Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s).39043905 OF 2020
(Arising out of SLP(C) No(s). 2055320554 of 2013)
PANKJESHWAR SHARMA AND OTHERS ...APPELLANT(S)
VERSUS
STATE OF JAMMU & KASHMIR AND
OTHERS ...RESPONDENT(S)
WITH
CIVIL APPEAL NO(s).3907 OF 2020
(Arising out of SLP(C) No(s).34564 of 2014)
CIVIL APPEAL NO(s).39083909 OF 2020
(Arising out of SLP(C) No(s).16211622 of 2014)
CIVIL APPEAL NO(s).3910 OF 2020
(Arising out of SLP(C) No(s).27135 of 2013)
CIVIL APPEAL NO(s).3918 OF 2020
(Arising out of SLP(C) No(s).29803 of 2013)
CIVIL APPEAL NO(s).3920 OF 2020
(Arising out of SLP(C) No(s).29765 of 2013)
CIVIL APPEAL NO(s).39213922 OF 2020
(Arising out of SLP(C) No(s). 2798327984 of 2013)
CIVIL APPEAL NO(s).39303931 OF 2020
(Arising out of SLP(C) No(s).2590625907 of 2013)
CIVIL APPEAL NO(s).3919 OF 2020
(Arising out of SLP(C) No(s).25929 of 2013)
1
CIVIL APPEAL NO(s).39233929 OF 2020
(Arising out of SLP(C) No(s).2164521651 of 2013)
CIVIL APPEAL NO(s).39113917 OF 2020
(Arising out of SLP(C) No(s).2119221198 of 2013)
CIVIL APPEAL NO(s).39323933 OF 2020
(Arising out of SLP(C) No(s).2270822709 of 2013)
CIVIL APPEAL NO(s).3934 OF 2020
(Arising out of SLP(C) No(s).23227 of 2013)
J U D G M E N T
Rastogi, J.
These present batch of appeals have been instituted by the
unsuccessful appellants being aggrieved with the impugned
th
judgment dated 20 March, 2013 passed by the Division Bench of
the High Court of Jammu & Kashmir in LPA No.02/2011 and
LPA No.04/2011 and placing reliance on its judgment dated
th
12 March, 2013, cognate LPAs at a later stage were disposed of.
2. The case has a chequered history and in order to appreciate
the grievance of the appellants, it will be necessary to glance
through the relevant background facts. It is the third round of
litigation arising out of the selection process held pursuant to an
th
advertisement (No.Pers/Rectt/SI/EX99/A405) dated 25
2
nd
February, 1999 issued by the 2 respondentDirector General of
Police, J&K State inviting applications for the post of
SubInspector of Police (Executive), the post which is included in
the Schedule appended to the J&K Police (Executive) Rules to be
filled by open selection in terms of the procedure prescribed
under the Rules.
3. Admittedly, it is neither provided in the scheme of Rules nor
mentioned in the advertisement notice that the merit list of the
candidates based on the written and vivavoce test is to be
separately prepared for the Provinces of Jammu & Kashmir. It
reveals from the record that the last selected candidate from
Jammu Province secured 56 marks whereas, in Kashmir
nd
Province, the last selected candidate secured 50 marks. The 2
respondent under its own assumption published the select list of
total candidates of 252 Provincewise i.e. separately for Jammu &
rd
Srinagar on 23 April, 2000.
First round of litigation
4. The unsuccessful candidates challenged the selection
1
process by filing SWP No.567/2000 on manifold grounds inter
alia that the select list which was prepared Provincewise is not
1 Surinder Kumar Sharma vs. State of Jammu and Kashmir and Ors.
3
legally permissible and it ought to have been prepared as one
select list for the whole of the State of Jammu & Kashmir as the
post of SubInspector is a State cadre post and therefore, the
selection ought to have been made by treating the State as a unit
and not on the basis of residence of the candidates of Jammu &
Kashmir Provinces.
5. The writ petitioners succeeded in persuading and the
th
learned Single Judge by judgment and order dated 16 October,
2000 allowed the writ petitions with the direction that the select
list be prepared afresh of the State (J&K) and those who secured
50 or more marks in the revised select list be considered for
appointment without disturbing the appointments already made.
