Delhi High Court
Sanjeet Singh vs High Court Of Delhi & Anr. on 11 May, 2011
Author: A.K.Sikri
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C) 1435 OF 2011
W.P. (C) 2317 OF 2011
W.P. (C) 2156 OF 2011
W.P. (C) 1701 OF 2011
W.P. (C) 1702 OF 2011
JUDGMENT RESERVED ON: 06.4.2011
% JUDGMENT PRONOUNCED:ON:11.5.2011
(1) W.P. (C) 1435/2011
SANJEET SINGH . . . PETITIONER
Through: Mr. Pawan Upadhyay, Advocate
VERSUS
HIGH COURT OF DELHI & ANR. . . .RESPONDENTS
Through: Mr. Viraj R. Datar, Advocate with
Mr. Chetan Lokur, Advocate for
DHC.
Mr. H.S. Sachdeva, Advocate for
R-2.
Mr. Rajiv Nanda, Addl. Standing
Counsel (Civil) for GNCT of Delhi
with Ms. Rachna Saxena,
Advocate.
2) W.P. (C) 2317/2011
UTKARSH YADAV . . . PETITIONER
Through: Mr. P.S. Patwalia, Sr. Advocate
with Mr. Avinash Sharma,
Advocate
VERSUS
HIGH COURT OF DELHI & ANR. . . .RESPONDENTS
Through: Mr. Viraj R. Datar, Advocate
with Mr. Chetan Lokur, Advocate
for DHC.
W.P. (C) 1435/11, 2317/11,2156/11,1702/11,,1701/11 Page 1 of 32
Mr. H.S. Sachdeva, Advocate for
R-2.
Mr. Rajiv Nanda, Addl. Standing
Counsel (Civil) for GNCT of Delhi
with Ms. Rachna Saxena,
Advocate
3) W.P. (C) 2156/2011
RANDHIR BAWA . . . PETITIONER
Through: Mr. P.S. Patwalia, Sr. Advocate
with Mr. S.K. Pabbi, Mrs. Shikha
Roy, Mr. Ajit Kumar and Mr. R.D.
Bawa, Advocates.
VERSUS
HIGH COURT OF DELHI & ANR. . . .RESPONDENTS
Through: Mr. Viraj R. Datar, Advocate with
Mr. Chetan Lokur, Advocate for
DHC.
Mr. H.S. Sachdeva, Advocate for
R-2.
Mr. L.K. Garg, Advocate for R-3
& 4.
Mr. Rajiv Nanda, Addl. Standing
(Civil) for GNCT of Delhi with Ms.
Rachna Saxena, Advocate
4) W.P. (C) 1702/2011
HITESH VERMA . . . PETITIONER
Through: Ms. A. Maitri with Ms.
Radhika Chandrashah,
Advocates.
VERSUS
HIGH COURT OF DELHI & ANR. . . .RESPONDENTS
Through: Mr. Viraj R. Datar, Advocate with
Mr. Chetan Lokur, Advocate for
DHC.
Mr. H.S. Sachdeva, Advocate for
R-2.
W.P. (C) 1435/11, 2317/11,2156/11,1702/11,,1701/11 Page 2 of 32
Mr. Rajiv Nanda, Addl. Standing
(Civil) for GNCT of Delhi with Ms.
Rachna Saxena, Advocate
5) W.P. (C) 1701/2011
PUNEET GARG . . . PETITIONER
Through: Ms. A. Maitri with Ms. Radhika
Chandrashah, Advocates.
VERSUS
HIGH COURT OF DELHI & ANR. . . .RESPONDENTS
Through: Mr. Viraj R. Datar, Advocate
with Mr. Chetan Lokur, Advocate
for DHC.
Mr. H.S. Sachdeva, Advocate for
R-2.
Mr. Rajiv Nanda, Addl. Standing
Counsel (Civil) for GNCT of Delhi
with Ms. Rachna Saxena,
Advocate
CORAM :-
HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE M.L. MEHTA
1. Whether Reporters of Local newspapers may be
allowed to see the Judgment?
2. To be referred to the Reporter or not?
3. Whether the Judgment should be reported in the
Digest?
