The Madras High Court has said that the principle of law is that recruitment could be for existing (or clear) vacancies as well as for anticipated vacancies. It cannot be for future vacancies.
If the requisition and advertisement are only for a certain number of posts, the State cannot make more appointments than the number of posts advertised, even if a select list of more candidates had been prepared.
The State can deviate from the advertisement and make appointments for more vacancies only in exceptional circumstances or in an emergent situation and that too, by taking a policy decision in that behalf.
Filling up of vacancies over and above the number of vacancies advertised would be violative of Articles 14 and 16 of the Constitution.
These are the principles of law that emerge on a scrutiny of the ratio laid down in various decisions, said Justice V.Ramasubramanian.
He was allowing petitions which had been filed aggrieved by the Tamil Nadu government's decision to fill up 186 posts of Assistant Section Officers (ASOs) in the Secretariat (other than Law and Finance Departments) on the basis of a notification of November 15, 2009 for selection to Combined Services Examination-I, despite the fact that the 186 posts had not been included in the notification.
The petitioners contended that after conducting a recruitment drive purportedly for filling up 13 posts of ASOs in Law Department and four posts of ASOs in the Tamil Nadu Public Service Commission, it was not open to the authorities to fill up an additional 186 posts without a fresh notification.
The filling up of the 186 posts, for which no notification was issued, violated Articles 14 and 16.
Mr.Justice Ramasubramanian said the 186 posts were neither existing vacancies nor anticipated vacancies as on the date of notification, November 15, 2009. These vacancies were created for the purpose of direct recruitment only from March 2010 though they existed for being filled up by promotion.
Hence, these vacancies were actually future vacancies in so far as the November 2009 notification was concerned.
Till date no appointment orders had been issued to any person selected for appointment to ASOs posts over and above the 17 vacancies originally notified. Therefore, there was no question of anyone being deprived of any right already vested in them, if the prayer sought in the writ petitions was granted.
Mr.Justice Ramasubramanian said the selection in pursuance of the November 2009 notification should be confined only to the vacancies notified in the advertisement.
It may be open to the government to fill up 186 posts of ASOs in the departments of the Secretariat (other than Law and Finance departments) based on the selection conducted following notifications in December 2010 and February and June 2011.
