1. A Division Bench, having noticed divergent views expressed by an earlier Division Bench and a Single Judge Bench on the same controversy, passed the following order on 03.02.2025:

                  "1. The special appeal is directed against the order of learned Single Judge dated 06.11.2019 dismissing the writ petition of the appellants. The petitioners had challenged a communication sent by the office of Chief Engineer, Irrigation Department of the State U.P. dated 21.06.2018 addressed to the State Government, whereby recommendation was made to fill up only 394 post falling vacant in the recruitment years 2011-12, 2012-13 and 2013-14 through the State Engineering Services Recruitment Examination, 2014. The main ground of challenge was that the advertisement was issued on 24.11.2013 for filling up 640 posts and after issuance of advertisement, the vacancies could not have been reduced and that it was permissible to include future vacancies of next three recruitment years. Before the learned Single Judge, reliance was placed on a Division Bench judgment in Writ (S.B.) No. 1596 of 2016 where the Division Bench declined to accept challenge to the requisition dated 07.11.2013 by the Secretary, Irrigation Department, to the U.P. Public Service Commission informing the Commission of the vacancies against which recruitment was to be held. It also included the future vacancies of recruitment years 2014-15 and 2015- 16. The learned Single Judge held that in accordance with Rules of 1993, the selection could be held only for the vacancies occurring in the recruitment year and future vacancies could not be included. It has been held that in case future vacancies are also included, the persons who would acquire eligibility in the subsequent recruitment years would stand excluded from the selection process and this would result in violation of Articles 14 and 16 of the Constitution. In other words, the view taken by the Division Bench in respect of the same selection has not been followed for the reasons stated in the judgment.

                  2. This Division Bench is therefore, having one judgment, which takes a view in favour of inclusion of future vacancies and a judgment of learned Single Judge taking a contrary view. The said judgment as noted above duly takes notice of the Division bench judgment.

                  3. We are of the opinion that in the aforesaid facts and circumstances, the controversy should be settled by a larger Bench.

                  4. Accordingly, we direct the office to place the record of the instant case along with all connected matters before Hon'ble the Chief Justice for appropriate orders."

2. Pursuant thereto, the present batch of intra court appeals and connected petitions have been placed before us, by order of Hon'ble the Chief Justice.

Facts :

3. Broadly stated, the facts are that the State of Uttar Pradesh (in short 'State') in order to fill up the posts of Assistant Engineer (Civil) in the Irrigation Department sent a requisition on 06.07.2012 to the U.P. Public Service Commission (in short 'Commission') for 262 vacancies for the posts of Assistant Engineer (Civil) for the recruitment year 2011-12. In continuation of the same, another requisition was sent by the Special Secretary, Government of Uttar Pradesh, to the Commission on 07.11.2013 for 378 posts for the vacancies pertaining to the recruitment years 2012-13, 2013-14, 2014-15 and 2015-16 (121+86+79+92). Thereafter, an advertisement No. A-8/-E-1/2013 dated 24-12-2013 was issued by the Commission notifying a Combined Recruitment of Assistant Engineer (Civil, Mechanical, Agriculture) for several departments of the State Government, including the Irrigation Department. The total number of vacancies advertised for Assistant Engineer (Civil) in the Irrigation Department was 640 (262+378). The last date for submission of applications was 24-01-2014.

4. According to the State, an error occurred in the calculation of the vacancies of the Irrigation Department, while sending requisition to the Commission. The total sanctioned strength of Assistant Engineer (Civil) was 1588, out of which 804 posts were for direct recruitment and 784 for promotion. Out of 804 posts earmarked for direct recruitment, 330 posts stood occupied by direct recruits thus leaving only 474 posts. Consequently, the Personnel Department of the State was consulted, and on 01-11-2017, the Chief Engineer, Karmik (Establishment-II) Irrigation and Water Resources Department, U.P. submitted a report before the Special Secretary, Irrigation Department, stating that against the sanctioned strength of 804 posts for direct recruitment, 330 posts had already been filled, so selections were required to be conducted for only 474 vacancies against the requisitioned 640 posts. Therein, he also specified the manner, in which the earlier requisitions were to be amended. The same is as follows:-

                 

5. Accordingly, a communication came to be issued by the State, addressed to the Commission on 14.11.2017, for making selections against 474 posts of Assistant Engineer (Civil). It states that the Chief Engineer vide his aforesaid letter dated 01.11.2017 had informed that as envisaged under Rule 8 of the U.P. Government Servants Seniority Rules, 1991, a consolidated seniority list was in existence. The said list was required to be considered while sending the requisition. However, without taking into consideration the said list, requisitions were sent. This resulted in requisition of 166 candidates in excess of the existing vacancies. It was stated that only 474 posts of Assistant Engineer (Civil) were vacant and accordingly, direction was issued to make selection of 474 candidates only as against the requisition of 640. Along with the said communication, copy of letter of the Chief Engineer dated 01.11.2017 was annexed.