A.K. SIKRI, J.
1. Common grievance is raised by all these petitioners which
arises out of the selection process undertaken by Delhi High Court
for appointment to the Delhi Judicial Services (DJS) which was
initiated with advertisement dated 26th October, 2009 and
concluded with appointments made pursuant to the said selection
procedure vide Notification dated 24.12.2010. There is no
grievance about the selection process undertaken by the High
Court or in respect of the persons qualified on the basis of marks
secured in the written examination as well as interviews/viva-voce
test. The grievance is all together different. Vide advertisement
dated 26th October, 2009 vacancies of 60 seats for recruitment to
DJS was notified. The petitioners asserted that they received the
information under the Right to Information Act (RTI) that total
vacancies existing at that time were numbering 113. According to
these petitioners, all the vacancies should have been notified for
recruitment and the action on the part of the Delhi High Court in
undertaking the process of recruitment to 60 vacancies only was
improper and contrary to the mandate of Supreme Court in the
case of Malik Mazhar Sultan Vs. Uttar Pradesh Public
Services Commission & Ors, (2007) 2 SCALE 159.
2. Before we take note of the detailed submissions made by the
counsel for the petitioners in these writ petitions on this issue and
the defence/respond of the respondents thereto, we may briefly
take note of the facts on which there is no controversy,
whatsoever.
3. On 26th October, 2009 an advertisement was issued by the
Delhi High Court notifying the vacancy of 60 seats for DJS and the
breakup of these vacancies was as under:-
General Category - 27
Schedule Cast - 14
Scheduled Tribes - 14
Physically Handicapped - 05
4. The examination was to be conducted in three areas namely
Preliminary Examination (Objective Type), Main examination
(Subjective Type) and Interviews/viva-voce. Thousands of persons
including the petitioners herein who belonged to general category
submitted their applications pursuant to the said advertisement.
Preliminary Examination was conducted on 14th February, 2010.
Result of the said preliminary examination was declared on 2 nd
March, 2010 as per which 339 candidates qualified for mains
examination. The said main examination was conducted on 6th
June, 2010 and 7th June,2010. Result thereof was declared on 2nd
November, 2011. These petitioners had qualified in the preliminary
examination and thus appeared in the main examination. They
qualified the main examination as well and were called for
interview/ vive voce. Total number of persons who qualified the
main examination and were called for interview/viva voce were
139 candidates. The petitioners were among those 139
candidates. The interviews were conducted from 11th December
to 21st December, 2010. Thereafter, on the basis of marks
obtained in the written examination as well as in interview, merit
list of all 139 persons was prepared and notified on 24th December,
2010. As per this list 31 candidates, could not qualify in the viva
voce examination. We may state at this stage that the minimum
marks which were required to be obtained in the viva voce are
specified in the DJS Rules. As these petitioners could not obtain
the minimum marks and did not qualify in the viva-voce, they were
rendered ineligible. Six candidates did not appear in the interview
at all. In this manner, list of 102 candidates in order of merit were
prepared and notified. Since 27 vacancies in general category
were notified, first 27 candidates in the merit list were selected for
appointment. In so far was Scheduled Castes category is
concerned, against 14 vacancies 12 candidates qualified and all
these persons were appointed. In the category of ST only one
candidate was successful who was appointed in that category.
Against the post reserved for physical handicapped persons,
nobody could qualify. In this manner appointment was offered to
37 (?) persons.
5. In so far as these petitioners are concerned, they could not
secure their ranking within first 27 candidates which number of
posts were in general category and for this reasons, they were not
offered the appointment. Ranking of these petitioners in the merit
list is as under:-
Writ Petition No. Name of the Candidate Ranking Secured
6. On the basis of their ranking as disclosed above, the case of
the petitioners is that had all vacancies been advertised, they
would have been selected for appointment to DJS. It is argued
that as per the directions given by the Supreme Court in Malik
Mazhar Sultan (supra), it is mandatory for the employer to fill up
all the existing vacancies in the DJS. The petitioners also pointed
out that the aforesaid decision of the Supreme Court was followed
by a Division Bench of this Court in Jay Thareja & Anr. Vs. Lt.
