JUDGMENT
BARIN GHOSH, C.J (Oral)
By a requisition dated 17th November 2008, the State Government held out to the Public Service Commission that, there are 38 vacancies in the post of Assistant Prosecuting Officers. On 19 September 2009, the Public Service Commission issued an advertisement inviting applications for supplying the said 38 vacancies. It was stated that, amongst those 38 vacancies, no vacancy is reserved for Scheduled Tribe community. The advertisement clearly mentioned that the number of vacancies may be increased or decreased by the State Government. In the advertisement, it was mentioned that the respondee must have attained the age of 21 years and, must not have attained the age of more than 35 years, as on the first day of the year of recruitment, in which vacancies are advertised by the Commission, as such, candidates must have attained the age of 21 years and, must not have crossed the age of 35 years on 1st July 2009, i.e they must not have been born later than 2nd July 1974 and, earlier than 1 July 1988. It was indicated that the year of recruitment means a period of 12 months commencing from the first day of July of a calendar year. Petitioner and the interveners responded to the said advertisement along with many others. The respondees to the said advertisement, who fulfilled the eligibility, were called to appear at a preliminary examination conducted by the Commission. The said examination was held on 31.10.2010 On 26 November 2010, the Commission wrote a letter to the State Government requesting it to furnish particulars of horizontal reservation. In that, it was added that, in the event the number of vacancies are increased, while furnishing particulars of horizontal reservation, to indicate such reservation taking into account the total number of vacancies to be supplied. This letter was followed by yet another letter dated 4 January 2011, making almost similar requests. On 6 January 2011, the State indicated that the total vacancies available are 74 (38+36) and, furnished particulars of horizontal reservation in respect of all those 74 vacancies. It was indicated that, out of those 74 vacancies, there are 03 vertical vacancies reserved for Scheduled Tribe community. After receiving the said letter dated 6 January 2011, the Commission declared the results of the preliminary examination and, then, informed those who succeeded in the said examination to appear for the main examination. Petitioner did not succeed in the preliminary examination. After the result of the main examination was declared, it came to the knowledge of the petitioner, that the Commission is purporting to make recommendation for 74 vacancies and not 38 vacancies, as were advertised. The interveners contended that, if Commission recommends for 74 vacancies, the interveners may also be recommended having regard to their position in the select list. Whereas, it is the contention of the petitioner that, 38 vacancies having been advertised, the Commission could not make recommendation in excess of 38 vacancies's it is the contention of the interveners that the advertisement itself indicated that, the number of vacancies may be increased or decreased by the State Government and, it is not in dispute that the State Government has increased the vacancies by adding 36 vacancies to the advertised vacancies of 38 and, accordingly, there is no impediment on the part of the Commission to make recommendation for additional 36 vacancies.
2. The recruitment in the instant case is governed by Statutory Rules framed under proviso to Article 309 of the Constitution of India, called the Uttar Pradesh Prosecuting Officers Service Rules, 1991. According to this Rule, year of recruitment means a period of 12 months commencing from the first day of July of a calendar year. Part V of the said Rules contains procedure for recruitment. Rule 14 contained in Part V of the said Rules provides that, the appointing authority shall determine the number of vacancies to be filled during the course of the year (year of recruitment) as also the number of vacancies to be reserved for candidates belonging to Scheduled Castes, Scheduled Tribes and other categories, and to intimate such determined vacancies to the Commission. Rule 15 of the said Rules, also contained in Part V thereof, directs, amongst others, the Commission, to put up an advertisement inviting applications for appearing in competitive examination. The said Rule has authorized the Commission to make recommendation for appointment on the basis of merit as ascertained in course of written examination followed by interview, and at the same time has directed that the number of names so to be recommended, shall not be larger by more than 25 per cent than the number of vacancies. The Rules, therefore, make it clear that, for every year of recruitment, vacancies are to be determined and, such determined vacancies are to be informed to the Commission and, the Commission thereupon is obliged to put up an advertisement inviting applications to appear in the competitive examination followed by interview to fill up such vacancies and, after the examination followed by interview is over, the Commission will recommend on the basis of merit, candidates not larger than 25 per cent of the number of vacancies.
3. Those being the Rules governing the field, the State Government, the Commission and the candidates seeking to be appointed, were all bound by the mandate contained therein. As aforesaid, the State Government gave the requisition for 38 vacancies on 17 November, 2008. According to the Rules, vacancies accrued during a recruitment year commencing from 1 July and ending on 30 June of the next year, are required to be determined and the same are required to be informed to the Commission. Rules, however, do not say, whether such information is to be given during the recruitment year or after the closure of the recruitment year. Therefore, at the best, one can proceed on the basis that for the recruitment year commencing from 1 July 2008 and ending on 30 June 2009, the requisition for 38 vacancies were given on 17 November, 2008. There cannot be any dispute that, if during the said recruitment year i.e during the year 1 July, 2008 to 30 June, 2009, any further vacancy had arisen, such vacancy could also be supplied by the advertisement, which was published on 14 October 2009, inasmuch as, the said advertisement itself made it clear that, the number of vacancies may be increased or decreased by the State. The Law on this point is settled that selection process by way of requisition followed by advertisement can be for clear vacancies and also for anticipated vacancies, but not for future vacancies. In the event, for the said recruitment year 1 July, 2008 to 30 June, 2009, more than 38 vacancies had accrued, despite giving the requisition on 17 November 2008, such additional vacancies could be supplied on the basis of the said advertisement. It, however, appears that when vacancy was increased by 36 on 6 January, 2011 it was not indicated, whether the said vacancy accrued for any reason during the recruitment year 1 July, 2008 to 30 June, 2009. In the counter affidavit filed to the writ petition, the State has accepted that additional 36 vacancies came to light only after restructuring of the Department, which was completed on 21 August 2009. In the circumstances, those 36 vacancies became available vacancies for the recruitment year 1 July, 2009 to 30 June 2010. The question is, could the advertisement published for supplying the vacancies which accrued and which were ascertained for the recruitment year 1 July, 2008 to 30 June, 2009, could be used for supplying the vacancies, which accrued and were ascertained during the recruitment year 1 July, 2009 to 30 June 2010. The learned counsel for the interveners relied on a judgment of the Hon'ble Supreme Court rendered in the case of Prem Singh v. Haryana State Electricity Board, reported in (1996) 4 Supreme Court Cases 319, where it was clearly held that, an advertisement cannot be used for supplying future vacancies. In the instant case, when the Rules say that the vacancies are required to be determined on yearly basis, vacancies accrued and determined in the subsequent year, must be deemed to be future vacancies. Conclusion would be that the future vacancies which accrued for the recruitment year 1 July, 2009 to 30 June, 2010, could not be supplied through the advertisement dated 19 September 2009, published for supplying vacancies for the recruitment year 1 July, 2008 to 30 June, 2009. The learned counsel for the interveners also cited a judgment of the Hon'ble Supreme Court rendered in the case of Suvidya Yadav v. State of Haryana, reported in (2002) 10 Supreme Court Cases 269, where on facts, as would be evident from paragraphs 3 and 4 of the report that, on 16 December 1991, an advertisement was issued by the Commission and, before the Commission finalized the selection, on 1 June 1993, the State indicated that the number of vacancies available for the year 1991, was more than 18 vacancies, as was advertised. In that case, therefore, the Hon'ble Supreme Court held that there was nothing wrong in making recommendation and giving appointment to more than the advertised vacancies. The learned counsel for the interveners also relied upon an unreported judgment of the Hon'ble Supreme Court rendered in the case of Arup Das v. State of Assam. In that case, only 160 vacancies were advertised. The list of 160 candidates was sent after completion of the selection process. Subsequent thereto, the second, third and the fourth lists were sent. The Government refused to approve the second, third and the fourth lists. In a writ petition, it was contended that, since vacancies are available, there was no bar in filling up them from the second, third and the fourth lists. It was contended that the Hon'ble Supreme Court in Prem Singh (supra) has though observed that, if the requisition and the advertisement are for a certain number of posts only, the State cannot make more appointments than the number of posts, but at the same time, it was pronounced that, the State Government can deviate from the advertisement and make appointments in the posts falling vacant in exceptional cases or in emergent situations, and by taking a policy decision. It was contended that in such circumstances, a mandamus can be issued upon the State to take a policy decision to supply such large vacancies. The Hon'ble Supreme Court refused to accept such contention. The fact remains that, the State Government by the subsequent requisition dated 6 January 2011, did not indicate existence of an exceptional situation, nor did it indicate any policy decision to fill up 36 vacancies, which accrued in the subsequent recruitment year, to be filled up on the basis of selection pursuant to the said advertisement. In fact, a closer look at the said requisition dated 6 January 2011, will make it amply clear that the State Government indicated that the Commission must come up with a new advertisement, and not a corrigendum to the earlier advertisement, inasmuch as, in the said requisition dated 6 January 2011, the State Government had clearly indicated that there are 03 vacancies exclusively reserved for the Scheduled Tribe candidates, when the advertisement indicated that no vacancy is reserved for Scheduled Tribe candidates, and by that time not only time to respond to the said advertisement had expired, but selection pursuant thereto had progressed substantially.
4. The learned counsel for the interveners submitted that, the petitioner having taken a chance pursuant to the advertisement, cannot contend that the selection process initiated thereby is bad. As aforesaid, it is not the contention of the petitioner that, either the advertisement or selection pursuant thereto, was or is bad. It is the contention of the petitioner that, the Commission cannot make any recommendation more than it is entitled to under the Rules, in respect of the advertised 38 vacancies. It is the further contention of the petitioner that, even if the Commission makes any recommendation for more than 38 vacancies, as is permissible under the Rules, on the basis of such recommendation, the State cannot fill up more than 38 advertised vacancies, inasmuch as, the petitioner has a right to participate in the selection process for recruitment of additional 36 vacancies, which accrued and were determined in the next recruitment year, and which right has been specifically given to him by making the Statutory Rules, referred to above. When it is not provided in the Rules that, if a candidate has taken a chance once, he is debarred from taking a chance in the subsequent selection process, it goes without saying that, if a person is otherwise eligible he has every right of being considered for being selected for supplying vacancies which will accrue and be determine in every recruitment year. In the event, without authority of law, the same is sought to be interfered with, a court has ample jurisdiction to give appropriate protection in regard thereto. We, accordingly, dispose of the writ petition by allowing the same and direct the State Government to consider the recommendation made or to be made by the Commission in respect of 38 vacancies, as were advertised, plus 25 per cent thereof, but upon consideration of the said recommendation, the State may give appointment only to 38 vacancies out of those recommendees, and not beyond. We also direct the Commission to start the process of selection for 36 vacancies as has been notified to it by the requisition dated 6 January 2011. While proceeding to take steps pursuant to the said requisition dated 6 Janaury 2011, the Commission shall proceed on the basis that the said 36 vacancies accrued and were determined during the recruitment year 1 July, 2009 and 30 June, 2010. In the event, more than 36 vacancies accrued in that year, the State will intimate the Commission specifically stating so, if a future requisition is given by the State. State is also directed to ensure that yearly vacancies as will accrue are determined and, steps are taken to supply the same in accordance with the mandate contained in the Rules. With the directions as above, the writ petition is disposed of.