Krishna Mohan Singh And Others vs State Of U.P. And Others
2015 Latest Caselaw 1361 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										A.F.R.
 
										Reserved
 

 
Case :- WRIT - A No. - 39973 of 2011
 
Petitioner :- Krishna Mohan Singh And Others
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Siddharth Khare, Ashok Khare
 
Counsel for Respondent :- C.S.C.,Ayank Mishra,R.K. Mishra,Sandeep Kumar Srivastava
 

 
Hon'ble Manoj Kumar Gupta,J.

1. Whether the vacancies in the reserved categories, if remain unfilled in a general recruitment because of non joining of the selected candidates are to be treated as "unfilled vacancies" within the meaning of Section 3 (2) of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 19941 as amended, so as to warrant filling up such posts under a special recruitment drive, is the question mooted for consideration before the Court. Certain ancillary issues regarding right of the petitioners whose names find place in the merit list of candidates, who have qualified the written test and the interview, in a special recruitment drive, but were not ultimately selected, because of filling up of all advertised posts in that category, and the relief to which the petitioners are entitled to, are also subject matter of consideration.

2. The Electricity Service Commission, the third respondent issued an advertisement no.1/ESC/2006 on 19.04.2006 inviting applications for filling up 1021 posts of Junior Engineer (Apprentice) (Electrical), out of which 95 posts were reserved for Scheduled Castes, 38 posts for Scheduled Tribes and 309 posts for O.B.C. candidates (hereinafter referred to as 'General Recruitment 2006'). Pursuant thereto, the selections were made, but the unfilled vacancies numbering 70 (OBC-55; ST-15) were re-advertised on 20.8.2007 by an advertisement no.B-7/ESC/2007 by the third respondent for being filled up under a special recruitment drive (hereinafter referred to as 'Special Recruitment 2007'). The petitioners, who are 17 in number, participated in the Special Recruitment 2007 against 55 backlog posts reserved for OBC candidates. A merit list under the Special Recruitment 2007 was published on 1.9.2008. The petitioners were placed between serial no.55 to 75 (excluding serial no.71) in the merit list. The 55 posts reserved for OBC category candidates in the Special Recruitment 2007 were filled up by offering appointment to the candidates from serial no.1 to 54 and to the candidate at serial no.71 in the merit list, who, apart from being a candidate of OBC category, was given the benefit of horizontal reservation under the freedom fighter category. Out of 15 posts reserved for ST, only 4 could be filled up and the 11 posts remained vacant because of non availability of suitable candidates.

3. At this juncture, it is relevant to note that for the General Recruitment 2006, result was declared on 10.10.2007, followed by issuance of appointment orders on 5.11.2007, whereunder, the selected candidates were to join upto 27.1.2008. Later on, the joining time was extended upto 11.2.2008. Even after extension of the joining time, as many as 21 selected candidates did not join. The case of the petitioners is that these 21 posts are unfilled backlog of OBC category, and in view of Section 3(2), these were required to be filled up by a special recruitment drive. It is urged that the petitioners, whose names find place immediately below those of the selected candidates in the Special Recruitment 2007 were entitled to be offered appointment against these 21 posts. However, without considering the claim of the petitioners for appointment against these posts, the third respondent issued a fresh advertisement on 26.2.2011. It was a combined recruitment drive for filling up 468 posts of JE (Trainee) Electrical apart from other posts, under a general recruitment, and for 11 unfilled backlog of ST category, under a special recruitment drive. The breakup of these posts is as under :-

JE (Trainee) Electrical

Total vacant posts

SC

ST

OBC

General

486+11

55+0

18+11

50+0

4. It is urged that the advertisement though mentions that it includes unfilled backlog vacancies of 2007 selection, but it fails to notify 21 unfilled posts of General Recruitment 2006, as backlog vacancies. Rather, these vacancies were wrongly included in the 50 posts reserved for OBC category, under the general recruitment, which is contrary to Section 3(2) of the Act which prohibits inclusion of backlog vacancies of reserved category in a general recruitment. It is urged that the representation filed by the petitioners had been wrongly rejected by the third respondent by impugned order dated 25.4.2011 holding that these vacancies cannot be treated to be backlog vacancies. In the opinion of the the third respondent, only such vacancies can be treated to be backlog vacancies which had remained vacant on account of non availability of suitable candidates. Since for these 21 posts, selections were duly made, suitable candidates were available and were offered appointment, therefore these cannot be treated to be unfilled vacancies of the last general selection, nor were required to be filled by a special recruitment drive.

