Praveen Kumar Babbar And Ors. vs High Court Of Delhi Through ...
2007 Latest Caselaw 1561 Del

JUDGMENT

A.K. Sikri, J.

1. The petitioners are the employees of the High Court of Delhi. They are working in various capacities such as Personal Assistant, Judicial Assistant, Junior Judicial Assistant, Translator, etc. All these posts are feeder cadre for promotion to the next higher grade, namely, Senior Judicial Assistant (hereinafter referred to as 'SJA'). They had earlier appeared in a written test, which was conducted in the year 2006. Though they were declared successful in the said test, Office Order dated 25.11.2006 was issued appointing 16 candidates to the post of SJA on the premise that there were 16 vacancies at the time when selection process was initiated. Further, 7 more posts fell vacant after the holding of the test and before orders for appointment of 16 candidates were issued. The High Court, therefore, started fresh process of holding test to fill these 7 posts and fixed 8.7.2007 as the date of written examination for this purpose. The petitioners want to be appointed as SJA on the basis of the competitive test already held in which they had qualified. In these circumstances, they filed the present writ petition in May 2007 seeking mandamus to the effect that they be appointed as SJA without the process of fresh examination. In order to appreciate this prayer, we shall have to take stock of the necessary facts and the submissions of the petitioners in support of their aforesaid plea.

2. For appointment to various posts in the Registry of Delhi High Court, rules have been framed, which also specify conditions of service governing appointments to various posts. These are called the Delhi High Court Establishment (Appointment and Conditions of Service) Rules, 1972. Rule 7 deals with appointment to the post of SJA. Though it is the officials of the High Court occupying certain specified post, who are entitled to be appointed as SJA, Rule 7 prescribes two modes of appointment. 50% of the vacancies are to be filled up on the basis of seniority-cum-suitability from amongst the eligible employees and remaining 50% posts are to be filled up on the basis of competitive test. The exact terminology which is contained in Rule 7 is reproduced below:

7. Mode of Appointment

Except for appointment on officiating, temporary or ad-hoc basis, the mode of and qualifications for appointment to the post specified in Schedule-II to these rules shall be as stated therein.

Schedule-II

8. Senior Judicial Assistant including Court Officer and Reader (Promotion/ Selection post)

a. For members of the Establishment of this Court: Graduate with 5 years service in any of the posts of the categories 15 (including service rendered as Judicial Assistant) and 17, mentioned in Schedule-I.

a. 50% of the vacant posts by promotion on the basis of seniority-cum-suitability from categories specified in column-3

b (i) For members of the Establishment of this Court: Graduate with 5 years or Matric/Higher Secondary with 8 years service on the establishment of this Court; and for members of the Establishment of Courts subordinate to this Court : Graduate with 5 years service in a post carrying pay scale of not less than Rs. 4000-6000 (Revised).

b(i) 50% of the vacant posts by selection on merit from the categories specified in column No. 3 on the basis of written test and interview, failing which;

b(ii) For direct recruits; Graduate

b(ii) By direct recruitment on the basis of written test and interview.

A reading of the aforesaid Rule makes it clear that 50% posts are to be filled by promotion on the basis of seniority-cum-suitability. In the instant petition, we are not concerned with the promotions under this category inasmuch as the petitioners aspire for appointment to the post of SJA through other channel, namely, "selection on merit", which is to be done on the basis of written test and interview.

3. In the year 2006, when the selection process to this post was initiated, Circular dated 14.3.2006 was issued, inter alia, mentioning that it was proposed to hold an examination for filling up "vacant posts" of SJAs against this quota. The exact number of posts, which were to be filled, was not specified in this circular. The eligible candidates were asked to apply by 25.3.2006 in case they desire to appear in the test. It was also mentioned in the circular that those candidates who obtained 40% marks in each of the written papers (two written papers were to be held) were to be called for interview and only those candidates obtaining 40% marks in aggregate of the marks in the written paper and interview were to be considered qualified. The petitioners being eligible as per the norms laid down in the Recruitment Rules submitted their applicants and were allowed to appear in the written test. The written test was conducted on 16.4.2006. Results thereof were declared on 23.8.2006. 35 candidates were successful in the said exam, which included all these petitioners who are 15 in number. All the 35 candidates were interviewed by the Selection Committee from 28.8.2006 to 28.9.2006. Thereafter, Office Order dated 25.11.2006 was issued giving appointment to 16 candidates to the post of SJA. By this order, 20 persons were also promoted against 50% vacancies to be filled on the basis of seniority-cum-suitability. Insofar as the Selection Quota is concerned, 16 candidates out of 35 candidates, who were successful in the written examination, were appointed to this post. All these petitioners could not be accommodated at that time. Admittedly, on the date when the Circular dated 14.3.2006 inviting applications for the post of SJA was issued under the Selection Quota, there were 16 vacancies under this quota. Again, there is no dispute that between 14.3.2006 and 25.11.2006, 7 more vacancies meant for this quota became available.

