We have examined the possibility of granting
relief to the Appellants by taking into account the facts
and circumstances of this case. The Appellants
participated in the selection which was initially for 38
posts which later increased to 74 posts. They could
not be appointed due to the judgment of the High
Court which directed the selection to be only for 38
posts. In view of there being no fault on the part of
the Appellants, we examined whether we could
exercise our judicial discretion to direct their
appointments. We realise that any such direction
given by us for their appointments would be contrary
to the Rules. Judicial discretion can be exercised by a
Court only when there are two or more possible lawful
solutions. In any event, Courts cannot give any
direction contrary to the Statute or Rules made
thereunder in exercise of judicial discretion. It will be
useful to reproduce from Judicial Discretion (1989) by
Aharon Barak which is as follows:
“Discretion assumes the freedom to choose among
several lawful alternatives. Therefore, discretion
does not exist when there is but one lawful option.
In this situation, the judge is required to select that
option and has no freedom of choice. No discretion
is involved in the choice between a lawful act and
an unlawful act. The judge must choose the lawful
act, and he is precluded from choosing the unlawful
act. Discretion, on the other hand, assumes the
lack of an obligation to choose one particular
possibility among several.”
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 8334 of 2013
Anurag Kumar Singh & Ors.
Versus
State of Uttarakhand & Ors.
Dated:October 5, 2016
These Appeals are filed against the judgment of the
High Court of Uttarakhand at Nainital by which a direction
was issued to restrict the selection of Assistant Prosecuting
Officers only to the number of posts that were advertised.
2. An advertisement was issued by the Uttarakhand
Public Service Commission (hereinafter referred to as
‘the Second Respondent’) on 19.09.2009 for
appointment to the posts of Assistant Prosecuting
Officers. The number of posts notified were 38. It was
mentioned in the advertisement that the number of
posts may be increased or decreased by the State
Government. A preliminary examination was
contemplated in case there were a large number of
applications. It was mentioned in the advertisement
that the ‘year of recruitment’ was a period of 12
months commencing from the 1st day of July of the
calendar year.
3. As a large number of candidates applied, a preliminary
examination was conducted on 31.10.2010, the result
of which was declared on 04.02.2011. The Third
Respondent who was an applicant filed an application
under the Right to Information Act, 2005 seeking
information about the number of posts for which the
preliminary examination was conducted. The Second
2Page 3
Respondent responded stating that the number of
vacancies for which the selection was being held was
74. The Third Respondent filed a Writ Petition in the
High Court of Uttarakhand at Nainital for a direction
that only 38 posts of Assistant Prosecuting Officers
which were advertised on 19.09.2009 should be filled
up.
4. A counter was filed by the First Respondent stating
that 37 additional posts of Assistant Prosecuting
Officers were created by an order dated 25.08.2009. It
was also stated in the counter that a requisition for
additional 36 posts of Assistant Prosecuting Officers
was sent to the Second Respondent. It was further
stated that there was acute shortage of Assistant
Prosecuting Officers and hence there was need for
filling up of 74 vacant posts of Assistant Prosecuting
Officers without delay.
5. The High Court allowed the Writ Petition. The High
Court relied on Uttar Pradesh Prosecuting Officers
Service Rules, 1991 (hereinafter referred to as ‘the
3Page 4
Rules’) to hold that the selection pursuant to an
advertisement can be only for clear vacancies and
anticipated vacancies but not for future vacancies.
Referring to the definition of ‘year of recruitment’ in
the Rules, the High Court held that vacancies that
arose between 1st of July, 2008 and 30th of June, 2009
alone can be filled up. The High Court directed that
selection should be confined to only 38 posts of
Assistant Prosecuting Officers. A further direction was
given by the High Court to the Second Respondent to
commence the process of selection for the additional
36 vacancies which were requisitioned by the letter
dated 06.01.2011.
6. The Appellants would have been selected and
appointed as Assistant Prosecuting Officers if the
selection was for 74 posts. They are aggrieved by the
judgment of the High Court. They have sought
permission to file the above Appeals which was
granted on 16.08.2012. We heard Mr. Harin P.
Raval and Ms. Meenakshi Arora, learned Senior
4Page 5
Counsels appearing for the Appellants and Mr.
Saurabh Trivedi, Counsel appearing for the First
Respondent. Mr. Harin Raval submitted that there
was only one Assistant Prosecuting Officer working in
the State of Uttarakhand on the date of advertisement
dated 19.09.2009. Mr. Raval took us through the
material on record to show that more than 38 posts
were available on the date of advertisement. He
referred to the condition in the advertisement which
enabled the State Government to vary the number of
vacancies. He also referred to the pleadings to
contend that a requisition was made to the Second
Respondent for filling up the additional 36 vacancies
as well. He submitted that the High Court went wrong
in allowing the Writ Petition without taking into
account the shortage of Assistant Prosecuting Officers
in the State of Uttarakhand. Mr. Saurabh Trivedi,
counsel appearing for the State supported the
5Page 6
Appellants and sought permission to fill up the
additional 36 vacancies.
7. Thirty seven candidates were declared successful for
being appointed as Assistant Prosecuting Officers by a
Notification dated 26.06.2012. It is stated in the
written submission filed by the First Respondent that
31 out of 37 candidates joined and were sent for
training. Two candidates out of 31 resigned and the
remaining 29 candidates were assigned postings as
Assistant Prosecuting Officers.
8. The recruitment to posts of Assistant Prosecuting
Officers is governed by the Uttar Pradesh Prosecuting
Officers Service Rules, 1991. Rule 3 (l) defines ‘year of
recruitment’ as a period of 12 months commencing
from the 1st day of July of calendar year. The
requisition made by the First Respondent to the
Second Respondent on 17.11.2008 was for selection of
38 Assistant Prosecuting Officers. The year of
recruitment for conducting selection would be between
1
st July, 2008 and 30th June, 2009. As stated earlier,
6Page 7
only 38 posts were notified in the advertisement. As
per the advertisement the Government could vary the
number of posts to be filled up. Such power could
have been exercised by the Government only to the
extent of posts that arose between 1st July, 2008 and
30th June, 2009. The Second Respondent filed a
counter in this Court in which it was stated that the
advertisement issued on 19.09.2009 was for 38 posts
and that it was only on 06.01.2011 that the
Government intimated 36 additional posts to be filled
up. The letter dated 25.08.2009 of the Chief Secretary,
State of Uttarakhand was relied upon by the
Appellants to contend that additional vacancies were
created and they were available to be filled up.
9. It is clear from the pleadings and the various
documents filed by the Appellants that no additional
posts were created between 1st July, 2008 and 30th
June, 2009. It is significant that the Rules refer to the
recruitment year. It is a well-accepted principle of
service law that only the number of vacancies that are
7Page 8
advertised can be filled up. If the advertisement gives
liberty to the Government to vary the number of posts,
such power cannot be exercised for filling up future
vacancies. If additional posts were created during the
recruitment year i.e. between 1st July, 2008 and 30th
June, 2009, the Government could have directed the
Second Respondent to include those posts also in the
selection list that was made pursuant to the
advertisement dated 19.09.2009.
10. This Court in Prem Singh and Ors. v. Haryana
State Electricity Board reported in (1996) 4 SCC
319 at paragraph 25 held as follows:
“From the above discussion of the case-law it
becomes clear that the selection process by way of
requisition and advertisement can be started for
clear vacancies and also for anticipated vacancies
but not for future vacancies. If the requisition and
advertisement are for a certain number of posts
only the State cannot make more appointments then
the number of posts advertised, even though it
might have prepared a select list of more
candidates. The State can deviate from the
8Page 9
advertisement and make appointments on posts
falling vacant thereafter in exceptional
circumstances only or in an emergent situation and
that too by taking a policy decision in that behalf.
Even when filling up of more posts than advertised
is challenged the Court may not, while exercising its
extra-ordinary jurisdiction, invalidate the excess
appointments and may mould the relief in such a
manner as to strike a just balance between the
interest of the State and the interest of persons
seeking public employment. What relief should be
granted in such cases would depend upon the facts
and circumstances of each case.”
It was further held by this Court that strictly speaking the
authorities were not justified in making appointments to
posts more than those advertised. This Court also found
that only actual vacancies were taken into account without
considering the anticipated vacancies that were likely to
arise due to retirement, etc. As appointments were already
made, taking into account the peculiar facts and
circumstances, this Court approved the appointments
beyond those advertised only to the extent of vacancies
9Page 10
which arose because of death and retirement, etc. The
appointments that were made to future vacancies were
declared as invalid.
11. Pursuant to the directions issued by the High
Court in the impugned judgment, 37 persons were
declared selected for appointment. In view of the
interim order passed by this Court in the above
Appeals, selection to the remaining posts was not held.
Seven years have passed after the advertisement was
issued on 19.09.2009. A large number of persons
would have become eligible for selection to the post of
Assistant Prosecuting Officers. They have a right to be
considered for appointment guaranteed under Articles
14 and 16 of the Constitution of India. There would be
an infraction of such right if the additional posts are
not filled up by a fresh selection. The attempt made
by the First and Second Respondents to fill up the
additional posts is contrary to the Rules. After a
careful consideration of the matter, we are of the
opinion that the Appellants cannot be selected and
appointed to the additional posts that were not
advertised on 19.09.2009 and were created after the
relevant recruitment year ending on 30.06.2009.
12. We have examined the possibility of granting
relief to the Appellants by taking into account the facts
and circumstances of this case. The Appellants
participated in the selection which was initially for 38
posts which later increased to 74 posts. They could
not be appointed due to the judgment of the High
Court which directed the selection to be only for 38
posts. In view of there being no fault on the part of
the Appellants, we examined whether we could
exercise our judicial discretion to direct their
appointments. We realise that any such direction
given by us for their appointments would be contrary
to the Rules. Judicial discretion can be exercised by a
Court only when there are two or more possible lawful
solutions. In any event, Courts cannot give any
direction contrary to the Statute or Rules made
thereunder in exercise of judicial discretion. It will be
useful to reproduce from Judicial Discretion (1989) by
Aharon Barak which is as follows:
“Discretion assumes the freedom to choose among
several lawful alternatives. Therefore, discretion
does not exist when there is but one lawful option.
In this situation, the judge is required to select that
option and has no freedom of choice. No discretion
is involved in the choice between a lawful act and
an unlawful act. The judge must choose the lawful
act, and he is precluded from choosing the unlawful
act. Discretion, on the other hand, assumes the
lack of an obligation to choose one particular
possibility among several.”
13. As we have held that the selection pursuant to
the advertisement dated 19.09.2009 should be
confined only to posts that were advertised, the
additional posts that were created after the expiry of
the recruitment year shall be filled up by issuance of
an advertisement afresh. In view of the shortage of
Assistant Prosecuting Officers in the State of
Uttarakhand, we direct the authorities to expedite the
process of selection.
14. For the aforementioned reasons, the judgment of
the High Court is upheld and the Civil Appeals are
dismissed.
.…............................J.
[SHIVA KIRTI SINGH]
................................J.
[L. NAGESWARA RAO]
New Delhi,
October 5, 2016
Print Page
relief to the Appellants by taking into account the facts
and circumstances of this case. The Appellants
participated in the selection which was initially for 38
posts which later increased to 74 posts. They could
not be appointed due to the judgment of the High
Court which directed the selection to be only for 38
posts. In view of there being no fault on the part of
the Appellants, we examined whether we could
exercise our judicial discretion to direct their
appointments. We realise that any such direction
given by us for their appointments would be contrary
to the Rules. Judicial discretion can be exercised by a
Court only when there are two or more possible lawful
solutions. In any event, Courts cannot give any
direction contrary to the Statute or Rules made
thereunder in exercise of judicial discretion. It will be
useful to reproduce from Judicial Discretion (1989) by
Aharon Barak which is as follows:
“Discretion assumes the freedom to choose among
several lawful alternatives. Therefore, discretion
does not exist when there is but one lawful option.
In this situation, the judge is required to select that
option and has no freedom of choice. No discretion
is involved in the choice between a lawful act and
an unlawful act. The judge must choose the lawful
act, and he is precluded from choosing the unlawful
act. Discretion, on the other hand, assumes the
lack of an obligation to choose one particular
possibility among several.”
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 8334 of 2013
Anurag Kumar Singh & Ors.
Versus
State of Uttarakhand & Ors.
Dated:October 5, 2016
These Appeals are filed against the judgment of the
High Court of Uttarakhand at Nainital by which a direction
was issued to restrict the selection of Assistant Prosecuting
Officers only to the number of posts that were advertised.
2. An advertisement was issued by the Uttarakhand
Public Service Commission (hereinafter referred to as
‘the Second Respondent’) on 19.09.2009 for
appointment to the posts of Assistant Prosecuting
Officers. The number of posts notified were 38. It was
mentioned in the advertisement that the number of
posts may be increased or decreased by the State
Government. A preliminary examination was
contemplated in case there were a large number of
applications. It was mentioned in the advertisement
that the ‘year of recruitment’ was a period of 12
months commencing from the 1st day of July of the
calendar year.
3. As a large number of candidates applied, a preliminary
examination was conducted on 31.10.2010, the result
of which was declared on 04.02.2011. The Third
Respondent who was an applicant filed an application
under the Right to Information Act, 2005 seeking
information about the number of posts for which the
preliminary examination was conducted. The Second
2Page 3
Respondent responded stating that the number of
vacancies for which the selection was being held was
74. The Third Respondent filed a Writ Petition in the
High Court of Uttarakhand at Nainital for a direction
that only 38 posts of Assistant Prosecuting Officers
which were advertised on 19.09.2009 should be filled
up.
4. A counter was filed by the First Respondent stating
that 37 additional posts of Assistant Prosecuting
Officers were created by an order dated 25.08.2009. It
was also stated in the counter that a requisition for
additional 36 posts of Assistant Prosecuting Officers
was sent to the Second Respondent. It was further
stated that there was acute shortage of Assistant
Prosecuting Officers and hence there was need for
filling up of 74 vacant posts of Assistant Prosecuting
Officers without delay.
5. The High Court allowed the Writ Petition. The High
Court relied on Uttar Pradesh Prosecuting Officers
Service Rules, 1991 (hereinafter referred to as ‘the
3Page 4
Rules’) to hold that the selection pursuant to an
advertisement can be only for clear vacancies and
anticipated vacancies but not for future vacancies.
Referring to the definition of ‘year of recruitment’ in
the Rules, the High Court held that vacancies that
arose between 1st of July, 2008 and 30th of June, 2009
alone can be filled up. The High Court directed that
selection should be confined to only 38 posts of
Assistant Prosecuting Officers. A further direction was
given by the High Court to the Second Respondent to
commence the process of selection for the additional
36 vacancies which were requisitioned by the letter
dated 06.01.2011.
6. The Appellants would have been selected and
appointed as Assistant Prosecuting Officers if the
selection was for 74 posts. They are aggrieved by the
judgment of the High Court. They have sought
permission to file the above Appeals which was
granted on 16.08.2012. We heard Mr. Harin P.
Raval and Ms. Meenakshi Arora, learned Senior
4Page 5
Counsels appearing for the Appellants and Mr.
Saurabh Trivedi, Counsel appearing for the First
Respondent. Mr. Harin Raval submitted that there
was only one Assistant Prosecuting Officer working in
the State of Uttarakhand on the date of advertisement
dated 19.09.2009. Mr. Raval took us through the
material on record to show that more than 38 posts
were available on the date of advertisement. He
referred to the condition in the advertisement which
enabled the State Government to vary the number of
vacancies. He also referred to the pleadings to
contend that a requisition was made to the Second
Respondent for filling up the additional 36 vacancies
as well. He submitted that the High Court went wrong
in allowing the Writ Petition without taking into
account the shortage of Assistant Prosecuting Officers
in the State of Uttarakhand. Mr. Saurabh Trivedi,
counsel appearing for the State supported the
5Page 6
Appellants and sought permission to fill up the
additional 36 vacancies.
7. Thirty seven candidates were declared successful for
being appointed as Assistant Prosecuting Officers by a
Notification dated 26.06.2012. It is stated in the
written submission filed by the First Respondent that
31 out of 37 candidates joined and were sent for
training. Two candidates out of 31 resigned and the
remaining 29 candidates were assigned postings as
Assistant Prosecuting Officers.
8. The recruitment to posts of Assistant Prosecuting
Officers is governed by the Uttar Pradesh Prosecuting
Officers Service Rules, 1991. Rule 3 (l) defines ‘year of
recruitment’ as a period of 12 months commencing
from the 1st day of July of calendar year. The
requisition made by the First Respondent to the
Second Respondent on 17.11.2008 was for selection of
38 Assistant Prosecuting Officers. The year of
recruitment for conducting selection would be between
1
st July, 2008 and 30th June, 2009. As stated earlier,
6Page 7
only 38 posts were notified in the advertisement. As
per the advertisement the Government could vary the
number of posts to be filled up. Such power could
have been exercised by the Government only to the
extent of posts that arose between 1st July, 2008 and
30th June, 2009. The Second Respondent filed a
counter in this Court in which it was stated that the
advertisement issued on 19.09.2009 was for 38 posts
and that it was only on 06.01.2011 that the
Government intimated 36 additional posts to be filled
up. The letter dated 25.08.2009 of the Chief Secretary,
State of Uttarakhand was relied upon by the
Appellants to contend that additional vacancies were
created and they were available to be filled up.
9. It is clear from the pleadings and the various
documents filed by the Appellants that no additional
posts were created between 1st July, 2008 and 30th
June, 2009. It is significant that the Rules refer to the
recruitment year. It is a well-accepted principle of
service law that only the number of vacancies that are
7Page 8
advertised can be filled up. If the advertisement gives
liberty to the Government to vary the number of posts,
such power cannot be exercised for filling up future
vacancies. If additional posts were created during the
recruitment year i.e. between 1st July, 2008 and 30th
June, 2009, the Government could have directed the
Second Respondent to include those posts also in the
selection list that was made pursuant to the
advertisement dated 19.09.2009.
10. This Court in Prem Singh and Ors. v. Haryana
State Electricity Board reported in (1996) 4 SCC
319 at paragraph 25 held as follows:
“From the above discussion of the case-law it
becomes clear that the selection process by way of
requisition and advertisement can be started for
clear vacancies and also for anticipated vacancies
but not for future vacancies. If the requisition and
advertisement are for a certain number of posts
only the State cannot make more appointments then
the number of posts advertised, even though it
might have prepared a select list of more
candidates. The State can deviate from the
8Page 9
advertisement and make appointments on posts
falling vacant thereafter in exceptional
circumstances only or in an emergent situation and
that too by taking a policy decision in that behalf.
Even when filling up of more posts than advertised
is challenged the Court may not, while exercising its
extra-ordinary jurisdiction, invalidate the excess
appointments and may mould the relief in such a
manner as to strike a just balance between the
interest of the State and the interest of persons
seeking public employment. What relief should be
granted in such cases would depend upon the facts
and circumstances of each case.”
It was further held by this Court that strictly speaking the
authorities were not justified in making appointments to
posts more than those advertised. This Court also found
that only actual vacancies were taken into account without
considering the anticipated vacancies that were likely to
arise due to retirement, etc. As appointments were already
made, taking into account the peculiar facts and
circumstances, this Court approved the appointments
beyond those advertised only to the extent of vacancies
9Page 10
which arose because of death and retirement, etc. The
appointments that were made to future vacancies were
declared as invalid.
11. Pursuant to the directions issued by the High
Court in the impugned judgment, 37 persons were
declared selected for appointment. In view of the
interim order passed by this Court in the above
Appeals, selection to the remaining posts was not held.
Seven years have passed after the advertisement was
issued on 19.09.2009. A large number of persons
would have become eligible for selection to the post of
Assistant Prosecuting Officers. They have a right to be
considered for appointment guaranteed under Articles
14 and 16 of the Constitution of India. There would be
an infraction of such right if the additional posts are
not filled up by a fresh selection. The attempt made
by the First and Second Respondents to fill up the
additional posts is contrary to the Rules. After a
careful consideration of the matter, we are of the
opinion that the Appellants cannot be selected and
appointed to the additional posts that were not
advertised on 19.09.2009 and were created after the
relevant recruitment year ending on 30.06.2009.
12. We have examined the possibility of granting
relief to the Appellants by taking into account the facts
and circumstances of this case. The Appellants
participated in the selection which was initially for 38
posts which later increased to 74 posts. They could
not be appointed due to the judgment of the High
Court which directed the selection to be only for 38
posts. In view of there being no fault on the part of
the Appellants, we examined whether we could
exercise our judicial discretion to direct their
appointments. We realise that any such direction
given by us for their appointments would be contrary
to the Rules. Judicial discretion can be exercised by a
Court only when there are two or more possible lawful
solutions. In any event, Courts cannot give any
direction contrary to the Statute or Rules made
thereunder in exercise of judicial discretion. It will be
useful to reproduce from Judicial Discretion (1989) by
Aharon Barak which is as follows:
“Discretion assumes the freedom to choose among
several lawful alternatives. Therefore, discretion
does not exist when there is but one lawful option.
In this situation, the judge is required to select that
option and has no freedom of choice. No discretion
is involved in the choice between a lawful act and
an unlawful act. The judge must choose the lawful
act, and he is precluded from choosing the unlawful
act. Discretion, on the other hand, assumes the
lack of an obligation to choose one particular
possibility among several.”
13. As we have held that the selection pursuant to
the advertisement dated 19.09.2009 should be
confined only to posts that were advertised, the
additional posts that were created after the expiry of
the recruitment year shall be filled up by issuance of
an advertisement afresh. In view of the shortage of
Assistant Prosecuting Officers in the State of
Uttarakhand, we direct the authorities to expedite the
process of selection.
14. For the aforementioned reasons, the judgment of
the High Court is upheld and the Civil Appeals are
dismissed.
.…............................J.
[SHIVA KIRTI SINGH]
................................J.
[L. NAGESWARA RAO]
New Delhi,
October 5, 2016
No comments:
Post a Comment