Supreme Court: The appellants in the instant bunch of appeals challenged the judgment passed by Division Bench of Himachal Pradesh High Court which quashed their appointment to the post of Civil Judge (Junior Division), and those who were also the candidates for the same post for the year 2013 who challenged the selection process and appointment of the appellants. The Division Bench of C.T. Ravikumar and Sudhanshu Dhulia, JJ. upheld the High Court’s findings on law regarding flaw in the selection process. However, while exercising its powers under Article 142 of Constitution of India, the Court set aside the impugned order to the extent of quashing selection and appointment of appellants.
The appointments in question were initiated through advertisement issued on 1-02-2013 for Himachal Pradesh Public Service Commission inviting applications for 8 vacancies for the post of Civil Judge (Junior Division) in Himachal Pradesh Judicial Service. Out of those 8 vacancies, 6 were ‘existing vacancies’ and two were ‘anticipated vacancies’. The preliminary examination was conducted on 12-05-2013 whose results were declared on 15-06-2013, and qualified candidates participated in main written examination dated 15-07-2013 to 18-07-2013. Among all, 80 qualified candidates for the written examination appeared for the interview on 7-10-2023 and 8-10-2023, followed by a list of selected candidates published in the newspaper.
Two of the appellants did not find their space in the said list but their names were included later vide notification issued by State Govt. on 27-12-2013. The High Court held the two selections and their appointments to be illegal and thereby quashed the same, thereby challenged in the instant matter.
The Court pointed towards the exercise evidently undertaken at the level of the State Government after publication of results for 8 vacancies whereby, information was sought from the Registrar General of the Himachal Pradesh High Court regarding the correct position of existing vacancies in the state judicial service in the cadre of Civil Judge (Junior Division) which came back with 6 vacancies for unreserved category, 1 for SC, 2 for ST and 2 for OBC respectively.
Meanwhile, a meeting was held by a Committee at the State level on 21-10-2013 for discussing selection of Judicial Officers in the ongoing 2013 process along with the number of vacancies for selection wherein, officers nominated by the State government, State Public Service Commission (‘SPSC’) and Himachal Pradesh High Court were present. The said Committee noted that earlier, only 8 candidates were included in the selection list, while a few more should have been included, in view of directions in Shweta Dhingra v. State of H.P., 2011 SCC OnLine HP 3566. The Committee recommended inclusion of two of the general category candidates and two candidates of SC-ST categories in the merit list. Thus, the recommendations were made only for existing and anticipated vacancies, while it ought to have been made for additional posts – 2/3rd of actual and anticipated vacancies.
Court’s Analysis on Selection/Appointment Process
The Court highlighted that in Shweta Dhingra (supra), the Division Bench dealt with selection of Civil Judge (Junior Division) in HP for 2010, which opined that apart from clear and anticipated vacancies, the Commission should prepare a select list of some additional candidates, which was followed in the instant case. The Court therefore went on to peruse the directions in Shweta Dhingra (supra) and pointed towards the direction regarding additional vacancies to be 2/3rd of actual and anticipated vacancies, and the joint exercise to be undertaken by the State Commission, State Government and the High Court in determining and filling such vacancies.
The Court questioned why the 2/3rd of clear and anticipated vacancies was to be published in addition to clear and anticipated vacancies. It expressed that “If that had to be a waiting list then such a direction could not have been given after the selections were over. In any case, there was no pressing urgency for picking new vacancies for the selection year 2013, after the selection was over and result had been announced.”
What followed as per instant facts was that only two names next in order of merit were made available for the select list, who were recommended for appointment as Civil Judge (Jr. Division) by SPSC under general category. They were issued appointment letters, send for training in the judicial academy and were posted as Civil Judge (Jr. Division) in different districts. After completion of probation and 9 years of service both of them have also been promoted to the post of Civil Judge (Sr. Division) on 23-03-2023.
The Court considered whether the directions in Shweta Dhingra were in line with the decision in Malik Mazhar Sultan (3) v. U.P. Public Service Commission, (2008) 17 SCC 703. The Court explained that the directions in Malik Mazhar (supra) aimed at timely filling the judicial vacancies in States, by fixing a deadline for each High Court. The Court explained that “Judicial services in States start from the cadre of Civil Judge (Junior Division), who are also called Judicial Magistrates, when they work on the criminal side. In Malik Mazhar, it was directed that all “vacancies” of Civil Judge (Junior Division) shall be notified by the 15th January of that year.” The said vacancies had the timeline for applications, examination, viva voce, results and appointments, the procedure to be wrapped within a year. Constitution of a committee of 2-3 judges for monitoring selection process was also requested by the Court along with issuing other directions. The Court explained that the difficulty lay with future vacancies which led to confusion among different states, an aspect which was cleared in Malik Mazhar Sultan v. U.P. Public Service Commission, (2009) 17 SCC 24 in order dated 24-03-2009, and as opined by the Court, the third category created earlier did not exist.
The Court expressed that the directions in Shweta Dhingra (supra) were unnecessary and its reliance by the three-member committee was misplaced due to the fact that the vacancies had already been advertised, and that if necessitated, such an exercise should have been undertaken before advertising the vacancies on 1-02-2013. The Court further pointed towards the Himachal Pradesh Judicial Service Rules, 2004 which were amended to bring them in tune with directions in Malik Mazhar (supra) and the no. of vacancies to be notified skipped on clarification by the Court in Malik Mazhar-2. The Court cited High Court of Kerala v. Reshma A., (2021) 3 SCC 755 to explain that in case there was an apparent dichotomy between Service Rules and Court’s mandate under Malik Mazhar, that should be resolved through harmonious interpretation between the Service Rules and Articles 14 and 16 of the Constitution of India, while clarifying that the importance of Service Rules could not be belittled.
