Judgment:
Writ Petition filed under Article 226 of the Constitution of India, praying for the issue of a Writ of Mandamus, forbearing the respondents herein from in any manner recruiting/filling up 186 posts of Assistant Section Officer in Secretariat (other than Law and Finance Department) in Tamil Nadu Secretariat Service under Post Code No.1072, for which advertisement/notification has not been issued and 26 posts of Assistant Section Officer in the Office of the Tamil Nadu Public Service Commission in Tamil Nadu Secretariat Service under Post Code No. 2201 in excess of the notified number of vacancies, from among the candidates who have applied for and taken written examination pursuant to the Notification/Advertisement of the second respondent herein bearing No.219 dated 15.11.2009. W.P.No.7948/2011:
Writ Petition filed under Article 226 of the Constitution of India, praying for the issue of a Writ of Mandamus, forbearing the respondents from filling up 186 posts of Assistant Section Officers in Secretariat, other than Law and Finance Department, by clubbing those vacancies, which are not originally notified in the interview, which is combined for the Combined Service Examination-I, pursuant to the Advertisement No.219 dated 15.11.2009 and directing the respondents to notify the above 186 vacancies as fresh.
C O M M O N O R D E R
1. The petitioners have come up with the above writ petitions, seeking a Mandamus to forbear the respondents from filling up 186 posts of Assistant Section Officers in the Secretariat (other than Law and Finance Department), bearing Post Code No.1072.
2. I have heard Mr.C.Selvaraju and Mr.AR.L.Sundaresan, learned Senior Counsel for the petitioners in the writ petitions, Mr.A.Navaneetha Krishnan, learned Advocate General assisted by Mr.N.Srinivasan, learned Additional Government Pleader appearing for the State of Tamil Nadu, Ms.C.N.G. Niraimathi and M.Devendran, learned Standing Counsel appearing for the TNPSC, Mr.N.G.R.Prasad, learned counsel appearing for some of the contesting respondents, Mr.R.Thiagarajan, learned Senior Counsel and Mr.Naveenkumar Murthy, learned counsel appearing for some of the contesting respondents.
3. While the petitioner in the first writ petition is an unemployed graduate, the petitioners in the second writ petition are working as Assistants in the Secretariat. All of them are aggrieved by the decision taken by the Government of Tamil Nadu to fill up 186 posts of Assistant Section Officers in the Secretariat (other than Law and Finance Department), on the basis of a notification bearing No.219 dated 15.11.2009 issued for selection to Combined Services Examination-I, despite the fact that these 186 posts were not included in the said notification dated 15.11.2009.
4. The brief facts leading to the above writ petitions are as follows:-
(i) The Tamil Nadu Public Service Commission issued an advertisement bearing No. 219 on 15.11.2009 inviting applications from eligible candidates for direct recruitment to various posts in the Combined Subordinate Services of the State of Tamil Nadu. 13 categories of posts for which the process of selection was to include a written examination followed by an oral test, were included in Table-1. 8 categories of posts for which the selection was to be made only through written examination were included in Table-2.
(ii) Since we are not concerned with the posts included in Table-2 of the selection notification, I am not making a reference to the same.
(iii) Out of the 13 categories of posts included in Table-1 of the selection notification, 11 categories of posts carried a scale of pay of Rs.9,300 - Rs.34,800/-+Rs.4,600/-. Two categories of posts carried the scale of pay of Rs.5,200 - Rs.20,200/- + Rs.2,400/-. (iv) It may be necessary to take a note of those 11 out of 13 posts included in Table-1 of the notification, in order to understand the significance of the controversy raised in the writ petition. Therefore, the posts carrying the scale of pay of Rs.9,300-Rs.34,800/-, included from Serial Nos.1 to 11 of Table-1 in the selection notification, the service to which those posts belong, the Post Code Number of those posts and the number of vacancies notified, are furnished as follows:- S.No.
Post Service Post Code No. of vacancies
1. Municipal Commissioner-Grade II Tamil Nadu Municipal Commissioner Subordinate Service 1092
2. Assistant Section Officer (Law Department) in Secretariat The Tamil Nadu Secretariat Service. 1073
3. Assistant Section Officer in TNPSC Tamil Nadu Secretariat Service. 2201
4. Probation Officer Tamil Nadu Social Defence Subordinate Service 1011
5. Probation Officer Tamil Nadu Jail Subordinate Service 1023
6. Junior Employment Officer Tamil Nadu General Subordinate Service 1017
7. Assistant Inspector of Labour Tamil Nadu Labour Subordinate Service 1068
8. Sub Registrar-Grade II Tamil Nadu Registration Subordinate Service 1071
9. Women Welfare Officer Tamil Nadu Social Defence Subordinate Service 1012
10. Supervisor of Industrial Cooperatives Tamil Nadu Industries Subordinate Service 1022
11. Audit Inspector in HR & CE Department Tamil Nadu Ministerial Service 1029
(v) The General Information provided under paragraph 3B of the Selection Advertisement prescribed that the number of vacancies advertised is only approximate and that it is liable for modification with reference to the vacancy position at any time before finalisation of selection for oral test or selection for appointment as the case may be.
(vi) Paragraph 4A of the notification prescribed minimum and maximum age limit of candidates, to be reckoned with reference to the date 1.7.2009.
(vii) Paragraph 4B of the notification prescribed the educational qualifications required for each of the posts. It was also indicated that those qualifications should be possessed by the candidates as on the date of the notification viz., 15.11.2009.
