Rajasthan High Court - Jodhpur
Hanuman Prasad Vyas And Anr vs State Of Raj. And Ors on 23 July, 2019
Bench: S. Ravindra Bhat, Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
(1) D.B. CIVIL SPECIAL APPEAL(W) NO.87/2015
1. Anil Purohit S/o Shri S.L.Purohit, aged about 40 years, r/o
"Sukh Kutir", near Nar Singh Dharan, Hatchi Chowk, Jodhpur
Rajasthan.
2. Nagendra Purohit S/o Shri V.D.Purohit, aged about 39 years,
resident of Shambhu Bhawan, Near Sanisharji Ka Than,
Chopasani Road, Jodhpur, Rajasthan.
----Appellants
Versus
1. State of Rajasthan through the Secretary, Department of
Urban Development, Govt. of Rajasthan, Jaipur.
2. The Jodhpur Development Authority through its Secretary,
Jodhpur.
----Respondents
Connected with
(2) D.B. CIVIL SPECIAL APPEAL(W) NO.86/2015
Randhir Vyas S/o Shri Mohan Kishan Vyas, aged about 40 years,
resident of 12th Residency Road, Madan No.109, Masuriya,
Jodhpur.
.....Appellant
Versus
1. State of Rajasthan through the Secretary, Department of
Urban Development, Govt. of Rajasthan, Jaipur.
2. The Jodhpur Development Authority through its Secretary,
Jodhpur.
..........Respondents
(3) D.B.Special Appeal (W) No.8/2015
1. Hanuman Prasad Vyas S/o Shri Om Prakash, Aged about 34
years, R/o Jaisalmerio Ki Gali, House No.1, Navchowkia, Jodhpur,
Rajasthan.
2. Jai Narayan Mutha S/o Shri Mahesh Kumar, aged about 40
years, R/o Muthon Ki Gali, Navchowkia, Jodhpur, Rajasthan
....................Appellants
Versus
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1. State of Rajasthan through Principal Secretary, Urban
Development and Housing, Government of Rajasthan, Jaipur.
2. The Principal Secretary, Local Self Government, Government
of Rajasthan, Jaipur.
3. The Chairman, Jodhpur Development Authority, Jodhpur.
4. The Chairman, Jaipur Development Authority, Jaipur.
..............Respondents
For Appellant(s) : Mr. Mukesh Rajpurohit
Ms. Varsha Bissa
For Respondent(s) : Ms. Rekha Borana, AAG with
Ms. Vaishali Parihar, Mr. Saransh Vij,
Mr. Manoj Bhandari
Mr. Kuldeep Mathur
Mr. D.S. Rajvi
Reportable HON'BLE THE CHIEF JUSTICE
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment Reserved on :: 09.07.2019
Judgment Pronounced on :: 23.07.2019
By the Court: (Per Hon'ble The Chief Justice):
1. The three appellants are aggrieved by the common judgment and order dated 30/10/2014 of a learned single judge, rejecting their writ petitions.
2. An advertisement dated 10/2/2010 was issued inviting application for 167 posts of Junior Engineers, by the Urban Development and Housing Department of Government of Rajasthan. The advertisement inter alia, stipulated the eligibility criteria, that Engineering Graduates with minimum 60% marks in their qualifying Degree course or A.M.I.E. Degree holders with minimum 55% of marks could apply for the posts. Two of the petitioners (in WP No. 11047/2010), Engineering Graduates with marks below 60% were aggrieved; they approached this court. Others, were not Engineering Graduates- nor A.M.I.E. holders but are Diploma Holders in Civil Engineering; they too approached the (Downloaded on 01/09/2019 at 11:48:39 PM) (3 of 16) [SAW-87/2015] court. Their contentions were that the state could not have confined the recruitment to only Engineering graduates, since the rules also enabled recruitment of diploma holders for the post. Much later during the proceedings, they sought to contend that the State made appointments of Junior Engineers in the said selection process in pursuance of advertisement dated 10/2/2010, in excess of 167 posts notified in the said advertisement. It was sought to be argued that the State did not invite applications and consider for appointment diploma holders like the petitioners, who were deprived of the opportunity to apply for the post, in view of the qualifications prescribed for the post of Junior Engineer i.e. Engineering Graduation with minimum 60% marks or A.M.I.E. Degree with 55% marks.
