ORDER
Narayan Roy, J.
1. Heard Counsel for the parties.
2. By this writ application, the petitioners have prayed for issuance of a direction upon the respondents to consider their case for appointment to the post of Teachers (Home Science) in different secondary schools of the State of Bihar for which they have been selected by respondent No. 4, Vidyalaya Seva Board (hereinafter referred to as “the Board”) in the recruitment test conducted pursuant to Advertisement No. 2/91 dated 1-1-1991.
3. It is submitted by learned Counsel for the petitioners that the petitioners were selected for appointment to the post of Teachers (Home Science) in different nationalised secondary schools by the Board and their names were shown in the panel as successful candidates. It is further submitted that respondent No. 4 recommended the case of the petitioners and other successful candidates for appointment to the post of Teachers (Home Science) but somehow or the other, the matter is being delayed by the appointing authority with oblique purpose to accommodate teachers of primary schools and clerks of secondary schools against existing vacancies of Teachers (Home Science). It is also submitted by learned Counsel for the petitioners that Advertisement No. 2/91 was issued for filling up the posts of Teachers (Home Science) in different secondary schools of the State of Bihar by direct recruits and when the petitioners and other successful candidates were selected by respondent No. 4, Board, and their case was recommended for appointment, in no way this opportunity could have been denied to the petitioners and others. Learned Counsel for the petitioners further submitted that when the matter of appointment was being delayed, some of the successful candidates approached this Court by filing writ applications being CW.J.C. Nos. 11393 and 12016 of 1998. this Court vide order dated 13-1-2000 passed in CW.J.C. No. 11393 of 1998 directed the Board for issuance of formal orders of appointment in favour of the successful candidates whose names were within the zone of consideration and who were parties to these writ applications and even though no appointment letters were issued. this Court again by order dated 25-1-2000 directed for personal appearance of respondent No. 3. respondent No. 3, however, appeared before this Court on 27-1-2000 and gave an undertaking to this Court that formal order of appointment in respect of others will be issued within a fortnight. However, the undertaking given by respondent No. 3 has not been carried out and therefore, this writ application has been filed. Relevant orders passed by this Court have been brought on record and marked Annexures 3, 4, 5, 6, 7 and 8. Learned Counsel lastly submitted that in any view of the matter, the petitioners, who are in the select list and within the zone of appointment, are entitled for appointment to the post of Teachers (Home Science) and this opportunity could not have been denied to them by the authorities despite several directions issued by this Court, as referred to above.
4. A counter affidavit has been filed on behalf of the Director, Secondary Education, Government of Bihar, Patna (respondent No. 3). In the counter affidavit, precisely, it is stated that out of 231 sanctioned strength of Teachers (Home Science), 162 posts are meant for the direct recruitment and according to Reservation Rules, 1993 against 162 posts available for direct recruitment, roster clearance of 160 posts has already been made earlier. It is further stated in the counter affidavit that according to the reports submitted by the Field Officers, 102 vacancies are there in the subject of Home Science out of which 69 vacancies are reserved for the teachers of the Primary and Middle schools and the clerks of the nationalised secondary schools and rest 33 vacancies are meant for direct recruits whereas backlogs of different reserved categories are 36 and from this, five have been declared general as per economically backward classes and, therefore, 31 vacancies are reserved for different reserved categories and only seven posts are available for direct recruitment.
5. The analogy which has been given in the counter affidavit filed by respondent No. 3 is not understandable at the face of the undertaking given by respondent No. 3 in this Court showing that formal order of appointment in respect of the other teachers will be issued within a fortnight. The questions which are being canvassed countering the claim of the petitioners were also available to the respondents at different stages in this Court in the writ applications as referred to above. However, this Court directed for issuance of appointment letters to the successful candidates as per undertaking given by respondent No. 3, but somehow or the other formal letters of appointment have not been issued to the successful candidates including the petitioners. At the same time, it is also not understandable as to whether the vacancies available for direct recruitment can be filled up by the teachers of primary schools without following the procedures prescribed for appointment. The advertisement in question was meant for direct recruits only and the posts as advertised were to be filled up from amongst the successful candidates who were in the select list and in no way, the authorities could have taken a decision to fill up the posts also by the teachers of primary schools and clerks of the nationalised secondary schools.
6. From the pleadings of the parties, it appears that the petitioners were in the select list and were within the zone of appointment and specially when an undertaking was given to this Court by the Director, Secondary Education respondent No. 3, appointment of the petitioners and other similarly situated successful candidates could not have been withheld.
7. It is settled that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, it would not be correct to say that successful candidates acquire a indefeasible right to be appointed which cannot be legitimately denied. Ordinarily, the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection, they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons and if the vacancies or any of them are filled up, the State is bound to respect comparative merit of the candidates as reflected in the recruitment test and no discrimination can be permitted. In this connection, reference may be made to the decision of the Constitutional Bench of the Apex Court in the case of Shankarsan Dash v. Union of India .
8. In the case at hand it appears that the decision of the State not to fill up the vacancies does not appear to be bona fide nor appropriate reasons have been shown for the same and, therefore, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test and thus, the State cannot be allowed to discriminate in the matter. The posts which were advertised were to be filled up by direct recruits and the plea of the State now that some of the posts will be filled up by the existing posts of primary teachers and clerks of the nationalised secondary schools is wholly untenable. The stand of the State has to be tested on the touchstone of reasonableness. Since the posts were advertised to be filled up by direct recruits, no exceptional circumstance existed nor there was any emergent situation for the State to deviate from the principle of limiting the number of appointments so advertised. The action of the State authority, in this view of the matter, must be held to be arbitrary, unreasonable and discriminatory.
9. In the case of Surinder Singh v. State of Punjab A.I.R. 1998 SC 18, the apex Court while testing such stand of the State authorities, held as under:
Keeping the above principles in view, if we analyse the facts and circumstances of the present case, we find that no exceptional circumstance existed or there was any emergent situation for the State to deviate from the principle of limiting the number of appointments so advertised. In our view, the High Court was right in setting aside the appointments of teachers over and above those advertised. The State accepted the judgment of the High Court and did not come up in appeal in this Court, However, to get over the situation created because of the fact that more vacancies of teachers were noticed during the period of interview, it appointed candidates more than the number of posts advertised on ad hoc basis and continued them as such till fresh process of selection was gone into, Admittedly, the process is on and in various writ petitions the High Court has been issuing directions from time to time extending the ad hoc appointments and in the meanwhile to complete the process of fresh selection. As noticed above, Selection of 10,000 more candidates for appointment to various categories of teachers has already been completed and selection process of about 22,000 more such teachers has either been completed by now or under completion We do not think at this stage that we should interfere in the matter and set the clock back particularly when we find no ground to invalidate the impugned judgment of the High Court. In the present appeals, there is no appellant who can claim to fall within the first 2461 posts for which advertisement was issued.
From the pleadings of the parties, it would be manifest that the State authorities had no exceptional circumstance or any emergent situation to deviate from the principle of limiting the number of appointment so advertised.
10. For the reasons and discussions aforesaid, therefore, this application is allowed and respondents-authorities are directed to consider the case of the petitioners for appointment to the post of Teachers (Home Science) in different secondary schools of the State of Bihar for which they have been selected by respondent No. 4, Board, and their names have been found in the select list pursuant to Advertisement No. 2/91. This exercise, however, must be completed within a period of six weeks from the date of receipt/production of a copy of this order. There will no be no order as to costs.