JUDGMENT Hon’ble Arun Tandon, J.—Heard Sri S.M. Iqbal Hasan, learned counsel for the petitioner, Sri Vimal Chandra Mishra, learned counsel for respondent Nos. 2 and 5 and Standing Counsel for the State-respondents. 2. Director of Education (Higher), U.P. at Allahabad published an advertisement in newspaper ‘Rastriya Sahara’ dated 7/16th September, 1995 inviting applications for appointment on the post of Junior Clerk/Typist under a special drive for recruitment of Scheduled Castes and Other Backward Class Category candidates. The advertisement provided that six posts within the reserved category of Schedule Castes and three posts within the reserved category of Other Backward Class were available in the Directorate. Besides other qualification mentioned for making the application qua the post of Junior Clerk/Typist, it was provided that candidate must have a speed of 30 words per minute. Petitioner, who claims to be possessed of the prescribed minimum qualification made an application in response to the advertisement along with other candidates. The applicants were invited to participate in the typing test, which took place on 4th December, 1995 in Government Public Library, Allahabad. Call letter specifically mentioned that the typing test was to take place in the language of Hindi. According to the petitioner, State-respondents contrary to the Call Letter required her to appear in English Typing Test also. According to the petitioner list of successful candidates, who achieved the requisite speed was displayed on the notice board of the Directorate and her name was at serial No. 1. Petitioner was issued a second call letter dated 13th February, 1996 requiring the petitioner to appear in the interview on 27th February, 1996. The letter specifically mentioned that such interview is being held after typing test. The respondents did not declare the final result till July, 1996. However, on an enquiry being made by the petitioner, she came to know that as against three advertised vacancy within the reserved category of Other Backward Class, six persons have been offered appointment. According to the petitioner all the selected candidates were either relatives of the employees working in the department or were earlier appointed on ad hoc basis in the Directorate. Details of the relationship of the selected candidates have been mentioned in Paragraphs-21 to 26 of the writ petition. Petitioner feeling aggrieved by the aforesaid filed the present writ petition as early as on 4th September, 1996. Details of the relationship of the selected candidates have been mentioned in Paragraphs-21 to 26 of the writ petition. Petitioner feeling aggrieved by the aforesaid filed the present writ petition as early as on 4th September, 1996. The Writ Court while entertaining the present writ petition passed an order dated 6th September, 1996 requiring the learned Standing Counsel, who represented the respondent Nos. 1 and 2, namely, Director and Deputy Director of Education (Higher), U.P. to file counter-affidavit. Petitioner was permitted to serve private respondents, who had been offered appointment in pursuance to the selection held personally outside the Court. Appearance on behalf of selected candidates-private respondents has been put in by Sri V.K. Singh, Sri Shailendra and Bhupendra Nath Singh, Advocates. 3. After exchange of counter and rejoinder affidavits, on 16th July, 2009 this Court passed an order requiring the Director of Education (Higher) to produce all the original records pertaining to the selections including the select list, if any, prepared. Before this Court only list of candidates was produced, which records the speed achieved by the candidates during typing test, the quality point marks awarded in respect of academic qualification and the interview marks. The list bears signatures of four persons (while at the bottom of the list five names have been typed) said to be the members of the Selection Committee. Against the names of selected candidates i.e. the respondents Nos. 3 to 8, figures I to IV and VI to VII have been mentioned. 4. On examination of the list, this Court found that there is large scale overwriting, which has not been initialled, the original typing sheets/interview sheets on the basis whereof marks were awarded, were not produced before the Court. 5. The Court on 4th August, 2009, required the Director of Education to file an affidavit categorically disclosing as to why original typing sheets as well as interview sheets, as also the merit list prepared, if any, have not been produced. The Director of Education on 12th August, 2009 filed an affidavit before this Court and in paragraphs 8 and 9 it has been stated as follows : “8. That so far as second query is concerned, it is most humbly submitted that since large number of candidates appeared in typing test and most of them got less than 20 marks, therefore, they were rejected and hence not called for interview. That so far as second query is concerned, it is most humbly submitted that since large number of candidates appeared in typing test and most of them got less than 20 marks, therefore, they were rejected and hence not called for interview. Only those candidates who obtained 20 or more marks in typing test were called for interview and their names have been included and shown in the impugned result sheets. 9. That in reply to the third query, it is most respectfully submitted that the deponent has directed his officials and employees to trace the typing test sheets, used in typing test from the record room but despite of all efforts, the same could not be traced out. The photocopies of official’s letters dated 28th July, 2009 and 7th August, 2009 directing the concerned employees to trace the typing test sheets are being annexed herewith and marked as annexure No. 1 and 2.” 6. The Court in its order dated 12th August, 2009 recorded reasons for requiring the Director of Education (Higher) to ensure production of typing test sheets and to explain as to why the records are not traceable specifically when the present writ petition is pending before this Court since 1996. Further affidavit was filed by the Director of Education, which was not to the satisfaction of the Court. The Court vide order dated 20th August, 2009 required the Secretary, Higher Education, U.P. Govt. Lucknow to visit the office of the Director of Education (Higher) at Allahabad and to see that the records asked for are produced before this Court. It was also noticed by the Court that although under advertisement, minimum speed of typing test was 30 words per minute, yet large number of candidates with a speed of 20 words per minute only were invited for interview. The Director of Education was called upon to explain. The Court also required the Secretary to ensure that a First Information Report is lodged, if the official records have been lost. 7. The Secretary filed an affidavit on 2nd September, 2009 and stated that he visited the office of the Director of Education, Allahabad on 24th August, 2009, despite best efforts, the typing test sheets and other records of selection could not be traced. In the said affidavit filed by Secretary, in paragraph 6 it has been stated that one Dr. 7. The Secretary filed an affidavit on 2nd September, 2009 and stated that he visited the office of the Director of Education, Allahabad on 24th August, 2009, despite best efforts, the typing test sheets and other records of selection could not be traced. In the said affidavit filed by Secretary, in paragraph 6 it has been stated that one Dr. Hari Ram, who was in-charge of the establishment Section and one Ram Deo Kushwaha, Senior Assistant in the Establishment Section were responsible for maintaining the records of the said selection. It was also stated that the son of Sri Ram Deo Kushwaha also participated in the selection and infact has been selected, who is respondent No. 7 in the writ petition, namely, Sant Ram Kushwaha. It was stated that Dr. Hari Ram has since expired. The Secretary disclosed that a First Information Report against Ram Deo Kushwaha has been lodged. 8. The aforesaid facts have been recorded by this Court for demonstrating the manner in which official records pertaining to the selection have been maintained in the office of Director of Higher Education. The situation is highly unsatisfactory. The loss of records appears to be deliberate and reasons for the same are also obvious. It appears that in order to protect the illegal selections, the original records have been deliberately removed from the office so that the Court may not be able to examine the same and may not adjudge the fairness of the selection of respondent Nos. 3 to 8. 9. This Court at this stage records that such practice of removing the original records of selection, when the same is subject matter of challenge in a pending writ petition, has to be dealt with firm hand and therefore, the Court directs that the Secretary, Higher Education, U.P. Govt. Lucknow shall monitor the progress of investigation in terms of the First Information Report, which has been lodged and shall ensure that proper investigation is carried out by the Police and guilty is brought to book, as expeditiously as possible. Now on merits : 10. On examination of the list of candidates referred to above produced, this Court finds that the name of Mehadi Hasan, respondent No. 6, is at serial No. 10, he has obtained 129 marks, in last column i.e. Column 10, Roman Figure II is recorded. Now on merits : 10. On examination of the list of candidates referred to above produced, this Court finds that the name of Mehadi Hasan, respondent No. 6, is at serial No. 10, he