Delhi High Court
Bharat Bhushan Bhasin vs Lt. Governor And Anr. on 14 October, 2015
$~63 & 64.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 9443/2015
% Judgment dated 14th October, 2015
SHIVAJI ANAND ..... Petitioner
Through : Mr.K.K. Sharma, Sr. Adv. with Mr.D.K.
Sharma and Mr.Ankur Sharma, Advs.
versus
LIEUTENANT GOVERNOR OF DELHI & ORS ..... Respondents
Through : Ms.Mahu Kalra, Adv. for Mr.Peeyoosh
Kalra, ASC (Civil) GNCTD, for
respondent no.1.
Mr.Rajiv Bansal, Ms.Arpita and
Mr.Anukrit Gupta, Advs. for respondent
no.2.
Mr.Vikas Mahajan, CGSC and Mr.Rohan
Gupta, Adv. for respondent no.3/DoPT.
+ W.P.(C) 8285/2015
BHARAT BHUSHAN BHASIN ..... Petitioner
Through : Mr.Kirti Uppal, Sr. Adv. with
Ms.Wamika Trehan, Mr.H.S. Kohli and
Mr.Harvinder Singh, Advs.
versus
LT. GOVERNOR & ANR. ..... Respondents
Through : Mr.Anuj Aggarwal, Adv. for respondent
no.1.
Mr.Rajiv Bansal, Ms.Arpita and
Mr.Anukrit Gupta, Advs. for respondent
no.2.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G.S.SISTANI, J (ORAL)
1. Arguments in both these matters have been addressed by learned counsel
for the parties at the admission stage itself.
2. With the consent of counsel for both the parties, present writ petitions are
taken up for hearing and they are being disposed of by a common order.
3. By the present writ petitions, the petitioners seek an appropriate writ in
the nature of mandamus directing the respondents to appoint the
petitioner(s) against the vacant posts of Delhi Higher Judicial Services
(DHJS), to be selected from amongst the Bar, as were at the time of
completion of selection process, commenced vide notification dated
28.12.2013.
4. For the sake of convenience, facts in the case of W.P.(C) 8285/2015 are
being noticed.
5. As per the petitions, the petitioners are practising Advocates. On
28.12.2013, an advertisement was published by respondent no.2 inviting
applications from practising Advocates for filling up 14 posts (10 posts in
the General category, 01 posts in the Scheduled Caste category and 03
posts in Scheduled Tribes category) in Delhi Higher Judicial Service
under direct recruitment from the Bar. Preliminary examination was held
on 6.4.2014. Both the petitioners qualified in the preliminary
examinations and, thus, became eligible for the written examination
(Mains). In the month of April, 2014. Based on a decision rendered by a
Division Bench of this Court in W.P.(C) 983/2014, titled as Nishant S.
Diwan v. High Court of Delhi through Registrar General & Anr., one
post of General category was reserved for Physically Handicapped
candidate, thereby reducing the total number of posts advertised for
General category from 10 to 09. A written examination (Mains) was held
on 9.8.2014 wherein both the petitioners were declared successful. The
petitioner in W.P.(C)8285/2015 secured sixth position in General category
while the petitioner in W.P.(C)9443/2015 secured eighth position. The
petitioners appeared before the interview board constituted by respondent
no.2 for screening of the candidates for selection to the post of District
Judge against vacancies as on 19.5.2015.
6. It is the case of the petitioners that on 14.7.2015 an affidavit was filed by
respondent no.2 in Civil Appeal No.1867/2006, titled as Malik Mazhar
Sultan v. U.P. Public Service Commission & Ors., pending before the
Supreme Court of India, deposing that respondents in the selection
process of District Judges were filling up 14 vacancies. The final result of
DHJS was declared on 28.7.2015 wherein the name of petitioner in
W.P.(C)8285/2015 secured 11th rank while the petitioner in
W.P.(C)9443/2015 secured 13th rank. Nine candidates for General
category were selected in the months of July/August, 2015. Since the
names of petitioners did not figure in the first nine candidates, they made
their representations to respondent no.2 for considering their candidature
for the post of District Judges in the aforestated selection process. Since
no response to the aforesaid representations have been received, the
petitioners have been forced to knock the doors of this Court for justice.
