Sanjeet Singh vs High Court Of Delhi & Anr.
2011 Latest Caselaw 6053 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                       Judgment Reserved On: November 25, 2011
                       Judgment Delivered On: December 12, 2011

+                            W.P.(C) No.1435/2011

       SANJEET SINGH                                ..... Petitioner
            Through: Petitioner in person

                                       versus

       HIGH COURT OF DELHI & ANR.         ....Respondents
            Through: Mr.Viraj R.Datar and Mr.Chetan Lokur,
                     Advocates for R-1/Delhi High Court

                             W.P.(C) No.1701/2011

       PUNEET GARG                                ..... Petitioner
           Through:          Mr.Amit Sachdeva, Advocate

                                       versus

       HIGH COURT OF DELHI & ANR.         ....Respondents
            Through: Mr.Viraj R.Datar and Mr.Chetan Lokur,
                     Advocates for R-1/Delhi High Court

                             W.P.(C) No.1702/2011

       HITESH VERMA                                 ..... Petitioner
            Through: None

                                       versus

       HIGH COURT OF DELHI & ANR.         ....Respondents
            Through: Mr.Viraj R.Datar and Mr.Chetan Lokur,
                     Advocates for R-1/Delhi High Court

                             W.P.(C) No.2156/2011

       RANDHIR BAWA                      ..... Petitioner
           Through: Mr.R.D.Bawa, Advocate



W.P.(C) No.1435/2011 & conn. matters                        Page 1 of 17
                                        versus

       HIGH COURT OF DELHI & ANR.         ....Respondents
            Through: Mr.Viraj R.Datar and Mr.Chetan Lokur,
                     Advocates for R-1/Delhi High Court

                             W.P.(C) No.2317/2011

       UTKARSH YADAV                     ..... Petitioner
           Through: Mr.R.D.Bawa, Advocate


                                       versus

       HIGH COURT OF DELHI & ANR.         ....Respondents
            Through: Mr.Viraj R.Datar and Mr.Chetan Lokur,
                     Advocates for R-1/Delhi High Court
                     Mr.L.K.Gag, Advocate for R-3 and R-4

        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MS. JUSTICE GITA MITTAL
        HON‟BLE MR. JUSTICE J.R.MIDHA

PRADEEP NANDRAJOG, J.

1. Vide order dated May 11, 2011 four questions, stated in para 22 of the order, have been referred for answer, to a Full Bench of this Court. We note the same. They are as under:-

"(1) In Rakhi Ray, the Court was concerned with anticipated vacancies whereas in the present case vacancies existed even on the date of advertisement but all the vacancies not notified. Whether Rakhi Ray would cover this aspect?

(2) At the same time, it is held in Rakhi Ray that it is not permissible to fill up more vacancies than advertised. However, that has to be reconcile with Malik Mazhar Sultan.

(3) It is noted in Rakhi Ray that Rules provided for advertisement of vacancies after being determined. The question is as to whether the determined vacancies are more, whether lesser vacancies could advertised?

(4) What would be effect of order dated 20.4.2010 passed in All India Judges Association case. As per which the Court was apprised that it was advertising lesser number of vacancies than available for want of proper court accommodation and infrastructure. Whether that would amount to approval of the action taken by the Court which is precisely the subject matter of the challenge?"

2. A preamble statement of facts need to be penned before we proceed to answer, of course after noting the submissions which were urged at the hearing held on November 25, 2011.

3. The issue pertaining to judicial delays was considered by the Supreme Court in the decision reported as 2002 (4) SCC 247 All India Judges Association Vs. Union of India & Ors. Exhaustive directions were issued by the Supreme Court, and some of them pertain to the appointment of Judicial Officers in the Courts subordinate to the High Court(s).

4. The problem of existing vacancies not being filled up within time, resulting in pendency of cases in courts reaching alarming proportions, was considered by the Supreme Court in the decision reported as 2008 (17) SCC 703 Malik Mazhar Sultan & Anr.(3) Vs. U.P. Public Service Commission & Ors. with reference to an earlier decision reported as 2006 (9) SCC 507 Malik Mazhar Sultan(1) & Anr. Vs. U.P. Public Service Commission & Ors. The Supreme Court

passed directions pertaining to: (i) speedy determination and filling up vacancies of Judges at all levels, and (ii) fixing a time schedule to fill up the vacancies. In para 7 of the decision in Malik Mazhar Sultan (3) case (supra), the Supreme Court fixed the schedule within which existing and future anticipated vacancies had to be determined and filled up by each High Court in the cadre of District Judges and the cadre of Civil Judges (Senior Division and Junior Division).