4. On the basis of the aforesaid factual premise, case of the petitioners is that they should have been appointed to the post of SJA on 25.11.2006 inasmuch as on the date of interview there were 23 vacancies available, to be filled, and not 16. This plea is predicated on the premise that once the petitioners had qualified the test, which is the only requirement, they are entitled for appointment to the said higher post. Mr. Patwalia, learned senior counsel appearing for the petitioners, buttressed this claim for appointment by highlighting the following aspects:

a) the written test and interview to the post of SJA is a qualifying test. The only requirement is that a candidate should pass the written test with 40% marks in each of the written papers and thereafter on the basis of interview, when the marks of the interview are added to the marks obtained in the written examination, a candidate should obtain 40% marks in aggregate of the marks in the written papers and interview. On obtaining these marks, a candidate is to be considered as qualified, as stated by the respondent itself in its Circular dated 14.3.2006, relevant portion whereof reads as under:

The candidates obtaining 40 percent marks in each of the written papers shall be called for interview and only those candidates who obtain 40 percent marks in aggregate of the marks in the written papers and interview, shall be considered qualified.

His submission was that once a candidate had qualified the selection process as per the aforesaid stipulation, he could not be subjected to the same test again as that would be entirely unnecessary.

(b) he further submitted that in the Circular dated 14.3.2006, number of posts to be filled were not specified and the proposed examination was for filling up the "vacant posts". In the absence of exact stipulation of the number of posts in the circular, the respondent was under obligation to fill all the posts that became available when Order of Appointment dated 25.11.2006 was passed. Learned senior counsel went to the extent of arguing that even those vacancies which arose, or would arise, after 15.11.2006 are to be filled from amongst the left over successful candidates. To put it differently, his submission was that all the 35 candidates who had qualified the test were to be appointed as SJA against the future vacancies as and when those vacancies arose and fresh test was required only after exhausting the list of successful candidates in the selection process pursuant to the Circular dated 14.3.2006.

This submission was canvassed taking cue from the past practice adopted by the High Court and the judicial precedent i.e. decision of a Division Bench of this Court in the case of K.B. Vashist v. Hon'ble the Chief Justice and Ors. (CWP No. 2258 of 1991) rendered on 1.3.1993. He also tried to draw sustenance from another Division Bench judgment of this Court in Atul Kumar Sharma and Anr. v. Hon'ble the Chief Justice and Anr. (CWP No. 1218/1989 decided on 16.10.1998). He pointed out that on earlier occasion the High Court had accommodated all such persons who had qualified the test and the petitioners were similarly situated. He referred to the Circular dated 21.7.2000 in which 45 candidates were declared qualified. As on the date of circular, there were 25 vacant posts under the Selection Quota. The Selection Committee recommended appointment of 25 persons out of 45 candidates who qualified the test. No panel was prepared for rest of the qualified candidates. He also referred to Circular dated 29.4.2003 vide which selection to this very post, namely, SJA under the same quota were carried out. That circular was also in identical terms. At that time 36 candidates had qualified the test, who included 10 officials who had earlier qualified the test in the year 2000 but were not appointed. However, 20 candidates who had qualified the test in the year 2000 and were not given the promotion, made representations for their appointment. Having regard to the judgment in Atul Kumar Sharma (supra), the Selection Committee recommended that those 20 officials who could not be appointed earlier, though they had qualified the written test on 13.8.2000, were required to be accommodated. This recommendation was accepted and those 20 candidates, who had qualified the test in the year 2000, were all given appointment to the post of SJA whether they had appeared/ qualified the test in the year 2003 again or not.

(c) Not only this, he further pointed out that in addition to 20 candidates who had qualified the test in the year 2000, 26 new candidates (since 10 candidates were the common candidates who qualified the test in the year 2000 as well as in 2003) had also qualified; total persons who had qualified the test were 46. There were only 39 vacancies available at that time. Therefore, while appointing 39 persons, in respect of the 7 remaining successful candidates, it was recommended by the Selection Committee that they be absorbed against future vacancies.

