IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION (S/S) NO. 1027 of 2010 Bal Krishna and others. …………..Petitioners. Versus State of Uttarakhand and others ……Respondents. Present: Mr. Bhupesh Kandpal, Advocate for the petitioners. Mr. N.P. Sah, Standing Counsel for the State of Uttarakhand. Mr. B.D. Kandpal, Advocate for the Public Service Commission. Mr. R.S. Bisht, Advocate for interveners. Hon’ble Sudhanshu Dhulia, J.(Oral) Heard learned counsel for the petitioners Sri Bhupesh Kandpal, learned Standing Counsel for the State of Uttarakhand Sri N.P. Sah, learned counsel for the Public Service Commission Sri B.D. Kandpal and the learned counsel for the interveners Sri R.S. Bisht. The petitioners by means of the present writ petition have challenged the selection process by the State Public Service Commission, Uttarakhand (from hereinafter referred to as the Commission) and its subsequent implementation to the posts of Junior Engineers (Civil) in Public Works Department, State of Uttarakhand (from hereinafter referred to as PWD). The principal contention of the petitioners is that in its advertisement dated 7th February, 2007 (Annexure 2 to the writ petition), inter alia, the Commission had invited applications from eligible candidates for 70 posts of Junior Engineer (Civil) in PWD, State of Uttarakhand. The last date of submitting the applications for the said posts was 27th February, 2007. Subsequently, the petitioners were told that though advertisement was made for only 70 vacancies, the Commission, all the 2 same, has selected 258 candidates for the posts of Junior Engineer (Civil). The petitioners allege that this is in clear violation of the advertisement and the conditions laid down therein inasmuch as once 70 vacancies have been notified, selection could be made against only 70 vacancies and any selection made over and above the notified vacancies is per se illegal. The Commission and the State of Uttarakhand have also filed their counter affidavits. What is clear from their counter affidavit is that they admit that in the advertisement dated 7th February, 2007 only 70 such vacancies (as contended by the petitioners) were advertised. However, these vacancies were existing in the year 2005. Between 2005 and 12th July, 2006, the structure of PWD in the State of Uttarakhand was finalized and it was then known that the actual vacancies of Junior Engineer (Civil) in PWD in the State of Uttarakhand will be 258 and not 70, as earlier calculated, consequently vide letter dated 30th March, 2007, the State Government requested the Commission to make selections for 258 vacancies of Junior Engineer (Civil) instead of 70 and the earlier requisition made should be considered to be amended to that extent. Consequent to the said request made by the State Government, the Commission made selection for 258 posts! Learned counsel representing the respondents have also pointed out the condition of the advertisement, namely, condition no. 4, which states that in an extraordinary situation the posts could be increased or decreased. Learned counsel for the petitioners while challenging the selection process has relied upon a 3 number of decisions of the Hon’ble Apex Court. One of the decision relied upon by the learned counsel for the petitioners and on the basis of which, the interim order was earlier granted by this Court is Rakhi Ray and others Vs. High Court of Delhi reported in (2010) 2 SCC 637. Undoubtedly, the Hon’ble Apex Court in the said judgment had reiterated only the settled legal position that the 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.” Therefore, in view of the above settled legal position in case the petitioners are able to prove that the vacancies on which selection has taken place by the Commission actually fell vacant subsequent to the date of advertisement, it would undoubtedly be illegal and in violation of the settled legal principles. All the same this is not the case. Firstly the respondents have categorically stated relying upon the letter dated 30th March, 2007 (Annexure CA-1 to the counter affidavit of the State) that these vacancies had come up on 12.7.2006 much before the date of advertisement (the date of advertisement being 7th February, 2007) i.e. after the State Government finally determined that the new structure of PWD requires filling of 258 vacancies of Junior Engineer (Civil). In other words, these 258 vacancies were existing even before 2006. This is a fact not denied by the petitioners. 4 This Court also cannot loose sight of the fact that we are dealing with an extraordinary situation here where the Court has been called upon to adjudicate the matter pertaining to the post re-organisation period. At this juncture, it must be stated that the State of Uttarakhand was carved out from the erstwhile State of Uttar Pradesh by an Act of Parliament known as U.P. Re- organisation Act, 2000 (from hereinafter referred to as the Reorganisation Act). The State of Uttarakhand actually came into existence on the appointed day i.e. 9th November, 2000. Subsequent to it under Section 73 of the Reorganisation Act, it becomes the duty of the Central Government to allocate the Government Servants to the State of Uttarakhand. It is common knowledge that this exercise has consumed considerable time. Therefore both the erstwhile State of Uttar Pradesh as well as newly created State of Uttarakhand, were actually busy determining the number of vacancies which would fall in their State depending upon the allocation made by the Central Government. Only consequent to this, the State would be in a position to determine its structure. Therefore in these unusual and extraordinary circumstances, there is nothing unusual for the State Government to have come to the conclusion later that the actual vacancies in PWD are 258 and not 70. Since these vacancies were existing prior to the date of advertisement, no prejudice has been caused to a person who was not even qualified for making an application in response to the advertisement dated 7th February, 2007. Another case law cited by the counsel for the petitioners is Prem Singh and others Vs. Haryana State Electricity Board and others reported in (1996) 4 SCC 319, where the above position has been reiterated 5 inasmuch as it has been held that once vacancies have been notified, selection cannot take place of any such vacancies, which have come up after the date of notification. Same is the position stated by the Hon’ble Apex Court in State of Orissa and another Vs. Rajkishore Nanda and others reported in (2010) 6 SCC 777. All the same, all these cases are cases where selection was made over and above the vacancies which were advertised but the excess vacancies were vacancies which has fallen vacant or had come up subsequent to the notified date of the advertisement. This is, however, not the case presently with which this Court is dealing with, inasmuch as though in the present case as well the selections were made in excess to the number of vacancies advertised, yet the excess vacancies on which the selection was made were already existing. As such, first and foremost the petitioners do not have a locus standi to challenge the selection process being made by the Commission, inasmuch as on the date of advertisement i.e. 7th February, 2007 the petitioners were not even qualified for appointment to the post of Junior Engineer (Civil) and rightly they had not responded to the advertisement as we have already seen the vacancies which were added over and above the notified vacancies in the advertisement were vacancies which were already existing prior to the date of advertisement. Therefore, no prejudice has been caused to the petitioners. Furthermore, as it has already been referred above, even if this Court over looks the aspect of the locus standi of the petitioners and examines the pure merits of the case, then again this Court comes to the same conclusion and finds no fault in the selection process inasmuch as the selection process is being done 6 on the vacancies, which were existing prior to the date of advertisement. As such, this Court finds no merit in the writ petition and the writ petition is dismissed. This Court has been informed by the learned counsel representing the Commission that as of now the selections have already taken place, but in view of the interim order passed by this Court on 29.10.2010, the result has not been announced. Interim order dated 29.10.2010 is hereby vacated. No order as to costs. (Sudhanshu Dhulia, J.) 5.5.2011 Rathour