Against the order of the learned Single Judge, Staterespondent
filed LPAs before the Division Bench of the High Court and the
th
Division Bench by its judgment dated 19 August, 2002 modified
the order of the learned Single Judge with the direction to redraw
the merit list Statewise and on redrawing the merit list, if the
candidates who have already been selected/appointed and come
within the merit zone, they should not be disturbed but their
seniority would be determined in accordance with their
4
placement in the order of merit which would be finally prepared.
th
The above order of the Division Bench dated 19 August, 2002
was the subject matter of challenge in SLP(C) No.24798/2002
th
which came to be dismissed by this Court under order dated 10
February, 2004.
6. In compliance of the order of the Division Bench dated
th
19 August, 2002, a fresh redrawn Statewise merit list dated
th nd
19 May, 2004 came to be notified by the 2 respondent
appointing 259 candidates and at the same time, cancelled the
appointment of 47 candidates who were already in service since
their names did not find place in the revised merit list at the
State level.
Second round of litigation
7. That the ousted candidates approached the learned Single
Judge of the High Court by filing a writ petition challenging the
th
redrawn Statewise merit list dated 19 May, 2004 and the
th
Learned Single Judge by its order dated 24 May, 2004 issued
interim directions to allow such ousted candidates to continue in
service until the next date of hearing. Meanwhile, contempt
proceedings being COA(LPASW) No.22/2004 were also initiated
5
nd
against the 2 respondent for noncompliance of the order of the
th
Division Bench dated 19 August, 2002 and against the
continuation of such 47 ousted candidates in the service. The
rd
Division Bench of the High Court by its order dated 03
December, 2004 disposed of the contempt petition with a
direction that “ those who did not come within the merit zone in the
redrawn merit list cannot be allowed to continue and if any such
person is being so continued, he will be removed as already
directed by the order dated 19.05.2004.”
8. That came to be challenged in a SLP at the instance of the
44 ousted candidates who have been directed to be removed from
rd
service by the Division Bench by order dated 03 December,
2004. Various interlocutory applications by a total of 22
candidates were filed for their impleadment before this Court in
the pending Special Leave Petition which was later converted into
th
Civil Appeal No.4758/2006. This Court by its order dated 10
May, 2007 without examining the inter se dispute of the litigant
parties and taking note of the statement made by the learned
Advocate General of the State on its face value that all the 47
ousted candidates who are likely to loose their job as a result of
6
rd
the order of the High Court dated 03 December, 2004 passed in
contempt petition and such of 22 impleaded candidates on filing
of their interlocutory applications before this Court, will be
accommodated on the post of SubInspector, disposed of the
appeal with the following order:
“Mr. Altaf H. Nayak, learned Advocate General submits that all
the 47 petitioners who are likely to go out of job as a result of
the impugned order passed by the High Court and 22
respondents herein will be accommodated on the post of Sub
Inspector. He further submits that all the 47 petitioners who
were selected on account of impugned selection and are
presently working will be allowed to continue on their posts. In
view of this statement made by learned Advocate General, we do
not think we need to determine any legal question involved in
this matter. Consequently the Appeal stands disposed of in view
of the statement made by learned Advocate General.”
9. That apart from the 47 ousted candidates who were earlier
in the order of merit but could not find place because of the merit
list being redrawn in purported compliance of the directions
th
made by the High Court in its order dated 19 August, 2002, the
nd
2 respondent appointed 22 candidates vide its orders dated
rd th
23 February, 2008 and 11 March, 2008. It reveals from the
record that these 22 candidates were much lower in the redrawn
merit list and their placement in the order of merit was not
brought to the notice of this Court and that gave rise to a further
litigation.
7
Third round of litigation
10. Some of the left out candidates who were higher in the order
of merit qua these 22 candidates who were appointed by the
nd rd
2 respondent vide orders dated 23 February, 2008 and
th
11 March, 2008 under the socalled alleged compliance of the
th
order of this Court dated 10 May, 2007, approached the High
Court by filing of a writ petition being SWP No.1084/2008 and
SWP No.1145/2008 on the premise that the writ petitioners were
denied their legitimate right of fair consideration being higher in
the redrawn merit list visaviz, the 22 persons who were
indisputedly less meritorious still appointed and action of the
State is in violation of the statutory rules and is also a denial of
equal opportunity in seeking appointment on the envil of Article
14 of the Constitution.