(d) He also referred to the following two judgments of the Apex Court to contend that vacancies available up to the date of interview had to be filled up from amongst the candidates selected in the competitive test:

i) Virender S. Hooda and Ors. v. State of Haryana and Anr. ; and

ii) Sandeep Singh v. State of Haryana and Anr. .

5. Learned Counsel appearing for the High Court, on the other hand, submitted that there were 16 vacancies at the time when appointment process was initiated. The Selection Committee went into the entire exercise on the basis of the aforesaid specified vacancies, which was clear from the Minutes of the Selection Committee. He produced those Minutes for the perusal of the Court. He referred to another judgment of the Division Bench of this Court in the case of Hon'ble Chief Justice, Delhi High Court v. Gajender Pal Vohra where, in similar circumstances, the Division Bench took the view that only notified vacancies, could be filled up. He submitted that in this judgment the Division Bench had taken note of its earlier judgment in J.N. Verma v. Hon'ble Chief Justice of Delhi Court (CWP No. 2670/87 decided on 19.5.1992). He also explained the circumstances under which the candidates, who qualified the written examination in the year 2003, were accommodated when the selection process was initiated in the year 2006 and produced the Minutes of the Selection Committee to contend that the same was done in the peculiar circumstances noted by the Selection Committee, which cannot be treated as precedent.

6. We may initiate our discussion from the judgment of this Court in Gajender Pal Vohra (supra) as earlier Division Bench judgment in the case of J.N. Verma (supra) is also discussed in this case. Understanding of this case will, therefore, clear our path and suggest the course of action we are supposed to take. The Court clarified the legal position as per Article 229 of the Constitution of India which empowers the Chief Justice of the High Court or such other Judge or Officer of the Court, which the Chief Justice may direct, to appoint officers and servants of a High Court. The object of this Article is to secure the independence of the High Court. The Bench clarified that the Constitution confers exclusive jurisdiction on the Chief Justice so far as appointment of officers and servants of a High Court is concerned and no appointment can be made unless sanctioned or ordered by the Chief Justice. That case was concerned with the appointments to the post of Superintendent/Court Master. The Court noted that the Chief Justice had directed only two vacancies in Selection Quota in the cadre of Superintendent/Court Master to be filled and, on this direction, a notification inviting applications for appointment on the two posts was issued on 28.8.1990. Writ petition was filed seeking appointment of at least 5 persons who cleared the selection test, held on 16.9.1990, as admittedly there were 5 vacancies for the Selection Quota available by that time, notwithstanding the fact that selection process was started for filling up 2 vacancies, which only were available at the relevant time of issue of notification dated 28.8.1990. Single Judge allowed the writ petition against which LPA was filed and the aforesaid issue was, thus, considered by the Division Bench having regard to the aforesaid factual background. The Court opined that the selection and appointment to be made could not exceed 2 vacancies which were notified. For arriving at this conclusion, the Division Bench referred to four judgments of the Supreme Court, namely:

i) State of Bihar v. Secretariat Asstt. Successful Examinees Union ;

ii) Harjinder Singh Sodhi v. State of Punjab and Ors. ;

iii) State of Bihar v. Madan Mohan Singh 1994 Supp. (3) SCC 308; and

iv) Prem Prakash v. Union of India 1984 (Sup) SCC 687.

Each of these judgments are discussed in the following manner:

6. In the case of State of Bihar v. Madan Mohan Singh (supra), the appellant-Government had invited applications on 29.9.1989 for filling up 32 vacancies. After conducting interview in November, 1990 a panel of 32 candidates was drawn up. On 24.11.1990, a resolution was passed that any further vacancy within one year would be filled up from the merit list already prepared. A question arose whether the appointments can be made from the panel already drawn up or fresh recruitment process was required to be resorted to for filling up future vacancies. Their Lordships held that the crucial question was whether, in fact, the advertisement and the initial decision taken was meant to fill up 32 vacancies only. It was held:

The temporary vacancies arose subsequently but even otherwise in the view we are taking namely that the particular advertisement and the consequent selection process were meant only to fill up 32 vacancies and not to fill up the other vacancies, the merit list prepared on the basis of the written test as well as the viva voce will hold good only for the purpose of filling up those 32 vacancies got exhausted and came to an end. If the same list has to be kept subsisting for the purpose of filling up other vacancies also that would naturally amount to deprivation of rights of other candidates who would have become eligible subsequent to the said advertisement and selection process.