has obtained 129 marks, in last column i.e. Column 10, Roman Figure II is recorded. Name of Pramod Kumar Yadav, respondent No. 8, is at serial No. 14, he has obtained 127.40 marks, in column 10, Roman Figure III is recorded. Name of Ramesh Kumar/Chand Kushwaha, respondent No. 3 is at serial No. 18, he has obtained 121.60 marks, in column 10, Roman Figure VI is recorded. Name of Rajesh Kumar Yadav, respondent No. 4, is at serial No. 44, he has obtained 132.20 marks, in column 10, Roman Figure I is recorded. Name of Mohd. Mehboob, respondent No. 5, is at serial No. 161, he has obtained 125.4 marks, in column 10, Roman Figure IV is recorded. Name of Sant Lal/Ram Kushwaha respondent No. 7 is at serial No. 166, he has obtained 121.3 marks, in column 10, Roman Figure VII is recorded. 11. The tabulation sheet bears the date as 29th February, 1996, while from the call letter issued to the petitioner it is apparently clear that interview was fixed and held on 27th February, 1996. Therefore, the Court has reasons to record that said tabulation chart has been prepared subsequent to the interview, correspondingly, interview marks must have necessarily been recorded by the Members of the Selection Committee separately. Such records qua the interview marks awarded by the selection committee have also not been produced before this Court. 12. It is clear from the tabulation chart that one Pappu Ram Patel, serial No. 136 had obtained 125.2 marks, in column 10, Roman Figure V is recorded. However, he has not been offered appointment, while persons, who had secured lesser marks in the selection, namely, Ramesh Kumar (121.6 marks) and Sant Lal (121.3 marks) had been appointed. 13. Learned Standing Counsel has explained the said discrepancy by referring to a letter dated 27th December, 2002, which according to him is on record and it mentions that since character of Pappu Ram Patel was doubtful, he has not been offered appointment. 14. Absolutely no materials have been produced before this Court, on the basis whereof such conclusion is sought to have been arrived at. 14. Absolutely no materials have been produced before this Court, on the basis whereof such conclusion is sought to have been arrived at. The person, who has submitted the report and the material from which it was gathered that the character of Pappu Ram Patel was unsatisfactory, is not on record nor any facts in respect of the antecedents of Pappu Ram Patel are disclosed. 15. This Court further finds from the records as produced that candidate empanelled at serial No. 3, Pramod Kumar Yadav, respondent No. 8 had achieved a speed of only 28 words per minute during the typing test (which according to the affidavit of the Director are the marks of the type test), when the minimum speed prescribed was 30 words per minute. This Court therefore, records that not only Pramod Kumar Yadav was to be excluded from the zone of consideration after typing test nor could he be selected, as he failed to achieve the minimum prescribed typing speed of 30 words per minute. Neither the learned Standing Counsel nor the learned counsel for Pramod Kumar Yadav could explain as to how Pramod Kumar Yadav could be selected in absence of his having achieved requisite minimum speed in typing i.e. 30 words per minute. 16. On behalf of the petitioner it was contended before this Court that since only three vacancies were advertised within the reserved category of Other Backward Class, no appointment in excess thereof could have been made and therefore, the appointment of candidates beyond the three advertised vacancies is patently illegal and contrary to the Division Bench Judgement of this Court. Reliance in that regard has been placed upon the Division Bench Judgement of this Court in the case of District Judge, Baghpat and another v. Anurag Kumar and others, 2005 (2) ESC 1509 (DB), wherein it has been held that appointment in excess of the advertised vacancy is unjustified. 17. Contention so raised on behalf of the petitioner is opposed by the leaned Standing Counsel as well as learned counsel for private respondents on the plea that the advertisement itself contained a clause that number of posts may vary. It has been stated in the counter-affidavit that since three additional vacancies became available between date of advertisement and the date of selection, such vacancies have also been filled through the aforesaid selection. 18. It has been stated in the counter-affidavit that since three additional vacancies became available between date of advertisement and the date of selection, such vacancies have also been filled through the aforesaid selection. 