(viii) Since the advertisement was for filling up 11 categories of posts carrying a scale of pay of Rs.9,300-Rs.34,800/- and 10 categories of posts (2 under Table-1 and 8 under Table-2), carrying a scale of pay of Rs.5,200-Rs.20,200/-, paragraph 7 of the notification stipulated the guideline for the exercise of options. It was stated in paragraph 7 that in respect of interview posts included in Table-1 of the notification, option regarding post preference will be obtained at the time of oral test from those who appeared for oral test.
(ix) Following the notification dated 15.11.2009, a supplementary notification was also issued in advertisement No.222, including one more post under Table-2 viz., the post of Assistant in the Highways Department, carrying a scale of pay of Rs.5,200-Rs.20,200/-. The Service Code of the post was indicated as 2202 and number of vacancies were indicated as 135.
(x) As per the first notification dated 15.11.2009, the last date for receipt of the applications was 30.12.2009 and the date of the written examination was fixed as 11.4.2010.
(xi) But before the date of the examination, the Government issued G.O.(4D) No.7, Personnel and Administrative Reforms Department dated 22.3.2010, relaxing Rule 8 of the Special Rules for Tamil Nadu Secretariat Services, so as to fill up 186 posts of Assistant Section Officers, reserved for being filled up by promotion, through the Tamil Nadu Public Service Commission by way of direct recruitment. This order of relaxation was issued by the Government in exercise of the powers conferred by Rule 48 of the General Rules for Tamil Nadu State and Subordinate Services.
(xii) On 11.4.2010, a written examination was held as originally scheduled in the advertisement dated 15.11.2009. But before the process of selection in pursuance of the first notification dated 15.11.2009 was over, the Tamil Nadu Public Service Commission issued two advertisements dated 30.12.2010 and 8.2.2011, calling for applications for direct recruitment to 281 posts of Assistant Section Officers bearing the Post Code No.1072.
(xiii) In the meantime, the Tamil Nadu Public Service Commission started sending interview call letters to the candidates selected in the written examination conducted on 11.4.2010 in pursuance of the notification dated 15.11.2009. In those interview call letters, it was indicated that 186 vacancies of Assistant Section Officers (other than Law and Finance Department) in the Secretariat Service were also to be filled up. Therefore, the candidates were given the option to exercise post preference. Upon coming to know of the same that those 186 vacancies which were reserved to be filled up by promotion, but which got diverted to the direct recruitment quota, under G.O.(4D) No.7 dated 22.3.2010, were also to be filled up on the basis of the old examination, the petitioners came up with the above writ petitions.
5. It appears that at the time when the writ petition was admitted on 11.3.2011, this Court granted an interim order to maintain status-quo. However, the order was later vacated by another learned Judge and the same was also confirmed by the Division Bench. Therefore, the respondents appear to have proceeded with the oral interview for all the posts, including those 186 posts and released a select list. But till date, no appointment orders have been issued to the candidates who have been selected for appointment to the post of Assistant Section Officers. It must also to be noted that persons selected for appointment to other posts (other than Assistant Section Officers) have been issued with appointment orders as those posts are not in controversy in any writ petitions.
6. The only ground on which the petitioners challenge the decision taken by the respondents to fill up 186 posts of Assistant Section Officers, on the basis of the selection held in pursuance of the notification dated 15.11.2009, is that the same infringes the rights of thousands of candidates who were not qualified on the date of the notification viz., 15.11.2009, but who became qualified subsequently when these 186 posts became available for being filled up. In other words, the contention of the petitioners is that after conducting a Recruitment Drive purportedly for filling up 13 posts of Assistant Section Officers in Law Department and 4 posts of Assistant Section Officers in the Tamil Nadu Public Service Commission, it is not open to the respondents to fill up an additional 186 posts, without a fresh notification. The filling up of these 186 posts, for which no notification was issued, is opposed by the petitioners on the ground that the same violates Articles 14 and 16 of the Constitution.
7. The learned counsel on both sides rely upon several decisions of the Apex Court and this Court to drive home the point as to whether non-notified posts could be filled up and if so under what contingencies it could be done. A careful perusal of the decision relied upon by both sides would show that there was no difference in the principles of law laid down in all those decisions. However, in a few of those decisions, the results have varied, due to some peculiar facts. Therefore, it will be useful to present all those decisions in a Tabular Column, giving against each of them a set of brief facts, the principles of law laid down therein and the ultimate result of each one of them, as below:- Citation
Brief Facts
Ultimate outcome
Prem Singh vs. Haryana State Electricity Board
{1996 (4) SCC 319}
A notification dated 2.11.1991 for filling up 62 vacant posts of Junior Engineers was issued. 5,955 persons were found eligible out of those who applied. 893 candidates were called for interview. Then the Selection Committee selected 212 candidates out of whom 147 were appointed. Therefore, two issues were raised viz., (i) whether it was open to the Board to prepare a list of 212 candidates and appoint 137, when the number of posts advertised was only 62 and (ii) whether the High Court was justified in quashing the selection of all 212 candidates and the appointments of 137. The Supreme Court upheld the selection of 62 candidates for the vacancies as originally notified. The Court also upheld the selection for 25 additional posts, thereby validating the selection of 87 candidates and setting aside the selection of the rest. Virender S.Hooda vs. State of Haryana {1999 (3) SCC 696}
Haryana Public Service Commission advertised for recruitment to 12 posts in the Civil Service. 3 candidates who could not make it to the select list came to Court contending that as per the Circulars issued by the State of Haryana, any additional vacancies arising within 6 months of the Service Commission making its recommendations, could also be filled up. The High Court rejected the claim. But the Supreme Court reversed the decision. The appeal was allowed and the State of Haryana was directed to consider the cases of the appellants on the basis of the Circulars.
