Ajay Kumar Jain vs Lt. Governor & Anr.
2008 Latest Caselaw 1806 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI


                                               Reserved On : 10.09.2008

%                                      Date of Decision : 03.10.2008


+                   WP (C) No. 2688 of 2008

AJAY KUMAR JAIN         ...     ...    ...     ...      ...    ... PETITIONER
         Through:       Mr. Aman Lekhi, Senior Advocate with
                        Ms. Jaspreet S. Rai, Ms. Meenakshi Lekhi,
                        Mr. Rajan K. Chourasia, Mr. Syamal Kumar,
                        Mr. Rakesh Kumar and Mr. Rohit Nagpal,
                        Advocates along with petitioner in person.

                            -VERSUS-

LT. GOVERNOR & ANR.       ...    ...    ...      ...    RESPONDENTS
          Through: Ms. Zubeda Begum, Advocate for R - 1.
                    Mr. A.S. Chandhiok, Senior Advocate with
                    Mr. Viraj R. Dattar, Ms. Bandana Shukla,
                    Mr. Ritesh Kumar, Ms. Shikha Bhardwaj &
                    Mr. Arjun Mahajan, Advs. for R - 2.


+                   WP (C) No. 2913 of 2008

ANIL KUMAR JHA          ...     ...     ...    ...     ...     ... PETITIONER
         Through:       Mr. P.P. Khurana, Senior Advocate with
                        Mr. K.K. Jha and Mr. Anil Kumar Mishra,
                        Advocates.

                            -VERSUS-

LT. GOVERNOR & ANR.       ...    ...    ...      ...    RESPONDENTS
          Through: Ms. Zubeda Begum, Advocate for R - 1.
                    Mr. A.S. Chandhiok, Senior Advocate with
                    Mr. Viraj R. Dattar, Ms. Bandana Shukla,
                    Mr. Ritesh Kumar, Ms. Shikha Bhardwaj &
                    Mr. Arjun Mahajan, Advs. for R - 2.


                                AND




WP (C) Nos. 2688/2008, 2913/2008 & 3932/2008                 Page 1 of 19
 +                      WP (C) No. 3932 of 2008

RAJIV KUMAR GUPTA          ...     ...    ...    ...     ...     ... PETITIONER
          Through:         Mr. Pradeep Gupta with Mr. Suresh Bharti
                           and Ms. Laxmibai Leitanthem, Advocates.

                               -VERSUS-

LT. GOVERNOR & ANR.       ...    ...    ...      ...    RESPONDENTS
          Through: Ms. Zubeda Begum, Advocate for R - 1.
                    Mr. A.S. Chandhiok, Senior Advocate with
                    Mr. Viraj R. Dattar, Ms. Bandana Shukla,
                    Mr. Ritesh Kumar, Ms. Shikha Bhardwaj &
                    Mr. Arjun Mahajan, Advs. for R - 2.


CORAM :

HON'BLE MR. JUSTICE SANJAY KISHAN KAUL

HON'BLE MR. JUSTICE MOOL CHAND GARG


1.        Whether the Reporters of local papers
          may be allowed to see the judgment?        Yes

2.        To be referred to Reporter or not?         Yes

3.        Whether the judgment should be             Yes
          reported in the Digest?


SANJAY KISHAN KAUL, J.

1. The over-burdened judicial system of our country faces a

problem of absence of adequate strength of Judges. The

problem is compounded by vacancies remaining unfilled

for considerable periods of time. The anxiety of the

Hon‟ble Supreme Court to ensure that the vacancies do

not remain unfilled gave rise to certain directions in

Malik Mazhar Sultan & Anr. v. U.P. Public Service

Commission & Ors., 2007 (2) SCALE 159. It is the

consequence and interpretation of these directions, which

has given rise to the present litigation.

2. The Registrar of the High Court of Delhi published an

advertisement in newspapers on 19.05.2007 for holding

of written examination for direct recruitment to Delhi

High Judicial Service ( hereinafter referred to as „DHJS‟

for short ). The date of the written examination was

scheduled as 22.07.2007. Insofar as the vacancies to be

filled up were concerned, it was provided in the

advertisement as under :-

"The number of vacancies likely to be filled in is 20, out of which 3 are reserved for Scheduled Castes and 4 are reserved for Scheduled Tribes."