3. The petitioners alleged under the relevant statutory Rules of 1973 applicable for the state and public authorities like Jaipur Development Authority (JDA), the Rajasthan Subordinate Engineering (Building & Roads Branch) Service Rules, 1973 (for short 'Rules of 1973'), the employers could not exclude the Diploma Holders and the Engineering Graduates below 60% of marks from the said selection process.
4. The state's position, indeed as also that of the other respondent-corporations was that the advertisement dated 10/2/2010 was issued for 167 posts of Junior Engineers for JDA, the Jodhpur Development Authority and different UITs etc. and in pursuant to it, 2493 applications were received for interview and after scrutiny the applications, 1134 candidates were called for interview. At the time 244 candidates absented from the interview; and 107 candidates did not qualify. 12 posts were kept vacant in compliance with interim orders of this Court; after interview, 782 candidates qualified in terms of the merit list produced in the course of the proceedings. The state also submitted that it declared the result of 155 candidates against the 167 posts advertised and 12 posts were kept vacant in compliance of the stay order passed in different cases. It (Downloaded on 01/09/2019 at 11:48:39 PM) (4 of 16) [SAW-87/2015] submitted that due to administrative exigencies, it was found necessary to appoint a greater number of more Junior Engineers for different projects of the State and Public Bodies. The respondents, therefore decided to appoint 455 candidates including the 155 candidates; all were in the said select list. Appointment orders were issued on 2.11.2010, 17.1.2011, 6.4.2011 and 9.8.2011. The state also disclosed that of 455 appointments offered only 326 candidates joined and of them 24 candidates left the posts. Thus finally 302 candidates stood appointed, and joined pursuant to the said selection process.
5. The state also submitted that the legal opinion from the Advocate General opined that the matter could be examined from the point of view of necessity of the posts in the UITs and Jaipur Development Authority and if on merits, there was justification for additional posts and such additional posts could be created with retrospective effect, after obtaining the concurrence from the competent authority and the appointments already made may be adjusted towards the newly created posts in UITs and Jaipur Development Authority etc. The state also averred, during the course of the writ petitions, that the issue was placed before the State Cabinet by memorandum dated 04/06/2013. The cabinet by its decision No. 155/2013 dated 10/7/2013, sanctioned the excess posts of Junior Engineers, that had been filled up by the State Urban Development and Housing Department.
6. The state also urged that it acted bonafide considering the scarcity of technical staff in the ongoing projects and various other important projects in different State Public Undertakings and Departments such as DMRC for Jaipur Metro Project, AVL for affordable house project, CTP Office for Master Plan, RUIDP for ADB Funding Projects, RUIFDCO JLNURM Projects, UITs, Jaipur and Jodhpur Development Authorities. The state submitted that there was a need to fill up the Junior Engineers' posts to meet the emergent situation of having to complete various projects and (Downloaded on 01/09/2019 at 11:48:39 PM) (5 of 16) [SAW-87/2015] requisitions received from other Departments. It therefore, stated that its action was bonafide and in accord with proviso to Rule 16 of the 1973 Rules and in the larger public interest. The details of posts for the different projects was also disclosed in the course of the proceedings. It was submitted that the various departments and organizations had earlier not demanded for recruitment of Junior Engineers at the time of issuance of Notification (dated 10/2/2010) and the additional recruitments were made by the State was not a burden on the public exchequer, because all those additional recruitments were for the local bodies.