All India SC/ST Employees Assn. vs. A.Arthur Jeen {2001 (6) SCC 380}
The Railway Board issued a notification for filling up 330 posts of Khalasis. Out of 58,675 applications received, 32,563 were found eligible and called for interview. Ultimately, a decision was taken to fill up 917 vacancies. In the meantime, interviews were conducted from July 1996 to February 1997 by different Committees. But the Central Administrative Tribunal set aside a Circular on the basis of which the Interviewing Committees had been constituted. Therefore, a fresh Circular was issued and a fresh round of interviews were held from June to September 1998. Thereupon, a panel of 917 candidates was published. A challenge was made to the selection. The Administrative Tribunal set aside the selection on the ground that only 330 vacancies were notified. The High Court reversed the decision and restricted the selection to 382. The decision of the High Court was upheld.
Sri Kant Tripathi vs. State of U.P. {2001 (10) SCC 237}
Five vacancies were notified for direct recruitment to Higher Judicial Service in U.P. Subsequently the Full Court of the High Court approved 68 Officers for temporary promotion. However, the Selection Committee prepared a list of 9 persons out of whom 7 were selected by the Full Court for appointment. But 68 persons whose cases were recommended for temporary appointment, filed a writ petition seeking a direction to the effect that the quota for promotion should also be filled up simultaneously. In the meantime, the Selection Committee increased the number of posts available for direct recruits to 25. This was challenged before the Supreme Court on the ground that the Selection Committee cannot increase the number of direct recruits. The Supreme Court interpreted the expression vacancies likely to occur in the next two years in Rule 8(1) to mean only those vacancies which would arise due to super-annuation. Therefore, the appointments made were not annulled, but future directions given. Suvidya Yadav vs. State of Haryana {2002 (10) SCC 269}
Advertisement was issued for filling up 18 posts of Principal. The Service Commission recommended the names of 30 persons, on the basis of a request made by the Government before the finalisation of selection. A non selected candidate challenged the selection successfully before the High Court. The selected candidates went to the Supreme Court. The Supreme Court reversed the decision of the High Court, holding that there was no bar on the power of the Service Commission to recommend 30 names. Secretary, A.P. Public Service Commission vs. B.Swapna {2005 (4) SCC 154}
An advertisement for filling up 8 posts of Assistant Public Relation Officers was first issued. Later, 7 more vacancies were notified and the selection of 15 candidates was finalised in 1996. The wait listed candidate filed a writ petition contending that as per Rule 6 of the relevant rules, the wait list will be valid for one year and that 14 vacancies were notified during this period of one year. Her contention was that these 14 vacancies which arose within one year should be filled up only from the waiting list. She succeeded before the Tribunal and the High Court. The Service Commission went to the Supreme Court. The Supreme Court reversed the decisions on the ground that the Service Commission had the right to freeze any wait list and that there cannot be any appointment beyond the number of advertised posts. Smt.Vijaya Dayal vs. Chattisgarh Public Service Commission {W.P.No.3701 of 2005 - Chattisgarh High Court}
Advertisement issued in August 2004, was for 30 vacancies of Civil Judges Class-II. Subsequently, it was increased to 61, keeping in view the availability of vacancies upto December 2005. An unsuccessful candiate filed a writ petition, claiming that the recruitment for the additional vacancies was wrong. The High Court of Chattisgarh dismissed the writ petition on the ground that the advertisement contained a variation clause.
Bicitra Bora vs. State of Assam {2007 (4) GLT 147}
An advertisement was issued in March 1999, for filling up the post of Assistant Inspector of Excise in Grade III. The petitioners submitted their applications and they did not receive any communication from the respondents. However, they came to know that respondents propose to appoint persons without following the procedure. W.P. filed challenging the proposed appointment. Guwahati High Court directed the respondents to appoint persons as per the Recruitment Rules. In May 2005, the respondents requested the Employment Exchange to forward a panel of 100 candidates with a clarification that the eligible candidates who applied in 1999 need not apply afresh. Hence, the name of the petitioners were not sponsored. However, they did not receive any admit cards for the written examination. Their representations were dismissed on the ground that the respondents did not receive their applications and that appointments have already been made. High Court dismissed the petition holding that the petitioners failed to establish that they made application and that the records did not disclose any illegality in the process followed by the respondent. Amlan Jyoti Borooah vs. State of Assam {2009 (3) SCC 237}
State Government issued advertisement in 1997 for filling up 112 vacancies of Sub Inspectors by direct recruitment, mentioning the procedure as candidates qualified in the written examination were required to appear in physical test and interview. But, candidates who obtained 40% or more marks were called for interview first and who were selected in the interview were called for physical test for final selection. Hence, a challenge was made to the conduct of selection, which was not as per the advertisement. High Court set aside the appointment of 54 candidates. On appeal, the appointment was upheld with direction. Apex Court held that selection process should have been conducted in the order mentioned in the advertisement.
Rakhi Ray vs. High Court of Delhi {2010 (2) SCC 637}
High Court of Delhi issued advertisement to fill up 20 posts of District Judges in May 2007. As per reservation, 13 vacancies for general category candidates were filled up as per the merit list. Certain unsuccessful candidates filed writ petitions claiming that during the pendency of the selection process, 13 vacancies arose and that could have also been filled up from the select list. High Court held that only 3 vacancies arose and directed to fill up 2 vacancies for general category. Supreme Court held that a person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment is a condition of eligibility for appointment and it does not amount to selection or create a vested right for appointment. S.Suyam Prakasam vs. Secretary to Government {2011 (1) CWC 930}
TNPSC called for applications to fill up 1576 vacancies of Village Administrative Officers. It included the shortfall vacancies of 1077 for SC/ST. Petitioner challenged the advertisement on the ground that earmarking 1077 posts for SC/ST is illegal and contrary to ground reality. This court held that State can make provision for appointment in respect of quota for SC/ST candidates to be filled up in the name of backlog vacancies. In the absence of challenge to the G.O., advertisement of TNPSC cannot be challenged. Mukul Saikia v. State of Assam {(2009) 1 SCC 386}
The Service Commission advertised 27 posts and a selection process was held. In the final list, 64 candidates far in excess were included. In the meantime, the State took a policy decision to regularise candidates appointed on temporary basis and who could not succeed in the selection process. Therefore, the candidates whose names appeared in the select list and who were beyond the 27th position challenged the decision of the Government to regularise temporary hands. Single Judge of the High Court dismissed the writ petition holding that no posts beyond 27 advertised vacancies could be filled up from the select list. The Division Bench confirmed the same. These decisions were challenged before the Supreme Court. Holding that the filling up of vacancies over and above the number of vacancies advertised violated Articles 14 and 16, the Supreme Court dismissed the Special Leave Petitions. State of Orissa v. Rajkishore Nanda {(2010) 6 SCC 777}
15 posts were advertised. It was increased to 33 and hence, a merit list of 66 candidates was eventually published. Persons whose names appeared in the merit list, but who were not appointed, approached the Tribunal. The Tribunal directed their appointments. The State filed a writ petition and the same was allowed partially, restricting the benefit of the order of the Tribunal only to those who approached the Tribunal. The State preferred a Special Leave Petition before the Supreme Court. Reversing the decision of the High Court, the Supreme Court held that a select list cannot be treated as a reservoir for the purpose of appointments.
Arup Das v. State of Assam
160 posts were advertised. 12,000 candidates applied. After written test, viva voice was restricted to 560 candidates. After publishing a select list of 160 candidates and sending them for training, 3 more lists were sent by the Director to the Government for appointment on the ground that more vacancies had arisen. The Government refused to appoint persons from the second, third and fourth lists, since 160 persons had already been selected. The decision of the Government was challenged unsuccessfully before the High Court and the matter was taken to Supreme Court. Dismissing the Special Leave Petition, the Supreme Court held that more vacancies than the number advertised cannot be filled up.
8. Having taken note of the facts out of which the above decisions arose, let me now turn on to the principles of law laid down in those decisions. In Prem Singh vs. Haryana Electricity Board {1996 (4) SCC 319}, the Supreme Court held in para 25 as follows:- 25. From the above discussion of the case-law it becomes clear that the selection process by way of requisition and advertisement can be started for clear vacancies and also for anticipated vacancies but not for future vacancies. If the requisition and advertisement are for a certain number of posts only the State cannot make more appointments than the number of posts advertised, even though it might have prepared a select list of more candidates. 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 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.
9. In Sri Kant Tripathi vs. State of U.P. {2001 (10) SCC 237}, the Supreme Court held in para 19 as follows:-
Since the Court determines the number of officers to be taken at the particular recruitment, keeping in view the vacancies then existing as well as likely to occur in the next two years and from out of such available vacancies, allocates, in respect of various sources of recruitment, in terms of Rule 6, only after which an advertisement could be published for direct recruitment under Rule 17, the question of any variation thereafter, would not arise in the ordinary course. But in an extraordinary situation, like sudden creation of posts in the cadre, subsequent to the issuance of advertisement, but before the last date of submission of application forms, the variation clause may become applicable, is that a greater number of persons, than the posts advertised for, could be considered for the said recruitment. However, as has been stated earlier, such allocation will have to be an extraordinary one.
10. In Secretary, A.P. Public Service Commission vs. B.Swapna {2005 (4) SCC 154}, the Court held in para 10 as follows:-
10. There are two principles in service laws which are indisputable. Firstly, there cannot be appointment beyond the advertised number and secondly norms of selection cannot be altered after the selection process has started. In the instant case 15 posts were to be filled up.
11. In Amlan Jyoti Borooah vs. State of Assam {2009 (3) SCC 227}, it was held in para 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 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.
12. In Rakhi Ray vs. High Court of Delhi {2010 (2) SCC 637}, the Court held in para 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 'improver 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 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 (vide Union of India vs. Ishwar Singh Khatri {1992 Supp (3) SCC 84}, Gujarat State Dy. Executive Engineers' Assn. vs. State of Gujarat {1994 Supp (2) SCC 591}, State of Bihar vs. Secretariat Asstt. Successful Examinees Union 1986 {1994 (1) SCC 126}, Prem Singh vs. Haryana SEB {1996 (4) SCC 319} and Ashok Kumar vs. Banking Service Recruitment Board {1996 (1) SCC 283}.
