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Filling up of more vacancies than the number advertised - a case comment
by P.P. Rao

Cite as : (1999) 5 SCC (Jour) 1

The judgment of the Supreme Court pronounced on 13-4-1999 by a Bench comprising G.T. Nanavati and S. Rajendra Babu, JJ., in the case of Virender S. Hooda v. State of Haryana[1] breaks new ground in the law of employment and advances public interest. It would facilitate filling up of vacancies by direct recruitment in good time and reduce the scope for ad hoc appointments pending regular recruitment through the Public Service Commission in accordance with the Recruitment Rules. In Hoshiar Singh v. State of Haryana[2] the Supreme Court declared that the Public Service Commission cannot recommend more names than the number of vacancies advertised or mentioned in the requisition. Any appointments in excess of the said number would be arbitrary as it would deprive candidates who were not eligible for appointment to the posts on the last date for submission of applications mentioned in the advertisement and who became eligible for appointment thereafter, of the opportunity of being considered for appointment on the additional posts. If the said additional posts are advertised subsequently those who became eligible for appointment in the meanwhile would be entitled to apply for the same. This decision has been followed by the Supreme Court, High Courts and Administrative Tribunals by mechanically striking down a large number of excess appointments made by various government and public sector undertakings of candidates selected by the Public Service Commissions or other competent authorities in accordance with the rules, mostly at the instance of unselected candidates. The appointing authority had no option but to issue a fresh advertisement for the additional posts which became available by the time the selection process was completed and make ad hoc arrangements till the additional posts were duly filled after going through the elaborate procedure for selection of candidates for direct recruitment, which takes in most cases at least a year or two. In Prem Singh v. Haryana State Electricity Board[3] the Supreme Court (Coram: S.C. Aggarwal and G.T. Nanavati, JJ.) softened to some extent the rigour of the law declared in Hoshiar Singh[2] and other cases. While reiterating that if the advertisement is for a certain number of posts only the State cannot make more appointments than the number of posts advertised, even though it might have prepared a select list for more candidates, the Court held: (SCC p. 331, para 25)

"The State could deviate from the 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 extraordinary 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."

In adopting such a flexible approach the Court was guided by overriding public interest. Thus Prem Singh case[3] eased the situated to some extent.

Considering the way government and public sector undertakings function, it is very difficult for them to assess the exact number of existing and anticipated vacancies before issuing an advertisement, inviting applications from eligible candidates. Because of this difficulty very often the advertisements would indicate a tentative number of vacancies with the rider that the number of vacancies was liable to variation. In all such cases, the courts did not attach any importance to the rider and treated the number of vacancies mentioned as final and proceeded to strike down appointments made from the select lists in excess of the number of vacancies specified in the advertisement and that too at the instance of either unsuccessful or ineligible candidates. Such decisions adversely affected the administration and caused frustration to the selected candidates. Unlike promotions, which could be made overnight by convening a meeting of the in-house Departmental Promotion Committee for considering the cases of in-service candidates, direct recruitment from the open market through advertisement takes a long time. In some cases, the process of selection involves conducting a written test followed by viva voce by the Public Service Commission concerned. The process of consultation with the Public Service Commission after sending a requisition for recruitment takes years. In the meanwhile the Government will have to man the posts by making ad hoc appointments from readily available candidates or granting ad hoc promotions to employees in the feeder cadre in excess of their quota, as a stopgap arrangement, subject to replacement by direct recruits as and when the recruitment takes place in accordance with the rules. This was not a satisfactory state of affairs at all. Ad hoc appointments are not at all desirable. Often they are a source of corruption and favouritism. If they last long, the issue of regularization comes up leading to endless litigation in courts. Such fortuitous appointments erode efficiency of administration.

Public interest requires and indeed demands that as and when vacancies arise candidates duly selected in accordance with law should be available to man them in order to avoid the mischief of posts remaining vacant for long periods merely because of the tortuous and long process of selection. Therefore, it is desirable to announce recruitment in anticipation of vacancies, rather than initiating the process after vacancies have arisen. Public interest requires that a reasonable anticipation of vacancies should be made well in advance and the process of selection initiated early enough so as to provide an incumbent the moment a vacancy in fact arises. There need not be any gap between the occurrence of a vacancy and the appointment.

The latest judgment of the Supreme Court delivered by S. Rajendra Babu, J. in Hooda case[1] has given effect to the Haryana Government instructions of 1957 and 1972 requiring not only the vacancies advertised but also the vacancies available within a period of six months after the announcement of the previous selection to be filled up from the waiting list maintained by the Commission. The Court held that such instructions could be enforced at the instance of the selected candidates. The Court found that 12 posts for direct recruitment were vacant when the advertisement for recruitment was issued in 1989 and subsequently 9 more vacancies became available within a period of six months after the announcement of the previous selection in 1992. Instead of filling up the 9 additional vacancies from the select list in accordance with the standing instructions of the Government, the Commission issued a fresh advertisement for these vacancies. The candidates already selected by the Commission who figured in the waiting list moved the High Court of Punjab and Haryana under Article 226. The High Court dismissed the writ petition holding, inter alia, that administrative instructions do not make it obligatory for the authority to appoint candidates in excess of the advertised posts. Reversing the judgment of the High Court, the Supreme Court declared that the circulars issued by the Government in 1957 and in 1972 requiring the vacancies which arise within six months from the receipt of the recommendations of the Public Service Commission to be filled up out of the waiting list maintained by the Commission are binding and enforceable. The Supreme Court directed the Government of Haryana to consider the case of the appellants to posts in Haryana Public Service (Executive Branch) which became available within a period of six months, after the selection was completed in 1992, and to fit the appellants in appropriate posts, according appropriate scale of pay by giving them the benefit of increments, if any, but without any monetary benefit for the period for which they had been kept out of employment.

In view of this decision, it will not be possible for all government and public sector undertakings to issue similar circulars or make appropriate rules requiring the Public Service Commission or other recruiting agency to recommend adequate number of names for filling up not only the number of vacancies existing and anticipated which are advertised, but also for the additional vacancies which occur within a period of six months of the selection. By acting in accordance with the law now declared in Virendra S. Hooda case[1] the government and public sector undertakings can ensure smooth functioning of public services and avoid unnecessary litigation over appointments to a large extent.

† Senior Advocate, Supreme Court of India Return to Text

  1. (1999) 3 SCC 696 Return to Text
  2. 1993 Supp 4 SCC 377 Return to Text
  3. (1996) 4 SCC 319 Return to Text
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