Govenor & Anr. (Writ Petition (C) 8365/2008) decided on 15th
April, 2009). The reasons given by the Delhi High Court for not
advertising all the available vacancies which were furnished to the
petitioners as well under the RTI is that it was not possible to fill up
all the vacancies due to paucity of court rooms and non-availability
of other infrastructure. It is the contention of the respondents
that directions given in Malik Mazhar Sultan (supra) were
general in nature and applicable to all the High Courts. On the
other hand, insofar as Delhi High Court is concerned, in view of
the subsequent judgment of the Supreme Court clarifying and
interpreting Malik Mazhar Sultan (supra) in the context of this
Court in the case of Rakhi Ray & Anr. Vs. Delhi High Court and
Ors (2010) 2 SCC 637, it was permissible for the High Court to
advertise the lesser number of posts than the actual vacancies
available, moreso, when there was complete justification for the
same. In this backdrop, we have to understand the ratio of Malik
Mazhar Sultan (supra), a further probe is necessary to find out as
to whether subsequent decision of the Supreme Court in the case
of Rakhi Ray (supra) and specific observations qua Delhi High
Court in the directions given from time to time by the Supreme
court in All India Judges Association case have made any
difference. Thus, according to us, following facets need to be
answered to determine the fate of these writ petitions:-
(1)What is the general rule in respect of filling up
of the vacancies by the employer? To put it
otherwise, as a general rule, whether it is
permissible for the employer/Government to
notify lesser number of vacancies for
recruitment than the actual number of
vacancies available which may be more?
(2)If the answer to the aforesaid question is in the
affirmative, whether the judgment of Malik
Mazhar Sultan makes any departure in the
aforesaid rule insofar as Recruitment Rules to
Judicial Service at District Courts level is
concerned?
(3)If answer to question no2. Is in affirmative,
whether Rakhi Ray judgment and the directions
in All India Judges Association case permit
Delhi High Court to depart from the mandate of
Malik Mazhar Sultan (supra) permitted it to
advertise less number of vacancies than the
available?
Question No.1
7. Law on this proposition is crystal clear and remains
uncontaminated like the source of water originating from Gangotri.
The proposition settled by catena of judgments which has become
and established legal rule is that it is the prerogative of the
Government/employer to notify the vacancies which it wants to fill.
There is no obligation on its part to advertise all the vacancies. In
fact, this proposition has been advanced further to the extent that
even if a certain number of vacancies are advertised, there is no
compulsion on the part of the government to fill up all those
vacancies. So much so, a person who is selected against the
vacancy advertised and is empanelled by itself does not confer
any right upon him to get the appointment. Even after selection
process, the State, for valid reasons, may decide not to fill up all
the vacancies advertised and may restrict the offer of appointment
to lesser number of successful candidates.
8. Another corollary incidental to the aforesaid legal proposition
is that once a particular number of vacancies are advertised, it is
not open to the Government to fill up more vacancies than
advertised. If that is done, it amounts to denied and deprivation of
the rights of the others guaranteed to them under Article 14 and
16 (1) of the Constitution as those other persons who acquired
eligibility for the post in the meantime would be deprived of
competing once the vacancies which were not even
notified/advertised are filled up.
9. It is not even necessary to labour much because of the
reason that the Supreme Court itself has swell on this in its
judgment in the case of Rakhi Ray (supra) citing number of
precedents which have cemented the view over the period of time.
Therefore, our purpose would be served in reproducing that part of
discussion contained in Rakhi Ray (supra) which runs as follows;
"(9) It is a settled legal proposition that
vacancies cannot be filled up over and above the
number of vacancies advertised as "the
recruitment of the candidates in excess of the
notified vacancies is a denial and deprivation of
the constitutional right under Article 14 read with
Article 16(1) of the Constitution", of those
persons who acquired eligibility for the post in
question in accordance with the statutory rules
subsequent to the date of notification of
vacancies. Filling up the vacancies over the
notified vacancies is neither permissible nor
desirable, for the reason, that it amounts to
"improper exercise of power and only in a rare
and exceptional circumstance and in emergent
situation, such a rule can be deviated and such a
deviation is permissible only after adopting
policy decision based on some rational",
otherwise the exercise would be arbitrary. Filling
up of vacancies over the notified vacancies
amounts to filling up of future vacancies and
thus, not permissible in law. (Vide Union of
India and Ors. v. Ishwar Singh Khatri and
Ors. (1992) Supp 3 SCC 84; Gujarat State
Deputy Executive Engineers' Association v.
State of Gujarat and Ors. (1994) Supp 2 SCC
591; State of Bihar and Ors. v. The
Secretariat Assistant S.E. Union 1986 and
Ors. AIR 1994 SC 736; Prem Singh and Ors. v.
Haryana State Electricity Board and Ors.
(1996) 4 SCC 319; and Ashok Kumar and Ors.
v. Chairman, Banking Service Recruitment
Board and Ors. AIR 1996 SC 976).
10. In Surinder Singh and Ors. v. State of
Punjab and Ors. AIR 1998 SC 18, this Court
held as under:
"A waiting list prepared in an examination
conducted by the Commission does not furnish a
source of recruitment. It is operative only for the
contingency that if any of the selected
candidates does not join then the person from
the waiting list may be pushed up and be
appointed in the vacancy so caused or if there is
some extreme exigency the Government
may as a matter of policy decision pick up
persons in order of merit from the waiting
list. But the view taken by the High Court
that since the vacancies have not been
worked out properly, therefore, the
candidates from the waiting list were liable
to be appointed does not appear to be
sound. This practice, may result in depriving
those candidates who become eligible for
competing for the vacancies available in future.
If the waiting list in one examination was to
operate as an infinite stock for appointment,
there is a danger that the State Government
may resort to the device of not holding an
examination for years together and pick up
candidates from the waiting list as and when
required. The constitutional discipline requires
that this Court should not permit such improper
exercise of power which may result in creating a
vested interest and perpetrate waiting list for the
candidates of one examination at the cost of
entire set of fresh candidates either from the
open or even from service.... Exercise of such
power has to be tested on the touch- stone of
reasonableness.... It is not a matter of course
that the authority can fill up more posts
than advertised."
(Emphasis added)
11. Similar view has been re-iterated in Madan
Lal v. State of J & K and Ors. AIR 1995 SC
1088; Kamlesh Kumar Sharma v. Yogesh
Kumar Gupta and Ors. AIR 1998 SC 1021; Sri
Kant Tripathi v. State of U.P. and Ors.
(2001) 10 SCC 237; State of J & K v. Sanjeev
Kumar and Ors. (2005) 4 SCC 148; State of
U.P. v. Raj Kumar Sharma and Ors. (2006) 3
SCC 330; and Ram Avtar Patwari and Ors. v.
State of Haryana and Ors. AIR 2007 SC 3242).
12. In State of Punjab v. Raghbir Chand
Sharma and Ors. AIR 2001 SC 2900, this Court
examined the case where only one post was
advertised and the candidate whose name
appeared at Serial No. 1 in the select list joined
the post, but subsequently resigned. The Court
rejected the contention that post can be filled up
offering the appointment to the next candidate
in the select list observing as under:
"With the appointment of the first candidate for
the only post in respect of which the
consideration came to be made and select list
prepared, the panel ceased to exist and has
outlived its utility and at any rate, no one else in
the panel can legitimately contend that he
should have been offered appointment either in
the vacancy arising on account of the
subsequent resignation of the person appointed
from the panel or any other vacancies arising
subsequently"
13. In Mukul Saikia and Ors. v. State of
Assam and Ors. AIR 2009 SC 747, this Court
dealt with a similar issue and held that "if the
requisition and advertisement was only for 27
posts, the State cannot appoint more than the
number of posts advertised". The Select List "got
exhausted when all the 27 posts were filled".
Thereafter, the candidates below the 27
appointed candidates have no right to claim
appointment to any vacancy in regard to which
selection was not held. The "currency of Select
List had expired as soon as the number of posts
advertised are filled up, therefore, the
appointments beyond the number of posts
advertised would amount to filling up future
vacancies" and said course is impermissible in
law.
14. In view of above, the law can be summarised
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, 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
any more."
10. To sum up, our answer to the first question post is that as a
normal rule under service jurisprudence a complete discretion
lies with the employer to chose to fill up lesser number of post of
vacancies than available and no mandamus can be issued to the
State to fill up all the vacancies. Further, once a particular number
of vacancies are advertised, it is not permissible for the employer
to recruit over and above the number of vacancies so advertised.
Question No.2
11. In Malik Mazhar Sultan (supra), the Supreme Court was
concerned with the delay that occurs in filling up of the vacancies
in Subordinate Courts, at all levels. The figures placed before the
Court revealed that at that relevant time there was approved
strength of 14440 Judges in the Subordinate judiciary of this
country as against that as on March, 2006, actual serving Judges
were only, 11,682 leaving 2730 posts vacant which had not been
filled. The Court felt alarmed by this state of affairs. It took note
of direction contained in All India Judges Association -(3) Vs.
Union of India, (2002) 4SCC 247 as per which the Court had
directed that existing vacancies at all levels in the subordinate
courts be filled, if possible, latest by 31.3.2003 in all the States.
Therefore, the court was concerned with the backlog of the
vacancies remained unfilled notwithstanding those directions
given almost five years ago. The necessity for filling up of these
vacancies is obvious. The Court specifically observed that if
sufficient numbers of judges are not appointed, justice would not
be available to the people thereby undermining the basic structure
of the Constitution i.e. independent and efficient judicial system to
dispense justice without delay. According to the Apex Court,
justice becomes grimmer when the judge population ratio in this
country, as compare to other democracies in the world is
abysmally low and even those numbers of vacancies remained
unfilled.
[Issue before the Court to be taken note from Malik
Mazhar Sultan-I, 2006 SCC 5009.
12. Thus, the Court in its order dated 3.4.2006 observed that it
was absolutely necessary to evolve a mechanism to fill up
vacancies at all levels. For this purpose timely steps are required
to be taken for determination of vacancies, issue of advertisement,
conducting examination, interviews, declaration of final results and
issue of orders of appointment. The Court felt it desirable to fix
the time schedule was that system works automatically and there
is no delay in filling up of the vacancies. The directions contained
in judgment dated 3.4.2006 are summaries by the Supreme Court
in Malik Mahzar Sultan-(3) (supra) in the following manner:-
"In this matter, by judgment and order dated
3-4-2006 it was observed that it is absolutely
necessary to evolve a mechanism to speedily
determine and fill vacancies of Judges at all
levels. For this purpose, timely steps are
required to be taken for determination of
vacancies, issue of advertisement, conducting
of examinations, interviews, declaration of
final results and issue or orders of
appointment. It was further directed that for
all these above and other steps, it is
necessary to provide to fix the tie schedule so
that the system works automatically and
there is no delay in filling up of the vacancies.
The dates for taking up these steps can be
provided for on the pattern similar to filling up
of vacancies in some other services.
Adherence to strict time schedule can help in
ensuring timely filling up of vacancies. In this
view, all the State Governments, Union
Territories and/ or High Courts were directed
to give suggestions regarding the time
schedule to be fixed so that every year
vacancies that may occur are filled. This
Court also requested Mr. Vijay Hansaria,
Senior Advocate to assist the Court.
13. Going by the aforesaid consideration and in order to ensure
that the vacancies are filled up in time, the Court deem it
appropriate to issue "general directions" and the time schedule to
be adhered to for filling the vacancies that may arise in
subordinate courts and district courts. In this backdrop the court
actually fixed the time table stipulating specific dates for
undertaking the selection process right from identifying the
vacancies, date of issuing the advertisement, receiving the
applications, conducting the written examination, declaration of
result thereof, conducting vive voce and declaration of final select
list as well as issuance of appointment letters and date of joining.
