2020 Supreme(SC) 683

SUPREME COURT OF INDIA
L. NAGESWARA RAO, HEMANT GUPTA, AJAY RASTOGI, JJ.
Pankjeshwar Sharma and Others – Appellants
Versus
State of Jammu and Kashmir and Others – Respondents
Civil Appeal Nos. 3904, 3905, 3907, 3908, 3909, 3910, 3911-3917, 3918, 3919, 3920, 3921, 3922, 3923-3929 3930, 3931, 3932, 3933, 3934 of 2020, S.L.P. (C) Nos. 20553, 20554, 21192-21198, 21645-21651, 22708-22709, 23227, 25906-25907, 25929, 27135, 27983-27984, 29765, 29803 of 2013, 1621-1622, 34564 of 2014
Decided On : 03-12-2020

IMPORTANT POINTS
(1) Filling-up of vacancies over and above number of vacancies advertised would be violative of fundamental rights guaranteed under Article 14 and 16 of Constitution and selectees could not claim appointments as a matter of right.
(2) If an appointment is made illegally or irregularly, same cannot be made the basis of further appointment and erroneous decision cannot be permitted to perpetuate further error to detriment of general welfare of public or a considerable section.
(3) Rules of recruitment to various services under State or to a class of posts under State, State is bound to follow the same and to have selection of candidates to be made as per scheme of recruitment rules and appointments shall be made accordingly.

Headnote:

(A) Service Law – Appointment – Rules of recruitment to various services under State or to a class of posts under State, State is bound to follow the same and to have selection of candidates to be made as per scheme of recruitment rules and appointments shall be made accordingly – At the same time, all efforts shall be made for strict adherence to procedure prescribed under recruitment rules – On the contrary, if any appointments are made bypassing recruitment procedure known to law, will resulted in violation of Article 14 and 16 of Constitution – Filling-up of vacancies over and above number of vacancies advertised would be violative of fundamental rights guaranteed under Article 14 and 16 of Constitution and selectees could not claim appointments as a matter of right – Even if in some cases appointments had been made erroneously or by mistake, that did not confer any right of appointment to another person as Article 14 of Constitution does not envisage negative equality and if State or its authority had committed a mistake at any given stage, it cannot be forced to perpetuate said mistake under writ jurisdiction of High Court under Article 226 of Constitution – In a situation where posts in excess of those advertised had been filled up in extraordinary circumstances, instead of invalidating excess appointments, relief could be moulded in such a manner so as to strike a just balance keeping interest of State and interest of person seeking public employment depends upon facts of each case for which no set standard can be laid down. (Para 24)

(B) Service Law – Appointment – Post of Sub-Inspector of Police (Executive) – Ordinarily, in open selection, appointments are to be made strictly in order of merit in terms of procedure prescribed under relevant statutory recruitment rules or in absence under guidelines if prescribed, still if appointments are made for exceptional reasons deviating from merit list which ordinarily is not permissible but in unforeseen exigencies, if State with a bonafide intention to give quietus to ongoing litigation pending for last eight years extended its concession to adjust such 22 candidates who are under litigation for long time with no malafides or bias being imputed to State action could have been possible only if those who are litigating and agitating their grievance reached upto this Court cannot be held to be faulted – If candidates who have secured 50 or more marks and still left from consideration for appointment, their right accrued to make their claim when judgment was initially pronounced by Single Judge dated 16th October, 2000 although modified by Division Bench in first round of litigation by judgment and order dated 19th August, 2002 but none of so-called appellants/candidates who have secured 50 or more than 50 marks ever made their claim in seeking appointment at a later stage and what is reflected from record that there were only 47 ousted candidates who secured 50 or more than 50 marks and if present appellants who have secured 50 or more marks as claimed by them were not there within 47 ousted candidates, no grievance at a belated stage could be raised and open to be entertained and deserves rejection – If something is being done or acted upon erroneously that cannot become foundation for perpetuating further illegality – If an appointment is made illegally or irregularly, same cannot be made the basis of further appointment and erroneous decision cannot be permitted to perpetuate further error to detriment of general welfare of public or a considerable section – However, Court not inclined to disturb appointment of those 22 candidates against whom a grievance has been raised by appellants in present batch of appeals – Appeals dismissed. (Paras 29, 30, 31, 35, 41 and 42)

Facts of the case:

Present batch of appeals have been instituted by unsuccessful appellants being aggrieved with impugned judgment dated 20th March, 2013 passed by the Division Bench of High Court of Jammu & Kashmir in LPA No.02/2011 and LPA No.04/2011 and placing reliance on its judgment dated 12th March, 2013, cognate LPAs at a later stage were disposed of.

Findings of Court:

Appointments of 22 candidates made by the 2nd respondent vide orders dated 23rd February, 2008 and 11th March, 2008 which has given rise to a further litigation are irregular appointments and not in conformity to the recruitment rules, still what being prayed by appellants if accepted by this Court that will perpetuate illegality which has been committed by the State-respondent and negative equality cannot be claimed to perpetuate further illegality under Article 226 of Constitution of India.

Result : Appeals dismissed.