Letters Patent Appeal No.150 OF 2009 Against the order dated 4.2.2009 passed by the learned Single Judge in C.W.J.C. No. 1781 of 2009. ------ 1. Chandan Kumar son of Babunand Prasad resident of village Chitbiraw, P.O. Sematar, P.S. Guthania, District Siwan. 2. Ashish Kumar Son of Padmanand Jha resident of village Kothapur, P.O. Dayra, District Araria Versus 1. The State of Bihar through Principal Home Secretary, Government of Bihar, Patna. 2. The Director General of Police, Bihar, Patna. 3. The Staff Selection Commission, through Secretary, Bihar, Patna. 4. The Secretary, Staff Selection Commission, Bihar, Patna. ------- For the Appellants: M/S. Chitranjan Sinha, Sr. Advocate, Bindhayachal Singh, Alok Anand & Parul Ranjan. For the State :- M/S. Roy Shivaji Nath, AAG IV & Prashant Kashyap, A.C. to AAG IV For Respondent Nos. 3 & 4 : M/S. P. K. Shahi, Sr. Advocate, S. S. Sundaram & Vipin Kumar For the Intervener : Mr. Mukul Sinha. --------- P R E S E N T THE HON’BLE THE ACTING CHIEF JUSTICE & THE HON'BLE JUSTICE SMT. ANJANA PRAKASH ------ Shiva Kirti Singh, ACJ, & Anjana Prakash, J., Heard learned counsel for the appellants, learned Advocate General appearing for the State and other Counsels representing the respondents and the interveners who have filed I.A. No. 1762 of 2009. 2. By the order under appeal dated 4.2.2009 the writ petition filed by the appellants bearing C.W.J.C. No. 1781 of 2009 has been dismissed by the writ Court and no interference was made with the action of the respondents to fill up the posts of Sub Inspector of Bihar Police beyond 1510 vacancies advertised through Advertisement no. 704 of 2004. 3. The grievance of the appellants/writ petitioners is that by making appointments on posts beyond the number advertised, 2 the respondents are acting arbitrarily and such action will adversely affect the prospect of employment of the writ petitioners and other similarly situated young persons who are aspiring for job under the State Government. 4. There is no dispute on facts that against the advertised number of 1510 vacancies, the final number of posts filled up is 2149 showing an excess of 639 appointments. The writ Court has noticed the judgment of this Court in the case of Jai Shanker Prasad Vs. The State of Bihar along with other analogous cases reported in 2008(4) PLJR, 825. Paragraph 7 thereof which has been extracted by the writ Court furnishes the factual foundation for a decision by the State to appoint more candidates than the number of posts advertised. As per submissions made on behalf of the State during the hearing of case of Jai Shankar Prasad, a total of 433 further appointments were likely to be made so as to avoid cancellation of names of 160 candidates from the list of successful candidates already published. The facts of the earlier case are clear from the reported judgment and under those facts the evaluation of marks had to be re-done on account of errors in some of the model answers. Some more candidates on account of re-evaluation occupied places higher than 160 persons whose cases fell for re- consideration. No doubt the earlier judgment did not go into the validity or otherwise of proposed appointment of 433 candidates beyond the number of posts advertised, however, the writ Court after noticing the factual position did not find good grounds to interfere with the process of appointment which has now culminated in appointment of 639 persons beyond the advertised number of vacancies. 5. As to how the figure of excess candidates rose from 433 to 639 was matter of controversy between the parties and on account of query made by this Court in course of considering this appeal, a supplementary counter affidavit has been filed on behalf of the State to explain the necessity of increasing the number from 433 to 639 3 in order to meet the obligation of the State to maintain the ratio of recruitment between various categories of candidates as per rules of reservation. There is no material for us to doubt the aforesaid stand of the State. 6. The basic issue is whether the State has acted reasonably or has acted arbitrarily in deciding to offer appointment to 160 persons whose cases fell for re-consideration on account of re- evaluation of answer papers is not easy to be answered. The State in its counter affidavit, particularly in paragraph 14, has mentioned several grounds as to why it was compelled by humanitarian or other similar reasons to protect those 160 persons who are said to have waited for about a year after they were finally found successful. 7. There is no dispute about the legal proposition in support of which learned counsel for the appellants has cited several Supreme Court’s judgment that normally the State should confine appointments only against the number of posts advertised but it is also equally settled that a departure can be made from this general rule provided there is reasonable explanation for such departure. In the present case the reasons for departure have been explained by the State. Learned Advocate General has then placed reliance upon a judgment of the Supreme Court in the case of Amlan Jyoti Borooah Vs. State of Assam & Others reported in 2009 LAB.I.C., 1619 to highlight that in the present case also no recruitment to the post of Sub Inspector of Police could be made after 1994 and even the recruitment process initiated by the present advertisement in the year 2004 has taken five years to conclude and the State could not have anticipated that the process of recruitment would take so many years nor it could have worked out the anticipated vacancies on that basis. He has further highlighted that in the present case the advertisement itself mentions that the number of vacancies notified is tentative and it may increase or decrease. 4 8. The judgment of the Apex Court relied upon by the learned Advocate General, no doubt, re-affirms the general law laid down by the Supreme Court in several judgments but has gone further to hold “ ……..unless there exists a constitutional or a statutory interdict so as to compel the Superior Court to set aside the selection which has otherwise been validly made; in exercise of their power of judicial review the same would not ordinarily be interfered therewith.” In fact in one of the judgments relied upon by the learned Senior Counsel for the appellants i.e. Prem Singh and others Vs. Haryana State Electricity Board and others reported in (1996) 4 SCC, 319, the apex Court has indicated in paragraph 25 that “ ……… 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 the persons seeking public employment.” 9. Having considered the entire facts and circumstances of the case and the rival contentions, we are not persuaded to interfere with the appointments already made by the State on the post of Sub Inspector of Police beyond the specified number of 1510 posts appearing in the advertisement. We may indicate in brief our reasons for the same. Firstly, the State needs urgently the services of Sub Inspector of Police to meet the law and order position in the State. The appointments are, therefore, in public interest. Secondly, while there may be scope to differ with the decision taken by the State, it cannot be denied that there existed reasons for taking the particular decision and those reasons cannot be lightly brushed aside. Thirdly, as noticed earlier, no appointment on the post in question has taken place since 1994 and even the advertisement of 2004 has taken about five years to mature into recruitment. Fourthly, the advertisement disclosed that number of vacancies was tentative and it could increase or decrease. 5 Fifthly, the appointments are on the basis of fair selection against duly sanctioned posts. Lastly, the Advocate General has expressed the desire of the State Government to make appointment on as much vacant posts of Sub Inspector as may be located on account of need and in this connection he has indicated that steps would be taken to see that pending litigation in respect of 534 posts of Sub Inspectors is brought to an end at the earliest so that all the available vacancies may be advertised for recruitment without any delay. 10. At this juncture, we would like to bring it on record that rights of persons like the appellants get easily trampled under the feet of the authorities by simply delaying the process of advertisement and recruitment. The facts noticed earlier show that after 1994 the advertisement for recruitment could materialize only in 2004. In that view of the matter, we think that the relief which can be given to the appellants without any difficulty is to direct the State that in the light of the stand taken by the Advocate General the recruitment process for the posts of Sub Inspector in Bihar Police should be initiated as early as possible preferably within a year. 11. With the aforesaid observations, we dismiss the appeal as we are unable to interfere with the impugned judgment. There will be no order as to costs. (Shiva Kirti Singh, ACJ.) (Anjana Prakash, J.) Patna High Court, The 21st July, 2009. AMIN/ (A.F.R.)