7. After considering the record and the submission of the parties, the learned single judge rejected the writ petitioner/appellants' contentions and held as follows:
"17. The aforesaid Rule, thus, clearly envisages creation of separate posts of Junior Engineers; (i) Junior Engineer (Degree Holder) (Civil) and (ii) Junior Engineers (Diploma Holder) (Civil) under Clause 1(a) and 1(b) Group II of the Schedule and both the posts are to be filled up by direct recruitment and the eligibility criteria is also provided separately in column (4); (i) Degree in Civil Engineering for Junior Engineers (Degree Holder) and (ii) Diploma in Civil Engineering for the post of Junior Engineers (Diploma Holder). Since the two posts are separate posts as envisaged in the 1973 Rules and 100% direct recruitment is to be made through different streams altogether, there is no question of mixing up the Diploma Holders with Degree Holders in the present selection process. The advertisement (Annex. 2) dated 10/2/2010 clearly specifies the post of Junior Engineer (Civil), however, it does not specify whether the said post is of Junior Engineer (Degree Holder) or Junior Engineer (Diploma Holder) but the eligibility criteria prescribed in column (2) of the said advertisement clearly stipulates that the eligible candidates should be Engineering Graduates within minimum 60% marks or AMIE Degree Holders with minimum 55% marks.
There is no mention of Junior Engineer (Diploma Holder) in the said advertisement at all. Now there is a definite difference between the two qualifications and the Engineering Degree Holders definitely have an edge and better qualification over the Diploma Holders. If the respondent State requires only better candidates with better qualification of Engineering (Downloaded on 01/09/2019 at 11:48:39 PM) (6 of 16) [SAW-87/2015] Graduates, the lesser qualified Diploma Holders cannot raise a grudge that in the same selection process made for Degree Holders, they should also be allowed an opportunity to compete.
18. The requirement of candidates possessing minimum 60% marks even in the Degree course, however, shows that the respondent State Government has desired to employ only the best available talent even from the lot of Engineering Graduates and they should possess a minimum marks in their degree courses. Since the opening was not at all available for the Diploma Holders and the posts notified as vacant were also not for the Junior Engineer (Diploma Holder) (Civil), there is no reason to include the Diploma Holders in the said selection process as claimed by the present petitioners. Further, the appointments offered to the Diploma holders subject to the final decision of the writ petitions, under the interim orders of this Court & pendency of contempt petitions vide appointment orders dated 23/1/2013 and 12/9/2013 also cannot confer any right of their continued employment, as their appointments was clearly subject to the decision on merits of these writ petitions and their individual writ petitions were disposed of as having become infructuous on the statement made by learned counsel for the petitioners only in view of such conditional appointments given to them and the same cannot confer any vested right upon them. Such writ petitions had not actually become infructuous with their provisional appointments but was contingent upon & subject to the final decision of the writ petitions on merits, which are now being decided by this judgment.
19. In the face of increasing competition amongst the Degree holders themselves as the data produced by the State would show that even the list of eligible Degree holders with minimum 60% marks has much exceeded the number of posts advertised and as many as 2493 candidates had applied for the said 167 posts and 1134 candidates were called for interview and ultimately 782 candidates were found qualified as per the merit list prepared by the respondents vide Annex. R/1/5 produced on record. Out of the said selected candidates, the appointments were required to be made even beyond the originally notified 167 posts to the extent of 326 candidates as stated by the respondent State in their reply because of the additional requirements made for the said post of Junior Engineers by the different Departments and for the completion of the ongoing projects of Public Bodies as indicated above. The proviso to Rule 16 of the (Downloaded on 01/09/2019 at 11:48:39 PM) (7 of 16) [SAW-87/2015] Rules of 1973 clearly permits such additional appointments out of the selection process already held to the extent of 50% of the advertised vacancies, if additional requirement is made before the selection process is completed. The excess appointments made by the State Government has also been approved by the Cabinet Decision No. 155/2013 dated 10/7/2013 vide Annex. R/1/8, as quoted above, which is not under challenge. Thus, this Court finds no violation of the statutory rules of 1973 and the constitutional provisions enshrined under Article 14 and 16 and the Diploma holders as well as Degree holders with lesser percentage of marks cannot seek any parity or opportunity to compete with the Degree holders in the selection process held under the advertisement dated 10/2/2010 (Annex. 2).
20. Regarding the challenge laid with regard to prescribing 60% of marks in the Degree qualification, learned counsel for the petitioners urged that the statutory rules do not envisages any such condition, this Court is of the considered opinion that such a filter or screening requirement of minimum percentage of marks in the qualifying Degree course can be put by the respondent State and the best available talent can be considered for appointment on the said posts. The contention that written test was prescribed for in the Advertisement for screening or short listing in case large number of applications were received, does not mean that the requirement of minimum cut off percentage cannot be provided for in the same advertisement. Both conditions would serve the same purpose and, therefore, have to be read in conjunction with each other & not in derogation or conflict with each other. This Court cannot find any fault, if such a condition is imposed and on the contrary if such a condition would not have been there then many more applications would have been received, which would result in a more expanded process of selection and since the present selection process was held only on the basis of interview & marks obtained in Degree Course, there would be a chance of lesser meritorious person, who could perform better in the interview to have been selected, leaving out the more meritorious candidate, who could have performed only slightly lesser in the interview, if such procedure was not adopted by the respondents. Therefore, prescribing of the minimum percentage of marks in the qualifying course or Degree cannot be said to be unjust or unreasonable. Therefore, this contention of the learned counsel for the petitioners also is found to be devoid of merit and is liable to be rejected and same is hereby rejected."
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8. Mr. Mukesh Rajpurohit and Ms. Varsha Bissa learned counsel appearing for the appellants argued that the single judge erred in not seeing that the state disclosed no rationale in limiting eligibility for the post of Junior Engineers under the Advertisement dated 10/2/2010 only to Engineering Graduates with minimum 60% marks and AMIE Degree with 55% marks respectively, ignoring the eligibility of the diploma holders in Civil Engineering or graduates below 60% of marks. They argued that the statutory Rules of 1973 applicable in the present case, visualizes parity in opportunity and recruitment to such degree holders and diploma holders. It was argued that under the rules, diploma holders and degree holders (with less than 60% marks) were no less qualified than the degree holders and the denial of opportunity amounted to denial of equal opportunity under Article 14 of the Constitution. Counsel argued that providing minimum percentage of 60% for Engineering Graduates was beyond the stipulation in the Rules of 1973 and that for shortlisting of candidates, the advertisement provided for holding of a written test, if a large number of applications were received.
9. The appellant's counsel urged that the state could not have appointed excess number of Junior Engineers further to an advertisement notifying only 167 posts. In this regard, it was submitted that the rules permitted filling of future or excess vacancies only to the extent of 50% of the advertised vacancies. The procedure adopted of seeking ex post facto Cabinet approval to regularize such excess appointments, thus ignoring the right of the appellant-Diploma Holders or Degree Holders with lesser percentage of marks was utterly arbitrary. It was stated in some other writ petitions filed by certain Diploma Holders, the candidates were even given appointments by the respondent Urban Development Department of the State Government by appointment orders dated 23/1/2013 & dated 12/9/2013 and 15 such Diploma Holders were so appointed, (Downloaded on 01/09/2019 at 11:48:39 PM) (9 of 16) [SAW-87/2015] whose details are given below and, thereafter, WP Nos. 11450/2010-Vishnu Dutt Vyas & Ors. vs. State of Rajasthan & Ors. (decided on 17/12/2013), SBCWP No. 9905/2010-Ravi Dutt Kalla vs. State & Ors. (decided on 17/12/2013) & SBCWP No. 2245/2010-Nagendra Rajpurohit & Ors. vs. State & Ors. (decided on 17/12/2013) were rendered infructuous and disposed of as such.
