Full Judgment Text
2023INSC842
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10861 OF 2013
SUDESH KUMAR GOYAL …APPELLANT
VERSUS
THE STATE OF HARYANA & ORS. …RESPONDENTS
J U D G M E N T
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.
Signature Not Verified
Digitally signed by
Jayant Kumar Arora
Date: 2023.09.21
16:18:26 IST
Reason:
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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
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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
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and having secured the 14 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
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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
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against the 14 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
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defeated by adopting an arbitrary approach. The respondents
th
have acted purely in an arbitrary manner in keeping the 14
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 their selection they do not acquire any
right to the post. Unless the relevant
recruitment rules so indicate, the State is
under no legal duty to fill up all or any of the
vacancies. However, it does not mean that the
State has the licence of acting in an arbitrary
manner. The decision not to fill up the
vacancies has to be taken bona fide for
appropriate reasons. And if the vacancies or
any of them are filled up, the State is bound to
respect the comparative merit of the
candidates, as reflected at the recruitment test,
and no discrimination can be permitted. This
correct position has been consistently followed
by this Court, and we do not find any
discordant note in the decisions in State of
Haryana v. Subhash Chander Marwaha,
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Neelima Shangla v. State of Haryana, or
Jatendra Kumar v. State of Punjab”.
10. A simple reading of the above paragraph would reveal that
though it is up to the employer or the State to fill up all the
notified vacancies or to keep all of them or any of them vacant
but it does not mean that the employer/State can act arbitrarily
in not filling up those posts and the decision not to fill up the
vacancies has to be a bona fide one supported by appropriate
reasons.
11. The relevant rules of 2007, do not oblige the State to fill up all
the vacancies advertised.
12. The respondents, in order to justify the non-appointment of the
th
appellant on the 14 vacancy, submitted that the
notification/advertisement dated 18.05.2007 advertised 22
posts for direct recruitment in the higher judicial service, out of
which 14 were meant to be filled up by general category
candidates but only 13 selected general category candidates
were appointed. The reason being that 5 general category
candidates who were working as Additional District & Sessions
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Judges (Fast Track Court) in Haryana pursuant to the
notification dated 26.05.2003 applied for their absorption and
filed writ petition No.8587 of 2007 seeking their regularisation
on substantive posts which petition came to be disposed of vide
order dated 30.05.2007 directing them to make representation
on administrative side to the High Court in terms of Brij Mohan
Lal (1) v. Union of India (2002) 2 SCC 1. Acting on the aforesaid
representation, the selection committee of the High Court
recommended for absorption of the above 5 Fast Track Court
judges on fresh posts. Accepting the recommendations of the
Committee, out of the 14 general category posts, 5 officers of the
Fast Track Court were adjusted, thus leaving only 9 to be filled
up as per selection. In the meantime, 20 fresh vacancies of the
cadre became available, out of which, 5 were to be filled up by
direct recruitment from the Bar, (4 general category and 1
scheduled caste category). Therefore, a conscious decision was
taken to add these 4 general category vacancies to the already
advertised vacancies, thus making the number of general
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category vacancies to be 13 [14-5=9+4=13]. Thus, only 13
candidates were appointed. The respondents have not acted
arbitrarily in making such appointments.
13.
Under the Fast Track Court scheme envisaged by the Central
Government, State Governments were required to establish Fast
Track Courts for disposal of long pending cases. In Brij Mohan
Lal (1) (supra), certain directions were issued for the proper
implementation of the above scheme. Some of the said
directions which are relevant for our purpose provide that for
the appointment of judges in the Fast Track Courts, first
preference be given to the eligible judicial officers who may be
promoted on ad-hoc basis after following the procedure in force
for the promotion of the judicial officers. Second preference was
to be accorded to the retired judges who have good service
records with no adverse comment in their ACRs. The third
preference was to be given to the members of the Bar for direct
appointment as Fast Track Court judges and that they may be
continued against the regular post if the Fast Track Court
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ceases to function. They may be absorbed in regular vacancies
in the subsequent recruitment if their performance in Fast
Track Court is found satisfactory and in making such
absorption, the High Court shall adopt such methods of
selection as are normally followed for selection of
superior/higher judicial service officers amongst the members
of the Bar by direct recruitment.
