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IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA,

MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH)

WRIT APPEAL NO.95/2007

APPELLANTS

The State of Assam represented by the Secretary

to the Govt of Assam, Health and Family Welfare Department,

Dispur, Guwahati

By advocates : Mr D Saika

Mrs A Verma Mr B Gogoi

RESPONDENTS

1. Dr Malavika Barman, D/o Dr Dongshi Barman,

Sarvodaya Path, ABC Bus Stop, Bhangagarh, Guwahati-5, Kamrup, Assam

2. The Assam Public Service Commission,

represented by its Chairman

B advocates : Mr PK Goswami

Mr AM Buzarbaruah Mr DC Nath

Ms M Barman Mr C Baruah, CGC

Mr U Bhattacharyya

BEFORE HON’BLE THE CHIEF JUSTICE MR J CHELAMESWAR

HON’BLE MR JUSTICE HRISHIKESH ROY

Dates of hearing : 28-5-08 and 29-5-08

Date of judgment and :13-06-2008

Order

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JUDGMENT AND ORDER

(Chelameswar, CJ)

This appeal arises out of the judgment in WP(C)

No.6430/06 dated 18-1-07. The 3rd respondent in the above

mentioned writ petition is the appellant herein. The writ

petitioner therein is the 1st respondent in the present

appeal.

2. The writ petition was filed with the prayer as

follows :-

“ It is therefore prayed that your Lordships be pleased to

admit this petition, call for the records, issue a Rule calling

upon the respondents to show cause as to why a writ in

the nature of Certiorari should not be issued setting aside

and quashing impugned advertisement dated 17-12-2006

(Annexure-9) inviting applications from the intending

candidates for an walk-in-interview amongst others, for the

post of Demonstrator of Bio-chemistry and/or a writ in the

nature of Mandamus directing the respondents to rescind,

recall or forbear from giving effect to the order of impugned

advertisement dated 17-122006 (Annexure-9) and not

terminate the service of the petitioner and/or a further writ

in the nature of Mandamus to make appointment on regular

basis from the select list dated 28-02-2006 prepared by the

APSC against the 8 clear, sanctioned and admitted

vacancies in the post of Demonstrator of Bio-chemistry

and/or a further writ in the nature of Mandamus to make

appointment on regular basis from select list dated 28-02-

2006 prepared by the APSC against the 13 clear,

sanctioned and admitted vacancies in the post of

Demonstrator of Pathology and upon perusal of records,

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considering the show cause, if any, and upon hearing the

parties be pleased to make the Rule absolute and pass

such order/orders as your Lordships may deem fit and

proper in the facts and circumstances of the case.”

3. The facts leading to the writ petition are as

follows :-

Admittedly the writ petitioner was appointed to

the post of Demonstrator in Bio-chemistry in the Gauhati

Medical College on the basis of a selection held in the year

2002 conducted by the State of Assam. The said selection is

purported to have been conducted in pursuance of the

power conferred under Regulation 3(f) of the APSC

Regulations. Admittedly the post against which the

petitioner was appointed is a permanent post but by the

appointment order dated 28-2-2003 the petitioner was

purported to have been appointed under Reg 3(f) of the

Assam Public Service Commission (Limitation of Functions)

Regulation, 1951. As a matter of fact 28 persons including

the writ petitioner came to be appointed by the proceedings

referred to above. It may be mentioned here that the Assam

Public Service Commission (Limitation of Functions)

Regulation, 1951 is a Regulation made in exercise of the

power conferred under Article 320 Clause (3) proviso by the

Governor of Assam. Regulation 3 Clause (f) reads as follows

:-

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“ 3.(f) When an appointment is to be made by direct

recruitment to a temporary post created in a service, if it is

necessary in the public interest that the appointment

should be made immediately and reference to the

Commission would cause undue delay; provided that if the

post has been sanctioned for, or is likely to last for more

than four months, the Commission shall, as son as

possible, be consulted in all matters mentioned in sub-

clause 3 of Article 320 of the Constitution.”

From the language of the above extracted Clause

it appears that resort to the power under Clause 3 of APSC

Regulation is permissible only in the case of filling up of a

temporary post but not in the case of a permanent post.