13. In State of Orissa v. Rajkishore Nanda {(2010) 6 SCC 777)}, it was held in para 11 as follows:-
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 and such a deviation is permissible only after adopting policy decision based on some rational, otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, not permissible in law. (Vide State of Bihar v. Secretariat Asstt. Successful Examinees Union 1986 (AIR 1994 SC 736), Prem Singh v. Haryana SEB ((1996) 4 SCC 319), Ashok Kumar v. Banking Service Recruitment Board (AIR 1996 SC 976), Surinder Singh v. State of Punjab (AIR 1998 SC 18) and Rakhi Ray v. High Court of Delhi (AIR 2010 SC 932).).
14. In Arup Das v. State of Assam {order dated 27.02.2012}, the Supreme Court, pointed out in paras 10 and 11 as follows:-
10. ... It is well-established that an authority cannot make any selection / appointment beyond the number of posts advertised, even if there were a larger number of posts available than those advertised. The principle behind the said decision is that if that was allowed to be done, such action would be entirely arbitrary and violative of Articles 14 and 16 of the Constitution, since other candidates who had chosen not to apply for the vacant posts which were being sought to be filled, could have also applied if they had known that the other vacancies would also be under consideration for being filled up. ...
11. In a recent decision rendered by this Court in State of U.P. Vs. Raj Kumar Sharma [(2006) 3 SCC 330], this Court once again had to consider the question of filling up of vacancies over and above the number of vacancies advertised. Referring to the various decisions rendered on this issue, this Court held that filling up of vacancies over and above the number of vacancies advertised would be violative of the fundamental rights guaranteed under Articles 14 and 16 of the Constitution and that selectees could not claim appointments as a matter of right. It was reiterated that mere inclusion of candidates in the Select List does not confer any right to be selected, even if some of the vacancies remained unfilled. This Court went on to observe further that even if in some cases appointments had been made by mistake or wrongly, that did not confer any right of appointment to another person, as Article 14 of the Constitution does not envisage negative equality and if the State had committed a mistake, it cannot be forced to perpetuate the said mistake.
15. On a careful scrutiny of the ratio laid down in all the decisions referred to above, the principles of law that emerge, could be summarised as follows: (i) that a recruitment could be for existing (or clear) vacancies as well as for anticipated vacancies;
(ii) that it cannot be for future vacancies;
(iii) that if the requisition and advertisement are for a certain number of posts only, the State cannot make more appointments than the number of posts advertised, even if a select list of more candidates had been prepared; (iv) that the State can deviate from the advertisement and make appointments for more vacancies, in exceptional circumstances only or in an emergent situation and that too, by taking a policy decision in that behalf; (v) that the appointment of more number of candidates than the number of posts advertised, would actually alter the norms of selection, after the selection process has started, infringing the rights of persons who qualify after the cut off date prescribed in the first notification; and (vi) that the filling up of vacancies over and above the number of vacancies advertised, would be violative of Articles 14 and 16.
16. Therefore, three principles emerge, namely:-
(i) that both existing as well as anticipated vacancies can be filled up, but future vacancies cannot be filled up in pursuance of a selection notification; (ii) that confining the ultimate selection only to the number of posts advertised, with a small variation within tolerance limits, is the rule; filling up more number of vacancies than the number advertised, can be only by way of exception; and (iii) that to make a case fall under the exception to the rule, there must be an emergent situation and as a consequence, a policy decision ought to have been taken. Let me now apply all these 3 tests to the cases on hand.
Test-1-Existing/Anticipated vacancies or Future vacancies
17. It must be noted that the vacancies in the post of Assistant Section Officers sought to be filled up by the first notification dated 15.11.2009, related only to the Law Department and TNPSC. They were 13 and 4 respectively and these posts had different code numbers. The posts of 186 Assistant Section Officers sought to be filled up, related to departments other than Law and TNPSC. These 186 vacancies might have existed even on 15.11.2009, the date of the notification. But, they existed as vacancies reserved for promotion. It was only on 22.3.2010 that by virtue of G.O.(4D) No.7, these 186 posts intended for promotion were diverted to be filled up by direct recruitment, by relaxing Rule 8 of the Special Rules, by exercising the power of relaxation under Rule 48 of the General Rules.
18. It is a well settled proposition of law that any order granting relaxation from the application of the Rules, would take only prospective effect and not retrospective effect, unless otherwise specified by the order of relaxation itself. G.O.(4D)No.7 does not state that Rule 8 was relaxed with retrospective effect. Therefore, it is deemed to have been relaxed only with prospective effect, namely, from 22.3.2010. Consequently, these 186 posts became available for direct recruitment quota only from 22.3.2010 and not earlier than that. In other words, these 186 posts were neither existing vacancies, nor anticipated vacancies, as on the date of the notification, namely, 15.11.2009. These vacancies were created for the purpose of direct recruitment, only from 22.3.2010, though they existed for being filled up by the promotional quota. Hence, these vacancies were actually future vacancies insofar as the notification dated 15.11.2009 is concerned.
19. Two things should be borne in mind. They are:-
(i) since these 186 vacancies came into existence for being filled up by direct recruitment, only from 22.3.2010, within four months of the notification, the Government could have issued a supplemental notification after 22.3.2010, as the examination was scheduled to be held only on 11.4.2010. But, the Government did not do so; and (ii) The next notifications were issued on 30.12.2010 and 08.02.2011, followed by a supplemental notification dated 11.6.2011. It was only under supplemental notification dated 11.6.2011 that 281 posts of Assistant Section Officers in other than Law and Finance Departments were advertised. Therefore, for these notifications dated 30.12.2010, 8.2.2011 and 11.6.2011, those 186 posts were existing/anticipated vacancies and hence, those 186 posts could have been included lawfully, in these notifications dated 30.12.2010 and 08.02.2011. If they had done so, persons who became eligible before the cut off date prescribed by these subsequent notifications, namely, 01.7.2010, could have participated.
