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Judgment
Honourable Mr. Justice V. Ramasubramanian
The petitioners have come up with the above writ petitions, seeking a Mandamus to forbear the respondents from filling up 186 posts of
Assistant Section Officers in the Secretariat (other than Law and Finance Department), bearing Post Code No. 1072. I have heard
Mr.C.Selvaraju and Mr.AR.L.Sundaresan, learned Senior Counsel for the petitioners in the writ petitions, Mr.A.Navaneetha Krishnan, learned
Advocate General assisted by Mr.N.Srinivasan, learned Additional Government Pleader appearing for the State of Tamil Nadu, Ms.C.N.G.
Niraimathi and M.Devendran, learned Standing Counsel appearing for the TNPSC, Mr.N.G.R.Prasad, Learned Counsel appearing for some of
the contesting respondents, Mr.R.Thiagarajan, learned Senior Counsel and Mr.Naveenkumar Murthy, Learned Counsel appearing for some of the
contesting respondents.
While the petitioner in the first writ petition is an unemployed graduate, the petitioners in the second writ petition are working as Assistants in the
Secretariat. All of them are aggrieved by the decision taken by the Government of Tamil Nadu to fill up 186 posts of Assistant Section Officers in
the Secretariat (other than Law and Finance Department), on the basis of a notification bearing No. 219 dated 15.11.2009 issued for selection to
Combined Services Examination-I, despite the fact that these 186 posts were not included in the said notification dated 15.11.2009.
The brief facts leading to the above writ petitions are as follows:-
(i) The Tamil Nadu Public Service Commission issued an advertisement bearing No. 219 on 15.11.2009 inviting applications from eligible
candidates for direct recruitment to various posts in the Combined Subordinate Services of the State of Tamil Nadu. 13 categories of posts for
which the process of selection was to include a written examination followed by an oral test, were included in Table-1. 8 categories of posts for
which the selection was to be made only through written examination were included in Table-2.
(ii) Since we are not concerned with the posts included in Table-2 of the selection notification, I am not making a reference to the same.
(iii) Out of the 13 categories of posts included in Table-1 of the selection notification, 11 categories of posts carried a scale of pay of Rs. 9,300 -
Rs. 34,800/- + Rs.4,600/-. Two categories of posts carried the scale of pay of Rs. 5,200 - Rs. 20,200/- + Rs. 2,400/-.
(iv) It may be necessary to take a note of those 11 out of 13 posts included in Table-1 of the notification, in order to understand the significance of
the controversy raised in the writ petition. Therefore, the posts carrying the scale of pay of Rs. 9,300-Rs.34,800/-, included from Serial Nos.1 to
11 of Table-1 in the selection notification, the service to which those posts belong, the Post Code Number of those posts and the number of
vacancies notified, are furnished as follows:-
S.No. Post Service Post Code No. of vacancies
Municipal Tamil Nadu 1092 3
Municipal
Commissioner-
Grade Commissioner
Subordinate
II
Service
Assistant Section The Tamil Nadu 1073 13
Secretariat
Officer (Law
Service
Department) in
Secretariat
Assistant Section Tamil Nadu 2201 4
Secretariat
Officer in TNPSC
Service
Probation Officer Tamil Nadu Social1011 10
Defence
Subordinate
Service
Probation Officer Tamil Nadu Jail 1023 4
Subordinate
Service
Junior EmploymentTamil Nadu 1017 9
General
Officer
Subordinate
Service
Assistant InspectorTamil Nadu 1068 20
of Labour
Labour Subordinate
Service
Sub Registrar- Tamil Nadu 1071 29
Grade Registration
II Subordinate
Service
Women Welfare Tamil Nadu Social1012 1
Defence
Officer
Subordinate
Service
Supervisor of Tamil Nadu 1022 7
Industries
Industrial
Subordinate
Cooperatives Service
Audit Inspector in Tamil Nadu 1029 27
Ministerial
HR&CE
Department Service
(v) The General Information provided under paragraph 3B of the Selection Advertisement prescribed that the number of vacancies advertised is
only approximate and that it is liable for modification with reference to the vacancy position at any time before finalisation of selection for oral test
or selection for appointment as the case may be.
(vi) Paragraph 4A of the notification prescribed minimum and maximum age limit of candidates, to be reckoned with reference to the date
1.7.2009.
(vii) Paragraph 4B of the notification prescribed the educational qualifications required for each of the posts. It was also indicated that those
qualifications should be possessed by the candidates as on the date of the notification viz., 15.11.2009.
(viii) Since the advertisement was for filling up 11 categories of posts carrying a scale of pay of Rs. 9,300-Rs.34,800/- and 10 categories of posts
(2 under Table-1 and 8 under Table-2), carrying a scale of pay of Rs. 5,200-Rs.20,200/-, paragraph 7 of the notification stipulated the guideline
for the exercise of options. It was stated in paragraph 7 that in respect of interview posts included in Table-1 of the notification, option regarding
post preference will be obtained at the time of oral test from those who appeared for oral test.
(ix) Following the notification dated 15.11.2009, a supplementary notification was also issued in advertisement No. 222, including one more post
under Table-2 viz., the post of Assistant in the Highways Department, carrying a scale of pay of Rs. 5,200-Rs.20,200/-. The Service Code of the
post was indicated as 2202 and number of vacancies were indicated as 135.
(x) As per the first notification dated 15.11.2009, the last date for receipt of the applications was 30.12.2009 and the date of the written
examination was fixed as 11.4.2010.
