IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 22ND DECEMBER 2011 / 1ST POUSHA 1933 WP(C).No. 21142 of 2010(P) -------------------------- PETITIONER(S): --------------- SHYNIJ.T.K,GED 28,S/O.RAVEENDRAN.T.K, KOVILPARAKAL HOUSE,CHERUVANNUR PO, MEPPAYUR (VIA),KOZHIKODE DISTRICT,PIN 673 524. BY ADV. SRI.P.K.IBRAHIM SMT.K.P.AMBIKA SMT.A.M.FASEENA RESPONDENT(S): --------------- 1. KANNUR UNIVERSITY REPRESENTED BY ITS REGISTRAR, KANNUR UNIVERSITY, PIN 670 567. 2. JAGADEESH.C.C.B,ASSISTANT(FINANCE BRANCH),KANNUR UNIVERSITY, PIN 670 567. 3. SMT.ANU ZACKARIA,ASSISTANT,KANNUR UNIVERSITY , UNIVERSITY CAMPUS PO, PIN 670 567. 4. SMT.LOVELY VAS.T, ASSISTANT (ADMINISTRATION BRANCH),KANNAUR UNIVERSITY, UNIVERSITY CAMPUS PO, PIN 670 567. 5. SMT.NAVYA.L, ASSISTRANT(EXAMINATION), KANNAUR UNIVERSITY,UNIVERSITY CAMPUS PO,PIN 670567 6. SMT.DIVYA K.NAIR,ASSISTANT(FINANCE BRANCH), KANNAUR UNIVERSITY,UNIVERSITY CAMPUS PO,PIN 670567 7. SMT.SINDHU.C.K, ASSISTANT (PLANNING AND DEVELOPMENT), KANNAUR UNIVERSITY,UNIVERSITY CAMPUS PO,PIN 670567 8. SMT.RENJINI.N,ASSISTANT (REGISTRAR SECTION), KANNAUR UNIVERSITY,UNIVERSITY CAMPUS PO,PIN 670567 9. SRI.SURESH.P.P,ASSISTANT(EXAMINATION), KANNAUR UNIVERSITY,UNIVERSITY CAMPUS PO,PIN 670567 10. SMT.SHEENA.M.P,ASSISTANT(EXAMINATION), KANNAUR UNIVERSITY,UNIVERSITY CAMPUS PO,PIN 670567 ADDL. RESPONDENTS: 11. JUSTIN K.JH., KALAPPURACKAL HOUSE, KADUMENI P.O., CHERUPUZHA VIA, KASARAGOD. 12. SINDHU CHANDRAN, NANDANAM, KADOOR P.O., CHERUPAZHASSY, KANNUR. 13. JYOTHISH R.C., JYOTHIS, P.O. PALAYAD, THALASSERY, KANNUR. 14. VINU KIZHAKKEVEETIL, P.O. PILICOD, KASARAGOD-671 353. 15. RENJANA S., SREESHAILAM, P.O. THIRUVANGAD, THALASSERY, KANNUR. 16. SUKUMARAN M., KALAKKARA HOUSE, KUTTIKOL P.O., CHANGALE VIA, KASARAGOD-671 541. 17. RAJESH, NR. DEEPA NURSING HOME, KOTTACHERY, KUNNUMAL, KANGANGAD, KASARAGOD. 18. JAYA K.C., K.C. HOUSE, KARIPPAL P.O., KANNUR-670 581. 19. SHYNI V.V., SARAS, NETHAJI NAGAR P.O., PADANAKKAD, KASARAGOD. 20. SHOLY N.P. PANNIYAN HOUSE, NR. TALAP MOSQUE, PALLIKKUNNU, KANNUR. 21. RESHMA RAVINDRAN, KALABHAM, P.O. KOTTAYAM - MALABAR OLAYIKKARA, KUTHUPARAMBA. 22. ANITHA K.V., CHAITHRAM, PUTHIYATHERU P.O. CHIRAKKAL, KANNUR. 23. SHEEJA V., VAYAKKAL HOUSE, MUYYAM P.O., KARIMBAM VIA, KANNUR. 24. SALINI N.K., ABHINANDANAM, CHUMAPUTHANGI P.O., MANDOOR, PIN-670501, 25. PRADEEPKUMAR G., KELAKAM, IRITTY, KANNUR. 26. VINODAN, VRINDHAVANAM, NR. RAJAS H.S. P.O. CHIRAKKAL R.S., KANNUR. 27. LISHA K., CHIRAMMAL HOUSE, P.O. PARAPPRAM, PINARAYI, KANNUR. 28. VIJAYA P., KALAKRISHNA, KOLATHIL HOUSE, PALLOTT, ANAMDASROM P.O., KANHANGAD. 29. SUNAYANA UBAID, AGED 28 YEARS, W/O. V.K. AFZAL, RESIDING AT 'ALAIN', NEAR SPINNING MILL, CHOVVGA, KANNUR DIST. 30. RANI JOSEPH, AGED 33 YEARS, W/O. ROBERT VINCENT, KOLLANNOOR, CHOVVA P.O.., KANNUR. 31. SINIMOL T. AGED 27, W/O. SABU, SAPARYA, MARAVOORMURI, NEAR NILAMEL JN., EAST KALLADA, KOLLAM. 32. TINO J., AGED 28, S/O. JUSTIN, V.J.T. BHAVAN, KOVOOR, ARINALOOR P.O., KOLLAM. (ADDL.R11 TO 28 IMPLEADED AS PER ORDER IN IA 13228/2010 DT.1.10.2010 ADDL.R29 & 30 IMPLEADED AS PER ORDER IN IA 622/20110 DT. 25.1.2011 ADDL.R31 & 32 IMPLEADED AS PER ORDER IN IA 1244/2011 DT.25.1.2011) ADV. SRI.M.SASEENDRAN,SC,KANNUR UNIVERSITY FOR R1 SRI.P.C.SASIDHARAN FOR ADDL.R11 TO R28 SRI.V.PHILIP MATHEW FOR ADDL.R29 & 30 SRI.V.E.ABDUL GAFOOR FOR ADDL.R31 & 32 SRI.A.MOHAMMED SAVAD FOR ADDL.R29 & 30 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 6/12/2011, ALONG WITH WPC NO. 36023 OF 2010, WPC NO. 11523 OF 2011 AND WPC NO. 6068 OF 2011 THE COURT ON 22/12/2011 DELIVERED THE FOLLOWING: APPENDIX EXT.P1-TRUE COPY OF NOTIFICATION DT.4.9.2008 EXT.P2(A)-TRUE COPY OF THE APPLICATION FOR INFORMATION DT.28.1.2010 EXT.P2(B)-TRUE COPY OF REPLY TO THE APPLICATION DT.15.2.2010 EXT.P3-TRUE COPY OF ORDER DT.29.4.2004 EXT.P4-TRUE COPY OF ORDER DT.8.8.2008 RESPONDENTS' EXTS: EXT.R1(A)-TRUE COPY OF EXTRACT OF THE MEETING OF THE SYNDICATE HELD ON 5.5.2008 EXT.R1(B)-TRUE COPY OF COMMUNICATION ISSUED BY THE GOVERNMENT DT.26.5.2008 EXT.R1(C)-TRUE COPY OF UNIVERSITY ORDER NO.1163/2000 EXT.R1(D)-TRUE COPY OF RELEVANT EXTRACT FROM THE RANK LIST PUBLISHED PURSUANT TO THE SELECTION PROCESS CONDUCTED AS PER EXT.P1. EXT.R11(A)-TRUE COPY OF THE RANKED LIST EXT.R11(B)-TRUE COPY OF THE RANKED LIST EXT.R11(C)-TRUE COPY OF ORDER ISSUED IN FAVOUR OF SHRI REJI P. EXT.R11(D)-TRUE COPY OF COMMUNICATION RECEIVED UNDER THE R.I. ACT. // true copy // P.S. TO JUDGE T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos.21142/2010-P, 36023/2010-C, 6068/2011-G & 11523/2011-M - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of December, 2011. JUDGMENT All these writ petitions concern a common issue regarding the filling up of the post of Assistants in Kannur University. W.P.(C) Nos.21142/2010 & 36023/2010 are filed by persons who are claiming that they are fully qualified for appointment if a fresh notification is issued by the University. In W.P.(C) Nos.6068/2011 and 11523/2011, the petitioners are candidates who have been included in the rank list published by the University for appointment to the said post. The whole dispute is whether the University can make appointment, in excess of the number of vacancies specified in the notification. 2. Ext.P1 produced in W.P.(C) No.21142/2010 is the copy of the notification issued by the University dated 4.9.2008. Against the post of Assistant, the number of vacancies shown is 45. After conducting a written test as well as interview, a rank list was published on 2.8.2010. Forty-five vacancies have been filled up by making appointments also. The contention taken by the petitioners in W.P.(C) Nos.21142/2010 and 36023/2010 WPC.21142/2010, etc. 2 mainly is that exceeding the number of vacancies notified, the University is trying to fill up further vacancies, which will deprive the right of the petitioners under Articles 14 and 16 of the Constitution of India. They contend for the position that since the exact number of vacancies have been specified in the notification, the University cannot go beyond the said limit after exhausting the vacancies notified for making further appointments. It is pointed out that there is no prescription in the notification that the vacancies notified as 45, could be varied at a later point of time, by the University and further appointments can be made in respect of any anticipated/future vacancies exceeding 45, from the same rank list. 3. Apart from the said contention, the petitioner in W.P.(C) No.21142/2010 has challenged Exts.P3 and P4 orders by which respondents 2 to 10 have been granted appointments as Assistants by way of category change. Ext.P3 is the order dated 29.4.2004 whereby respondents 2 and 3 who were holding the posts of Senior Grade Typist and Senior Grade Stenographer, were allowed category change to come over to the post of Assistant Grade II, pursuant to a decision taken by the Syndicate. Similar is the order Ext.P4, whereby respondents 4 to 10 who were also holding the posts like Senior Grade Typist, Upper Division Typist, Stenographer Grade I and Sweeper, were given category change. The contention raised WPC.21142/2010, etc. 3 is that the only method to fill up the vacancy of Assistant is by direct recruitment and therefore as the University Act or Statute do not prescribe any other mode of appointment, those orders cannot be sustained. 4. In W.P.