy decision to discontinue viva voce tests in direct recruitment in all the Departments following a Cabinet decision which was taken on 24-03-2017. The irregularities and illegalities which are alleged to have been noticed by it, are enumerated in para 3.4 of the affidavit which reads as under:
"3.4. That in the recruitment process of the Assistant Election Supervisor, many irregularities' and illegalities were noticed such as:
(i) Results of written test were not declared immediately and after more than one year of dilly dallying, result of written test was declared which led to speculation of manipulation;
(ii) The list of shortlisted candidates who have cleared the written test i.e 414 candidates were not in proportionate to the notified vacancies of 12 post of AES which is more than 5 times of vacancies notified ;
(iii) Oral test/personal interview for the notified vacancies of 12 posts AES were held for 325 candidates which is more than 5 times of vacancies notified;
(iv) After more than nine months with allegation of change of merit list multiple times the proceeding of the Selection Committee held on 1.08.2016 (While backdating the proceeding) had recommended 67 candidates against 12 notified posts in the public domain without seeking fresh applications for additional 55 posts created after written test held on 20.07.2014 for 12 posts only.
(v) The allegation of manipulation during selection process got credence since none of OBC or ST candidates were recommended in the unreserved list."
In the affidavit-in-opposition filled on behalf of the respondent No.2 in writ petition being WP(C) No.552 of 2017, the stand taken by it is more or less the same with that filed in the other writ petition being WP(C) No.482 of 2017 and therefore, the same are not repeated here for the sake of brevity. However, certain averments have been made to the effect that when the new Government came into power, various allegations/ complaints were received from different quarters which compelled the Government to re-look into the recruitment process for appointment to the post of Assistant Election Supervisor and after a careful examination of the whole recruitment process and considering the allegations, the order dated 12-06-2017 was issued in order to prevent the perpetuity of illegality committed during the recruitment process. On the other hand, in their rejoinder filed in writ petition being WP(C) No.482 of 2017, it has been stated by the petitioners that the direction given by this Court in the writ petition being WP(C) No.7 of 2017 was to declare the result after the election was over and in order to enable them to comply the Court's order, time was sought which was duly granted by this court. The passing of the impugned order amounted to annihilating the entire process in one go and was an after-thought. The cancellation was never an issue in the earlier writ petition. Moreover, in an additional affidavit filed by the petitioners, it has been stated that the creation of 43 new posts of Assistant Election Supervisor vide order dated 3-10-2015 was done pursuant to a cabinet decision taken on 5-2-2015 which was widely published in the newspaper and that too, during the course of the examination process when several vacancies arose due to promotion/ retirement of incumbents.
[6] Considering the pleadings as aforesaid in the preceding para, two broad issues have arisen for consideration by this Court-one, whether the impugned order dated 12-06-2017 issued by the Chief Electoral Officer, Manipur is legally valid in the facts and circumstances of the present case and two, in the event of the first issue being answered in the negative, the issue to be decided is as to whether the declaration of result of the examination for appointment to the post of Assistant Election Supervisor will be confined only to the number of posts as mentioned in the advertisement.
[7] As regards the first issue, it has been submitted by Shri Kh. Tarunkumar, the learned counsel appearing for the petitioners in WP(C) No.552 of 2017 that although the recruitment process was initiated, almost complete by the time when the impugned order was issued, during the tenure of the previous Government, the same could not be changed by the new Government because it was the continuation of the earlier Government, for which he has relied upon the decision rendered by the Hon'ble Supreme Court in State of Tamil Nadu & ors Vs. K. Shyam Sunder & ors, (2011) 8 SCC 737 wherein the Hon'ble Supreme Court, after referring to its earlier decisions, held:
"25. While deciding the case earlier, the Division Bench of the Madras High Court on 30-4-2010 held that:
(i) The provisions of Sections 11, 12 and 14 of the Act were ultra vires and unconstitutional, and thus struck them down. However, considering the problems of the State authorities, the Division Bench concluded that the State was competent to bring in an education system common to all in the interest of social justice and quality education. The order further read as under:
"Implementation of the syllabus and textbooks is postponed till the academic year 2011-2012 or until the State makes known the norms and the syllabus and prepares the textbooks in advance."