10. It was further submitted that in pursuance of the interim order of this Court, some of the appellants (Hanuman Prasad Vyas and Jai Narayan Mutha) were also called for interview for the said selection process of Junior Engineers and in the interview held on 22/2/2011 they secured 64.83 and 58.26 marks in interview respectively, whereas, persons with lower marks obtained in the interview have already been appointed as Junior Engineers. Counsel urged that in the joint appeal of Hanuman Prasad Vyas and Jai Narayan Mutha an order was made to appoint of Hanuman Prasad Vyas, but not Jai Narayan Mutha who too deserves to be given such appointment in the same manner as other Diploma Holders were offered appointment by order dated 23/1/2013 & 12/9/2013.
11. Ms. Rekha Borana learned Addl. Advocate General urged this court to dismiss the appeals and relied on the state's additional affidavit dated 13/10/2014. She urged that the State acted within the four corners of the rules whilst inviting applications from the Engineering Graduates with the minimum 60% marks and AMIE Degree Holders with minimum 55% marks for the said posts of Junior Engineers. It was urged that the relevant rules of 1973 clearly permits additional appointments to the extent of 50% of the notified posts in view of the post advertisement requirements arising for such appointments under proviso to Rule 16 of the Rules of 1973.
Therefore in view of requisitions received from other
departments and projects of the State, such excess
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appointments made out of the same merit list prepared for the said selection process, (containing 782 candidates) and excess posts have been sanctioned by the Cabinet's decision of 10/7/2013. It was submitted that the state had, at the stage of issuing the advertisement, consciously decided to limit and call for applications only from amongst merited degree holder candidates, and not all those eligible under the rules such as diploma holders or engineering graduates, with less than 60% marks. This was because a large number of projects were underway, which required supervision and awareness of modern techniques and use of latest technology, for which engineering graduates who had fared well in their universities were targeted. Ms. Borana submitted that the diploma holders (or degree holders with less than 60% marks) had no vested right to say that they had to necessarily be considered for appointment; the state could limit the zone of recruitment, having regard to the peculiar needs of the situation.
12. It was also submitted that appointments offered to diploma holders by orders dated 23/1/2013 & 12/9/2013 were clearly subject to the decision of the writ petitions including the contempt petitions filed by the petitioners in view of the interim directions given by the coordinate bench of this Court and in the orders dated 23/1/2013 & 12/9/2013. It was submitted that these appointments given to the Diploma Holders were to remain subject to the final decision of these writ petitions and such appointments were not be a precedent for other cases. The state relied on the extracts of the order of appointment, in this regard.
Analysis and Findings.
13. From the above narration, it is evident that three issues call for determination: first, whether the limiting of recruitment to degree holders alone, who possess 60% marks is arbitrary; two, whether the state could have given appointments in excess of the (Downloaded on 01/09/2019 at 11:48:39 PM) (11 of 16) [SAW-87/2015] advertised vacancies; three, could diploma holders be excluded from the recruitment process of Junior Engineers even while rules permitted them.
14. No doubt, the rules prescribe that both degree holders (including those possessing AMIE qualifications) and diploma holders can be recruited to the extent of 100% (of the vacancies). The argument on behalf of the diploma holders was that the discretion exercised by the state- of not recruiting diploma holders was, in the circumstances, arbitrary. They had relied on past instances, and alluded to some internal guideline to the effect that recruitment to the post had to be resorted in the ratio of 60% (degree holders) and 40% diploma holders in the civil engineering departments and posts. According to them such a ratio had been maintained in the past. The state on the other hand, justified its position in restricting recruitments to those possessing engineering degrees, arguing that it was a conscious and thought out decision, based on logic which the court cannot sit in appeal over. The file notings of the state, containing the relevant discussion were produced. They show that when the initial proposal to confine recruitment from amongst degree holders was made, the concerned higher official queried and sought the rationale for such restriction. The reply given in the file, was that since the recruitment was of Junior Engineers who were to plan for and oversee the construction of important and large projects, degree holders were preferred, given that they could be expected to be aware of latest developments in technology and project management and implementation. This view was accepted and the competent authority issued the advertisement, restricting eligibility to those possessing engineering degrees.