6. Further, correspondence took place for clarity on the process of making selections for the vacancies advertised on 24.12.2013. In reply to a State Government's letter dated 30.01.2018 and Commission's letter dated 23.01.2018, the Chief Engineer Karmik (Establishment-II) Irrigation and Water Resources Department, by letter dated 10.05.2018, furnished information regarding the vacancies available to be filled for the recruitment years 2011-12 to 2016-17, totalling 474 posts, the break up of which is as follows:

                 

7. On 18.05.2018, the State issued a communication to the Commission to act in accordance with the letter dated 10.05.2018. Thereafter, by communication dated 31.05.2018, the Commission sought clarification from the State regarding the actual number of vacancies available, as there were two communications on record - one dated 28.09.2015, indicating that the total vacancies available for the recruitment years 2011-12 to 2013-14 were 469, and the other dated 10.05.2018, annexing therewith a letter of the Irrigation Department of the even date, disclosing 394 vacancies (255+66+73) upto the recruitment year 2013-14. On 05.06.2018, the Joint Secretary, State of U.P. addressed a letter to the Engineer-in-Chief and the Head of the Department, Irrigation and Water Resources, Lucknow seeking inputs in the light of the query made by the Commission on 31.05.2018.

8. The Chief Engineer, Karmik Establishment-II, Irrigation and Water Resources Department, U.P. by his letter dated 21.06.2018 informed that the total number of vacancies available for the post of Assistant Engineer (Civil) for the recruitment years 2011-12, 2012-13 and 2013-14 was 394 (255+66+73) and only these vacancies were required to be filled up. On 02.07.2018, the State Government, through its Joint Secretary, addressed a communication to the Commission, directing it to act in accordance with the letter dated 21.06.2018 while making selections for the post of Assistant Engineer (Civil) in the Irrigation Department.

9. The direction issued by the State to the Commission to make recommendation only against the posts falling vacant up to the year 2013-14 (394 vacancies), i.e. during the course of the recruitment year in which advertisement was issued, and not against future vacancies, led to filing of several appeals/writ petitions.

                  Category 'A' comprises of the Intra Court Appeals preferred by the writ petitioners/appellants whose writ petitions, questioning the letter dated 21.06.2018 issued by the Chief Engineer, Irrigation Department, State of U.P., whereby only 394 posts were recommended to be filled, stood dismissed.

                  Category 'B' comprises of the writ petitions questioning the said recommendation of the Chief Engineer dated 21.06.2018.

                  Category 'C' comprises of the writ petitions wherein challenge has been laid to the final result dated 03.05.2019.

                  Category 'D' comprises of the writ petitions seeking a direction to fill up all the posts advertised on 24.12.2013.

                  Category 'E' are the writ petitions wherein the challenge has been raised to the result dated 02.02.2019, limiting the declaration of result to vacancies upto the recruitment year 2013-14. Category 'F' are the writ petitions wherein the writ petitioners seek a direction to call them for interview.

10. During course of hearing on 14.08.2025, the following order was passed:-

                  "Heard Sri Ashok Khare, learned Senior Advocate assisted by Sri Umang Srivastava, learned counsel for the appellants, Sri Avneesh Tripathi, learned counsel for the respondent No.- 3, namely U.P. Public Service Commission and Sri Manish Goyal, learned Additional Advocate General assisted by Sri Kunal Ravi Singh, learned Chief Standing Counsel and Sri A.K. Goyal, learned Additional Chief Standing Counsel for the State respondents.

                  As prayed on behalf of State respondents and U.P. Public Service Commission, three weeks' time is granted to them to file exhaustive counter affidavits annexing therewith all the relevant communications including letters of the Commission dated 19th May, 2014 and 31st May, 2018 and the letters of State Government dated 5th June, 2018, 10th May, 2018 and 18th May, 2018 and serve a copy of the affidavits upon learned counsel for the appellants appearing in various cases.

                  Learned counsel for the appellants will have one week's time to file rejoinder affidavit.

                  List this matter on 18th September, 2025 at 2:00 pm."

11. In compliance to the said order, supplementary counter affidavit has been filed both by the State and Commission.

12. Learned counsel for the appellants/ writ petitioners chose not to file any reply to the supplementary counter affidavit filed by the State and the Commission and accordingly final arguments were heard. Written submissions were also filed by the rival parties.

ARGUMENTS OF APPELLANTS/ WRIT PETITIONERS

13. Shri Ashok Khare and Shri Uday Karan Saxena, Senior Advocates, assisted by Shri Umang Shrivastav and Shri Naveen Kumar Sharma, learned counsel for the appellants/writ petitioners, submitted that the judgment and order of the learned Single Judge rejecting the challenge to the decision of the Engineer-in-Chief, Karmik Establishment-II, dated 21-06-2018 is manifestly illegal and cannot be sustained. Elaborating the submission, it is urged that as per requisitions dated 06-07-2012 and 07-11-2013, a total of 640 (267+378) vacancies of Assistant Engineer (Civil) were advertised on 24-12-2013. Once the selection process had commenced, there could not have been reduction of the vacancies of Assistant Engineer (Civil) from 640, as advertised, to 394. It is further contended that though on 01.11.2017, the total vacancies of Assistant Engineer was shown to be 474, however, without any rationale or basis, the same stood further reduced to 394. The submission is that a conscious decision was taken by the State Government while sending the requisition for 640 vacancies, and the said decision could not have been reviewed.

14. Argument is that there is Government Order dated 09.07.2013 which provides that while sending requisition to the UPPSC, future vacancies of three recruitment years should also be included. It was in view of the said G.O. that requisition dated 07.11.2013 was sent, including future vacancies of the recruitment years 2014-15 and 2015-16 also. The Government is bound by the policy decision contained in the G.O.