(ii) In the meantime the State would bring the provisions of the 2010 Act in line with the Central Act e.g. the State shall specify by notification the academic authority and the State Advisory Council. The Board shall also indicate what the approved books are. The State shall by amending the section or by introducing a Schedule to the Act, indicate that the syllabus is restricted to curricular subjects and all schools are bound to follow the common syllabus only for the curricular subjects and not for the co-curricular subjects. The schools may choose from multiple textbooks viz. the government produced textbooks which are prescribed textbooks and the government approved textbooks in all subjects, both curricular and co-curricular.
(iii) The schools shall follow the norms as far as they are practicable. There can be no Board examination up to the level of elementary education but the assessment norms may be specified. Norms shall be fixed by the Board. The State may make it clear whether this Board will also be the academic authority under the Central Act. However, considering the request of the learned Additional Advocate General just after pronouncing the judgment the Court accepted that Section 3 as modified by the Court would be implemented for Standards I and VI from academic year 2010-2011, provided the Board fixed th norms before 15-5-2010."
His contention has been endorsed by Shri Boboy Potsangbam, the learned counsel appearing for the petitioners in WP(C) No.482 of 2017 and in addition thereto, he has submitted that the order dated 06-02-2017 passed by this Court in WP(C) No.7 of 2017 had attained finality and since it was not challenged by the respondents before the appropriate forum, the respondents and in particular, the respondent No.2 was bound to comply with it without questioning its correctness. Reliance has been placed by him in Food Corporation of India Vs, S.N. Nagarkar, (2002) 2 SCC 475, the Hon'ble Supreme Court held:
"15. Learned counsel appearing on behalf of the appellant submitted that this was a case where notional promotion and seniority was given to the respondent. In such a case the employee concerned is entitled to the pay scale of the promotional post only with effect from the date he joins the post and not from the date of his promotion. He sought to rely on two judgments of this Court reported in: State of Haryana v. O.P. Gupta and Paluru Ramkrishnaiah v. Union of India. On the other hand counsel for the respondent submitted that this is not a case where this Court is called upon to consider the submission urged on behalf of the appellant. In the instant case, the writ petition filed by the respondent was allowed by judgment and order dated 6-5-1994 passed in Civil Writ Petition No. 4983 of 1993. That order attained finality as it was not appealed from. In the execution proceedings, the appellant cannot go beyond the order passed by the Court in the writ petition and, therefore, what has to be considered is whether the High Court was right in holding that in terms of the order of the Court dated 6-5-1994 passed in Civil Writ Petition No. 4983 of 1993, the respondent is entitled to the arrears of pay and allowances with effect from the date of promotions. If the answer is in the affirmative, the question whether such relief ought to have been granted cannot be agitated in the execution proceedings. We find considerable force in the submission urged on behalf of the respondent. In these proceedings it is not permissible to go beyond the order of the learned Judge dated 6-5-1994 passed in Civil Writ Petition No. 4983 of 1993. The execution application giving rise to the instant appeal was filed for implementing the order dated 6-5-1994 and in such proceedings, it was not open to the appellant either to contend that the judgment and order dated 6-5-1994 was erroneous or that it required modification. The judgment and order aforesaid having attained finality, has to be implemented without questioning its correctness. The appellant therefore, cannot be permitted to contend in these proceedings that the judgment and order dated 6-5-1994 was erroneous inasmuch as it directed the appellant to pay to the respondent arrears of salary with effect from the dates of promotion, and not from the dates the respondent actually joined the promotional posts."
He has relied upon the decision in Hindustan Construction Co. Ltd. & anr. Vs. Gopal Krishna Sengupta & ors., (2003) 11 SCC 210 also wherein it has been held that the order dated 6-11-1997 has become final. Once such a relief has been refused and the refusal has attained finality, judicial propriety requires that it should not be allowed to be reopend. He has further relied upon the decision in India Household and Healthcare Ltd. Vs. LG Household and Healthcare Ltd., (2007) 5 SCC 510, the Hon'ble Supreme Court held:
"16. The said issue is pending consideration before the Madras High Court. Not only the parties to the agreement but also those officers who have negotiated on behalf of the respective companies are also parties therein. LG Corporation which is the owner of the LG logo is also a party therein. Therein, an order of injunction had been passed. In terms of the said order of injunction, the applicant herein was prohibited from taking any action in terms of the said agreement which would include the arbitration clause also. The order dated 21-1-2006 has become final. No appeal has been preferred thereagainst. The applicant could have filed an appropriate application for modification of the order of injunction which it did not choose to do. The doctrine of comity or amity requires a court not to pass an order which would be in conflict with another order passed by a competent court of law. The courts have jurisdiction to pass an order of injunction not only under Order 39 Rule 2 of the Code of Civil Procedure but also under Section 151 thereof.
A court while exercising its judicial function would ordinarily not pass an order which would make one of the parties to the lis violate a lawful order passed by another court."
On the issue, Shri Kh, Tarunkumar has added one more decision of the Hon'ble Supreme Court rendered in Manharlal (dead) by LRs Vs. Ugrasen (dead) by LRs and ors., (2010) 11 SCC 557 wherein it has been held:
"24. In Mulraj v. Murti Raghunathji Maharaj this Court considered the effect of action taken subsequent to passing of an interim order in its disobedience and held that any action taken in disobedience of the order passed by the Court would be illegal. Subsequent action would be a nullity.
In All Bengal Excise Licensees' Assn. v. Raghabendra Singh this Court held as under: (SCC p. 387, para 28)
"28. ... a party to the litigation cannot be allowed to take an unfair advantage by committing breach of an interim order and escape the consequences thereof. ....... the wrong perpetrated by the respondent contemnors in utter disregard of the order of the High Court should not be permitted to hold good."
In view of the above, it is evident that any order passed by any authority in spite of the knowledge of the interim order of the court is of no consequence as it remains a nullity."
As has been stated hereinabove, it is not in dispute that the recruitment process was initiated pursuant to the Notification dated 12-06-2014 issued by the Chief Electoral Officer, Manipur and in response thereto, the petitioners applied for it. The written test was held wherein the petitioners were found to be successful and consequently, they participated in viva voce test but before the result thereof could be declared, the Election Commission of India directed the State Government to defer the finalisation of the process till the completion of the election. According to the petitioners, despite such a direction being issued by the Election Commission of India, the Additional Chief Electoral Officer, Manipur issued a Notification dated 20.10.2016 for appointment, on regular basis, of Data Entry Operators followed by a Notification dated 25.11.2016 announcing the date of written test which was held 06.12.2016 and the result thereof was declared on the same date. The Data Entry Proficiency Test was held on 07.12.2016 and the result thereof was also declared on the same day. This conduct of the respondents has probably prompted some of the petitioners herein to approach this court by way of a writ petition being WP(C) No. 7 of 2017 wherein an affidavit-in-opposition dated 30.01.2017 was filed on behalf of the respondents stating that the result could not be announced till the election was over. After having heard the counsels appearing for the parties and in particular, considering the stand of the State Government, the said writ petition was disposed of by this Court on 06.02.2017 with the direction to declare the result of the examination within a month after the completion of the election process. It is an undeniable fact that this court's order dated 06-02-2017 was not challenged by the respondents at all with the result that it had attained finality. The contentions of the learned counsels appearing for the petitioners have considerable force and in terms of the law laid down by the Hon'ble Supreme Court in the cases referred to hereinabove and relied upon by them, this court cannot now pass any order contrary to this Court's order dated 06-02-2017 and therefore, the respondents are duty bound to implement it. The learned Government Advocate was unable to produce any decision of the Hon'ble Supreme Court which has overruled them but he has submitted that when the new Government came into power, it examined the whole recruitment process in the light of the allegations and found many irregularities and illegalities which compelled the respondents to cancel it. Combating his contention, it has been submitted by Shri Kh. Tarunkumar that the new Government cannot change the stand taken by the previous Government, for which he has emphasised the decision of the Hon'ble Supreme Court in State of Tamil Nadu Vs. K. Shyam Sunder case (supra). On perusal of the said decision, it is correct that the new Government cannot change the decision of the earlier Government except in cases where the act done is either contrary to the statutory provisions or is unreasonable or is against the public interest. There is no material on record to show that the recruitment process was contrary to any provision of a statute or unreasonable or was against the public interest except stating in its affidavit-in-opposition that the number of candidates shortlisted and permitted for viva voce was more than five times of the vacancies notified in the advertisement and that for the oral test/ personal interview, 325 candidates as against the notified vacancies of 12 posts of AES were called for which is more than 5 times of vacancies. The State Government may be right to that extent but this point can no longer be said to be available with it in the teeth of the order dated 06-02-2017 passed by this court which has attained finality. The State Government is now left with no option but to comply with the order dated 06-02-2017. In view of the above, the first issue is answered in the negative.