(xi) But before the date of the examination, the Government issued G.O.(4D) No. 7, Personnel and Administrative Reforms Department dated
22.3.2010, relaxing Rule 8 of the Special Rules for Tamil Nadu Secretariat Services, so as to fill up 186 posts of Assistant Section Officers,
reserved for being filled up by promotion, through the Tamil Nadu Public Service Commission by way of direct recruitment. This order of
relaxation was issued by the Government in exercise of the powers conferred by Rule 48 of the General Rules for Tamil Nadu State and
Subordinate Services.
(xii) On 11.4.2010, a written examination was held as originally scheduled in the advertisement dated 15.11.2009. But before the process of
selection in pursuance of the first notification dated 15.11.2009 was over, the Tamil Nadu Public Service Commission issued two advertisements
dated 30.12.2010 and 8.2.2011, calling for applications for direct recruitment to 281 posts of Assistant Section Officers bearing the Post Code
No. 1072.
(xiii) In the meantime, the Tamil Nadu Public Service Commission started sending interview call letters to the candidates selected in the written
examination conducted on 11.4.2010 in pursuance of the notification dated 15.11.2009. In those interview call letters, it was indicated that 186
vacancies of Assistant Section Officers (other than Law and Finance Department) in the Secretariat Service were also to be filled up. Therefore,
the candidates were given the option to exercise post preference. Upon coming to know of the same that those 186 vacancies which were
reserved to be filled up by promotion, but which got diverted to the direct recruitment quota, under G.O.(4D) No. 7 dated 22.3.2010, were also
to be filled up on the basis of the old examination, the petitioners came up with the above writ petitions.
It appears that at the time when the writ petition was admitted on 11.3.2011, this Court granted an interim order to maintain status-quo.
However, the order was later vacated by another learned Judge and the same was also confirmed by the Division Bench. Therefore, the
respondents appear to have proceeded with the oral interview for all the posts, including those 186 posts and released a select list. But till date, no
appointment orders have been issued to the candidates who have been selected for appointment to the post of Assistant Section Officers. It must
also to be noted that persons selected for appointment to other posts (other than Assistant Section Officers) have been issued with appointment
orders as those posts are not in controversy in any writ petitions.
The only ground on which the petitioners challenge the decision taken by the respondents to fill up 186 posts of Assistant Section Officers, on
the basis of the selection held in pursuance of the notification dated 15.11.2009, is that the same infringes the rights of thousands of candidates who
were not qualified on the date of the notification viz., 15.11.2009, but who became qualified subsequently when these 186 posts became available
for being filled up. In other words, the contention of the petitioners is that after conducting a Recruitment Drive purportedly for filling up posts of
Assistant Section Officers in Law Department and 4 posts of Assistant Section Officers in the Tamil Nadu Public Service Commission, it is not
open to the respondents to fill up an additional 186 posts, without a fresh notification. The filling up of these 186 posts, for which no notification
was issued, is opposed by the petitioners on the ground that the same violates Articles 14 and 16 of the Constitution.
The Learned Counsel on both sides rely upon several decisions of the Apex Court and this Court to drive home the point as to whether non-
notified posts could be filled up and if so under what contingencies it could be done. A careful perusal of the decision relied upon by both sides
would show that there was no difference in the principles of law laid down in all those decisions. However, in a few of those decisions, the results
have varied, due to some peculiar facts. Therefore, it will be useful to present all those decisions in a Tabular Column, giving against each of them a
set of brief facts, the principles of law laid down therein and the ultimate result of each one of them, as below:-
Citation Brief Facts Ultimate outcome
Prem Singh vs. A notification dated 2.11.1991 for filling up 62 vacant posts The Supreme Court upheld
Haryana State of Junior Engineers was issued. 5,955 persons were found the selection of 62
Electricity eligible out of those who applied. 893 candidates were called candidates for the
for interview. Then the Selection Committee vacancies as originally
Citation Brief Facts Ultimate outcome
Prem Singh and selected 212 candidates out of whom 147 were appointed. notified. The Court also
Others Vs. Therefore, two issues were raised viz., (i) whether it was openupheld the selection for 25
Haryana State to the Board to prepare a list of 212 candidates and appoint additional posts, thereby
Electricity Board137, when the number of posts advertised was only 62 and validating the selection of
and Others, (ii) whether the High Court was justified in quashing the 87 candidates and setting
selection of all 212 candidates and the appointments of 137. aside the selection of the
rest.
Virender S. Haryana Public Service Commission advertised for The appeal was allowed
Hooda and recruitment to 12 posts in the Civil Service. 3 candidates whoand the State of Haryana
Others Vs. Statecould not make it to the select list came to Court contending was directed to consider
of Haryana and that as per the Circulars issued by the State of Haryana, any the cases of the appellants
Another, additional vacancies arising within 6 months of the Service on the basis of the
Commission making its recommendations, could also be filled Circulars.
up. The High Court rejected the claim. But the Supreme
Court reversed the decision.
All India SC andThe Railway Board issued a notification for filling up 330 The decision of the High
ST Employees posts of Khalasis. Out of 58,675 applications received, Court was upheld.
Assn. and 32,563 were found eligible and called for interview.
Another etc. Vs.Ultimately, a decision was taken to fill up 917 vacancies. In
A. Arthur Jeen the meantime, interviews were conducted from July 1996 to
and Others etc., February 1997 by different Committees. But the Central
Administrative Tribunal set aside a Circular on the basis of
which the Interviewing Committees had been constituted.
Therefore, a fresh Circular was issued and a fresh round of
interviews were held from June to September 1998.
Thereupon, a panel of 917 candidates was published. A
challenge was made to the selection. The Administrative
Tribunal set aside the selection on the ground that only 330
vacancies were notified. The High Court reversed the decision
and restricted the selection to 382.
Sri Kant TripathiFive vacancies were notified for direct recruitment to Higher The Supreme Court
vs. State of U.P.Judicial Service in U.P. Subsequently the Full Court of the interpreted the expression
(2001 (10) SCCHigh Court approved 68 Officers for temporary promotion. ""vacancies likely to occur
237) However, the Selection Committee prepared a list of 9 in the next two years"" in
persons out of whom 7 were selected by the Full Court for Rule 8(1) to mean only
appointment. But 68 persons whose cases were those vacancies which
recommended for temporary appointment, filed a writ petitionwould arise due to
seeking a direction to the effect that the quota for promotion superannuation. Therefore,
should also be filled up simultaneously. In the meantime, the the appointments made
Selection Committee increased the number of posts available were not annulled, but
for direct recruits to 25. This was challenged before the future directions given.
Supreme Court on the ground that the Selection Committee
cannot increase the number of direct recruits.
Citation Brief Facts Ultimate outcome
Suvidya Yadav Advertisement was issued for filling up 18 posts of Principal. The Supreme Court
vs. State of The Service Commission recommended the names of 30 reversed the decision of
Haryana, (2002)persons, on the basis of a request made by the Government the High Court, holding
10 SCC 269 before the finalisation of selection. A non selected candidate that there was no bar on
challenged the selection successfully before the High Court. the power of the Service
The selected candidates went to the Supreme Court. Commission to
recommend 30 names.
Secretary, A.P. An advertisement for filling up 8 posts of Assistant Public The Supreme Court
Public Service Relation Officers was first issued. Later, 7 more vacancies reversed the decisions on
Commission Vs. were notified and the selection of 15 candidates was finalised the ground that the Service
B. Swapna and in 1996. The wait listed candidate filed a writ petition Commission had the right
Others, contending that as per Rule 6 of the relevant rules, the wait listto freeze any wait list and
will be valid for one year and that 14 vacancies were notified that there cannot be any
during this period of one year. Her contention was that these appointment beyond the
14 vacancies which arose within one year should be filled up number of advertised
only from the waiting list. She succeeded before the Tribunal posts.
and the High Court. The Service Commission went to the
Supreme Court.
Smt.Vijaya Advertisement issued in August 2004, was for 30 vacancies The High Court of
Dayal vs. of Civil Judges Class-II. Subsequently, it was increased to 61,Chattisgarh dismissed the
Chattisgarh keeping in view the availability of vacancies upto December writ petition on the ground
Public Service 2005. An unsuccessful candidate filed a writ petition, claimingthat the advertisement
Commission that the recruitment for the additional vacancies was wrong. contained a variation
{W.P.No.3701 clause.
of 2005 -
Chattisgarh High
Court}
Bicitra Bora and An advertisement was issued in March 1999, for filling up the High Court dismissed the
Another Vs. post of Assistant Inspector of Excise in Grade III. The petition holding that the
State of Assam petitioners submitted their applications and they did not petitioners failed to
and Others, receive any communication from the respondents. However, establish that they made
they came to know that respondents propose to appoint application and that the
persons without following the procedure. W.P. filed records did not disclose
challenging the proposed appointment. Guwahati High Court any illegality in the process
directed the respondents to appoint persons as per the followed by the
Recruitment Rules. In May 2005, the respondents requested respondent.
the Employment Exchange to forward a panel of 100
candidates with a clarification that the eligible candidates who
applied in 1999 need not apply afresh. Hence, the name of the
petitioners were not sponsored. However, they did not
receive any admit cards for the written examination. Their
representations were dismissed on the ground that the
respondents did not receive their applications and that
appointments have already been made.
Citation Brief Facts Ultimate outcome
Amlan Jyoti State Government issued advertisement in 1997 for filling up Apex Court held that
Borooah vs. 112 vacancies of Sub Inspectors by direct recruitment, selection process should
State of Assam mentioning the procedure as candidates qualified in the writtenhave been conducted in the
(2009 (3) SCC examination were required to appear in physical test and order mentioned in the
237) interview. But, candidates who obtained 40% or more marks advertisement.
were called for interview first and who were selected in the
interview were called for physical test for final selection.
Hence, a challenge was made to the conduct of selection,
which was not as per the advertisement. High Court set aside
the appointment of 54 candidates. On appeal, the
appointment was upheld with direction.
Rakhi Ray and High Court of Delhi issued advertisement to fill up 20 posts ofSupreme Court held that a
Others Vs. The District Judges in May 2007. As per reservation, 13 person whose name
High Court of vacancies for general category candidates were filled up as appears in the select list
Delhi and per the merit list. Certain unsuccessful candidates filed writ does not acquire any
Others, petitions claiming that during the pendency of the selection indefeasible right of
process, 13 vacancies arose and that could have also been appointment. Empanelment
filled up from the select list. High Court held that only 3 is a condition of eligibility
vacancies arose and directed to fill up 2 vacancies for generalfor appointment and it
category. does not amount to
selection or create a vested
right for appointment.
S.Suyam TNPSC called for applications to fill up 1576 vacancies of this Court held that State
Prakasam vs. Village Administrative Officers. It included the shortfall can make provision for
Secretary to vacancies of 1077 for SC/ST. Petitioner challenged the appointment in respect of
Government advertisement on the ground that earmarking 1077 posts for quota for SC/ST
(2011 (1) CWCSC/ST is illegal and contrary to ground reality. candidates to be filled up in
930) the name of backlog
vacancies. In the absence
of challenge to the G.O.,
advertisement of TNPSC
cannot be challenged.
