The final determination of vacancies in terms of the advertisement is crucial, and the impact of selection rules on the process must be considered.

Heard learned counsel for the petitioner, the State and the Bihar Staff Selection Commission (hereinafter referred to as 'the Commission'.)

2. An advertisement was published on 24.8.2006 for inviting applications for appointment on the post of Block Statistical Supervisor/Junior Statistical Supervisor/Instructor. The vacancies were provisionally identified as 224, but liable to increase or decrease. Before any developments for selection could take place, a fresh requisition was sent on 26.4.2010 for a total of 388 vacancies inclusive of the aforesaid 224, a difference of 181. The requisition also sought to vary the educational qualification by, insertion of a degree in BCA from a recognized institution as a qualification also.

3. The Commission on 4.6.2010 objected to the variation in the essential qualification as being impermissible and advised that the additional 18" vacancies in that event be clubbed with the next graduate level examination. No other objection was raised by the Commission. The department on 4.6.2010 itself through its Joint Director telephonically conferred with the authorities of the Commission and also confirmed in writing that in view of the objection by the Commission, the additional qualification of DCA degree be deleted.

4. The written examination was subsequently held on 16.5.2010 for selection in accordance with the conditions of eligibility in the original advertisement. A total of 19,000 candidates are stated to have appeared. In the meantime on 3.5.2010 the Commission wrote to the department that the advertisement originally was for 224 vacancies only and the date for the examination had also been fixed. After coming into force of the Bihar Staff Selection Commission Rules, 2010 (hereinafter referred to as 'the selection Rules') legal difficulties may arise by increase of vacancies beyond the advertisement. What were the legal difficulties was .not specified. The vacancies, it was informed, also stood reduced to 207 by reason of certain orders of this Court in M.J.C. No. 2083 of 2009 by virtue of addition of the same to non-joining vacancies of Advertisement No. 1 of 1 990.

5. The respondent department on 10.6.2010 referring to the Commissions letter dated 4.6.2010, written in context of the additional BCA degree qualification, agreed to withdraw 181 vacancies for reason of the anticipated legal difficulties opined by the Commission.

6. Initially counter affidavit was filed on behalf of the Commission only. Only when the Court insisted that it would like to have the independent stand of the department also, separate counter affidavit has been filed on its behalf.

7. Learned counsel for the petitioner submitted that the vacancies indicated in the advertisement were provisional. It was not a case were the vacancies stood conclusively identified before the advertisement or commencement of the selection process and were then sought to be enhanced. The infirmity by insertion of the additional educational qualification had been deleted. The respondents were not justified in further reducing the vacancies to 207. The advertisement having been issued prior to the issuance of the selection rules shall not be governed by the same.

8. Reliance was further placed on a Government instruction dated 16.7.2007, at paragraph-14, issued by the Department of Personnel and Administrative Reforms in response to queries by the Bihar Public Commission and the Commission that variation in a requisition was permissible for justified reasons. Reliance was also placed on (2002)10 SCC 549 (Sandeep Singh vs. State of Haryana) in support of the submissions.

9. Learned Counsel for the respondents submitted that the increase in vacancies in excess of that specified in the advertisement was not permissible in law. The selection rules of the Commission require all vacancies to be specified in the advertisement and the selection to be held thereafter. Without a fresh advertisement there could be no enhancement of vacancies by deemed