5. The petitioners have approached this Court for quashing of the order dated 25.4.2011 passed by the Secretary of the third respondent; for quashing advertisement no.2/ESC/2011 dated 26.2.2011 in so far as it pertains to 21 posts of Junior Engineer (Apprentice) (Electrical), which were the subject matter of General Recruitment 2006 and for a direction to grant appointment to the petitioners on the basis of their merit position as secured in the selection held in pursuance to the Special Recruitment : 2007 and to permit them to function as Junior Engineer (Apprentice) (Electrical) under the U.P. Power Corporation Ltd. and to pay their regular salary and other emoluments.

6. Sri Ashok Khare, Senior Advocate appearing on behalf of the petitioners submitted that the reasoning given in the impugned order dated 25.4.2011 for not treating the 21 unfilled vacancies of OBC of the General Recruitment 2006 as unfilled backlog vacancies is totally illogical and contrary to Section 3 (2) of the Act. In the submission of the learned counsel for the petitioners, unfilled vacancies are those which were advertised, the entire process of selection was completed but despite being subjected to selection process, the vacancy remained unfilled. A vacancy could remain unfilled for several reasons. It could be when suitable candidates are not available or on account of non joining of the selected candidates. In either of the two eventualities, the vacancy remains an 'unfilled vacancy'. Such a vacancy can only be filled under a special recruitment drive as contemplated by Section 3(2). In this regard, reliance has been placed on the decision of the Supreme Court in State of Uttar Pradesh and others Vs. Sangam Nath Pandey and others2. It is submitted that these 21 vacancies ought to have been included in the Special Recruitment Drive : 2007 in which the petitioners participated. It is further submitted that since the petitioners are just below the selected candidates in the merit list and, therefore, they are entitled to be offered appointment against these posts. It is urged that these 21 posts were wrongly included in the advertisement issued in the year 2011. These vacancies should be excluded from the advertisement dated 26.2.2011 and should be filled up by offering appointment to the petitioners.

7. On the other hand, learned counsel for the respondents submitted that in pursuance of the General Recruitment 2006, appointment letters were issued to the selected candidates and they were required to submit their joining at Lucknow in two batches. The first batch of candidates from serial no.1 to 500 were required to join the training between 26.11.2007 to 25.12.2007 and the second batch of candidates between 29.12.2007 to 27.1.2008. The Chief Engineer Hydle, by letter dated 17.1.2008 extended the date of joining of 36 selected candidates of the first batch upto 10.2.2008 and again extended the date of joining of 79 selected candidates by letter dated 1.2.2008 upto 10.2.2008. The selection process, which started on 19.04.2006 attained finality on 10.02.2008 i.e. the last date of joining for the selected candidates. Before issuing the advertisement for Special Recruitment Drive 2007, the existing backlog vacancies in all categories upto July 2007 were duly ascertained. The General Manager (P & M) (Urban-3) by letter dated 14.8.2007 provided detailed information to the third respondent regarding existence of backlog vacancies in all categories in U.P. Power Corporation upto the month of July, 2007. According to it, in the category of Junior Engineer (Mechanical/Electrical), there were 2421 sanctioned posts, out of which there was no backlog vacancy in SC category, there were 15 backlog vacancy in ST category and a backlog of 55 vacancy in OBC category. On the basis of the aforesaid information, 55 vacancies of Junior Engineer (Electrical) in OBC category and 15 vacancies in ST category, totaling 70, were advertised on 20.8.2007 for being filled up under a Special Recruitment Drive (Special Recruitment : 2007). The written examinations were held on 29.6.2008 and the candidates, who qualified the written examination, were interviewed between 20.8.2008 to 22.8.2008. A merit list was prepared and recommendations were made for appointment of 55 OBC candidates against all 55 vacancies in the OBC category. In SC category, only 4 candidates were found suitable and accordingly recommendations for their appointment were made, leaving unfilled 11 vacancies in ST category. It is urged that on 20.8.2007, when the advertisement for Special Recruitment 2007 was issued, there was no occasion to anticipate and include 21 vacancies due to non joining of 21 selected OBC candidates under the General Recruitment 2006. The picture regarding the non-joining of the selected candidates became clear only after 10.2.2008 (the last extended date for joining). It is further urged that the petitioner cannot claim any right for inclusion of these 21 posts in the Special Recruitment 2007 as these posts were never advertised. The mere fact that the name of the petitioners find place in the final list, does not confer any vested right in them to claim appointment against posts which were not advertised. It is further submitted that as regards the advertisement issued in the year 2011, the petitioners have not participated in the selection and have no right to challenge the same. In para 34 of the counter affidavit, by placing reliance on Annexure-6, the final select list, it is sought to be suggested that in the selection held in the year 2007 for filling up 55 backlog vacancies, these 21 posts of Junior Engineer were also included. As such, the very basis of the claim of the petitioners is sought to be negated.