Mukul Saikia The Service Commission advertised 27 posts and a selection Holding that the filling up of
and Others Vs. process was held. In the final list, 64 candidates far in excess vacancies over and above
State of Assam were included. In the meantime, the State took a policy the number of vacancies
and Others, decision to regularise candidates appointed on temporary advertised violated Articles
basis and who could not succeed in the selection process. 14 and 16, the Supreme
Therefore, the candidates whose names appeared in the selectCourt dismissed the
list and who were beyond the 27th position challenged the Special Leave Petitions.
decision of the Government to regularise temporary hands.
Single Judge
Citation Brief Facts Ultimate outcome
of the High Court dismissed the writ petition holding that no
posts beyond 27 advertised vacancies could be filled up from
the select list. The Division Bench confirmed the same. These
decisions were challenged before the Supreme Court.
State of Orissa v.15 posts were advertised. It was increased to 33 and hence, Reversing the decision of
RajkishoreNandaa merit list of 66 candidates was eventually published. Personsthe High Court, the
((2010) 6 SCC whose names appeared in the merit list, but who were not Supreme Court held that a
777) appointed, approached the Tribunal. The Tribunal directed select list cannot be treated
their appointments. The State filed a writ petition and the as a reservoir for the
same was allowed partially, restricting the benefit of the orderpurpose of appointments.
of the Tribunal only to those who approached the Tribunal.
The State preferred a SLP before the Supreme Court.
ArupDas v. State160 posts were advertised. 12,000 candidates applied. After Dismissing the Special
of Assam written test, viva voice was restricted to 560 candidates. AfterLeave Petition, the
publishing a select list of 160 candidates and sending them forSupreme Court held that
training, 3 more lists were sent by the Director to the more vacancies than the
Government for appointment on the ground that more number advertised cannot
vacancies had arisen. The Government refused to appoint be filled up.
persons from the second, third and fourth lists, since 160
persons had already been selected. The decision of the
Government was challenged unsuccessfully before the High
Court and the matter was taken to Supreme Court.
Having taken note of the facts out of which the above decisions arose, let me now turn on to the principles of law laid down in those decisions.
In Prem Singh and Others Vs. Haryana State Electricity Board and Others, , the Supreme Court held in para 25 as follows:-
From the above discussion of the case-law it becomes clear that the selection process by way of requisition and advertisement can be started
for clear vacancies and also for anticipated vacancies but not for future vacancies. If the requisition and advertisement are for a certain number of
posts only the State cannot make more appointments than the number of posts advertised, even though it might have prepared a select list of more
candidates. The State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances
only or in an emergent situation and that too by taking a policy decision in that behalf. Even when filling up of more posts than advertised is
challenged the Court may not, while exercising its extraordinary jurisdiction, invalidate the excess appointments and may mould the relief in such a
manner as to strike a balance between the interest of the State and the interest of persons seeking public employment. What relief should be
granted in such cases would depend upon the facts and circumstances of each case.
In Sri Kant Tripathi vs. State of U.P. (2001 (10) SCC 237), the Supreme Court held in para 19 as follows:-
Since the Court determines the number of officers to be taken at the particular recruitment, keeping in view the vacancies then existing as well as
likely to occur in the next two years and from out of such available vacancies, allocates, in respect of various sources of recruitment, in terms of
Rule 6, only after which an advertisement could be published for direct recruitment under Rule 17, the question of any variation thereafter, would
not arise in the ordinary course. But in an extraordinary situation, like sudden creation of posts in the cadre, subsequent to the issuance of
advertisement, but before the last date of submission of application forms, the variation clause may become applicable, is that a greater number of
persons, than the posts advertised for, could be considered for the said recruitment. However, as has been stated earlier, such allocation will have
to be an extraordinary one.
In Secretary, A.P. Public Service Commission Vs. B. Swapna and Others, the Court held in para 10 as follows:-
There are two principles in service laws which are 14 indisputable. Firstly, there cannot be appointment beyond the advertised number and
secondly norms of selection cannot be altered after the selection process has started. In the instant case 15 posts were to be filled up.
In Amlan Jyoti Borooah Vs. State of Assam and Others, it was held in para 40 as follows:-
The State in an emergent situation would subject to constitutional limitations is entitled to take a decision which subserves a greater public
interest. While saying so, we are not unmindful of the fact that the Constitution also demands that candidates who had acquired eligibility for
recruitment to the post in the meantime should also be given opportunities to participate in the selection process. this Court times without number
had lamented the lackadaisical attitude on the part of the State to treat the matter of selection for appointment to services in a casual and cavalier
manner. If no appointment could be made from 1997 to 2001, it is the State alone who could thank itself therefor, but, unless there exists a
constitutional or a statutory interdict so as to compel the superior court to set aside the selection which has otherwise been validly made; in
exercise of their power of judicial review the same would not ordinarily be interfered therewith.
In Rakhi Ray and Others Vs. The High Court of Delhi and Others, , the Court held in para 7 as follows:-
It is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as ''the recruitment of the
candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the
Constitution'', of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of
notification of vacancies. Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to
''improver exercise of power and only in a rare and exceptional circumstance and in emergent situation, such a rule can be deviated from and such
a deviation is permissible only after adopting policy decision based on some rationale'', otherwise the exercise would be arbitrary. Filling up of
vacancies over the notified vacancies amounts to filling up of future vacancies and thus, is not permissible in law (vide Union of India vs. Ishwar
Singh Khatri (1992 Supp (3) SCC 84), Gujarat State Dy. Executive Engineers'' Association Vs. State of Gujarat and Others, , State of Bihar and
Others Vs. Secretariat Assistant Successful Examinees Union 1986 and Others, , Prem Singh and Others Vs. Haryana State Electricity Board and
Others, and Ashok Kumar and Others Vs. Chairman, Banking Service Recruitment Board and Others,
In State of Orissa v. Rajkishore Nanda ((2010) 6 SCC 777), it was held in para 11 as follows:-
It is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as ""the recruitment of the
candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the
Constitution"", of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of
notification of vacancies. Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to
improper exercise of power and only in a rare and exceptional circumstance and in emergent situation, such a rule can be deviated and such a
deviation is permissible only after adopting policy decision based on some rational"", otherwise the exercise would be arbitrary. Filling up of
vacancies over the notified vacancies amounts to filling up of future vacancies and thus, not permissible in law. (Vide State of Bihar and Others Vs.
Secretariat Assistant Successful Examinees Union 1986 and Others, Prem Singh and Others Vs. Haryana State Electricity Board and Others, ,
Ashok Kumar and Others Vs. Chairman, Banking Service Recruitment Board and Others, Surinder Singh v. State of Punjab (AIR 1998 SC 18)
and Rakhi Ray and Others Vs. The High Court of Delhi and Others, .
In Arup Das v. State of Assam {order dated 27.02.2012}, the Supreme Court, pointed out in paras 10 and 11 as follows:-
10.... It is well-established that an authority cannot make any selection/appointment beyond the number of posts advertised, even if there were a
larger number of posts available than those advertised. The principle behind the said decision is that if that was allowed to be done, such action
would be entirely arbitrary and violative of Articles 14 and 16 of the Constitution, since other candidates who had chosen not to apply for the
vacant posts which were being sought to be filled, could have also applied if they had known that the other vacancies would also be under
consideration for being filled up....
In a recent decision rendered by this Court in State of U.P. and Others Vs. Rajkumar Sharma and Others, ], this Court once again had to
consider the question of filling up of vacancies over and above the number of vacancies advertised. Referring to the various decisions rendered on
this issue, this Court held that filling up of vacancies over and above the number of vacancies advertised would be violative of the fundamental
rights guaranteed under Articles 14 and 16 of the Constitution and that selectees could not claim appointments as a matter of right. It was
reiterated that mere inclusion of candidates in the Select List does not confer any right to be selected, even if some of the vacancies remained
unfilled. this Court went on to observe further that even if in some cases appointments had been made by mistake or wrongly, that did not confer
any right of appointment to another person, as Article 14 of the Constitution does not envisage negative equality and if the State had committed a
mistake, it cannot be forced to perpetuate the said mistake.
On a careful scrutiny of the ratio laid down in all the decisions referred to above, the principles of law that emerge, could be summarised as
follows:
(i) that a recruitment could be for existing (or clear) vacancies as well as for anticipated vacancies;
(ii) that it cannot be for future vacancies;
(iii) that if the requisition and advertisement are for a certain number of posts only, the State cannot make more appointments than the number of
posts advertised, even if a select list of more candidates had been prepared;
(iv) that the State can deviate from the advertisement and make appointments for more vacancies, in exceptional circumstances only or in an
emergent situation and that too, by taking a policy decision in that behalf;
(v) that the appointment of more number of candidates than the number of posts advertised, would actually alter the norms of selection, after the
selection process has started, infringing the rights of persons who qualify after the cut off date prescribed in the first notification; and
(vi) that the filling up of vacancies over and above the number of vacancies advertised, would be violative of Articles 14 and 16.
Therefore, three principles emerge, namely:-
(i) that both existing as well as anticipated vacancies can be filled up, but future vacancies cannot be filled up in pursuance of a selection
notification;
(ii) that confining the ultimate selection only to the number of posts advertised, with a small variation within tolerance limits, is the rule; filling up
more number of vacancies than the number advertised, can be only by way of exception; and
(iii) that to make a case fall under the exception to the rule, there must be an emergent situation and as a consequence, a policy decision ought to
have been taken. Let me now apply all these 3 tests to the cases on hand. Test-1-Existing/Anticipated vacancies or Future vacancies
It must be noted that the vacancies in the post of Assistant Section Officers sought to be filled up by the first notification dated 15.11.2009,
related only to the Law Department and TNPSC. They were 13 and 4 respectively and these posts had different code numbers. The posts of 186
Assistant Section Officers sought to be filled up, related to departments other than Law and TNPSC. These 186 vacancies might have existed
even on 15.11.2009, the date of the notification. But, they existed as vacancies reserved for promotion. It was only on 22.3.2010 that by virtue of
G.O.(4D) No. 7, these 186 posts intended for promotion were diverted to be filled up by direct recruitment, by relaxing Rule 8 of the Special
Rules, by exercising the power of relaxation under Rule 48 of the General Rules.
It is a well settled proposition of law that any order granting relaxation from the application of the Rules, would take only prospective effect
and not retrospective effect, unless otherwise specified by the order of relaxation itself. G.O.(4D)No.7 does not state that Rule 8 was relaxed with
retrospective effect. Therefore, it is deemed to have been relaxed only with prospective effect, namely, from 22.3.2010. Consequently, these 186
posts became available for direct recruitment quota only from 22.3.2010 and not earlier than that. In other words, these 186 posts were neither
existing vacancies, nor anticipated vacancies, as on the date of the notification, namely, 15.11.2009. These vacancies were created for the purpose
of direct recruitment, only from 22.3.2010, though they existed for being filled up by the promotional quota. Hence, these vacancies were actually
future vacancies insofar as the notification dated 15.11.2009 is concerned.
Two things should be borne in mind. They are:-
(i) since these 186 vacancies came into existence for being filled up by direct recruitment, only from 22.3.2010, within four months of the
notification, the Government could have issued a supplemental notification after 22.3.2010, as the examination was scheduled to be held only on
11.4.2010. But, the Government did not do so; and
(ii) The next notifications were issued on 30.12.2010 and 08.02.2011, followed by a supplemental notification dated 11.6.2011. It was only under
supplemental notification dated 11.6.2011 that 281 posts of Assistant Section Officers in other than Law and Finance Departments were
advertised. Therefore, for these notifications dated 30.12.2010, 8.2.2011 and 11.6.2011, those 186 posts were existing/anticipated vacancies and
hence, those 186 posts could have been included lawfully, in these notifications dated 30.12.2010 and 08.02.2011. If they had done so, persons
who became eligible before the cut off date prescribed by these subsequent notifications, namely, 01.7.2010, could have participated.
Therefore it is clear that the filling up of these posts without the notification covering these posts, became illegal, in view of the fact (i) that these
186 posts of Assistant Section Officers having post code No. 1072 were neither existing nor anticipated vacancies as on 15.11.2009, but were
only future vacancies as they were diverted to the direct recruitment quota only on 22.3.2010, and (ii) that even before the finalisation of the results
of the selection in pursuance of the notification dated 15.11.2009, the next notification was issued on 30.12.2010. Once it is found to be illegal, the
onus of proving (i) that there was an emergent situation and (ii) that a policy decision was taken by the Government, is cast heavily upon the
Government. Test-2- Variation permissible
It is the contention of the contesting respondents that under para 3.B of the notification dated 15.11.2009, the number of vacancies advertised
was indicated only to be approximate and that it was liable to be modified with reference to the vacancy position at any time before finalisation of
selection. But this contention, as rightly argued by the learned Senior Counsel appearing for the petitioners, cannot hold good for two reasons.
They are:-
(i) An approximation will not allow for a huge variation. Notifying 20 vacancies and filling up 30, may fit into the scheme of para 3.B of the
notification. But notifying 17 posts (13 + 4) and filling up 186 posts, cannot be justified on the basis of the law of approximation.
(ii) Assuming that approximation is permitted, this case would not fall within what is contemplated by para 3.B of the notification. The notification
dated 15.11.2009 relates only to 13 posts of ASOs in Law Department bearing post code No. 1073 and 4 posts of ASOs in TNPSC bearing
post code No. 2201. But 186 posts of ASOs sought to be filled up on the basis of the same notification relate to the vacancies in other than Law
and Finance Departments and they bear post code No. 1072. Therefore, the respondents cannot justify their action on the basis of para 3.B of the
notification, when they seek to fill up posts which were never advertised. Test-3 Whether there was emergent situation and Whether there was
policy decision:
The third test to be applied is to see whether there was an emergent situation warranting the filling up of non non notified vacancies; and if there
was a policy decision. The learned Advocate General represented that a policy decision was in fact taken by the previous Government and that the
Government stands by the decision so taken. He also produced a letter of the Principal Secretary to Government dated 16.2.2012, to the effect
that there was no deviation in the policy. Before considering this aspect, let me see whether there was an emergency.
To see if there was an emergency, certain dates and events and certain facts are required to be noted. They are as follows:
(i) On 15.11.2009, a notification was issued for filling up about 11 posts carrying the scale of pay of Rs. 9300-34800 and 10 posts carrying the
scale of pay of Rs. 5200-20200;
(ii) Out of those 11 posts carrying the scale of pay of Rs. 9300-34800, only 2 posts were that of Assistant Section Officer (Law Department) and
Assistant Section Officer (TNPSC);
(iii) The Code numbers of these posts were 1073 and 2201 respectively and the vacancies notified were 13 and 4 respectively;
(iv) On 22.3.2010, G.O.(4D)No.7 was issued diverting 186 posts of Assistant Section Officers reserved for promotion, under Rule 8 of the
Special Rules for Tamil Nadu Secretariat Service, to be filled up by direct recruitment;
(v) On 11.4.2010, written examination was conducted in pursuance of the notification dated 15.11.2009;
(vi) On 30.12.2010 and 08.02.2011, advertisements were issued for direct recruitment of 2709 interview posts and 1620 non interview posts. No
post of Assistant Section Officer was notified;
(vii) On 13.01.2011, interview call letters were sent to candidates shortlisted in the written examination conducted on 11.4.2010 in pursuance of
the notification dated 15.11.2009; and
(viii) On 11.6.2011, a supplementary notification was issued to the notifications dated 30.12.2010 and 08.02.2011, including 281 posts of
Assistant Section Officers in the Secretariat (other than Law and Finance Departments). The post code of this post was indicated as 1072.
The notification dated 15.11.2009 stipulated that the crucial date for reckoning the minimum and maximum age of a person would be
01.7.2009 and the crucial date for acquisition of qualification would be the date of the notification, namely, 15.11.2009. The notifications dated
30.12.2010 and 08.02.2011, which were supplemented by a supplemental notification dated 11.6.2011, prescribed 30.12.2010 as the date for
reckoning the qualification and 01.7.2010 as the date for reckoning the age limit.
The presentation of facts in a tabular form, may drive home the point much easier. Therefore, it is presented as follows:
Cut off dateCut off date for
No. of Assistant
Date of for reckoning Post Code
Notification Section Officer posts
notification reckoning educational No.
notified
age qualification
First 1073
15.11.2009 01.7.2009 15.11.2009 Law -13 TNPSC -4
2201
Second & 30.12.2010 &
01.7.2010 30.12.2010 Nil Nil
Third 08.02.2011
Supplemental
Other than Law &
to second & 11.6.2011 01.7.2010 30.12.2010 1072
Finance -281
third
The question whether there was an emergent situation or not and whether there was a policy decision or not, can be answered only by making
a reference to the counter filed by the Government. Therefore, let me look into the counter affidavit of the first respondent.
In paragraph 3 of the counter affidavit, the Government had stated that as per Rule 8 of the Special Rules for Tamilnadu Secretariat Service,
the post of Assistant Section Officers in the Departments of the Secretariat, other than in the Departments of Law, Tamil Development, Culture
and Religious Endowments and the Governor''s Secretariat, is to be filled up in the manner prescribed below :
In rule 8 of the Special Rules for the Tamil Nadu Secretariat Service, the following pattern of appointment of Assistant Section Officers in the
Departments of Secretariat other than the Law Department, Tamil Development, Culture and Religious Endowments Department (Translations)
and Governor''s Secretariat has been prescribed -
by direct recruitment;
by promotion from the category of Assistant;
by promotion from the category of Assistant;
by promotion from the category of Assistant;
by promotion from the category of Assistant; Provided that the 20th rotation shall be filled up by the nongraduate Assistants and that if no
suitable and qualified nongraduate Assistants is available, then the said rotation shall be filled up from among the holders of the post of Assistant;
by promotion from the category of Senior Personal Clerks;
by promotion from the category of Senior Typists; and
by recruitment by transfer from the category of Assistant in the Tamil Nadu Ministerial Service or in the Tamil Nadu Judicial Ministerial Service.
It is further stated in the counter affidavit of the first respondent that when an estimate of vacancies was prepared, for the post of Assistant
Section Officers in the Secretariat in all Departments except Law and Finance, for the year 2009-2010, it was noticed that there were 293
vacancies existing as on 16.2.2010. Out of them, 281 were substantive and 22 were already in the withheld list of the examination conducted in
2008. It is also stated in the counter affidavit that 91 directly recruited Assistants were granted temporary promotion to the post of Assistant
Section Officer and there was a proposal to promote 30 persons who were fully qualified and 43 persons who were likely to get qualified within a
few months. Thus, out of 281 substantive vacancies, 73 (43 + 30) vacancies were proposed to be filled up by promotion, leaving a balance of 208
vacancies. Since 22 candidates were already waiting in the withheld list of 2008, the balance to be filled up became 186. Since these posts were to
be filled up by promotion and also since qualified hands were not available in the Feeder categories, the Government decided to divert these
vacancies to the direct recruitment quota.
In paragraph 3(c) of their counter affidavit, the Government has stated that all the Departments of the Secretariat were pressing to fill up the
huge vacancies prevailing in the post of Assistant Section Officers and that due to dearth of hands in the Feeder categories, the Government took a
policy decision to relax Rule 8 of the Special Rules and fill up these posts by direct recruitment.
A careful scrutiny of paragraph 3 of the counter affidavit filed by the Government shows (i) that there was a need to fill up the existing
vacancies by way of direct recruitment and (ii) that a policy decision was taken to relax Rule 8. In other words, the averments in paragraph 3
justify the mere conversion of the vacancies reserved for promotion, into vacancies that could be filled up by direct recruitment. These averments
speak only about a policy decision to divert these vacancies for direct recruitment. But they do not speak about a policy decision to fill up these
vacancies which arose on 22.3.2010, on the basis of the same notification issued on 15.11.2009. Therefore, it is clear that the respondents do not
talk about a policy decision to fill up future vacancies on the basis of an earlier notification. They only speak about a policy decision to divert the
quota of vacancies for promotion to the direct recruitment quota.
The dates and events which I have given above would show that in a period of one year of the first notification dated 15.11.2009, the second
notification came to be issued on 30.12.2010, much before the process of viva voce in respect of the first notification commenced. Therefore,
there was not such a great emergency, that those 186 vacancies could not have waited to be included in the second notification dated 30.12.2010.
If those 186 vacancies had been included in the second notification dated 30.12.2010, persons who qualified between 1.7.2009 and 1.7.2010
could have participated. The counter affidavit does not disclose any grave emergency that warranted the filling up of these 186 vacancies even
under the first notification dated 15.11.2009, without any possibility for waiting till the next notification dated 30.12.2010. Therefore, two things
have become clear viz., (i) that the policy decision allegedly taken by the Government was not for filling up 186 posts in pursuance of the
notification dated 15.11.2009, but to divert the promotion quota to direct recruitment and (ii) that the issue of the next notification on 30.12.2010,
within 9 months of the diversion of the vacancies for direct recruitment under the Governement Order dated 22.3.2010 shows that there was no
such emergency situation. Hence, the claim of the respondents fail to pass even the third test.
It is contended by some of the Learned Counsel appearing for the contesting respondents that lakhs and lakhs of candidates have appeared for
the examination and that they are awaiting orders of appointment to be issued. According to the contesting respondents, their interest will get
jeopardised if the selection is stalled at this stage.
But, I do not think so. All the contesting respondents never applied for any particular post, in pursuance of the notification dated 15.11.2009.