The Court cited Gujarat State Dy. Executive Engineers’ Assn. v. State of Gujarat, 1994 Supp (2) SCC 591 wherein, it was held that “Appointments cannot be made over and above the vacancies which have been advertised, except in an emergency situation or for some unforeseen reasons, in public interest or when a policy decision is taken by the State Government in this regard”. Then in Hoshiar Singh v. State of Haryana, 1993 Supp (4) SCC 377 which clarified that PSC cannot recommend more names than what have been advertised, and any appointment against excess vacancy would be arbitrary. The Court concluded that appointments cannot be made over and above the vacancies advertised.
Supreme Court Illuminates Law on Waiting List
The Court further highlighted that no ‘waiting list’ was prepared in the instant case and referred to Gujarat State Dy. Executive Engineers’ Association (supra) for explanation on ‘waiting list’, and pointed at Rakhi Ray v. High Court of Delhi, (2010) 2 SCC 637 which held the practice of making appointments on future vacancies from the waiting list as wrong. The Court rejected the argument of taking the names of two of the appellants so appointed to be names from the waiting list, stating that the question would still remain as to whether selection/appointment can be made on vacancies, which were never advertised, and that it would go against the very concept of a ‘waiting list’ so explained. The Court clarified the reason that the vacancies for which appointments were made could not be anticipated at the time of advertisement on 1-02-2013, but they were created later, being the future vacancies as deleted in Malik Mazhar-2.
The Court expressed that “To sum up the position of law as it stands, once clear and anticipated vacancies have been advertised, appointments can only be made on these vacancies. Vacancies which could not be anticipated before the date of advertisement, or the vacancies which did not exist at the time of advertisement, are the vacancies for the future i.e., next selection process.” The Court reiterated the timeline fixed in Malik Mazhar for vacancies to be declared on 15th January each year, and the process has to be completed by October of the same year.
Judge of Facts and Law
While dealing with the instant case, the Court upheld the High Court’s finding on the position of settled law, but pulled up the part missed out on context, facts and circumstances of the case. The Court expressed that “A Judge is a Judge of facts, as much as he is a Judge of law.” The Court pointed towards the two candidates already appointed and promoted, wherein, no favouritism, nepotism or so-called blame on their conduct was notified, which the High Court also took note of. The Court considered the question “Should we quash their appointment and unseat them from judicial service?”, which the High Court reflected its inability to protect their appointment and skipped on considering the level of blame of ‘illegal’ selection and appointment resting upon the High Court itself, being part of three-member committee and privy to the selection/appointment process. The Court highlighted that the appointments were never objected against except for the instant writ petition and the High Court had completely transferred the blame on post selection exercise undertaken by the State Commission.
The Court acknowledged the violation of process in making selection/appointments for never advertised vacancies, but considering the fact that the appellants had been working as Judicial Officers for almost 10 years, the Court viewed that unseating them would not be in public interest and decided the matter as a case of special equity in favour of appellants while following Sivanandan C.T. v. High Court of Kerala, 2023 SCC OnLine SC 994.
Therefore, the Court upheld the High Court’s findings on law regarding flaw in the selection process, but while exercising its powers under Article 142 of Constitution of India, the Court set aside the impugned order to the extent of quashing selection and appointment of appellants. The Court also restricted the instant litigation from coming in way of the appellants concerning their judicial careers, to be treated on a par with the other appointees of Civil Judge (Junior Division) for their year of appointment.
[Vivek Kaisth v. State of Himachal Pradesh, 2023 SCC OnLine SC 1485, decided on 20-11-2023]
Judgment authored by:
Advocates who appeared in this case :
For Appellants: AOR Amit Kumar Singh, Advocate K. Enatoli Sema, Advocate Chubalemla Chang, Advocate Prang Newmai, Senior Advocate Surendranath P. V., AOR Biju P. Raman, Advocate Subhash Chandran K R, Advocate Krishna L. R., Advocate John Thomas Arakal, Advocate Sawan Shukla, Advocate Lekha Sudhakaran, Senior Advocate Paramjit Singh Patwalia, Advocate Gauravjit Singh Patwalia, AOR Amit Verma, Advocate Swati Sood, AOR Anshuman, Advocate Damini Chawla
For Respondents: Advocate Vishwanathan Iyer, Advocate Shimpy Sharma, Advocate Arman Sharma, Advocate Jyoti Mehra, AOR Sandeep Jindal, Advocate D. K. Thakur, Advocate Rajeev Kumar Gupta, Advocate Tavleen Singh, Advocate Divyansh Thakur, Advocate Vallabhi Shukla, Advocate Joginder Mann, Advocate Niharika Singh, AOR Bimlesh Kumar Singh, AOR Chitranshul A. Sinha, Senior Advocate Paramjit Singh Patwalia, Advocate Gauravjit Singh Patwalia, AOR Amit Verma, Advocate Swati Sood, AOR Radhika Gautam, AOR Tushar Bakshi, AOR Neelam Singh, Advocate Vivek Mishra, Advocate Surinder Singh Lohchab, Advocate Sameer Singh, Advocate Kashmira Singh Chahar, AOR Christopher Dsouza, Senior Advocate P. V. Surendranath, AOR Advocate Biju P. Raman, Advocate Subhash Chandran K R, Advocate Krishna L. R., Advocate John Thomas Arakal, Advocate Sawan Shukla, Advocate Lekha Sudhakaran