Delhi High Court
Jay Thareja & Anr. vs Lieutenant Governor & Anr. on 15 April, 2009
Author: Sanjay Kishan Kaul
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 02.04.2009
% Date of decision: 15.04.2009
+ WP (C) No.8365 of 2008
JAY THAREJA & ANR. ...PETITIONERS
Through: Mr. C. Hari Shankar, Mr. Sunil S.,
Mr. G.P. Thareja & Mr. V. Rao,
Advocates.
Versus
LIEUTENANT GOVERNOR & ANR. ...RESPONDENTS
Through: Ms. Sonia Sharma, Advocate
for R-1.
MR. Viraj R. Datar &
Ms. Bandana Shukla, Advocates
for R-2.
+ WP (C) No.8366 of 2008
HARJYOT SINGH BHALLA & ANR. ...PETITIONERS
Through: Mr. A.S. Gambhir, Advocate.
Versus
LIEUTENANT GOVERNOR & ANR. ...RESPONDENTS
Through: Ms. Sonia Sharma, Advocate
for R-1.
Mr. Viraj R. Datar &
Ms. Bandana Shukla, Advocates
for R-2.
WP (C) Nos.8365 of 2008; 8364 of 2008; 8366 of 2008
8565 of 2008 & 9098 of 2008 Page 1 of 15
+ WP (C) No.8364 of 2008
MANISH SHARMA ...PETITIONER
Through: Mr. Aman Lekhi, Sr. Advocate
with Mr. Rajan K. Chaurasia, Mr.
Jaspreet S. Rai, Mr. Rakesh
Kumar, Mr. Rohit Nagpal & Mr.
Vaibhav Vats, Advocates.
Versus
LIEUTENANT GOVERNOR & ANR. ...RESPONDENTS
Through: Ms. Sonia Sharma, Advocate
for R-1.
Mr. Viraj R. Datar &
Ms. Bandana Shukla, Advocates
for R-2.
+ WP (C) No.8565 of 2008
ANU AGGARWAL ...PETITIONER
Through: Mr. Yashraj Singh Deora,
Advocate.
Versus
LIEUTENANT GOVERNOR & ANR. ...RESPONDENTS
Through: Ms. Sonia Sharma, Advocate
for R-1.
Mr. Viraj R. Datar &
Ms. Bandana Shukla, Advocates
for R-2.
WP (C) Nos.8365 of 2008; 8364 of 2008; 8366 of 2008
8565 of 2008 & 9098 of 2008 Page 2 of 15
+ WP (C) No.9098 of 2008
RUCHI AGGARWAL ...PETITIONER
Through: Dr. Renu Aggarwal, Advocate
with Petitioner in person.
Versus
LIEUTENANT GOVERNOR & ANR. ...RESPONDENTS
Through: Ms. Sonia Sharma, Advocate
for R-1.
Mr. Viraj R. Datar &
Ms. Bandana Shukla, Advocates
for R-2.
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
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
reported in the Digest? Yes
SANJAY KISHAN KAUL, J.
1. A notification was issued on 18.4.2007 by the High Court of
Delhi for holding the Delhi Judicial Service Examination in
two stages - Preliminary Examination and Main Examination
to be followed by the Viva-Voce. The advertisement
provided that the number of vacancies likely to be filled in
was thirty-seven (37) (all permanent) out of which one (1)
vacancy was reserved for Scheduled Caste, nine (9) for
Scheduled Tribe; three (3) for blind/low vision and four (4)
WP (C) Nos.8365 of 2008; 8364 of 2008; 8366 of 2008
for orthopaedically handicapped. The petitioners are all
candidates who applied in pursuance to the advertisement
and participated in the exam.
2. The Preliminary Examination was held on 24.6.2007
followed by the Main Examination on 8th & 9th September
2007. The Viva-Voce of the qualified candidates was
conducted from 23.4.2008 to 6.5.2008. The merit list of the
candidates for this examination was published on 28.5.2008
and the select list on 2.6.2008. The select list consists of
28 persons out of which 20 candidates were of the General
category. All the petitioners belong to the General
category.
3. The grievance of the petitioners is that the select list should
have consisted of a larger number of candidates in view of
the directions of the Supreme Court in Malik Mazhar Sultan
& Anr. Vs. UP Public Service Commission & Ors. 2007 (2)
SCALE 159.
4. We may note that the notification in respect of the
examination for the year 2008 was issued on 25.8.2008 and
the appointments in pursuance to the 2007 examination
were made in September 2008. The directions contained in
Malik Mazhar Sultan & Anr. case (supra) arose on account
of the anxiety of the Supreme Court to ensure that
vacancies both at the subordinate judiciary level and higher
judiciary do not remain unfilled putting further burden on
the already overburdened judicial system. It is in this
context that certain schedules were laid down by the
Supreme Court.
WP (C) Nos.8365 of 2008; 8364 of 2008; 8366 of 2008
5. We may also note that the effect of these directions insofar
as the Higher Judicial Services is concerned was examined
in WP (C) No.2688/2008 titled Ajay Kumar Jain Vs.
Lieutenant Governor & Anr. and connected matters on
3.10.2008 by a Division Bench of this Court and now we are
concerned with the filling up of the vacancies of the Delhi
Judicial Service. The schedule and the methodology for
filling up of vacancies in respect of both Higher Judicial
Service and Subordinate Judicial Service have been set out
in paragraph 7 of the Malik Mazhar Sultan & Anr. case
(supra). The relevant portion insofar as the present matter
is concerned is as under:
D. For appointment to the post of Civil Judge (Junior Division) by
direct recruitment.
S.No. Description Date
1. Number of vacancies to be notified by the High Court. 15th January
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
promotion, death or otherwise, say ten per cent
of the number of posts.
2. Advertisement inviting applications from eligible 1st February
candidates
3. Last date for receipt of application 1st March
4. Publication of list of eligible applicants 2nd April
The list may be put on the website
5. Despatch/issue of admit cards to the eligible 2nd to 30th
applicants April
6. Preliminary written examination 15th May
Objective questions with multiple choice which can be
scrutinized by computer
7. Declaration of result of preliminary written 15th June
examination
a] Result may be put on the website and also
published in the Newspaper
b] The ratio of 1:10 of the available vacancies to the
successful candidates be maintained
8. Final Written examination Subjective/narrative 15th July
9. Declaration of result of final written examination 30th August
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 be
successful candidates be maintained.
C] Dates of interview of the successful candidates may
be put on the internet which can be printed by the
WP (C) Nos.8365 of 2008; 8364 of 2008; 8366 of 2008
candidates and no separate intimation of the date of
interview need be sent.
10. Viva Voce 1st to 15th
October
11. Declaration of final select list and communication to 1st
the appointing authority November
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 vacancies notified.
12. Issue of appointment letter by the competent 1st
authority for all existing vacant posts as on date December
13. Last date for joining 2nd January
of the
follower year
6. The aforesaid schedule required the number of vacancies to
be notified by the High Court as on 15th January of the year
concerned and the vacancies were to include: (a): existing
vacancies; (b): future vacancies that may arise within one
year due to retirement; and (c): future vacancies that may
arise due to promotion, death or otherwise, say ten per
cent of the number of posts.
7. The examination schedule provided for declaration of final
select list and communication to the appointing authority
by 1st November of the year concerned and the
appointment letters were to be issued by the competent
authority for existing vacant posts as on the date of 1st
December of that year. In column 11 it was provided that
while declaring the final select list "select list to be
published in order of merit and should be double the
number of vacancies notified".
8. Another relevant aspect is the observations made in para
12 of Malik Mazhar Sultan & Anr. case (supra), which are 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 in a year
WP (C) Nos.8365 of 2008; 8364 of 2008; 8366 of 2008
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 time 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."
