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Friday, October 7, 2016

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.” 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.

                                                         [pic]NON-REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL No. 8334 of 2013


Anurag Kumar Singh & Ors.
                                                           .... Appellant(s)
                                   Versus
State of Uttarakhand & Ors.

                                                             ….Respondent(s)

                                    With

                        CIVIL APPEAL No. 8335 of 2013

Shri Sharwan Kumar Tripathi & Ors.
                                                           .... Appellant(s)
                                   Versus
State of Uttarakhand & Ors.

                                                             ….Respondent(s)


                               J U D G M E N T


L. NAGESWARA RAO, J.

      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.
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.
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
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.
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.
The High Court allowed the Writ Petition.  The High Court  relied  on  Uttar
Pradesh Prosecuting Officers Service Rules, 1991  (hereinafter  referred  to
as ‘the 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.
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  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 Appellants and sought  permission  to  fill  up  the
additional 36 vacancies.
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.
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 1st July, 2008 and 30th June,  2009.   As  stated
earlier, 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.
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 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.
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  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  which
arose because of death and retirement,  etc.   The  appointments  that  were
made to future vacancies were declared as invalid.
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.
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.”

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.
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

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