7. Mr.Sharma and Mr.Uppal, learned senior Advocates appearing on behalf
of the petitioners, have relied upon the order passed by the Supreme Court
in the case of Malik Mazar Sultan (supra), more particularly para 7, in
support of their submissions with regard to fixing up of a detailed
calendar with respect to conducting of examinations twice a year and
filling up vacancies. Para 7 of the order reads as under:
"7. For filling up of vacancies in the cadre of District Judges,
accepting the proposal to which none has objected, except in the
manner hereinafter noticed, we direct as under :-
A. For filling of vacancies in the cadre of District Judge in respect
of
(a) Twenty five per cent vacancies to be filled by direct
recruitment from the Bar; and
(b) Twenty five per cent by promotion through limited
competitive examination of Civil Judges (Senior Division)
not having less than five years of qualifying service.
S.NO. Description Date
1. Number of vacancies to be 31st March
notified by the High Court.
Vacancies to be calculated
including
a) existing vacancies
b) future vacancies that may
arise within one year due to
retirement,
c) future vacancies that may
arise due to elevation to the High
Court, death or otherwise, say
ten per cent of the number of
posts,
d) vacancies arising due to
deputation of judicial officers to
other department may be
considered as temporary
vacancy.
2. Advertisement inviting 15th April
applications from eligible
candidates
3. Last date for receipt of 30th April
application
4. Publication of list of eligible 15th May
applicants List may be put on the
website
5. Despatch/issue of admit cards to 16th May to
the eligible applicants 15th June
6. Written Examination Written 30th June
examination may be a) objective
questions with multiple choice
which can be scrutinized by the
computer; and b)
subjective/narrative
7. Declaration of results of written 16th August
examination a) Result may be
put on the website and also
published in the newspaper b)
The ratio of 1:3 of the available
vacancies to the successful
candidates be maintained
8. Viva Voce 1st to 7th
September
9. Declaration of final select list 15th
and communication to the September
appointing authority a) Result
may be put on the website and
also published in the newspaper
b) Select list be published in
order of merit and should be
double the number of vacancies
notified c) Select list shall be
valid till the next select list is
published
10. Issue of appointment letter by 30th
the competent authority for all September
existing vacant posts as on date
11. Last date for joining 31st October
B.
C.
D......
14. The select list prepared for all categories of officials shall
be valid till the next select list is Published.
15. We further direct that ten percent of unforeseen vacancies
would be in respect of sanctioned posts and not vacancies
occurring in a particular year."
8. It is submitted that as per the directions issued in the case of Malik Mazar
Sultan (supra) all the existing/anticipating vacancies are to be filled up
irrespective of the fact whether those vacancies have been advertised or
not until the time the process comes to an end. It is, thus, contended that
since the vacancies are available, irrespective of the fact that only 14
vacancies were advertised, all the vacancies should be filled up.
9. Mr.Bansal, learned counsel appearing on behalf of respondent no.2,
submits that the question, sought to be raised by the petitioners herein, is
no longer res integra. After the directions were passed by the Apex Court
in the case of Malik Mazar Sultan (supra), a batch of writ petitions, being
W.P.(C)Nos.1435/2011, 1701/2011, 1702/2011, 2156/2011 & 2317/2011,
were filed in the Delhi High Court. The said writ petitions were placed
before the Full Bench of Delhi High Court. Based on the decision
rendered by the Three Judges Bench of the Supreme Court of India in the
case of Rakhi Ray And Others v. The High Court of Delhi & Others,
Civil Appeals No.1134-1135/2010, all the aforesaid writ petitions have
been dismissed by the Full Bench of the Delhi High Court.
10. Mr.Bansal has placed reliance on Rakhi Ray And Others (supra), a
decision rendered by a Three Judges Bench of the Supreme Court of
India, more particularly paras 9 to 15, 25 and 26, in support of his
submission that the said controversy has been put to rest in view of the
authoritative pronouncement by the Supreme Court of India to the effect
that any appointment made beyond the number of vacancies advertised is
without jurisdiction, being violative of Articles 14 and 16 (i) of the
Constitution of India and further any appointment made would be a
nullity and inexecutable in the eyes of law.
11. Paras 9 to 15, 25 and 26 read as under:
"9. 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 & 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).
10. In Surinder Singh & Ors. v. State of Punjab & Ors. AIR 1998
SC 18, this Court held as under:
"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
appointment, 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 touch-stone of reasonableness....It is not a matter of
course that the authority can fill up more posts than
advertised."
