IMPORTANT POINTS
Vacancy occurring after advertisement cannot be taken into consideration.
Appointment made by different process cannot be challenged along with challenge to recruitment through advertisement.
Reserved category candidate competing on merit – Has to be included in general category and cannot be included in reserved category.
Candidates appearing in selection process without demur are precluded from challenging the process after becoming unsuccessful.
Inclusion of name in select list does not confer any right to appointment.

Headnote:(a) Service law – Recruitment – Punjab Superior Judicial Service – Judge from direct advocates quota elevated to High Court subsequent to advertisement – Notwithstanding mention in advertisement about varying number of posts, High Court rightly did not expand scope of the number of persons to be recruited. (Para 7)
       (b) Service law – Recruitment to Punjab Superior Judicial Service – Against two seats reserved for Ex-servicemen – Posts deserved – One post filled by a Fast Track Court judge – Different procedure adopted for such recruitment – No infirmity. (Para 11, 13)
       (2002) 5 SCC 1 – Referred
       (c) Service law – Recruitment – Reservation – Reserved category candidate competing on merit – Has to be included in general category and cannot be included in reserved category. (Para 12)
       (2014) 14 SCC 745 – Relied upon
       (d) Service law – Recruitment – Total cadre strength 107 – Vacancy arising in category 27 – Six already appointed – Advertisement for 21 posts – Advertisement not challenged – Appellants appeared in selection process – Becoming unsuccessful – Now challenging the process – Held precluded from such challenge. (Para 16)
       (2017) 4 SCC 357; (2002) 6 SCC 127; (2008) 17 SCC 703 – Relied upon
       (e) Service law – Recruitment – Candidate appearing in select list – Does not get an indefeasible right to appointment – Moreover it is always open to not even fill up a vacancy. (Para 17)
       (2016) 6 SCC 532 – Relied upon
       Facts of the case:
       Issues regarding various aspects of appointment to the Punjab Superior Judicial Service are raised in this case.
       Finding of the Court:
       No interference is warranted.
       Result: Appeals dismissed.

JUDGMENT

SANJAY KISHAN KAUL, J.

1. In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Punjab Superior Judicial Service Rules, 2007 (hereinafter referred to as the ‘said Rules’) were notified on 31.08.2007 duly published in the Gazette of 03.09.2007 for regulating the recruitment and the conditions of service of the persons appointed to the Punjab Superior Judicial Service. The method of appointment as per Rule 7 of the said Rules was both from amongst the members of the Punjab Civil Service (Judicial Branch), as well as direct appointment from amongst the eligible advocates on the basis of written test and viva-voce conducted by the High Court. Sub-clause (c) of Sub-rule (3) of Rule 7 dealt with the latter direct appointment for which 25 per cent of the posts were reserved. The appeals in question relate to the process of the direct recruitment under these Rules at the first instance, carried out in pursuance of the advertisement issued on 02.02.2008.

2. In terms of the aforesaid advertisement, applications were invited for selection of twenty one (21) candidates, with a further breakup of ten (10) from General category, six (6) from Scheduled Caste (‘SC’) category, two (2) from Backward Class category, one (1) from Ex-Serviceman (General) category, one (1) from B.C. (Ex-Serviceman) category and one (1) from Physically Challenged category of Locomotor or Orthopedic Disability, under Rule 7(3)(c) of the said Rules. It may be noted that the advertisement also stated that ‘the number of posts will be subject to variation.’ Note 4 to the advertisement qua the Physically Challenged category also stated that “if no candidate is found suitable or medically fit under this category, the post shall be reverted to the General category candidate.”

3. The appellants before this Court are all candidates, who appeared for the examination. It may be noted that none had assailed the advertisement on any account prior to the declaration of the result. On declaration of the result of the written examination, viva-voce was held and there was variation in the merit position of the candidates in the combined marks as compared with just the written examination. The appellants all belong to the General category and their merit position was beyond the ten (10) candidates whose recruitment was envisaged under the advertisement. It may be noted that one of the SC candidates obtained marks to merit consideration without the benefit of reservation and consequently nine (9) of the General category candidates were recruited against the ten (10) posts.

4. There were five developments, which need to be taken note of, in view of the pleas advanced on behalf of the appellants. The first was the elevation of Justice Sabina as a Judge of the High Court of Punjab & Haryana on 12.03.2008, and, thus, the submission of the appellants is that one more seat for General category became available post issuance of the advertisement and since the number of posts were subject to variation, this vacancy should be made available to the General category. The second is arising from a defect in the advertisement inasmuch as no reservation for ex-serviceman was envisaged, as Rule 3 of the Punjab Recruitment of Ex-Servicemen Rules, 1982 (hereinafter referred to as the ‘Ex-Servicemen Rules’) exempted the applicability of these Rules to the Punjab Vidhan Sabha Secretariat Service and the Punjab Superior Judicial Service. The High Court also took cognizance of this fact and, thus, the reservation being not in accordance with law, resolved appropriately in a meeting of the Judges held on 25.07.2008. The meeting noted that the vacancy, which was advertised as Ex-Serviceman (General) category should also go to the General category. Thus, a second seat as per the appellants became available for the General category. The third is the ab

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2018 Supreme(SC) 476

Cases Referred (6)