20. Therefore it is clear that the filling up of these posts without the notification covering these posts, became illegal, in view of the fact (i) that these 186 posts of Assistant Section Officers having post code No.1072 were neither existing nor anticipated vacancies as on 15.11.2009, but were only future vacancies as they were diverted to the direct recruitment quota only on 22.3.2010, and (ii) that even before the finalisation of the results of the selection in pursuance of the notification dated 15.11.2009, the next notification was issued on 30.12.2010. Once it is found to be illegal, the onus of proving (i) that there was an emergent situation and (ii) that a policy decision was taken by the Government, is cast heavily upon the Government. Test-2- Variation permissible
21. It is the contention of the contesting respondents that under para 3.B of the notification dated 15.11.2009, the number of vacancies advertised was indicated only to be approximate and that it was liable to be modified with reference to the vacancy position at any time before finalisation of selection. But this contention, as rightly argued by the learned Senior Counsel appearing for the petitioners, cannot hold good for two reasons. They are:- (i) An approximation will not allow for a huge variation. Notifying 20 vacancies and filling up 30, may fit into the scheme of para 3.B of the notification. But notifying 17 posts (13 + 4) and filling up 186 posts, cannot be justified on the basis of the law of approximation. (ii) Assuming that approximation is permitted, this case would not fall within what is contemplated by para 3.B of the notification. The notification dated 15.11.2009 relates only to 13 posts of ASOs in Law Department bearing post code No. 1073 and 4 posts of ASOs in TNPSC bearing post code No.2201. But 186 posts of ASOs sought to be filled up on the basis of the same notification relate to the vacancies in other than Law and Finance Departments and they bear post code No. 1072. Therefore, the respondents cannot justify their action on the basis of para 3.B of the notification, when they seek to fill up posts which were never advertised. Test-3 Whether there was emergent situation and Whether there was policy decision:
22. The third test to be applied is to see whether there was an emergent situation warranting the filling up of non non notified vacancies; and if there was a policy decision. The learned Advocate General represented that a policy decision was in fact taken by the previous Government and that the Government stands by the decision so taken. He also produced a letter of the Principal Secretary to Government dated 16.2.2012, to the effect that there was no deviation in the policy. Before considering this aspect, let me see whether there was an emergency.
23. To see if there was an emergency, certain dates and events and certain facts are required to be noted. They are as follows:
(i) On 15.11.2009, a notification was issued for filling up about 11 posts carrying the scale of pay of Rs.9300-34800 and 10 posts carrying the scale of pay of Rs.5200-20200; (ii) Out of those 11 posts carrying the scale of pay of Rs.9300-34800, only 2 posts were that of Assistant Section Officer (Law Department) and Assistant Section Officer (TNPSC); (iii) The Code numbers of these posts were 1073 and 2201 respectively and the vacancies notified were 13 and 4 respectively;
(iv) On 22.3.2010, G.O.(4D)No.7 was issued diverting 186 posts of Assistant Section Officers reserved for promotion, under Rule 8 of the Special Rules for Tamil Nadu Secretariat Service, to be filled up by direct recruitment; (v) On 11.4.2010, written examination was conducted in pursuance of the notification dated 15.11.2009;
(vi) On 30.12.2010 and 08.02.2011, advertisements were issued for direct recruitment of 2709 interview posts and 1620 non interview posts. No post of Assistant Section Officer was notified; (vii) On 13.01.2011, interview call letters were sent to candidates shortlisted in the written examination conducted on 11.4.2010 in pursuance of the notification dated 15.11.2009; and (viii) On 11.6.2011, a supplementary notification was issued to the notifications dated 30.12.2010 and 08.02.2011, including 281 posts of Assistant Section Officers in the Secretariat (other than Law and Finance Departments). The post code of this post was indicated as 1072.
24. The notification dated 15.11.2009 stipulated that the crucial date for reckoning the minimum and maximum age of a person would be 01.7.2009 and the crucial date for acquisition of qualification would be the date of the notification, namely, 15.11.2009. The notifications dated 30.12.2010 and 08.02.2011, which were supplemented by a supplemental notification dated 11.6.2011, prescribed 30.12.2010 as the date for reckoning the qualification and 01.7.2010 as the date for reckoning the age limit.
25. The presentation of facts in a tabular form, may drive home the point much easier. Therefore, it is presented as follows:
Notification
Date of notification
Cut off date for reckoning age
Cut off date for reckoning educational qualification
No. of Assistant Section Officer posts notified
Post Code No.
First
15.11.2009
01.7.2009
15.11.2009
Law - 13
TNPSC - 4
1073
2201
Second &
Third
30.12.2010 & 08.02.2011
01.7.2010
30.12.2010
Nil
Nil
Supplemental to second & third
11.6.2011
01.7.2010
30.12.2010
Other than Law & Finance - 281
1072
26. The question whether there was an emergent situation or not and whether there was a policy decision or not, can be answered only by making a reference to the counter filed by the Government. Therefore, let me look into the counter affidavit of the first respondent.