5. For the purpose of answering the 4 questions referred to the Full Bench, it assumes importance to note that in para 8 and para 12 of the decision in Malik Mazhar Sultan(3) (Supra) the Supreme Court carved out an exception pertaining to the Sikkim High Court, on account of the miniscule cadre of judiciary in said State, and the Delhi High Court after noting that as far as Delhi High Court was concerned, it was already holding the Delhi Judicial Service Exam twice each year, but simultaneously requested (the expression „may‟ being highlighted) that the Delhi High Court should revise the time schedule as per the directions issued by the Supreme Court. As regards the ensuing examination, the Delhi High Court was permitted to complete the process and publish the final result within three months.

6. Since it was heavily relied upon by learned counsel for the petitioners and the petitioner who appeared in person, we would note that in para 15, the Supreme Court categorically directed that while determining the number of vacancies to be filled up 10% of unforeseen vacancies would be taken into account.

7. The decision in Malik Mazhar Sultan (3) was pronounced on 04.01.2007. Thereafter, pertaining to only 20 vacancies determined by the Delhi High Court as required to be filled up by direct recruitment in the quota applicable for direct recruits, an advertisement was published by the Delhi High Court on 19.05.2007, inviting applications from the eligible candidates informing that of the 20 vacancies intended to be filled up, 13 were from amongst the General Category candidates, 3 from amongst members belonging to the Scheduled Castes and 4 from amongst members belonging to the Scheduled Tribes. The results were declared on 3.1.2008. Thirteen vacancies in the General category were accordingly filled up as per merit. Only one candidate found a position in the merit list from out of the members of the Scheduled Caste and none from amongst the members of the Scheduled Tribe. Thus, 2 posts reserved for Scheduled Caste candidates and 4 posts reserved for Scheduled Tribe candidates could not be filled up.

8. Certain General Category candidates who found themselves at the merit position 14, 15 and 16 and further down the list filed various writ petitions in this Court which were decided on 03.10.2008. Inter alia, it was urged by the writ petitioners therein that 13 anticipated vacancies were not taken into account by the Delhi High Court and this was in breach of the mandate issued by the Supreme Court in the decision reported as Malik Mazhar Sultan(3) to the effect that while initiating the selection process, apart from the existing vacancies, anticipated vacancies had to be taken note of and that the selection had to be completed to fill up not only the

existing but the anticipated vacancies which were likely to fall due in the vacancy year. A Division Bench of this Court found that when the vacancy position was determined by this Court, it could be easily worked out that 3 vacancies would come into existence. Thus limited relief was granted directing that only three vacancies need to be filled up and mandamus was thus issued that the candidates at merit position 14, 15 and 16 be issued letters of offer appointing them in the cadre of Delhi Higher Judicial Service.

9. Aggrieved by the fact that directions were not issued as sought for by the writ petitioners, a few of them, under the banner of „Rakhi Ray & Ors.‟ went marching to the Supreme Court and on obtaining Leave to Appeal had the Special Leave Petitions converted into Civil Appeals. The final verdict of the Supreme Court which came is reported as (2010) 2 SCC 637 Rakhi Ray & Ors. Vs. High Court of Delhi & Ors.

10. The decision of the Supreme Court does not proceed to determine the question of fact raised i.e. whether only 3 vacancies which had already been directed to be filled up by the High Court were the only anticipated vacancies or whether the number of anticipated vacancies was 13 as claimed. It proceeds to note and answer, the question of law i.e.: Whether it is permissible to fill up posts in excess of the number notified when applications were invited from the eligible candidates?

11. The Supreme Court noted its prior decision in Malik Mazhar Sultan(3) case, as also the fact that it was delivered on 04.01.2007 and that the vacancies were advertised by the Delhi High Court on 19.05.2007, i.e. conscious of the directions

issued by the Supreme Court in Malik Mazhar Sultan (3) case, in para 7 of the pronouncement, reference was made to the decisions reported as 1992 Supp (3) SCC 84 Union of India Vs. Ishwar Singh Khatri, 1994 Supp (2) SCC 591 Gujarat State Dy. Executive Engineers Assn. Vs. State of Gujarat, (1994) 1 SCC 126 State of Bihar Vs. Secretariat Asst. Successful Examinees Unnion 1986, (1996) 4 SCC 319 Prem Singh Vs. Haryana SEB and (1996) 1 SCC 283 Ashok Kumar Vs. Banking Service Recruitment Board and ratio was discussed in the subsequent paras. The legal position culled out in para 12 by the Court was that it would be impermissible to make appointments beyond the number of vacancies advertised and the reason for the said opinion was that the same would violate Article 14 and 16 (1) of the Constitution of India. It was concluded in the summarization of the law that any such act would be a nullity, inexecutable and unenforceable in law. In para 22, the Supreme Court also observed that the advertisement in question was not challenged on the ground that it was not in conformity with the directions issued by the Supreme Court in Malik Mazhar Sultan(3) case.