7. In State of Bihar v. Secretariat Assistant Successful Examinees Uniion (supra), advertisement inviting applications for vacancies falling up to 1985-86 was issued in the year 1985. Examination was held in November, 1987 and the result published in July, 1990. The empanelled candidates who were left out after filling up vacancies up to 1985-86 approached the High Court seeking appointment against vacancies available on the date of the publication of the result as well as the vacancies arising up to 1991. The High Court allowed the prayer. In an appeal before the Supreme Court their Lordships held that the direction given by the High Court was not proper and could not be sustained.

8. In Harjinder Singh Sodhi's case (supra), their Lordships have held that those who had sought for nomination to the post available in 1991 can be considered only for appointment to nine posts which arose in 1991 and could not be considered for selection for subsequent vacancies because that would have the effect of adversely affecting the candidates who became qualified later.

9. Prem Prakash v. UOI (supra) also lends support to the same view. Two previously selected persons were sought to be appointed against vacancies occurring in a later year. Their Lordships held that this must be avoided because that results in ouster of two newly selected persons. Justice to one group at the expense of injustice to another is perpetuation of injustice in some form or the other, held their Lordships.

7. It was, thus, concluded that the selection and appointment to be made cannot exceed the number of vacancies notified. The Division Bench was also of the view that when the Chief Justice had directed only 2 appointments to be made, on the basis of which the process was initiated, directing the Chief Justice to make 5 appointments instead of 2, where the Chief Justice was neither constitutionally nor legally obliged to make such number of appointments, would amount to exceeding the limits of judicial review and transgressing upon the constitutional power of the Chief Justice enshrined in Article 229 of the Constitution. In para 14, the Division Bench summed up the reasons in support of this view by giving reasons, which reads as under:

14. The direction made by the learned Single Judge cannot be sustained for several reasons. Firstly, such a direction would tantamount to usurping the power which the Constitution has chosen to vest exclusively in the Chief Justice. Secondly, it is not in conformity with the law laid down by the Supreme Court consistently in the cases referred to hereinabove. Thirdly, the selection process initiated in the year 1990 for only two vacancies had a limited zone of consideration by including therein a limited number of employees, eligible till then; while a selection process initiated with five vacancies would have provided a wider zone of consideration from amongst the eligible employees by reference to the date on which 5 vacancies became available. The right of employees to be considered for selection who had become eligible by the time five vacancies became available has been taken away for no fault of theirs. Fourthly, the right of the employer i.e. the High Court to have a wider number of eligible candidates to choose from has been prejudiced.

8. The Court distinguished the earlier judgment of the Division Bench in J.N. Verma (supra) on the ground that "number of vacancies available at the time when the selection process was initiated was not specified and the Selection Committee had prepared a list of successful candidates". The Court also took note of the fact that when the matter was placed before Hon'ble the Chief Justice, His Lordship had on 11.9.1985 directed that steps be taken up immediately to fill up all the vacancies which were lying vacant at that time. It was because of this order of Hon'ble the Chief Justice, in J.N. Verma's case (supra), the Court had held as under:

This noting further strengthens the case of the petitioners that when selection is made pursuant to a circular which does not specify the available vacancies the idea in preparing the list is to make appointments as soon as vacancy arises. Undoubtedly under Article 229 of the Constitution of India appointment of officers and servants of a High Court has to be made by the Chief Justice. Thus, the Chief Justice must feel the Administrative necessity to have a panel. In the facts of the present case however we find that since the Chief Justice directed issuance of a circular without specifying the vacancies and appointed Selection Committee to select candidates without specifying the number and further more approved the list prepared by the Selection Committee shows that the Chief Justice did feel the administrative need to have the panel. It was thus not necessary for the Chief Justice to once again reiterate the decision to maintain a panel. The noting of the Chief Justice dated 6.8.1987 further makes the position abundantly clear that the list prepared by the Selection Committee was in fact a panel of selected candidates.

Taking note of the aforesaid facts and observations in J.N. Verma (supra), the court in the case of Gajender Pal Vohra (supra) drew the following distinction:

11.3 It is, therefore, clear that in the case of J.N. Verma the selection was not against a specified number of vacancies. A panel of selected candidates was intended to be prepared so as to make available suitable candidates to fill up vacancies as and when they occur. Thus the selection process was initiated and meant for filling up vacancies in contemplation. Such is not the case at hand. On the contrary, the fore-quoted extracts go to support the case of the appellant before us rather than the respondent's.