8. These rival submissions fall for consideration.

9. In order to determine whether 21 posts of OBC category candidates, which remained unfilled because of non joining of the selected candidates in pursuance of the General Recruitment 2006, were to be treated as "unfilled vacancies" within the meaning of Section 3(2), it is necessary to have a look at the relevant provisions of the Act.

"2 (d) "year of recruitment" in relation to a vacancy means a period of twelve months commencing on the first of July of a year within which the process of direct recruitment against such vacancy is initiated.

3. Reservation in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes:- (1)  In public services and posts, there shall be reserved at the stage of direct recruitment, the following percentage of vacancies to which recruitments are to be made in accordance with the roster referred to in sub-section (5) in favour of the persons      belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens -
 
(a) in the case of Scheduled Castes          Twenty-one percent;
 
(b) in the case of Scheduled Tribes           Two percent;
 
(c) in the case of Other Backward  Classes
 
     of citizens                                           Twenty seven percent;
 
	Provided that the reservation under clause (c) shall not apply to the category of Other Backward Classes of citizens specified in Schedule II :
 
	Provided further that reservation of vacancies for all categories of persons shall not exceed in any year of recruitment fifty percent of the total vacancies of that year as also fifty percent of the cadre strength of the service to which the recruitment is to be made;
 

(2) If, in respect of any year of recruitment any vacancy reserved for any category of persons under sub-section (1) remains unfilled, such vacancy shall be carried forward and be filled through special recruitment in that very year or in succeeding year or years of recruitment as a separate class of vacancy and such class of vacancy shall not be considered together with the vacancies of the year of recruitment in which it is filled and also for the purpose of determining the ceiling of fifty percent reservation of the total vacancies of that year notwithstanding anything to the contrary contained in sub-section (1) ;

(3) Where a suitable candidate belonging to the Scheduled Tribes or Scheduled Castes, as the case may be, is not available in a recruitment either under sub-section (1) or sub-section (2) the vacancy reserved for him may be filled in such recruitment, from amongst the suitable candidates belonging to the Scheduled Castes or Scheduled Tribes, as the case may be, and as soon as a vacancy earmarked in the losses referred to in sub-section (5) for the Scheduled Castes or Scheduled Tribes, as the case may be, arises such person belonging to Scheduled Castes or Scheduled Tribes, as the case may be, shall be adjusted against such vacancy of his own category.

(5) The State Government shall for applying the reservation under sub-section (1), by a notified order, issue a roster comprising the total cadre strength of the public service or post indicating therein the reserve points and the roster so issued shall be implemented in the form of a running account from year to year until the reservation for various categories of persons mentioned in sub-section (1) is achieved and the operation of the roster and the running account shall, thereafter, come to an end, and when a vacancy arises thereafter in public service or post, the same shall be filled from amongst the persons belonging to the category to which the post belongs in the roster.

(6) If a person belonging to any of the categories mentioned in sub-section (1) gets selected on the basis of merit in an open competition with general candidates, he shall not be adjusted against the vacancies reserved for such category under sub-section (1).

(7) If, on the date of commencement of this Act, reservation was in force under Government Orders for appointment to posts to be filled by promotion, such Government Orders shall continue to be applicable till they are modified or revoked."

