The main legal point established is that in the case of promotion of in-house candidates, the availability of vacancies in the same year can justify filling up more vacancies than those advertised.

JUDGMENT

Sanjay Kumar Medhi, J. - Heard Shri U. K. Nair, learned counsel for the applicants (respondent nos. 36, 37, 38, 40, 41, 42, 43, 44, 46, 48, 51, 52, 53, 54, 55, 56, 57, 58 and 60) who by this present application has prayed for modification/vacation/alteration of the ex-parte interim order dated 19.12.2019.

2. Also Heard Shri K.N. Choudhury, learned Senior Counsel for the opposite parties / writ petitioners. Shri B. Gogoi, learned Standing Counsel, Finance Department has also been heard along with Shri P.P. Dutta, learned counsel for the APSC.

3. Before dealing with the interim order dated 19.12.2019, it would be convenient to narrate the facts of the case in brief.

4. An advertisement was published on 03.05.2018 by the Assam Public Service Commission (APSC) for filling up 32 nos. of posts of Audit Officers by promotion in the Assam Local Fund Audit Service. Pursuant to the said exercise, a Select list dated 07.11.2019 was published in which 57 nos. of candidates were held to be qualified. In the meantime, a communication dated 18.02.2019 was issued by the Director of Audit to the Finance Department informing of arising of more vacancies in the meantime and accordingly requested to take steps with the APSC for filling up the 51 nos. of vacancies.

5. At that stage the writ petition was filed challenging the aforesaid select list which, according to the writ petitioners, is illegal as the same contains names more than the numbers of vacancies advertised.

6. This Court vide order dated 19.12.2019 while issuing notice had directed that the respondents were allowed to fill up 32 nos. of post of Audit Officers on the basis of the merits as per the advertisement date 03.05.2018 and that such appointments shall be subject to the outcome of the writ petition.

7. Shri Nair, the learned Senior Counsel for the applicants has drawn the attention of this Court to the affidavit-in-opposition of the Finance Department in paragraph 10 whereof it has been stated that the exercise in question was a promotional exercise where only in-house candidates are considered subject to fulfillment of the eligibility criteria. By further drawing the attention of this Court to the pleadings of the Department in paragraph 12, it is submitted that to that as per Rule, advertisement is not a pre-condition at all and the same is issued only for the purpose of giving information regarding the selection process. The applicants are candidates who are selected beyond Serial No.32 in the Select List.

8. The Senior counsel for the applicants has also drawn the attention of this Court to the Rules governing the field namely the Assam Local Fund Audit Services (Amendment) Rules, 1997. Under Schedule III of the said Rules, the procedure has been prescribed for holding the exams on different subjects and allotment of marks including minimum marks and aggregate marks. Rule 17 lays down that 75% of the vacancies in a year of recruitment in the cadre of Audit Officers would be by promotion and under Rule 17 (3), it has been laid down that the promotional examination would be conducted in accordance with the Rules and syllabus as in Schedule III and shall be at such intervals as the appointing authority may, in consultation with the Commission from time to time determine. Shri Nair accordingly submits that the process to fill up the vacancies by 52 candidates is strictly in conformity with the Rules and therefore, the interim order dated 19.12.2019 is liable to be vacated so that the applicants can be promoted.

9. Per contra, Shri K.N. Choudhury, learned Senior counsel for the opposite parties/writ petitioners submits that the interim order dated 19.12.2019 is absolutely justified and does not require any interference. In the advertisement dated 03.05.2018, the number of vacancies have been specifically mentioned to be 32 nos. According to Shri Choudhury, the number of vacancies which are to be filled up cannot exceed the number published in the advertisement. He further submit