11. It reveals from the record that such of the 22 candidates of
whom reference has been made in the order of this Court dated
th
10 May, 2007, majority of them were lower in the order of merit
qua the candidates/writ petitioners who were contesting their
right claiming equal and fair opportunity for seeking appointment
as per their placement in the order of redrawn merit. The learned
8
th
Single Judge by order dated 26 August, 2010 allowed the writ
petitions with the direction that any appointment made on the
basis of concession made by the learned Advocate General of the
State, would not deprive the legitimate claim of the writ
petitioners being higher in the order of merit from seeking
appointment to the post of SubInspector qua these 22
candidates and they indeed have a right of fair consideration in
seeking appointment based on their order of merit that gave rise
to filing of LPA No.02/2011 and cognate appeals before the
Division Bench of the High Court at the instance of the persons
aggrieved.
12. These batch of appeals were disposed of by the Division
th
Bench by its judgment dated 12 March, 2013 setting aside the
th
judgment of the learned Single Judge dated 26 August, 2010.
Relying upon the said judgment of the Division Bench dated
th
12 March, 2013, other cognate appeals were at a later stage
decided by the Division Bench and that became the subject
matter of challenge in appeals before us.
13. Mr. Paramjit Singh Patwalia, learned Senior counsel for the
th
appellants submits that the order of this Court dated 10 May,
9
2007 merely recorded the concession made by the learned
Advocate General of the State and it has been completely
misconstrued by the Division Bench of the High Court in holding
that as the order has been passed by this Court in exercise of its
power under Article 142 of the Constitution to do complete
justice, it is not open to question in the collateral proceedings.
14. Learned Senior counsel further submits that by appointing
such 22 persons as SubInspectors who had been nowhere in the
redrawn merit list prepared pursuant to an advertisement dated
th
25 February, 1999, at least right of the appellants of fair
consideration in seeking appointment who admittedly placed
higher in the order of redrawn merit list could not have been
th
divested in taking defence to the order of this Court dated 10
May, 2007 and such appointments made by the respondents of
22 persons as SubInspectors is not only in violation of the
statutory recruitment rules but also in violation of Article 14 of
the Constitution are unsustainable and dehors the rules.
15. Learned Senior counsel further submits that there is no
delay or latches which could be attributed to the present
appellants as few of them earlier approached the Court at the
10
initial stage when the selection process came to be questioned in
the year 2000 but they were primarily aggrieved when 22
candidates were offered appointment by the Staterespondent
rd th
under its orders dated 23 February, 2008 and 11 March, 2008
as they are nowhere in the order of redrawn merit list prepared
by the Staterespondent in compliance of the judgment of the
th
Division Bench of the High Court dated 19 August, 2002 in the
first round of litigation and in the given circumstances, they
cannot be said to be the fence sitters as observed by the Division
Bench in the impugned judgment.
16. Learned Senior counsel for the appellants has made a
further feeble attempt to justify that there are 26 appellants who
are before this Court assailing the impugned judgment of the
Division Bench of the High Court in the instant proceedings and
10 of the appellants are presently serving as a Head
Constables/Constables in Jammu & Kashmir Police and 9 are
serving in various Government departments and only 7 of the
appellants are such who are employed in private sector and what
being contended by the appellants if not acceded to by this Court
and permitting the persons who are lower in merit to continue as
11
SubInspectors, will be a heartburn and mental agony to them
and at least the ongoing injustice with them ought not to be
permitted to continue. He furthermore submits that there will be
no financial implications to the respondents as the appellants are
not claiming any back wages and there still exists to their
information more than 100 vacant posts of SubInspectors in
Jammu & Kashmir and the present appellants can also be
accommodated without disturbing these 22 candidates who
were appointed as SubInspectors pursuant to an advertisement
th
dated 25 February, 1999.
17. The appellant in SLP(C) No.34564 of 2014 was selected in a
subsequent selection for the post of SubInspector pursuant to
an advertisement issued in February, 2001 and was appointed
st
vide order dated 01 February, 2002 and on acceptance of what
being prayed by him, he will be entitled for seniority and
rd
consequential benefits from 23 April, 2000 and according to
him, that may not disturb even the appointments which are
made by the respondent of 47 plus 22 persons in respect of
whom grievance has been raised by the appellants in the instant
proceedings.