12. With respect to the mandamus issued by the Delhi High Court Division Bench that 3 determinable anticipated vacancies should be filled up, a direction which would be contrary to the law declared by the Supreme Court in Rakhi Ray‟s case, in para 23 of its opinion, the Supreme Court held that since said part of the decision of the Division Bench was not challenged before it, it would neither be desirable nor permissible in law for the Court to make any comment on that.

13. A word needs to be spoken here by us on the subject of appointing candidates in excess of the vacancies notified. Where the process of selection envisages a screening test followed by a final test, all Service Rules provide that the final selection would be from amongst five times the number of vacancies to be filled up. For example, if 5 vacancies are filled up the short listing has to be of 25 candidates. These 25 candidates who take the final exam would then be evaluated and merit position settled as per marks obtained. The one who gets the highest marks would be at serial No.1 and the one next would be at serial No.2 and so on. If finally appointment is given to 8 candidates, this would violate the Service Rule which would require shortlisted candidates to be 40 in number (8 x 5 = 40) who would be eligible to take the final exam. Who knows, whether or not the next 15 candidates who found themselves at Sl.No.26 to Sl.No.40 of the shortlist may have got marks more than the candidates who were at merit position 6 to 8 as per the merit list prepared by subjecting only 25 shortlisted candidates to the final examination. This is the reason why it is impermissible to fill up posts in excess of the number notified. It is also the reason for the law declared by the Supreme Court in para 12 of its decision in Rakhi Ray‟s case where following was observed:-

"12. In view of above, the law can be summarized to the effect that any appointment made beyond the number of vacancies advertised is without jurisdiction, being violative of Articles 14 and 16(1) of the Constitution of India, thus, a nullity, inexecutable and unenforceable in law. In case the vacancies notified stand filled up, the process of selection comes to an end. Waiting list etc., cannot be used as a reservoir, to fill up the vacancy which comes into

existence after the issuance of notification/advertisement. The unexhausted select list/waiting list becomes meaningless and cannot be pressed in service anymore."

14. Before noting the legal arguments advanced at the hearing before us, we note that in the decision reported as 1991 (3) SCC 47 Shankarsan Dash Vs. UOI, in para 7 the Supreme Court held as under:-

"7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State of bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted."

15. The same view was reiterated in the decision reported as 1997 (5) SCC 170 K.Jayamohan Vs. State of Kerala & Anr.

16. The argument advanced by learned counsel for the petitioners and the petitioner who appeared in person before us was that the directions issued by the Supreme Court in Malik Mazhar Sultan(3) case were in exercise of the power of the Supreme Court under Article 142 of the Constitution of India and thus the directions had the force of law. It was urged

that, evidenced by para 3 of the said decision, the Supreme Court issued directions not only to speedily fill up the vacancies of Judges at all levels but even passed directions relating to the determination of vacancies. It was thus contended that the Delhi High Court was obliged to fill up, if not more, at least the known existing 113 vacancies to the Delhi Judicial Service. Highlighting that the advertisement issued by the Delhi High Court commenced the selection process for only 60 vacancies, the argument was terminated by urging that the answer to the 4 questions referred to the Full Bench would be that the decision in Rakhi Ray‟s case (supra) has no bearing. This, according to the petitioners, would be the answer to question No.1. The answer to question No.2 would be the sequitur to the answer to question No.1 i.e. the decision in Rakhi Ray‟s case and Malik Mazhar Sultan(3) case needs no re-conciliation. The further sequitur, according to them, to the twin answer i.e. to question No.1 and 2 would self-answer question No.3 i.e. that it is impermissible to advertise lesser vacancies to be filled up vis-à-vis the determined vacancies.

17. The question No.4 has a factual element which needs to be noted before we consider the argument advanced on either side. The factual content is that, required to give a status report to the Supreme Court in Civil Appeal No.1867/2006 Malik Mazhar Sultan(3) & Anr. Vs. U.P. Public Service Commission & Ors., it was disclosed to the Supreme Court by the Delhi High Court as under:-

"At the time of issuing the last advertisement on 26.10.2009 for appointment in Delhi Judicial Service, 113 posts were vacant in Delhi Judicial

Service, however, due to paucity of Court rooms only 60 posts were advertised against which 40 candidates have been selected whose names have been recommended by this Court to the Government of NCT of Delhi for appointment."

