IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5232 of 2006 1. Saroj Kumar S/o. Mr. Chaudhary Yogendra Prasad resident of village & Post Anaith, Ara, P.S. Nawada (Ara), District Bhojpur 2. Pramod Kumar son of Mr. Raj Kishore Singh resident of Southern Mandiri, Kathapool, G.P.O., Town/District Patna. 3. Saroj Kumar Pankaj, S/O. Mr. Shreelal Choudhary, r/o Mohalla F-45, Peoples‟ Cooperative Colony, Lohiya Nagar, Kankarbagh, Town/District Patna. 4. Manish Kumar S/O. Mr. Tarkeshwar Prasad, r/o at Mohalla State Bank of Bikaner & Jaipur, R. Block Branch, Town/District Patna. 5. Kumar Manish s/o. Mr. Pramod kumar Prem, r/o at mohalla Gautam Nagar, Police Chowki No. 2, Saharsa, Bihar. Versus 1. The Union of India through Secretary, Ministry of Personnel, Public Grievances and Pensions, North Block, New Delhi. 2. The Secretary, Staff Selection Commission, New Delhi. 3. The Deputy Secretary (c), Staff Selection Commission, Block No. 12, CGO Complex, Lodhi Road, New Delhi. 4. The Under Secretary (C-11), Staff Selection Commission, Block No. 12, CGO Complex, Lodhi Road, New Delhi. 5. The Regional Director, (C.R.), Staff Selection Commission (C.R.), 8 A-B, Bailey Road, Allahabad. 6. The Deputy Director, Staff Selection Commission (C.R.), Department of Personnel & Training, Ministry of Personnel, Public Grievances and Pensions, 8 A-B, Bailey Road, Allahabad. 7. Registrar, Central Administrative Tribunal. Patna Bench, Patna. 8. Miss Nita Sinha d/o. Mr. Jaivansh Lal, r/o mohalla Gandhi Nagar, Boring Road, Town/District Patna. 9. Sanjay Kumar s/o. Late Jamadar Khalifa, r/o. Mohalla Urmila Medical Hall, Anisabad, Town/District Patna ----------- For the petitioners : Mr. Chittaranjan Sinha, Sr. Advocate, M/S. Baidya Nath Thakur, Gautam Kumar Sinha & Shankar Kumar Thakur. For the respondents : Mr. Sarvadeo Singh, C. G.S.C. ------- - 2 - P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal ------ Dated, 3rd December, 2008 The petitioners are unsuccessful original applicants before the Central Administrative Tribunal (for short „the Tribunal‟). In the Original Application No.263 of 2003 made before the Tribunal, the petitioners prayed for issuance of direction to the respondents to fillup 305 posts of various departments of respondent no. 1 from Combined (Graduate Level) Examination, 2000 instead of only 49 and to restrain the Staff Selection Commission (for short „the Commission‟), Government of India from making recommendation for appointment against the posts of Assistant Grade, which are likely to be recommended on the basis of Combined (Graduate Level) Examination, 2001 onwards. 2. The case of the petitioners in the original application was that through an advertisement in employment news of 13-19th November, 1999, the Commission invited applications from eligible candidates for the post of Assistant Grades (Grade-B Non Gazetted) in various departments of the Central Government. Thereafter, another advertisement was issued in the year 2000 for holding combined preliminary examination called Combined Preliminary (Graduate Level) Examination, 2000 (for short „Examination 2000‟). The - 3 - petitioners appeared in the Examination, 2000 and qualified in the written examination. They were called for interview by the Commission, but ultimately in the list of selected candidates of 49 candidates, these names were not recommended by the Commission. Aggrieved thereby, they first made representation to the concerned authority and when nothing was done, they approached the Tribunal for the reliefs indicated above. The only contention that was advanced before the Tribunal was that it was not legal for the Commission to call 609 candidates for interview for filling up 49 vacancies as the ratio for calling the candidates for interview ought to have been 3:1 and not 12:1 and that has rendered the selection process arbitrary. 3. The respondents opposed the original application and set up a plea that at the time, the advertisements are issued, the Commission does not have final vacancy position from the user departments and, therefore, they have adopted a practice of holding the written examination based on tentative vacancies so that by the time the interviews are over, the Commission gets firm vacancy position and the final results are brought out according to the firm vacancy position. It was submitted by the respondents that on the basis of tentative vacancies of 192, with reference to Examination, 2001, 609 candidates were called for interview but in the meantime firm vacancy position was called from the user departments and as per intimation received from the user departments 49 vacancies were - 4 - existing and consequently these vacancies were filled. 4. The Tribunal was not persuaded by the contention of the petitioners. In its order, the Tribunal considered the matter thus : “13. We have heard both the counsel and perused the pleadings as well. The only ground taken by applicants is that number of recommended candidates is too low as compared to the number of candidates who were called for interview and it ought to be in the ratio of 3:1. They have alleged malafides and arbitrariness against Staff Selection Commission without realising that SSC is only an agent for conducting the examinations on behalf of various user departments so naturally they cannot recommend the number of candidates for appointment as per their desire but it has to be as per the vacancy position intimated by the user department. If the user department requires only 49 candidates in the grade of Assistant, applicants cannot insist that SSC ought to have recommended the one-third candidates who were called for interview. After all, appointments can be given only as per the vacancies and not on the ground that more candidates were called for interview, therefore, they should be recommended or appointed. In any case simply because applicants were called for interview it does not give them any enforceable right to be appointed also. At best it can be said that applicants were called for interview but it cannot be treated as a promise to select and appoint. Hon‟ble Supreme Court has held in number of judgments that even a finally selected candidate on the panel has no indefeasible right to ask for being appointed, whereas, applicants had only been called for interview. In JT 1997 [6] SC 246, Hon‟ble Supreme Court held that mere empanelment or inclusion of one‟s name in the select list does not give him a right to be appointed. Hon‟ble Supreme Court held it is not open to the Tribunal to direct the Government to fill-up certain posts when no posts exist. It is also settled law that appointment cannot be given beyond the number of vacancies advertised; 1996[7] SCC 118 [Prem Singh Vs. HSEB]. Therefore, if user department had given requisition for only 49 vacancies naturally SSC had to recommend the candidates accordingly. Moreover, perusal of the advertisement shows that it was clearly mentioned therein that number of vacancies will be determined at appropriate stage meaning thereby, that at the time of holding the exams, SSC was not even aware of the exact vacancies required in user department. They have rightly explained that - 5 - examination is held yearly to avoid delay in selections and since two-tier examination was started for the first time in 1999, the final result was declared late in 2002 due to some administrative difficulties.” 5. The Tribunal, accordingly, dismissed the original application by its order dated 13th August, 2004 giving rise to the present writ petition. 6. Counsel for the petitioners would submit before us entirely a new point which was not canvassed before the Tribunal. His contention is that the vacancies which ought to have been filled under the Examination 2000, were wrongly filled under the advertisement dated 13-19th November, 1999 and only 49 vacancies were left to be filled under Examination, 2000 which was not legally justified. In this regard he referred to the decision of the Supreme Court in the case of Surinder Singh and others Vs. State of Punjab & another [(1997) 8 SCC, 488]. He also relied upon a Division Bench judgment of this Court in the case of Ashutosh Kumar Vinayak & Others Vs. State of Bihar & Others, 2000 (3) PLJR, 495. 7. That the petitioners did not apply pursuant to the advertisement dated 13-19th November, 1999 issued by the Commission inviting applications for the post of Assistant (Grade B Non Gazetted) in various departments of the Central Government is not in dispute. Obviously, therefore, the petitioners cannot have legitimate objection or challenge to the selection made pursuant to the advertisement dated 13-19th November, 1999. The petitioners did apply pursuant to the advertisement, namely, Examination, 2000 - 6 - issued by the Commission. That the advertisement was issued on the basis of tentative vacancies of 192 is not contested by the petitioners. Based on the said tentative vacancies of 192, 609 candidates who qualified in the written examination, were called for interview. That the petitioners were called for interview is also not in dispute. The Commission has explained the position that since at the time of issuance of advertisement, they do not have exact and firm vacancy position from the user departments, they have adopted the practice of holding written examination based on the tentative vacancies. The Commission ensures that by the time the interviews are over, they are apprised of the firm vacancy by the user departments and based on that they fill up the vacancies. From the order of the Tribunal as well as the counter affidavit filed by the respondents, it is clear that in respect of advertisement of 2000 user departments indicated to the Commission firmly that there were 49 vacancies. This is not seriously challenged by the petitioners. Since there were only 49 vacancies in respect of the advertisement of 2000, only such number of vacancies could have been filled and that is exactly what the Commission did in recommending 49 qualified candidates for appointment. The selection process by the Commission, by no stretch of imagination, can be said to be inconsistent with the legal position. 