15. This Court is of the opinion that at the stage of recruitment, where the rules do not prescribe any specified quotas (for degree holders or diploma holders) respectively, or ratio of vacancies, candidates, eligible from one or the other categories (Downloaded on 01/09/2019 at 11:48:39 PM) (12 of 16) [SAW-87/2015] cannot complain of discrimination if they are excluded from participation in the selection or recruitment process, because the competent authority decides to restrict the eligibility to those possessing a particular qualification. There is no compulsion in the rules whereby the competent authority is obliged to fill vacancies in the cadre of Junior Engineer from both streams, i.e. diploma holders and degree holders. The rules no doubt enable the recruitment of diploma holders. However, the very structure of the rules relied upon by diploma holders in this case states that 100% of the cadre can be filled from amongst diploma holders; equally, 100% can be filled from amongst degree holders. Thus, at a given time, the state has the discretion to fill up the available vacancies from either stream to the exclusion of the other, or resort to recruitment from both streams. In this case, the reason which persuaded the state to confine the recruitment to degree holders, was that several new and important projects were to be supervised; in its wisdom, the posts (sought to be filled) could be better manned by degree holders. Such a policy decision, in the opinion of the court cannot be held unreasonable. Moreover, at the stage of recruitment, when no candidate has as yet entered the service, at best those possessing educational qualifications that conform to the rules, can expect that the state might resort to recruitment and provide an opportunity to them; however, that the state does not do so, on account of reasons, would not clothe them with any enforceable right to compel the state to do so. For these reasons, the court is of the opinion that there is no infirmity with the reasoning of the single judge that resorting to recruitment from amongst degree holders exclusively, did not violate Article 14 of the Constitution.
16. The second issue is with respect to the prescription of a bench mark percentage of 60% for degree holders. Here the court notices that the advertisement clearly stated that degree holders would be eligible, and at the same time stipulated that in the event the number of candidates were large and far exceeded the (Downloaded on 01/09/2019 at 11:48:39 PM) (13 of 16) [SAW-87/2015] number of vacancies, the recruitment would be from amongst those possessing 60% or more in their engineering degrees. Significantly, the advertisement did not provide for a separate process; candidates were judged suitable on the basis of their marks and performance in the interview.
17. The single judge has relied on several judgements, Union of India & Anr. vs. T. Sundararaman & Ors. (1997) 4 SCC 664; Tridip Kumar Dingal & Ors. vs. State of West Bengal & Ors (2009) 1 SCC 768; Andhra Pradesh Publish Service Commission vs. Baloji Badhavath & Ors (2009) 5 SCC 1; B. Ramakichenin vs. Union of India & Ors. (2008) 1 SCC 362. In all these the Supreme Court had upheld the application of filters or screening of candidates by reference to qualifications or longer period of experience for shortlisting or reducing the number of candidates. In B. Ramakichenin (supra) it was held that:-
"16. Even if there is no rule providing for short-listing nor any mention of it in the advertisement calling for applications for the post, the Selection Body can resort to a short-listing procedure if there are a large number of eligible candidates who apply and it is not possible for the authority to interview all of them. For example, if for one or two posts there are more than 1000 applications received from eligible candidates, it may not be possible to interview all of them. In this situation, the procedure of short-listing can be resorted to by the Selection Body, even though there is no mention of short-listing in the rules or in the advertisement."