9. It is clear from the reading of the said judgment that, as a principle of law, the employer is to fill up only those vacancies which are notified and for which selection process has taken place and the selection and appointment is not to exceed the number of vacancies notified. However, where the vacancies are not notified and selection is made to fill up all the vacancies and panel of selected candidates is prepared so as to make available suitable candidates to fill up vacancies as and when they occur, the appointment is not to be confined to the number of vacancies available at the time of initiation of selection process, but those vacancies which arise thereafter are also to be filled up.

10. Mr. Patwalia, learned senior counsel appearing for the petitioners, did not dispute the aforesaid proposition or ratio of the judgment in Gajender Pal Vohra (supra). His submission was that even as per that judgment, J.N. Verma (supra) case was distinguished only on the ground that no vacancies were specified at that time, whereas when the selection process was started in the year 1990, it was for two vacancies and for this reason the Court opined in Gajender Pal Vohra (supra) that the appointment could not exceed the number of vacancies notified. His submission, therefore, was that in order to apply the principle laid down in Gajender Pal Vohra (supra), it was necessary that number of vacancies are 'notified'. He submitted that this was also the position in all the four cases, which were noticed by the Court in Gajender Pal Vohra (supra). On the other hand, in the present case, no vacancies were notified and, therefore, the case of the petitioners was at part with the situation prevalent in J.N. Verma's case (supra) and, therefore, the course of action adopted in J.N. Verma (supra) should be followed here as well.

11. In order to appreciate this contention, we will have to examine as to whether it is necessary to notify the vacancies in the advertisement specifically or whether it is sufficient if the process if initiated for particular number of vacancies in mind. This consideration is necessary because of the reason that in the instant case the process was initiated on the basis that there were 16 vacancies of SJA available which were to be filled, but in the circular/advertisement issued for inviting applications, number of vacancies were not specified. However, as per the minutes of the Selection Committee, which were produced before us, this fact was specifically taken note of that on the date of issuance of Notification dated 14.3.2006, 16 vacancies in the test quota were available. The Selection Committee also referred to the judgment in the case of Gajender Pal Vohra (supra), on the basis of which decision was taken by it to give appointment to 16 persons in the order of merit, though more candidates had qualified the test and though 7 more vacancies had fallen vacant in the meantime. Therefore, only because Notification dated 14.3.2006 did not specifically mention that the selection process was for 16 vacancies, would that be a ground to state that all though who qualified should be appointed, in excess of vacancies available at that time, i.e. against the vacancies which arose subsequently.

12. We have gone through the judgment of the Supreme Court in the case of State of Bihar and Anr. v. Madan Mohan Singh and Ors. 1994 Supp (3) SCC 308. It was a case of appointment of Additional District & Sessions Judge in the High Court of Patna, which judgment was taken note of in the case of Gajender Pal Vohra. From the reading of the judgment, it does not appear in the notification/advertisement inviting applications, number of available vacancies, which were 32, were mentioned therein. However, the court found that since the selection process was meant only for 32 vacancies, appointment to that extent only could be made. Likewise, in the case of State of Bihar and Ors. v. Secretariat Asst. Successful Examinees Union 1986 and Ors. , the advertisement stated that vacancies up to the year 1985-86 were to be filled up after holding an examination, but the number of vacancies were not notified therein. Same was the position in Harinder Singh Sodhi v. State of Punjab and Ors. .

13. The petitioners cannot draw sustenance from J.N. Verma (supra). As pointed out in Gajender Pal Vohra's case (supra), the position in J.N. Verma's case (supra) was quite different. In that case, Hon'ble the Chief Justice had directed that steps be taken up immediately to fill up all the vacancies and the selection was not against a specified number of vacancies. Even the exercise which was done after the selection process, namely, a panel of selected candidates was intended to be prepared so as to make available suitable candidates to fill up vacancies as and when they occur. Therefore, selection process was initiated and meant for filling up vacancies in contemplation as well. On the contrary, in the present case, the Selection Committee made it clear that it was filling up only 16 vacancies which were available at the time of issuing the notification and consciously chose not to make any panel.

14. There is another significant factor which cannot be lost sight of. The appointments which were made are in the order of merit of the candidates on the basis of written test and interview. This is done keeping in view the real position in mind. In the Selection Quota, the vacancies are to be filled up "by selection on merit" which is on the basis of "written test and interview". Thus, the posts under this quota are to be filled up only on merit from amongst those candidates who become eligible, namely, candidates belonging to category specified in Column No. 3, with 5 years service in that post. Eligible candidates are required to appear in the written test and interview and are to be selected on their merit alone. It is, thus, misnomer to say that once a person "qualifies the test, he becomes entitled to be appointed to the post".

15. There is yet another reason which would deprive the petitioners of the relief they intend to claim. Though no select list is prepared, even if it is presumed that all those who qualified the test came in the select list, they would not get automatic right to be appointed to the post of SJA inasmuch as it is a fundamental principle settled by the Supreme Court that no legal right to demand appointment even upon selection and placement of their names in the select list arises in favor of such persons {See - Rani Laxmibai Kshetriya, Gramin Bank v. Chand Behari Kapoor and Ors. }.

16. The circumstances under which those left over candidates, who qualified the test in the year 2000 and were accommodated in the year 2003, were also different and even satisfactorily explained in the counter affidavit. In the year 2000, as on the date of the Circular, 25 vacant posts in the cadre of SJA under test quota were available. After the written examination and interview, 45 candidates were declared qualified. Since the number of vacancies falling under 50% test quota were 25 as on the date of Circular, the Selection Committee recommended for appointment of first 25 candidates out of the 45 qualified candidates and no panel was prepared for the rest of the qualified candidates. These recommendations of the Selection Committee were approved by Hon'ble the Chief Justice vide orders dated 5.12.2000. These 20 candidates who qualified the test were not appointed under this quota as there were only 25 vacancies.

17. What is to be noted at this stage is that till 1988 the appointments to the posts of SJA/Court Officer/Reader were being made, 50% by promotion from categories of UDC/Cashier on the basis of seniority-cum-suitability and 50% by selection on merit on the basis of written test and interview. Against 50% of the vacant posts to be filled in on the basis of written test and interview, Judicial Translator were also eligible to take the test. However, the Rules were amended w.e.f. 16.3.1988 so as to provide 100% promotion to the posts of SJA from the categories of UDC and Cashier. Aggrieved by this amendment, certain Judicial Translators filed Writ Petition No. 1218/1989 challenging the said amendment dated 16.3.1988. The Writ Petition was allowed vide judgment dated 16.10.1998 and the said amendment dated 16.3.1988 was quashed.

18. In the year 2003, when the question of filling up of vacancies of SJA under the test quota arose, the Selection Committee in its meeting on 7.4.2003 considered the effect of the aforesaid judgment and made the following recommendation:

After going through the High Court judgment dated 16.10.1998 passed in CWP No. 1218 of 1989 titled as "Shri Atul Kumar Sharma v. Hon'ble the Chief Justice, Delhi High Court" and considering its effect and the office note, we have decided that a fresh test may be held for filling up the vacant posts of Senior Judicial Assistant which have become available since 1988 against 50% test quota under the supervision of Mr. B. Radhakrishna, Registrar (Admn.).

Above recommendations were approved by Hon'ble the Chief Justice vide order dated 24.4.2003. Accordingly, in the year 2003, as per Notice dated 29.4.2003, another test for filling up the remaining vacant posts of SJA out of the vacant posts which became available since 1988 against 50% test quota was held on 4.7.2003. Before holding of the examination in the year 2003, following three representations were under consideration before the Selection Committee:

1. Joint representation dated nil made by Mrs. Kokila Gosain and 26 others praying for filling up 50% vacant posts of Senior Judicial Assistant on the basis of seniority-cum-suitability and the remaining 50% on the basis of written test and interview.

2. Joint representation dated 13.9.2002 made by Mr. Tej Pal and 17 others who qualified the written test held on 13.8.2000 praying that the result of the remaining 20 candidates may be declared and they may be appointed as Senior Judicial Assistants with retrospective effect against the vacant posts which were already available at the time of the test.

3. Joint representation dated 19.5.2003 made by Mr. Mahesh Kumar, Judicial Assistant praying that only those persons may be allowed to sit in the examination who had completed five year service during the year in which vacancies became available.

Before the declaration of result of the 2003 examination, all the aforesaid representations were given personal hearing by the Selection Committee to resolve the issue.