15. Reliance has been placed on the Division Bench judgement in Service Bench No. 5195 of 2016 (Kreetarth Mohan vs. State Of U.P. and others), decided on 23.03.2018, to contend that the requisition dated 07.11.2013, which included the further vacancies of the years 2014-15 and 2015-16 as well, has already been upheld and the said Division Bench judgment was binding upon the learned Single Judge.

16. It is also contended that though Rule 3(l) of the State of Uttar Pradesh Service of Engineers (Irrigation Department Group 'B') Service Rules, 2007 defines 'year of recruitment' as a period of twelve months commencing on the first day of July of the calendar year and as per Rule 14, the appointing authority has to determine and intimate to the Commission the number of vacancies to be filled during the course of the year of recruitment, however, in view of the Government order dated 09.07.2013, as reiterated on 25.10.2019, the future vacancies which were to arise during the next three years were also to be included.

17. Additionally, it has been argued that it is not something foreign to service jurisprudence to include the anticipated vacancies which would arise in future as the same stands widely accepted and is already provided in Rule 8 of the UP Higher Judicial Service Rules, 1975. It has been contended that as per the counter affidavit of the Commission sworn by the Deputy Secretary, U.P. Public Service Commission, U.P. Lucknow dated 15.09.2014, the decision to limit the recruitment to vacancies upto the recruitment year 2013-14 was taken by a Committee constituted by the Public Service Commission at its own level. It does not have the approval of the State. The contention is that the Commission had no authority under law to reduce the vacancies which were advertised, it being only a recruiting agency. It is also contended that even though the writ petitioners do no possess any indefeasible right for appointment but that does not give license to the respondents to act arbitrarily and once it is estalished that the decision of the respondents to reduce the vacancies is without any rationale, then the Court should come to the rescue of the appellants/ writ petitioners. Further contention is that once the appellants/ writ petitioners got selected, then in view of Office-Memorandum dated 15.11.1999, they are to be given appointment/joining, the present case not being a case falling under the exceptions stipulated therein.

18. Lastly, it has been submitted that the writ petitioners/ appellants have been discriminated, particularly, when barring the post of Assistant Engineer (Civil) in Irrigation Department, there has been no reduction of the vacancies of Assistant Engineer in other departments which were advertised on 24.12.2013.

19. In order to buttress the said submissions, reliance has been placed upon the judgement in; (a) Malik Mazhar Sultan vs. U.P. Public Service Commission and others 2008(17)SCC 703; (b) Malik Mazhar Sultan vs. U.P. Public Service Commission 2009 (17) SCC 24; (c) State of Bihar vs. Secretariat Assistant successful Examinees Union 1986, 1994(1) SCC 126; (d) Neelima Shangla vs. State of Haryana, (1986) 4 SCC 268; (e) Vivek Kaisth vs. State Of Himanchal Pradesh and others 2024 (2) SCC 269 (f) Sankarshan Dass vs. Union Of India, 1991(3) SCC 47; (g) Manoj Kumar vs. Union Of India and others, 2024(3) SCC 563 (h) Vansh vs. Ministry Of Education and others, 2024 SSC OnLine SC 342 (i) Shmita Srivastava vs. State Of Madhya Pradesh and others, 2024 SCC OnLine SC 764; (j) Union Public Service Commission v. Gaurav Dwivedi and Others, 1999 5 SCC 180; (k) Renu and others vs. District and sessions judge, Tis hazari and another (2014) 14 SCC 50; (l) Tej Prakash Pathak and others vs. Rajasthan High court and others 2013 4 SCC 540; (m) Parth Das & Ors v. The State of Tripura & Ors 2025 0 Supreme (SC) 1273;

ARGUMENT ADVANCED ON BEHALF OF THE STATE

20. Shri Manish Goyal, learned Additional Advocate General assisted by Shri A.K. Goyal and Shri Chandan Kumar, learned Addl. Chief Standing Counsel has submitted that none of the contentions raised have any legs to stand. Submission is that the State being a model employer is to act within the four corners of law, within the ambit of the Rules. According to him, selection for the post of Assistant Engineer (Civil) stands regulated by 2007 Rules. Contention is that Rule 3(l) defines 'year of recruitment' which means a period of twelve months commencing on the first day of July of the calendar year and since the advertisement was published on 24-12-2013, thus, as per Rule 14 of the 2007 Rules, the selections could only be conducted for the vacancies up to the recruitment year 2013-14. The anticipated vacancies for the recruitment years 2014-15 and 2015-16 which had been mistakenly requisitioned were rightly excluded on basis of a conscious decision of the State Government dated 21-06-2018, communicated to the Commission on 02.07.2018.

21. Argument is that the reliance placed upon the Government Orders dated 09-07-2013 and 25-10-2019 is misconceived and out of context, particularly, when Government orders cannot amend, alter or supplant the statutory rules. He further submits that the Division Bench judgment in Kreetarth Mohan (supra) does not lay down any principle of law. The challenge raised against the inclusion of the future vacancy was negated mainly on the ground that the Government Order dated 09-07-2013 was not impugned in the writ petition.