9. It was submitted by learned counsels for the petitioners
that thus the aforesaid schedule in column 1 provided for
not only the existing vacancies but also an estimation of
future vacancies to arise within a year as also future
vacancies in other eventualities as set out to be about 10
per cent of number of posts. It was, thus, submitted that
say if ten (10) vacancies existed, there were two (2) future
vacancies and a further provision of 10 per cent of the
posts was made for future vacancies on account of other
eventualities then there would be in total thirteen (13)
vacancies for which the provision had to be made. Since as
per column 10 the select list had to be published in order of
merit and double the number of posts notified the select list
in such a case would be for 26 posts and as per column 12
for all existing vacancies as on the date of issuance of
appointment letters had to be filled up. It was, thus,
submitted that contrary to this mandate only the existing
vacancies as on the date of the notification of the
examination had been taken care of.
10. Learned counsels for the petitioners also relied upon the
observations made in Ajay Kumar Jain case (supra) which
dealt with the Higher Judicial Service.
11. Learned counsels further referred to the judgement of the
Supreme Court in Prem Prakash Vs. UOI & Ors. 1984 (Supp.)
WP (C) Nos.8365 of 2008; 8364 of 2008; 8366 of 2008
SCC 687 and R.S. Mittal Vs. UOI 1995 Supp (2) SCC 230.
We may note at this stage itself that we are unable to
appreciate the relevance of these judgements to the
controversy in question. In Prem Prakash case (supra)
candidates who were selected earlier but were wrongly
denied appointments were sought to be appointed against
vacancies declared in subsequent year for fresh
appointments resulting in denial of appointment to newly
selected candidates in order to make room for the already
selected candidates. Such an act was held not to be fair
and justified. We may notice that this is also a case of
Delhi Judicial Service. In R.S. Mittal case (supra) a panel of
selected candidates was prepared and it was held that
where there is a vacancy which can be offered to a selected
candidate on the basis of his merit position, denial of
appointment to him without proper reason was unjustified.
12. The stand of the Delhi High Court is that the petitioners
cannot challenge the examination process for the year
2007 at a belated stage especially when the process for the
examination for the year 2008 had also begun. This is
apart from the fact that the petitioners had acquiescenced
the acts of the respondent/High Court by participating in
the Delhi Judicial Service Examination of the year 2008.
13. Learned counsel for the High Court emphasized that in the
affidavit filed by the High Court before the Hon'ble Supreme
Court in Malik Mazhar Sultan & Anr. case (supra) it was
specifically stated that the Delhi High Court be permitted to
make selections as per the existing procedures and time
WP (C) Nos.8365 of 2008; 8364 of 2008; 8366 of 2008
schedules; viz. twice a year instead of a mandatory annual
selection only. It was in this context that the observations
were made in para 12 which have been extracted aforesaid
and the effect of this is that the directions in Malik Mazhar
Sultan & Anr. case (supra) would not apply to the Delhi High
Court. The philosophy behind holding examination twice a
year is stated to be an endeavour to get the best possible
candidates to fill up the vacant posts at the earliest. The
advertisement for the next examination was published on
25.8.2008 for thirty-six (36) posts indicating a further fifty
(50) additional posts which were likely to be created. It is,
thus, contended that since Delhi High Court was holding
regular examination and keeping in mind the objective of
the best possible candidates being permitted to compete
for future vacancies, the directions should not apply as this
object would be defeated if a panel is prepared to the
extent of double the number of vacancies.
14. Insofar as the factual matrix is concerned Annexure A to the
counter affidavit sets out the vacancies which had arisen
after the notification for the examination issued for the year
2007. There were, in fact, five (5) such vacancies which
arose by 21.6.2007. The next set of vacancies have arisen
only on 4.4.2008 when promotions were made from the
Subordinate Judicial Service to the Higher Judicial Service.
It may be noticed that thereafter also certain vacancies
have arisen.
15. We have examined the submissions of the learned counsels
for the parties.
