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In my considered opinion first of all 200 vacancies which were reported to Hon‟ble Single Judge while hearing the two writ petitions on a direction issued by him to the State of Bihar to acquaint the Court with regard to existing vacancies on the post of Assistant Engineer cannot be even called to be anticipated vacancies, inasmuch as in paragraph no.6 of the supplementary counter affidavit the Deputy Secretary to Road Construction Department had stated as follows:

As a matter of fact the Apex Court having held so in the case of Ishwar Singh Khatri (supra) that appointment from a panel cannot be made against future vacancies had gone into the aspect of anticipated vacancies till the date of preparation of panel which gets reflected from reading of paragraphs no. 6 and 7 of the judgment which again reads as follows:

"6. In fact we wanted to ascertain the actual number of vacancies that existed as on the preparation of panels of the selected candidates. We requested Mr. Subha Rao, counsel for Delhi Administration to find out and inform us about the actual fact. Counsel although took time to verify, finally pleaded his inability to furnish the required particulars.
"16. It is in no uncertain words that this Court has held that it would be an improper exercise of power to make appointments over and above those advertised. It is only in rare and exceptional circumstances and in emergent situation that this rule can be deviated from. It should be clearly spelled out as to under what policy such a decision has been taken. Exercise of such power has to be tested on the touchstone of reasonableness. Before any advertisement is issued, it would, therefore, be incumbent upon the authorities to take into account the existing vacancies and anticipated vacancies. It is not as a matter of course that the authority can fill up more posts than advertised."

In Service Jurisprudence the „anticipated vacancies‟ and „future vacancies‟ have two different and distinct meaning. The prospect of there being anticipated vacancies in fact has to be indicated in the advertisement itself by disclosing the number of vacancies and those likely to take place within the fixed period. If, however, in the advertisement the number of posts is totally circumscribed and fixed with no indication of any anticipated vacancies, any vacancy occurring after the date of advertisement will be a future vacancy and that cannot be filled up by taking recourse to the earlier advertisement. Doing so would be in negation to the rights guaranteed under Articles 14 and 16 of the Constitution of India.