19. The issue of filling up the vacancies of test quota was considered by the Selection Committee in view of the above said representations and recommendations dated 8.4.2002 made by the Committee for implementation of judgment dated 16.10.1998 passed in Atul Kumar Sharma (supra). Total 36 candidates qualified in the said test and vacancies of test quota, at the time of considering the result, were 39. The Selection Committee was also of the view that all the 45 officials (including 20 officials who could not be appointed) who qualified the written test held on 13.8.2000 were required to be accommodated. Out of the 36 candidates who qualified the test held in the year 2003, there were 10 officials who had also qualified the test held in the year 2000 and were not appointed earlier. The Selection Committee recommended as under:

(i) 20 officials who qualified the test held on 13.8.2000 as per list annexed hereto as Annexure 'B' may be appointed notionally w.e.f. 5.12.2000, the date of promotion of other qualified candidates of the said examination and actually from the date of orders of Hon'ble the Chief Justice.

(ii) First 10 officials (S. No. 1, 3, 4, 6 to 8, 10 to 19, 21 to 23 of Annexure 'A') who have qualified in the present test may be appointed against the remaining 19 vacant posts of Senior Judicial Assistant going to the 50% test quota.

(iii) The remaining 7 candidates (S. No. 24, 25, 27, 30, 31, 34 and 35 of Annexure 'A') may be kept on panel.

These recommendations were approved by Hon'ble the Chief Justice vide orders dated 17.5.2004.

20. We have gone through the judgment in the case of Atul Kumar Sharma (supra). However, we do not find that the said judgment has any bearing on the filling up of vacancies under the test quota as question involved there was totally different. Moreover, as noted hereinabove, initially the Selection Committee in its meeting held on 7.4.2003 had took the decision that fresh test was required to be held for filling up of the vacant posts of SJA. It is not clear from the minutes of the Selection Committee, which were produced for our perusal, as to what prompted the Selection Committee to take the view that 20 officials who had qualified the written test on 13.8.2000 were required to be accommodated as the rule position did not warrant such a course of action. Even if it is presumed that it was because of the complexities which existed at that time which persuaded the Selection Committee to take such a view, this cannot be treated as precedent to follow for future appointments.

21. It is because of this reason, we find it appropriate to go by the mandate of the rules for the purpose of considering whether the petitioners, who qualified the test on an earlier occasion but could not be appointed for want of vacancies available as on date when the process was initiated, are to be accommodated or not. We are constrained to point out that as per the extant Rules, the petitioners could not claim such benefit in view of our discussion above.

22. The Division Bench of this Court in Gajender Pal Vohra (supra) had laid down the law, in explicit terms, on the interpretation of the said rules and the Selection Committee in its meeting held on 13.11.2006 took note of this judgment and decided that since there were 16 vacancies at the time of issuing of the Notification dated 14.3.2006, only 16 candidates were to be appointed, in order of merit, and no panel was prepared. This course of action, thus, is in consonance with the legal position as per rules, on the basis of which the aforesaid judgment in Gajender Pal Vohra (supra) was rendered by this Court. Prudence, therefore, demands not to interfere with such an action.

23. The judgment in the case of Virender S. Hooda (supra) cited by learned Counsel for the petitioner would be of no avail. That case was based on Circulars dated 22.3.1957 and 26.5.1972, according to which the vacancies which arise within six months from the receipt of recommendations of the Haryana Public Service Commission should also be filled up from the waiting list maintained by the Commission. These circulars unequivocally provide that if additional vacancies occur after the Commission made recommendations, such additional vacancies can also be filled up from amongst candidates recommended by the Commission. It was in view of these circulars, the Supreme Court took the view that the vacancies which had arisen even afterwards were to be filled up from amongst the candidates recommended by the Public Service Commission.

In the case of Sandeep Singh (supra), Virender S. Hooda (supra) is followed and same directions followed because of the said circulars.

24. The position in law, therefore, would be that where it is decided to fill up the specified number of vacancies, then only those vacancies can be filled. However, cases where rules or administrative instructions permit filling up of the future vacancies also and maintaining wait list/panel for a particular period, as per the rules, the said wait list/panel is to be operated for filling up of the vacancies during the life of the said panel. However, where rules do not provide for preparing such panel and no such panel is prepared, as in the instant case, such vacancies which arise subsequently would not be filled up from amongst the candidates who may have qualified the written test.

25. The upshot of the aforesaid discussion would be to dismiss the writ petition being devoid of any merit. It is ordered accordingly.

No costs.