[8] After the first issue having been decided in the negative, this court proposes to deal with the second issue as to whether the declaration of result will be confined to the number of posts notified in the advertisement or to the total vacancies as has been projected by the State Government. It is well settled that no appointment can be made beyond the advertised number of posts, as the law having been laid down by the Hon'ble
Supreme Court in a catena of decisions, some of which may be referred to hereinbelow. In Secretary, A.P. Public Service Commission Vs. B. Swapna & ors., (2005) 4 SCC 154, the Hon'ble Supreme Court held:
"10.There are two principles in service laws which are indisputable. Firstly, there cannot be appointment beyond the advertised number and secondly norms of selection cannot be altered after the selection process has started. In the instant case 15 posts were to be filled up. The vacancies in the different zones were as follows:
Zone IV ST 1
Zone III BC-A 1
Zone V BC-C 1
Fourteen vacancies were indented on 14.4.1997. Obviously, they were not existing vacancies on the date of advertisement i.e. 8.1.1995. The selection list was operative till 1.7.1997.
The 14 vacancies which were indented on 14.4.1997 were as follows:
Zone III BC 'A' - 1, OC - 1
Zone IV ST - 1, OC - 2
Zone V BC 'C' - 1, SC - 1, BC 'D' - 1, OC - 3
Zone VI SC - 1, OC - 1, BC 'D' - 1."
A similar view has been taken by the Hon'ble Supreme Court in Mukul Saikia & ors. Vs. State of Assam & ors., (2009) 1 SCC 386, the para 33 of which is as under:
"33. At the outset it should be noticed that the select list prepared by APSC could be used to fill the notified vacancies and not future vacancies. If the requisition and advertisement was only for 27 posts, the State cannot appoint more than the number of posts advertised, even though APSC had prepared a select list of 64 candidates. 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 fact that evidently and admittedly the names of the appellants appeared in the select list dated 17-7.2000 below the persons who have been appointed on merit against the said 27 vacancies, and as such they could not have been appointed in excess of the number of posts advertised as 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 meant for direct candidates in violation of quota rules. Therefore, the appellants are not entitled to claim any relief for themselves. The question that remains for consideration is whether there is any ground for challenging the regularisation of the private respondents."
In Rakhi Ray & ors. Vs. High Court of Delhi & ors., (2010) 2 SCC 637, the Hon'ble Supreme Court held:
"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 from and such a deviation is permissible only after adopting policy decision based on some rationale", otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, is not permissible in law. (Vide Union of India v. Ishwar Singh Khatri, Gujarat State Dy. Executive Engineers' Assn. v. State of Gujarat, State of Bihar v. Secretariat Asstt. Successful Examinees Union 1986, Prem Singh v. Haryana SEB and Ashok Kumar. v. Banking Service Recruitment Board)."
The above law laid down in Rakhi Ray case, has been followed in State of Orissa Vs. Rajkishore, (2010) 6 SCC 777 and K. Lakshmi Vs. state of Kerala & ors., (2012) 4 SCC 115.
In Kulwinder Pal Singh & anr. Vs. State of Punjab & ors., (2016) 6 SCC 532, the Hon'ble Supreme Court held:
"10. It is fairly well-settled that merely because the name of a candidate finds place in the select list, it would not give him indefeasible right to get an appointment as well. The name of a candidate may appear in the merit list but he has no indefeasible right to an appointment (vide Food Corporation of India v. Bhanu Lodh, All India SC & ST Employees' Assn. v. A. Arthur Jeen and UPSC v. Gaurav Dwivedi .
In Manoj Manu v. Union of India, it was held that (SCC p. 176, para 10) merely because the name of a candidate finds place in the select list, it would not give the candidate an indefeasible right to get an appointment as well. It is always open to the government not to fill up the vacancies, however such decision should not be arbitrary or unreasonable. Once the decision is found to be based on some valid reason, the court would not issue any mandamus to the government to fill up the vacancies. As noticed earlier, because twenty-two other candidates were declared successful by the Supreme Court pertaining to the selection of the years 1998, 1999, 2000 and 2001 as Civil Judges (Junior Division), they were to be accommodated, as rightly resolved by the Administrative Committee in the meeting dated 6-7-2011. The three resultant vacancies of the year 2007-2008 stood consumed with the joining of the said seventeen candidates and the same could not be filled up from the select list of that year. The decision of the Administrative Committee observing that the three resultant vacancies stood consumed is based on factual situation arising there and cannot be said to be arbitrary."
In Anurag Kumar Singh & ors. Vs. State of Uttarkhand & ors., (2016) 9 SCC 426, the Hon'ble Supreme Court held:
"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 19-9-2009."
