REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.        6690         OF 2008 [Arising out of S.L.P. (C) No.21315 of 2006]

Mukul Saikia & Ors.    .....        Appellants

Versus

State of Assam & Ors.            .....       Respondents

J U D G M E N T

Lokeshwar Singh Panta, J.

1. Leave granted.

2. This  appeal  is  directed  against  the  common  judgment

and order dated 15.09.2006 passed by a Division Bench of the

High Court of Gauhati, dismissing Writ Appeal Nos. 471/2003

and  08/2005  filed  by  the  appellants  herein  against  the

common judgment and order dated 14.08.2003 of the learned

Single Judge in WP (C) No. 2026/2001, WP (C) No.2036/2001

and WP (C) No.4932/2001 whereby the learned Single Judge

has dismissed the said writ petitions.

3. Briefly stated the facts of the case are as follows:-

The  Assam  Public  Service  Commission  (hereinafter

referred  to  as  “APSC”)  had  issued  an  advertisement  dated

19.08.1997  for  filling  up  27  posts  of  Child  Development

Project Officer (hereinafter referred to as “CDPOs”), pursuant

whereupon a selection process was held.  Finally, a select list

dated 17.07.2000 containing the names of 64 candidates far

in  excess  of  the  notified  vacancies  was  prepared  and

published by the APSC.  The names of the appellants who are

13 in  number  before  this  Court  appeared  in  the  select  list

below 27 persons who were appointed on merit by the State

Government.

4. The appellants filed two separate writ petitions before the

High  Court  of  Gauhati, inter  alia,  challenging  the  Cabinet

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Memorandum  dated  16.06.2000  circulated  by  the

Commissioner  and  Secretary,  Government  of  Assam,  Social

Welfare  Department  under  Rule  17  of  the  Assam  Rules  of

Executive  Business  relating  to  the  regularization  of  18

CDPOs/  Probation  Officers  who  were  appointed  under

Regulation  3  (f)  of  the  Assam  Public  Service  Commission

(Limitation  of  Function)  Regulation,  1951  (for  short

“Regulation 1951”)  and praying for a direction to the State-

respondent  to  appoint  the  appellants  in  the  vacant/newly

created posts of CDPOs/ Probation Officers.  The appellants

also  challenged  the  policy  decision  taken  by  the  State  to

regularize the services of the private respondents herein, who

were initially appointed temporarily under Regulation 3 (f) of

Regulation  of  1951  and  could  not  succeed  in  the  selection

process  conducted  by  the  APSC.  The  appellants  contended

before the High Court that giving benefit of regularization of

service to the private respondents to the posts of CDPOs was

contrary to the recruitment rules and the action of the State

Government  would  amount  to  giving  backdoor  entry  to  the

unsuccessful candidates into the State Services.   

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5. The stand of the respondent-State before the High Court

was  that  27  advertised  vacant  posts  meant  for  direct

recruitment quota, were filled up by the State Government on

merits  out  of  the  select  list  prepared  by  the  APSC  dated

17.07.2000.   The  select  list  having  thus  exhausted,  the

appellants,  whose  names  figured  below  the  27  selected

candidates in the select list, therefore, could not claim to be

appointed in excess of the advertised vacancies of CDPOs; and

that if any future vacancies which arose after the publication

of the advertisement, were to be filled up out of the left out

candidates  of  the  select  list,  the  said  appointment  would

amount  to  depriving  other  persons  who,  in  the  meantime,

would have become eligible for selection and appointment.  It

was also submitted that as soon as the posts advertised were

filled up or the validity  of  the select  list  expired,  whichever

event was earlier in point of time, the candidates whose names

appeared  in  the  select  list  could  not  thereafter  claim

appointment as the select list got exhausted.  It  was stated

that the appellants have neither challenged the policy decision

taken by the Government on the basis of the Cabinet decision

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nor  the  Notification  issued  pursuant  thereto  by  the  State

Government regularising the service of 18 CDPOs/ Probation

Officers.  It was also stated that the decision to regularize 18

CDPOs, who were initially appointed under Regulation 3 (f) of

Regulation, 1951, was taken by the State in view of the fact

that they had already rendered more than four years of service

satisfactorily and their continuation in service was necessary

to implement  the time-bound scheme of  the Government  of

India  for  which  ICDS  Project  was  created  in  the  State  of

Assam.   It  was  categorically  stated  that  18  CDPOs  were

regularized by the State Government to the posts meant for

promotees.

