IMPORTANT POINT
Selection and appointment should be restricted to the number of posts advertised.

Headnote:(a) Service law – Recruitment – Service Commission advertising for 38 posts available in relevant year – Stipulation that number of posts may be increased or decreased by the Government – this could be done in accordance with posts available as clear vacancy and likely to be vacant due to retirement etc as also creation of pots in the relevant year – Selection made for 74 posts including the posts created in the succeeding year – Not permissible. (Para 9)
       (1996) 4 SCC 319 – Relied upon
       (b) Service law – Recruitment – Appellants participating in selection which was initially for 38 posts and later increased to 74 posts – High Court restricting appointment to the initial 38 posts – No relief can be granted to appellants – Directing their appointment would be contrary to the Rules – Courts cannot give any direction contrary to the Statute or Rules made thereunder in exercise of judicial discretion. (Para 12)
       Facts of the case:
       An advertisement was issued by the Uttarakhand Public Service Commission on 19.09.2009 for appointment to the posts of Assistant Prosecuting Officers. The number of posts notified were 38.
       The Third Respondent who was an applicant filed an application under the Right to Information Act, 2005 seeking information about the number of posts for which the preliminary examination was conducted. The Second Respondent responded stating that the number of vacancies for which the selection was being held was 74.
       The Third Respondent filed a Writ Petition for a direction that only 38 posts of Assistant Prosecuting Officers which were advertised on 19.09.2009 should be filled up.
       The High Court allowed the Writ Petition.
       Finding of the Court:
       Appellants are not entitled to any relief.
       Result: Appeals dismissed.

JUDGMENT

L. NAGESWARA RAO, J.

These Appeals are filed against the judgment of the High Court of Uttarakhand at Nainital by which a direction was issued to restrict the selection of Assistant Prosecuting Officers only to the number of posts that were advertised.

2. An advertisement was issued by the Uttarakhand Public Service Commission (hereinafter referred to as ‘the Second Respondent’) on 19.09.2009 for appointment to the posts of Assistant Prosecuting Officers. The number of posts notified were 38. It was mentioned in the advertisement that the number of posts may be increased or decreased by the State Government. A preliminary examination was contemplated in case there were a large number of applications. It was mentioned in the advertisement that the ‘year of recruitment’ was a period of 12 months commencing from the 1st day of July of the calendar year.

3. As a large number of candidates applied, a preliminary examination was conducted on 31.10.2010, the result of which was declared on 04.02.2011. The Third Respondent who was an applicant filed an application under the Right to Information Act, 2005 seeking information about the number of posts for which the preliminary examination was conducted. The Second Respondent responded stating that the number of vacancies for which the selection was being held was

74. The Third Respondent filed a Writ Petition in the High Court of Uttarakhand at Nainital for a direction that only 38 posts of Assistant Prosecuting Officers which were advertised on 19.09.2009 should be filled up.

4. A counter was filed by the First Respondent stating that 37 additional posts of Assistant Prosecuting Officers were created by an order dated 25.08.2009. It was also stated in the counter that a requisition for additional 36 posts of Assistant Prosecuting Officers was sent to the Second Respondent. It was further stated that there was acute shortage of Assistant Prosecuting Officers and hence there was need for filling up of 74 vacant posts of Assistant Prosecuting Officers without delay.

5. The High Court allowed the Writ Petition. The High Court relied on Uttar Pradesh Prosecuting Officers Service Rules, 1991 (hereinafter referred to as ‘the Rules’) to hold that the selection pursuant to an advertisement can be only for clear vacancies and anticipated vacancies but not for future vacancies. Referring to the definition of ‘year of recruitment’ in the Rules, the High Court held that vacancies that arose between 1st of July, 2008 and 30th of June, 2009 alone can be filled up. The High Court directed that selection should be confined to only 38 posts of Assistant Prosecuting Officers. A further direction was given by the High Court to the Second Respondent to commence the process of selection for the additional 36 vacancies which were requisitioned by the letter dated 06.01.2011.

6. The Appellants would have been selected and appointed as Assistant Prosecuting Officers if the selection was for 74 posts. They are aggrieved by the judgment of the High Court. They have sought permission to file the above Appeals which was granted on 16.08.2012. We heard Mr. Harin P. Raval and Ms. Meenakshi Arora, learned Senior Counsels appearing for the Appellants and Mr. Saurabh Trivedi, Counsel appearing for the First Respondent. Mr. Harin Raval submitted that there was only one Assistant Prosecuting Officer working in the State of Uttarakhand on the date of advertisement dated 19.09.2009. Mr. Raval took us through the material on record to show that more than 38 posts were available on the date of advertisement. He referred to the condition in the advertisement which enabled the State Government to vary the number of vacancies. He also referred to the pleadings to contend that a requisition was made to the Second Respondent for filling up the additional 36 vacancies as well. He submitted that the High Court went wrong in allowing the Writ Petition without taking into account the shortage of Assistant Prosecuting Officer

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2016 Supreme(SC) 795

IMPORTANT POINTSelection and appointment should be restricted to the number of posts advertised.

Cases Referred (1)

IMPORTANT POINT
Selection and appointment should be restricted to the number of posts advertised.