22. In a nutshell, the submission is that in the absence of any challenge raised to the definition of the 'year of recruitment' under Rule 3 (l) and the provision relating to determination of the vacancies on the basis of the 'year of recruitment' as per Rule 14, the plea for inclusion of future vacancies has no merits.

23. It is also submitted on behalf of the State that it is the prerogative of the State, as an employer, to determine the number of vacancies, and to fill or not to fill whole of the vacancies advertised. Argument is also to the extent that the writ petitioners/ appellants do not possess any indefeasible right for being accorded appointment as even otherwise mere selection does not confer any vested right to be appointed. Reliance has been placed upon the judgments in (a) Ajith G. Das and others vs. State of Kerala and others 2024 SCC onLine Sc 3820; (b) Union of India vs. A. Shainamol (2021) 20 SCC 267; (c) Bihar State Electricity Board vs. Suresh Prasad and others, (2004) 2 SCC 681; (d) State of Haryana vs. Subash Chander Marwaha, (1974) 3 SCC 220; (e) Sant Ram Sharma vs. State Of Rajasthan and others, 1967 SCC OnLine SC 16; (f) A.B. Krishna and Ors. vs. State of Karnataka and Ors., (1998) 3 SCC 495; (g) Parth Das & Ors v. The State of Tripura & Ors, (2025) 0 Supreme (SC) 1273.

ARGUMENT ADVANCED ON BEHALF OF THE COMMISSION

24. Shri Avneesh Tripathi, who appears for the Commission, has adopted the arguments of Shri Manish Goyal, Additional Advocate General. He has nothing to add, except that the selections have been done as per the Rules governing the subject and the appellants/writ petitioners have no legal right to appointment. It is also contended that the Commission, being a recruiting agency, acts upon the directions of the State, which it had followed in the instant case.

                  RELEVANT STATUTORY PROVISIONS "

                  The Uttar Pradesh Service of Engineers (Irrigation Department) (Group 'B') Service Rule, 2007

                  Rule 3 (l) 'Year of recruitment' means a period of twelve months commencing on the first day of July of a calendar year.

                  4. Cadre of the Service.- (1) The strength of the Service and of each category of posts therein shall be such as may be determined by the Government from time to time.

                  (2) The strength of the Service and of each category of posts therein shall, until orders varying the same are passed under sub-rule (1), be as given in Appendix "A" Provided that-

                  (i) the appointing authority may leave unfilled or the Governor may hold in abeyance any vacant post, without thereby entitling any person to compensation; or

                  (ii) the Governor may create such additional permanent or temporary posts as he may consider proper.

                  5. Source of Recruitment.- Recruitment of the posts of Assistant Engineer (Civil or Mechanical) in the Service shall be so arranged that-

                  (1) 50 2/3 percent posts in the cadre are filled in by direct recruits selected through the Commission.

                  (2) 49 1/3 percent posts in the cadre are filled in by promotees through the Commission, which shall consist of-

                  (a) In Civil Branch-

                  (i) 47 1/3 percent shall be filled in from amongst substantively appointed Junior Engineers (Civil) who have completed seven years service as such on the first day of the year of recruitment.

                  (ii) One percent shall be filled in from amongst such substantively appointed Computers (Civil) who possess one of the qualifications mentioned in Appendix "B" or who possess Bachelor's degree in Civil Engineering from a recognised Institution or are Associate Members or the Institution of Engineers (India) (Civil Engineering Branch) and who have completed seven years service as such on the first day of the year of recruitment.

                  (iii) One percent shall be filled in from amongst such substantively appointed Research Supervisors who possess Bachelor's degree in Civil Engineering from a recognised institution or are Associate Members of the Institution of Engineers (India) (Civil Engineering Branch) and who have completed seven years service as such on the first day of the year of recruitment.

                  (b) In Mechanical Branch-

                  49 1/3 percent shall be filled in from amongst such substantively appointed Junior Engineers (Mechanical) who have completed seven years service as such on the first day of the year of recruitment:

                  Provided that the appointing authority may regulate the recruitment by promotion in any year of recruitment in such manner that the prescribed percentage for promotion is maintained.

                  Rule 14.- Determination of Vacancies-- The appointing authority shall determine and intimate to the Commission the number of vacancies to be filled during the course of the year of recruitment as also the number of vacancies to be reserved for candidates belonging to Scheduled Castes, Scheduled Tribes and other categories under rule 6. .

                  15. Procedure for direct recruitment.- (1) Applications for permission to appear in the competitive examination shall be invited by the Commission in the form published in the advertisement issued by the Commission.

                  (2) No candidate shall be admitted to the examination unless he holds a certificate for admission issued by the Commission.

                  (3) After the results of the written examination have been received and tabulated, the Commission shall, having regard to the need for securing due representation of the candidates belonging to Scheduled Castes, Scheduled Tribes and others under rule 6, summon for interview, such number of candidates as, on the result of the written examination, have come upto the standard fixed by the Commission in this respect. The marks awarded to each candidate at the interview shall be added to the marks obtained by him in the written examination.

                  (4) The Commission shall prepare a list of candidates in order of their proficiency, as disclosed by the aggregate of marks obtained by each candidate at the written examination and interview and recommend such number of candidates as they consider fit for appointment. If two or more candidates obtain equal marks in the aggregate, the name of the candidate obtaining higher marks in the written examination shall be placed higher in the list. If two or more candidates obtain equal marks in the written examination also then in such situation the names of the candidates shall be arranged in accordance with the general policy of the Commission. The Commission shall forward the list to the appointing authority."