It is in this process and in order to ensure that no backlog
remains and the vacancies are filled well in time, the Court also
made it clear that not only existing vacancies but future vacancies
that may arise within one year due to retirement or due to
elevation to the High Court, death or otherwise (say 10% of the
number of post) or due to deputation of judicial officers to other
department (which may be considered as „temporary vacancies‟)
are also be advertised. After setting down the time table making it
applicable to all the states, in respect of some States, the Court
made depart. For example qua the State of Sikkim it was clarified
that those directions would not be applicable as it had very small
cadre of judiciary in that State. Regarding Delhi, following
observations were made in para 12:-
"Insofar as Delhi is concerned, it has been
stated that the entire selection process is
conducted by the High Court and examination
is held twice in 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 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."
14. It is clear from the above that as far as Delhi is concerned, it
had been conducting the selection process in time and was not
legging behind insofar as DJS is concerned. Permission was even
given to revise its time schedule and place on record of the case.
We have to keep in mind that the aforesaid directions are "general
directions" applicable in respect of all the States. The ground
reality, however, in different States may vary. So far as Delhi is
concerned, one aspect was taken note of by the Court while fixing
the time table itself as mentioned above. Again as noted above, in
so far as Delhi is concerned, selection process there are regular
selection conducted for filling up of the vacancies. In such a
scenario, depart from the aforesaid directions, in a particular State
having regard to the ground realities prevailing therein, could be
permissible. We make these observations having regard to the
fact that matter was not given a complete quietus but has been
monitored from time to time. Various States/High Courts filed
applications at different times stating the particular situation
prevailing in those High Court and seeking directions as well as
modifications of the aforesaid orders. The Supreme court has
been passing orders on such applications. Thus, generally
speaking, as per the directions in the aforesaid judgment, all the
High Courts are required to notify the vacancies to be filled up not
only the existing vacancies but the vacancies which may arise in
next one year to be filled up and not to carry forward the unfilled
posts. Directions were even given to prepare a panel for this
purpose for future vacancies which may arise in next one year. It
was this direction which was kept in view by a Division Bench of
this Court in Jay Thareja & Anr. (supra) rendered on 15.4.2009.
In that case the Court was concerned with the Notification issued
on 18.4.2007 by the Delhi High Court for holding the DJS
examination. As per the advertisement issued, 37 vacancies in all
were notified. This included 20 vacancies in General Category.
After the selection, merit list of the candidates for this examination
was published on 28.5.2008 thereafter select list was issued on
2.6.2008 selecting 28 persons out of which 20 candidates were of
the general category. Mr. Jay Thareja and some other candidates
belonged to general category who were in the merit list but could
not get selected as their ranking was below 20 in the general
category filed their writ petitions raising their grievance that the
select list should have consisted large number of candidates.
After considering the various nuances of directions given in Malik
Mazhar Sultan (supra) the Division Bench of this court issued writ
of mandamus directing the respondent to process the filling up of
5 posts which fell vacant after notification of the examination by
December, 2007 giving the following rationale:
"22. We are, thus, of the view that the
directions in Malik Mazhar Sultan and 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 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 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
and 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 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."
Question No.3
15. With this we proceed to discuss as to whether Rakhi Ray
(supra) has made any departure, insofar as Delhi High Court is
concerned. Along with this case, even the progress in All India
Judges Association case has been monitored from time to time and
continuous mandamus/directions issued. Eschewing other aspects
on which directions are issued as we are not concerned with those
issues, we may point out that as far as time schedule fixed vide
orders dated 4.1.2007 in Malik Mazhar Sultan (supra) and
notifying the vacancies is concerned, the same is generally
reiterated. However, in so far as Delhi is concerned, the
government of NCT of Delhi as well as Delhi High Court which are
parties to the aforesaid proceedings, they have been bringing on
record the existing vacancies and the vacancies advertised.
16. It is to be kept in mind that Rakhi Ray (supra) is a
judgment in the context of recruitment in the cadre of Higher
Judicial Service in Delhi. Advertisement dated 19.5.2007 was
issued notifying 20 vacancies. Out of these posts, 13 posts were
to be filled up from the general category candidates, 3 from
Schedule Cast and 4 from Scheduled Tribes. Appellants Rakhi
Ray and others also found place in the merit list but were much
below at sl. No.13 After filling up of all 13 vacancies in general
category, the said persons could not be selected because of lower
ranking. Some of the unsuccessful candidates filed the writ
petitions earlier in Delhi High Court claiming that some more
vacancies came into existence between 29.2.2008 and 23.5.2008
i.e. during the pendency of selection process and, therefore, as per
Malik Mazhar Sultan (supra), those vacancies should be filled up
by same selection process. Those writ petitions were disposed of
on 3.10.2008 by a Division Bench of the High Court taking a view
that only three vacancies came into existence subsequent to the
date of advertisement which could have been filled up from the
said list. Direction was given to fill up two vacancies from general
category and one from ST category. Thus two more persons at sl.