Nonetheless, the appellants chose to fill up a large number

of posts (28 in number) which, we are informed at the Bar,

are permanent posts. At any rate the post against which the

respondent/writ petitioner was selected and appointed is

undisputedly a permanent post.

4. Having selected the writ petitioner (and 27 others)

by such a process, the legal effect of which we will examine

later, the appellants chose to appoint the writ petitioner by

its proceeding dated 28-2-03 “for a period of 4(four) months

or till the post is filled up through Assam Public Service

Commission, whichever is earlier”.

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5. Admittedly, the service of the writ petitioner and

various others who were so appointed came to be extended

from time to time and admittedly the writ petitioner

continued to be in service on the date of filing of the writ

petition by virtue of such extension orders.

6. By an Advertisement No.3/2005 dated 8-4-05

issued by the Assam Public Service Commission (the 2nd

respondent herein) applications were invited from eligible

candidates for filling up of various posts including four

posts of Demonstrator in Bio-chemistry under the “Govt of

Assam”.

7. It is asserted in the writ petition by the petitioner

that there are no rules governing the services in the Health

Department. It is worthwhile mentioning that the allegation

went unrebutted in the writ petition. In response to a

specific query at the time of hearing of this appeal whether

there is any statute or rules made under Article 309 of the

Constitution governing the service conditions of the

employees of the Health Department of State of Assam, such

as the writ petitioner herein, or at least governing the

service conditions of the writ petitioner and people similarly

situated, that is, the persons working as Demonstrators in

various branches in the medical colleges run by the State of

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Assam, Mr D Saikia, learned State Counsel made a

categorical statement that there is neither statute nor rules

framed under Article 309 by the State of Assam.

8. Admittedly the respondent/writ petitioner

responded to the above mentioned Advertisement

No.3/2005. The 2nd respondent published a select list after

following the appropriate process of selection. Admittedly

the name of the writ petitioner appeared at Sl No.7 in order

of merit. By the said advertisement insofar four posts of

Demonstrator in Bio-chemistry are sought to be filled up of

which one post is of a backlog vacancy of OBC and the other

three are unreserved vacancies. Even according to the writ

petitioner the candidates who figured above her on the merit

list at Sl No.3 and 4 belong to OBC category. Therefore, the

candidate figuring at Sl. No.3 was appointed against one of

the posts unreserved because of his superior merit and the

candidate who figured at Sl. No.4 was appointed against the

backlog vacancy reserved in favour of OBCs.

9. One of the specific averments in the writ petition,

in the context of the above mentioned recruitment, is that

while there were eight posts of Demonstrator in the

Department of Bio-chemistry which were required to be

filled up, the recruitment process was undertaken only for

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four such posts. According to the writ petitioner of the

remaining four posts some were vacant and others were

occupied by ad-hoc appointees.

10. The appellants, on the other hand, in their

affidavit-in-opposition stated that of the four posts which

were allegedly vacant at the time of the Advertisement

No.3/2005 referred to above, one post had fallen vacant

subsequent to the advertisement whereas one post was

created in the month of March, 2006 and two posts fell

vacant in July, 2006 and September, 2006 respectively by

virtue of „promotion‟ of the incumbents therein to the next

higher cadre.

Therefore, the allegation of the writ petitioner that

out of the eight posts available on the date of issuance of the

Advertisement No.3/2005 were not advertised, stands

disputed and we must proceed on the basis that all the four

available posts of Demonstrator in Bio-chemistry in the

medical colleges were advertised and sought to be filled up.

This finding assumes importance in view of a very vehement

submission made by the writ petitioner/ respondent herein

and a great deal of case laws were referred in an attempt to

establish that the writ petitioner is entitled for the relief

claimed in the writ petition as according to the writ

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petitioner the various cases referred to by the writ petitioner

(to which we shall refer to a little later) obligate the State not

only to undertake the recruitment process whenever such

process is initiated for filling up all the existing vacancies

but also anticipated vacancies. We shall refer to this aspect

of the matter in the later part of this judgment.