[9] The fact that the law has been settled by the Hon'ble Supreme Court is not denied by the learned counsels appearing for the petitioners and all that they have submitted, is that an exception has been carved out by the Hon'ble Supreme Court in the law itself. In support of their contention, they have relied upon the decision rendered by the Hon'ble Supreme Court in Prem Singh Vs. State of Haryana, (1996) 4 SCC 319 wherein the Board decided to fill up 62 posts of Junior Engineer by direct recruitment, for which an advertisement was published inviting applications. The Selection Committee recommended the names of 212 candidates. The Board considering the latest vacancy position, decided to fill up 147 posts but the Chief Engineer could appoint on 138 candidates.
Some of the candidates who were not selected/ appointed and one person who became eligible soon after the last date for receiving applications challenged the selection/ appointment by filing writ petitions. One of the issues which is relevant for this court, was whether it was open to the Board to prepare a list 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.The High Court held that the Board committed a breach of the equality clause contained in Article 14 and 16 of the Constitution because it was not fair and open to the Board to take into consideration 85 more posts which became available after the date of the advertisement while preparing the select list and making appointments. When the matter came up before the Hon'ble Supreme Court, it held:
"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 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."
On the facts of that case, the Hon'ble Supreme Court held that as the Board could have taken into account not only the actual vacancies but also the vacancies which were likely to arise because of retirement etc. by the time the process was completed, it would not be just and equitable to invalidate all the appointment made on posts in excess of 62. In the special facts and circumstances, the Hon'ble Supreme Court held that it did not think it proper to invalidate the appointment made on those 25 additional posts but the appointments made by the Board on posts beyond 87 were held invalid.
[10] Admittedly, the case of the petitioners is that the recruitment process was initiated for filling up 12 posts of Assistant Election Supervisor, and other posts which are not relevant for this case, and while the recruitment process was in progress, the State Cabinet took a decision for creation of 43 posts of Assistant Election Supervisor, for which an order dated 03-10-2015 was issued by the Chief Secretary, Manipur. Before the completion of the recruitment process, another 12 vacancies arose due to retirement of some incumbents who were working as Assistant Election Supervisor in the Department of Election. Therefore, the prayer in the writ petitions is to direct the respondents to declare the results of the examination in respect of 67 posts. It may be noted at this juncture that while carving an exception, the Hon'ble Supreme Court has observed that the court may mould the relief in such a manner as to strike a just balance between the interest of the State and the interest of the persons seeking public employment and that what relief should be granted in such cases would depend upon the facts and circumstances of each case. Despite the observation being made by it, the Hon'ble Supreme Court had declared the appointments made beyond 76 as invalid, meaning thereby that the appointments made only against the posts advertised and the posts which arose because of death, retirement etc. were valid. In the present case, the number of posts advertised was 12 and another 12 posts arose due to retirement and therefore, in terms of the decision rendered in Prem Singh case (supra), the result can be declared only in respect of 24 posts. So far as 43 posts which were created while the recruitment process was going on, are concerned, there is no material on record to show that there was an urgent need of them except that the Department was to be strengthened and in other words, there was no any exceptional circumstance which warranted appointment against the newly created 43 posts. Similar pattern of creating posts while the process of recruitment was going on and declaring results thereof accordingly, was being followed by the State Government in respect of all the direct recruitments which were carried out, prior to the election, in many Departments. Article 16 of the Constitution provides for equal opportunity in matters relating to public employment while Article 14 mandates that the Government or its instrumentalities ought to act fairly and reasonably. If 43 posts are to be filled up from amongst the only candidates who have participated in the present recruitment process, the persons who became eligible after the
last date of advertisement will be denied equal opportunity as envisaged under Article 16 of the Constitution. A mere policy decision taken by the State Government cannot take away the right, in this manner, as envisaged under Article 16 of the Constitution. This needs to be kept in view for the reason that in a small State like Manipur, such recruitment does not take place every year, rather once in some/ many years and moreover, a direct recruitment is to be held only when the ban on direct recruitment is lifted by the State Government, from time to time, keeping in mind the urgent and unavoidable need which is not there in the present case.
[11] For the reasons stated hereinabove, the above writ petitions are allowed in part and the impugned order dated 12-07-2017 is quashed and set aside with the direction that the result of the recruitment process in respect of the post of Assistant Election Supervisors shall be declared within a month from the date of receipt of a copy of this judgment and order confining to 24 posts-12 posts as notified plus 12 posts which arose due to retirement, death etc. of the incumbents. There shall be no order as to costs.