2023 Supreme(SC) 1163

SUPREME COURT OF INDIA
C.T. RAVIKUMAR, SUDHANSHU DHULIA, JJ.
Vivek Kaisth & Anr. - Appellants
Versus
The State Of Himachal Pradesh & Ors. - Respondents
Civil Appeal Nos.6233-6234 Of 2023 (Arising Out Of SLP (C) Nos.15522-15523 Of 2021) With Civil Appeal No.6236 Of 2023 (@ SLP(C) No.2464/2022), Civil Appeal No.6235 Of 2023 (@ SLP(C) No.21162/2021), Civil Appeal No.6237 Of 2023 (@ SLP(C) No.4873/2022)
Decided On : 20-11-2023

IMPORTANT POINTS
(1) Appointments cannot be made over and above clear and anticipated vacancies which have been advertised even though Public Service Commission may have prepared a longer merit list than it was required to do.
(2) Candidates in waiting list have no vested right to be appointed except to the limited extent that when a candidate selected against existing vacancy does not join for some reason and waiting list is still operative.

Headnote:

(A) Service Law – Appointment – Post of Civil Judge (Junior Division) – Importance of Service Rules cannot be belittled – Appointments cannot be made over and above clear and anticipated vacancies which have been advertised even though Public Service Commission may have prepared a longer merit list than it was required to do, except in an emergency situation or for some unforeseen reasons, in public interest or when a policy decision is taken by State Government in this regard – Purpose of a “waiting list” is only to fill shortfall of clear and anticipated vacancies – Vacancies which could not be anticipated before date of advertisement, or vacancies which did not exist at the time of advertisement, are vacancies for future i.e., next selection process – Appointment of appellants was made on posts which were not advertised and in fact did not even exist at the time when advertisement was made – However, a Judge is a Judge of facts, as much as he is a Judge of law – Appellants had qualified examination and were in merit list – From very initiation of adding future vacancies after select list was published, High Court has been privy to selection/appointment process – These judicial officers now have a rich experience of 10 years of judicial service behind them and unseating them from their posts would not be in public interest – It is nobody’s case that appellants have been appointed by way of favouritism, nepotism or due to any act which can even remotely be called as blameworthy – In order to do complete justice and in exercise of powers under Article 142 of Constitution of India, order of High Court set aside as far as it quashes selection and appointment of appellants. (Paras 19, 21, 23, 24,28, 29, 32, 33, 34, 36 and 37)

(B) Service Law – Appointment – Waiting list – A waiting list prepared in service matters by competent authority is a list of eligible and qualified candidates who in order of merit are placed below last selected candidate – How it should operate and what is its nature may be governed by rules – A candidate in waiting list in order of merit has a right to claim that he may be appointed if one or other selected candidate does not join – But once selected candidates join and no vacancy arises due to resignation etc. or for any other reason within period list is to operate under rules or within reasonable period where no specific period is provided then candidate from the waiting list has no right to claim appointment to any future vacancy which may arise unless selection was held for it – A waiting list prepared in an examination conducted by Commission does not furnish a source of recruitment – It is operative only for contingency – Candidates in waiting list have no vested right to be appointed except to the limited extent that when a candidate selected against existing vacancy does not join for some reason and waiting list is still operative. (Paras 25, 26 and 27)

Facts of the case:

Appellants have challenged Judgment dated 20.09.2021 passed by Division Bench of High Court of Himachal Pradesh in Civil Appeals by which appointment of appellants to post of Civil Judge (Junior Division) has been quashed.

Findings of Court:

Present litigation which appellants have gone through will not come in way of these judicial officers in any manner, as far as their judicial career is concerned. They shall be treated at par with other appointees on post of Civil Judge (Junior Division) for that year.

Result : Appeals allowed.