JUDGMENT Hon’ble Dilip Gupta, J.—The petitioners, who had submitted applications for being considered for appointment on the post of Livestock Extension Officer pursuant to the advertisement dated 29th December, 2004 issued by the Joint Director (Administration), Animal Husbandry, U.P. Lucknow, have filed this petition for quashing the order dated 23rd December, 2009 passed by the Director, Department of Animal Husbandry by which a direction has been issued to permit only 489 selected candidates out of the 630 selected candidates who had been sent for two years training to appear at the examination to be conducted after completion of the two years training so that appointment orders could be issued to them. 2. The advertisement provided that the application forms for the 489 posts of Livestock Extension Officer could be submitted by 17th January, 2005 and after selection but before appointment on the said post, two years’ training would be imparted. A perusal of the advertisement also shows that the posts of Livestock Extension Officer were allocated Region-wise; that the Deputy Director, Animal Husbandry of the concerned Region was the Appointing Authority; that the post was a Group ‘C’ post falling outside the purview of the U.P. Public Service Commission and that the number of vacancies could increase or decrease. 3. The process of selection, including the holding of the written examination under the provisions of the U.P. Animal Husbandry Department of Livestock Extension and Poultry Development Service Rules, 2002 notified on 16th July, 2005 (hereinafter referred to as the ‘Animal Husbandry Rules’) was assailed by certain applicants in various writ petitions on the ground that the selection could have been done only in accordance with the procedure prescribed under the provisions of “Uttar Pradesh Procedure for Direct Recruitment for Group ‘C’ Post (Outside the Purview of the Uttar Pradesh Public Service Commission), Rules, 2002" (hereinafter referred to as the ‘Public Service Commission 2002 Rules’) as subsequently amended by “The Uttar Pradesh Procedure for Direct Recruitment for Group ‘’C’ Posts (Outside the Purview of the Uttar Pradesh Public Service Commission) (First Amendment) Rules, 2003. The writ petitions were allowed and the written examination held on 11th September, 2005 was cancelled for the reason that the selection could have been made only in accordance with the provisions of Public Service Commission 2002 Rules. The writ petitions were allowed and the written examination held on 11th September, 2005 was cancelled for the reason that the selection could have been made only in accordance with the provisions of Public Service Commission 2002 Rules. The relevant portion of the judgment rendered by the Court on 21st March, 2006 in Satish Kumar Yadav and others v. State of U.P. and another, 2006 (3) ESC 1792 , is as follows : “From the facts which have been noticed herein above, it is not in dispute that the advertisement for making appointment on the post of Livestock Extension Officer was published on 29th December, 2004. On the date the advertisement was published, the only rules inforce for regulating the appointments on Group ‘C’ posts in the State of U.P. were the U.P. Procedure for Direct Recruitment for Group ‘C’ Posts (Out Side the Purview of U.P. Public Service Commission) Rules, 2002. It is settled law that the process of selection commences with the issuance of advertisement inviting applications for appointment. The date so notified is the crucial date for determining the procedure and the rules, which are to be applied for the said selections. Any new set of rules or any subsequent amendments to the existing rules will have prospective application only and cannot be applied for the purposes of making selections in pursuance of the advertisement which was published earlier. ......... ............ In view of the aforesaid settled legal position, U. P. Animal Husbandry Department Livestock Extension and Poultry Development Service Rules, 2002, which have been enforced after publication in official gazette only on 16th July, 2005, will have no application so far as the process of selections qua the advertisement dated 29th December, 2004 is concerned. Therefore the entire written examination conducted by the respondents in alleged compliance of Rule 15 of U.P. Animal Husbandry Department Livestock Extension and Poultry Development Service Rules, 2002 (notified on 16th July, 2005) is patently illegal and unsustainable in the eyes of law. The respondents were under legal obligation to complete the process of selections initiated under the advertisement dated 29th December, 2004 in accordance with the rules applicable i. e. U.P. Procedure for Direct Recruitment for Group ‘C’ Posts (Out Side the Purview of U.P. Public Service Commission) Rules, 2002 and in strict adherence thereto. ........... The respondents were under legal obligation to complete the process of selections initiated under the advertisement dated 29th December, 2004 in accordance with the rules applicable i. e. U.P. Procedure for Direct Recruitment for Group ‘C’ Posts (Out Side the Purview of U.P. Public Service Commission) Rules, 2002 and in strict adherence thereto. ........... In view of the aforesaid, this Court has no hesitation to record that the written examination which have taken place on 11.9.2005 pursuant to the advertisement dated 29th December, 2004 cannot be legally sustained and the same is accordingly quashed. Respondents are directed to complete the process of selection with reference to the advertisement dated 29th December, 2004 in accordance with law as applicable on the date the advertisement was published, at the earliest possible. Writ petitions are allowed subject to the observations made herein above.” (emphasis supplied) 4. Subsequently, the selection was made in accordance with the Public Service Commission 2002 Rules as amended in 2003 and after publication of the select list, 630 candidates including the petitioners were sent for two years training to four different training centres in two batches. Such training of two years was necessary in terms of the advertisement which provided that the appointments shall be made only after the two years’ training is imparted. In this connection, the Deputy Director, Animal Husbandry passed an order on 17th August, 2006 directing the candidates of the first batch to report for training on 21st August, 2006. The training of the second batch commenced from 7th October, 2006 as was notified by the Deputy Director, Animal Husbandry by the order dated 27th September, 2006. The two years training for both the batches was imparted to the 630 selected candidates and it concluded on 18th August, 2008 and 6th October, 2008. 5. The Principal Secretary, Government of U.P. by the letter dated 22nd September, 2008 then issued directions to the Director, Department of Animal Husbandry for holding the examination at the earliest after examining the certificates produced by the candidates at the time of selection. However, as examination was not held, certain writ petitions were filed but thereafter an order dated 23rd December, 2009 was issued by the Director, Department of Animal Husbandry directing that the examination of only 489 selected candidates shall be held and they shall be given appointments after the process is completed by 31st January, 2010. 6. However, as examination was not held, certain writ petitions were filed but thereafter an order dated 23rd December, 2009 was issued by the Director, Department of Animal Husbandry directing that the examination of only 489 selected candidates shall be held and they shall be given appointments after the process is completed by 31st January, 2010. 6. The issuance of the letter dated 23rd December, 2009, therefore, deprived 141 candidates who had completed two years training from appearing at the written examination as 630 selected candidates had been sent for the two years’ training. The petitioners are such of those selected candidates who have been excluded from appearing at the written examination. 7. It is the submission of Sri Ashok Khare, learned Senior Counsel, Sri G.K. Singh, Sri Rahul Verma, Sri Anjani Kumar Mishra, Sri Rajeev Mishra, Sri R.S. Ram, Sri Shiv Shankar Singh, Sri Parvez Iqbal Ansari, Sri S.D. Yadav, Sri Pramod Kumar and Sri V.P. Shukla, learned counsel appearing for the petitioners that the order dated 23rd December, 2009 passed by the Director, Department of Animal Husbandry for holding the written examination for only 489 candidates and thereby depriving 141 candidates from appearing at the examination is illegal and arbitrary and deserves to be set aside. According to learned counsel for the petitioners, since the advertisement provided that the number of vacancies could increase or decrease and a conscious decision was taken by the Department for increasing the number of vacancies and after selection 630 candidates in order of merit were sent for two years’ training, it is not open to the respondents to take a plea after these 630 candidates had undergone two years’ training that the written examination will be held for 489 candidates only. In this connection, learned Senior Counsel has placed the communications exchanged between the Department and the State Government to substantiate that the number of vacancies had been increased to 630. In this connection, learned Senior Counsel has placed the communications exchanged between the Department and the State Government to substantiate that the number of vacancies had been increased to 630. In support of this contention, learned counsel for the petitioners have placed reliance upon the judgments of the Supreme Court in Prem Singh and others v. Haryana State Electricity Board and others, (1996) 4 SCC 319 ; State of Orissa and another v. Rajkishore Nanda and others, (2010) 6 SCC 777 , and Public Service Commission Uttaranchal v. Mamta Bisht and others, JT 2010 (6) SC 221 and the decision of a Division of this Court in Rajesh Kumar Kanaujia (since deceased) through his legal heir Smt. Rekha Devi and others v. State of U.P. and others, 2010 (9) ADJ 838 . 8. It is also the submission of the learned counsel for the petitioners that appointments can be made not only against clear vacancies but also against anticipated vacancies and, therefore, there was no illegality in sending 630 candidates for training as 630 vacancies existed and in support of this contention, they have placed reliance upon the judgment of the Supreme Court in State of Jammu and Kashmir and others v. Sanjeev Kumar and others, (2005) 4 SCC 148 . 9. Sri Satish Chaturvedi, learned Additional Advocate General for the respondents, however, submitted that the appointments cannot be made beyond the number of vacancies advertised and, therefore, there is no infirmity in the order dated 23rd December, 2009 passed by the Director, Department of Animal Husbandry for holding the written examination of 489 candidates only as 489 vacancies had been advertised. In support of this contention, he has placed reliance on the decisions of Supreme Court in Rakhi Ray and others v. The High Court of Delhi and others, JT 2010 (2) SC 121; Secretary, State of Karnataka and others v. Umadevi and others, JT 2006 (4) 420; State of Bihar and others v. The Secretariat Assistant Successful Examinees Union 1986 and others, AIR 1994 SC 736 and State of U.P. and others v. Rajkumar Sharma and others, (2006) 3 SCC 330 . 10. 10. It is also the submission of learned Additional Advocate General that any vacancy coming into the existence after the enforcement of the Animal Husbandry Rules notified on 16th July, 2005 cannot be filled up in accordance with the procedure prescribed in the Public Service Commission 2002 Rules and, therefore, the petitioners cannot claim appointment against vacancies which came into existence after 16th July, 2005. 11. I have carefully considered the submissions advanced by the learned counsel for the parties. 12. Appointments to the posts of Livestock Extension Officer, in view of the decision of the Court in Satish Kumar Yadav (supra), were required to be made in accordance with the provisions of the Public Service Commission 2002 Rules as amended in 2003. Thus, in order to appreciate the contentions of the learned counsel for the parties, it would be appropriate to refer to the relevant provisions of these Rules. Rules 4 and 5 as amended are relevant and are as follows : “4. Determination of vacancies.—The appointing authority shall determine the number of vacancies to be filled during the course of the year as also the number of vacancies to be reserved for candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories in accordance with the relevant service rules. In case the Chairman of the Selection Committee is an officer other than the appointing authority, the appointing authority shall intimate the vacancies to the Chairman of the Selection Committee.” 5. Procedure for direct recruitment.—(1) For making direct recruitment the vacancies shall be notified in the following manner : (i) by issuing advertisement in daily newspaper having wide circulation; (ii) by pasting the notice on the notice board of the office or by advertising through Radio/Television and other Employment newspapers; and (iii) by notifying vacancies to the Employment Exchange. (2) ................ (3) The selection shall carry one hundred marks. The merit list of the candidates shall be prepared in the following manner : (a) (1) Such posts for which only academic qualifications are prescribed, the marks shall be awarded to each candidate in the following manner : ................. (2) Such posts for which academic qualifications and technical qualifications both are prescribed, the marks shall be awarded to each candidate in the following manner : .................... (2) Such posts for which academic qualifications and technical qualifications both are prescribed, the marks shall be awarded to each candidate in the following manner : .................... Provided that the post for which some physical standards have been prescribed as essential qualification or as mode of recruitment for the post, the candidates shall be required to undergo prescribed physical tests before the selection and only those candidates shall be considered for selection who come up to the minimum standards prescribed for the post. (b) Marks to a retrenched employee shall be awarded in the following manner subject to the maximum of fifteen marks : (i) For the first completed year of service - Five marks (ii) For the next and every completed year of service - Five marks for each year. (c) Marks to a sportsman shall be awarded in the following manner subject to the maximum of five marks : (i) If the candidate is a sportsman of International level - Five marks. (ii) If the candidate is a sportsman of National level - Four marks. (iii) If the candidate is a sportsman of State level - Three marks (iv) If the candidate is a sportsman of University/College/School level - Two marks. (d) ....................... (4) (a) After the results of the evaluations under clauses (a), (b), (c) and (d) of sub-rule (3) have been received and tabulated, the Selection Committee shall having regard to the provisions of reservation referred to in rule 4, hold an interview. The number of candidates to be called for interview against the number of vacancies shall be such as is considered appropriate by the Selection Committee, but in any case it shall not exceed ten candidates for one vacancy. In the case of candidates to be selected for a post for which typewriting or shorthand and typewriting has been prescribed as an essential qualification, only such candidates who qualify the typewriting test or shorthand and typewriting test, as the case may be, under clause (d) of sub-rule (3) shall be called for interview. (b) The interview shall carry fifty marks. Marks at the interview shall be awarded in the following manner : (i) Subject/General Knowledge - Up to ten marks. (ii) Personality Assessment - Up to twenty marks. (iii) Power of Expression - Up to twenty marks. (b) The interview shall carry fifty marks. Marks at the interview shall be awarded in the following manner : (i) Subject/General Knowledge - Up to ten marks. (ii) Personality Assessment - Up to twenty marks. (iii) Power of Expression - Up to twenty marks. (c) The Chairman and Members of the Selection Committee shall, in no case, be provided any information with regard to marks obtained by candidates under clauses (a), (b) and (c) of sub-rule (3) at the time of interview. (5) The marks obtained by each candidate at the interview under sub-rule (4) shall be added to the marks obtained under sub-rule (3). The final select list shall be prepared on the basis of aggregate of marks so arrived. If two or more candidates obtain equal marks in the aggregate, the candidate senior in age shall be placed higher in the select list. (6) The select list referred to in sub-rule (5) shall be forwarded to the appointing authority.” 13. It is seen that under Rule 4 of the 2002 Rules, the Appointing Authority is required to determine the number of vacancies to be filled during the course of the year and determine the number of reserved vacancies in accordance with the service Rules. The advertisement indicated the Region-wise allocation of the vacancies including the number of vacancies reserved for the Scheduled Castes/Scheduled Tribes and Other Backward Classes categories candidates. The advertisement also mentioned that the Deputy Director, Animal Husbandry of the concerned Region will be the Appointing Authority. Rule 5 deals with the procedure for direct recruitment. Sub-Rule (3) of Rule 5 provides that the selection shall carry one hundred marks and the manner of preparing the merit list of the selected candidates has been provided for under clauses (a), (b), (c) and (d) of sub-Rule 3 of Rule 5. Sub-Rule (4) of the Rule 5 provides that after the result of the evaluations under clauses (a), (b), (c) and (d) of sub-rule (3) has been received and tabulated, the Selection Committee shall hold an interview and under Sub-Rule (5), the final select list is prepared which is then forwarded to the Appointing Authority. 14. It has been pointed out by learned counsel for the petitioners that though 489 posts were advertised on 29th December, 2004, but the advertisement also provided that the number of vacancies could increase or decrease. 14. It has been pointed out by learned counsel for the petitioners that though 489 posts were advertised on 29th December, 2004, but the advertisement also provided that the number of vacancies could increase or decrease. The Director, Department of Animal Husbandry in his communication dated 11th January, 2005 sent to the Deputy Director, Department of Animal Husbandry, Meerut Region, Meerut pointed out that actually there were 46 vacancies in the Region instead of 27 in view of the subsequent letter sent by the Region and, therefore, approval was being given for making appointments against 46 posts. While giving this approval the Director, Department of Animal Husbandry has noted the discrepancies in calculation of the number of vacancies earlier intimated by the Deputy Director, Animal Husbandry. Thus, according to the petitioners, 19 vacancies stood added to the number of posts advertised. 15. The petitioners have also placed on record the communication dated 5th December, 2005 sent by the Joint Secretary, Government of U.P. to the Director, Department of Animal Husbandry which mentions that as 56 vacancies have arisen upto 30th June, 2005 and the advertisement mentioned that the vacancies could increase or decrease, the State Government has given its approval for increasing these 56 vacancies. 16. Learned counsel for the petitioners have, however, pointed out that subsequently the Director, Department of Animal Husbandry informed the State Government by the letter dated 8th December, 2005 that the additional vacancies were actually 67 instead of 56 to which a reply was sent by the State Government on 23rd February, 2006 that the Director, Department of Animal Husbandry could take appropriate steps at his own level in accordance with the Rules. Thus, according to the petitioners, further 67 vacancies stood added to the number of vacancies advertised. 17. Learned counsel for the petitioners have also pointed out that subsequently, in view of the discussion held with the State Government on 11th January, 2006, the Director, Department of Animal Husbandry sent a communication dated 20th January, 2006 to the State Government for making appointments against the 67 vacancies that had fallen vacant between 1st July, 2005 and 31st December, 2005 and in anticipation of such approval, directions were also issued to the Regional Directors, Department of Animal Husbandry to fill up such vacancies. 18. 18. Learned counsel for the petitioners have also pointed out that the Deputy Director, Animal Husbandry, Meerut Region, Meerut in his letter dated 31st May, 2006 pointed out that there were six additional vacancies and, therefore, by the letter dated 2nd June, 2006, the Director, Department of Animal Husbandry gave permission to the Deputy Director, Animal Husbandry, Meerut Region, Meerut to send six more persons for training and a copy of this letter was also forwarded to the Joint Secretary, Government of U.P. 19. It has, therefore, been submitted that these additional 159 vacancies (19 + 67 + 67 + 6) which had fallen vacant upto 31st December, 2005 were included in the advertisement and against these 648 (489 + 159) vacancies, 630 candidates from the select list were sent for two years’ training. 20. Learned Additional Advocate General has, however, pointed out that the State Government did not accept the proposal for making any appointments beyond 489 vacancies that were advertised on 29th December, 2004 and in fact disciplinary proceedings have been initiated against the Director, Department of Animal Husbandry. 21. The issue, therefore, that needs to be decided is whether the State Government, after being fully aware of the aforesaid facts and after the candidates had completed the two years’ training, can be permitted to take a stand that the additional 141 (630 - 489) candidates sent for training cannot be permitted to appear at the written examination as the advertisement was for only 489 posts. As noticed hereinabove, while granting permission to the Department to make appointments against the additional 56 vacancies, the State Government took notice of the fact that in the advertisement dated 29th December, 2004 it was mentioned that the number of vacancies could increase or decrease. 22. It is in the light of the aforesaid facts that it has to be examined whether appointments can be given to these 141 candidates who have undergone two years training from 2006 to 2008 after having been selected in accordance with the procedure prescribed in the 2002 Rules as amended in 2003. 23. In Prem Singh (supra), 62 vacancies were advertised on 2nd November, 1991. The Board, however, after considering the latest vacancy position as on 11th February, 1993, decided on 2nd April, 1993 to fill up 147 posts, but appointments were actually given to 138 candidates. 23. In Prem Singh (supra), 62 vacancies were advertised on 2nd November, 1991. The Board, however, after considering the latest vacancy position as on 11th February, 1993, decided on 2nd April, 1993 to fill up 147 posts, but appointments were actually given to 138 candidates. It is in this context that the Supreme Court observed : “25. From the above discussion of the case law it becomes clear that the selection process by way of requisition and advertisement can by started for clear vacancies and also for anticipated vacancies but not for future vacancies. If the requisition and advertisement are for certain number of posts only the State cannot make more appointments than the number of posts advertised, even though it might have prepared a select list of more candidates. The State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf. Even when filling up of more posts than advertised is challenged the Court may not, while exercising its extra-ordinary jurisdiction, invalidate the excess appointments and may mould the relief in such a manner as to strike a just balance between the interest of the State and the interest of persons seeking public employment. What relief should be granted in such cases would depend upon the facts and circumstances of each case. 26. In the present case, as against the 62 advertised posts the Board made appointments on 138 posts. The selection process was started for 62 clear vacancies and at that time anticipated vacancies were not taken into account. Therefore, strictly speaking, the Board was not justified in making more than 62 appointments pursuant to the advertisement published on 2.11.1991 and the selection process which followed thereafter. But as the Board could have taken into account not only the actual vacancies but also vacancies which were likely to arise because of retirement etc. by the time the selection process was completed it would not be just and equitable to invalidate all the appointments made on posts in excess of 62. However, the appointments which were made against future vacancies in this case on posts which were newly created must be regarded as invalid. As stated earlier, after the selection process had started 13 posts had become vacant because of retirement and 12 because of deaths. However, the appointments which were made against future vacancies in this case on posts which were newly created must be regarded as invalid. As stated earlier, after the selection process had started 13 posts had become vacant because of retirement and 12 because of deaths. The vacancies which were likely to arise as a result of retirement could have been reasonably anticipated by the Board. The Board through oversight had not taken them into consideration while a requisition was made for filling up 62 posts. Even with respect to the appointments made against vacancies which arose because of deaths, a lenient view can be taken and on consideration of expediency and equity they need not be quashed. Therefore, in view of the special facts and circumstances of this case we do not think it proper to invalidate the appointments made on those 25 additional posts. But the appointments made by the Board on posts beyond 87 are held invalid. Though the High Court was right in the view it has taken. we modify its order to the aforesaid extent. These appeals are allowed accordingly. No order as to costs.” (emphasis supplied) 24. The Supreme Court has, therefore, in the aforesaid decision observed that the State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances or in emergent situation but a policy decision in this behalf is required to be taken and that in appropriate cases while exercising its extraordinary jurisdiction, the Court can mould the relief to strike a just balance between the interest of the State and the interest of the persons seeking such employment. However, as the Board could have taken into account not only the actual vacancies but also vacancies which were likely to arise because of retirement etc. by the time selection process was completed, the excess appointments should not be declared invalid. Thus, appointments made against the 13 posts that had fallen vacant after the advertisement was issued because of retirement and 12 posts which had fallen vacant because of deaths were held to be valid and only appointments made against the newly created posts were declared invalid. 25. The aforesaid decision of the Supreme Court in Prem Singh (supra) was subsequently taken notice of by the Supreme Court in Sanjeev Kumar (supra) and it was observed : “8. 25. The aforesaid decision of the Supreme Court in Prem Singh (supra) was subsequently taken notice of by the Supreme Court in Sanjeev Kumar (supra) and it was observed : “8. As is clearly spelt from the quoted portion, the Government can by a policy decision appoint people from the waiting list. It has been laid down that on the facts of Prem Singh’s case while issuing advertisement the Government could have taken into account likely vacancies. The principle in Prem Singh’s case was followed in Virender S. Hooda and others v. State of Haryana and another, 1999 (3) SCC 696 . 9. It appears from the records that prior to the date of advertisement cases of four persons who had been promoted on officiating basis were receiving consideration of the PSC. In fact, within a very short period from the date of the advertisement, PCS approved the recommendations from promotions for four persons. Therefore, it cannot be prima facie said that there were no existing vacancies or likely vacancies. Additionally, the effect of Rule 57 has not been considered by the Division Bench on the strong reasoning that though learned Single Judge had referred to a Rule, the specific Rule was not indicated. It is not in dispute that such a Rule exists. It was not the case of the writ petitioners in the Appeal before the Division Bench that no such Rule exists. The effect of the Rule was required to be considered by the High Court.” 26. In Rakhi Ray (supra), the Supreme Court also noticed that in rare and exceptional circumstances and in emergent situation the rule that vacancies cannot be filled up over and above the number of vacancies advertised can be deviated. The relevant observations are : “9. It is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as “the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution”, of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies. Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to “improper exercise of power and only in a rare and exceptional circumstance and in emergent situation, such a rule can be deviated and such a deviation is permissible only after adopting policy decision based on some rational”, otherwise the exercise would be arbitrary.” (emphasis supplied) 27. In Rajkishore Nanda (supra) the Supreme Court also considered this issue. An advertisement was issued to fill 15 posts of Junior Clerk. The respondents applied pursuant to the advertisement but by the time selection process could be completed, the number of vacancies increased from 15 to 33 and as per the requirement of the Rules, merit list of 66 candidates was published. The respondents whose names appeared in the merit list approached the Tribunal. The Tribunal issued direction to give appointment to the candidates whose names were included in the select list. The State filed a writ petition in which order of Tribunal was modified by the High Court permitting consideration of those candidates who had approached the Tribunal. Against the order of High Court, State filed an appeal before the Supreme Court. The Supreme Court after referring to earlier judgments observed that though vacancies cannot be filled up over and above the number of vacancies advertised but in rare and exceptional circumstance and in emergent situation, such a rule can be deviated and such a deviation is permissible only after adopting policy decision based on some rational. 28. In this connection, the decision of a Division Bench of this Court in Rajesh Kumar Kanaujia (supra) also needs to be taken note of. The issue that arose for consideration in this petition was whether the appointment of 36 candidates could have been made when only 9 vacancies were advertised on 11th September, 2002. The Court observed that when a decision was taken prior to selection that the additional vacancies coming to the notice of the Selection Committee could be filled up, then there was no illegality in making the appointments. The relevant observations are as follows : “The first question to be considered is as to whether the appointment can be made in excess of the number of vacancies advertised. The relevant observations are as follows : “The first question to be considered is as to whether the appointment can be made in excess of the number of vacancies advertised. As noticed above, the Director General, Medical Health had issued a letter on 2nd September, 2002 to all the Chief Medical Officers to take steps for filling up the backlog vacancies of reserved category in pursuance of which Chief Medical Officer issued letter dated 3rd September, 2002 asking detail of vacant posts from his subordinates. The Director General, Medical Health in his letter dated 2nd September, 2002 has asked to submit details of vacancies within one week due to which reason the Chief Medical Officer issued advertisement on 11th September, 2002 by which date the details of all vacant posts under him were not even received as is clear from Annexure-5 to the writ petition of Rajesh Kumar Kanaujia. The details of certain vacancies were sent by letters dated 12th, 13th, and 14th September, 2002 as noticed above. It was due to this reason that Clause-11 was inserted in the advertisement that vacancies are subject to decrease or increase. ..................... The present is a case which falls in the category of exceptional circumstances. The present is a case where the vacancies were intimated to the Chief Medical Officer much before the selection dated 25th September, 2002 in response to his letter dated 3rd September, 2009 asking for detail of the vacant posts. The Chief Medical Officer without waiting for information from his subordinate offices issued advertisement on 11th September, 2002 due to the reason that Director General, Medical Health on 2nd September, 2002 has written all the Chief Medical Officers to post him about the action taken for filling up of backlog vacancies of reserved category within one week. The advertised was published in the newspaper on 12th September, 2002 and within three days of the said publication all information was completed which was communicated by the Chief Medical Officer vide letter dated 23rd September, 2002 to the members of the Selection Committee as well as to the Director General, Medical Health. Thus the vacancies for which selection was made were existing at the relevant time but could not be advertised since advertisement was issued in hurry without waiting for all information to be compiled with. Thus the vacancies for which selection was made were existing at the relevant time but could not be advertised since advertisement was issued in hurry without waiting for all information to be compiled with. The Clause-11 in the advertisement that vacancies are likely to increase or decrease was consciously included since the Chief Medical Officer was well aware of the fact that all information regarding vacancies from his subordinates was not yet received. The Chief Medical Officer being the appointing authority of Class-IV employees, after receiving the detail of vacancies, took a decision to fill up all the vacant posts which was communicated to the Selection Committee on 23rd September, 2002. Thus there was clear decision before the selection that selection be made against all the vacant posts, hence we are of the view that on this ground alone the selection and appointment of the candidates over and above 9 vacancies could not be held to be illegal.” (emphasis supplied) 29. Thus, the appointments made against the vacancies which were actually existing at the time the advertisement was issued but had not been taken into account, were protected as a clear decision in this regard was taken prior to selection. 30. The judgment of the Supreme Court in Mamta Bisht (supra) also needs to be noted. The Public Service Commission, Uttaranchal advertised 35 posts of Civil Judge (Junior Division) with a stipulation that number of vacancies could increase or decrease. However, recommendation to fill up 42 vacancies was made after taking a decision in this regard prior to declaration of the result. The Supreme Court observed that although it is a settled legal proposition that the vacancies over and above the number of vacancies advertised cannot be filled up but since the advertisement itself made it clear that the vacancies could increase or decrease and before completion of the selection process, a decision had been taken to fill up 42 instead of 35 vacancies, there was no reason to interfere with the decision. The relevant observations are : “It is settled legal proposition that vacancies over and above the number of vacancies advertised cannot be filled up. Once all the vacancies are filled up, the selection process comes to an end. In case a selected candidate after joining resigns or dies, the vacancy, so occurred cannot be filled up from the panel, which stood already exhausted. Once all the vacancies are filled up, the selection process comes to an end. In case a selected candidate after joining resigns or dies, the vacancy, so occurred cannot be filled up from the panel, which stood already exhausted. (Vide Rakhi Ray and others v. The High Court of Delhi and others, AIR 2010 SC 932 ). However, in the instant case, the advertisement itself made it clear that the vacancies could be increased and decreased and before completion of the selection process, a decision had been taken to fill up 42 instead of 35 vacancies and reservation policy had been implemented accordingly.” 31. It is in the light of the aforesaid decisions that the factual position as emerging after exchange of affidavits is required to be examined. 32. It is not in dispute that only 489 vacancies were advertised by the advertisement issued on 29th December, 2004 but what needs to be noticed is that the vacancies were advertised Region-wise and the Deputy Director, Animal Husbandry of the concerned Region was the appointing authority. 33. A perusal of the affidavits exchanged between the parties reveals that the State Government has not denied the exchange of various communications between the Director, Department of Animal Husbandry and the State Government referred to by the learned counsel for the petitioners. Infact, in the writ petition the petitioners have also enclosed the information supplied to them under the Right to Information Act which mentions that for 489 vacancies in the year 2004-05, 489 posts were advertised but subsequently as the selection took time, the vacancies forwarded upto 31st December, 2005 were included. The enclosures supplied with the said information includes the communication dated 5th December, 2005 sent by the Joint Secretary, Government of U.P. communicating the approval of the State Government for inclusion of 56 additional vacancies which had fallen vacant upto 31st June, 2005 in the advertisement dated 29th December, 2004. The subsequent communication dated 23rd February, 2006 sent by the State Government when the Director, Department of Animal Husbandry informed the State Government that instead of 56, the vacancies should be 67 has also been enclosed. In this communication the Secretary to the State Government informed the Director, Department of Animal Husbandry that steps may be taken at his level in accordance with the Rules. In this communication the Secretary to the State Government informed the Director, Department of Animal Husbandry that steps may be taken at his level in accordance with the Rules. It needs to be noticed that the Director, Department of Animal Husbandry, with information to the State Government, also sent a letter dated 11th January, 2006 to the Deputy Directors, Department of Animal Husbandry of the region concerned for making appointments of 67 additional vacancies which had fallen vacant between 1st July, 2005 and 31st December, 2005 and subsequently by the letter dated 2nd June, 2006 addressed to the Deputy Directors, with information to the State Government, appointments of six additional vacancies were also directed to be made. 34. However, after the completion of two years training of these 630 candidates when the written examination was to be held, the Director, Department of Animal Husbandry issued an order dated 23rd December, 2009 that the written examination shall be held only for 489 candidates. The respondents do not dispute that 630 candidates, who have undergone the training were selected on merit but what they contend is that since only 489 posts had been advertised, such 141 additional selected candidates cannot be appointed and so they cannot be permitted to appear at the written examination to be conducted after completion of two years training. 35. A chart has also been filed which indicates the number of posts advertised region-wise for which directions were issued by the Director and the number of candidate actually sent for training region-wise and the same is as follows : Sl. Name of Region Number of posts Total posts Total number of No. advertised sanctioned by candidates region-wise the Directorate selected by for selection Regional Officers to Regional Officers 1. Meerut 27 67 63 2. Saharanpur 5 10 9 3. Moradabad 37 49 44 4. Kanpur 35 46 44 5. Varanasi 24 38 42 6. Mirzapur 22 26 22 7. Allahabad 55 60 57 8. Azamgarh 34 40 41 9. Lucknow 37 54 54 10. Gorakhpur 7 9 7 11. Basti 18 21 21 12. Bareilly 24 27 27 13. Jhansi 25 28 27 14. Chitrakoot 16 17 Subject to the interim order of the Hon’ble Court 15. Faizabad 36 46 10 16. Devipatan 14 14 11 17. Agra 73 96 121 Total 489 648 630 36. Lucknow 37 54 54 10. Gorakhpur 7 9 7 11. Basti 18 21 21 12. Bareilly 24 27 27 13. Jhansi 25 28 27 14. Chitrakoot 16 17 Subject to the interim order of the Hon’ble Court 15. Faizabad 36 46 10 16. Devipatan 14 14 11 17. Agra 73 96 121 Total 489 648 630 36. From the facts narrated above, it is clear that as against the 27 vacancies initially notified for Meerut Region in the advertisement dated 29th December, 2004, there were actually 46 vacancies and subsequently approval was given for making appointments against 46 vacancies. Thus, as these 19 additional vacancies were actually existing but because of wrong calculation, had not been included in the advertisement and a decision had been taken by the Department and the appointing authority that appointments could be made against 19 additional vacancies, even prior to sending candidates for training, it cannot be said that selection of candidates made against these 19 vacancies is bad in law in view of the proposition of law laid down in the aforesaid decisions. 37. What further needs to be noticed is that the State Government by its communication dated 5th December, 2005 informed the Director, Department of Animal Husbandry that appointments could also be made against the additional 56 vacancies that had arisen upto 30th June, 2005 since it was specifically mentioned in the advertisement that the vacancies could increase or decrease. On the basis of the aforesaid instructions issued by the State Government, a conscious decision was taken by the appointing authority to include these 56 vacancies in the number of vacancies advertised in the advertisement dated 29th December, 2004. It needs to be pointed out that by this time the selection had not taken place as there was a dispute as to which Rule will apply and this was settled by the Court on 21st March, 2006 when the judgment was delivered in Satish Kumar Yadav (supra). It also needs to be noticed that later on it transpired that the vacancies were actually 67 and not 56 and, therefore, instructions were sought from the State Government, which by its communication dated 23rd February, 2006 informed the Director, Department of Animal Husbandry that he could take steps on his own and accordingly directions were issued by the Director for making appointments against the 67 additional vacancies also instead of 56. The selection of the candidates against the 67 additional vacancies cannot, therefore, be said to be illegal in view of the aforesaid decisions of the Supreme Court. 38. Thus, from what has been stated above, 86 candidates were rightly sent for two years training after taking a conscious decision in this regard on the basis of a policy determined by the State Government and the Director. The appointments have to be made after the candidates complete two years training and it is for this purpose that at the end of two years training, the written examination is held. These 86 candidates have undergone two years training but they have been prohibited from appearing at the written examination for the reason that only 489 candidates can be permitted to appear at the written examination since 489 posts were advertised. Thus, for the reasons mentioned above and for the reason that these 86 candidates have completed two years training, it would be just and proper, in the circumstances, to permit these 86 candidates to appear at the written test so that if they clear it, they can be offered appointment. In this connection, the decision of the Supreme Court in Prem Singh (supra) needs to be remembered. The Supreme Court has observed that the State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf. Even when filling up of more posts than advertised is challenged, the Court may not, while exercising its extra-ordinary jurisdiction, invalidate the excess appointments and may mould the relief in such a manner as to strike a just balance between the interest of the State and the interest of persons seeking public employment. What relief should be granted in such cases would depend upon the facts and circumstances of each case. The aforesaid direction will be in accordance with the direction issued by the Supreme Court in Prem Singh (supra), which decision has been followed subsequently by the Supreme Court and the Division Bench of this Court in Rajesh Kumar Kanaujia (supra). 39. What relief should be granted in such cases would depend upon the facts and circumstances of each case. The aforesaid direction will be in accordance with the direction issued by the Supreme Court in Prem Singh (supra), which decision has been followed subsequently by the Supreme Court and the Division Bench of this Court in Rajesh Kumar Kanaujia (supra). 39. It also transpires from the record that 67 vacancies which had arisen between 1st July, 2005 and 31st December, 2005 were also taken into consideration by the Department and the Director, Department of Animal Husbandry, in view of the discussions had with the State Government on 11th January, 2006 issued directions by the letter dated 20th January, 2006 to the Regional Directors, Department of Animal Husbandry to fill up these 67 vacancies in anticipation of the approval given by the State Government. Subsequently, 6 more additional vacancies were included and information was also sent to the Joint Secretary, State of U.P. There is, however, nothing on the record to indicate that the State Government granted approval for increasing the number of vacancies and nor is there anything on the record to indicate that the discussion with the State Government referred to in the directions issued by the Director have been confirmed by the State Government. 40. At this stage, the submission of the learned Additional Advocate General for the State that the vacancies coming into existence after the Animal Husbandry Rules, 2002 were notified on 16th July, 2005 could not have been filled up in accordance with the 2002 Public Service Commission Rules also needs to be noticed. 41. The advertisement was issued on 29th December, 2004 but these 67 vacancies had come into existence from 1st July, 2005 to 31st December, 2005 after the promulgation of the Animal Husbandry Rules on 16th July, 2005 and, therefore, these additional vacancies cannot be filled up by taking recourse to the 2002 Public Service Commission Rules. This apart, there is nothing on the record to indicate that the State Government had given any approval for inclusion of these 67 vacancies in the advertisement issued on 29th December, 2004. 42. Thus, the respondents may not be justified in sending candidates for training against these 73 additional posts. This apart, there is nothing on the record to indicate that the State Government had given any approval for inclusion of these 67 vacancies in the advertisement issued on 29th December, 2004. 42. Thus, the respondents may not be justified in sending candidates for training against these 73 additional posts. It is, however, the contention of the learned counsel for the petitioners that there is a marked difference between the selection and recruitment in view of the decision of this Court in Niranjan Singh and others v. State of U.P. and others, 2005 (1) ESC 354 and, therefore, though the persons sent for training against these additional 73 posts may not have any right to claim appointment, but their training cannot be said to be bad in law and the written examination for these candidates may also be held so that if they clear it, they will have at least a training certificate with them. 43. It needs to be mentioned that only 630 candidates were sent for training on the basis of merit instead of 648. The claim of 86 candidates beyond the 489 posts advertised has been found to be valid. Only 55 candidates who were selected for training still remain. These 55 candidates shall, in view of the aforesaid decision of the Court in Niranjan Singh (supra), be permitted to appear at the written examination and thereafter certificates may be issued to them if they clear the written examination, but they will not claim appointment on the basis of the advertisement issued on 29th December, 2004. 44. In this petitions, interim orders were passed that the petitioners shall be permitted to appear at the written examination but their result shall not be declared. Subsequently, some of the petitioners in the aforesaid writ petitions moved applications that they do not desire to press the petitions and they may be dismissed. The applications were allowed and the writ petitions filed by such applicants/petitioners were dismissed. 45. It is, therefore, ordered that in addition to the 489 candidates in respect of whom the order was passed on 23rd December, 2009 for holding of the written examination, the respondents shall also hold the written examination for the petitioners. If the petitioners have appeared at the written examination under the interim orders passed by the Court, the result shall be declared. If the petitioners have appeared at the written examination under the interim orders passed by the Court, the result shall be declared. After declaration of the written examination result, appointments shall be made against 86 posts in order of merit of the candidates in addition to the 489 posts that had been advertised. The remaining candidates shall not be offered appointment and only training certificate shall be issued to them. 46. The writ petitions are allowed to the extent indicated above. —————