10. The U.P. Public Services (Reservation for Scheduled Casts, Scheduled Tribes and other Backward Classes) Act, 1994 was enacted following the judgment of the Supreme Court in Indra Sawhney and others Vs. Union of India and others3. It seeks to provide for the reservation in public services and posts in favour of the persons belonging to the Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens and for matters connected therewith or incidental thereto. Section 3 of the Act provides for reservation in favour of persons belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes. The vacancies are to be filled in accordance with the roster provided under sub section (5) of Section 3. The second proviso to sub-section (1) of Section 3 envisages that reservation of vacancies for all categories of persons shall not exceed in any year of recruitment, 50% of the total vacancies of that year, as also 50% of the cadre strength of the service to which the recruitment is to be made. Sub section (2) of Section 3, which is relevant to the matter in issue, stipulates that if in respect of any year of recruitment, any vacancy reserved for any category of persons under sub section (1) remains unfilled, such vacancy shall be carried forward and be filled through special recruitment in that very year or in the succeeding year or years of recruitment as a separate class of vacancy. It further provides that such class of vacancy shall not be considered together with the vacancies of the year of recruitment in which it is filled and also for the purpose of determining the ceiling of 50% of reservation of the total vacancies of that year notwithstanding anything to the contrary contained in sub section (1).

11. The Supreme Court in the case of State of U.P. and others Vs. Sangam Nath Pandey and others (supra) has explained the import of sub section (2) of Section 3 of the Act in the following terms:-

"In any recruitment year, it may happen that the candidates belonging to the reserved category may not be available to fill the vacancies falling to the share of the particular reserved category. In such circumstances, sub-section (2) of Section 3 enables the State to carry forward the unfilled vacancy/vacancies to be filled through special recruitment as a separate class of vacancy. Such class of vacancy can not be intermingled with the vacancies of the year of recruitment in which it is filled. It also can not be counted for the purpose of determining of ceiling of 50 per cent reservation of the total vacancies of that year. The provision contained in sub-section (2) is, notwithstanding anything to the contrary contained in sub-section (1), which provides for a total 50% reservation for the categories of Scheduled Castes, Scheduled Tribes and Other Backward Classes, i.e., 21%, 2% and 27% respectively."

12. The controversy before the Supreme Court was whether a post reserved for a particular category of candidate according to 100 point roster can be treated to be a backlog vacancy to warrant its filling up under a special recruitment drive even though it had never been subjected to a recruitment process in the first instance as contemplated under Section 3 (1) of the Act. The Supreme Court quoted with approval the following observations made by the Division Bench of this Court in Special Appeal No.1202 of 2006:-

".....the backlog vacancies with reference to sub-section (2) of Section 3 of U.P. Act 4 of 1994 as amended by U.P. Act 1 of 2002 necessarily mean those vacancies within the reserved category which were subject-matter of an earlier advertisement but remained unfilled because of non- availability of suitable candidates within the reserved category after selection. It is only in respect of such vacancies that the procedure qua backlog vacancies can be adopted. We may further clarify that any vacancy in the reserved category (however old it may be), if it had not been advertised earlier and was not a part of an earlier process of selection which was completed, the same cannot be termed to be a backlog vacancy."

13. The Supreme Court ultimately concluded by laying down as under:-

"33. A harmonious construction of sections 2(d), 3(2) and 3(5) would lead to the conclusion, as stated by the Division Bench, that only those vacancies can be declared backlog vacancies, within the reserved category, which were subject-matter of advertisement but remained unfilled because of non-availability of suitable candidates, within the reserved category, after selection. It is only in respect of such vacancy that the procedure qua backlog vacancy can be adopted. Any vacancy, which has not been subjected to a complete process of selection, even though vacant, cannot be treated as a backlog vacancy.

34. Section 2(d) defines a period of 12 months commencing on 1st of July of a year as a year of recruitment for calculation of the number of vacancies. Section 3(1) gives the different percentages of vacancies, which are reserved for different categories of Backward Class candidates. The percentage of vacancies reserved under Section 3(1) had to be filled according to the roster mechanism provided under sub-section 5 of Section 3. Section 2(d) would tend to indicate that the State was required to determine the number of available vacancies in every year of recruitment. Once the vacancies are determined, necessary requisition would have to be sent to the Public Service Commission for initiating the process of selection."

