WP(C) 3025/2008 BEFORE THE HON’BLE MR JUSTICE B.K. SHARMA Heard Mr. R. Majumdar, learned counsel for the petitioners also heard Mr . N. Baruah, learned CGSC and Mr. Ahmed, learned counsel representing the respon dents. While the petitioner in W.P(C) No. 978/09 is a general category candidat e, the petitioner in W.P.(C) No. 3025/08 is an OBC candidate. Both of them appli ed for the post of CT (Driver), they being eligible in all respects. They offere d their candidatures pursuant to the advertisement dated 11.04.2008 in which the vacancies pertaining to the CT (Driver) was notified as 12 (General) and 6 (OBC ). The grievance of the petitioner is that although they occupied merit position s at serial No. 9 and 6 in the respective categories and thus, are within the zo ne of consideration, but they have not been appointed. It is on that count, the petitioners approached this Court by filing the instant writ petitions. In the counter affidavit filed by the respondents, the aforesaid fact ha s not been denied. However, their contentions is that although out of 23 posts, 12 posts were proposed for general candidates and 6 for OBC candidates, but due to remustering of CT/GD to CT/Dvr the vacancies came down to 14 from 23 and cate gory wise 7 (general) and 4(OBC). Thus, the petitioners whose merit positions ar e at serial No. 9 and 6 respectively could not be appointed. Mr. R. Majumdar, learned counsel for the petitioners during the course o f hearing of the instant proceeding had contended that as per Part -V of the Rec ruitment Manual of CRFP, 1975, the remustering process, if at all is required to be carried out, is to be done before the advertisement of vacancies and not t hereafter. It was also submitted that even in the process of remustering, the re cruitment is required to be carried out by open rally system and proper assessme nt of proficiency by the Board of Officers. It was submitted that the contention s raised in the counter affidavit regarding reduction of posts due to remusteri ng is for an oblige purpose and is quite illegal. Noticing the aforesaid submissions, this Court by order dated 10.05.2010 directed the respondents to clarify the points noted in the order. Be it state d here that in the order, the petitioner in W.P.(C) No. 978/09 who is a general category candidate, his merit position has been wrongly mentioned as serial No. 12 instead of serial No. 9. Pursuant to the aforesaid order dated 10.05.2010, the respondents have filed an additional affidavit purportedly dealing with the aforesaid points in paragraphs - 2, 3 and 4 of the said affidavit. Said paragraphs are quoted below: 2. That as regards the point No.1, I beg to state that the organizing D & M Co urse and re-musteration from CT/DG to CT/Dvr is a regular process and the vacanc ies of CT/Dvr varies from time to time considering passing of course etc. Howev er, re-mustering process are competed only on issue of office order by the conce rned Unit. Organizing D & M Course, re-musteration of CT/GD to CT/Dvr, number of constables re-mustered, all are irrelevant on the issue as the Department speci fically mentioned in Advertisement published in connection with recruitment of C T/Dvr that VACANCIES ARE SUBJECT TO VARIATION . The representation/ appeal/ pet ition on this account does not attract any consideration or second thought in an y circumstances, other than this the Recruitment Rules 2001 are very clearly men tion that the vacancies of CT/Dvr. Are to be filled up only from open market aft er deducting Nos. of candidates passed D & M Course awaiting remustered and unde r D & M. 3. That as regards to the point No. 2, I beg to state that as per the laid down procedure, Director General has allotted seats for D & M Course for the Constabl es/GD who fulfils the eligibility conditions. Accordingly, the Constables/GD who qualified the said course were remustered as CT/Dvr against the existing vacanc ies of this sector. This is a channel wise departmental process and no minutes a re being drawn on the issue. Further, as per the advertisement notified for the said recruitment, it has clearly been mentioned in a note that the VACANCIES AR E SUBJECT TO VARIATION as the vacancies may reduced or increased due to re-mus teration of constable/GD who qualified the D & M course as CT/Dvr. In the instan t case, vacancy in the post of CT/Dvr after publication of advertisement. Accord ingly, vacancies so notified has been reduced in all category including 05 posts in General category. 4. That as regards the point No. 3, I beg to state that as per laid down procedu re, the vacancies are to be filled up either by open rally or by re-musteration subject to availability of vacancy. To meet the vacancies required for re-muste ration of constables/GD qualified for re-musteration of constables/GD qualified D & M Course as CT/Dvr, a clause VACANCIES ARE SUBJECT TO VARIATION has clearl y been incorporated in the advertisement. Due to reasons of re-musteration, the vacancies in the post of CT/Dvr has been decreased, which is in consonance with Recruitment Rules, 2001 as per requirement of the Force. On a bare perusal of the aforesaid clarifications furnished by the respo ndents in their additional affidavit will go to show that there is no clarificat ion as such in respect of the queries made in the aforesaid order dated 10.05.20 10 and that the whole emphasis is on the particular clause in the advertisement which is VACANCIES ARE SUBJECT TO VARIATION There is no answer to the points s pecifically raised on behalf of the petitioners that open rally was conducted t aking note of the available vacancies after exhausting the remustering and that even in case of remustering their must be upon rally system and appropriate asse ssment and proficiency should be made by the Board of Officers. Although as per the aforesaid order dated 10.05.2010, the details of remustering process; as to how many persons (including the names) were involved in the said process and the records pertaining to the decision making process indicating re duction of the number of posts than the posts advertisement were to be furnished , but in the additional affidavit no such particulars have been furnished and ce rtain vague and indefinite statements have been made. In the above circumstances and more particularly when the advertisement itself provided for 23 vacancies of CT (Driver) with categorisation of 12 and 6 vacancies respectively in the above categories, i.e. general and OBC, I am of th e considered opinion that the particular plea of reduction of posts due to remus tering is not acceptable. If any such reduction was there after the advertisemen t and/or selection process, the respondents could have justified the same by pro ducing the records and meeting the queries made in the aforesaid order dated 10. 05.2010 instead of trying to substantiate their claim by filing the additional affidavit without meeting the points raised in the order dated 10.05.2010. In view of the above, both the writ petitions are allowed directing the respondents to take further process towards appointment of the petitioners in te rms of the advertisement and the vacancies notified therein, i.e. 12 (general) a nd 6 (OBC). Let the entire exercise be carried out as expeditiously as possible preferably within one month from today.