18. In the case of Surinder Singh v. State of Punjab, (1997) 8 SCC 488 specifically paragraph-16, the Hon’ble Supreme Court of India has held as follows : “16. It is in no uncertain words that this Court has held that it would be an improper exercise of power to make appointments over and above those advertised. It is only in rare and exceptional circumstances and in emergent situation that this rule can be deviated from. It should be clearly spelled out as to under what policy such a decision has been taken. Exercise of such power has to be tested on the touchstone of reasonableness. Before any advertisement is issued, it would, therefore, be incumbent upon the authorities to take into account the existing vacancies and anticipated vacancies. It is not as a matter of course that the authority can fill up more posts than advertised.” 19. The use of words in the advertisement that the number of vacancy may increase has been subject matter of consideration in Special Appeal No. 720 of 2005 (The District Judge, Mahamaya Nagar and another v. Rabindra Kumar Pandey and others) along which connected special appeals decided on 16th June, 2005 and it has been held as follows : “The law on this issue can be summed up that at the time of advertising the vacancy, the authority may take into account the existing vacancies along with vacancies likely to occur because of retirement and no other vacancy which may occur because of death, promotion, compulsory retirement, voluntary retirement, removal or dismissal. The vacancies over and above the number of vacancies advertised cannot be filled up as it would violate the fundamental right of those candidates who have become eligible subsequent to the date of advertisement. Any appointment made over and above the vacancies so advertised would be de hors the rules, thus, unenforceable and inexecutable. Even if the vacancies have wrongly been determined it does not give any cause of action to any person to challenge the same.” 20. Any appointment made over and above the vacancies so advertised would be de hors the rules, thus, unenforceable and inexecutable. Even if the vacancies have wrongly been determined it does not give any cause of action to any person to challenge the same.” 20. In any view of the matter, the issue may not detain the Court for long inasmuch as it is to be remembered that the advertisement was qua a special drive of recruitment for Scheduled Castes and Other Backward Caste Category persons only. Candidates from the general candidate were not invited to participate in the selections. The question which arises is that any subsequent vacancy caused after publication of such an advertisement, could be filled under special drive of recruitment for reserved category or not. A new vacancy, which was never advertised earlier cannot be included in the process of selection initiated by way of special drive for recruitment of reserved category as inclusion of such number of subsequent vacancy would result in following illegalities : (a) inclusion of subsequent vacancy treating them as reserved for Other Backward Class Category candidate, without application of roaster and without determination as to whether the aforesaid vacancies fall within the quota reserved for Other Backward Class Category candidate or not, (b) The subsequent vacancies even if accepted for a moment to be within the reserved category of Other Backward Class, were never advertised earlier along with general category vacancies and therefore, inclusion of the said subsequent vacancies within the special drive for filling up of the backlog vacancy for reserved category candidates would be per se illegal. 21. It was contended before this Court that selected candidates have completed more than decades of service and therefore, it would be too harsh to dislodge them from service, the issue no more res integra. The Constitution Bench of the Hon’ble Supreme Court in the case of State of Karnataka v. Umadevi, (2006) 4 SCC 1 specifically paragraph 43 has held that the High Courts acting under Article 226 of the Constitution of India should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the Court, which the Court described as ‘litigious employment’ in the earlier part of the judgment he would not be entitled to any right to be absorbed or made permanent in the service. In paragraph-51 the Constitution Bench has held that the right to employment, if it is a part of right to life, would stand denuded by the preferring of those who have got in casually or those who have come through the back door. The obligation cast on the State under Article 39 (a) of the Constitution is to ensure that all citizens equally have the right to adequate means of livelihood. It will be more consistent with that policy if the Courts recognise that an appointment to a post in government service or in the service of its instrumentalities, can only be by way of a proper selection in the manner recognised by the relevant legislation in the context of the relevant provisions of the Constitution. In the name of individualising justice, it is also not possible to shut our eyes of the constitutional scheme and the right of the numerous as against the few who are before the Court. 