IMPORTANT POINT
Appointment – A person who is eligible for appointment, cannot be denied appointment without creating a continuing wait list.

ORDER

Leave granted.

2. Heard Mr. Ajit Kumar Sinha, learned senior counsel for the appellant and Ms. Preetika Dwivedi, learned counsel for Respondent No.1-Allahabad High Court and Respondent No.3. The State of Uttar Pradesh is unrepresented, despite valid service of notice. We are glossing over the non-appearance in praesenti; however, the State to take note of defaults in appearances to avoid adverse orders that affect public interest.

3. The present appeal is directed against the Final Judgment and Order dated 22.09.2022 in WRIT - A No.13979 of 2022 passed by a learned Division Bench of the High Court of Judicature at Allahabad [2022:AHC:164781-DB] : 2022 Supreme(All) 2029 (hereinafter referred to as the ‘Impugned Judgment’), whereby the claim raised for appointment by the appellant to the post of Additional District and Sessions Judge in the Uttar Pradesh Higher Judicial Service (of the State of Uttar Pradesh) has been negatived.

FACTUAL SETTING:

4. The appellant, pursuant to the ‘Direct Recruitment to the Uttar Pradesh Higher Judicial Service-2016’ advertisement dated 10.05.2016 (hereinafter referred to as the ‘2016 Advertisement’), participated in the said selection process. The final results were published on 01.10.2020, and the appellant ranked at Sl. No.38 in the Merit List. However, since the total vacancies were only thirty-seven under the Unreserved/General Category (hereinafter referred to as the ‘General Category’), the High Court forwarded a list of the top thirty seven persons, who were placed above the appellant, to the Hon’ble Governor/Government of Uttar Pradesh for acceptance, clearance and final issuance of Appointment Letters.

However, at the level of the Hon’ble Governor, State of Uttar Pradesh, only thirty-six persons out of the thirty-seven recommended candidates were approved and consequently appointed. Herein lies the genesis of the instant dispute.

5. As per the appellant, since he was the next candidate in line as the next person (at Sl. No.38 in the Merit List) belonging to the General Category, he should automatically have been recommended to the State Government for appointment. The same was not done; instead, the said vacant post was carried forward for the next recruitment cycle and left unfilled in the subject selection.

APPELLANT’S SUBMISSIONS:

6. Mr. Sinha, learned senior counsel for the appellant, contended that once the vacancies as per the 2016 Advertisement were for thirty-seven persons in the General Category, the entirety of the said thirty-seven vacancies had to be filled up from the same selection process. It was urged that there cannot be any question of carry-forward of any vacancy in the facts of the present lis, for the reason that it was not the case of a casual vacancy having arisen after the candidates concerned had joined their posts. Rather, it was a case where one recommended candidate was not finally approved by the Hon’ble Governor/State Government, which made the thirty seventh post available and vacant for recruitment. In such a scenario, as canvassed by Mr. Sinha, it was incumbent upon the High Court to recommend/forward the name of the next eligible candidate, which, as per the Merit List, was the present appellant.

7. It was further argued that Rule 8(2) of the Uttar Pradesh Higher Judicial Service Rules, 1975 (hereinafter referred to as the ‘Rules’), being relied upon by the High Court, is not attracted in the facts at hand as the same is applicable only when the persons finally found eligible for being recommended for appointment is less than the total posts available, which is not the situation herein as there were more than thirty-seven persons available and eligible. Due to the restriction of thirty-seven posts, as pointed out above, only thirty-seven names were finally recommended to the Hon’ble Governor/State Government, out of which only 36 candidates found favour.

8. It was also submitted that the one candidate who was not approved by the Hon’ble Governor/State Gover