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(iv) There is no right to employment under the Constitution, one has a right to be considered for appointment in the selection process, the petitioners have exhausted their such right in the 1st SLST, 2016 but could not succeed. Therefore, the petitioners cannot assert any legal or statutory right in regard to creation of supernumerary posts.

(v) Creation of supernumerary posts is intended to promote the objective of the Article 21A of the Constitution and corresponding provisions of the Right to Education Act, 2009. Such power has been conferred undoubtedly in public interest and not for individual or private gain, whims and caprice of any individual. A discretion exercised in creating the supernumerary posts to promote object and purpose of Article 21A of the Constitution may be achieved without taking recourse to a fresh selection process.

(iii) There is no provision in the said Act of 1997 prohibiting creation of supernumerary posts, rather Section 19 thereof enables the State Government to direct the Commission to discharge its function in conformity with the said Act of 1997. The creation of supernumerary posts is not in dissonance with any provision of the said Act of 1997. The State Government, therefore, was empowered to issue the impugned notification for creation of supernumerary posts.

(iv) The State Government is empowered within the statutory framework to fill the void with the issuance of executive orders which are completely valid in the eyes of law, reliance in this regard is placed on the decision of the Hon'ble Supreme Court in the case of KARNATI RAVI AND ANOTHER vs. COMMISSIONER, SURVEY SETTLEMENTS AND LAND RECORDS AND OTHERS reported in (2018) 2 SCC 635 and on the decision of the Hon'ble Division Bench of the Andhra Pradesh High Court in the case of COMMR., SURVEY SETTLEMENTS & LAND RECORDS vs. KARNATI RAVI reported in (2007) SCC OnLine AP.

(vi) The creation of supernumerary posts is the prerogative of the Executive and is within the executive power of the governance invoked by the Government. The State, in pursuit of exigency, retains the power to create supernumerary posts. To explain the meaning of the term 'supernumerary', reliance is placed in the case of CHANDAN BANERJEE (supra) and to explain the purport thereof in service law, reliance is placed on the decision of the learned Single Judge of the Guahati High Court in the case of HAREN BORGOHAIN AND ORS. vs. STATE OF ASSAMAND ORS. reported in 2016 SCC OnLine Gau 649 to contend that the said concept of supernumerary posts denotes creation of temporary posts outside the cadre personal to the incumbent and would mean that the said posts exist co-terminus with the service of the incumbent i.e., till the incumbent holds office.

There is no dispute with regard to the nature of the supernumerary posts. A supernumerary post is a temporary, additional position created for a limited time to accommodate an employee when a regular post is not available. The Cabinet has approved the proposals as contained in the Cabinet memo dated May 05, 2022 to absorb the waitlisted candidates of 1st SLST, 2016 in the vacancies created in the name of supernumerary posts, therefore, conceptually the supernumerary post is a post to be created to absorb an existing employee when such employee could not be accommodated in a regular post. There is no dispute with regard to the proposition of law laid down in the case of HAREN BORGOHAIN (supra) cited by Mr. Kalyan Bandopadhyay that supernumerary post denotes creation of temporary posts outside the cadre personal to the incumbent, however the said decision is of no help to the respondents. The decision cited by the learned Advocate General in the case of PUSHPA RANI (supra) to contend that supernumerary post created at the same time in different grades can also constituted part of the cadre is completely irrelevant to the present issue.