                 

                 

                 

                 

                

               

                

                 

                

                 

                 

                

                

                 

                  IMAGE

               

                 

               

                                

                 

ANALYSIS

25. The selection to the post of Assistant Engineer is regulated by the 2007 Rules enacted in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India. These Rules were notified on 16.11.2007.

26. Rule 3(l) defines 'year of recruitment' which means a period of twelve months commencing on the first day of July of the calendar year.

27. Rule 4 provides for the cadre of service, according to which, the strength of service of each and every category of post shall be such as determined by the State from time to time. Clause (a) of the proviso to sub-rule (2) of Rule 4 gives powers to the appointing authority to leave unfilled or hold in abeyance any vacant post, without thereby entitling any person to compensation.

28. Rule 5 provides for source of recruitment i.e. 50 2/3 percent posts are to be filled in by direct recruitment and 49 1/3% posts through promotion.

29. Rule 14 deals with the determination of the vacancies, according to which, the appointing authority is to determine and intimate to the Commission the number of vacancies to be filled during the course of the year of recruitment. Rule 15 lays down the procedure for direct recruitment.

30. A plain reading of the Rules shows that the appointing authority is enjoined with the duty (i) to determine the number of vacancies and (ii) intimate to the Commission, the number of the vacancies to be filled during the course of the year of recruitment. The word employed in Rule 14, 'year of recruitment', marks significance, particularly, when the same stands defined under Rule 3(l) as a period of twelve months commencing on the first day of July of a calendar year. Meaning thereby, that the determination of the vacancies is to be made on the basis of year of recruitment i.e. twelve months commencing on the first day of July of the calendar year. Earlier, the service of Engineers of the Irrigation Department (Group 'B') was regulated by the Uttar Pradesh Service of Engineers (Irrigation Department) (Group ‘B’) Service Rules, 1993. Under Rule 3(j) of the said Rules, 'year of recruitment' was defined in a similar manner. Under Rule 14 of the said Rules also, there was provision for determination of the vacancies to be filled up and for intimation of the same to the Commission. Rule 14 of the earlier Rules was as follows:

                  "14. Date of Determination of Vacancies.— The appointing authority shall determine and intimate to the Commission the number of vacancies to be filled during the course of the year as also the number of vacancies to be reserved for a candidate belonging to Scheduled Castes, Scheduled Tribes and other categories under Rule 6." (emphasis supplied)

31. It is noteworthy that earlier the phrase ‘year of recruitment’ was not used in Rule 14 but only the word ‘year’. In Rule 14 of the present Rules, 2007, there is a clear departure in the language used. Now, the phrase ‘year of recruitment’ has been employed. It clearly evinces that determination of vacancies has direct co-relation with the vacancies occurring during the course of the year of recruitment and which alone would be intimated to the Commission for being filled.

32. The advertisement was issued on 24.12.2013, therefore, bearing in mind the rule in question, 'the year of recruitment' was the period between 01st July, 2013 and 30th June 2014 i.e. recruitment year 2013- 14. Thus the vacancies till the recruitment year 2013-14 only could have been advertised. However, the requisition dated 07.11.2013 sent by the State to the Commission was not only for the vacancies upto the recruitment year 2013-14 but also included the future vacancies of the recruitment years 2014-15 and 2015-16, which apparently was not in consonance with the Rules.

33. This leads us to contention made on behalf of the candidates that the requisition dated 07.11.2013 sent by the State including therein the future vacancies of 2014-15 and 2015-16 was in terms of the Government Order dated 09.07.2013, reiterated by Government Order dated 25.10.2019. The contention is that Rule 14 only makes provision for annual determination of vacancies. It does not whittle down the authority of the State Government to issue executive instructions to include future vacancies also while making any recruitment.

34. The interplay between the statutory rules/regulations having statutory force and Government Orders referable to the power under Article 166(1) of the Constitution of India has been subject matter of consideration by the Supreme Court in many cases. In Sant Ram Sharma, it has been observed as follows:

                  "7. We proceed to consider the next contention of Mr N.C. Chatterjee that in the absence of any statutory rules governing promotions to selection grade posts the Government cannot issue administrative instructions and such administrative instructions cannot impose any restrictions not found in the Rules already framed. We are unable to accept this argument as correct. It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. It is true that Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed."

35. Hon’ble Apex Court in A.B. Krishna and Ors. (supra), observed as under:

                  "8. The Fire Services under the State Government were created and established under the Fire Force Act, 1964 made by the State Legislature. It was in exercise of the power conferred under Section 39 of the Act that the State Government made Service Rules regulating the conditions of the Fire Services. Since the Fire Services had been specially established under an Act of the legislature and the Government, in pursuance of the power conferred upon it under that Act, has already made Service Rules, any amendment in the Karnataka Civil Services (General Recruitment) Rules, 1977 would not affect the special provisions Validly made for the Fire Services. As a matter of fact, under the scheme of Article 309 of the Constitution, once a legislature intervenes to enact a law regulating the conditions of service, the power of the Executive, including the President or the Governor, as the case may be, is totally displaced on the principle of "doctrine of occupied field". If, however, any matter is not touched by that enactment, it will be competent for the Executive to either issue executive instructions or to make a rule under Article 309 in respect of that matter."