27. In paragraph 3 of the counter affidavit, the Government had stated that as per Rule 8 of the Special Rules for Tamilnadu Secretariat Service, the post of Assistant Section Officers in the Departments of the Secretariat, other than in the Departments of Law, Tamil Development, Culture and Religious Endowments and the Governor's Secretariat, is to be filled up in the manner prescribed below : In rule 8 of the Special Rules for the Tamil Nadu Secretariat Service, the following pattern of appointment of Assistant Section Officers in the Departments of Secretariat other than the Law Department, Tamil Development, Culture and Religious Endowments Department (Translations) and Governor's Secretariat has been prescribed -
1. by direct recruitment;
2. by promotion from the category of Assistant;
3. by promotion from the category of Assistant;
4. by promotion from the category of Assistant;
5. by promotion from the category of Assistant;
Provided that the 20th rotation shall be filled up by the non-graduate Assistants and that if no suitable and qualified non-graduate Assistants is available, then the said rotation shall be filled up from among the holders of the post of Assistant;
6. by promotion from the category of Senior Personal Clerks;
7. by promotion from the category of Senior Typists; and
8. by recruitment by transfer from the category of Assistant in the Tamil Nadu Ministerial Service or in the Tamil Nadu Judicial Ministerial Service.
28. It is further stated in the counter affidavit of the first respondent that when an estimate of vacancies was prepared, for the post of Assistant Section Officers in the Secretariat in all Departments except Law and Finance, for the year 2009-2010, it was noticed that there were 293 vacancies existing as on 16.2.2010. Out of them, 281 were substantive and 22 were already in the withheld list of the examination conducted in 2008. It is also stated in the counter affidavit that 91 directly recruited Assistants were granted temporary promotion to the post of Assistant Section Officer and there was a proposal to promote 30 persons who were fully qualified and 43 persons who were likely to get qualified within a few months. Thus, out of 281 substantive vacancies, 73 (43 + 30) vacancies were proposed to be filled up by promotion, leaving a balance of 208 vacancies. Since 22 candidates were already waiting in the withheld list of 2008, the balance to be filled up became 186. Since these posts were to be filled up by promotion and also since qualified hands were not available in the Feeder categories, the Government decided to divert these vacancies to the direct recruitment quota.
29. In paragraph 3(c) of their counter affidavit, the Government has stated that all the Departments of the Secretariat were pressing to fill up the huge vacancies prevailing in the post of Assistant Section Officers and that due to dearth of hands in the Feeder categories, the Government took a policy decision to relax Rule 8 of the Special Rules and fill up these posts by direct recruitment.
30. A careful scrutiny of paragraph 3 of the counter affidavit filed by the Government shows (i) that there was a need to fill up the existing vacancies by way of direct recruitment and (ii) that a policy decision was taken to relax Rule 8. In other words, the averments in paragraph 3 justify the mere conversion of the vacancies reserved for promotion, into vacancies that could be filled up by direct recruitment. These averments speak only about a policy decision to divert these vacancies for direct recruitment. But they do not speak about a policy decision to fill up these vacancies which arose on 22.3.2010, on the basis of the same notification issued on 15.11.2009. Therefore, it is clear that the respondents do not talk about a policy decision to fill up future vacancies on the basis of an earlier notification. They only speak about a policy decision to divert the quota of vacancies for promotion to the direct recruitment quota.
31. The dates and events which I have given above would show that in a period of one year of the first notification dated 15.11.2009, the second notification came to be issued on 30.12.2010, much before the process of viva voce in respect of the first notification commenced. Therefore, there was not such a great emergency, that those 186 vacancies could not have waited to be included in the second notification dated 30.12.2010. If those 186 vacancies had been included in the second notification dated 30.12.2010, persons who qualified between 1.7.2009 and 1.7.2010 could have participated. The counter affidavit does not disclose any grave emergency that warranted the filling up of these 186 vacancies even under the first notification dated 15.11.2009, without any possibility for waiting till the next notification dated 30.12.2010. Therefore, two things have become clear viz., (i) that the policy decision allegedly taken by the Government was not for filling up 186 posts in pursuance of the notification dated 15.11.2009, but to divert the promotion quota to direct recruitment and (ii) that the issue of the next notification on 30.12.2010, within 9 months of the diversion of the vacancies for direct recruitment under the Governement Order dated 22.3.2010 shows that there was no such emergency situation. Hence, the claim of the respondents fail to pass even the third test.
32. It is contended by some of the learned counsel appearing for the contesting respondents that lakhs and lakhs of candidates have appeared for the examination and that they are awaiting orders of appointment to be issued. According to the contesting respondents, their interest will get jeopardised if the selection is stalled at this stage.
33. But, I do not think so. All the contesting respondents never applied for any particular post, in pursuance of the notification dated 15.11.2009. Their application was for Combided Services Examination I, which included 11 interview posts carrying a scale of pay of Rs.9,300-34,800 and ten non interview posts carrying of a scale of pay of Rs.5,200-20,200. It is only after candidates are shortlisted on the basis of their performance in the written examination, an option has been given to the top rankers to give a choice, before they are called for interview. As a matter of fact, para 7 of the Advertisement dated 15.11.2009 makes it clear that for interview posts, the question of exercising post preference does not arise until the time of oral interview. All the contesting respondents applied for all the posts in Table-I and took the written examination without any particular preference, since the question of preference to a post would arise only at the time of oral interview, as per para 7 of the notification. The fact that the contesting respondents were invited for interview by call letters issued in January/February 2011 would show that till January/February 2011, the contesting respondents had no idea at all about the possibility of the filling up of huge number of posts than those notified. By the time the contesting respondents realised this in January/February 2011, the second notification dated 30.12.2010 had already come, inviting applications for various posts. Therefore, the invitation extended to the contesting respondents, for more number of posts than those advertised, was a fortuitous circumstance. I agree that no man will be willing to forego a lottery that may come his way. But the same cannot be equated a legitimate expectation. Since the second notification dated 30.12.2010 had already come even before the issue of call letters to the contesting respondents in January/February 2011, most of them who fulfilled the eligibility criteria would have even applied in response to the second notification dated 30.12.2010. Therefore, these contesting respondents who pitch their claims on fortuitous circumstances, cannot defeat the right pleaded by the writ petitioners on the basis of Articles 14 and 16 of The Constitution.
34. It is admitted that till date no appointment orders have been issued to any of the persons selected for appointment to the post of ASOs over and above those 17 vacancies originally notified in the advertisement dated 15.11.2009. Therefore, there is no question of anyone being deprived of any right already vested in them, if the prayer sought in the writ petitions is granted. It is needless to point out that at the most the contesting respondents can be taken to be candidates selected or waiting to be selected for appointment to vacancies far in excess of those notified. Such candidates acquired no legal right and hence they cannot cry over the loss of a chance that came their way as by way of a jackpot.
35. A feeble attempt was made by some of the counsel appearing for the contesting respondents, questioning the maintainability of the writ petitions on the ground that the petitioners never participated in the selection and that therefore, it is not their concern to question how many vacancies are sought to be filled up. But this contention is to be stated only to be rejected. If the petitioners had participated in the selection, two things could have happened. One is that they might have got selected. Another is that they may not have been selected. If they had been selected, they would have had no cause of action to come here. If they had not been selected, they cannot at all challenge the selection of the contesting respondents, even if more posts are sought to be filled up. This is for the reason that the contesting respondents will be found to have been more meritorious. Therefore, the writ petitions have become maintainable only due to the fact that the petitioners did not participate in the selection process in pursuance of the notification dated 15.11.2009.
36. The learned counsel for some of the respondents relied upon the order passed by K.N.Basha, J., vacating the interim orders originally granted ex parte. They also relied upon the decision of the Division Bench confirming the order of the learned Judge. But it is needless to point out that the parameters on which an interim prayer is to be tested, are different from the parameter on which the main writ petitions are to be decided. The final decision in any proceeding cannot depend upon the outcome of the miscellaneous petitions for interim relief. Therefore, the contention of the learned counsel for the contesting respondents deserves to be rejected.
37. One more contention is advanced on behalf of the contesting respondents. It is that the petitioners have not challenged G.O.(4D) No.7 dated 22.3.2010 under which 186 vacancies intended for promotion have been diverted to be filled up by direct recruitment. Therefore, according to the contesting respondents, without challenging the Government Order, the filling up of these posts cannot be assailed. In support of this contention, the learned counsel for the contesting respondents also rely upon a judgment of K.Chandru, J., in Suyam Prakasam vs. The Secretary to Government {2011 (1) CWC 930}.
38. But the above contention arises out of a thorough misunderstanding of the basis of the claim of the petitioners. It appears that some employees working in the Secretariat had earlier challenged the Government Order and later withdrew the writ petition. But the petitioners herein do not oppose the diversion of the vacancies intended to be filled up by promotion, for direct recruitment. All that they oppose is that those vacancies which arose subsequently, cannot be filled up under a prior notification. The petitioners can be expected to challenge the Government Order only if they are opposing the very diversion of the promotion quota for direct recruitment. In fact, the petitioners in one writ petition are working as Assistants in the Secretariat. The petitioner in the other writ petition is an unemployed person. He is consequently a beneficiary of the Government Order. All that he wants is that these vacancies which arose after the notification, cannot be filled up under the same notification. Therefore, he cannot be expected to challenge the Government Order and hence this contention also does not hold good.
39. In view of the above, I am of the considered opinion that the selection in pursuance of the notification dated 15.11.2009 should be confined only to the actual number of vacancies notified in all departments, including 13 posts of ASOs in the Law Department and 4 posts of ASOs in the TNPSC. The respondents cannot fill up 186 posts of ASOs on the basis of the very same selection. However it will be open to the respondents to fill up these 186 posts of ASOs on the basis of the selection conducted in pursuance of the notifications dated 30.12.2010 and 8.2.2011 as supplemented by the supplementary notification dated 11.6.2011. This is in view of the fact that as on the date of the second notification viz., 30.12.2010, these 186 posts had become existing vacancies for direct recruitment by virtue of G.O.4D.No.7 dated 22.3.2010.
40. Accordingly, both the writ petitions are allowed with the following directions:
(i) The selection in pursuance of the notification dated 15.11.2009 shall be confined only to the vacancies notified in the advertisement dated 15.11.2009; and
(ii) It may be open to the Government to fill up 186 posts of Assistant Section Officers in the Departments of the Secretariat (other than Law and Finance) which were diverted to be filled up by direct recruitment by G.O.4D.No.7 dated 22.3.2010, on the basis of the selection conducted in pursuance of the later notifications dated 30.12.2010 and 8.2.2011 and the supplementary notification dated 11.6.2011. There will be no order as to costs. Consequently, connected miscellaneous petitions are closed.