14. Since the Supreme Court was considering the validity of a special recruitment drive qua the posts which though reserved for backward class candidates, were never subjected to a general selection and in that context it held that the posts which had never been subjected to a general selection, cannot be subject matter of a special recruitment drive. It is only those vacancies that can be declared backlog vacancies, within reserved category, which were subject matter of advertisement but remained unfilled because of non availability of suitable candidates. The dictum of law laid down by the Supreme Court is that only such vacancies, which have been subject matter of advertisement and selection but remained vacant in the end because of some reason or the other, which could be treated as "unfilled vacancies" and can be subjected to a special recruitment drive and not those which had never been a subject matter of advertisement or selection in the past. The Supreme Court, while observing that only such vacancies "which remained unfilled because of non availability of suitable candidates within the reserved category after selection" was, as noted above, making observations in the context of the controversy before it. The Supreme Court never meant to lay down that unfilled vacancies would only be such vacancies which remained unfilled because of non availability of suitable candidates. Rather, the principle of law which emerges from the aforesaid judgment of the Supreme Court is that for a vacancy to be treated as a backlog vacancy, it should have been subject matter of advertisement but had remained unfilled for some reason or the other. It is wholly immaterial that it remained vacant because of unavailability of suitable candidate or on account of non-joining of the selected candidates. In either of the two cases, it remains an '"unfilled vacancy" This also follows from a plain reading of sub section (2) of Section 3 of the Act.

15. In view of the above discussion, I am of the firm opinion that the stand taken by the third respondent in the impugned order dated 25.4.2011 that only such vacancies against which suitable candidates were not available, can be treated as backlog vacancies, is manifestly incorrect and cannot be sustained.

16. However, this itself would not entitle the petitioners to the reliefs claimed in the writ petition unless they could succeed in showing that there exists a vested and an indefeasible right in their favour for being granted appointment merely because their name figures in the merit list of Special Recruitment 2007 immediately below the name of the selected candidates of the OBC category.

17. Before pondering over the aforesaid issue, it would be apposite to deal with a somewhat vague and inconsistent stand taken by the respondents in para 34 and 43 of their counter affidavit. Therein, it is sought to be contended that 21 unfilled vacancies of OBC category from General Recruitment 2006, were included in the Special Recruitment, 2007. Such an assumption has been made by placing reliance on Annexure CA-1, which is a detailed information regarding backlog vacancies upto July, 2007 and Annexure-6 to the writ petition, which is category-wise merit list of interviewed candidates under the Special Recruitment drive of the year 2007. However, these documents do not show that 21 unfilled vacancies of OBC category from General Recruitment 2006 were included in the Special Recruitment 2007. On the contrary, it had been the categorical stand of the third respondent in its order dated 25.4.2011 that these 21 vacancies which remained unfilled because of non joining of the selected candidates, could not be treated as backlog vacancies, nor can be subjected to a special recruitment drive, as in the opinion of the third respondent, only such vacancies which have remained unfilled because of non availability of suitable candidates, could be treated to be backlog vacancies. Thus, it is not possible to accept the plea taken in Paragraphs 34 and 43 of the counter affidavit that these 21 vacancies were included in the Special Recruitment 2007.

18. Apart from it, in the counter affidavit filed on behalf of the second and third respondents, a categorical stand has been taken that at the time of issuance of the second advertisement on 20.8.2007 (Special Recruitment 2007), it was not known that in future 21 more vacancies would come into existence because of non joining of selected candidates. Consequently, there was no occasion to include these 21 vacancies while issuing the advertisement dated 20.8.2007. For convenience of reference, paragraph 26 of the counter affidavit, wherein such plea has been taken, is reproduced below:-

"26. That the clear picture which emerges from the aforesaid discussion is that when the selection process of Ist Advertisement dated 19.04.2006 was going on and before it gets completed by 10.02.2008 the selection process of Backlog vacancies through IInd Advertisement started w.e.f. 20.08.2007. Before the publication of IInd Advertisement dated 20.08.2007 all the existing Backlog vacancies upto the month of July, 2007 was included in this Advertisement as per Annexure No.1 of this counter affidavit i.e. (55 OBC + 15 ST). The selection process of Ist Advertisement dated 19.04.2006 was not completed by the time, when the IInd Advertisement for Backlog selection dated 20.08.2007 was published. Thus there was no question or occasion to anticipate and include the 21 alleged vacancies due to non joining of 21 selected OBC candidates of Ist Advertisement (for 1021 posts) prior to completion of its selection process i.e. on 10.02.2008 (the last date for the joining of the selected candidates)."