11. As the matter stood thus, the advertisement

impugned in the writ petition dated 17-12-06 came to be

issued by the Govt of Assam inviting applications from

eligible candidates to fill up the various posts indicated

therein which included the four posts of Demonstrator of

Bio-chemistry in the “Departments of three Medical

Colleges”. It is to be mentioned here that which were those

three medical colleges in which the above mentioned four

posts exists is not clear from the advertisement. It is also to

be mentioned here that such an exercise was undertaken

under Reg 3(f) of the APSC (Limitation of Functions)

Regulation, 1951. The notification further specified that

such a selection process was undertaken invoking the power

under Reg 3(f) of the APSC (Limitation of Functions)

Regulation, 1951 because of an impending inspection by the

Medical Council of India at the Silchar Medical College in

the 2nd week of January, 2006. The implication being that

the Medical Council of India insists on the existence of a

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certain staffing pattern of the teaching faculty of the Medical

Colleges and the non-conformation to such stipulated

staffing pattern would lead to a consequence of de-

recognition of the College by the Medical Council of India.

The relevant portion of the advertisement reads as follows :-

“ There are number of vacancies in the various

departments of the different Medical Colleges of Assam as

per the stipulation of the Medical Council of India. The merit

list prepared by Assam Public Service Commission for

appointment to the post of the Registrar/ Resident

Physician. Resident Surgeon/ Demonstrator/ Anesthetist

etc has fully been exhausted. Waitlisted candidates cannot

be appointed as per the provision of FRBM Act. The Medical

Council of India is likely to visit Silchar Medical College in

the second week of January, 2006 for its periodical

inspection.

In view of the above and to meet the exigency of the

situation the Government of Assam invites applications

from intending candidates with required qualifications for

an Walk-in-Interview for the posts of Demonstrator/

Registrar/ Resident Physicial/ Resident Surgeon etc

against the number of vacancies of the Departments shown

below:-

… … …

… … …

The appointment will be under Regulation 3(f) of

APSC (Limitation of Functions) Regulation, 1951.”

12. Whether such a recruitment process to meet the

administrative exigency professed in the advertisement

would be consistent and legal in terms of Reg 3(f) of APSC

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(Limitation of Functions) Regulation, 1951 is a different

question which requires an examination.

13. Assuming for the sake of argument that such a

recruitment process is otherwise legal, from the affidavit

filed in opposition by the appellants herein it appears that

though by virtue of the Advertisement No.3/2005 four posts

were sought to be filled up one of the posts could not be

filled up by virtue of an interim order of this court made in

WP(C) No.6032/06 dated 8-12-06 to keep one post vacant.

Therefore, the State undertook the ad-hoc recruitment

process for filling up one four posts which are “either newly

created or resultant vacancies arising due to promotion” (in

para 14 of the affidavit-in-opposition).

14. One more important aspect of the matter is that

according to the appellant the writ petitioner/respondent

does not have the requisite educational qualification, that is,

Post Graduate Degree for being appointed as a

Demonstrator in Bio-chemistry, which was specified to be

the requisite qualification in the advertisement. It is

worthwhile mentioning that in the recruitment process

undertaken pursuant to the Advertisement No.3/2005 by

the Assam Public Service Commission it is mentioned as

follows :-

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“Educational qualification – MBBS Degree from Medical

Institution recognised by the MCI and must be registered

under Assam Medical Council Act, 1916 or any other Act.

Preference will be given to candidates having Post

Graduate Degree in the concerned discipline.”

It is, therefore, not clear whether the insistence

on a Post Graduate Degree is pursuant to any stipulation of

law, that is, either a statute or any regulation, made by the

Medical Council of India, if so, as to when such a higher

eligibility criteria came into effect.

15. In the background of the above mentioned facts

the learned Judge by the judgment under appeal came to

the conclusion that the State is under an obligation to take

into account not only the existing vacancies of a particular

class of posts but also anticipated vacancies in the class of

posts while undertaking the recruitment process at any

point of time to fill up the posts of the said class. In this

regard the learned Judge held as follows :-

“The service Rules in force, normally, take care of the above

situation by requiring the appointing authority to take into

account the existing and anticipated vacancies likely to

arise within or in the next calendar year, as may be, and to

initiate the process of appointment/ promotion well in time.

