Holding

A select list prepared for a specific advertisement can be used only to fill those advertised vacancies; candidates below the appointed list have no right to future or promotional vacancies, and the regularisation of private respondents under Clause 11 of the Service Order is valid.

Summary

The Assam Public Service Commission advertised 27 Child Development Project Officer (CDPO) posts for direct recruitment and prepared a select list of 64 candidates, appointing the first 27. The appellants, whose names appeared below the appointed 27, challenged the regularisation of 18 privately appointed CDPOs who were regularised under a Cabinet Memorandum, Cabinet decision and Government notification invoking Clause 11 of the Assam Social Welfare (Recruitment and Promotion) Service Order, 1994. The Supreme Court held that a select list can be used only to fill the advertised vacancies; candidates below the appointed 27 have no right to future or promotional vacancies, and the regularisation of the private respondents under the Service Order was lawful. Consequently, the appellants had no enforceable right or locus standi to challenge the Cabinet actions, and the appeal was dismissed.

Issues considered

Whether inclusion of appellants in the select list beyond the advertised vacancies confers any right to appointment to future or promotional posts.
Whether the regularisation of private respondents against promotional quota posts violates Articles 14 and 16 of the Constitution.
Whether the appellants have locus standi to challenge the Cabinet memorandum, decision and subsequent notification.
Whether filling vacancies beyond the number advertised is permissible under the Service Order and recruitment rules.

Legislation cited

Constitution of Indias. Article 14, s. Article 16

Subjects

appointmentrecruitmentselect listservice rulesArticles 14Article 16regularisationpromotional quotalocus standipublic serviceAssam Public Service CommissionClause 11constitutional law

Judgment

[2008] .16 S.C.R 236

A MUKUL SAIKIA & ORS.
II.
STATE OF ASSAM & ORS.
(Civil Appeal No. 6690 of 2008)
NOVEMBER 18, 2008
B
[R.V. RAVEENDRAN AND LOKESHWAR SINGH
PANTA, JJ.] +--

Service Law:
c
Appointment/Recruitment/Selection - Filling up of
vacancies over and above the number of vacancies
advertised - Held: Is violative of Articles 14 and 16 -
Constitution of India, 1950 - Articles 14 and 16.
D Appointment - Claim of - Post of Project Officer
advertised for direct recruitment quota - Post filled on merits '
out of the select list prepared - Name of appellants figuring
below the selected candidates in select list - Subsequently,
"
services of temporarily appointees regularized to the post of
E Project Officer against promotional quota, on basis of Cabinet
Memorandum followed by Cabinet Decision and Notification
relaxing Service Rules, as special case - Claim of appellant
in the vacant/newly created post of CDPOs!PO, challenging
only the Cabinet Memorandum - Held: Not maintainable -
F Mere inclusion of appellants in select list of direct appointees
does not confer any right on them to be appointed to any
vacancy in regard to which selection was not held or against
vacancies reserved for promotees - More so, Cabinet
decision and Notification were in consonance and conformity
G with the Service Order-Also, appellants had no locus standi
to challenge regularisation of private respondents - Assam
Social Welfare (Recruitment and Promotion) Service Order, "" -.
1994 - Clause 11.