12
18. Per contra, while supporting the impugned judgment of the
Division Bench of the High Court, learned counsel for the
respondents submits that 47 ousted candidates whose services
were terminated after the redrawn merit list was published, were
initially allowed to continue on the strength of the interim order
passed by the learned Single Judge of the High Court and during
pendency of the litigation, such 47 ousted candidates have been
continuously working in the department right from their
appointment in the year 2000 and the department had incurred
huge expenses on their training courses. Besides this, the said
47 candidates have taken part in antiinsurgency operations in
the State and as such there were apprehension of threat to their
life. The State accordingly wanted to retain them and when the
matter was listed before this Court in the earlier round of
th
litigation on 10 May, 2007, the difficulties were pointed out to
this Court and it was conceded that in case the appointment of
such 47 candidates is saved, there were 22 vacancies available
and such 22 applicants were not only became a party but have
been litigating since the year 2000 and in the given
circumstances, it was considered appropriate that in order to
settle the issue one for all and to sum up the ongoing litigation
13
pending for the last eight years and subsequent selections were
also held for the post of SubInspector pursuant to an
advertisement notified in February, 2001, 22 such candidates
may be accommodated along with 47 ousted candidates who
were allowed to continue since the year 2000. In the given
situation, the statement was made by the learned Advocate
General of the State under the bonafide impression that it will at
least give quietus to the ongoing battle between the selected
candidates inter se pending since the year 1999.
19. Learned counsel further submits that it is not the case of
the appellants that they are the senior most 22 candidates in the
order of redrawn merit list, who have been left over from
consideration for appointment and also informed that there are
good number of candidates who are higher in the order of merit
qua the present appellants in the redrawn select list which was
prepared pursuant to a direction of the High Court in the first
round of litigation and the candidates with whom the present
appellants had a lis have been appointed in the year 2008 and
have served for more than 12 years and further submits that
what has been contended by the appellants if accepted by this
14
Court the appointments are to be made strictly in the order of
redrawn merit list, against 22 vacancies which are in dispute,
majority of appellants may not find their name in queue in
seeking appointment as they are not the senior most 22
candidates in the order of redrawn merit deprived from
consideration for appointment and submits that in the peculiar
facts and circumstances, what has been observed by the High
Court in the impugned judgment needs no further interference.
20. We have heard the counsel for the parties and with their
assistance perused the material on record.
21. Unfortunately, the advertisement to the post of Sub
nd
Inspector which was published by the 2 respondent way back
th
on 25 February, 1999 with the condition that one has not
st
crossed the age of 28 years as on 01 January, 1999, after 21
years down the line, is still has not been finalised and we are
pondering over the inter se dispute of the candidates who had
participated in the selection process must have crossed the age of
4347 years under the belief that they may still be considered for
appointment.
15
22. In the first round of litigation, when the controversy initially
arose as to whether the merit list Provincewise in Jammu &
Kashmir could have been prepared by the respondent and how
far it can held to be in conformity with the scheme of rules, while
examining the controversy, the learned Single Judge categorically
observed that all those candidates who have secured less than 50
marks have no right to contend that they have been arbitrarily
ignored on the basis of Provincewise selection and the claim of
those candidates who have obtained 50 or more than 50 marks
was left open to be considered by the learned Single Judge in the
proceedings initially in the year 2000. The further dispute which
was revisited/reviewed/reexamined by the Court at the later
stage in the second round of litigation primarily confined to the
candidates who obtained 50 or more than 50 marks under the
zone of consideration for being considered for appointment on the
post of SubInspector pursuant to an advertisement dated
th
25 February, 1999.
23. The indistputed facts which manifest from the record as
noticed above is that the advertisement came to be notified by the
nd th
2 respondent dated 25 February, 1999 holding selections for
16
the post of SubInspector and the present batch of appeals are
preferred by the appellants/participants being higher in the order
nd
of merit qua those 22 candidates who were appointed by the 2
rd th
respondent vide orders 23 February, 2008 and 11 March, 2008
on the basis of the concession made by the learned Advocate
th
General of the State recorded under order dated 10 May, 2007
of this Court, with the claim that they have been deprived from
fair consideration in seeking appointment.