In the present case, however, there are no statutory Rules

in force as preparation of such Rules have not gone beyond

the draft stage. In the above situation, it is the Court which

must draw the line i.e. demarcate the time upto which

vacancies likely to occur, should be covered by an

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advertisement for filling up the posts in the service. More

specifically, in the present case, the Court will have to

identify the posts that should have been included in the

advertisement dated 8.4.2005.”

16. Having held so, the learned Judge recorded the

finding -

“In the present case the advertisement was issued on

8.4.2005; one post of Demonstrator in Bio-Chemistry fell

vacant on 87.2005, the interviews were held on 26.8.2005.

The promotion process giving rise to the vacancy that had

eventually occurred on 8.7.2005, according to the

petitioner, was initiated around the time when the

advertisement was issued though no specific date has been

spelt out. The above position is not disputed by the State.

The State has also not disputed that in a similar situation a

subsequent vacancy in the post of Registrar in ENT

Department was requisitioned by the State for being

covered by the same selection process pursuant to the very

same advertisement dated 8.4.2005 and that the said

„request‟ of the State Govt. was accepted by the Public

Service Commission. If that be so, there is no reason why

the Court should not hold that when the respondents had

issued the advertisement on 8.4.2005 the vacancy in the

post of Demonstrator, Bio-Chemistry which had occurred on

8.7.2005 should have been taken into account and, in any

case, the said vacancy should have been covered by the

selection process culminating in the select list dated

28.2.2006.

17. In substance, in the absence of any statutory

prescription as to the determination of the number of posts

falling in a particular class of posts to be filled up, the

recruitment process should normally be undertaken not

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only to fill up the vacancies existing as on the date on which

the process was initiated but also vacancies which are

anticipated to arise within a reasonable period from the date

of advertisement or during the pendency of the recruitment

process, more particularly, since such a procedure was

adopted in the instant case in the context of recruitment to

a post of Registrar in ENT Department, which fell vacant

subsequent to the date of the Advertisement No.3/2005. The

learned Judge, therefore, concluded that the vacancy in the

post of Demonstrator in Bio-chemistry, which fell vacant on

8.7.2005, that is, much before the recruitment process for

the four posts covered by the Advertisement No.3/2005

came to an end and the State, therefore, ought to have filled

up the said vacancy which arose on 8.7.2005 from out of

the candidates found in the select list dated 28-2-2006.

Therefore, the learned Judge directed the appellants herein

as follows :-

“Contentions have also been advanced by the learned

counsel for the petitioner to show that the petitioner will

have a right to be appointed against the additional vacancy

that had occurred on 8.7.2005 by virtue of her position in

the select list dated 28.2.2006. The principles of law having

been laid down and the views of the Court with regard to

the vacancy in question having been expressed, the Court

is of the opinion that it is the respondents who should now

and forthwith work out the entitlement of the petitioner to

the said vacancy on the basis of the select list dated

28.2.2006 or on the basis of such further alterations in the

modified select list dated 27.7.2006. The advertisement

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dated 17.12.2006 may be given effect to by the

respondents subject to the above directions.”

The learned Judge by the judgment under appeal

recorded a finding that one post of Demonstrator in Bio-

chemistry fell vacant on 8-7-05, that is, much before the

recruitment process for filling up all the four posts of

Demonstrator in Bio-chemistry pursuant to the

Advertisement No.3/2005 came to an end. Such a vacancy

arose because of the fact that the incumbent of that

particular post was promoted on 8-7-05. The learned Judge

also recorded a finding that such a promotion process was

initiated around the same time by which the Advertisement

No.3/2005 came to be issued. Therefore, the learned Judge

opined that the State ought to have reasonably anticipated

such a vacancy and should have notified the same and fill

up the vacancy from out of the candidates who responded to

the Advertisement No.3/2005, in accordance with law.

