1. Selection for additional Ahlmad posts filled in two phases — Selection for second phase made from earlier merit list. (Para 3 )
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2001 Supreme(SC) 252
SUPREME COURT OF INDIA
A.R.Misra : B.N.Agrawal
Surinder Singh
Versus
State Of Haryana
Case No. : 1139 of 2001
Date of Decision : 2/9/01
Selection from a merit list of a previous recruitment phase to fill vacancies of a subsequent phase without a fresh advertisement is illegal, as financial convenience cannot override the rights of prospective applicants to compete for publicly advertised posts.
Headnote:(A) Service Law - Recruitment - Selection process - Filling vacancies without advertisement - Use of merit list of a previous phase for subsequent phase vacancies without fresh advertisement is illegal - When advertisement specifies a number of posts, it influences prospective applicants - Financial constraints or administrative urgency cannot justify bypassing advertisement to save expenses, as it robs other prospective applicants of opportunities. (Paras 5, 6)
Facts of the case:
Appellants were selected for certain posts in subordinate courts. Initially, 10 posts were advertised for the first phase of a two-year plan. After filling those 10 posts, the appointing authority filled another 10 posts for the second phase using the merit list from the first phase without issuing a new advertisement. The High Court quashed these additional appointments for being in excess of advertised vacancies.
Findings of Court:
The court found no justifiable reason to uphold the selection for the ten additional posts of the second phase, as they belonged to a different year and had no separate advertisement.
Issues: Whether the selection of candidates for vacancies of a second phase from a merit list created for a first phase, without a fresh advertisement, can be legally sustained.
Ratio Decidendi: The court held that selection for posts of a different year and phase without advertisement cannot be justified. The number of advertised posts is critical as it determines the volume of applicants. Administrative convenience or the desire to curtail examination expenses cannot override the rights of prospective applicants to compete for vacancies. (Para 6)
Result: Appeal dismissed.
Legal Category Hierarchy
Table of Contents
2. Appellants argued urgency and cost-saving justified filling second-phase vacancies from existing merit list for advertised posts. (Para 4 , 6 )
3. Advertisement specifies post number; selecting more than advertised deprives other applicants of opportunity and violates fair process. (Para 5 , 6 )
4. Appointments in excess of advertised vacancies without fresh advertisement are illegal as they deny prospective applicants equal opportunity. (Para 5 , 6 )
5. Appeal dismissed; judgment of High Court quashing appointments in excess of advertised posts affirmed. (Para 6 )
6. Can appointments be made from an earlier merit list for vacancies not advertised?
No. Appointments for unadvertised vacancies from a prior selection list deprive prospective applicants of opportunity and are illegal. (Para 5 , 6 )
7. Is cost-saving a valid justification for bypassing advertisement requirements?
No. Cost or urgency cannot override the requirement of advertisement, as it affects the right of prospective applicants to apply. (Para 6 )
JUDGMENT
A.P.MISRA, J.
(1) LEAVE granted.
(2) HEARD learned Counsel for the parties.
(3) THE appellants have been selected in an examination held by the respondents. Respondent no. 1 issued a memorandum sanctioning creation of various posts including the posts of Additional Ahlmads in the subordinate courts in Haryana to which we are concerned. These posts were to be filled up in two phases for the two years, i.e. 1996-97 and 1997-98. Respondent no. 2 is the appointing authority. In pursuance to the same an advertisement was made in the local employment exchange inviting the application for 10 posts of Additional Ahlmads for the year 1996-97. After evaluation in the selection process, on 28/12/1996 first 10 candidates were selected against the 10 posts. However, respondent no,2 further filled the ten vacancies of the second phase for the year 1997-98 by further selecting from the same aforesaid merit list of 1996-97 in accordance with merits. The present appellants herein were at serial nos. 14, 16 and 13 respectively.
(4) THE ground on which the High Court quashed the appointment of the appellants was that the appointments were made in excess of the advertised vacancies. We have perused the judgment of the High Court and have heard learned Counsel for the parties. Learned Counsel for the appellants with some vehemence submitted that as the ten posts for the year 1997-98 were lying vacant which was of the second phase and if there was urgency if the same were filled out of the merit list of the selection made for the first phase there would be no illegality. The High Court fell into error in allowing the writ petition and quashing the selection made by the respondents for the second phase.
(5) THE facts of the present case are very clear as aforesaid. The posts for additional Ahlmad were created for the two separate years, i.e., 1996-97 and 1997- 98 and were to be filled through two phases. The advertised posts admittedly were only for 10 such posts for the year 1996-97 of the first phase but selection was made not only for the advertised 10 posts but 20 posts which included ten of the second phase. We do not find any justifiable reason to uphold selection for the ten additional posts of the second phase. These ten additional posts selected is of a different year (1997-98), belong to the second phase, there was no advertisement for filling up these posts. How can such selection be upheld?
(6) LEARNED Counsel for the appellants refers to a note dated 22/5/1997 by the District Judge, where he refers for filling up these additional ten posts on the ground of urgency for which he had a talk with the inspecting Judge concerned. The main reason for selecting these were that by holding another examination additional expenses would have to be incurred which could be curtailed if selection is made from the selection list of 1996-97. If such a reasoning is to prevail, then most of the subsequent selections could be made, out of any previous selection without advertising the same. How can expenses intervene or rob opportunities and right of prospecting applicants. When the advertisement specifies the number of posts, it is to make prospective applicant to consider to apply or not. If the posts are few the consideration would be different than when posts are larger. If number is larger there is always increase in number of applicants. So when the advertisement is only for 10 posts, the selection for 20 which constitutes of two different phases for two different years could not be justified. So we do not find any error in the judgment of the High Court which requires interference. Accordingly, the present appeal has no merit and is accordingly dismissed. Costs on the parties.
(7) HOWEVER we feel, in case there is going to be selection for the second phase (1997-98) the respondents will consider relaxation of the age of such selected candidates, appointed for the vacancies