H 236
MUKUL SAIKIA & ORS. v. STATE OF ASSAM & ORS. 237
_,
The Assam Public Service Commission notified 27 A
vacancies of Child Development Project Officer for direct
recruitment. On 17.7.2000, a select list of 64 candidates .
was prepared. The first 27 persons in the select list were
appointed on merit. The names of the present appellants
appeared below the 27 selected candidates in the list. B
~-•
18 CDPO's/Probation Officers-private respondents
were temporarily appointe!I in terms of Regulation 3(f) of
the Assam Public Service Commission (Limitation of
Function) Regulation, 1951. They could not succeed in
the selection process conducted by APSC. On 16.06.2000,
c
the Cabinet Memorandum was circulated for regularizing
the service of private respondents, in exceptional
circumstances of the matter against the vacancies meant
for promotees, in terms of Clause 11 of the of the Assam
'~ Social Welfare (Recruitment and Promotion) Service D
Order, 1994. On basis thereof, on 13.10.2000, Cabinet
Decision was taken granting approval of regularization
of service of the respondents. Thereafter, State
Government issued Notification dated 16.11.2000 for
regularising the services of private respondent. E
Appellants filed writ petitions challenging the cabinet
memorandum dated 16.06.2000 as also policy decision
taken by the State to regularize the services of the private
respondents. They prayed for appointment of the
appellants in the vacant/newly created posts of CDPOs/ F
P~ob~tion Officers. The Single Judge of the High Court
d1sm1sse~ the writ pe~itions holding that no posts beyond
~7 advertised vacancies could be filled up from the select
hst and the appellants had challenged only the Cabinet
Me~ora.nd~m and not the Cabinet decision and the G
-- 1 Not1~cat1on issued by the State Government whereby the
serv1c~s of the private respondents came to be
r~g~l~rized. Aggrieved, appellants filed writ appeals. The
D1v1s1on Bench dismissed the same. Hence the present
appeal.
H
238 SUPREME COURT REPORTS [2008] 16 S.C.R
)-.

A Dismissing the appeal, the Court

HELD: 1.1. 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
B for 27 posts, the State cannot appoint more than the
number of posts advertised, even though APSC had -t ~"
prepared a select list of 64 candidates. The selection list
got exhausted when all the 27 posts were filled.
Thereafter, the candidates below the 27 appointed
candidates have no right to claim appointment to any
c vacancy in regard to which selection was not held. The
fact that evidently and admittedly the names of the.
appellants appeared in the selectlist below the persons
who have. been appointed on merit against . . the said. 27
vacancies, and as such they could not have been
D appointed in excess of the number of posts advertised
_..
as the validity of selectlist 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
E direct candidates in violation of quota rules. Therefore,
the appellants are not. entitled to claim any relief for
themselves. [Para 15) [252-A-D]
1.2. Column 6 of Annexure I attached to Service
Order, 1994 prescribes that 40 per cent of the posts of
F CDPOs have to be filled up by promotion from amongst
the persons who have rendered 10 years of continuous
service in the cadre of ACDPOs/Assistant Superintendent
Homes and Allied Cadre and 60 per cent by direct
recruitment. At the time of issuing the advertisement, the
G 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 were available for being filled up by way of
direct recruitment. It was made clear in the Cabinet
H
MUKUL SAIKIA & ORS. v. STATE OF ASSAM & ORS. 239

Memorandum that the private respondents could not A
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; that their services were not terminated
and they were allowed to continue in their respective B
posts. In the interest of the public service for proper and
effective implementation of time bound projects 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 c
the Government of Assam on 16.06.2000, as a special
case sought 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 accordance with the
0
method as provided in Clause S(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
said special circumstances. Pursuant to the Cabinet
decision, Notification dated 16.11.2000 was issued by the E
State Government as a one-time measure to regularize
the services of the private respondents. Indisputably, the
appellants have challenged only the Cabinet
Memorandum dated 16.06.2000 in the writ petition while
the Cabinet decision dated 13.10.2000 was taken on the F
basis of the said Memorandum and the subsequent
Notification regularizing the services of the appellants
issued by the State Government on 16.11.2000 had
remained unchallenged. [Para 16 and 18] [252-F-H; 253-
A~; 255~~ G
• - -I 1.3. In the circumstances and the facts of the instant
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 H
240 SUPREME COURT REPORTS [2008] 16 S.C.R.

A 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, their relative rights cannot be compared
s with each other and, therefore, there cannot be any
violation of fundamental rights under Article 14 of the 1 _.
Cons~itution of India as a consequence of the
regularization of the services of the respondents. [Para
16) (254-A-C]
C 1.4. The private respondents were appointed on ad
hoc basis and admittedly they have not completed 10 I
years of continuous service in the cadre of !~CDPOs, but
the State of Assam, with the approval of the Cabinet,
decided to regularize the services of the appellants as a
o special case by giving relaxation under clause 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
E no enforceable right to challenge the regularization of the
private respondents who have been regularized against
the vacancies meantfor promotional quota. In their writ
petition, they have prayed for their appointment because
their names were included in the select list by the APSC
F 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. Filling up of the
vacancies over and above the number of vacancies
G advertised would be violative of Articles 14 and 16 of the
t -.
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
H
MUKUL SAIKIA & ORS. v. STATE OF ASSAM & ORS. 241
_.
the Notification issued by the State Government pursuant A
thereto, 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. [Para B
..._ I 18] [255-E-H; 256-A-D]

1.5. In the facts and circumstances of the instant
case, the High Court rightly held that the appellants did
not have any enforceable right of being appointed to the
post of CDPOs against the quota meant for promotees c
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 case, the satisfactory performance rendered by the D
.l- 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. E
In these circumstances, the High Court is right in holding
that the appellants have no locus stahdi to challenge the
regularisation of private respondents against the
-'r vacancies meant for the promotional quota the appellants
who appeared in the interview held by APSC as direct F
candidates could not have any grievance against their
regularization against 40 per cent promotional posts.
There is no error or infirmity in the impugned judgment
and order passed by the High Court which would warrant
any interference by this Court. [Paras 19 and 20] [256-E-
G
.- , H; 257-A-B]

Virender Singh Hooda v. State of Haryana and Anr. 1999
(3) SCC 696; Suvidya Yadav and Ors. v. State of Haryana
and Ors. 2002 (10) SCC 299; Sandeep Singh v. State of
Haryana and Anr. 2002 (10) SCC 549; State of Haryana v. H
242 SUPREME COURT REPORTS [2008] 16 S.C.R.
: /.'-
A Piara Singh 1992 (4) SCC 118; Madan Lal v. State of J and
Kand Ors. 1995 (3) SCC 486; Shri Kant Tripathy and Ors. v.
State of U.P. and Ors. 2001 (1 O) sec 237; State of U.P. and
Ors. v. Raj Kumar Sharma and Ors. 2006 (3) SCC 330; Prem
Singh v. Haryana State Electricity Board 1996 (4) SCC 319;
B Pranjit Kumar Das v. State of Assam and Ors. 1995 (1) GLR
229 and Dr. Anoop Kumar Das v. Dr. Sanjib Kakati and Ors. ~ ,;
2000 (2) GLR 479, referred to.
Secretary, State of Karnataka and Ors v. Uma Devi and
Ors. 2006 (4) SCC 1, Distinguished.
c
Case Law Reference:

1999 (3) sec 696 Referred to. Para 12

2002 (10) sec 299 Referred to. Para 12
D
2002 (10) sec 549 Referred to. Para 12 ...,
2006 (4) sec 1 Referred to. Para 12

1992 (4) sec 118 Referred to. Para 13
E 1995 (3) sec 486 Referred to. Para 14

2001 (10) sec 237 Referred to. Para 14

2006 (3) sec 330 Referred to. Para 14
'i-
F 1996 (4) sec 319 Referred to. Para 14

1995 (1) GLR 229 Referred to. Para 20

2000 (2) GLR 479 Referred to. Para 20

2006 (4) sec 1 Distinguished. Para 20
G
CIVIL APPELLATE JURISDICTION : Civil Appeal No. \ -.
6690 of 2008.

From the final Judgment and Order dated 15.9.2006 of the
of High Court of Gauhati, Assam in WA Nos. 471 of 2003 & 8
H
MUKUL SAIKIA & ORS. v. STATE OF ASSAM & ORS. 243
...
of 2005. A

A.K. Ganguli, T Mamo Singh and Amit Pawan, for the
Appellant.

R.P. Rao, K. Amreshwari, Paramjit Singh Patwalia,
Krishna Sarma, Avijit Roy (for Corporate Law Group), Asha G. B
' ,
Nair, Sudha Pal, D.S. Mahra, Hrishikesh Baruah, Raka Bejoy,
Phookan. Arjun Bobde, Shailesh Madiyal, Balvir Dosanjh and
Jagjit Singh Chhabra for the Respondents.

The Judgment of the Court was delivered by c
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/ D
,_ 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. E
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 F
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 G
~1
number before this Court appeared in the select list below 27
~rsons 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
H
244 SUPREME COURT REPORTS [2008] 16 S.C.R.

A 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)
B of the Assam Public Service Commission (Limitation of
Function) Regulation, 1951 (for short "Regulatior 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
c 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
0
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.

E 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 -f .
F 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
G 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 ihat as soon as the posts advertised were filled up
or the validity of the select list expired, whichever event was
H earlier in point of time, the candidates whose names appeared
I
MUKUL SAIKIA & ORS. v. STATE OF ASSAM & ORS. 245
[LOKESHWAR SINGH PANTA, J.]

in the select list could not thereafter claim appointment as the A
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 nor the Notification issued
pursuant thereto by the State Government regularising the
service of 18 CDPOs/ Probation Officers. It was also stated B
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- c
bound scheme of the Government of India for which !CDS
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 D
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 E
that they shall be appointed against the unadvertised future
vacancies, merely because their names are found in the 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 F
19.0~.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
regu!anze their services was taken by the State Government G
by giving mlaxation 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
dec1s1on in fact _has not been challenged by the appellants/
original writ pet1t1oners either in the writ petitions or in the writ H
246 SUPREME COURT REPORTS [2008] 16 S.C.R

A 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
B the select list and the appellants had challenged only the Cabinet
Memorandum dated 16.06.2000 without challenging 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
C 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
D 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
E affidavit stating, inter alia, that the private respondents have
rendered highly satisfactory a11d dedicated service in
implementation of timecbound 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
F stated that at the relevant point of time, there were 18 vacant
posts of CDPOs in the promotional category and another 10
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
G 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
H Projects, it was decided that regular absorption of the priva!e
MUKUL SAIKIA & ORS. v. STATE OF ASSAM & ORS. 247
[LOKESHWAR SINGH PANTA, J.]

r~spondents against the promotional posts of CDPOs was in A
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) B
Department of the State of Assam for regularizing the services
' x 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 Cabinet Memorandum dated 16.06.2000, a c
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
D
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 E
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 F
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
selectees were appointed out of whom 17 were appointed in G
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 ofthe advertised vacancies. The Secretary to the
H
248 SUPREME COURT REPORTS [2008] 16 S.C.R.

A 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
B 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
c 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
were filled up by the State Government after complying with the
provisions of the rules including the reservation in favour of
0
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
E 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 promotiori from
departmental candidates and as such, the appellants who had
applied against direct quota have no legitimate right to be
F 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
G 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
stated that, in view of the long services rendered by the private
H respondents and having due regard to their past satisfactory
MUKUL SAIKIA & ORS. v. STATE OF ASSAM & ORS. 249
[LOKESHWAR SINGH PANTA, J.]

performance and also the service record, they have been A
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 B
procedure for regularization of the respondents' services was
., )I
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 c
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 D
submitted that the appellants had no locus standi to file the writ
y 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 E
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 F
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 G
~

held that any appointment under Regulation 3 (f) of Regulation
I
...---I 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 disregard to the binding law as laid down in the above cited H
250 SUPREME COURT REPORTS [2008] 16 S.C.R.

A 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
B 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
c 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 sec 1].
D 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 filled up by
promotion from amongst the persons who have rendered 10
E 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
F 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
G place in the year 2000, the law declared by this_~urt in State
of Haryaoo v. Piara Singh [(1992) 4 SCC f18]. 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
H Constitution Bench of this Court in Secretary, State of
MUKUL SAIKIA & ORS. v. STATE OF ASSAM & ORS. 251
[LOKESHWAR SINGH PANTA, J.]

Karnataka's case (supra) relied upon by the appellants in A
support of their case will be of no help and assistance to the
appellants as in the said 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.
B
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 C
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 D
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 ofU.P. & Ors. v. Raj
Kumar Sharma & Ors. [(2006) 3 SCC 330] and Prem Singh
v. Haryana State Electricity Board [1996 (4) SCC 319]. He E
submitted that the appellants have no locus 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 F
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 G
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.
H
252 SUPREME COURT REPORTS [2008] 16 S.C.R.

A 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
B a select list of 64 candidates. The selection list got exhausted
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
c 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
D 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
E 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
F vacancies, being 60 per cent of the total number of vacancies
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
G 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
H terminated and they were allowed to continue in their respective
MUKUL SAIKIA & ORS. v. STATE OF ASSAM & ORS. 253
[LOKESHWAR SINGH PANTA, J.]

posts and in the interest of the public service, the State A
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, B
' ,. 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
accordance with the method as provided in Clause 5(c) by c
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 D
~ and their performance was found satisfactory and their continuity
)C
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 E
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
-r joining the Social Welfare Department. Indisputably, the
appellants have challenged only the Cabinet Memorandum F
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 Notification
regularizing the services of the appellants issued by the State
Government on 16.11.2000 had remained unchallenged. The G
........ --~ 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 H
254 SUPREME COURT REPORTS [2008] 16 S.C.R.

A 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
B 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
c source of legal right of the appellants and the private
respondents being from two different and distinct sources, 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.
0
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
E 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
F in the following manners:-

(a) xxx xxx xxx

(b) )()()( xxx )()()(

(c) In the order of District SWOI CDPO/Special Home/
G
Principal Balbhawan VTRC/ Probationary Officer/PWOI
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
H
MUKUL SAIKIA & ORS. v. STATE OF ASSAM & ORS. 255
[LOKESHWAR SINGH PANTA, J.]

Department." A

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 B
> JI
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.
c
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 D
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 E
rendered 10 years of continuous service in the cadre of
ACDPOs/Assistant Superintendent Homes and Allied Cadre
and 60 per cent by diree;t recruitment. The private respondents,
_. no doubt, were appointed on ad hoc basis and admittedly they
have not completed 1Oyears of continuous service in the cadre F
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 G
> ...... 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 H
256 SUPREME COURT REPORTS [2008] 16 S.C.R.

A 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
B advertised vacancies. It is 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
c appointed against the vacancies reserved for promotees. The
decision of the Cabinet and the Notification issued by the State F
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
D
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
E 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 ,
't-
F regard to the special circumstances of the 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 An the exigencies of the Scheme of the
Central Government which were to be operationalised in a
G time-bound manner and also keeping public interest in mind.
In these circumstances, the High Court is right in holding that .,._ ..... J

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
H
MUKUL SAIKIA & ORS .. v. STATE OF ASSAM & ORS. 257
· [LOKESHWAR SINGH PANTA, J.]

grievance against their regularization ·against 40 per cent .:A
promotional posts.

20. In the baCkdfop· of the above stated facts and the
relevant provisions of rules, we do not firyd any error or infirmity
in the impugned juo.gment.and order pas.sed by the High Court . B
which would warrant any inierference by this Court in this appeal.
Non~cpf,the ,co.otentions raised by.. the. appellCjnti; merits
acceptance~ The '1aw la.id -~o~n,by the.Constitution Bencti of this
Court in Uma Devi's case (supra) in the present set of facts
and cir~umst~.nces will be .qt no help and assistance to the . C
appellants. The decision of the Gauhati High Court in tlie cases
cited at Bar by the. lea(ned senior counsel for the appellants
will turn on the facis arid circumstances of the 'said cases and
the ratio ~lciid doiNn therein cannot be 'made binding on the
peculiar facts of the present 2ase. ·
D
21. For the above-stated reasons, the appeal fails and it
is accordingly, dismissed.. .

· In the facts. and circumstapces, the parties are left to bear
their own costs, ..
E
N.J .. Appeal dismissed .

.,