(C) Nos.6068/2011 and 11523/2011 as already noticed, the petitioners are candidates included in the rank list published by the University. Their contention is that there are sufficient number of vacancies even now existing in the University and even as on the date of publication of the notification Ext.P1, actually there were 66 vacancies of Assistants and at least to that extent the vacancies could be filled up by the University. Their contention is that going by the decision of the Syndicate produced as Ext.P3 in W.P.(C) No.6068/2011, resolving to notify all the existing/anticipatory vacancies of all teaching and non teaching posts, it can be seen that there were more number of vacancies which were existing than those notified. Ext.P4 therein is a resolution of the Syndicate for instituting 86 numbers of non teaching posts, sanctioned by the Government as per order dated 26.5.2008. It is therefore contended that the limit provided in the notification as 45, has no basis and the decision of the Syndicate will enable the University to fill up anticipatory vacancies also. 5. In the counter affidavit filed by the University in W.P.(C) No.21142/2010, various facts have been explained. It is averred that for WPC.21142/2010, etc. 4 the post of Assistant, nearly 15000 applications were received and the written test was conducted in January, 2010. The short list was published on 3.7.2010. After interview, the rank list was published. As per the total sanctioned strength of Assistants in the University at present there are 177 and 113 regular Assistants who are in the service of the University. Therefore, 64 regular vacancies and the anticipatory/subsequent vacancies are also to be filled up from the rank list published by the University. Ext.R1(a) is the resolution dated 5.5.2008 resolving to notify all the existing/anticipatory vacancies. Ext.R1(b) is the communication dated 26.5.2008 sanctioning various posts including 45 posts of Assistants. The 45 posts of Assistants are newly sanctioned by the Government which was the number mentioned in the notification. Some more vacancies existed due to promotion to higher posts sanctioned. Thus, 66 vacancies had existed in the University even prior to the notification dated 4.9.2008. Category change was allowed to seven persons on 8.8.2008 and two physically handicapped persons were appointed in tune with the Government's scheme for regularisation of physically challenged employees appointed through Employment Exchange from 15.8.1998 to 15.8.1999. Thus, there were 57 vacancies of Assistants plus other vacancies in the cadre of Assistants which arose due to promotion/retirement, etc. in the category of Assistants. WPC.21142/2010, etc. 5 6. The stand of the University is also that they are competent to make appointment in any of the available vacancies from the rank list. Regarding the category change granted, it is mentioned that the same is not illegal. Way back in the year 2000-2001, as per Ext.R1(c) category change was allowed to one Shri Reji O.P. from the post of Typist Senior Grade to Assistant Grade II. Similarly, one Shri Jagadish and Smt. Anu Zacharia were also permitted category change on 29.4.2004 pursuant to the resolution of the Syndicate dated 24.4.2004. Respondents 4 to 10 were permitted category change to the post of Assistant Grade II in compliance with the Syndicate's decision dated 1.7.2008. All these orders were passed based on the decision of the Syndicate. The category change admissible to Government employees are applicable to the University employees also. There is no illegality in the same. Finally, it is pointed out in para 10 that the validity of the rank list is for a period of one year, which may be extended for a period of three years. 7. The contesting respondents in W.P.