36. In Jaiveer Singh and Ors. vs. State of Uttarakhand and Ors., 2023 SCC OnLine SC 1584, 2023 INSC 1024, Hon’ble Apex Court observed as follows:

                  "49. It can thus be seen that it is a trite law that the Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point, it can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. It is a settled proposition of law that an authority cannot issue orders/office memorandum/executive instructions in contravention of the statutory rules. However, instructions can be issued only to supplement the statutory rules but not to supplant it."

37. In Bank of Baroda and Another vs. G. Palani and Others, (2022) 5 SCC 612, following was observed:-

                  "14. First we come to the rigour of the regulations, The regulations have statutory force, having framed in exercise of the powers under section 19(2) (1) of the 1970 Act and are binding. They could not have been supplanted by any executive fiat, order or joint note, which has no statutory basis. The joint note of the officers also had no statutory force behind it and could not have obliterated any of the provisions of 1970 act or the existing regulations. Thus, joint notes could not have taken away the rights that were available under the 1995 pension regulations to the officer."

38. Recently, the aforesaid law came to be reiterated in Parth Das & Ors (supra), wherein the following was observed:

                  "40. Applying the above principles of law, it can safely be concluded that executive instructions issued under Article 166(1) of the Constitution of India cannot override the act done under the statute and the rules made thereunder. The executive instructions can only supplement the provisions of the act and the rules in case of any ambiguity or if gaps are to be filled but such executive instructions cannot supplant the specific provisions which already occupy the field. It is not the case of the government that to fill the gaps and to supplement the TSR Act and TSR Rules, the NRP is relevant, therefore, Abeyance Memorandum or Cancellation Memorandum may be upheld. In absence of the same, in our view, the action of the government in cancelling the process of recruitment for the post of Enrolled Followers is not justified and would amount to arbitrary exercise of power."

39. The Rules 2007 have been framed under the proviso to Article 309 of the Constitution. The Rules makes specific provision for determination and intimation to the Commission the number of vacancies to be filled during the course of the year of recruitment. The field is already occupied. Consequently, the G.O. dated 09.02.2013 and 25.10.2019, which are general in nature, cannot be applied to the recruitment in question, in view of the principles laid down by the Apex Court in the above noted judgments. The executive instructions cannot supplant the Rules framed under proviso to Article 309 of the Constitution.

40. In the matter of Public employment, the provisions of Article 14 and 16 of the Constitution would come into play. Article 16 of the Constitution grants equality in the matter of opportunity to employment in the public office. It is trite that the eligibility of a candidate is to be considered for appointment with reference to the last date of making of application for recruitment. If the submission in support of inclusion of the future vacancies of year 2014-15 and 2015-16 is accepted, the effect would be that the candidates who would have acquired eligibility for appointment to the vacancies arising in the year 2014-15 and 2015-16 would stand excluded even from the zone of consideration, as on the last date of making application pursuant to the advertisement dated 24.12.2013 they may be found lacking of the eligibility. Such candidates had the legitimate expectation to participation and consideration for appointment against the vacancies occurring during the course of the recruitment year in which they acquire the eligibility. This is also the objective of Rule 14 read with the definition clause of the 'year of recruitment'. It ultimately results in according equal opportunity to the eligible section to public employment.

41. Supplementary affidavit filed by the State discloses the justification for the reduction of the vacancies of Assistant Engineer (Civil) from 640 to 394. Admittedly, the total sanctioned posts of Assistant Engineer (Civil) in Irrigation Department was 1588, out of which, 804 posts were for direct recruits and 784 for promotees. The total number of vacancies advertised on 24.12.2013 of Assistant Engineer (Civil) is 640 vide two requisitions; (a) dated 06.07.2012 for recruitment year 2011-12 (262 posts) and (b) dated 07.11.2013 for the recruitment years 2012-13, 2013-14, 2014-15 and 2015-16 (121+ 86+79+ 92 = 378).

42. According to the State, there was error in calculation of the vacancies, while sending the requisitions. The errors were on two counts. The first one was in respect of the calculation of the posts already occupied by the direct recruits. According to the stand taken in the supplementary counter affidavit, out of 804 posts reserved for direct recruits, 330 posts were already occupied, leaving only 474 vacant posts. This mistake was brought to the notice of the State Government by the Chief Engineer Karmik (E-2), Irrigation and Water Resources Department, U.P. through his report dated 01.11.2017. The State Government, by its letter dated 14.11.2017, directed the UPPSC to make recruitment only for 474 posts, as against the requisition made to it.

43. The second error was in respect of wrongful inclusion of vacancies of the future years. It was corrected by the State by its letter dated 02.07.2018, to the Commission. It was a conscious decision of the State Government, taken on basis of various interdepartmental communications dated (i) 31.05.2018 by Commission to the State Government (ii) 05.06.2018 by State Government to the Department (iii) 21.06.2018 by Chief Engineer Karmik (E-2) to the State Government, and (iv) 02.07.2018 by State Government to the Commission (details stated in Paragraphs 7 & 8).

44. As a result, there was a further reduction of 80 vacancies pertaining to the recruitment years 2014-15, 2015-16 and 2016-17 (51+09+20). At this stage, it is also relevant to note that after the recruitment in question, two more recruitment exercises have been held in respect of the vacancies of subsequent years.