(Emphasis added)
11. Similar view has been re-iterated in Madan Lal v. State of J &
K & Ors. AIR 1995 SC 1088;Kamlesh Kumar Sharma v. Yogesh
Kumar Gupta & Ors. AIR 1998 SC 1021; Sri Kant Tripathi v. State
of U.P. & Ors. (2001) 10 SCC 237; State of J & K v. Sanjeev
Kumar & Ors. (2005) 4 SCC 148;State of U.P. v. Raj Kumar
Sharma & Ors. (2006) 3 SCC 330; and Ram Avtar Patwari & Ors.
v. State of Haryana & Ors. AIR 2007 SC 3242).
12. In State of Punjab v. Raghbir Chand Sharma & Ors. AIR 2001
SC 2900, this Court examined the case where only one post was
advertised and the candidate whose name appeared at Serial No. 1
in the select list joined the post, but subsequently resigned. The
Court rejected the contention that post can be filled up offering the
appointment to the next candidate in the select list observing as
under:-
"With the appointment of the first candidate for the only post
in respect of which the consideration came to be made and
select list prepared, the panel ceased to exist and has outlived
its utility and at any rate, no one else in the panel can
legitimately contend that he should have been offered
appointment either in the vacancy arising on account of the
subsequent resignation of the person appointed from the
panel or any other vacancies arising subsequently."
13. In Mukul Saikia & Ors. v. State of Assam & Ors. AIR 2009 SC
747, 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, the
appointments beyond the number of posts advertised would amount
to filling up future vacancies" and said course is impermissible in
law.
14. 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.
15. 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.
25. In view of above, we do not find any force in the submissions
that the High Court could have filled vacancies over and above the
vacancies advertised on 19.5.2007, as per the directions issued by
this Court in Malik Mazhar Sultan's case (supra). More so, no
explanation could be furnished by Shri Ranjit Kumar, learned
senior counsel for the appellants as to why the appellants could not
challenge the advertisement itself, if it was not in conformity with
the directions issued by this court in the said case.
26. It has further been submitted on behalf of the appellants that the
Delhi High Court vide its judgment and order dated 3.10.2008 had
issued directions to offer appointment to two persons implementing
the said judgment in Malik Mazhar Sultan's case (supra) whose
names appeared in select list at SI. Nos. 14 and 15, and, as the High
Court had implemented the said directions, the appellants could not
be treated with such hostile discrimination. Undoubtedly, the
directions had been issued to fill up two vacancies over and above
the vacancies notified. However, that part of the judgment is not
under challenge before us. In such a fact situation, it is neither
desirable nor permissible in law to make any comment on that. 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
appointment."
12. Mr.Bansal has also raised another objection with regard to the
maintainability of these writ petitions on the ground that the
advertisement in question itself has not been challenged by either of the
two petitioners. Mr.Bansal contends that the petitioners took a calculative
risk and finding themselves not selected amongst the first nine candidates,
they have chosen to file the present writ petitions.
13. Mr.Sharma and Mr.Uppal, learned senior counsel for the petitioners,
submit to the contrary. It is submitted that the petitioners were not in the
knowledge of the number of vacancies, which were in existence at the
time when the vacancies were advertised, and, thus, they could not have
challenged the advertisement till such time there rights were adversely
affected.
14. We have heard learned counsel for the parties and considered their rival
submissions. We may note that similar issues had come up for
consideration before this Court, inter alia, in the cases of Salil
Maheshwri v. The High Court of Delhi and Others, W.P.(C)3426/2013;
Nidhi Mutreja v. Registrar General, Delhi High Court & Others,
W.P.(C)3392/2013; Maneesh Kumar Shukla v. The High Court of Delhi
& Ors., W.P.(C) 3428/2013); Jyoti Grover v. The High Court of Delhi
And Ors, W.P.(C) 3737/2013; Eti Solanki v. The High Court of Delhi &
Ors., W.P.(C)4152/2013; and Legha Deepak Ranjit Singh v. The High
Court of Delhi And Ors., W.P.(C)6263/2013, wherein identical questions
were raised and the said writ petitions were rejected.
15. We may also note that when a batch of writ petitions including
W.P.(C)No.1435/2011, titled as Sanjeet Singh (supra), the following,
amongst other grounds, were raised:
"8. Certain General Category candidates who found themselves at
the merit position 14, 15 and 16 and further down the list filed
various writ petitions in this Court which were decided on
03.10.2008. Inter alia, it was urged by the writ petitioners therein
that 13 anticipated vacancies were not taken into account by the
Delhi High Court and this was in breach of the mandate issued by
the Supreme Court in the decision reported as Malik Mazhar
Sultan(3) to the effect that while initiating the selection process,
apart from the existing vacancies, anticipated vacancies had to be
taken note of and that the selection had to be completed to fill up
not only the existing but the anticipated vacancies which were
likely to fall due in the vacancy year. A Division Bench of this
Court found that when the vacancy position was determined by this
Court, it could be easily worked out that 3 vacancies would come
into existence. Thus limited relief was granted directing that only
three vacancies need to be filled up and mandamus was thus issued
that the candidates at merit position 14, 15 and 16 be issued letters
of offer appointing them in the cadre of Delhi Higher Judicial
Service."