(C) Nos.21142/2010 and 36023/2010 vehemently opposed the contentions of the petitioners and point out that there is no legal bar for the University in filling up the remaining vacancies from the same rank list. The locus standi of the petitioners to file these writ petitions are also under dispute. It is pointed WPC.21142/2010, etc. 6 out that the writ petitions are bad for non jointer of necessary parties, as many of the persons who could secure appointment if further vacancies are filled up from the rank list, have not been impleaded. 8. Heard Shri P.K. Ibrahim, learned counsel for the petitioner in W.P.(C) No.21142/2010 and for some of the contesting respondents in W.P. (C) Nos.6068/2011 and 11523/2011, Shri A.G. Basil, learned counsel for the petitioner in W.P.(C) No.36023/2010, Shri V. Philip Mathews, learned counsel for the petitioners in W.P.(C) No.6068/2011 and for some of the contesting respondents in W.P.(C) No.21142/2010 and Shri Millu Dandapani, learned counsel for the petitioners in W.P.(C) NO.11523/2011, Shri M. Saseendran, learned Standing Counsel for the University, Shri V.E. Abdul Gafoor, some of the contesting respondents in W.P.(C) No.21142/2010 and Shri P.C. Sasidharan, learned counsel appearing for some of the respondents in W.P.(C) No.21142/2010. 9. Shri P.K. Ibrahim, learned counsel for the petitioner in W.P.(C) No.21142/2011 submitted, by relying upon the various decision of the Apex Court and this Court, that when a notification is issued specifying the number of vacancies, the same cannot be exceeded at all. It is pointed out that on making appointment to 45 vacancies, the rank list will be deemed to have been exhausted and any further vacancy can be filled up only by WPC.21142/2010, etc. 7 publishing a fresh notification. It is pointed out that there is no provision enabling the University under the University Act or the First Statutes, to fill up the vacancies arising during the currency of the rank list, from the same list. It is pointed out that the University has not provided any stipulation in Ext.P1 notification with regard to the filling up of further vacancies beyond those notified. There is no stipulation in the notification that the number notified as 45 is approximate. Therefore, when the notification itself gives due information to the candidates, the rights of persons like the petitioner will be infringed and any attempt by the University to go beyond the notified vacancies, will violate Articles 14 and 16 of the Constitution. Regarding the category change also, learned counsel submitted that the only method for filling up of the post of Assistant is by direct recruitment. Therefore, an indirect method by allowing category change cannot be resorted to. Shri Basil, learned counsel appearing for the petitioner in W.P. (C) No.36023/2010 supported these arguments by relying upon various decisions of the Apex Court and this Court. 10. The contentions raised by Shri P.C. Sasidharan, Shri M. Saseendran, learned Standing Counsel for the University, Shri Philip Mathews, learned counsel for the petitioners in W.P.(C) No.6068/2011 and Shri Millu Dandapani, learned counsel for the petitioners in W.P.(C) WPC.21142/2010, etc. 8 No.11523/2011 are that already there is a resolution by the University that existing and anticipatory vacancies could be filled up. Therefore, the same is a policy decision by the University and there is no harm in filling up the vacancies from the same rank list itself. 11. The legal position in regard to these aspects, have been laid down by the Apex Court and this Court in various decisions. Both sides have relied upon the decision of the Apex Court in Prem Singh and others v. Haryana State Electricity Board and others {(1996) 4 SCC 319} and the judgment of this Court in W.P.(C) No.17244/2010, regarding certain appointments in the Kerala Agricultural University, was also relied upon by Shri P.C. Sasidharan. 