45. The entire basis of the determination of the vacancies hinges upon the facts and the figures exhibited by the State in the supplementary counter affidavit, however, in absence of any rebuttal to the same, this Court has no option but to accept the said facts and figures as correct.

46. Moreover, the advertisement itself stipulates that the number of the vacancies can be increased or decreased. The error in calculation of vacancies can definitely be corrected under the said clause.

47. Significantly, the mistake was corrected much before declaration of the final result. There is no allegation of any malice in facts or law and it was always open for the State to rectify the mistake which was committed while wrongly determining the vacancies.

48. Obviously, there cannot be any change in the eligibility criteria, once the selection process has started, but the said legal proposition cannot be pressed in service, where the determination of the vacancies is erroneous. Therefore, reliance placed upon Tej Prakash Pathak (supra) is out of context as in the said case, the eligibility criteria came to be changed in the midst of the recruitment process.

49. Likewise, Parth Das & Ors (supra) although holds that the rules of the game cannot be changed after the game has begun but that was for upholding the sanctity of the statutory rules over executive instructions. The appellants therein had participated in the process of selection held as per the statutory rules but at the stage of character verification, the selection process was kept in abeyance and later cancelled on the basis of the New Recruitment Policy. The same was found contrary to the field already occupied by the Rules and therefore, the decision to cancel the recruitment on basis thereof was held to be illegal.

50. The determination of the vacancies and the requisition for employment is the prerogative of the State and the Courts of law generally do not interfere in their decision until and unless the same is found to be ex-facie illegal or arbitrary. In Ajith G. Das and others (Supra), the Supreme Court observed as under:

                  "The primary role of the KPSC is to aid and facilitate the selection process. It functions as an autonomous body within the framework laid down by the Constitution of India, ensuring transparency and merit-based recruitment. However, its autonomy is confined to the Conduct of the selection process. Determination of the number of vacancies and the requisition for employees remain the prerogative of the State Government, which is the employer. This fundamental distinction was overlooked by the High Court, leading to an erroneous Interpretation of the KPSC's authority."

51. Certainly, mere participation in a selection process or placement in the select list would not create indefeasible right for appointment, the only exception being where the action is found to be arbitrary. What is arbitrary depends upon the facts and the circumstances of the individual case. No strict jacket formula can be applied.

52. The State has been successful in disclosing the logic and rationale behind reduction of the vacancies from the one originally advertised. Consequently, the submission advanced against the action of the State and the Commission in not filling up all the vacancies advertised does not merit acceptance.

53. In A.P. Christians Medical Educational Society Vs. Government of Andhra Pradesh and another (1986) 2 SCC 667, it was observed as under :-

                  "We cannot by our fiat direct the University to disobey the statute to which it owes its existence and the regulations made by the University itself. We cannot imagine anything more destructive of the rule of law than a direction by the court to disobey the laws."

54. The allegation of the discrimination on the count that barring the Assistant Engineer (Civil) there has been no proportionate reduction of vacancies in other departments is also not worthy of acceptance, inasmuch as, law does not contemplate doctrine of negative equality. In State of Bihar and others vs. Kameshwar Prasad Singh and another , (2000) 9 SCC 94, the following was observed:-

                  “30. The concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individu-als, others cannot claim the same illegality or irregularity on the ground of denial thereof to them. Similarly wrong judgment passed in favour of one individual does not entitle others to claim similar benefits. In this regard this Court in Gursharan Singh v. New Delhi Municipal Committee (1996) 2 SCC 459 held that citizens have assumed wrong notions regarding the scope of Article 14 of the Constitution which guarantees equality before law to all citizens. Benefits extended to some persons in an irregular or illegal manner cannot be claimed by a citizen on the plea of equality as enshrined in Article 14 of the Constitution by way of writ petition filed in the High Court. The Court observed:

                  "Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an il-legal order for extending similar benefits to others. Before a claim based on equality clause is up-held, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination."

                  Again in Secy., Jaipur Development Authority v. Daulat Mal Jain (1997) 1 SCC 35, this Court considered the scope of Article 14 of the Constitution and reiterated its earlier position regarding the concept of equality holding:

                  "Suffice it to hold that the illegal allotment founded upon ultra vires and illegal policy of allot-ment made to some other persons wrongly, would not form a legal premise to ensure it to the respondent or to repeat or perpetuate such illegal order, nor could it be legalised. In other words, judicial process cannot be abused to perpetuate the illegalities. Thus considered, we hold that the High Court was clearly in error in directing the appellants to allot the land to the respondents."

                  31. In State of Haryana v. Ram Kumar Mann (1997) 3 SCC 321 this Court observed:

                  "The doctrine of discrimination is founded upon existence of an enforceable right. He was discriminated and denied equality as some similarly situated persons had been given the same relief. Article 14 would apply only when invidious discrimination is meted out to equals and similarly circumstanced without any rational basis or relationship in that behalf. The respondent has no right, whatsoever and cannot be given the relief wrongly given to them, i.e, benefit of withdrawal of resignation. The High Court was wholly wrong in reaching the conclusion that there was invidious discrimination. If we cannot allow a wrong to perpetrate, an employee, after committing misappropriation of money, is dismissed from service and subsequently that order is withdrawn and he is reinstated into the service. Can a similarly circumstanced person claim equality under Section 14 for reinstatement? The answer is obviously 'No'. In a converse case, in the first in-stance, one may be wrong but the wrong order cannot be the foundation for claiming equality for enforcement of the same order. As stated earlier, his right must be founded upon enforceable right to entitle him to the equality treatment for enforcement thereof. A wrong decision by the Government does not give a right to enforce the wrong order and claim parity or equality. Two wrongs can never make a right.”

55. In Kreetarth Mohan (supra), the requisition dated 07.11.2013 was under challenge which included the future vacancies for the recruitment years 2014-15 and 2015-16. Division Bench negated the challenge on the ground that the Government Order dated 09.07.2013 providing for inclusion of anticipated vacancies was not impugned. Neither the statutory rules were interpreted nor any legal principle was laid down. The relevant observations from the said judgment are as under:

                  "(15) The petitioner in the instant writ petition has assailed the the letter dated 7.11.2013 sent by the Secretary, Irrigation Department to the U.P. Public Service Commission. informing the vacancy of the post of Assistant Engineer (Civil) in Engineering Cadre for selection relating to the selection years 2013-2014, 2014-2015 and 2015-2016. It appears that the said requisition was sent to the Commission in compliance of the directions issued vide Government Order dated 9th July, 2013, which, in our opinion, is a consequential act, which cannot be said to be unjustified or reasonable. (16) Surprisingly, the petitioner has not challenged the Government Order dated 9th July, 2013 knowing well that the requisition for three selection years has been sent in compliance of the said Government Order. The intention behind sending requisition after calculation of vacancies going to fell vacant is that the considerable long time is consumed in completing the selection process and not filling up of the vacancies in time results causes State work to suffer, which ultimately affects the public at large."

56. The learned Single Judge took notice of the Division Bench judgment and proceeded to decide the case after considering the statutory provisions which are governing the field. In our opinion, the view taken by the learned Single Judge is premised upon the statutory framework as well as the precedents on the said subject.

57. In Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd. (2003) 2 SCC 111, Hon'ble Supreme Court in para 59 held as under.-

                  "59. A decision, as is well known, is an authority for which it is decided and not what can logically be deduced therefrom. It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. [See Ram Rakhi v. Union of India, Delhi Admn. (NCT of Delhi) v. Manohar Lal, Haryana Financial Corpn. v. Jagdamba Oil Mills and Nalini Mahajan (Dr) v. Director of Income Tax (Investigation).]"

58. The said decision came to be followed in the case of Escorts Ltd. v. Commissioner of Central Excise, Delhi-II, (2004) 8 SCC 335, the following was observed.-

                  "8. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are neither to be read as Euclid's theorems nor as provisions of a statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton (AC at p. 761), Lord MacDermott observed: (All ER p. 14 C-D)

                  "The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge….

                  10. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper."

59. In Bharat Petroleum Corporation Ltd. And another vs N.R. Vairamani And Another 2004 (8) SCC 579, a note of caution was flagged that the Courts should not place reliance on the decisions without discussing as to how the factual situation fits in with the situation of the decision on which reliance is placed. It was held as under.-

                  "9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are neither to be read as Euclid's theorems nor as provisions of a statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton (AC at p. 761) Lord MacDermott observed: (All ER p. 14 C-D).

                  "The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge,..." 60. The aforesaid principles of law came to be referred to in the case of State of Orissa Vs. MD. Illiyas 2006 (1) SCC 275 and Mavilayi Service Cooperative Bank Ltd. & Others Vs. Commissioner of Income Tax, Calicut & another 2001 (7) SCC 90.

61. Now referring to the precedents relied on behalf of the appellants/ writ petitioners, the Court finds that Malik Mazhar Sultan (supra) has no application since the Rule 8 of the U.P. Higher Judicial Service Rules, 1975 provided for taking into account anticipated vacancies of the next two years. However, under the 2007 Rules, the position is quite different. Thus, the said analogy cannot be applied. The same is the position with Vivek Kaisth (supra) also, as it in fact followed Malik Mazhar Sultan (supra).

62. Manoj Kumar (supra), Vansh (supra), Shmita Srivastava (supra) are those cases wherein the Apex Court had discussed the injurious consequences arising out of arbitrary and illegal administrative action and had resorted to apply compensation/ restitution theory. However, the said judgments have no application as here the action of the State is neither arbitrary nor illegal.

CONCLUSION

63. In view of the foregoing discussion, the legal corollary would be that the judgment in the case of Kreetarth Mohan (supra) upholding the requisition dated 07.11.2013 including the future vacancies for the recruitment years 2014-15 and 2015-16 does not lay down any ratio or principle of law. Conversely, the judgments of the learned Single Judge in Satya Prakash Yadav (supra), Israr Ahmad (supra) and Kamal Kumar Pandey (supra) holding that in view of Rule 3(l) and Rule 14 of the 2007 Rules, the vacancies till the recruitment year 2013-14 only could have been filled, lay down the correct law. Accordingly, the exclusion of the vacancies of the future recruitment years is not found to suffer from any illegality.

64. Accordingly, the present appeals/writ petitions, being devoid of merits, are liable to be dismissed.

65. Resultantly, dismissed.