16. It would also be useful to reproduce paras 11, 12, 20, 22, 24, 25 and 28 of
the aforesaid judgment.
"11. The Supreme Court noted its prior decision in Malik Mazhar
Sultan(3) case, as also the fact that it was delivered on 04.01.2007
and that the vacancies were advertised by the Delhi High Court on
19.05.2007, i.e. conscious of the directions issued by the Supreme
Court in Malik Mazhar Sultan (3) case, in para 7 of the
pronouncement, reference was made to the decisions reported as
1992 Supp (3) SCC 84 Union of India Vs. Ishwar Singh Khatri,
1994 Supp (2) SCC 591 Gujarat State Dy. Executive Engineers
Assn. Vs. State of Gujarat, (1994) 1 SCC 126 State of Bihar Vs.
Secretariat Asst. Successful Examinees Unnion 1986, (1996) 4
SCC 319 Prem Singh Vs. Haryana SEB and (1996) 1 SCC 283
Ashok Kumar Vs. Banking Service Recruitment Board and ratio
was discussed in the subsequent paras. The legal position culled out
in para 12 by the Court was that it would be impermissible to make
appointments beyond the number of vacancies advertised and the
reason for the said opinion was that the same would violate Article
14 and 16 (1) of the Constitution of India. It was concluded in the
summarization of the law that any such act would be a nullity,
inexecutable and unenforceable in law. In para 22, the Supreme
Court also observed that the advertisement in question was not
challenged on the ground that it was not in conformity with the
directions issued by the Supreme Court in Malik Mazhar Sultan(3)
case.
12. With respect to the mandamus issued by the Delhi High Court
Division Bench that 3 determinable anticipated vacancies should be
filled up, a direction which would be contrary to the law declared
by the Supreme Court in Rakhi Ray‟s case, in para 23 of its
opinion, the Supreme Court held that since said part of the decision
of the Division Bench was not challenged before it, it would neither
be desirable nor permissible in law for the Court to make any
comment on that.
20. Noting the factual content required to be noted to answer the
fourth question referred to us for our opinion, it be noted that on
20.4.2010 the Supreme Court took up for consideration not only
CA No.1867/2006 but also pending applications in WPC
No.1022/1989 All India Judges Association & Ors. Vs. UOI & Ors.
and passed a composite order. The Court listed WPC No.1022/1989
at Sl.No.1 in the list of cases in which the composite order was
passed and while so doing, the Supreme Court noted the
information given by the Delhi High Court pertaining to not
advertising all vacant posts due to paucity of court accommodation
and other infrastructure. It be highlighted by us further that, as
against information given by the Delhi High Court that only 113
posts were vacant, it got typed in the order that 216 posts were
vacant and pertaining to the information given that only 60 posts
were advertised to be filled up, it got erroneously typed that 64
posts were advertised to be filled up. We hasten to add that the
number is not relevant, what is relevant is the fact that the Delhi
High Court informed the Supreme Court that it was not filling up
all existing vacant posts on account of paucity of court rooms, and
the Supreme Court simply noted said fact and did not pass any
directions to the Delhi High Court to notify and fill up all the
vacancies.
22. Issue raised in Rakhi Ray‟s case was concerned with
anticipated vacancies and not with existing vacancies and in that
sense one may rush at first blush to answer the first question by
replying that Rakhi Ray‟s case has no application in the instant
case since the issue raised herein is whether notwithstanding
existing vacancies being 113 only 60 could be advertised to be
filled up, but one aspect of Rakhi Ray‟s case would be applicable
to the instant case. The ratio of law declared therein that it is
impermissible to fill up vacancies in excess of those notified would
apply to the facts of the instant case notwithstanding the factual
difference in the thematic setting of Rakhi Ray‟s case and the
instant case in the context of the theme therein being the violation
of the direction in Malik Mazhar Sultan(3) case that 10%
anticipated vacancies had to be reckoned along with the existing
vacancies while inviting applications and the theme of the instant
case being 53 existing vacancies being ignored. The other aspect of
the matter covered by Rakhi Ray‟s case which would also be
applicable to the instant case would be the same i.e. in the absence
of challenge to the notification inviting applications by restricting
the number to 60, it would be impermissible to question recruitment
being restricted to only 60%. We may highlight that in Rakhi Ray‟s
case the Supreme Court emphasized the effect of the advertisement
in question not being challenged; the effect of the lack of challenge
being noted in para 22 of the said decision.
24. We see no conflict for the reason while issuing the directions in
Malik Mazhar Sultan (3) the Supreme Court was not deciding any
lis and was issuing general directions in exercise of its power under
Article 142 of the Constitution of India and thus it is apparent that
the Supreme Court was not laying down any special service
jurisprudence applicable to the judiciary in India. Indeed, if the
Supreme Court had so intended, it would have been expressly so
stated. The anxiety of the Supreme Court was to fill up judicial
posts all over India keeping in view the docket explosion in Courts
and delays in effectuating judicial appointments. It is in this context
that the general directions issued by the Supreme Court have to be
understood and appreciated. The fact that the Supreme Court drew
out an exception for the State of Sikkim as well as the one time
exception for the Delhi High Court is recognition by the Supreme
Court that if exigencies of the situation so demands, exceptions
could be carved out to the intent and purport of the directions
issued by the Supreme Court.
25. Since we have held that Malik Mazhar Sultan (3) did not intend
and has not laid down any special service jurisprudence pertaining
to the judiciary in India, the question of recognizing and then
resolving the conflict does not arise. We terminate our discussion
while answering the second question referred to the Full Bench by
highlighting that in Rakhi Ray‟s case (supra) the Supreme Court
duly noted the directions issued by the earlier Bench of the
Supreme Court in Malik Mazhar Sultan (3) and yet in spite thereof
applied the law of the land and the recognized service jurisprudence
to answer the issues raised in Rakhi Ray‟s case. The Supreme
Court recognized in Rakhi Ray‟s case that notwithstanding
directions pertaining to anticipated vacancies issued in Malik
Mazhar Sultan (3) case, the Constitution of India pertaining to
service jurisprudence impinging upon Article 14 and 16(1) of the
Constitution of India had to be applied and could not be ignored. It
additionally assumes importance to note that the decision in Rakhi
Ray‟s case is by a Three Judge Bench and the directions issued in
Malik Mazhar Sultan (3) case is by a Two Judge Bench.
28. To the fourth question, the answer would be self evident. The
Supreme Court which was monitoring the continuous mandamus
issued by it in the All India‟s Judges‟ Association‟s case (supra)
and the Malik Mazhar Sultan (3) case (supra) was expressly
informed by the Delhi High Court that, notwithstanding 113
existing vacancies in the cadre of the Delhi Judicial Service, only
60 were being filled up and the reason for the same being paucity of
court rooms was specifically stated. In spite thereof, no direction
was issued by the Supreme Court compelling the Delhi High Court
to come what may, the direction issued in Malik Mazhar Sultan (3)
case be complied with. The silence by the Supreme Court after
taking cognizance of the said information provides a self answer to
the query. Law is that where there is an obligation to speak or
direct, silence would mean acquiescence or acceptance of the view
point of the other, and thus the fact that the Supreme Court in its
order dated 20.04.2010 simply noted said information given by the
Delhi High Court but passed no directions would mean, if not
express, a tacit recognition by the Supreme Court that service
jurisprudence absolves an employer not to fill up existing posts if
there are good and justified grounds for not doing so."
17. The purpose of quoting extensively the judgment rendered by the Full
Bench in Sanjeet Singh (supra) is that identical grounds, which are
sought to be urged before us today, have already been considered by the
Full Bench and the same were rejected primarily based on the judgment
rendered by the Supreme Court of India in the case of Rakhi Ray (supra).
18. Having regard to the fact that the petitioners at the first opportunity
available could have ascertained the existing/anticipating number of
vacancies which they did not, thus they have not challenged the
advertisement. Besides that the Supreme Court in the case of Rakhi Ray
& Ors. (supra), has categorically held that the vacancies over and above
the vacancies advertised cannot be filled up. Resultantly, we do not find it
necessary to issue notice. Both the writ petitions are without any merit
and the same are dismissed accordingly. No costs.
CM APPL.17465/2015 (STAY) IN W.P.(C) 8285/2015
CM APPL.9443/2015 (STAY) IN W.P.(C) 22069/2015
19. Applications stand dismissed in view of the order passed in the writ
petitions.
G.S.SISTANI, J
SANGITA DHINGRA SEHGAL, J
th
October 14 , 2015
msr
