Indian Kanoon - Search engine for Indian Law

7. The learned Single Judge, after examining the rival contentions, came to the conclusion that on a correct interpretation of rule 6 of the Rules, the cadre strength can only be changed by orders passed under sub-rule (2) of Rule 6. According to the learned Single Judge the cadre strength is as specified in Schedule-I to the Rules, and it can only be changed by an order under Rule 6 (2). The plea of Veena Verma that there were ten vacancies on a proper calculation on the correct interpretation of the Rules did not find favour with the learned Single Judge. The learned Single Judge found that the selection was for a definite number of posts viz. 7 as advertised, though the advertisement mentioned that the vacancies could be increased. The learned Single Judge observed that no increase in the vacancies was ordered or effected by the High Court and, therefore, when there were only 28 vacancies in the RHJS, 7 was the maximum posts that could be filled by direct recruitment. Hence, the writ petition of Veena Verma was rejected as she was 8th in the merit list.

The Division Bench concluded that in such a situation, not to count such posts as are required to be manned by officers of the level of RHJS, for the purpose of direct recruitment on the specious excuse that they were temporary posts outside the cadre for temporary periods would not be justified. The High Court concluded that whenever a court is created, whatever be the nature or tenure of the post stated in the order creating it, irrespective of whether Rule 6 (2) is mentioned therein or not, posts will have to be deemed to be created under Rule 6 (2) of the Rules enhancing the cadre strength. It therefore allowed the appeal holding that when the advertisement gave the number of posts as seven, but also stated that the 'number of vacancies are likely to be increased', no finality could be attached to the number mentioned in the advertisement and the writ petitioner should be given appointment, if the number of vacancies were actually more than seven.

9. The said order is under challenge in these appeals. The State of Rajasthan and the promotee Judicial Officer contend that in the absence of an order under Rule 6(2) varying the strength of service, notifications or orders creating courts cannot be treated as increasing the strength of the service. On the other hand, the High Court of Rajasthan in its appeal supports the finding of the Division Bench that any order creating a court ought to be deemed as creating a post under Rule 6(2). The High Court's challenge is limited to be direction to increase the advertised vacancies from seven. On the contentions urged, the points arising for decision are : (1) what would be cadre strength on correct interpretation of the Rules? (2) whether the High Court correctly calculated the vacancies for direct recruitment at the relevant time?; (3) whether the writ-petitioner (Ms. Veena Verma) could compel the High Court to increase the vacancies to the maximum permissible limit under the restrictions provided by the rule and to appoint or consider appointment of the appellant-petitioner to a post in the RHJS?

"Having considered the report of the promotion committee, resolve that seven vacancies are determined for direct recruitment to the RHJS cadre keeping reservation for Schedule Castes/Scheduled Tribes as per rules".

26. It is evident that the selection was only for 7 posts. In the Full Court Resolution it was nowhere mentioned that the posts were likely to increase. Subsequent ad hoc promotions were for subsequent vacancies and for that there was a fresh advertisement. In our opinion, the writ petitioner could not have any claim to be appointed against future vacancies in view of the decision in Shankarsan Dash vs. Union of India AIR 1991 SC 1612, wherein it was observed: