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TMI Blog2016 (10) TMI 1362X X X X Extracts X X X X X X X X Extracts X X X X ..... lise that any such direction given by us for their appointments would be contrary to the Rules. Judicial discretion can be exercised by a Court only when there are two or more possible lawful solutions. In any event, Courts cannot give any direction contrary to the Statute or Rules made thereunder in exercise of judicial discretion. The selection pursuant to the advertisement dated 19.09.2009 should be confined only to posts that were advertised, the additional posts that were created after the expiry of the recruitment year shall be filled up by issuance of an advertisement afresh. In view of the shortage of Assistant Prosecuting Officers in the State of Uttarakhand, we direct the authorities to expedite the process of selection. App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the Right to Information Act, 2005 seeking information about the number of posts for which the preliminary examination was conducted. The Second Respondent responded stating that the number of vacancies for which the selection was being held was 74. The Third Respondent filed a Writ Petition in the High Court of Uttarakhand at Nainital for a direction that only 38 posts of Assistant Prosecuting Officers which were advertised on 19.09.2009 should be filled up. 4. A counter was filed by the First Respondent stating that 37 additional posts of Assistant Prosecuting Officers were created by an order dated 25.08.2009. It was also stated in the counter that a requisition for additional 36 posts of Assistant Prosecuting Officers was sent t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at there was only one Assistant Prosecuting Officer working in the State of Uttarakhand on the date of advertisement dated 19.09.2009. Mr. Raval took us through the material on record to show that more than 38 posts were available on the date of advertisement. He referred to the condition in the advertisement which enabled the State Government to vary the number of vacancies. He also referred to the pleadings to contend that a requisition was made to the Second Respondent for filling up the additional 36 vacancies as well. He submitted that the High Court went wrong in allowing the Writ Petition without taking into account the shortage of Assistant Prosecuting Officers in the State of Uttarakhand. Mr. Saurabh Trivedi, counsel appearing for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... additional posts to be filled up. The letter dated 25.08.2009 of the Chief Secretary, State of Uttarakhand was relied upon by the Appellants to contend that additional vacancies were created and they were available to be filled up. 9. It is clear from the pleadings and the various documents filed by the Appellants that no additional posts were created between 1st July, 2008 and 30th June, 2009. It is significant that the Rules refer to the recruitment year. It is a well-accepted principle of service law that only the number of vacancies that are advertised can be filled up. If the advertisement gives liberty to the Government to vary the number of posts, such power cannot be exercised for filling up future vacancies. If additional posts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It was further held by this Court that strictly speaking the authorities were not justified in making appointments to posts more than those advertised. This Court also found that only actual vacancies were taken into account without considering the anticipated vacancies that were likely to arise due to retirement, etc. As appointments were already made, taking into account the peculiar facts and circumstances, this Court approved the appointments beyond those advertised only to the extent of vacancies which arose because of death and retirement, etc. The appointments that were made to future vacancies were declared as invalid. 11. Pursuant to the directions issued by the High Court in the impugned judgment, 37 persons were declared ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us for their appointments would be contrary to the Rules. Judicial discretion can be exercised by a Court only when there are two or more possible lawful solutions. In any event, Courts cannot give any direction contrary to the Statute or Rules made thereunder in exercise of judicial discretion. It will be useful to reproduce from Judicial Discretion (1989) by Aharon Barak which is as follows: Discretion assumes the freedom to choose among several lawful alternatives. Therefore, discretion does not exist when there is but one lawful option. In this situation, the judge is required to select that option and has no freedom of choice. No discretion is involved in the choice between a lawful act and an unlawful act. The judge must choose t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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