Civil Writ Petition No. 10429 of 1992 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 10429 of 1992 Date of decision: 22.9.2009 Ram Datt ...Petitioner Versus State of Haryana and another ...Respondents CORAM: HON'BLE MR. JUSTICE S.D.ANAND. Present: None for the petitioner. Mr. Surinder K. Bishnoi, Deputy Advocate General, Haryana ***** S.D.ANAND, J. The name of the petitioner, who was holder of a Bachelor of Science degree in Agriculture, was recommended by the Subordinate Staff Services Selection Board, Haryana (hereinafter referred to as “the Board) for appointment to the post of Agriculture Development Officer (hereinafter referred to as 'the ADO'), applications wherefor had been invited vide advertisement No.7/77-9/79 1/83, 4/86 and 1/88. Recommendation (qua his name) made by the Board for the appointment aforementioned was communicated to the petitioner vide letter dated 29.6.1990 of the Board. In that list, the name of the petitioner figured at Sr. No. 106. The respondents issued appointment letters to other selected candidates but no appointment letter came to be issued to the petitioner. Respondent no.2 informed the petitioner that he could not be appointed as “there is no vacant post of A.D.O. In Haryana against which he (petitioner) can be appointed.” Qua that averment, the plea raised by the petitioner is that there are more than Civil Writ Petition No. 10429 of 1992 -2- **** 50 posts of ADOs which are lying vacant in the various districts of Haryana. The petitioner thereby claimed a legal right of appointment against one of more than 50 posts of ADOs which are lying vacant. In similar circumstances, some of the candidates whose name had been recommended by the Board but in whose favour appointment letters had not been issued by the Department, filed Civil Writ Petition No.4307 of 1987. The petitioners therein called into question the plea of Haryana Government “that since the Govt. has taken a decision not to appoint candidates beyond serial No.22 of list of 149 candidates recommended by the Board, the petitioners did not have any cause of action.” The writ petition was allowed by a Division Bench of this Court which held that exigencies of service do require filling up of the post. Action of the authorities withholding the issuance of appointment letters was held violative of Article 16 of the Constitution of India. The State of Haryana filed Letters Patent Appeal which was dismissed by the LPA Bench of this Court. In the matter of recommendation of names for appointment to the post of Statistical Assistants, few recommended candidates also filed Civil Writ Petition No.10020 of 1990. That writ petition was also allowed in terms of the decision aforementioned in Civil Writ Petition No.4307 of 1987. The respondents contested the relief sought by averring as under:- The name of the petitioner appears at Sr. No.106 in the list of candidates recommended for appointment. However, candidates upto Sr. No.104 only have been appointed out of the general category and no further appointment could be made for wants of a vacancy. It is also Civil Writ Petition No. 10429 of 1992 -3- **** averred that the requisition had been sent by the competent authority for 153 posts of ADO, out of which 79 were meant for candidates of general category. The Board recommended as many as 157 candidates. The names of only six scheduled caste candidates were recommended against the requisition of 32 posts; while 14 candidates came to be recommended against the requisition of 15 posts of backward classes. The requisition for candidates belonging to the Ex-serviceman category was for 27 posts. The Board recommended the names of 15 candidates against that category. Against that recommendation, 84 candidates of general category came to be appointed. The number of appointees from the scheduled caste, backward class category and Ex-servicemen is 5, 14 and 15 respectively. It is apparent from the above discussion that the refrain on the part of the respondents in appointing the petitioner arose only for want of a vacancy. Though the list of those recommended for appointment did include the name of the petitioner as well, the number of those recommended far exceeded the requisition of posts by the Department. It is established law that appointment in excess of the advertised vacancies cannot be made and further that appointment made in the excess of advertised vacancies are invalid inasmuch as those adversely affect the prospects of candidates who may have become eligible to apply therefor in the meantime. In short, appointments in excess of advertised vacancies are legally unsustainable. It is pertinent to notice here that precise record-based averment made by the respondents in the course of the written statement that the Board had recommended candidates far in excess of the requisition and that no vacancy is presently available against which the petitioner could be appointed was not controverted by the petitioner herein Civil Writ Petition No. 10429 of 1992 -4- **** by filing a replication. It would follow therefrom that the averment to the above effect in the course of the written statement stands uncontroverted. Apart therefrom, there is a precise averment by the respondents that the petitioner could not be appointed for want of a vacancy. It is not the plea on behalf of the petitioner that any one junior to him in the list forwarded by the Board had been appointed. No mandate can be issued to the Government to appoint a particular candidate or to fill up a particular vacancy. It is the prerogative of the Government to fill up a particular vacancy or to decide that it will not be fill up. No recommended candidate can claim appointment as of right. However, a right to claim accrues to that candidate the moment a junior to him (in the list of recommended candidates) is appointed. If that were so, the eventuality would have impelled this Court to issue direction for the appointment of the petitioner as well. However, there is not even a word in the petition that any candidate junior to the petitioner had been appointed to the post of ADO. It may be indicated, even at the cost of repetition, that even if certain vacancies are available, it is for the Government to decide whether to make appointment on those vacant posts or not. There could be variety of reasons on account whereof Government may not like to appoint the candidates recommended by the Board. The reasons for refrain in the relevant behalf could well include financial stringency too. It is only when a junior recommended candidates is appointed, that one senior to him could raise a plea of discrimination which is not so in the present case. In view of thus, of the fact that Board recommended candidates far in excess of the requisition, that no vacant post is presently available for appointment of the petitioner and further that it is not even the Civil Writ Petition No. 10429 of 1992 -5- **** plea on behalf of the petitioner that any one junior to him had been appointed, the petition is held to be denuded of merit and shall stand dismissed accordingly. September 22, 2009 (S.D.Anand) Pka Judge