18. This Court is of the opinion that given the nature and method of recruitment, in these cases, the fact that the appointing or competent authority decided to confine eligibility to those scoring 60% in their engineering courses while obtaining degrees cannot be termed arbitrary. The single judge, we find, had noted that the material produced by the State disclosed that the list of eligible Degree holders with minimum 60% marks far exceeded the number of posts advertised. 2493 candidates had applied for 167 posts; 1134 candidates were called for interview (Downloaded on 01/09/2019 at 11:48:39 PM) (14 of 16) [SAW-87/2015] and ultimately 782 candidates qualified. Such a prescription therefore, is akin to preferring those with a certain kind of, or certain length of experience. For these reasons, the appellants' arguments on this aspect are unmerited.
19. As regards the argument that the state could not have resorted to excess recruitments, this court notices that in the additional affidavit, filed by the state, on 12 February, 2014, a full disclosure about the relevant facts was made: regarding the number of candidates, who qualified, those who appeared for interview and ultimately the total number of candidates, selected and appointed. Even the list of such selected candidates who joined (the final figure being 302) was produced. The state justified the excess appointments, firstly by stating that the rules permitted appointments to the extent of 50% posts in excess of the advertised vacancies and secondly that these were necessitated because the JDA and the UITs sent the requisitions of their existing vacancies, later. The single judge noticed that these excess appointments were approved by the cabinet's decision, (No 155/2013). A copy of that decision too was produced, during the proceedings.
20. Now, there can be no two opinions about the position in law: when the state or a public agency advertises posts for recruitment, it cannot resort to appointments in excess of such number (of vacancies) and is bound by it. The exception to these are where the rules permit excess appointments, through the same recruitment process, and furthermore that there is some indication in the advertisement that the vacancies could increase. Both these objective factors are present: the advertisement clearly stated that the number of posts (for recruitment) could be increased by the state. Likewise, the rules permitted appointments to the extent of 50% in excess of what was advertised. Therefore, appointment of that number would mean that as against 167 vacancies, 250 candidates could have been (Downloaded on 01/09/2019 at 11:48:39 PM) (15 of 16) [SAW-87/2015] validly appointed. However, the number exceeded by 52: the state appointed 302 candidates.
21. It is well settled that in such situations, the appointments made in excess of those advertised and permitted under the relevant rules are untenable: in Rakhi Ray v High Court of Delhi in (2010) 2 SCC 637 the Supreme Court, stated this:
"7. 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 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."
Similar views were expressed in Mukul Saikia v. State of Assam (2009) 1 SCC 386; State of Punjab v. Raghbir Chand Sharma (2002) 1 SCC 113 and Raj Rishi Mehra and others Vs. State of Punjab 2013 (12) SCC 243.
22. This Court, however notices that the select list was operated long back (2011); appointments were made then; the vacancies which are said to be excess were apparently not included in the original advertisement, because all the agencies failed to calculate their existing vacancies and the advertisement stated that the number of vacancies could increase. Crucially, the reasons for the appointment of these excess candidates was disclosed to the court in early February. The petitioner/appellants, (Downloaded on 01/09/2019 at 11:48:39 PM) (16 of 16) [SAW-87/2015] who were not candidates (as they were either diploma holders or degree holders who did not possess 60% in degree qualifications or 55% in AMIE qualification) took no steps to challenge the decision of the state to resort to excess recruitments, and implead the appointed candidates (either all of them or some of them, in a representative capacity). In these circumstances, this court is of the opinion that at this stage, it would not be in the larger interests of justice to interfere with the recruitment process and upset the appointments of such candidates.
23. For the above reasons, these appeals have to fail; all pending applications too are disposed of. The appeals are dismissed, without order on costs.
(DR. PUSHPENDRA SINGH BHATI),J (S. RAVINDRA BHAT),CJ Kamlesh Kumar /(Reserved) (Downloaded on 01/09/2019 at 11:48:39 PM) Powered by TCPDF (www.tcpdf.org)