8. In the case of Surinder Singh (Supra), the Supreme Court held that it would not be proper exercise of power to make appointment over and above those advertised save and except in rare - 7 - and exceptional circumstance and in emergent situation. This is what the Supreme Court said in paragraph 16 of the report: “16. It is in no uncertain words that this Court has held that it would be an 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 spelled 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.” 9. There cannot be any doubt about the proposition exposited by the Supreme Court as afore-noticed. However, in so far as, the present case is concerned, the fact of the matter is that the Commission has adopted a consistent practice of issuing advertisement based on tentative vacancies in the User department but at the time of final recommendation, the Commission gets the exact figure of the vacancies in the user departments and makes its recommendation accordingly. The practice of issuing advertisement on tentative vacancies is to save time and ensure that process of periodical selection by way of written examination starts in time. 10. Merely because for 49 vacancies 609 candidates were called for interview, it cannot be said that the selection process was bad in law as there is no allegation that less meritorious candidates have been selected. The first 49 candidates, as per the merit test in the respective categories, have been recommended for - 8 - selection. As a matter of fact, the counsel for the petitioner did not raise any grievance in this regard. 11. Counsel for the petitioners also placed reliance on the decision of this Court in Ashutosh Kumar Vinayak (Supra). In paragraph 17 of the report the Division Bench held thus : 17.“Thus the law is well settled that in case the vacancies are notified in the advertisement then the appointment from the select list is to be made to the extent of vacancies notified in the advertisement and no appointment is to be made in excess of the post advertised except to fill up the posts available due to non-joining or some exceptional or emergent situation as stated above. So far as the present case is concerned, the first Advertisement was issued on 31st July, 1996 notifying only 30 and 88 vacancies of APPs. It was stipulated in the said advertisement that there may be change in the number of vacancies. Thereafter a corrigendum was issued giving the number of posts to be filled up in pursuance of the advertisement. Thus the exact number of posts of APPs to be filled up were notified in the advertisement. The advertisements were issued in pursuance of requisitions made by the State Government giving therein specific number of posts of APPs to be filled up as stated above. Selection process was also carried out to fill up those vacancies. Accordingly, the Commission recommended the names of candidates in terms of the advertisement except those vacancies which could not be filled up due to non- availability of candidates under Scheduled tribe category. It is clear that advertisement was issued to fill up the notified vacancies and in that view of the matter from the panel/select list/waiting list the appointment could be made only to the extent of the posts advertised and not beyond that. In case some of them could not join then the said vacancies are to be filled up from the said list, but no future vacancies arising after the aforesaid advertisement could be filled up from the select list/waiting list even if the vacancies arise either prior to the last date of filing of application or before the last date of interview held for selection of APPs. It is for the State Government to take a policy decision to create or sanction a post. The Apex Court, as stated above, has already directed the State Government to create post of APPs to the extent of courts of Magistrate functioning in the State of Bihar. After creation of additional Courts of Magistrate in excess of - 9 - 712, it is the duty of the State Government in view of the order of the Supreme Court to sanction extra posts of APPs for the newly created courts of Magistrate and to take steps for appointment by making fresh advertisement. Additional Courts of Magistrate do not confer any right to the appellant to claim appointment on the basis of inclusion of their names in the list of successful candidates prepared in pursuance of advertisement to fill up the notified number of vacancies.” 12. We are unable to appreciate how the aforesaid decision has any application to the present fact situation. 13. In any view of the matter, we find that there is no merit in this writ application and it is liable to be dismissed and is dismissed with no order as to cost. R.M.Lodha, CJ. Kishore K.Mandal, J. AMIN/