Their application was for Combined Services Examination I, which included 11 interview posts carrying a scale of pay of Rs. 9,300-34,800 and
ten non interview posts carrying of a scale of pay of Rs. 5,200-20,200. It is only after candidates are shortlisted on the basis of their performance
in the written examination, an option has been given to the top rankers to give a choice, before they are called for interview. As a matter of fact,
para 7 of the Advertisement dated 15.11.2009 makes it clear that for interview posts, the question of exercising post preference does not arise
until the time of oral interview. All the contesting respondents applied for all the posts in Table-I and took the written examination without any
particular preference, since the question of preference to a post would arise only at the time of oral interview, as per para 7 of the notification. The
fact that the contesting respondents were invited for interview by call letters issued in January/February 2011 would show that till January/February
2011, the contesting respondents had no idea at all about the possibility of the filling up of huge number of posts than those notified. By the time the
contesting respondents realised this in January/February 2011, the second notification dated 30.12.2010 had already come, inviting applications
for various posts. Therefore, the invitation extended to the contesting respondents, for more number of posts than those advertised, was a
fortuitous circumstance. I agree that no man will be willing to forego a lottery that may come his way. But the same cannot be equated a legitimate
expectation. Since the second notification dated 30.12.2010 had already come even before the issue of call letters to the contesting respondents in
January/February 2011, most of them who fulfilled the eligibility criteria would have even applied in response to the second notification dated
30.12.2010. Therefore, these contesting respondents who pitch their claims on fortuitous circumstances, cannot defeat the right pleaded by the
writ petitioners on the basis of Articles 14 and 16 of The Constitution.
It is admitted that till date no appointment orders have been issued to any of the persons selected for appointment to the post of ASOs over
and above those 17 vacancies originally notified in the advertisement dated 15.11.2009. Therefore, there is no question of anyone being deprived
of any right already vested in them, if the prayer sought in the writ petitions is granted. It is needless to point out that at the most the contesting
respondents can be taken to be candidates selected or waiting to be selected for appointment to vacancies far in excess of those notified. Such
candidates acquired no legal right and hence they cannot cry over the loss of a chance that came their way as by way of a jackpot.
A feeble attempt was made by some of the counsel appearing for the contesting respondents, questioning the maintainability of the writ
petitions on the ground that the petitioners never participated in the selection and that therefore, it is not their concern to question how many
vacancies are sought to be filled up. But this contention is to be stated only to be rejected. If the petitioners had participated in the selection, two
things could have happened. One is that they might have got selected. Another is that they may not have been selected. If they had been selected,
they would have had no cause of action to come here. If they had not been selected, they cannot at all challenge the selection of the contesting
respondents, even if more posts are sought to be filled up. This is for the reason that the contesting respondents will be found to have been more
meritorious. Therefore, the writ petitions have become maintainable only due to the fact that the petitioners did not participate in the selection
process in pursuance of the notification dated 15.11.2009.
The Learned Counsel for some of the respondents relied upon the order passed by K.N.Basha, J., vacating the interim orders originally
granted ex parte. They also relied upon the decision of the Division Bench confirming the order of the learned Judge. But it is needless to point out
that the parameters on which an interim prayer is to be tested, are different from the parameter on which the main writ petitions are to be decided.
The final decision in any proceeding cannot depend upon the outcome of the miscellaneous petitions for interim relief. Therefore, the contention of
the Learned Counsel for the contesting respondents deserves to be rejected.
One more contention is advanced on behalf of the contesting respondents. It is that the petitioners have not challenged G.O.(4D) No. 7 dated
22.3.2010 under which 186 vacancies intended for promotion have been diverted to be filled up by direct recruitment. Therefore, according to the
contesting respondents, without challenging the Government Order, the filling up of these posts cannot be assailed. In support of this contention,
the Learned Counsel for the contesting respondents also rely upon a judgment of K.Chandru, J., in Suyam Prakasam vs. The Secretary to
Government (2011 (1) CWC 930).
But the above contention arises out of a thorough misunderstanding of the basis of the claim of the petitioners. It appears that some employees
working in the Secretariat had earlier challenged the Government Order and later withdrew the writ petition. But the petitioners herein do not
oppose the diversion of the vacancies intended to be filled up by promotion, for direct recruitment. All that they oppose is that those vacancies
which arose subsequently, cannot be filled up under a prior notification. The petitioners can be expected to challenge the Government Order only if
they are opposing the very diversion of the promotion quota for direct recruitment. In fact, the petitioners in one writ petition are working as
Assistants in the Secretariat. The petitioner in the other writ petition is an unemployed person. He is consequently a beneficiary of the Government
Order. All that he wants is that these vacancies which arose after the notification, cannot be filled up under the same notification. Therefore, he
cannot be expected to challenge the Government Order and hence this contention also does not hold good.
In view of the above, I am of the considered opinion that the selection in pursuance of the notification dated 15.11.2009 should be confined
only to the actual number of vacancies notified in all departments, including 13 posts of ASOs in the Law Department and 4 posts of ASOs in the
TNPSC. The respondents cannot fill up 186 posts of ASOs on the basis of the very same selection. However it will be open to the respondents to
fill up these 186 posts of ASOs on the basis of the selection conducted in pursuance of the notifications dated 30.12.2010 and 8.2.2011 as
supplemented by the supplementary notification dated 11.6.2011. This is in view of the fact that as on the date of the second notification viz.,
30.12.2010, these 186 posts had become existing vacancies for direct recruitment by virtue of G.O.4D.No.7 dated 22.3.2010. Accordingly, both
the writ petitions are allowed with the following directions:
(i) The selection in pursuance of the notification dated 15.11.2009 shall be confined only to the vacancies notified in the advertisement dated
15.11.2009; and
(ii) It may be open to the Government to fill up 186 posts of Assistant Section Officers in the Departments of the Secretariat (other than Law and
Finance) which were diverted to be filled up by direct recruitment by G.O.4D.No.7 dated 22.3.2010, on the basis of the selection conducted in
pursuance of the later notifications dated 30.12.2010 and 8.2.2011 and the supplementary notification dated 11.6.2011. There will be no order as
to costs. Consequently, connected miscellaneous petitions are closed.