IMPORTANT POINT
Filling up of vacancies over and above the number of vacancies advertised would be violative of Articles 14 and 16.

JUDGMENT

Altamas Kabir, J.

1. A short but interesting question of law arises in these Special Leave Petitions, as to whether appointments can be made in Government service beyond the number of vacancies advertised.

2. An advertisement dated 4th November, 2006, was published by the Director of Land Records and Survey, Assam, inviting applications for selection for admission in the Assam Survey and Settlement Training Institute in respect of 160 seats. About 12,000 candidates applied for the said advertised seats and a written test was conducted which was followed by a viva voce examination. The viva voce test was limited to only 560 candidates. The restriction of the vive voce test to only 560 candidates was challenged before the Gauhati High Court in W.P.(C)No.3419 of 2007, which was dismissed and Writ Appeal No.413 of 2007 preferred from the Order of the learned Single Judge was also dismissed. The Director of Land Records and Survey, Assam, published a select list of 160 candidates and sent the candidates for training. Subsequently, the Director sent three more lists, hereinafter referred to as “the second, third and fourth lists”, but the same were not approved by the Government. The Government’s refusal to approve the second, third and fourth lists against the seats available, was again challenged in Writ Petition Nos.3812 of 2010 and 2279 of 2011 on the ground that when vacancies were available, there was no bar in the same being filled up from the Select List of 560 candidates.

3. The aforesaid case sought to be made out on behalf of the Petitioners was contested by the Respondents on the ground that even if there were vacant seats available, the same could not have been filled up beyond the number of seats advertised as such action would be contrary to the law laid down by this Court relating to deviation from the contents of the advertisement.

4. The submissions made on behalf of the Writ Petitioners were rejected by the learned Single Judge upon holding that if any appointment was to be made beyond the number of seats advertised, the Director was required to publish a fresh advertisement for selecting the next batch of candidates in accordance with Rule 20 of the Rules in this regard. The learned Single Judge also observed that it was evident from the judgment and order dated 29th January, 2010 passed in W.P. (C) No.3909 of 2009, as well as the order dated 1st December, 2007 passed in Writ Appeal No.413 of 2007, that 560 candidates were called for the viva voce test for the 160 seats which had been advertised and if other candidates from the second, third and fourth lists were to be admitted, it would amount to depriving other candidates, who had not been called for the viva voce test because of the Government’s decision to limit the number of candidates in the written test, of an opportunity of being selected. Some of the candidates may have, in the meantime, acquired the eligibility to undergo such training. Relying on the decision of this Court in Union of India Vs. Ishwar Singh Khatri & Ors.1 [(1992) Supp.3 SCC 84] and several other judgments expressing the same view, the learned Single Judge held that filling up of vacancies over and above the number of vacancies advertised would be contrary to the provisions of Articles 14 and 16 of the Constitution. On the basis of the above, the learned Single Judge dismissed the said Writ Petitions.

5. The decision of the learned Single Judge was challenged by the Writ Petitioners in Writ Appeal No.132 of 2011 before the Division Bench of the Gauhati High Court, along with Writ Appeal No.151 of 2011, which were dismissed by the Division Bench of the Gauhati High Court by the judgment impugned herein dated 16.9.2011. Agreeing with the views expressed by the learned Single Judge, the Division Bench dismissed the Writ Appeals against which these Special Leave Petitions have been filed.

6. Appearing in support of the Special Leave Petitions, Mr. Joydeep Gupta, learned Senior