II. STATE OF ASSAM (Civil Appeal No. 6690 of 2008) NOVEMBER 18 & Ors. v. STATE OF ASSAM The Assam Public Service Commission notified 27 A & Ors.

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 D 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 c the selection process conducted by APSC. On 16.06.2000, 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 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 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. G 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 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 c 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 selectlist 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 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] D . . .

1.2. Column 6 of Annexure I attached to Service Order, 1994 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 ACDPOs/Assistant Superintendent Homes and Allied Cadre and 60 per cent by direct recruitment. At the time of issuing the advertisement, 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 were available for being filled up by way of direct recruitment. It was made clear in the Cabinet F G H )-. -t ~" _.. } -- 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 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 the Cabinet appellants have challenged only 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~~ 0 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 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 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 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 1 _. I "- t -. _. ..._ I .l- -'r 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 18] [255-E-H; 256-A-D] 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 c 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 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. 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 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