Vinodkumar Rajabhai Rathod vs State Of Gujarat on 5 November, 2004
5. Having considered the above, it appears that there is no dispute on the point of that initially 12 posts of Clause I and 164 posts of Clause II were mentioned in the advertisement. The GPSC has communicated that the posts required to be filled up are 12 posts of Clause I and 243 posts of Clause II, total 255 posts and such aspect is reflected in the interview letter copy whereof is annexure SB. It is true that Rule 17 provides for arrangement of candidates in the order of merit on the basis of marks obtained at the written examination and interview and in that order the Commission has to recommend the qualified candidates for appointment to the extent of number of vacancies to be filled in. Therefore, the recommendation by the Commission has to be to the extent of vacancies to be filled in. If the vacancies are 255 posts the recommendation is required to be made by the Commission accordingly. It may be that at the time when the first recommendation was forwarded the Commission may not be in a position to know the number of posts remaining vacant due to nonavailability of candidates or due to disinterest of candidates to accept the offer of appointment or for any other reasons known to law. However, if the posts have remained vacant due to nonavailability of candidates for any other reasons same is required to be filled up from amongst the next available meritorious candidate and the list so prepared deserves to be operated to that extent. Reference may be made to the decision of this Court in the matter of Vinodkumar Rajabhai Rathod v. State of Gujarat reported in 2005(1) GL 321. At the same time, if the Govt. has taken any policy decision due to financial constraints or otherwise or any other valid reasons not to fill up the vacant posts it may stand on different footing, but, in any event, as and when such financial constraints and ban are lifted, only those who have participated in the regular selection process and found to be next meritorious are required to be considered to the extent of posts advertised or the posts which were to be filled up at the time when the selection process was undertaken and such would include the posts remained vacant due to non-joining by the selected candidates for any other reason whatsoever. Say, in other words, until all the posts are filled up, the candidates who have participated in the regular selection process are required to be considered for appointment as and when the State Govt. is to consider the matter for appointment. As the posts in the present case are for Clause I and II cadre, it would be only done through recommendation by GPSC and therefore it would be for the State Govt. to intimate to the GPSC regarding the number of candidates who have not accepted the appointment for any Page 40 reason whatsoever and it would be required for GPSC to forward the list of next meritorious candidates to that extent in the respective category by recommending for the appointment. If the such list is received such candidate can be considered for appointment unless the policy decision is taken for banning the recruitment due to valid reasons.