24. It is a settled principle of service jurisprudence and has
been consistently followed by this Court that the rules of
recruitment to various services under the State or to a class of
posts under the State, the State is bound to follow the same and
to have the selection of the candidates to be made as per the
scheme of recruitment rules and appointments shall be made
accordingly. At the same time, all the efforts shall be made for
strict adherence to the procedure prescribed under the
recruitment rules. On the contrary, if any appointments are
made bypassing the recruitment procedure known to law, will
resulted in violation of Article 14 and 16 of the Constitution.
This Court in State of U.P. and Others vs. Rajkumar Sharma and
17
2
Others and later in Arup Das and Others vs. State of Assam and
3
Others considered the question of filling up of vacancies over and
above the number of vacancies advertised and held that the
filling up of vacancies over and above the number of vacancies
advertised would be violative of fundamental rights guaranteed
under Article 14 and 16 of the Constitution and the selectees
could not claim appointments as a matter of right. This Court
further held that 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 the Constitution
does not envisage negative equality and if the State or its
authority had committed a mistake at any given stage, it cannot
be forced to perpetuate the said mistake under the writ
jurisdiction of the High Court under Article 226 of the
Constitution. In a situation where the posts in excess of those
advertised had been filled up in extraordinary circumstances,
instead of invalidating the excess appointments, the relief could
be moulded in such a manner so as to strike a just balance
keeping the interest of the State and the interest of the person
2 State of U.P. and Others vs. Rajkumar Sharma and Others (2006) 3 SCC 330
3 Arup Das and Others vs. State of Assam and Others (2012) 5 SCC 559
18
seeking public employment depends upon the facts of each case
for which no set standard can be laid down.
25. Initially when the selections were challenged in the year
2000, it was in reference to the policy decision taken by the State
Government in preparing two separate merit lists of Jammu &
Kashmir Provinces arising from a common advertisement dated
th
25 February, 1999 and it was indeed in clear contravention to
the scheme of rules and the learned Single Judge of the High
Court categorically observed that as the key of marks for Jammu
& Kashmir Provinces are different and 50 marks being the lower
among the two Provinces secured by the last candidate, the
limited controversy examined by the learned Single Judge of the
High Court was in the four corners confining it to the
persons/candidates who obtained 50 or more marks in the
selection process and still deprived from consideration for
appointment.
26. To make this fact further clear, it was observed by the
learned Single Judge in Surinder Kumar Sharma vs. State of
4 th
Jammu and Kashmir and Others decided on 16 October, 2000
4 SWP No.576/2000 titled Surinder Kumar Sharma vs. State of Jammu and Kashmir
19
i.e. the first round of litigation. The controversy center around is
reproduced hereunder:
“ Therefore, all those candidates who have received less than 50 marks have no
right to contend that they have been wrongly ignored on the basis of Province
wise selection. The claims of those candidates who have obtained 50 or more
than 50 marks would be considered in the light of this judgment.”
27. At the outset, those who secured less than 50 marks, their
claim of consideration for appointment was eliminated by the
learned Single Judge even in the first instance when the
controversy initially raised by the candidates affected at a very
nd
threshold after the select list was notified by the 2 respondent
in the year 2000 and if any person was aggrieved on account of
his nonselection, secured 50 or more than 50 marks being
deprived from fair consideration in seeking appointment, cause of
action was accrued to him at such given point of time in the first
place, when examined and decided by the learned Single Judge of
th
the High Court by its judgment dated 16 October, 2000 and
directed the State authorities to consider all such candidates for
appointment who have secured 50 or more than 50 marks if left
out from being considered for appointment as their right of fair
consideration is being seriously jeopardized which was although
modified by the Division Bench at the later stage by its judgment
20
th
dated 19 August, 2002 as a consequence, 47 candidates were
going to be affected in the first round of litigation. The later
controversy remained confined to examine the fate of those 47
ousted candidates who could be over and above the candidates
who are to be appointed in the redrawn merit list of the State of
Jammu & Kashmir, to be adjusted despite being appointed and
working for sufficient time deserve indulgence of the Court.
