IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15477 of 2010 1. Manish Kumar S/O Sri Bhuwaneshwar Pandey R/O Vill.- Parsauni- Baij, P.O.- Karmauli, P.S.- Piprahi, Distt.- Sheohar Versus 1. The State Of Bihar 2. The Principal Secretary Department Of Planning, Govt. Of Bihar, Patna 3. The Director, Directorate Of Statistics Department Of Planning, Govt. Of Bihar, Patna 4. The Principal Secretary Department Of Personnel And Administrative Reforms, Govt. Of Bihar, Patna 5. The Bihar Staff Selection Commission P.O.- Veterinary College, Sheikhpura, Patna-14, Through Its Secretary 6. The Chairman Bihar Staff Selection Commission, P.O.- Veterinary College, Sheikhpura, Patna-14 7. The Secretary Bihar Staff Selection Commission, P.O.- Veterinary College, Sheikhpura, Patna-14 ----------- For the Petitioner:- Sri Rajendra Prasad Singh, Sr. Adv. Mr. Onkar Kumar, Adv. Mr. Rakesh Kumar Singh, Adv. For the S.S.C. :- Mr. S.S. Sundaram, Adv. For the State:- Mr. Prahalad Kumar Bhagat, Adv. Mr. Binay Kumar, Adv. ------------- 5. 19.09.2011 Heard learned counsel for the petitioner, the State and the Bihar Staff Selection Commission (hereinafter referred to as „the Commission‟.) An advertisement was published on 24.8.2006 for inviting applications for appointment on the post of Block Statistical Supervisor/ Junior Statistical Supervisor/Instructor. The vacancies were provisionally identified as 224, but liable to increase or decrease. Before any developments for selection could take place, a fresh requisition was sent on 26.4.2010 for a total of 388 vacancies inclusive of the aforesaid 224, a difference of 181. The requisition also sought to 2 vary the educational qualification by insertion of a degree in B C A from a recognized institution as a qualification also. The Commission on 4.6.2010 objected to the variation in the essential qualification as being impermissible and advised that the additional 181 vacancies in that event be clubbed with the next graduate level examination. No other objection was raised by the Commission. The department on 4.6.2010 itself through its Joint Director telephonically conferred with the authorities of the Commission and also confirmed in writing that in view of the objection by the Commission, the additional qualification of D C A degree be deleted. The written examination was subsequently held on 16. 5. 2010 for selection in accordance with the conditions of eligibility in the original advertisement. A total of 19,000 candidates are stated to have appeared. In the meantime on 3.5.2010 the Commission wrote to the department that the advertisement originally was for 224 vacancies only and the date for the examination had also been fixed. After coming into force of the Bihar Staff Selection Commission Rules 2010 (hereinafter referred to as „the selection Rules‟) legal difficulties may arise by increase of vacancies beyond the 3 advertisement. What were the legal difficulties was not specified. The vacancies, it was informed, also stood reduced to 207 by reason of certain orders of this Court in M. J. C. No. 2083 of 2009 by virtue of addition of the same to non joining vacancies of Advertisement No.1 of 1990. The respondent department on 10.6.2010 referring to the Commissions letter dated 4.6.2010, written in context of the additional B C A degree qualification, agreed to withdraw 181 vacancies for reason of the anticipated legal difficulties opined by the Commission. Initially counter affidavit was filed on behalf of the Commission only. Only when the Court insisted that it would like to have the independent stand of the department also, separate counter affidavit has been filed on its behalf. Learned counsel for the petitioner submitted that the vacancies indicated in the advertisement were provisional. It was not a case were the vacancies stood conclusively identified before the advertisement or commencement of the selection process and were then sought to be enhanced. The infirmity by insertion of the additional educational qualification had been deleted. The respondents were not justified in further reducing 4 the vacancies to 207. The advertisement having been issued prior to the issuance of the selection rules shall not be governed by the same. Reliance was further placed on a government instruction dated 16.7.2007, at paragraph 14, issued by the Department of Personnel and Administrative Reforms in response to queries by the Bihar Public Commission and the Commission that variation in a requisition was permissible for justified reasons. Reliance was also placed on (2002) 10 SCC 549 (Sandeep Singh Vs. State of Haryana) in support of the submissions., Learned Counsel for the respondents submitted that the increase in vacancies in excess of that specified in the advertisement was not permissible in law. The selection rules of the Commission require all vacancies to be specified in the advertisement and the selection to be held thereafter. Without a fresh advertisement there could be no enhancement of vacancies by deemed addition to the earlier advertisement. Reliance was placed on (2010) 2 SCC 637 (Rakhi Ray Vs. Delhi High Court ) The advertisement provisionally identified 224 vacancies, liable to increase or decrease. The vacancies were therefore not conclusively identified. 5 Enhancement of vacancies, as a very broad proposition has generally not met judicial approval. But equally under specified circumstances they have been countenanced also. Each case will therefore depend on its own facts. The stage at which the provisional vacancies were finally determined shall also be relevant. In the present case the provisional vacancies were conclusively determined as 388 on 26.4.2010, inclusive of the earlier provisional vacancies, before commencement of the selection process by written examination on 16.5.2010. It was therefore not a case of enhancement of advertised vacancies but final determination of provisional vacancies under the advertisement. The Commission was therefore not correct in proceeding on the assumption that the advertisement was respect of 224 specified vacancies only. The department has accepted the unspecified anticipated legal impediments by the Commission as the justification for reducing the vacancies. It is not the case of the department that it does not desire to have any recommendation on 388 vacancies or that it is not desirous at present of making appointments beyond 224. In (1993) Supp 4 SCC 377 (Hoshiar Singh 6 Vs. State of Haryana) the original requisition sent was for six posts. An additional requisition was sent for two more posts before the selection process by physical test, measurement test and interview commenced. The recommendation was however made for nineteen posts. Striking down the additional recommendation, the Supreme Court did not interfere with the eight recommendations. In (1994) 1 SCC 126 (State of Bihar v. Secretariat Asstt. Successful Examinees Union 1986) the advertisement did not specify vacancies but stated that vacancies upto the year 1985-86 were to be filled up. The examination was held in November 1987. The results were published in July 1990. By communication dated August 25, 1987 the total number of 357 vacancies was provided. On the recommendation of the Board dated July 31, 1990, 309 candidates were given appointments. Since vacancies available uptill December 31, 1988 were not disclosed or communicated to the Board despite enquiries, no further appointments could be made. The Supreme Court modified the judgment of the High Court by setting aside that part of the judgment which directed the filling up of the vacancies of 1989, 1990 and 1991 from out of the list of the candidates who had appeared 7 in the examination held in 1987 upholding the filling up of the vacancies which existed till December 31, 1988. The issue of deviation from advertised vacancies by enhancement and permissibility thereof came up for consideration in (1996) 4 SCC 319 (Prem Singh v. Haryana State Electricity Board) holding at paragraph 25 as follows :- “25……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.” A similar view was again taken in (1997) 8 SCC 488 (Surinder Singh v. State of Punjab) holding at paragraph 16 as follows :- “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 8 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.” In (1998) 5 SCC 269 ( Benny T.D. v. Registrar of Coop. Societies) an advertisement was issued on 9-11-1995 indicating the probable vacancies in the grade of Clerk as 85 but before the selection process started, the vacancies came to 116 and as such resolution was passed to appoint 116 persons. The Supreme Court at paragraph 18 held : “18…Merely because in the advertisement issued by the Bank the probable number of vacancies had been indicated to be lesser than the number of persons finally appointed, one cannot jump to the conclusion that there has been an excess appointment beyond the staff strength approved by the Registrar. It is well known that during the time when an advertisement is issued and by the time when process of selection starts and ultimately appointment orders are issued, on account of several factors the number of posts may be increased, the factors being retirement of persons on attaining superannuation, death of several employees, promotion of the employees to higher posts and for variety of other grounds. In such contingencies, when appointments are made depending upon the vacancies available and in excess of the vacancies advertised, it cannot be said that the appointment has been made in excess of the strength of the cadre approved…...” 9 In (2001) 6 SCC 380 (All India SC & ST Employees' Assn. v. A. Arthur Jeen) applications were invited for 330 posts. A panel was prepared of 917.Upholding appointments in excess of the advertisement upto 382 the Court observed at paragraph 12 : “12…The process of selection was long- drawn….. The candidates and their families have been waiting for a long time from 1995 with great hope of getting jobs. Enormous money and man- hours have been spent in completing the process of selection in preparing the panel of selected candidates…..” In (2002) 10 SCC 269 (Suvidya Yadav v. State of Haryana) the Haryana Public Service Commission issued an advertisement indicating the number of posts as 18 and it was also stated in the said advertisement that the number of posts would be subject to variation to any extent. Pursuant to further requisition a total number of 30 names were recommended. The Supreme Court upheld the recommendation of 30 names declining the challenge that the recommendation was in excess of advertised vacancies. In Sandeep Singh (supra) relied upon by the petitioner the number of posts was tentatively indicated in the advertisement but it stipulated