3. The petitioners in these writ petitions qualified the

written examination for which results were declared on

11.12.2007 and were called for the viva voce. The final

results were declared on 03.01.2008. It is the case of

the petitioners that as per the final result declared,

43 candidates in the General category had qualified

and 1 candidate in the category of Scheduled Caste

( hereinafter referred to as „SC‟ for short ). The

petitioners ranked at position No. 14, 15 and 20

respectively. The consent letter for appointment was,

however, issued only to the first 13 candidates in the

General category and the sole candidate in the SC

category.

4. The grievance of the petitioners is that the exact number

of vacancies in the advertisements was never disclosed

and that the respondents were obliged to fill up all the

vacant posts existing on the date of the appointment. Not

only that, the respondents were required to maintain a

select list published in the order of merit of double the

number of vacancies notified. It is the case of the

petitioners that these directions contained in the

judgment in Malik Mazhar Sultan & Anr.‟s case (supra)

had not been complied with. The directions were in the

form of a mandate of the Supreme Court under Article

141 of the Constitution of India ( hereinafter referred to

as „Constitution‟ for short ).

5. A further grievance raised by the petitioners is that

the vacancies in the category of Scheduled Tribes

( hereinafter referred to as „ST‟ for short ) candidates had

not been filled up since 2001 and only one vacancy in SC

category had been filled up. It is, thus, stated in the

petition(s) that the respondents were required to de-

reserve the vacancies available and to fill up the

vacancies with General category candidates for the

efficacy of the judicial system. In support of this plea, a

reference has been made to the advertisement published

by the High Court of Madhya Pradesh inviting

applications for General, SC, ST and Other Backward

Classes ( hereinafter referred to as „OBC‟ for short )

category and providing for the eventuality of sufficient

number of suitable candidate not being available in SC,

ST and OBC categories, the said posts would be de-

reserved.

6. In the counter affidavit, it has been stated that the

number of vacancies, which existed on 19.05.2007, were

notified and advertised. There was, thus, only 20 posts

existing as on 19.05.2007. The records also show that

the position was no different as on 31.03.2007 (the

significance of this is considered later on). The

respondents plead that the directions contained in Malik

Mazhar Sultan & Anr.‟s case (supra) would have no

application to the respondents. The rationale for this plea

is that the premise of the directions contained in the said

judgment is the prescription of quota for promotion on

the principle of merit-cum-seniority from the subordinate

judicial service to the higher judicial service of 25% by

limited departmental competitive examination and only

25% by direct recruitment. This direction was originally

passed by the Supreme Court in All India Judges

Association v. Union of India & Ors., 2002 (4) SCC 247.

In pursuance to that direction, the Delhi Higher Judicial

Service Rules were amended by the Delhi High Court to

bring them in conformity with the directions passed by

the Supreme Court and the draft amended Rules were

forwarded to the Government of National Capital

Territory of Delhi on 11.04.2005 for approval and

notification. Some observations of the Finance

Department of the Govt. of NCT of Delhi were thereafter

conveyed to the High Court and the requisite decision of

the Full Court was in turn conveyed to the Govt. of NCT

of Delhi on 23.04.2007. However, the amended Rules

have not come into force with the result that the

vacancies are being filled in to the Higher Judicial Service

as per the existing Rules, which provide for two-third of

the vacancies to be filled in through merit-cum-seniority

amongst the eligible Judicial Officers while remaining

one-third are to be filled in by direct recruitment from the

Members of the Bar. In terms of the amended Rules, this

quota of one-third would be reduced to one-fourth. In the

existing Rules, there is no provision made for making of a

panel / select list.

7. Another aspect emphasized is that an exception has been

carved out in respect of the Delhi High Court by

observations in Malik Mazhar Sultan & Anr.‟s case

(supra) that since Delhi Judicial Service ( hereinafter

referred to as „DJS‟ for short ) Examinations are being

conducted regularly twice a year, the existing practice

can continue. The respondents plead that the objective of

the Supreme Court directions was to ensure timely filling

up of vacancies by the best qualified and suitable

candidates, which could have been achieved only by

regular competitive examinations and screening test.

This has already been achieved by such regular

examinations held in Delhi. Therefore, no provision was

required to be made taking into account further

anticipated vacancies or to prepare a select list in view of

the regular by-yearly DJS Examinations. A reference has

also been made to the observations in Malik Mazhar

Sultan & Anr.‟s case (supra) to the effect that till the

amendment of the Rules are made, the selection process

must continue under the existing Rules. In a nutshell, the

plea is that the directions cannot be broken up into two

parts and, thus, would become applicable only once the

amended Rules came into force making the recruitment

process to DHJS through 50% promotion, 25% through

competitive examination and 25% through direct

recruitment.