19. Thus, it is amply borne out from the record that 21 backlog vacancies, which had resulted on account of non joining of the selected candidates under the OBC category in pursuance of advertisement dated 19.04.2006 (General Recruitment 2006), were not included in the advertisement dated 20.8.2007 (Special Recruitment 2007).

20. I now revert to the consideration of the issue regarding right of the petitioners to claim appointment against these 21 unfilled vacancies.

21. The petitioners are at serial no.55 to 75 (excluding the candidate at serial no.71) in the merit list of the Special Recruitment 2007. Against 55 OBC category posts advertised on 20.8.2007, the third respondent had recommended the name of OBC candidates from serial no.1 to 54 and 71 for being appointed. The candidate at serial no.71, though lower in the merit was granted appointment by applying horizontal reservation meant for dependents of freedom fighters. The petitioners have no grievance regarding these recommendations and appointments. However, their case is that as they are placed below or in between the selected candidates and, therefore, they should be recommended for appointment against 21 unfilled backlog OBC category posts of the General Recruitment 2006.

22. Indisputably, these 21 posts, as held above, were not subject matter of the advertisement dated 20.8.2007 (Special Recruitment 2007). It is apparently for the reason (as mentioned by the second and third respondents in para 26 of their counter affidavit) that by that time, it was not known that the candidates selected against these posts would not join. The respondents have admittedly included only the backlog vacancies upto the month of July, 2007 while issuing the advertisement dated 20.8.2007 (Special Recruitment 2007). The exact position regarding non filling of 21 posts of OBC category candidates from the posts advertised under the General Recruitment 2006 became clear only after 10.2.2008, when the last date for joining of the selected candidates expired. Prior to that, it was not possible to anticipate about the occurrence of these 21 vacancies because of non joining of the selected candidates. The question which thus arises is whether the petitioners can claim any right of appointment against the posts, which were never advertised merely for the reason that their name figures in the merit list immediately below the selected candidates.

23. A similar claim was made by unsuccessful candidates, who have appeared in a selection on the post in the Cadre of District Judges in Delhi Judiciary Service. The claim made was on the ground that 13 vacancies came into existence between 29.2.2008 to 23.5.2008 i.e. during the pendency of the selection process, which could also have been filled up from the select list. A Division Bench of three Judges of the Supreme Court in the case of Rakhi Ray and others Vs. High Court of Delhi and others4 after re-visiting the entire law on the subject regarding right of wait-listed candidates or candidates whose names appear in the merit list below the selected candidates, to seek appointment against the future vacancies, concluded as under:-

"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.

13. In the instant case, as 13 vacancies of the general category had been advertised and filled up, the selection process so far as the general category candidates is concerned, stood exhausted and the unexhausted select list is meant only to be consigned to record room."

24. For coming to such conclusion, their Lordships of the Supreme Court placed reliance on several earlier judgments of the Apex Court, as is evident from para 7 of the report, which is as under:-

"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 & 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 & Ors. AIR 1996 SC 976)."

25. In Surendra Singh Vs. State of Punjab5 the Supreme Court held as under:-

"It is in no uncertain words that this Court has held that it would be an improper exercise of power to make appointments over and above those advertised. It is only in rare and exceptional circumstances and in emergent situation that this rule can be deviated from. It should be clearly spelled out as to under what policy such a decision has been taken. Exercise of such power has to be tested on the touchstone of reasonableness."

26. In a more recent judgment in the case of Raj Rishi Mehra and others Vs. State of Punjab and another6 the Supreme Court reiterated with approval the law in the case of Surendra Singh (supra) and in Rakhi Ray (supra) and rejected the claim for appointment against the unfilled posts of reserved categories in a recruitment held to the Punjab Civil Service (Judicial Branch).

27. Thus, it is now almost settled that vacancies cannot be filled up over and above the vacancies advertised. The recruitment of candidates in excess of the notified vacancies is a denial of the right of those who acquire eligibility in future. It is held to be violative of their fundamental rights under Articles 14 and 16 (1) of the Constitution.