18. While reserving the matter for our opinion on 25.11.2011, we had called for the record of the Delhi High Court and the same would reveal as under:-

       A. Number of Court Rooms available in         375
       the five district court complex at Delhi

       judicial officers
       C. Court Rooms required for two officers       28
       of Delhi Higher Judicial Service and 26

officers of Delhi Judicial Service, already inducted in service but undergoing training D. Court rooms required for nine Delhi 89 Higher Judicial Service Officers and 80 Delhi Judicial Service Officers of the previous batch whose selection was completed but formal letters of appointment had yet to be issued pending approval from the Lt.Governor E. Therefore, existing short fall in the -74 Court Rooms 332 + 28 + 89 = 449 - 375 = 74 F. Court rooms likely to made available 95 in the future at Dwarka and Saket court complexes G. Taking into account additional court 21 rooms which could have made available in the future, the number of judicial officers who could be accommodated in courts 95 - 74 = 21

19. The apparent reason to fill up only 60 vacancies in spite of 113 vacancies existing was thus brought to the notice of the Supreme Court, and needless to state the 28 + 89

judicial officers who had already been selected in the past were required to be posted first and court rooms made available to them before additional incumbents could be accommodated.

20. Noting the factual content required to be noted to answer the fourth question referred to us for our opinion, it be noted that on 20.4.2010 the Supreme Court took up for consideration not only CA No.1867/2006 but also pending applications in WPC No.1022/1989 All India Judges Association & Ors. Vs. UOI & Ors. and passed a composite order. The Court listed WPC No.1022/1989 at Sl.No.1 in the list of cases in which the composite order was passed and while so doing, the Supreme Court noted the information given by the Delhi High Court pertaining to not advertising all vacant posts due to paucity of court accommodation and other infrastructure. It be highlighted by us further that, as against information given by the Delhi High Court that only 113 posts were vacant, it got typed in the order that 216 posts were vacant and pertaining to the information given that only 60 posts were advertised to be filled up, it got erroneously typed that 64 posts were advertised to be filled up. We hasten to add that the number is not relevant, what is relevant is the fact that the Delhi High Court informed the Supreme Court that it was not filling up all existing vacant posts on account of paucity of court rooms, and the Supreme Court simply noted said fact and did not pass any directions to the Delhi High Court to notify and fill up all the vacancies.

21. We now propose to answer the four questions referred to the Full Bench.

22. Issue raised in Rakhi Ray‟s case was concerned with anticipated vacancies and not with existing vacancies and in that sense one may rush at first blush to answer the first question by replying that Rakhi Ray‟s case has no application in the instant case since the issue raised herein is whether notwithstanding existing vacancies being 113 only 60 could be advertised to be filled up, but one aspect of Rakhi Ray‟s case would be applicable to the instant case. The ratio of law declared therein that it is impermissible to fill up vacancies in excess of those notified would apply to the facts of the instant case notwithstanding the factual difference in the thematic setting of Rakhi Ray‟s case and the instant case in the context of the theme therein being the violation of the direction in Malik Mazhar Sultan(3) case that 10% anticipated vacancies had to be reckoned along with the existing vacancies while inviting applications and the theme of the instant case being 53 existing vacancies being ignored. The other aspect of the matter covered by Rakhi Ray‟s case which would also be applicable to the instant case would be the same i.e. in the absence of challenge to the notification inviting applications by restricting the number to 60, it would be impermissible to question recruitment being restricted to only 60%. We may highlight that in Rakhi Ray‟s case the Supreme Court emphasized the effect of the advertisement in question not being challenged; the effect of the lack of challenge being noted in para 22 of the said decision.

23. The second question referred to us actually dove- tails into the first. While Malik Mazhar Sultan(3) directed the High Courts to fill up all existing vacancies as also anticipated

vacancies and thus advertise said number of posts to be filled up; whereas Rakhi Ray‟s case recognized the impermissibility to fill up posts in excess of what was notified in the advertisement to be filled up. Is there an apparent conflict? If yes, what? And if what, how is the conflict to be resolved?