that the vacancy position may change. The advertisement in question had been issued on 24-12-1992. The written 10 examination was held in the year 1993, but for some contingencies the interviews was held in January to March 1996. Between the date of the advertisement and till the date of holding the interview, several other posts fell vacant. The Commission gave a list of only vacancies for which initial requisition had been made. The appellants moved the High Court that since vacancies had been available by the date of the interview, appointments be made to that extent from the selection. The Supreme Court held at paragraph 3 as follows :- “3….That apart, even on first principle, it appeals to us to commend that the vacancies available in any particular service till the date of interview at least should be filled up from the very same examination unless there is any statutory embargo for the same. In the case in hand, no statutory embargo has been pointed out to us….” In (2009) 3 SCC 227 (Amlan Jyoti Borooah v. State of Assam) the advertisement was for 112 vacancies. Appointments were made in excess by 84. The Supreme Court held at paragraph 40 as follows : “40. The State in an emergent situation would subject to constitutional limitations is entitled to take a decision which subserves a greater public interest. While saying so, we are not unmindful of the fact that the Constitution also demands that candidates who had acquired eligibility for recruitment to the post in the meantime should also be given opportunities to participate in the 11 selection process. This Court times without number had lamented the lackadaisical attitude on the part of the State to treat the matter of selection for appointment to services in a casual and cavalier manner. If no appointment could be made from 1997 to 2001, it is the State alone who could thank itself therefor, but, 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 Rakhi Ray (supra) relied upon by the respondents the issue related to a claim for appointment from the waiting list after the identified and advertised vacancies in the general category had been filled up on the ground that they had occurred subsequently. In that context the Supreme Court held at paragraph 7 as follows :- “7. It is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as “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”, of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies. 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 from and such a deviation is permissible only after adopting policy decision based on some 12 rationale”, otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, is not permissible in law.” To uphold the reduction of vacancies by 17 under the residuary clause in the advertisement and to simultaneously hold that vacancies could not be finally determined under the same clause is an irreconcilable dichotomy which the Court is unable to uphold. In fact, the vacancies have been determined after recalculation excluding the former. Article 14 of the Constitution cannot be a one way street. If inclusion of vacancies beyond 224 was violative of the rights of those who could apply under a fresh advertisement, the rights of those may have already appeared at the written examination and may loose out under any fresh advertisement because of age restrictions also cannot be ignored. The advertisement was made on 24.8.2006. Nearly five years later those who have applied and appeared at the written test are still waiting expectantly to know their fate and career. Public examinations of the present nature are a tedious job, involving large man hours, manpower and heavy financial expenditure. These are aspects which cannot be lightly brushed aside as irrelevant factors. The inevitable result, if the objections of the 13 respondents be upheld, shall be a sheer national waste. The respondents have appointed 84 persons on contract basis. Tomorrow these persons shall stake a litigious claim for regular appointment on the ground of having undergone a selection process. If regular appointments are possible on the determined vacancies, there is no justification for contractual appointment. Reliance has been placed by the respondents on the selection rules framed in 2010. But the rules have not been brought on record. On record in the counter affidavit of the Commission is the Bihar Staff Selection Commission Rules 2003 which has no relevance to the controversy. The selection rules would at best regulate the procedure for the conduct of the examination and no more. The legal impediment under the selection rules urged on behalf of the respondents is in the realm of unfounded speculation. In conclusion, the advertisement was for provisional vacancies variable in nature. The final determination of vacancies in terms of the same was done before commencement of the selection process. The Commission assumed that the vacancies were for 224 vacancies only which is factually incorrect. The department does not contend that it is not desirous to 14 make the appointments but appears to be in awe of the Commission without application of mind. The letter of the department dated 10.6.2010 is set aside. The respondents are directed to complete the selection process for 388 vacancies at the earliest as considerable time has already passed. The application is allowed. P. Kumar ( Navin Sinha, J.)