Supreme Court: A 3-Judge Bench of L. Nageswara Rao, Hemant Gupta and Ajay Rastogi, JJ. held that the candidates left out of merit list has no right to claim the same benefit which was provided to some other candidates on basis of some erroneous concession granted by the State. The Court restated that negative equality cannot be claimed to perpetuate further illegality.
Chequered history
The Director-General of Police, Jammu and Kashmir, invited applications for the post of Sub-Inspector of Police (Executive) to be filled by selection in conformity of J&K Police (Executive) Rules. Notably, the Rules do not provide that the merit list of the candidates is to be prepared separately for the Province of Jammu and the Province of Kashmir. The DGP, however, under his own assumption published the merit list separately province-wise.
Round 1
The unsuccessful candidates who could not make it to the merit list challenged the list contending that the DGP ought to have prepared a single select list for the entire State of J&K as the post of Sub-Inspector is a State cadre post.
The unsuccessful candidates succeeded and the DGP ultimately published a revised State-wise merit list by which the appointment of 47 candidates out of the total candidates who were appointed under the original select list was cancelled.
Round 2
The 47 candidates whose appointment got cancelled now challenged the revised merit list. Apart from these 47 candidates, 22 more candidates filed impleadment applications. The matter reached the Supreme Court. On 10-5-2007, the Supreme Court, without examining the inter se dispute of the litigation parties, noted the concession made by the Attorney General for the State that the 47 candidates who were likely to lose their jobs, as well as the other 22 candidates, will be accommodated on the post of Sub-Inspector.
The appointments so stated were actually made. Notably, however, the 22 candidates now appointed were much lower in the revised merit list and their placement in the order of merit was not brought to the notice of Supreme Court and that gave rise to further litigation.
Round 3
Some of the left out candidates who were higher in the merit list qua the 22 candidates now appointed, filed writ petitions contending that they were denied their legitimate right of fair consideration being higher in the revised merit list visavis these 22 candidates who were indisputedly less meritorious but were still appointed. It was contended that this action of the State is in violation of the statutory rules and is also a denial of equal opportunity in seeking appointment on the anvil of Article 14 of the Constitution.
These writ petitioners succeeded initially before the Single Judge Bench of the J&K High Court, but the order of the Single Judge was reversed by the Division Bench. Aggrieved, these writ petitioners filed the present appeals before the Supreme Court.
Analysis and decision
State-bound to follow Rules of Recruitment
Relying on the decisions in State of U.P. v. Raj Kumar Sharma, (2006) 3 SCC 330 and Arup Das v. State of Assam, (2012) 5 SCC 559, the Court restated the settled principle of service jurisprudence that the State is bound to follow the rules of recruitment to various services under the State or to a class of posts under the State and the selection of the candidates is to be made as per the scheme of recruitment rules and appointments shall be made accordingly. At the same time, all the efforts shall be made for strict adherence to the procedure prescribed under the recruitment rules. On the contrary, if any appointments are made bypassing the recruitment procedure known to law, it will result in violation of Articles 14 and 16 of the Constitution.
Status of appointments made for exceptional reasons
The Court noted that in the present matter, the appointment of the 22 candidates (whose appointment has given rise to the present round of litigation) was an exceptional case, where the appointment was made on a concession granted by the State for giving a quietus to the long drawn litigation.
It was then observed that it is true that the appointments in the ordinary course are to be made strictly in the order of merit in terms of the select list prepared by the competent authority as contemplated under the relevant statutory recruitment rules and any appointment in contravention indeed is in violation of Article 14 of the Constitution. But there is a proviso to this rule in instances where appointments are made deviating from the merit list drawn by the competent authority in exceptional cases as being reflected in the instant case where there was ongoing litigation and the subsequent selection was also made to give quietus to the ongoing litigation. It was held that such appointment though is irregular, but it cannot be held to be illegal as claimed by the appellants.
Error not to become foundation for perpetuating illegality
The Court was of the opinion that the appellant cannot be extended the same benefit. Reliance was placed on Union of India v. Kartick Chandra Mondal, (2010) 2 SCC 422 wherein it was observed that if something is being done or acted upon erroneously, that cannot become the foundation for perpetuating further illegality. If an appointment is made illegally or irregularly, the same cannot be made the basis of further appointment and erroneous decision cannot be permitted to perpetuate further error to the detriment of the general welfare of the public or a considerable section. Reference was also made to Arup Das v. State of Assam, (2012) 4 SCC 559.
It was held that though appointments of 22 candidates made by the State are irregular appointments and not in conformity to the recruitment rules, still what was being prayed by the appellants if is accepted, that will perpetuate the illegality which has been committed by the State and negative equality cannot be claimed to perpetuate further illegality.
No disturbance to long-standing position
The Court noted that that by now, the 22 candidates against whom the lis was raised by the present appellants, had completed almost more than 12 years of service and thus having rich experience in the field. It was also observed that the concession given by the Advocate General for the State in favour of these candidates, appeared bonafide to give quietus to the ongoing litigation pending in Courts for sufficiently long time.
In such view, the Court was not inclined to disturb the appointment of these 22 candidates which had been questioned by the appellants in the present appeals. Reliance was placed on Gujarat State Dy. Executive Engineers’ Assn. v. State of Gujarat, 1994 Supp (2) SCC 591 and Buddhi Nath Chaudhary v. Abahi Kumar, (2001) 3 SCC 328.
Consequently, the Supreme Court dismissed the present appeals. [Pankjeshwar Sharma v. State of J&K, 2020 SCC OnLine SC 984, decided on 3-12-2020]
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