12. The notification herein will show that the number of vacancies against the post of Assistant, is given as 45. There is no indication in the notification that the same is approximate or subject to any variation. No mention is made with regard to the filling up of any vacancy exceeding 45, from the rank list prepared pursuant to the said notification. There is also no other clause in general terms enabling the University to make appointment, in respect of vacancies which may arise during the currency of the rank list also. The material facts of the case will show that the number 45 tallies with the Government Order Ext.R1(b). Therein, the total number WPC.21142/2010, etc. 9 of non teaching posts sanctioned is 86 and the number of posts for Assistants included therein is 45. The resolution of the Syndicate (Ext.R1 (a) is dated 5.5.2008. Therein, it is stated as follows: “Resolved to notify all the existing/anticipatory vacancies of all teaching and non teaching posts.” Significantly, no reference is made to the number and names of posts therein. Therefore, the same is only a general one and it is not confined to the post of Assistant. The Government Order sanctioning certain posts, Ext.R1(b), is subsequent to Ext.R1(a), which is dated 26.5.2008. The notification is dated 4.9.2008 which is subsequent. No other resolution or policy decision of the Syndicate of the University to increase the number of vacancies beyond 45 is relied on or produced. The notification was not amended, altered or modified by any subsequent notification as regards the number of vacancies in the post of Assistant. Even with regard to the rank list published as per Ext.R1(d) produced in W.P.(C) No.21142/2010, regarding the period of validity or regarding the filling up of the vacancies of Assistant beyond 45 during the currency of the rank list, nothing is mentioned. It is mentioned in the counter affidavit that the period of rank list can be for one year which may be extended to three years. Evidently, the Syndicate has not assessed the number of vacancies at the time when WPC.21142/2010, etc. 10 the resolution was taken or at any rate the same is not reflected in the resolution. This is the factual scenario as far as the notification itself is concerned. 13. Now we will come to the relevant principles which are clear from the various decisions of the Apex Court and this Court. In Prem Singh's case {(1996) 4 SCC 319}, after referring to various decisions of the Apex Court the principle was laid down in para 25 thus: “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.” What is discernible from the above principle is that if the requisition and WPC.21142/2010, etc. 11 advertisement are for a certain number of vacancies, no appointment should be made than the number of posts advertised. Only in exceptional circumstances or in an emergent situation the same can be done and that too by taking a policy decision. Therefore, the question herein is whether there is a policy decision as well as any emergent situation justifying the deviation from the general principle. 14. In Ashok Kumar and others v. Chairman, Banking Service Recruitment Board and others (AIR 1996 SC 976), it was held that the recruitment of the candidates in excess of the notified vacancies, is a denial and deprivation of the constitutional right under Articles 14 and 16(1) of the Constitution of India. It was further held therein that appointment of the persons kept in the waiting list to the vacancies which have arisen subsequently, is unconstitutional. In paragraph 5, the relevant principles were declared thus: “Article 14 read with Article 16(1) of the Constitution enshrine fundamental right to every citizen to claim consideration for appointment to a post under the State. Therefore, vacant posts arising or expected should be notified inviting applications from all eligible candidates to be considered for their selection in accordance with their merit. 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. WPC.21142/2010, etc. 12 The procedure adopted, therefore, in appointing the persons kept in the waiting list by the respective Boards, though the vacancies had arisen subsequently without being notified for recruitment, is unconstitutional.” 15. In Surinder Singh and others v. State of Punjab and another (AIR 1998 SC 18), also a similar question arose for consideration. Reference was made to the decision in Prem Singh's case {(1996) 4 SCC 319} and in paragraph 15 the principles stated therein was explained thus: “It is in no uncertain words that this Court has held that it would be 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 spelt 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. Before any advertisement is issued, it would, therefore, be incumbent upon the authorities to take into account the existing vacancies and anticipated vacancies. It is not as a matter of course that the authority can fill up more posts than advertised.” Finally, in para 16, it was held that on the facts of the said case, no exceptional circumstances and emergent situation were existing. Therefore, the principle reiterated therein is also that notified vacancies alone could be filled up. WPC.21142/2010, etc. 13 16. The very same principle has been reiterated in certain recent decisions of the Supreme Court. First of the same is Rakhi Ray and others v. High Court of Delhi and others {(2010) 2 SCC 637}. After referring to Prem Singh's case (supra), and Surinder Singh's case (supra), and other decisions on the point, the legal position was analysed thus in paragraphs 14 and 15: “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 Art.14 and Art.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.” Thus, the view taken is that once the notified vacancies stand filled up, the process of selection comes to an end and the unexhausted select list/waiting list cannot be pressed into service any more. WPC.21142/2010, etc. 14 17. In State of Orissa and another v. Rajkishore Nanda and others (AIR 2010 SC 2100), the very same principle was reiterated in paragraph 10 thus: “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.” It was held that the filling up of the vacancies exceeding the number notified, is neither permissible nor desirable and it will amount to an improper exercise of power and only in exceptional cases the rule can be varied. Going by the facts of the case detailed in paragraph 16 therein, the advertisement provided 15 vacancies with a clear stipulation that the number of vacancies may increase. Thereafter, the authority has taken a decision to fill up 33 vacancies and a select list of 66 persons was prepared. It was held that the appointment above the 33 vacancies cannot be supported. Such is not the case herein, as the notification did not indicate that the number of vacancies may increase. 18. In Public Service Commission, Uttaranchal v. Mamta Bisht and others (AIR 2010 SC 2613), in paragraph 6 it was held thus, by WPC.21142/2010, etc. 15 reiterating the same principle: “It is settled legal proposition that vacancies over and above the number of vacancies advertised cannot be filled up. Once all the vacancies are filled up, the selection process comes to an end. In case a selected candidate after joining resigns or dies, the vacancy, so acquired cannot be filled up from the panel, which stood already exhausted. (Vide Rakhi Ray & others v. The High Court of Delhi & Ors. AIR 2010 SC 932):(2010 AIR SCW 1070). However, in the instant case, the advertisement itself made it clear that the vacancies could be increased and decreased and before completion of the selection process a decision had been