No appointment can be made in excess of the posts advertised, and filling up vacancies over and above the notified vacancies is violative of Article 14 and 16 of the Constitution of India.

Headnote:
Appointment - Excess Appointment - Violation of Article 14 and 16 - [DB Grade-II] - [DLRB 2016] - [Article 14, Article 16]
Fact of the Case:

The petitioner challenged the selection process and appointment of 38 DB Grade-II candidates, which exceeded the advertised 37 posts. The petitioner argued that no appointment can be made in excess of the posts advertised.
Finding of the Court:

The court found that the appointment of 38 candidates exceeded the advertised 37 posts, violating Article 14 and 16 of the Constitution of India. The court set aside and quashed the appointment of the excess candidate, emphasizing that no excess appointment over the advertised posts is permissible.
Issues: The main issue was whether there was an excess appointment over and above the posts advertised for DB Grade-II.
Ratio Decidendi: The court relied on legal principles established by the Hon’ble Supreme Court, emphasizing that appointments cannot exceed the advertised number of vacancies, and filling up vacancies over and above the notified vacancies is violative of Article 14 and 16 of the Constitution of India.
Final Decision: The court set aside and quashed the appointment of the excess candidate and granted liberty to the respondent authority to fill up the post in accordance with the law. The court did not interfere with the entire selection process.

JUDGMENT :

Heard Mr. Taka Kichu, learned counsel for the petitioner and also heard Mr. V. Zhimomi, learned State counsel for the respondent nos. 1 to 16 and Mr. Pfosekho Pfotte, learned counsel for the respondent nos. 17 to 54.

2. By filing this petition, the petitioner has assailed the selection process dated 08.11.2016 for the post of DB Grade-II pursuant to the advertisement dated nil.07.2016 and the consequential Government approval dated 15.06.2017 for appointment of 38 DB Grade II as well as the appointment order 03.07.2017 whereby the 38 posts of DB Grade-II have been appointed on the ground that the appointments have been made in excess of the post advertised as in terms of the advertisement dated nil.07.2016, 37 posts of DB Grade-II were advertised, however, 38 nos. of DB Grade-II have been appointed by the State respondents and also prays for quashing of the entire selection process and for conduct of fresh selection process of the post of DB Grade-II.

3. The case projected by the petitioner is that the Deputy Commissioner, Tuensang issued the advertisement dated nil.07.2016 inviting application from the candidates belonging to indigenous inhabitants of Tuensang District for filling up of 37 DB Grade-II along with other Grade IV posts. Pursuant to the advertisement dated 01.07.2017, the Deputy Commissioner, Tuensang had constituted a Screening Committee dated 30.09.2016 for the District Headquarters and Subdivisions to conduct the DLRB 2016 for the various posts as per the prevailing practices. The screening test was conducted on different dates at 4 different districts under Tuensang district. The petitioner is from Noklak Sub-Divison and for the Noklak Sub Division Screening test was conducted on 20.10.2016.

4. The result of the screening test was declared on 24.10.2016 by the DLRB Tuensang. Since the petitioner was declared qualified for the screening test, a calling letter was issued for oral interview which was to be held on 08.11.2016. Accordingly, oral interview was conducted at the DC Office, Tuensang on 08.11.2016 and the result was declared on 15.06.2017. After the declaration of the result, the Office of the Commissioner, Nagaland conveyed the Government approval of DLRB 2016 for Tuensang District vide letter dated 15.06.2017 which consisted of 38 candidates (One post in excess of the advertisement) to be appointed as DB Grade-II, including the name of the 10 candidates on waiting list.

5. Pursuant to the approval order dated 15.06.2017, the Deputy Commissioner appointed altogether 38 candidates in the post of DB Grade-II, i.e., 19 persons as fresh candidates and another 19 candidates by way of regularization.

6. Mr. Taka Kichu, learned counsel for the petitioner submits that since the total number of posts advertised were 37 DB Grade II whereas both selection and appointments are of 38 posts, which is in excess of one more post. Therefore, it is settled position of law that no appointment can be made in excess of the posts advertised, therefore, prays that the entire selection process may be set aside and a fresh advertisement may be issued so as to enable the petitioner and the other eligible candidates to participate in the process of selection afresh.

7. Mr. Taka Kichu, learned counsel for the petitioner has relied on the judgment of the Hon’ble Supreme Court in the case of Secretary, A.P. Public Service Commission Vs. B. Swapna & Ors reported in(2005) 4 SCC 154 which is reproduced herein below:

10. There are two principles in service laws which are indisputable. Firstly, there cannot be appointment beyond the advertised number and secondly norms of selection cannot be altered after the selection process has started.

13. The legal position so far as the case of existing vacancies, notified vacancies and future vacancies has been set out by this Court in several decisions. In Prem Singh and Ors. v. Haryana State Electricity Board and Ors. (1996 (4) SCC 319), in paragraphs 25 and 26 it was laid down as follows: