D.N. Patel, J. - (1.) THE issues involved in both the writ petitions, being common, they have been heard together and are being disposed of by this common judgment. However, for the practical purposes, W.P.(S) No. 5900 of 2011 shall be treated as main writ petition for referring annexures hereinbelow. These writ petitions have been preferred firstly for getting employment to the posts of Sub Inspector of Police, Sargent and Company Commander, pursuant to public advertisement bearing No. 1 of 2008, on the basis of the actual vacancies, as on date available in the State of Jharkhand; secondly for issuing directions upon the respondents to the effect that the posts, actually advertised, should be enhanced to the actual vacancies, available in the State of Jharkhand and thirdly: to appoint the petitioners on the posts of Sub Inspector of Police, Sargent and Company Commander.
(2.) FACTUAL Matrix: • The State of Jharkhand has issued a public advertisement bearing no. 1 of 2008 on 1st March. 2008 for fulfilling the vacancies of different posts in the Police Department, namely, Sub Inspector of Police, Sargent and Company Commander, in total 384. The said advertisement is at Annexure 1 to the memo of petition. • In the advertisement it is mentioned that the number of vacancies can be increased or decreased. So far as minimum and maximum age limits are concerned, the advertisement speaks as under: • Thereafter, another public advertisement was issued, which is dated 23rd May, 2009. as per the learned counsels appearing in both the writ petitions, and the said advertisement is at Annexure 2 to the me(sic)o of petition, wherein, the age limits now prescribed are as under: • The relaxation of age, thus, is prescribed by the advertisement, but this relaxation is given as a one time measure. It is also mentioned in the advertisement that in future (be minimum and maximum age limit will be as per the circular bearing No. 2029 dated 7.5.2008. According to this, the age relaxation is not a permanent phenomenon. With the aforesaid rider, second advertisement was issued and except this, there is no other material change in the second advertisement Total number of vacancies advertised is 384 for the posts of Sub Inspector of Police, Sargent and Company Commander. • Examination, pursuant to the aforesaid advertisements, was conducted on 11th September. 2011: interviews were taken on and from 9th January, 2012 and thereafter, the result was published on 25th February, 2012. • These petitioners applied for information, under Right to Information Act, whereupon, information was given to them vide Memo No. 3467 dated 15.12.2011, which is at Annexure B to the rejoinder affidavit filed by the petitioners, that as on date there are total available vacancies of the post of Sub Inspector of Police are 1492 whereas total available vacancies of the post of Sargent are 82. Further, in para 10 of the rejoinder affidavit it has been pointed out that there are 103 vacant posts of Company Commander. Earlier advertisement was given in 1994 for the aforesaid three posts. Arguments canvassed by the counsel for the petitioners: (i) All vacancies available as on the date of interview must be filled up from the very same examination. (ii) There is no statutory embargo for not to fill up all the existing vacancies and the total number of existing vacancies as on the date of interview, as alleged by the counsel for the petitioners, is 1595, which is slightly higher than what is given by the respondent State under the Right to Information Act (iii) The State of Jharkhand is in a habit of filling up more posts than what is advertised. For example, in past, advertisement was given for appointment of 6796 Constables whereas the posts filled up were 8430. (iv) The advertisement has been given after long lapse of time i.e. approximately 17 years and therefore, the vacancies, which are existing as on date of interview, must be filled up, because these vacancies can not be termed as future vacancies. After giving advertisement four years have been taken by the respondents in fining up of the vacancies. (v) The doctrine of legitimate expectation has also been invoked for increase in number of seats, because advertisement has been given for only 384 posts. It is expected from the State that when the State is not taking examination for the posts, in question, for a longer time, then the existing vacancies should be filled up, otherwise the right vested in these candidates under Article 16 of the Constitution of India will be violated. All these 1595 posts are also sanctioned posts. Counsels for the petitioners in support of their contention, have placed reliance on the following judgements. (i) : (2002) 10 SCC 549 (Sandeep Singh v. State of Haryana & anr.); (ii) : (1989) 3 SCC 677 (Express Hotels Private Ltd. v. State of Gujarat & anr.); (iii) : 1997 (2) PLJR 539 (Tritiya Snatak Astar Pratiyogita Chainit Sangh & ors. Vs. The State of Bihar & ors.); (iv) : (2009) 3 SCC 227 (Amlan Jyoti Borooah Vs. State of Assam & ors.); and (v) : 2012 (1) P.L.J.R. 391 On the basis of the aforesaid decisions it is vehemently submitted by the learned counsels for the petitioners in both the writ petitions that there are enough number of vacancies, which are sanctioned, and since long recruitment process was never commenced and, therefore, from the very same examination all these vacancies, namely, 1595, for all the three posts, may be directed to be filled up by the State and on the basis of merits, the candidates may be selected.
(3.) ARGUMENTS canvassed by the counsel for the State of Jharkhand: (i) Mr. Ajit Kumar, learned Additional Advocate General, appearing on behalf of the respondent -State pointed out that in the first advertisement, the total number of posts were mentioned as 384 and as the advertisement was published after few years, age relaxation was given to the candidates, by virtue of the second advertisement, which is at Annexure 2 to the memo of the petition. The first advertisement was given on 1st March, 2008 whereas the second advertisement was given on 23rd May, 2009. For the candidates belonging to General Category, the age relaxation in the upper age limit was enhanced from 24 years to 35 years; for the candidates, belonging to Other Backward Class, the upper age limit was enhanced from 27 years to 38 years; and for the candidates, belonging to Scheduled Castes/Scheduled Tribes, the upper age limit was enhanced from 29 years to 40 years. This age relaxation has been given by virtue of the second advertisement, i.e. Annexure 2 to the memo of the petition, with a rider that these age relaxations have been given as one time measure and in future, the age limit will be applicable as per Government Circular No. 2029 dated 7th May, 2008. Except age relaxation, no other relaxation has been given in the second advertisement It is vehemently submitted by the learned Additional Advocate General that the posts, which are not advertised, can not be filled up from the same examination. (ii) Learned Additional Advocate General further submitted that there is no legal obligation, vested in the State of Jharkhand, to fill up all the vacancies, available as on the date of advertisement or on the date of interview. Correspondingly, there is no legal right vested in the candidates to get themselves appointed on the vacant posts, though they have not been advertised. (iii) It is a power of the State to decide as to how many vacancies are to be filled up and for this power there is no corresponding duty vested in the State to fill up all the vacant posts. This power is also commonly known as policy decision of the State and normally policy decision of the State will not fall within the judicial review/power, vested in the Court, as because there may be several vacancies in the State for several posts, but, the State can not be compelled to fill up all the vacancies for all the posts. (iv) It is further contended by the Additional Advocate General that in the first advertisement, it has been mentioned that vacancies may increase or decrease. This aspect of the matter has already been clarified in paragraph no. 5 of the counter affidavit, filed by the respondent State that the respondent State is going to fill up only 384 number of posts, so advertised. Already a decision has been taken by the State not to fill up more than what is advertised and for "other vacancies", i.e. other than what is advertised, decision will be taken for recruitment, in future. (v) The Government cannot be compelled to increase the advertised posts, merely because some vacancies are still in existence. (vi) It is further contended by the learned Additional Advocate General of the State that if these advertised posts are to be reshuffled, then there will be uncertainty about the number of the posts advertised. It may happen that the employer, which is the State in the case on hand, may not recruit all the persons at a time. That all depends upon several factors like infrastructure, filling up the supporting staff, salary of supporting staff, training facility etc., because if one post is filled up several other infrastructures and incidental things are to be kept in mind. (vii) Learned Additional Advocate General, appearing on behalf of the State, in support of his contention, has relied upon the following decisions: (i) : 2012 (10) PLJR 391; (ii) : (1974) 3 SCC 220; (iii) : (1985) 1 SCC 122; (iv) : (2001) 6 SCC 380; (v) : (2001) 10 SCC 237; (vi) : (2006) 3 SCC 330; (vii) : (2009) 2 SCC 479; (viii) : (2010) 2 SCC 637; (ix), (2010) 6 SCC 777; (x) : (2012) 4 SCC 115; (xi) : (2012) 5 SCC 559; and also (he judgments, delivered by this Court in W.P.(S) No. 6321 of 2009, decided on 15th September, 2011 and W.P.(S) No, 1667 of 2008, decided on 20th March, 2009. On the basis of the aforesaid decisions, it is vehemently submitted by the learned Additional Advocate General that no appointment can be made for the posts, which are not advertised, even though there is vacancy with the State Government. Further, there is no legal obligation on the part of the State to fill up all the vacancies, in existence. How many posts are to be filled up is left at the discretion of the State. Looking to the administrative exigencies, public need, infrastructure facilities, finance etc. the State, in its wisdom, has taken a policy decision not to appoint more than 384 candidates (for which advertisement has been given) for all the aforesaid three cadres and on the basis of the aforesaid decision, the State may not be compelled to fill up all the vacancies, which were in existence on the date of advertisement or on the date of interview and therefore, the writ petitions may not be entertained by this Court.;