18. It is to be mentioned here that pursuant to the

judgment under appeal the appellants have in fact

appointed the respondent/writ petitioner by an order dated

14-5-2007 during the pendency of the present appeal.

According to the learned counsel for the appellants such an

appointment is made without prejudice to the rights of the

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appellant to challenge the correctness of the judgment

under appeal.

19. The only submission made by the learned counsel

for the appellant is that by virtue of the judgment under

appeal the learned Single Judge in substance directed the

appellant to consider the case of the respondent/writ

petitioner for appointment against the vacancy which was

not advertised in the Advertisement No.3/2005.

20. The learned counsel for the appellant relied upon

the following decisions in a effort to substantiate his

argument.

(1994) Suppl (2) SCC 5911

(1997) 8 SCC 4882

(1997) 4 SCC 2833

(2006) 3 SCC 3304

(1991) 3 SCC 475

(1995) 3 SCC 4866

In (1995) 3 SCC 486 one of the questions was

whether in a recruitment process initiated for filling up of 11

posts the Public Service Commission was justified in

1 Gujarat State Dy Executive Engineers‟ Association vs State of Gujarat & Ors 2 Surinder Singh & Ors vs State of Punjab & Anr 3 Sanjoy Bhattacharjee vs Union of India & Ors 4 State of UP & Ors vs Rajkumar Sharma & Ors 5 Shankarsan Dash vs Union of India 6 Madan Lal & Ors vs State of J & K & Ors

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preparing the merit list of candidates exceeding 11 in

number and if justified whether the candidates figuring in

the merit list beyond the number 11 are entitled to claim

that their cases should be considered for the vacancies

other than the 11 advertised which arose during the period

of operation of the merit list prepared by the Public Service

Commission. The relevant Rule of the State of Jammu &

Kashmir (Rule 41) stipulated that the list would be valid

either for a period of one year from the date of its

publication or till all the posts advertised are filled up. The

Supreme Court negatived the contention of the claimants

that on the construction of the Rule holding that there is no

legal right as claimed by the appellants therein. The

Supreme Court held as follows :-

“A mere look at the rule shows that pursuant to the

requisition to be forwarded by the Government to the

Commission for initiating the recruitment process, if the

Commission has prepared the merit list and the waiting list

of selected candidates such list will have a life of one year

from the date of publication in Government Gazette or till it

is exhausted by the appointment of candidates whichever

is earlier. This means that if requisition is for filling up of 11

vacancies and it does not include any anticipated

vacancies, the recruitment to be initiated by the

Commission could be for selecting 11 suitable candidates.

The Commission may by abundant caution prepare a merit

list of 20 or even 30 candidates as per their inter se

ranking on merit. But such a merit list will have a maximum

life of one year from the date of publication or till all the

required appointments are made whichever event

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happened earlier. It means that if requisition for recruitment

is for 11 vacancies and the merit list prepared is for 20

candidates, the moment 11 vacancies are filled in from the

merit list the list gets exhausted, or if during the span of

one year from the date of publication of such list all the 11

vacancies are not filled in, the moment the year is over the

list gets exhausted. In either event, thereafter, if further

vacancies are to be filled in or remaining vacancies are to

be filled in, after one year, a fresh process of recruitment is

to be initiated giving a fresh opportunity to all the open

market candidates to compete. This is the thrust of Rule 41.

It is in consonance with the settled legal position as we will

presently see.”

In (1997) 4SCC 283 the issue was whether a

person in the waiting list has a right to seek appointment

and whether the State is prohibited from initiating fresh

recruitment process for the vacancies that arose much later.

The Supreme Court held that candidates in the waiting list

do not acquire any right of appointment. Once the vacancies

for which the selection process took place get filled up, the

State is bound to make the recruitment for the subsequent

vacancies from the open market.