28. In the instant case, it is amply clear that on the date of advertisement published for holding Special Recruitment 2007 i.e. 20.8.2007, the selection process for 21 posts which remained unfilled because of non joining of selected candidates, was still under way. At that juncture, it was not possible to anticipate that 21 posts would remain vacant in future. As such, the respondents had not committed any error in not including these 21 posts while issuing the advertisement dated 20.8.2007 (Special Recruitment 2007). The stipulation in the advertisement that the vacancy as notified can be increased or decreased as per the requirement does not mean that the vacancies coming into existence after the issuance of the advertisement are to be included and names recommended from the merit list prepared thereunder. In Rakhi Ray's case (supra) the Supreme Court has held that filling up the vacancies over the notified vacancies is neither permissible, nor desirable for the reason that it amount to improper exercise of power and only in rare and exceptional circumstances 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 rational. In the instant case, the respondents have chosen not to take any policy decision for filling up future vacancies in pursuance of the special recruitment drive. The petitioners whose fate was known to them on publication of the merit list on 1.9.2008, chose to remain silent until the year 2011, when the representation filed by them came to be rejected by the third respondent. Similarly, one Ajay Kumar Gupta in connected Writ Petition No.11399 of 2011 approached the Court in February, 2011 just before the issuance of the advertisement dated 25.2.2011. In the aforesaid background facts, this Court finds no illegality in the action of the second and third respondents in refusing to recommend the name of the petitioners for appointment against 21 unfilled posts on basis of their merit position in the selection held in pursuance to advertisement dated 20.8.2007 (Special Recruitment 2007).

29. It may be noted that under sub section (2) of Section 3, unfilled vacancies are required to be carried forward and be filled through special recruitment drive in that very year or in succeeding year or years of recruitment. It was not necessary to have filled these posts in that very year. Consequently, the law does not confer any corresponding right in favour of the candidates who had appeared in a Special Recruitment 2007 to contend that all backlog vacancies albeit coming into existence after the issuance of the advertisement, should be filled up by the candidates appearing in such selection. But at the same time, these vacancies being backlog vacancies were required to be filled up by a special recruitment drive to be held in a subsequent year or years of recruitment.

30. The above discussion brings this Court to the next limb of the argument of the learned counsel for the petitioners i.e. relating to the challenge laid to the advertisement dated 26.2.2011. It is noticeable that the advertisement has not been challenged as a whole. The only contention of the petitioners is that these 21 unfilled vacancies being backlog of the General Recruitment 2006 should have been filled up by giving appointment to the petitioners, on the basis of their merit position in the Special Recruitment 2007. For the said reason, it is urged that these posts should be excluded from the impugned advertisement dated 26.2.2011, and to this extent, the advertisement should be quashed. The claim of the petitioners' for their appointment on the basis of their merit position in the select list of Special Recruitment 2007 already stands repelled. In such view of the matter, the challenge to the advertisement dated 26.2.2011, on such ground, cannot be sustained.

31. The advertisement has not been challenged on any other ground. This is apparently for the reason that the petitioner had not appeared in the selection, in pursuance of the advertisement and were conscious of their limitations. Thus, the questions whether these 21 unfilled vacancies should have been advertised as backlog vacancies, or in not doing so, there was infraction of the second proviso to Section 3(1) or any other provision of law, were neither canvassed before the Court, nor is there any occasion for the Court to go into these questions. These could be subject matter of consideration in an appropriate case, where a direct challenge is laid to the advertisement in question.

32. Moreover, none of the petitioners have appeared in the selection pursuant to advertisement dated 26.2.2011. As noted above, the advertisement dated 26.2.2011 is not under challenge, on any other ground. None of the candidates, who have participated in the selection in pursuance of the advertisement dated 26.2.2011 or have remained unsuccessful, are before this Court. In such view of the matter, this Court is of the opinion that it would not be in the interest of justice to interfere with the recruitment made on the basis of advertisement dated 26.2.2011 at the instance of the petitioners herein.

33. In view of the discussion made above, writ petition lacks merit and is dismissed.

(Manoj Kumar Gupta, J.)

Order Date :-21.7.2015

SL