8. In order to appreciate the rival submissions, it is

necessary to deal with the judgment of the Supreme

Court and the observations made therein in Malik Mazhar

Sultan & Anr.‟s case (supra). The judgment begins by

noting that in All India Judges Association‟s case (supra),

directions had been issued for speedy filling up of

vacancies in furtherance of the objective of an

independent and efficient judicial system. Such a system

would require a better average of judge-population ratio

and at least the availability of Judges for whom the posts

had been notified. It was, thus, observed, "In this light, it

becomes all the more necessary to take all possible steps

to ensure that vacancies in the courts are timely filled".

The Supreme Court was conscious of the fact that

amendment to the Rules had not been made for a number

of High Courts and, thus, observed in para 5 as under :-

"5. Before we issue general directions and the time schedule to be adhered to for filling vacancies that may arise in subordinate courts and district courts, it is necessary to note that selections are required to be conducted by the concerned authorities as per the existing Judicial Service Rules in the respective States/Union Territories. ..."

9. A reading of the aforesaid, in our considered view, really

leaves no manner of doubt that the directions have been

issued in Malik Mazhar Sultan & Anr.‟s case (supra) on

the presumption that till such amendment to the Rules

are made, the filling up of vacancies cannot stop and,

thus, the selection should be made as per the existing

Rules. The directions have been made on the said

premise.

10. The schedule and methodology for filling up the vacancies

in respect of the Higher Judicial Service and the

Subordinate Judicial Service have been set out in para 7

of the said judgment. It is not necessary to go into the

methodology of filling up of vacancies in the cadre of

District Judges in respect of 50% to be filled up by

promotion or for the appointment to the Subordinate

Judicial Service by direct recruitment. The relevant

portion is as under :-

"7. For filling up of vacancies in the cadre of District Judges, accepting the proposal to which none has objected, except in the manner hereinafter noticed, we direct as under :-

A. For filling of vacancies in the cadre of District Judge in respect of

(a) Twenty five per cent vacancies to be filled by direct recruitment from the Bar; and

(b) Twenty five per cent by promotion through limited competitive examination of Civil Judges (Senior Division) not having less than five years of qualifying service.

    S.No.   Description                                       Date

   1.      Number of vacancies to be notified by the                31st March
           High Court.

Vacancies to be calculated including

a) existing vacancies

b) future vacancies that may arise within one year due to retirement,

c) future vacancies that may arise due to elevation to the High Court, death or otherwise, say ten per cent of the number of posts,

d) vacancies arising due to deputation of judicial officers to other department may be considered as temporary vacancy.

2. Advertisement inviting applications from 15th April eligible candidates

3. Last date for receipt of application 30th April

4. Publication of list of eligible applicants 15th May List may be put on the website

5. Despatch/issue of admit cards to the 16th May to eligible applicants 15th June

6. Written Examination 30th June Written examination may be

a) objective questions with multiple choice which can be scrutinized by the computer; and

b) subjective/narrative

7. Declaration of results of written 16th August examination

a) Result may be put on the website and also published in the newspaper

b) The ratio of 1:3 of the available vacancies to the successful candidates be maintained

8. Viva Voce 1st to 7th September

9. Declaration of final select list and 15th September communication to the appointing authority

a) Result may be put on the website and also published in the newspaper

b) Select list be published in order of merit and should be double the number of vacancies notified

c) Select list shall be valid till the next select list is published

10. Issue of appointment letter by the 30th September competent authority for all existing vacant posts as on date

11. Last date for joining 31st October

11. The aforesaid schedule requires the High Court to notify

the vacancies as on 31st March of the year concerned.

The vacancies are to include the following :-

            (a)    existing vacancies;

            (b)    future vacancies that may arise within one year
                   due to retirement;

            (c)    future vacancies that may arise due to elevation

to the High Court, death or otherwise, say 10% of the number of posts; and

(d) vacancies arising due to deputation of Judicial Officers to other Departments to be considered as temporary vacancies.

Not only that, the declaration of final select list and

communication to the appointing authority, as set out at

S.No. 9 aforesaid, requires the select list to be published

in order of merit, which should be of double the number

of vacancies notified and the select list is to be valid till

the next select list is published. S.No. 10 makes it clear

that the appointment letter is to be issued by the

competent authority for all existing posts as on that date.