In (1994) Supp (2) SCC 591 at paragraphs 8 and

9 of the judgment the legal nature of a waiting list in the

matters of recruitment to public services is considered

which reads as follows :-

“8. Coming to the next issue, the first question is what is a

waiting list?; can it be treated as a source of recruitment

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from which candidates may be drawn as and when

necessary?; and lastly how long can it operate? These are

some important questions which do arise as a result of

direction issued by the High Court. A waiting list prepared

in service matters by the competent authority is a list of

eligible and qualified candidates who in order of merit are

placed below the last selected candidate. How it should

operate and what is its nature may be governed by the

rules. Usually it is linked with the selection or examination

for which it is prepared. For instance, if an examination is

held say for selecting 10 candidates for 1990 and the

competent authority prepares a waiting list then it is in

respect of those 10 seats only for which selection or

competition was held. Reason for it is that whenever

selection is held, except where it is for single post, it is

normally held by taking into account not only the number of

vacancies existing on the date when advertisement is

issued or applications are invited but even those which are

likely to arise in future within one year or so due to

retirement etc. It is more so where selections are held

regularly by the Commission. Such lists are prepared either

under the rules or even otherwise mainly to ensure that the

working in the office does not suffer if the selected

candidates do not join for one or the other reason or the

next selection or examination is not held soon. A candidate

in the waiting list in the order of merit has a right to claim

that he may be appointed if one or the other selected

candidate does not join. But once the selected candidates

join and no vacancy arises due to resignation etc. or for any

other reason within the period the list is to operate under

the rules or within reasonable period where no specific

period is provided then candidate from the waiting list has

no right to claim appointment to any future vacancy which

may arise unless the selection was held for it. He has no

vested right except to the limited extent, indicated above, or

when the appointing authority acts arbitrarily and makes

appointment from the waiting list by picking and choosing

for extraneous reasons.

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9. A waiting list prepared in an examination conducted by

the Commission does not furnish a source of recruitment. It

is operative only for the contingency that if any of the

selected candidates does not join then the person from the

waiting list may be pushed up and be appointed in the

vacancy so caused or if there is some extreme exigency the

Government may as a matter of policy decision pick up

persons in order of merit from the waiting list. But the view

taken by the High Court that since the vacancies have not

been worked out properly, therefore, the candidates from

the waiting list were liable to be appointed does not appear

to be sound. This practice, may result in depriving those

candidates who become eligible for competing for the

vacancies available in future. If the waiting list in one

examination was to operate as an infinite stock for

appointments, there is a danger that the State Government

may resort to the device of not holding an examination for

years together and pick up candidates from the waiting list

as and when required. The constitutional discipline requires

that this Court should not permit such improper exercise of

power which may result in creating a vested interest and

perpetrate waiting list for the candidates of one

examination at the cost of entire set of fresh candidates

either from the open or even from service.”

In our view this decision, though lays down

important principles governing the recruitment process of

public servants and scope and purpose of waiting list, is not

relevant for the case on hand. The case of the writ petitioner

which found favour with the learned Single Judge is that it

is really a case for filling up of 5 vacancies instead of 4

vacancies under the Advertisement No.3/2005 and if only

the 5th vacancy were also to be filled up the writ petitioner

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would have been appointed but not that the candidates

such as the respondent are entitled for appointment on the

ground that they are in the waiting list.

In (1997) 8 SCC 488 at paragraph 16 the

Supreme Court held as follows :-

“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.” (emphasis added)

In our view this paragraph instead of supporting

the appellant would support the case of the writ petitioner

and the conclusion reached by the judgment under appeal.

It is the case of the writ petitioner that the appellant should

have anticipated the accrual of the 5th vacancy and advertise

the same.

In (2006) 3 SCC 330 the Supreme Court at

paragraph 13 of the judgment held as follows :-

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“Filling up of vacancies over and above the number of

vacancies advertised would be violative of the fundamental

rights granted under Articles 14 and 16 of the

Constitution.”

21. In our view on an examination of the above

decisions the following principle can be called out :-

Recruitment for post in public service under the

State should be consistent with the requirements of Articles

14 and 16 of the Constitution, that is, having regard to the

nature of the posts and the qualifications prescribed for

seeking appointment to such a post all eligible candidates

must be permitted to compete for the posts. Various cases

relied upon by the appellant deal with the issue of filling up

of posts which were not vacant at the time of initiation of the

recruitment process. In all those cases the recruitment

process took considerably long time for various reasons and

in the mean time more vacancies in the same cadre arose.

