Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(SC) 980

SUPREME COURT OF INDIA
HRISHIKESH ROY, PANKAJ MITHAL, JJ.
Sudesh Kumar Goyal - Appellant
Versus
The State of Haryana & Ors. - Respondents
Civil Appeal No. 10861 of 2013
Decided On : 21-09-2023

Advocates appeared:
For the Appellant(s) Mr. Rakesh Dahiya, AOR
For the Respondent(s): Dr. Monika Gusain, AOR Mr. Ashok Mathur, AOR

IMPORTANT POINT
Appointment – If one of selected candidates joins and then resigns, it gives rise to a fresh vacancy which could not have been filled up without issuing a proper advertisement and following fresh selection process.

Headnote:
Service Law – Appointment to Higher Judicial Service under direct recruitment quota – Though it is up to employer or the State to fill up all notified vacancies or to keep all of them or any of them vacant but it does not mean that employer/State can act arbitrarily in not filling up those posts and decision not to fill up vacancies has to be a bona fide one supported by appropriate reasons – If one of selected candidates joins and then resigns, it gives rise to a fresh vacancy which could not have been filled up without issuing a proper advertisement and following fresh selection process – It would be a travesty of justice to keep open selection process for such a long time [16 years in present case] and to direct at this stage to make any appointment on the basis of a selection process initiated so far back – Appeal dismissed. (Paras 10, 18, 19 and 20)
Facts of the case:
Common judgment and order dated 18.05.2010 passed by Division Bench of Punjab & Haryana High Court deciding 12 writ petitions, more particularly, writ petition No.16211 of 2009 is under challenge in present appeal. Bunch of above writ petitions were partially allowed but appellant was not accorded any relief insofar as his appointment to higher judicial service of State under direct recruitment quota was concerned. Appellant, despite having successfully qualified written examination and interview and having secured 14th position in merit list, was not appointed.
Findings of Court:
Candidates who were promoted as Fast Track Court judges from post of Civil Judge (Sr. Division) having requisite experience in service shall be entitled to be absorbed and remain promoted to higher judicial service of State against the 25% quota after giving due weightage to the fact that they have already put in a number of years’ service in higher judicial service.
Result : Appeal dismissed.

JUDGMENT :

Pankaj Mithal, J.

1. We had heard Shri Rakesh Dahiya learned counsel for the appellant, as well as Shri Raju Ramachandran, learned senior counsel for the respondents. Ms. (Dr.) Monika Gusain had appeared for the State of Haryana and was also heard.

2. The common judgment and order dated 18.05.2010 passed by the Division Bench of the Punjab & Haryana High Court deciding 12 writ petitions, more particularly, writ petition No.16211 of 2009 is under challenge in the present appeal. The bunch of the above writ petitions were partially allowed but the appellant was not accorded any relief insofar as his appointment to the higher judicial service of the State under direct recruitment quota was concerned.

3. Before adverting to the two legal issues which have been addressed by Shri Rakesh Dahiya in assailing the impugned judgment and order, we consider it appropriate to briefly narrate the facts leading to the filing of the writ petition and now the appeal arising therefrom.

4. The Punjab & Haryana High Court on 18.05.2007 issued a notification for the selection/recruitment of 22 officers in the Haryana Superior Judicial Service by direct recruitment from the Bar, out of which, 14 were of general category, 5 of the scheduled caste and 3 of the backward class. The selection was to be made in accordance with the provisions of the Haryana Superior Judicial Service Rules, 2007 within the 25 per cent quota for direct recruitment from the Bar.

5. The appellant was one of the candidates, who applied for the post along with the other candidates who preferred the connected writ petitions. The appellant, despite having successfully qualified the written examination and the interview and having secured the 14th position in the merit list, was not appointed.

6. Pursuant to the above notification dated 18.05.2007, the written examination was held in February 2008 and the interviews of the successful candidates were held on 08.04.2008 and 09.04.2008. The final result was displayed on the website of the High Court on 15.07.2008 and the appellant was placed at serial no.14 of the merit list of the general category candidates. In spite of the fact that 14 general category posts for direct recruitment were advertised and the appellant was within the first 14 general category candidates who successfully qualified the written test and the interview, he was not given appointment, whereas the first 13 candidates in order of merit were appointed. Out of these 13 candidates, one of the candidates, namely, Jitender Kumar Sinha joined the service but later resigned.

7. It is in the above factual background that the appellant invoked the writ jurisdiction of the High Court seeking his appointment against the 14th post of general category candidate, inter alia, on the allegation that the said post could not be kept vacant, more particularly, in an arbitrary manner. It is also contended that out of the 13 candidates appointed, one of them after joining had resigned and, therefore, in any case the appellant could have been adjusted against the said vacancy.

8. Shri Dahiya, in the light of the ratio laid down by the Apex Court in Shankarsan Dash v. Union of India (1991) 3 SCC 47, has argued that though he is conscious that the appellant by selection itself has not acquired any indefeasible right to be appointed, nonetheless, his right for appointment cannot be defeated by adopting an arbitrary approach. The respondents have acted purely in an arbitrary manner in keeping the 14th post vacant and not filling it by the appointment of the appellant.

9. The relevant paragraph 7 of the above decision reads as under:-

“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

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