No. 14 and 15 in the general category were also selected. The
Rakhi Ray and others filled SLP against that judgment seeking
directions to offer appointment to them as well. It was contended
that as per Malik Mazhar Sultan (supra) all anticipated
vacancies that may arise within one year due to retirement, due to
elevation to the High Court, death or otherwise (say 10% of the
number of posts) could be filled and, therefore, it would not proper
to restrict the additional vacancies to three only which occur
between 29 March, 2008 to 23rd May, 2008. The submissions of
the counsel for the respondents, on the other hand, was that 13
vacancies of the general category were advertised which had been
filled up according to merit and, therefore, selection process in
that respect stood exhausted and certain list did not survive. It
was also argued that the appellant had not challenged the
advertisement inspite of the fact that judgment in Malik Mazhar
Sultan (supra) was delivered on4.1.2007 and vacancies were
advertised on 19.5.2007.
17. The Court first stated the settled legal position that
vacancies cannot be filled up over and above the number of
vacancies advertised. This part of the discussion has already been
produced by us while discussing question no.1. After discussing
the said general rule, the court proceeded to discuss the
implication of the directions given in Malik Mazhar Sultan
(supra) observing that "the same requires consideration
elaborately". The Court noted that trigger point was that first
judgment in All India Judges Association delivered in 1993 and
took historical view of the directions given from time to time
leading up to Malik Mazhar Sultan (sultan) . In the first place, it
was emphasized that to implement the recommendation of Justice
K.G. Shetty Commission (which was subject matter of All India
Judges Association case), it was necessary to incorporate the
same in the statutory rules governing the service conditions of the
Judicial Officers or alterations of the Rules applicable to them.
The Court then referred to another judgment in the case of Syed
T.A. Naqshbandi & Ors. Vs. State of J & K. & Ors. (2003) 9
SCC 592 in para-19 wherein it was emphasized that without
amending the statutory rules, the recommendation of Justice
Shetty Commission could not be enforced. Thereafter judgment of
Malik Mazhar Sultan (supra) is discussed in the following
manner:-
"20. In Malik Mazhar Sultan's case (supra),
this Court made it clear that appointments in
Judicial Service have to be made as per the
existing statutory rules. However, direction
was issued to amend the rules for future
selections. This Court considered the
correspondences between various authorities
of the States and also the decision taken in
the conference of the Chief Ministers and
Chief Justices held on 11.3.2006, and
observed as under:
"...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.... As already indicated, the
selection is to be conducted by authorities
empowered to do so as per the existing
Rules.... In view of what we have already
noted about the appointments to be made
in accordance with the respective
Judicial Services Rules in the States, the
apprehension of interference seems to be
wholly misplaced....
(Emphasis added)
21. Therefore, it is clear that this Court
clarified that selection was to be made as per
the existing Rules and direction was issued for
amending the existing laws to adopt the
recommendations of Justice Shetty
Commission as approved by this Court for the
future.
22.xxxxxxxxxx
23. Therefore, it is evident from the aforesaid
judgment that in spite of acceptance of the
recommendations made by Justice Shetty
Commission, this Court insisted that the
existing law/statutory rules in making the
appointment of Judicial Officers be amended
accordingly. In Syed T.A. Naqshbandi
(supra), this Court repealed the contention
which is being advanced by the learned
Counsel for the petitioners therein and the
Court in crystal clear words held that
appointments have to be made giving strict
adherence to the existing statutory provisions
and not as per the recommendations made by
Justice Shetty Commission. Of course, in
absence of statutory rule to deal with a
particular issue, the High Courts are bound to
give effect to the directions issued by this
Court.
