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6. It was next submitted that the respondents in their affidavit filed in W.P.(C) No. 2081/2017 have admitted that in the advertisement dated 08.11.2016, 08 vacancies were notified but since the calculation was not correct, the same was increased to 61 vacancies vide order dated 02.03.2017. It was also submitted that even though respondents had initiated a Court of Enquiry on 30.09.2019 to investigate why the vacancies for the year 2016-17 were increased from 08 to 61, but respondents have failed to appreciate that petitioners were appointed to the subject post on 02.03.2017 and after successfully completing their period of probation, they were regularized from March, 2019 vide respondents' order dated 15.07.2020. Learned counsel emphasized that after working for more than three years on the substantive post, petitioners' appointment could not have been cancelled without giving a Show Cause Notice or holding a departmental enquiry. To submit so, reliance was placed upon decision of Hon'ble Supreme Court in Neutral Citation No.: 2022/DHC/004569 Rajendra Vs. State of Maharashtra and Ors. 2008 (11) SCC 90.

8. Learned counsel appearing on behalf of respondents, on the other hand, submitted that any order passed without the approval or sanction of the competent authority is illegal and arbitrary and, therefore, the 53 vacancies over and above notified 08 vacancies, deserve to be set aside having not followed due procedure for sanction. Learned counsel next submitted that for filling up the notified 08 vacancies pertaining to the year 2016-17, 165 Assistant Sub-Inspectors were eligible, out of which 130 had appeared in the selection process and a strict examination process was followed. However, 02 candidates who could not make through the selection process, submitted representations for re- calculation of the vacancies and the then IG (Pers), without taking approval of DG (SSB) in contravention of the vacancies notified, increased the vacancies from 08 to 61. Accordingly, a court of inquiry Neutral Citation No.: 2022/DHC/004569 was conducted, which concluded in affirmation of the said irregularity and it was held that the 08 ASI(Min) who got promoted through LDCE during the year 2016-17 against the 08 vacancies notified in the advertisement dated 08.11.2016, be treated as appointed. But the promotion of 53 ASI (Min) selected after revision of the vacancies, be cancelled for having not followed due procedure prescribed. In such facts and circumstances, the order dated 17.07.2020 was passed by the respondents whereby the selection and appointment orders to the post of SI(Min) through LDCE 2016-17 was cancelled. It was also submitted by learned counsel that once the notification of selection of 53 candidates over and above the notified 08 vacancies is cancelled, there was no question of issuing Show Cause Notice to the petitioners.

11. In rebuttal, learned counsel for the petitioners submitted that the order dated 22.10.2018 passed in W.P.(C) No.2559/2017 has not been challenged by the respondents and it was averred in the said counter affidavit has averred that since calculation of 08 vacancies was incorrect, it was increased to 61 vacancies. The petitioners asseverated that ex post facto vacancies can always be sanctioned and if the eligibility of the petitioners are to be reckoned w.e.f. 01.01.2019, it will result in putting the petitioners junior to their batch-mates. The petitioners have strenuously urged that once they have been appointed to the substantive post and working on it, their appointment should not have been cancelled.

26. The petitioners before us have also placed reliance upon counter affidavit filed by the respondents in W.P.(C) No.2559/2017 wherein the respondents have averred that since calculation of 08 vacancies was incorrect, it was increased to 61 vacancies. However, in the Additional Counter Affidavit filed by respondents in the present case, the respondents have averred that the counter affidavit filed in the said case was with the approval of IG (Pers), whereas counter affidavit was required to be approved by SDG/ADG and hence, any averment made in the said counter affidavit, cannot be taken as lawful.