6. The  stand  of  the  private  respondents-appointees  was

that  27  advertised  vacancies  were  filled  up  by  the  State

Government on the basis of merit list prepared by the APSC

on 17.07.2000 and as soon as those vacancies were filled up

against the direct quota, the select list got exhausted.  They

stated  that  the  appellants  could  not,  as  a  matter  of  right,

claim that they shall  be appointed against the unadvertised

future vacancies, merely because their names are found in the

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select  list  prepared  by  APSC.   The  respondents-appointees

submitted  that  since  they  were  not  regularized  against  the

posts  advertised  by  the  APSC  by  means  of  advertisement

dated  19.08.1997,  the  appellants  could  not claim that  they

should  be  appointed  against  those  posts  pursuant  to  their

selection  when  18  vacancies  in  the  cadre  of  CDPOs  were

meant to be filled up by way of promotion.  They submitted

that the decision to regularize their services was taken by the

State Government by giving relaxation as contemplated under

Clause  11  of  the  Assam  Social  Welfare  (Recruitment  and

Promotion) Service Order, 1994 (for short “the Service Order,

1994) and the said decision in fact has not been challenged by

the  appellants/original  writ  petitioners  either  in  the  writ

petitions or in the writ appeals filed by them before the High

Court.

7. The learned Single  Judge  of  the High Court  dismissed

the writ petitions of the appellants,  inter alia, holding that no

posts beyond 27 advertised vacancies could be filled up from

the  select  list  and  the  appellants  had  challenged  only  the

Cabinet Memorandum dated 16.06.2000 without challenging

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the  Cabinet  decision  taken  on  13.10.2000  followed  by  the

Notification dated 16.11.2000 issued by the State Government

whereby the services of the private  respondents came to be

regularized.   

8. Being aggrieved thereby, the appellants filed the above-

said  two  writ  appeals  (being  WP(C)  471/2003  and  WP  (C)

08/2005) which have been dismissed by the Division Bench

by common judgment and order dated 15.09.2006.  Now, all

the  appellants  have  preferred this  single  appeal  challenging

the impugned order of the High Court.

9. On notice  issued  by  this  Court,  Shri  Joydeep  Shukla,

Extra  Assistant  Commissioner,  Government  of  Assam,  has

filed affidavit stating,  inter alia,  that the private respondents

have  rendered  highly  satisfactory  and  dedicated  service  in

implementation of time-bound Integrated Child Development

Scheme Projects (ICDS) ever since they joined the services and

their retention in service would also be highly beneficial to the

interest  of  the  Project  as  well  as  the  public  at  large.   It  is

stated that at the relevant point of time, there were 18 vacant

posts of CDPOs in the promotional category and another 10

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additional vacancies meant for the promotees had also arisen

thereby making a total number of 28 vacancies meant to be

filled  up  by  promoting  departmental  candidates  as  per  the

requirement  of  Service  Order,  1994.   It  is  stated  that  the

private  respondents  submitted  representations  to  the

authorities praying for regularization of  their  services  which

was  duly  considered  by  the  Department  of  Social  Welfare,

Government  of  Assam  and  taking  into  consideration  the

interest  of  ICDS  Projects,  it  was  decided  that  regular

absorption of the private respondents against the promotional

posts of CDPOs was in the best interest of the Projects which

are funded by the  Central  Government  in the State  for  the

welfare  of  the  general  public.  It  is  stated  that  a  Cabinet

Memorandum dated 16.06.2000 was circulated under Rule 17

of the Assam Rules of Executive Business, after obtaining the

approval  of  the  Personnel  (B)  Department  of  the  State  of

Assam for regularizing the services of the private respondents

in  the  exceptional  circumstances  of  the  matter  against  28

available vacancies meant for promotees by invoking power of

Rule  11  of  the  Service  Order,  1994.   On  the  basis  of  the

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Cabinet Memorandum dated 16.06.2000, a Cabinet decision