28. That further litigation was raised at the behest of 47 ousted
candidates, it has come on record that they were allowed to
continue in the first instance under the interim order as they
were already working for quite some time and finally their
controversy reached to this Court in the second round of
litigation and since much water has flown in the Ganges by that
time and the alleged 47 ousted candidates were working right
from the year 2000 and the department had incurred huge
expenses on their training courses and they had taken part in
antiinsurgency operations in the State and the State was
concerned about them as there were apprehension of threat to
their life, under these circumstances, the State has shown its
intention to retain them in service.
21
29. It reveals from the record that the Government intended to
give quietus to the ongoing litigation and in the second round of
litigation in this Court as there were 22 interlocutory applications
filed by the applicants in the pending proceedings, who were
claiming their appointment, under the bonafide belief that certain
vacancies are available with the State and if such 22 candidates
who have filed their applications for impleadment in the pending
proceedings in this Court if taken care of, atleast there will be a
quietus to the ongoing litigation and that appears to be the
reason to which the learned Advocate General of the State made
a statement before this Court that not only 47 ousted candidates
who have been appointed and served for the last 7 years, such 22
candidates may also be accommodated on the post of Sub
Inspector and after recording the statement made by the learned
Advocate General of the State, there left no legal issue to be
examined in the pending civil appeal and on the basis of the
alleged concession made by the learned Advocate General, this
th
Court by order dated 10 May, 2007 disposed of the appeal.
30. It is true that ordinarily in the open selection,
appointments are to be made strictly in the order of merit in
22
terms of the procedure prescribed under the relevant statutory
recruitment rules or in absence under the guidelines if
prescribed, still if appointments are made for exceptional reasons
deviating from the merit list which ordinarily is not permissible
but in unforeseen exigencies, if the State with a bonafide
intention to give quietus to the ongoing litigation pending for the
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 the 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.
31. Mr. P.S. Patwalia, learned Senior counsel for the appellants
has pointed out certain instances and it is also reflected from the
written submission that such of the candidates who have secured
50 or more marks have also been deprived from consideration in
seeking appointment but the statement of fact does not hold
factually correct for the reason that in the first round of litigation,
the learned Single Judge categorically observed that the dispute
remain confined to such of the candidates who have secured 50
or more than 50 marks in the selection process held by the
23
th
respondent pursuant to an advertisement dated 25 February,
1999. In the given circumstances, if the candidates who have
secured 50 or more marks and still left from consideration for
appointment, their right accrued to make their claim when the
judgment was initially pronounced by the learned Single Judge
th
dated 16 October, 2000 although modified by the Division
Bench in the first round of litigation by judgment and order dated
th
19 August, 2002 but none of the socalled
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 the record that there were only
47 ousted candidates who secured 50 or more than 50 marks
and if the 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.
32. The submission further made by learned Senior counsel for
the appellants that the finding recorded by the Division Bench of
the High Court that the appointment of these 22 candidates
against whom there was a grievance raised by the appellants, are
24
being appointed by this Court in exercise of its power under
Article 142 of the Constitution for doing complete justice, is not
th
reflected from the order of this Court dated 10 May, 2007. We
find substance in what being urged and hold that the order of
th
this Court dated 10 May, 2007 was not under Article 142 of the
Constitution and it was clearly reflected from the order itself that
it was passed on the basis of the concession made by the learned
Advocate General of the State and recorded by this Court in its
th
order dated 10 May, 2007.
33. Further submission made by the learned Senior counsel for
the appellants that they are higher in the order of merit qua
nd
these 22 candidates who were appointed by the 2 respondent
th
taking shelter of the order of this Court dated 10 May, 2007 is
not legally sustainable and violative of Article 14 of the
Constitution. The submission in the first blush appears to be
attractive but it lacks foundation for the reason that the
appointments in the ordinary course are to be made strictly in
the order of merit in terms of the select list prepared by the
competent authority as contemplated under the relevant
statutory recruitment rules and any appointment in
25
contravention indeed is in violation of Article 14 of the
Constitution with a proviso that if any appointments are made
deviating from the merit list drawn by the competent authority in
exceptional cases as being reflected in the instant case where
there was ongoing litigation and subsequent selection was also
held to give quietus to the ongoing litigation, still on principle
cannot be approved by this Court, are irregular appointments
and cannot be held to be illegal as claimed by the appellants.