24. We see no conflict for the reason while issuing the directions in Malik Mazhar Sultan (3) the Supreme Court was not deciding any lis and was issuing general directions in exercise of its power under Article 142 of the Constitution of India and thus it is apparent that the Supreme Court was not laying down any special service jurisprudence applicable to the judiciary in India. Indeed, if the Supreme Court had so intended, it would have been expressly so stated. The anxiety of the Supreme Court was to fill up judicial posts all over India keeping in view the docket explosion in Courts and delays in effectuating judicial appointments. It is in this context that the general directions issued by the Supreme Court have to be understood and appreciated. The fact that the Supreme Court drew out an exception for the State of Sikkim as well as the one time exception for the Delhi High Court is recognition by the Supreme Court that if exigencies of the situation so demands, exceptions could be carved out to the intent and purport of the directions issued by the Supreme Court.

25. Since we have held that Malik Mazhar Sultan (3) did not intend and has not laid down any special service jurisprudence pertaining to the judiciary in India, the question of recognizing and then resolving the conflict does not arise. We terminate our discussion while answering the second question referred to the Full Bench by highlighting that in

Rakhi Ray‟s case (supra) the Supreme Court duly noted the directions issued by the earlier Bench of the Supreme Court in Malik Mazhar Sultan (3) and yet in spite thereof applied the law of the land and the recognized service jurisprudence to answer the issues raised in Rakhi Ray‟s case. The Supreme Court recognized in Rakhi Ray‟s case that notwithstanding directions pertaining to anticipated vacancies issued in Malik Mazhar Sultan (3) case, the Constitution of India pertaining to service jurisprudence impinging upon Article 14 and 16(1) of the Constitution of India had to be applied and could not be ignored. It additionally assumes importance to note that the decision in Rakhi Ray‟s case is by a Three Judge Bench and the directions issued in Malik Mazhar Sultan (3) case is by a Two Judge Bench.

26. The third question, which really flows out of the first two questions, or, we may say, is the third facet of the same question, poses no difficulty in the light of our answer to the second question referred to the Full Bench i.e. that the directions issued in Malik Mazhar Sultan (3) were not intended nor have they laid down any special service jurisprudence for the judiciary in India and service disputes pertaining to the judiciary in India have to be resolved as per the law applicable and the constitutional provisions.

27. We have noted hereinabove the decision in Shankarsan Dash‟s case (supra) as also the decision in K.Jayamohan‟s case (supra) which recognize that if the exigencies of the situation so demands, no right vests in any person to compel the employer to fill up all existing vacancies and it is permissible not to fill up all existing vacancies. This

principle of law would govern appointments to the subordinate judiciary in India and thus we hold that if good and justified grounds, made good with reference to objective facts, can be shown, it would be permissible not to fill up the existing vacancies to the subordinate judiciary in India. However, we hasten to make it clear that this would not mean that the Government can plead lack of resources to make available adequate infrastructure so that existing posts cannot be filled up to the sanctioned strength of the cadre of the Civil Judges and District Judges. But, where in spite of best efforts and without lack of bona fide, situations are encountered of the kind where a rational prudent view could be taken that the High Court is justified in not advertising all existing vacancies to be filled up, such situation would be a valid excuse not to fill up the existing vacancies. Any such issue would need to be decided as per law declared in Shankarsan Dash‟s case (supra) and K.Jayamohan‟s case (supra).

28. To the fourth question, the answer would be self evident. The Supreme Court which was monitoring the continuous mandamus issued by it in the All India‟s Judges‟ Association‟s case (supra) and the Malik Mazhar Sultan (3) case (supra) was expressly informed by the Delhi High Court that, notwithstanding 113 existing vacancies in the cadre of the Delhi Judicial Service, only 60 were being filled up and the reason for the same being paucity of court rooms was specifically stated. In spite thereof, no direction was issued by the Supreme Court compelling the Delhi High Court to come what may, the direction issued in Malik Mazhar Sultan (3) case be complied with. The silence by the Supreme Court after

taking cognizance of the said information provides a self answer to the query. Law is that where there is an obligation to speak or direct, silence would mean acquiescence or acceptance of the view point of the other, and thus the fact that the Supreme Court in its order dated 20.04.2010 simply noted said information given by the Delhi High Court but passed no directions would mean, if not express, a tacit recognition by the Supreme Court that service jurisprudence absolves an employer not to fill up existing posts if there are good and justified grounds for not doing so.

29. Having answered the reference as aforesaid we direct that the writ petitions be listed before a Division Bench for adjudication on facts keeping in view the law declared by us and for which the Registry is directed to list the writ petitions before an appropriate Bench for directions on 20.12.2011.

(PRADEEP NANDRAJOG) JUDGE

(GITA MITTAL) JUDGE

(J.R.MIDHA) JUDGE DECEMBER 12, 2011 mm