The State sought to fill up those subsequent vacancies also

by appointing persons who participated in the selection

process initiated prior to the occurrence of such vacancies.

It is in that context the Supreme Court held that such a

process would be violative of Art 14 and 16 which guarantee

the equality of opportunity in the matter of public

employment.

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The underlying principle in our view is that

subsequent to the „cut-off‟ date for receiving the applications

prescribed in the advertisement more people would have

acquired the eligibility to compete for the posts in the same

cadre. If only another advertisement were to be issued for

filling up of such subsequent vacancies, all those candidates

who became eligible after the „cut-off‟ date would also have

an opportunity for competing. By chosing to fill up the

subsequent vacancies only from out of the candidates who

responded to the advertisement, the candidates who

acquired the eligibility subsequently would be deprived of

the opportunity to compete was held violative of Art 14 and

16. But such a rule is not an absolute rule.

The Supreme Court recognized the need to allow

the government to fill up the subsequent vacancies also

from out of the candidates who participated in the selection

process in certain contingencies, such as, (1) that the

subsequent vacancies arose in such close proximity of time

with the advertisement and (2) exceptional and rare

situations supported by a policy decision of the State [(1997)

8 SCC 488].

22. The number of posts in any cadre of the State

services is essentially definite and limited. Vacancies occur

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from time to time in such posts for various reasons such as

the retirement, resignation, death or termination of the

services by the State on grounds of misconduct of some of

the existing incumbents etc. State as the employer has the

right to chose the appropriate time for filling up all those

vacancies. Obviously, such a right must be exercised on

some rational basis taking into account the relevant

circumstances like the need to fill up the posts, the financial

ability of the State etc. Such a freedom of the State may be

regulated by law. Whenever there is such a regulation by

law the recruitment process must be conducted strictly in

accordance with law. In the absence of such a regulation,

choice is left to the executive but such a choice, as pointed

out by the Supreme Court in (1991) 3 SCC 47, is as follows

:-

“However, it does not mean that the State has the licence of

acting in an arbitrary manner. The decision not to fill up the

vacancies has to be taken bona fide for appropriate

reasons. And if the vacancies or any of them are filled up,

the State is bound to respect the comparative merit of the

candidates, as reflected at the recruitment test, and no

discrimination can be permitted.”

Of course, the issue involved in the above

mentioned case was whether the State has a right not to fill

up all of the advertised posts after the recruitment process

was undertaken.

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23. As was pointed out by the Supreme Court in

(1997) 8 SCC 488, normally the State while undertaking a

recruitment process is expected to take into account not

only the existing vacancies but also the anticipated

vacancies and invite applications for filling up all those

posts. Though the expression “anticipated vacancy” is not

defined anywhere from the various decisions of the Supreme

Court it can be safely inferred that the “anticipated

vacancies” are those vacancies which are reasonably

expected to arise in a close proximity of time when the

recruitment process for filling up of the existing vacancies is

initiated. Ideally, the duties and obligations of the State in

this regard are regulated by law, either by a legislation or

rules made under Article 309 of the Constitution of India.

When the State chooses not to make any such prescription

the executive government is free to initiate the process of

recruitment only for the existing vacancies. It cannot be

compelled to initiate the recruitment process even for the

anticipated vacancies. But in a case like the one on hand

where the State chose to recruit for one of the vacancies

which is an “anticipated vacancy”, as described above,

which vacancy also belongs to the same class of posts, for

which the writ petitioner herein competed the State cannot

be heard to say that it cannot be compelled to fill up a

vacancy which was not advertised. On the other hand such

25

an action of the State would amount to an arbitrary exercise

of the power in the absence of any explanation for adopting

such a process. No explanation is offered in the instant

case. As found by the judgment under appeal the post of

Registrar in ENT Department, which arose subsequent to

the Advertisement No.3/2005, was filled up from out of the

candidates who competed for that class of posts.

24. We, therefore, find no reason calling for

interference with the judgment under appeal.

25. The appeal is dismissed.

JUDGE CHIEF JUSTICE

Mazumdar/