Navin Sinha, J.
Heard learned Counsel for the petitioners, for the State of Bihar and for the Bihar Public Service Commission.
1. The petitioners in these three writ applications were applicants for the post of Child Development Project Officer under advertisement No. 34 of 2005 published on 13.4.2005 by the Respondent Commission for the female category, all of them belonging to the extremely backward caste, backward and scheduled caste category.
2. The original advertisement was with regard to 107 vacancies. The advertisement itself stated that the vacancies may decrease or increase. The commission by a subsequent fresh communiqué increased the vacancy to 218. The petitioners competed in the preliminary test as also in the main written examination. Having qualified in the interview, they were issued appointment letters on 7.3.2008. They gave their joining on different dates from 11.3.2008 to 17.3.2008 and started discharging their duties. They were then sent for orientation training, treasury training and under right to information Act as a part of discharge of their duties. After issuance of pay slips, payment of salary also commenced. New accounts under the Pension Scheme, 2005 were also opened for them respectively.
3. It is appropriate at this stage to take note of the fact that their appointment were made conditional on any future order that may be passed by this Court with regard to the results published by the Commission, and that the appointment was liable to be terminated for which the candidate shall have no claim. It is important to take note here that this condition No. 5 of the letter of appointment was not in the context of any particular writ petition. It appears to be an attempt to shield the Commission for its own fault, should anything adverse to it be detected at subsequent stage.
4. CWJC No. 13222 of 2007 came to be filed by another applicant on the post of CDPO challenging the non-consideration and rejection of her candidature on the ground of non-production of her caste and creamy layer certificate issued under the signature of District Magistrate when the petitioner had earlier produced the necessary certificate from the Sub-divisional Officer. In that background, a Bench of this Court on 10.12.2007 issued directions to consider the caste and creamy layer certificate of the petitioner filed before the Commission and then re-determine her position in merit list accordingly. It appears that certain other writ petitions were also filed on the issue.
5. The Respondent State in the Department of Social Welfare in which the petitioners have been appointed and joined, issued a show cause notice on 30.9.2008 that in accordance with revised merit list in pursuance of the orders of this Court, the petitioners fell outside the number of vacancies available for which recommendation could be made and, therefore, to show cause why their appointment could not be terminated.
6. At this stage, it is important to take note of the fact that the show cause notice did not make any allegation with regard to illegality, veracity and correctness of the selection process undergone by the petitioners and the success achieved by them on their own merits.
7. The Respondents have then issued the impugned order dated 5.2.2009 at annexure-1. It terminates the appointment of the petitioner in terms of Clause 5 of their order of appointment as noticed above consequent to the issuance of revised merit list in pursuance of certain orders of this Court.
8. Petitioners in paragraph 25, 30 and 31 of their writ applications have specifically averred that there is adequate number of vacancies on the post of CDPO in the Department of Social Welfare; that total number of such persons affected by fresh induction are 14 (stated to be 15 by the Respondents), and that the Department of Personnel and Administrative Reforms have opined that such persons could be continued in service without affecting fresh merit list. The Respondent State of Bihar in the Social Welfare Department at paragraph 15 of their counter affidavit have expressly admitted the existence of vacancies on the post of CDPO. Dealing with the aforesaid paragraphs of the writ petition, the Respondent Department of Social Welfare also acknowledges that the Department of Administrative Reforms had recommended that the candidates like the petitioners be allowed to continue till an opinion is sought from the Law Department.
Learned Counsel for the Commission urged that the Commission could not make any recommendation for vacancies more than that advertised.
9. The vacancies originally advertised were 107. The advertisement itself stipulates that the vacancies can increase or decrease. The vacancies were subsequently increased to 218. In controversy today are 14/15 appointments. Vacancies after roster clearance exist for more than 14/15 and stands at 44 is admitted by the Respondents in their communication dated 14.10.2008 addressed by the Department of Social Welfare to the Bihar Public Service Commission at Annexure-20. It not only states about the existence of vacancies as per the roster clearance but goes on to suggest that in the facts of the case to go for a fresh advertisement and a fresh selection process shall be detrimental and time consuming when persons selected are already available and, therefore, the Commission could forward the names of (these 14-15) persons afresh. It is important to take note at this stage that the Commission is merely a recommending body. The determination for the availability of vacancies, the responsibility for appointment, payment of salary and other service benefits lies upon the Department of Social Welfare, which is keen for appointment.
10. Reliance by the Commission in : AIR2009SC747 (Mukul Saikia and Ors. v. State of Assam and Ors.) is misconceived. That related to a case where only 27 vacancies had been advertised against which a select list of 64 persons had been prepared. A claim for appointment was made by those in the select list beyond serial 27 assailing the regularization of the private respondents on unadvertised but existing vacancies alleging back door entry to the unsuccessful candidates. The Supreme Court held that the select list was prepared to fill notified vacancies and not future vacancies. The select list got exhausted when 27 posts were filled up and no right flowed to any person from the select list thereafter as that would amount to appointment beyond advertised vacancies and shall tantamount to filling up future vacancies contrary to Articles 14 & 16 of the Constitution. This policy decision for regularization as a one time measure having regard to the special circumstances of the case, the service record of those regularized being unblemished, the Court declined interference.
The facts of the case are entirely different and have no application to the facts of the present case.
The facts of the present case as noticed are telling of the error committed by the Respondent Commission. The scapegoat are the petitioners. The present is not a case simplicitor of appointment being made on posts more than that advertised.
Learned Counsel for the petitioners has relied upon a decision in : (1997)8SCC488 (Surinder Singh and Ors. v. State of Punjab and Anr.). The Supreme Court at paragraph 16 held 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 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.
11. This Court, in the facts and circumstances of the present case, holds that the Respondents are not making any appointment in excess of the post advertised as such. All that the Respondents in the Department of Social Welfare wish to do is to remedy the wrong done to the petitioners when circumstances for the same by availability of vacancies exist. Quite rightly, the counsel for the Respondent Department of Social Welfare found it difficult to oppose the prayer of the petitioner in light of their own communication dated 14.10.2008. The vacancies referred to in the letter dated 14.10.2008 existed when the advertisement was issued. They are not fresh vacancies arising after the advertisement so as to qualify them as being barred subject to only fresh appointment under a fresh advertisement.
Applying the principles of the case of Surindra Singh (supra), the facts of this case clearly reveal an exceptional circumstance in an emergent situation for the State to deviate from the principle of limiting the number of appointments to that advertised.
12. This Court, therefore, holds that the order dated 5.2.2009 terminating the appointment of the petitioners is bad and is, accordingly, set aside. The petitioners are held to be appointees under advertisement No. 34/05. The Commission is directed to proceed accordingly in terms of the requisition dated 14.10.2008 and comply the same within a maximum period of four weeks from the date of receipt and/or production of a copy of this order. The petitioners shall also be deemed to be appointees from the dates of their original appointment in March, 2008, subject to the fulfilment of the reservation roster.
The writ application stands allowed.