IMPORTANT POINT
Appointment cannot be made in excess of the number of posts requisitioned and advertised, irrespective of number of candidates appearing in the select list.

JUDGMENT

Lokeshwar Singh Panta, J. —

1. Leave granted.

2. This appeal is directed against the common judgment and order dated 15.09.2006 passed by a Division Bench of the High Court of Gauhati, dismissing Writ Appeal Nos. 471/2003 and 08/2005 filed by the appellants herein against the common judgment and order dated 14.08.2003 of the learned Single Judge in WP (C) No. 2026/2001, WP (C) No.2036/2001 and WP (C) No.4932/2001 whereby the learned Single Judge has dismissed the said writ petitions.

3. Briefly stated the facts of the case are as follows:-

The Assam Public Service Commission (hereinafter referred to as “APSC”) had issued an advertisement dated 19.08.1997 for filling up 27 posts of Child Development Project Officer (hereinafter referred to as “CDPOs”), pursuant whereupon a selection process was held. Finally, a select list dated 17.07.2000 containing the names of 64 candidates far in excess of the notified vacancies was prepared and published by the APSC. The names of the appellants who are 13 in number before this Court appeared in the select list below 27 persons who were appointed on merit by the State Government.

4. The appellants filed two separate writ petitions before the High Court of Gauhati, inter alia, challenging the Cabinet Memorandum dated 16.06.2000 circulated by the Commissioner and Secretary, Government of Assam, Social Welfare Department under Rule 17 of the Assam Rules of Executive Business relating to the regularization of 18 CDPOs/ Probation Officers who were appointed under Regulation 3 (f) of the Assam Public Service Commission (Limitation of Function) Regulation, 1951 (for short “Regulation 1951”) and praying for a direction to the State-respondent to appoint the appellants in the vacant/newly created posts of CDPOs/ Probation Officers. The appellants also challenged the policy decision taken by the State to regularize the services of the private respondents herein, who were initially appointed temporarily under Regulation 3 (f) of Regulation of 1951 and could not succeed in the selection process conducted by the APSC. The appellants contended before the High Court that giving benefit of regularization of service to the private respondents to the posts of CDPOs was contrary to the recruitment rules and the action of the State Government would amount to giving backdoor entry to the unsuccessful candidates into the State Services.

5. The stand of the respondent-State before the High Court was that 27 advertised vacant posts meant for direct recruitment quota, were filled up by the State Government on merits out of the select list prepared by the APSC dated 17.07.2000. The select list having thus exhausted, the appellants, whose names figured below the 27 selected candidates in the select list, therefore, could not claim to be appointed in excess of the advertised vacancies of CDPOs; and that if any future vacancies which arose after the publication of the advertisement, were to be filled up out of the left out candidates of the select list, the said appointment would amount to depriving other persons who, in the meantime, would have become eligible for selection and appointment. It was also submitted that as soon as the posts advertised were filled up or the validity of the select list expired, whichever event was earlier in point of time, the candidates whose names appeared in the select list could not thereafter claim appointment as the select list got exhausted. It was stated that the appellants have neither challenged the policy decision taken by the Government on the basis of the Cabinet decision nor the Notification issued pursuant thereto by the State Government regularising the service of 18 CDPOs/ Probation Officers. It was also stated that the decision to regularize 18 CDPOs, who were initially appointed under Regulation 3 (f) of Regulation, 1951, was taken by the State in view of the fact that they had already rendered more than four years of service satisfactorily and their continuati