34. It is also not the case of the appellants that they are
amongst 22 candidates in the order of merit published by the
nd
2 respondent awaiting appointment in reference to an
th
advertisement dated 25 February, 1999 and if their submission
is accepted at the face value as prayed for, atleast the present
appellants may not get a march over 22 candidates waiting in the
order of merit who in the ordinary course could claim
appointment to the post of SubInspector and the action of the
State in extending its concession which has been recorded under
th
the order of this Court dated 10 May, 2007 is indeed the
mistake being committed, still it cannot be forced by the person
as alleged to be aggrieved to perpetuate the said mistake.
26
35. This Court in Union of India and Another vs. Kartick
5
Chandra Mondal and Others observed that if something is being
done or acted upon erroneously that cannot become the
foundation for perpetuating further illegality. If an appointment is
made illegally or irregularly, the same cannot be made the basis
of further appointment and erroneous decision cannot be
permitted to perpetuate further error to the detriment of the
general welfare of the public or a considerable section. This has
been the consistent approach of this Court.
6
36. In Arup Das and Others vs. State of Assam and Others , this
Court observed that “ even if in some cases appointments had
been made by mistake or wrongly, that did not confer any right of
appointment to another person, as Article 14 of the Constitution
does not envisage negative equality and if the State had
committed a mistake, it cannot be forced to perpetuate the said
mistake.”
37. It is indisputed that by the time we are called upon to
decide the matter, the socalled 22 candidates against whom
there is a lis raised by the present appellants, had completed
5 Union of India and Another vs. Kartick Chandra Mondal and Others (2010) 2 SCC 422
6 Arup Das and Others vs. State of Assam and Others (2012) 5 SCC 559
27
almost more than 12 years of service and thus having rich
experience in the field and the subsequent selection has also
been held of the post of SubInspector pursuant to an
advertisement issued in February, 2001 and the concession
which was recorded of the learned Advocate General of the State
th
by this Court in its order dated 10 May, 2007 at a given point of
time also appears to be bonafide, to give quietus to the ongoing
litigation pending in Courts for sufficient long time and no other
litigation at that given point of time was pending in the court of
law, in the given situation, this Court is not inclined to disturb
the appointment of those 22 candidates which has been
questioned by the appellants/candidates in the present batch of
appeals.
38. I n Gujarat State Dy. Executive Engineers' Assn. vs. State of
7
Gujarat , this Court recorded a finding that appointments given
under the “wait list” were not in accordance with law. It, however,
refused to set aside such appointments in view of length of
service (five years and more).
7 Gujarat State Dy. Executive Engineers' Assn. vs . State of Gujarat (1994) Supp 2 SCC 591
28
8
39. In Buddhi Nath Chaudhary vs. Abahi Kumar , this Court has
observed that appointments were held to be improper. But this
Court did not disturb the appointments on the ground that the
incumbents had worked for several years and had gained good
experience. “We have extended equitable considerations to such
selected candidates who have worked on the post for a long
period”.
40. We are also of the view that the appointments of 22
nd
candidates made by the 2 respondent vide orders dated
rd th
23 February, 2008 and 11 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
the appellants if accepted by this Court that will perpetuate the
illegality which has been committed by the Staterespondent and
negative equality cannot be claimed to perpetuate further
illegality under Article 226 of the Constitution of India.
41. To conclude, we do not approve the reasoning of the High
Court that appointments of these 22 candidates have been made
under Article 142 of the Constitution to do complete justice but
after the matter has been dilated by us, we are not inclined to
8 Buddhi Nath Chaudhary vs . Abahi Kumar (2001) 3 SCC 328
29
disturb the appointment of these 22 candidates against whom a
grievance has been raised by the appellants in the present batch
of appeals.
42. Consequently, we find no substance in the present appeals
and are accordingly dismissed. No costs.
43. Pending application(s), if any, stand disposed of.
…………….………………………….J.
(L. NAGESWARA RAO)
……………..…………………………J.
(HEMANT GUPTA)
……………………………………….J.
(AJAY RASTOGI)
NEW DELHI
DECEMBER 03, 2020
30