18. The Court thereafter reiterated that in view of the legal
position that it was not permissible to fill up more posts than
advertised and further that the appointments had to be made
giving strict adherence to the statutory provisions and not as per
the recommendations made by Justice Shetty Commission, the
Court concluded that in the case in hand question of taking into
consideration the anticipated vacancies as per the judgment in
Malik Mazhar Sultan (supra) did not arise, as can be found in
the following discussion:-
"The appointments had to be made in view of
the provisions of the Delhi Higher Judicial
Service Rules, 1970. The said rules provide for
advertisement of the vacancies after being
determined. The rules further provide for
implementation of reservation policies in favour
of Scheduled Castes, Scheduled Tribes and
Other Backward Classes. As the reservation
policy is to be implemented, a number of
vacancies to be filled up is to be determined,
otherwise it would not be possible to
implement the reservation policy at all. Thus, in
view of the above, the question of taking into
consideration the anticipated vacancies, as per
the judgment in Malik Mazhar Sultan (supra),
which had not been determined in view of the
existing statutory rules could not arise."
19. Additional reason given to dismiss the appeal was that the
advertisement which notified particular number of vacancies was
never challenged. It is clear from the following portion of the said
judgment:-
"In view of above, we do not find any force in
the submissions that the High Court could
have filled vacancies over and above the
vacancies advertised on 19.5.2007, as per the
directions issued by this Court in Malik
Mazhar Sultan's case (supra). More so, no
explanation could be furnished by Shri Ranjit
Kumar, learned senior counsel for the
appellants as to why the appellants could not
challenge the advertisement itself, if it was not
in conformity with the directions issued by this
Court in the said case"
20. The Court also raised doubts qua the directions given by the
High Court making appointment of two more persons from general
category but left the matter as that part of the judgment was not
challenged. Following discussion in this behalf needs to be quoted
"It has further been submitted on behalf of the
appellants that the Delhi High Court vide its
judgment and order dated 3.10.2008 had
issued directions to offer appointment to two
persons implementing the said judgment in
Malik Mazhar Sultan's case (supra) whose
and 15, and, as the High Court had
implemented the said directions, the
appellants could not be treated with such
hostile discrimination. Undoubtedly, the
directions had been issued to fill up two
vacancies over and above the vacancies
notified. However, that part of the judgment is
not under challenge before us. In such a fact
situation, it is neither desirable nor permissible
in law to make any comment on that. A person
whose name appears in the select list does not
acquire any indefeasible right of appointment.
Empanelment at the best is a condition of
eligibility for purpose of appointment and by
itself does not amount to selection or create a
vested right to be appointed. The vacancies
have to be filled up as per the statutory rules
and in conformity with the constitutional
mandate. In the instant case, once 13 notified
vacancies were filled up, the selection process
came to an end, thus there could be no scope
of any further appointment."
21. It would be very important to take note of orders dated
20.4.2010 passed by the Supreme Court in All India Judges
Association case. By that time, the advertisement in question had
been issued, which was issued on 26.10.2009 notified 60
vacancies, the court was informed that number of post available
were much more but lesser number of post were advertised as
there were paucity of court accommodation and other
infrastructure. The Court specifically took note of this fact in the
following manner:-
"There are about 218 vacant post of Civil
Judge (Jr. Division) out of which 64 posts have
already been advertised and the remaining
posts could not be advertised as there is
paucity of court accommodation and other
infrastructure. Mrs. Anil Katiyar, learned
counsel appearing for the Delhi Government
stated that urgent steps will be taken to create
all infrastructural facilities for courts and the
same is recorded. Steps may be taken at the
earliest and this court to be apprised about it
within a period of six months"
22. Notwithstanding above, there are certain questions which
arose during arguments and debated namely;
(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 Curt 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?
23. These are the issues of vital importance and we are of the
view that the matter needs consideration by the Larger Bench.
Accordingly we direct the Registry of this Court to place the matter
before the Hon‟ble Chief Justice for constituting a Full Bench.
(A.K. SIKRI)
JUDGE
(M.L. MEHTA)
JUDGE
MAY 11, 2011/skb