12. Para 12 of the judgment, on which reliance has been

placed by the respondents, reads as under :-

"12. Insofar as Delhi is concerned, it has been stated that entire selection process is conducted by the High Court and examination is held twice a year for the Delhi Judicial Service. The High Court may, accordingly, amend the aforesaid time schedule so as to conduct the selection process twice in a year and the revised schedule shall be placed on the record of

this case. For the present, the Delhi High Court is permitted three months‟ time for publication of final result after the written examination."

(emphasis supplied)

13. The aforesaid observations, in our considered view, are

clearly in the context of the examination for DJS, which is

held twice a year. The same can hardly apply to DHJS

since the examinations are not held twice a year. DHJS

Examination was held in the year 2001 and thereafter the

Examination has been held in the year 2006 and then in

2007 (which is the Examination in question). Thereafter,

no other Examination has been notified.

14. The matter did not rest at this since further observations

were made in paras 14 and 15 of the said judgment as

under :-

"14. The select list prepared for all categories of officials shall be valid till the next select list is published.

15. We further direct that ten per cent of unforeseen vacancies would be in respect of sanctioned posts and not vacancies occurring in a particular year."

(emphasis supplied)

15. In the aforesaid context, the respondents sought to

contend that the general principles of service

jurisprudence, as contained in different judgments of the

Apex Court for filling up of vacancies, cannot be lost sight

of. In this behalf, a reference was made to the judgment

in Harjinder Singh Sodhi v. State of Punjab & Ors., (1996)

6 SCC 322 where it was observed that the vacancies for

which merit should be considered has to be limited to the

vacancies arising in the relevant year.

16. In State of Bihar & Ors. v. Secretariat Assistant

Successful Examinees Union 1986 & Ors., (1994) 1 SCC

126, it was observed that the candidates empanelled on

the basis of the examination held were entitled to

appointment only against the vacancies available up to

the last day of the calendar year following year of

announcement of the vacancies and not against the

vacancies available on the date of publication of the

result or later.

17. In State of Bihar & Anr. v. Madan Mohan Singh & Ors.,

1994 Supp (3) SCC 308 where observations were made

that the process of recruitment in pursuance to an

examination comes to an end as soon as the vacancies are

filled up and if the same list has to be kept alive for

purposes of filling up all other vacancies, it would be

deprivation of rights of other candidates, who would have

become eligible subsequent to the said advertisement and

the selection process.

18. The last judgment in that behalf referred to is of Prem

Prakash v. Union of India & Ors., 1984 (Supp) SCC 687.

There was denial of appointment after selection and

inclusion in the merit list and, thus, the candidates, who

were wrongly denied appointment, were directed to be

appointed against the vacancies declared in subsequent

year for fresh appointment. It was held that in doing so,

there would be denial of appointment to the newly-

selected candidates in order to make room for already

selected candidates, which was neither fair nor justified.

19. We have given our thought to the controversy in question.

The directions contained in Malik Mazhar Sultan & Anr.‟s

case (supra) came to be passed on account of the peculiar

problem faced in non-filling up of judicial posts, which

was an impediment in expeditious disposal of disputes.

Thus, larger public interest weighed with the Hon‟ble

Supreme Court in issuing the directions even if some

directions were somewhat in deviation from the general

principles of service jurisprudence. These directions are

covered by the mandate of Article 141 of the Constitution

and are, thus, binding on the High Courts. Thus, these

directions are strictly liable to be followed and reference

to the aforesaid judgments by the respondents cannot

defeat the specific directions made by the Supreme Court

in the context of the controversy in question.

20. We are also unable to appreciate the submission of the

respondents that till the amended Rules come into being,

the directions would have no application. The Supreme

Court had made it clear that till the amendments in

pursuance to All India Judges Association‟s case (supra)

came into being, the selection would be conducted as per

the existing Rules. There was nothing in the judgment to

come to the conclusion that till the amended Rules came

into being, the directions are not to be complied with.

The observations made in the initial portion of para 7

have to be read with what is said before that in the initial

portion of para 5 of the said judgment. A reading of the

same, thus, makes it amply clear that if the Rules have

been amended, then 25% vacancies to be filled by direct

recruitment and 25% by promotion through limited

competitive examination would be filled up the manner

provided in para 7 of the judgment and in case the Rules

are pending consideration, the vacancies would be filled

up as per the Rules in force.