WP (C) Nos.8365 of 2008; 8364 of 2008; 8366 of 2008
16. An important aspect to be taken note of is the objective
with which the directions were passed in Malik Mazhar
Sultan & Anr. case (supra). The objective was clearly to fill
up vacancies expeditiously and not to have vacancies
existing over a long period of time affecting the efficacy of
the judicial system. It is in this context that schedules were
laid down.
17. Insofar as the Subordinate Judicial Service is concerned, the
stand of the Delhi High Court was that it was holding
examinations twice a year. It is in this context that
observations were made in para 12 of the judgement in
Malik Mazhar Sultan & Anr. case (supra) leaving it open for
the Delhi High Court to set forth a schedule which would
facilitate filling up of vacancies earlier than the schedule
fixed by the Supreme Court. The fact, however, remains
that other than one year when two exams were held there
has been no other year when such a situation has arisen.
The examination for the year 2007 instead of being notified
in January 2007 came to be only notified in April 2007. The
process of completing the examination and declaration of
result went up to May 2008 while the directions of the
Supreme Court in Malik Mazhar Sultan & Anr. case (supra)
envisaged such process to be completed by the November
of the year concerned, i.e. should have been November
2007. Not only that the appointment letters were issued as
late as September 2008, thus, taking almost one and a half
years. Thus, the very substratum of the leave sought by
the High Court in para 12 of the judgement of the Supreme
WP (C) Nos.8365 of 2008; 8364 of 2008; 8366 of 2008
Court in Malik Mazhar Sultan & Anr. case (supra) does not
exist. The intent of the directions of the Supreme Court
was not that the Delhi High Court could make appointments
in a more delayed manner but that the High Court could fill
in the vacancies more expeditiously by holding
examinations more frequently.
18. We may note that we had negated the contention of the
High Court in Ajay Kumar Jain case (supra) to the effect that
the directions would apply only when the amended rules
came into force which judgement has been accepted by the
High Court. We have clearly noticed that the directions
have been made on the premise that selections were being
made as per the existing rules and had concluded so in
para 9 of Ajay Kumar Jain case (supra).
19. We are informed by learned counsel for the High Court that
on 24.3.2009 certain directions have been passed by the
Supreme Court in respect of Malik Mazhar Sultan & Anr.
case (supra) to the following effect:
"In supersession of the order passed by this Court on
4.1.2007, this Court direct that in future the High
Courts/PSCs shall notify the existing number of
vacancies plus the anticipated vacancies for the next
one year and some candidates also be included in
the wait list. To this extent earlier order is modified."
20. The aforesaid directions are prospective but in a sense
guide us about the intent of the directions passed by the
Supreme Court that it is not an indefinite period of time for
which the merit list is open but for a period of a year in the
context of the schedule laid down for each of the
examinations and in the context of the Subordinate Judicial
Service would be the relevant calendar year.
WP (C) Nos.8365 of 2008; 8364 of 2008; 8366 of 2008
21. We do not find force in the contention of the learned
counsel for the respondent/Delhi High Court that there has
been any inordinate delay or laches or acquiescence as
would defeat the rights of the petitioners. The select list
itself was published in May 2008 and before even the
appointment letters were issued the process of the fresh
examination was started in August 2008. The petitioners
made representations and have thereafter approached the
Court. Thus, the delay in the present facts of the case is
not such to defeat the rights of the petitioners especially
taking into consideration the fact that all the petitioners are
seeking are implementation of the existing directions of the
Supreme Court in Malik Mazhar Sultan & Anr. case (supra).
22. We are, thus, of the view that the directions in Malik Mazhar
Sultan & Anr. case (supra) would apply to the Delhi High
Court even insofar as the examination for the Delhi Judicial
Services is concerned but in case the High Court was to
make recruitments by holding the examination more
frequently, say twice a year, it would be open to the High
Court to lay down its own schedule. In the given facts of
the present controversy, this is not so.
23. The effect of this is that the High Court was required to
make provision for future vacancies and a panel should
have been kept from which appointments could have been
made. In this context the next question which arises for
consideration is that vacancies up to which date have to be
taken into account? We are unable to read the directions of
the Supreme Court in the manner as canvassed by learned
WP (C) Nos.8365 of 2008; 8364 of 2008; 8366 of 2008
counsels for the petitioners. We cannot lose sight of the
fact that issuance of directions in the "description" portion,
have to be read in the context of the relevant dates given
in the column against such a "description". Column 1, 11 &
12 have to be read together to give a purposeful
construction to them and cannot be read in isolation. The
schedule envisages vacancies to be notified by 15th January
of the year concerned and the process for issuance of
appointment letters to start from 1st December of the year
concerned. This in turn would require that vacancies are
again to be notified on 15th January of the subsequent year.
If what the learned counsels for the petitioners contend was
to be accepted as per the example given by them after
filling up of the vacancies envisaged as per para (a), (b) &
(c) equal number of vacancies would be in the select list
being double the number while simultaneously the
subsequent examination would be on the anvil. The
requirement of keeping available double the number of
vacancies as contained in Column 11 and the requirement
of filling up of all existing vacancies as per Column 12 has
to be read in the context of Column 1 which prescribes the
vacancies and in the given schedule of one year being the
calendar year in question.
24. If the directions are to be read in the aforesaid manner,
when we consider the facts of the present case, we find
that the advertisement which ought to have been issued on
1.2.2007 has actually been issued only on 18.4.2007. The
completion of the examination process has taken almost
WP (C) Nos.8365 of 2008; 8364 of 2008; 8366 of 2008
one and a half years. However, this does not cause any
prejudice to the candidates as such, so long as the
vacancies existing in the relevant calendar year are taken
into account for filling up the vacancies. If the examination
had been held in time even then vacancies only up to
December 2007 would have been filled in pursuance to the
examination for the year 2007.
25. We are conscious of the fact that expeditious filling up of
vacancies is an objective which should not be lost sight of
and has been repeatedly emphasized by the Supreme
Court. Simultaneously the stand of the High Court that the
best talent should be recruited is a significant factor. The
pool of talent increases as time passes as more eligible
candidates come into the zone of consideration. A realistic
view has, thus, to be taken keeping in mind the directions
made by the Supreme Court under Article 141 of the
Constitution of India in Malik Mazhar Sultan & Anr. case
(supra).
26. We are, thus, of the considered view that taking into
consideration the significance of the dates given, it is only
such of the vacancies which arose by December 2007 could
have been taken into account for being filled up as per the
examination result declared of the year 2007. The factual
data given by the High Court shows that five (5) more
vacancies had arisen after exam was notified and thus,
these five (5) vacancies are liable to be filled up in
pursuance to the examination of the year 2007. We may
note that some of the persons who came in the select list
WP (C) Nos.8365 of 2008; 8364 of 2008; 8366 of 2008
did not join and thus offers were further made to the other
persons as per merit. Some other persons who have not
joined have been given time till 1.5.2009 to join. This
would be a separate exercise to be carried out as per the
merit list but apart from this five (5) other vacancies having
arisen in the calendar year 2007 are also liable to be so
filled up in pursuance to the examination of the year 2007.
The petitioners before us have different merit positions but
we are not required to examine them as a general direction
can be made.
27. A writ of mandamus is issued directing the respondents to
process the filling up of five (5) posts which fell vacant after
notification of the examination but by December 2007 in
terms of the directions aforesaid and the necessary
exercise be carried out within a period of one (1) month
from today.
28. The petition stands disposed of in terms of the aforesaid
leaving the parties to bear their own costs.
SANJAY KISHAN KAUL, J.
APRIL 15, 2009 SUDERSHAN KUMAR MISRA, J.
b'nesh
WP (C) Nos.8365 of 2008; 8364 of 2008; 8366 of 2008