22. The Hon’ble Supreme Court in its latest judgment in the case of State of Bihar v. Upendra Narayan Singh and others, (2009) 5 SCC 65 has treated the continuance of illegal appointees with the help of the order of the Court as spoils system and has dealt with the same in great detail in paragraph 33 onwards. 23. It would be worthwhile to reproduce paragraph-32 of the said judgment, which reads as follows : "32. Notwithstanding the basic mandate of Article 16 that there shall be equality of opportunity for all citizens in matters relating to employment for appointment to any office under the State, the spoils system which prevailed in America in the 17th and 18th centuries has spread its tentacles in various segments of public employment apparatus and a huge illegal employment market has developed in the country adversely affecting the legal and constitutional rights of lakhs of meritorious members of younger generation of the country who are forced to seek intervention of the Court and wait for justice for years together.” 24. In view of the aforesaid, this Court holds that the inclusion of the subsequent three vacancies, within the process of selection and of filling up the same by way of reservation in favour of Other Backward Class Category was patently illegal and has to be struck down. 25. Judgements relied upon by the learned counsel for the respondents in the case of Rakesh Kumar Trivedi v. High Court of Judicature at Allahabad and another, (1994) 2 UPLBEC 1400, Para-14 and Kamlesh Kumar Sharma v. Yogesh Kumar Gupta and others, JT 1998 (7) SC 642, Para 14 are clearly distinguishable in the facts of the present case in none of these cases the advertisement was in respect of a special drive of recruitment for reserved category only. 26. So far as the selection of Pramod Kumar Yadav is concerned, this Court may record that he had not achieved the requisite minimum speed of 30 words per minute as is apparent from the tabulation chart produced before this Court, which fact has not been disputed, therefore, he was not possessed of the prescribed minimum speed as per the advertisement. In absence thereof, he could not have been selected/appointed. 27. The allegations qua the members of the Selection Committee being related to the selected candidates cannot be examined as the members of the selection committee have not been impleaded. The plea raised qua right of the petitioner to maintain the present writ petition on the allegation of mala fide against selection committee is concerned, this Court finds that the challenge to the Selection on the ground of mala fide has to be repealed both for the non-impleadment of necessary parties as also on the ground that petitioner had participated in the selection proceedings without protest. Objections raised on behalf of the respondents to that extent are upheld. 28. However, this Court cannot lose sight of the fact that participation in the selection by the petitioner will not debar her from challenging the appointment of respondents concerned made in excess of the advertised vacancies, inasmuch as if the subsequent vacancies are held to be vacant, after setting aside the selections made, the same will have to be advertised by the Director of Education (Higher) afresh and at that stage petitioner will have an opportunity to participate in the process of selection. 29. 29. The writ petition is allowed and it is held that appointments made in excess of the advertised vacancies i.e. 3 posts within the reserved category of Other Backward Class, are illegal. Let the Director, Higher Education, U.P. Lucknow pass appropriate orders in compliance with the order of this Court for terminating the appointment of such excess appointees. The appointment of Pramod Kumar Yadav is also declared to be illegal, inasmuch as he could not achieve the prescribed minimum speed of 30 words per minute. Let the Director of Higher Education pass suitable orders terminating the appointment of Pramod Kumar Yadav also. The aforesaid exercise may be completed within two weeks from the date a certified copy of this order is filed before him. A certified copy of this order be issued to the Standing Counsel for necessary information to the Director. The State-respondents are at liberty to make fresh advertisement against the subsequent vacancies available in the department and petitioner is at liberty to apply. The Secretary, Higher Education is also directed to ensure that investigation in terms of the First Information Lodged is completed within reasonable time in accordance with law and strict action is taken in the matter without delay against the person responsible. ————