was taken on 13.10.2000 granting approval of regularization

of  services  of  the  respondents.  The  respondent-State  also

submitted  that the appellants have  not challenged the one-

time policy decision taken by the Cabinet nor the Notification

dated  16.11.2000  issued  pursuant  to  the  Cabinet  decision

regularizing the services of the private respondents have been

challenged by the appellants before the learned Single Judge

or the Division Bench of the High Court and the High Court

has  rightly  dismissed  the  writ  petition  and  appeals  of  the

appellants, inter alia, on the grounds that the appellants have

no  enforceable  right  to  get  appointments  to  the  posts  of

CDPOs against promotional quota merely because their names

had figured in the select list prepared by the APSC against the

direct quota.

10. The private respondents, in their counter  affidavit  filed

before  this  Court  have  stated  that  total  number  of  notified

vacancies  of  CDPOs  were  only  27,  yet  a  select  list  dated

17.07.2000 was published by the APSC wherein as many as

64  candidates  were  recommended.  In  order  of  merit,  27

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selectees were appointed out of whom 17 were appointed in

the general quota and 10 from the reserved category as per

the rules.   The names of the appellants appeared below 27

candidates who have been appointed; therefore, the appellants

have no legal right to claim appointment against the excess

quota  of  the  advertised  vacancies.   The  Secretary  to  the

Government of Assam, Personnel (B) Department by circular

bearing No. 98/4 dated 18.12.1998 had requested the APSC

to  recommend  the  candidates  equal  to  the  number  of

vacancies  notified  in  the  advertisement.   The  contesting

respondents stated that in the year 1996-97, there were total

number of 45 vacant posts of CDPOs and allied cadre in the

Department of Social Welfare including the backlog vacancies

and as per Service Order, 1994, 60 per cent of the vacancies

are required to be filled up by way of direct recruitment and

the remaining 40 per cent by means of promotion of suitable

departmental candidates.  Accordingly, only 27 (60 per cent)

vacancies of CDPOs were available at the time of issuing the

advertisement  notice  dated  19.08.1997  for  which  selection

was made by the APSC and on the basis of merit, 27 vacancies

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were filled up by the State Government after complying with

the provisions of the rules including the reservation in favour

of SCs/STs/OBCs.  The remaining 18 vacancies being 40 per

cent  of  total  45  vacancies  were  to  be  filled  up  by  eligible

departmental  candidates.   In  addition  thereto,  10  more

vacancies  were  also  available  to  be  filled  up  by  way  of

promotion thereby making 28 total number of vacancies. The

State  Government  regularized  the  services  of  private

respondents  against  18  vacancies  in  the  cadre  of  CDPOs

which were meant to be filled up by way of promotion from

departmental candidates and as such, the appellants who had

applied  against  direct  quota  have  no  legitimate  right  to  be

selected and appointed against promotees quota.

11. The private respondents also submitted that they have

been regularized on the basis of the Cabinet decision dated

13.10.2000 and Notification dated 16.11.2000 in deference to

Rule 11 of the Service Order, 1994.  They submitted that there

was an urgent need on the part of the Department to fill up all

the  vacant  posts  for  the  purpose  of  proper  and  effective

implementation of the time-bound Projects of the State.  It is

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stated that, in view of the long services rendered by the private

respondents and having due regard to their past satisfactory

performance  and  also  the  service  record,  they  have  been

regularized against those promotional vacancies, purely in the

interest of the public.  It is also submitted that subsequently

by  Notification  No.  59  PSC/DR-41/1/2005-06  dated

20.04.2006, the APSC has also conveyed its approval to the

regularization of the respondents’ services.  They have stated

that  the  procedure  for  regularization  of  the  respondents’

services  was  a  one-time  measure  adopted  by  the  State

Government  in  the  special  circumstances  and  their

regularization has not, in any manner, caused any prejudice

to the interest of the appellants.  The respondents also stated

that the appellants have not challenged the Cabinet Decision

dated  13.10.2000  and  subsequent  Notification  dated

16.11.2000  issued  by  the  State  Government  in  the  writ

petitions  filed  by  them nor  they  have  challenged  the  same

before the Division Bench of the High Court.  In that view of

the  matter,  the  private  respondents  submitted  that  the

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appellants had no locus standi to file the writ petitions under

Article 226 of the Constitution of India.

12. We have heard learned counsel for the parties.  Mr. A.K.

Ganguly, learned senior counsel appearing for the appellants,

submitted that the private respondents were appointed in the

year 1995-96 only for four months on ad hoc basis in terms of

Regulation  3(f)  of  Regulation  1951,  or  till  regular

appointments  in  accordance  with  the  preference  and

recommendations were made by the APSC under the Service

Order, 1994, as such their continuance on  ad hoc  basis was

de  hors the  rules  and  they  are  illegally  regularized  on

16.11.2000 after they have put in barely four years of service.

He submitted that in identical cases, namely, Pranjit Kumar

Das v. State of Assam & Ors.  (1995) 1 GLR 229 and  Dr.

Anoop Kumar Das v. Dr. Sanjib Kakati & Ors. (2000) 2

GLR  479,  the  Gauhati  High  Court  has  held  that  any

appointment under Regulation 3 (f) of Regulation 1951 is  ad

hoc in nature and de hors the rules, and  therefore, could not

be  sustained.   He  submitted  that  the  Cabinet  decision  in

regard to the regularization of the private respondents was in

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disregard to the binding law as laid down in the above cited

decisions.  He submitted that the appellants who were duly

selected by the APSC could have been appointed against the

vacancies which subsequently arose in excess of 27 advertised

posts.   In support  of this submission, reliance is placed on

decisions  in  Virender  Singh  Hooda v.  State  of  Haryana

and Anr.  [1999 (3)  SCC 696],  Suvidya Yadav  & Ors.  v.

State  of  Haryana  &  Ors. [(2002)  10  SCC  299]  and

Sandeep Singh v. State of Haryana & Anr. [2002 (10) SCC

549].  Lastly, it was contended that the regularization of the

service of private respondents to the posts of CDPOs after they

remained  unsuccessful  in  the  test  held  by  the  APSC  is  in

violation of Articles 14 and 16 of the Constitution of India as

well as in derogation of the law laid down by a Constitution

Bench of this Court in Secretary, State of Karnataka and

Ors v. Uma Devi & Ors. [(2006) 4 SCC 1].

13. While  refuting  the  submissions  of  the  appellants,

Mr. P.P. Rao, learned senior counsel for the State, on the other

hand,  submitted  that  the  posts  in  which  the  private

respondents  were  regularized  were  promotional  posts  to  be

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filled up by promotion from amongst the persons who have

rendered 10 years’ continuous service in the feeder cadre and

the  appellants  cannot  have  any  claim to  be  considered  for

appointment against promotional  quota.  He submitted that

all the 27 advertised posts have been filled up on the basis of

the select list prepared by the APSC and the appellants cannot

have any right to claim appointment against the anticipated

vacancies which were never advertised and they have a right

to be considered along with other eligible candidates as and

when posts  are  advertised  for  direct  recruitment.   He  then

contended  that  when  the  regularization  of  the  private

respondents took place in the year 2000, the law declared by

this Court  in  State of Haryana v. Piara Singh [(1992) 4

SCC 118],  was  holding  the  field,  which  required  the  State

Government  to  regularize  the  services  of  ad hoc  employees

who  have  put  in  a  few  years  of  continuous  service.   He

submitted that the law laid down by a Constitution Bench of

this Court in Secretary, State of Karnataka’s case (supra)

relied upon by the appellants in support of their case will be of

no  help  and  assistance  to  the  appellants  as  in  the  said

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decision,  this  Court  has  clarified  that  the  regularization,  if

any, already made, but not sub judice, need not be re-opened

on the basis of the judgment.   

14. Mr. P.S. Patwalia, learned senior counsel, appearing on

behalf  of  the  private  respondents  in  addition  to  the

submission of Mr. P.P. Rao, learned senior counsel, submitted

that the appellants have no right that can be enforced in the

present  proceedings,  particularly,  in  view  of  the  fact  that

admittedly  their  names  appeared  in  the  select  list  dated

17.07.2000  below  the  persons  who  have  been  appointed

against  the  27  vacancies.   He  submitted  that  the  Rules

applicable to the present case do not permit inclusion of more

number of candidates in the select list in excess of the notified

vacancies.  In support of this submission, reference is made to

the decisions of this Court in Madan Lal v. State of J & K &

Ors.  [(1995)  3  SCC 486],  Shri  Kant  Tripathy & Ors.  v.

State of U.P. & Ors. [(2001) 10 SCC 237], State of U.P. &

Ors. v. Raj Kumar Sharma & Ors. [(2006) 3 SCC 330] and

Prem Singh v. Haryana State Electricity Board [1996 (4)

SCC 319].  He submitted that the appellants have no  locus

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standi to  file  the  writ  petition  under  Article  226  of  the

Constitution  of  India  before  the  High  Court  as  the  private

respondents would stand on a completely different footing as

compared to the appellants.  It was also submitted that the

decision to regularize the services of the private respondents

was  taken  by  the  Cabinet  in  its  meeting  dated  13.10.2000

pursuant whereupon separate Notification dated 16.11.2000

was  issued  by  the  State  Government  regularizing  their

services  in  deference  to  Rule  11 of  Service  Order,  1994 by

relaxing the rules.   It  was then contended that the Cabinet

decision as well  as the subsequent  Notification of the State

Government have not been challenged in the writ proceedings,

the High Court has rightly dismissed the writ petition and the

appeals of the appellants.

15.   At  the  outset  it  should  be  noticed  that  the  select  list

prepared by APSC could be used to fill the notified vacancies

and not future vacancies.  If the requisition and advertisement

was only for 27 posts, the State cannot appoint more than the

number of posts advertised, even though APSC had prepared

a select list of 64 candidates.  The selection list got exhausted

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when all the 27 posts were filled.  Thereafter, the candidates

below  the  27  appointed  candidates  have  no  right  to  claim

appointment to any vacancy in regard to which selection was

not held.  The fact that evidently and admittedly the names of

the  appellants  appeared  in the  select  list  dated 17.07.2000

below the persons who have been appointed on merit against

the said 27 vacancies, and as such they could not have been

appointed in excess of the number of posts advertised as the

currency of select list had expired as soon as the number of

posts advertised are filled up, therefore, appointments beyond

the  number  of  posts  advertised  would  amount  to  filling  up

future  vacancies  meant  for  direct  candidates  in  violation of

quota  rules.    Therefore,  the  appellants  are  not  entitled  to

claim any relief for themselves.  The question that remains for

consideration is whether there is any ground for challenging

the regularization of the private respondents.

16. At  the  time  of  issuing  the  advertisement  dated

19.08.1997,  the  total  number  of  vacancies  available  in  the

cadre of CDPOs in the year 1996-97 was 45 out of which 27

vacancies, being 60 per cent of the total number of vacancies

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were available for being filled up by way of direct recruitment

as per Service Order, 1994. The Joint Secretary, Personnel (B)

Department, circulated the Cabinet Memorandum under Rule

17 of the Assam Rules of Executive Business.  It was made

clear  in  the  said  Cabinet  Memorandum  that  the  private

respondents  could  not  pass  the  APSC  written  examination,

but  they  have  gathered  sufficient  experience  under  Social

Welfare Department and the performance of the officers was

also found satisfactory.  It was stated that their services were

not  terminated  and  they  were  allowed  to  continue  in  their

respective posts and in the interest of the public service, the

State Government had decided to regularize their services and

to  absorb  them  under  Social  Welfare  Department  against

posts held by them.  The Commissioner and Secretary to the

Government  of  Assam,  Social  Welfare  Department  on

16.06.2000, concurring with the proposal of Joint Secretary,

Personnel  (B)  Department,  as  a  special  case  sought  the

approval of the Cabinet for regularization of appointment of 18

CDPOs/Superintendents/ Home Probation Officers who were

appointed  in  terms  of  Regulation  3  (f)  of  APSC  and  in

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accordance  with  the  method  as  provided  in  Clause  5(c)  by

invoking discretion of relaxation under Clause 11 of Service

Order, 1994.  The Cabinet in the meeting held on 13.10.2000,

decided to regularize the services of the private respondents in

the special circumstances that they have been working against

the posts of CDPOs for the last more than four years and their

performance was found satisfactory and their continuity in the

existing posts was also needed for effective implementation of

the time-bound scheme of the Government of India for which

ICDS Projects were provided in the State of Assam.  Pursuant

to  the  Cabinet  decision,  Notification  No.  SWD  34/99/104

dated  16.11.2000  was  issued  by  the  Commissioner  and

Secretary  to  the  Government  of  Assam,  Social  Welfare

Department  by  which  the  services  of  the  appellants  were

ordered  to  be  regularized  with effect  from the  date  of  their

joining  the  Social  Welfare  Department.   Indisputably,  the

appellants  have  challenged  only  the  Cabinet  Memorandum

dated 16.06.2000 in the writ petition before the High Court

while the Cabinet decision dated 13.10.2000 was taken on the

basis  of  the  said  Memorandum  and  the  subsequent

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Notification regularizing the services of the appellants issued

by  the  State  Government  on  16.11.2000  had  remained

unchallenged.   The  Cabinet  took  the  decision  dated

13.10.2000 in exercise  of  the  powers  under  Rule  17 of  the

Assam  Executive  Business  Rules  which  was  subsequently

notified by the State Government on 16.11.2000 as a one-time

measure to regularize the services of the private respondents.

It  appears that the appellants were not serious in regard to

challenging the regularization of the private respondents but

were  only  interested  in  pursuing  their  own  claim  for

appointment  as  CDPOs  against  the  vacancies  reserved  for

direct  quota.   In  the  circumstances  and  the  facts  of  the

present  case,  the  appellant  cannot  maintain  any  claim

whatsoever in respect of the 18 vacancies of CDPOs against

which  the  private  respondents  were  regularized.  The

appellants and the private respondents stand on a completely

different footing. The services of the private respondents have

been regularized against the vacancies  meant for promotees

and the source of legal right of the appellants and the private

respondents  being  from  two  different  and  distinct  sources,

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their relative rights cannot be compared with each other and,

therefore, there cannot be any violation of fundamental rights

under Article 14 of the Constitution of India as a consequence

of the regularization of the services of the respondents.

17. We have gone through the Service Order, 1994 issued by

the Government of Assam, Social Welfare Department dated

01.08.1994.  Clause 3 of the Service Order classifies the class

and  cadre  of  the  services.   The  post  of  Child  Development

Project Officer is in Class II cadre.  Clause 5 thereof envisages

method of recruitment and promotion. The relevant portion of

Clause 5 reads as under:-

“5 Recruitment to the Cadre of the service shall be made in the following manners:-

(a) xxx xxx xxx

(b) xxx xxx xxx

(c)  In  the order  of  District  SWO/ CDPO/ Special  Home/  Principal  Balbhawan VTRC/  Probationary  Officer/  PWO/ Liaison  Officer/  Vice  Principal,  Jorhat, Blind Institute.   The posts shall  be  filled up  by  direct  recruitment  through  the Commission  as  per  norms  fixed  jointly with  Ministry  of  Welfare,  Government  of India by the Social Welfare Department.”

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Clause  11  of  the  Service  Order  deals  with  relaxation.   It

reads:-

“Where  the  Governor  is  satisfied  that  the operation of any of the provisions of these orders  has caused undue hardship in any particular  case,  he  may  dispense  with  or relax  the  requirement  of  that  provision  to such extent and subject to such condition as  he  may  consider  necessary  for  dealing with  the  case  in  a  just  and  equitable manner.

Provided that the case of any Government servant  shall  not  be  dealt  with  in  any manner,  less  favourable  to  him than  that provided in these orders.”

18. Annexure-1  attached  to  Service  Order,  1994  contains

class of posts, cadre of posts, cadre strength, scale of pay and

qualifications & experience for the service.  At serial No. 3, in

Class II the total cadre strength of CDPOs has been shown as

68 in the pay scale of Rs.1635-3950/-.  Column 6 of Annexure

I prescribes that 40 per cent of the posts of CDPOs have to be

filled up by promotion from amongst the persons who have

rendered  10  years  of  continuous  service  in  the  cadre  of

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ACDPOs/Assistant Superintendent Homes and  

Allied  Cadre  and  60  per  cent  by  direct  recruitment.   The

private  respondents,  no  doubt,  were  appointed  on  ad  hoc

basis  and  admittedly  they  have  not  completed  10  years  of

continuous service in the cadre of ACDPOs, but the State of

Assam, with the approval of the Cabinet, decided to regularize

the  services  of  the  appellants  as  a  special  case  by  giving

relaxation under para 11 of the Service Order.  Therefore, the

decision  of  the  Cabinet  pursuant  whereof  the  State

Government issued Notification cannot be held to be arbitrary

and irrational.  The appellants fall in different categories and

they have no enforceable right to challenge the regularization

of the private respondents who have been regularized against

the  vacancies  meant  for  promotional  quota.   In  their  writ

petition, they have prayed for their appointment because their

names were included in the select list by the APSC against the

direct quota.  The State Government appointed 27 persons in

order of merits out of the select list prepared by the APSC, as

such the appellants being selectees cannot claim appointment

as a matter of right in excess to the advertised vacancies.  It is

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well settled law that filling up of the vacancies over and above

the  number  of  vacancies  advertised  would  be  violative  of

Articles 14 and 16 of the Constitution of India.  Mere inclusion

of the appellants in the select list of the direct appointees does

not  confer  any  right  on  them  to  be  appointed  against  the

vacancies reserved for promotees. The decision of the Cabinet

and the Notification issued by the State Government pursuant

thereto in our view, are both in consonance and in conformity

with Clause 11 of the Service Order to save the services of the

private respondents from being thrown out of the job which

otherwise would cause extreme hardship and injury to them

and to the members of their families.   

19. In the facts and circumstances of the present case, we

find that the High Court has rightly held that the appellants

do not have any enforceable right of being appointed to the

post  of  CDPOs  against  the  quota  meant  for  promotees  and

more  particularly  against  the  decision  of  the  State

Government  regularizing  the  services  of  the  private

respondents.  The Cabinet decision was taken as a one-time

measure  having  regard  to  the  special  circumstances  of  the

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case,  the  satisfactory  performance  rendered  by  the  private

respondents and their past service record which was found to

be  unblemished  by  the  Government  as  well  as  in  the

exigencies  of  the  Scheme of  the  Central  Government  which

were to be operationalised in a time-bound manner and also

keeping public interest in mind.  In these circumstances, the

High  Court  is  right  in  holding  that  the  appellants  have  no

locus standi to challenge the regulation of private respondents

against  the  vacancies  meant  for  the  promotional  quota  the

appellants  who appeared  in  the  interview held  by  APSC as

direct candidates could not have any grievance against their

regularization against 40 per cent promotional posts.

20. In  the  backdrop  of  the  above  stated  facts  and  the

relevant  provisions  of  rules,  we  do  not  find  any  error  or

infirmity in the impugned judgment and order passed by the

High  Court  which  would  warrant  any  interference  by  this

Court in this appeal.  None of the contentions raised by the

appellants  merits  acceptance.   The  law  laid  down  by  the

Constitution Bench of this Court in Uma Devi’s case (supra)

in the present set of facts and circumstances will be of no help

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and assistance to the appellants.  The decision of the Gauhati

High Court  in the  cases  cited at  Bar by the  learned senior

counsel  for  the  appellants  will  turn  on  the  facts  and

circumstances  of  the  said  cases  and  the  ratio  laid  down

therein cannot be made binding on the peculiar facts of the

present case.   

21. For the above-stated reasons, the appeal fails and it is

accordingly, dismissed.   

In  the facts  and circumstances,  the  parties  are  left  to

bear their own costs.

........................................J.                                                 (R. V. Raveendran)

........................................J.                                                 (Lokeshwar Singh Panta)

New Delhi, November 18, 2008.

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