21. We also consider appropriate at this stage to refer to the

observations made in para 12 of the said judgment, which

are clearly applicable only to DJS as observed aforesaid

and not to the Examination of DHJS in view of the

indisputed fact that the wordings in para 12 are clear

"Delhi Judicial Service" and referred to the "Examination

held twice a year for the same". There was and there is

no twice a year Examination for DHJS.

22. Once the aforesaid conclusion is reached, the question

arises as to how the directions passed by the Hon‟ble

Supreme Court ought to have been implemented. The

counter affidavit of the respondents shows that there

were 20 vacancies in existing as on 19.05.2007 (the date

of the advertisement) and the position is no different as

on 31.03.2007. Thus, S.No. 1 of para 7 shows that the

number of vacancies to be notified by the High Court

including existing vacancies as on 31.03.2007 is 20,

which have been duly notified. However, while notifying

vacancies, the High Court was also required to take into

consideration the future vacancies as envisaged in sub-

paras (b), (c) and (d) of S.No. 1 aforesaid. This has not

been done. S.No. 10 makes it clear that the declaration

of final list and communication to the appointing

authority, which is to result in the appointment letter,

should be for "all existing vacant posts as on date". Thus,

the vacancies up to the date of appointment are clearly

taken care of by S.No. 10. Not only that, clause (b) of

S.No. 9 mandates that the select list should be of double

the number of vacancies notified. Once again, no select

list was published. The select list is to be valid till the

next select list is published as per clause (c) of para 9.

However, this, in our considered view, does not mean

that till the next examination is held, the earlier select list

would continue to operate. This is so since the directions

have been issued on the basis that the examination

schedule envisages one examination each year. This is

also in consonance with the judgment cited by the

respondents and, thus, the select list would have a life of

one year till the date the next examination as envisaged.

Normally, there has to be a select list for a calendar year,

but, in the present case, the directions of the Supreme

Court envisage the process starting from 31st March and,

thus, the one year would be from 31st March of a year to

the next 31st March. In view of the aforesaid, apart from

20 vacancies, which were filled in by the respondents, the

vacancies arising up to the declaration of results and its

notification should have been included and a select list /

panel should have been prepared in terms of the

directions aforesaid to take care of the vacancies arising

up to 31.03.2008 as the vacancies arising after

31.03.2008 are not to be reckoned for purposes of such

appointment. The word used in the advertisement for

number of vacancies to be filled in is "likely".

23. In respect of the aforesaid, we had called for the relevant

data from the respondents. The data shows that there

was one vacancy arising on 31.08.2007 on account of

elevation to the Bench of this Court. This vacancy was,

thus, required to be taken into consideration in terms of

S.Nos. 1, 9 and 10 of the directions aforesaid. There are

three more vacancies, which arose on 12.03.2008 on

account of 10 posts created for ACMMs Courts. These

vacancies consisted of 2 General and 1 SC candidate.

These vacancies were also, thus, required to be

accommodated through the process of a select list / panel

prepared by the respondents, which was never so

prepared. We may notice at this stage that since only 1

SC candidate qualified, who was appointed, the result of

the aforesaid is that 3 more General candidates were

required to be appointed in the process of the

Examination held in the year 2007. Two of the aforesaid

petitioners are at S.Nos. 14 and 15 respectively - the first

being Mr. Ajay Kumar Jain and the other being Mr. Anil

Kumar Jha. The name of Mr. Ajay Kumar Jain should

have, in fact, been included in the select list originally

published itself against the vacancy, which arose on

31.08.2007 while the results were declared on

03.01.2008. Mr. Anil Kumar Jha at S.No. 15 would have

been the beneficiary from the select list on account of the

vacancies arising on 12.03.2008. The third petitioner Mr.

Rajiv Kumar Gupta, however, is at S.No. 20. It is only in

the eventuality of person(s) senior to him not accepting

the appointment on the offer being made, would his turn

come against the third such General vacancy.

24. We may note that though a plea was incorporated in the

writ petition about de-reservation of the SC and ST posts,

which had not been filled in, it is not in dispute that no

process for such de-reservation has been followed nor

does the advertisement in question contain a declaration

as in the case of the advertisement of Madhya Pradesh

High Court. In any case, during the course of hearing, no

such plea was pressed.

25. A writ of mandamus is issued directing the respondents

to process the filling up of three (3) General category

vacancies in terms of the directions aforesaid and the

needful be done within a period of one month from today.

26. The parties are left to bear their own costs.

SANJAY KISHAN KAUL, J.

October 03, 2008                           MOOL CHAND GARG, J.
madan