14. It is worth mentioning that Brij Mohan Lal (2) v. Union of India
(2012) 6 SCC 502, vide paragraph 207, without interfering with
the policy decision of the government, in exercise of its power
under Article 142 of the Constitution of India issued certain
more directions in relation to Fast Track Court Scheme. One of
the directions was for creation of additional 10% posts for the
absorption of Fast Track Court judges. Another direction was
that all those who have been appointed by way of direct
recruitment from the Bar under the Fast Track Court Scheme
would be entitled to be appointed to the regular cadre of the
higher judicial services of the respective States in the manner
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laid down therein. In addition to the above, it directed that
candidates who were promoted as Fast Track Court judges from
the post of Civil Judge (Sr. Division) having requisite experience
in service shall be entitled to be absorbed and remain promoted
to the higher judicial service of the State against the 25% quota
after giving due weightage to the fact that they have already put
in a number of years’ service in the higher judicial service.
15. In view of the aforesaid facts and circumstances, it can be
noticed that initially 14 general category vacancies within the
direct quota were advertised, out of which, 5 were filled up by
absorption of the Fast Track Court judges in terms of the
directions contained in the Brij Mohan Lal (1) & (2) (supra).
Adding 4 general category posts which in the meantime fell
vacant, all 13 vacancies were duly filled up from the selected
candidates. The appellant could not be appointed as he was at
serial No.14 of the merit and the posts available were only 13.
16. The absorption of Fast Track Court judges was done after
following the prescribed procedure for the selection. The
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appointment/absorption of the aforesaid Fast Track Court
judges was in accordance with the directions contained in Brij
Mohan Lal (1) & (2) (supra) and has been affirmed by the High
Court under the impugned order which part of the judgment is
not being assailed specifically.
17. In view of the reasoning given by the respondents for appointing
only 13 selected candidates leaving the appellant who was at Sl.
No.14, we are of the opinion that the respondents have justified
the appointments and have not acted in an arbitrary manner.
The respondents have acted fairly and logically without any
malice against the appellant. Thus, on the touchstone of the
decision cited on behalf of the appellant himself, we do not find
any arbitrariness on the part of the respondents. Therefore,
the decision of the Division Bench of the High Court is not liable
to be disturbed on the above count, more particularly when the
appellant has not acquired any indefeasible right to be
appointed because he qualified in the selection process.
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18. This takes us to the second argument that the appellant could
have been easily adjusted against the vacancy caused due to
resignation of one of the selected candidates. The argument per
se is bereft of merit inasmuch as all the vacancies notified stood
filled up initially. However, if one of the 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 the fresh selection process. The
Division Bench has rightly dealt with the above contention in
the light of the precedent of the various decisions of this Court
and we do not feel that any error has been committed in this
context.
19. This apart, as may be noticed that the procedure for selection
of superior/higher judicial service officers by direct recruitment
from the Bar was initiated by the Punjab and Haryana High
Court way back in the year 2007 and now we are in the year
2023 meaning thereby that 16 years have passed by in between.
It would be a travesty of justice to keep open the selection
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process for such a long time and to direct at this stage to make
any appointment on the basis of a selection process initiated so
far back. For this additional reason also, we do not deem it
proper to interfere with the impugned judgment and order of the
High Court.
20. To conclude, we do not find any merit in this appeal and as such
dismiss the same with no order as to costs.
……………………….. J.
(HRISHIKESH ROY)
……………………….. J.
(PANKAJ MITHAL)
NEW DELHI;
SEPTEMBER 21, 2023.
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