Paragraph numbers below are the court’s original numbering, recovered from the source text.
26. In Rakhi Ray & Ors. v. High Court of Delhi & Ors. (2010) 2 SCC 637, the practice of making appointments on future vacancies from the waiting list was held to be wrong. “In case the vacancies notifi ed stand fi lled up, the process of selection comes to an end. Waiting list, etc. cannot be used as a reservoir, to fi ll up the vacancy which comes into existence after the issuance of notifi cation/advertisement. The unexhausted select list/waiting list becomes meaningless and cannot be pressed in service any more”3.
27. We are referring to the position of law on “waiting list” because one of the arguments of the appellants (in connected appeals) before us is that, since in any case there was a direction in Malik Mazhar-2 for having a “waiting list”, therefore the names of those two appellants ought to have been considered as names from the “waiting list”. In our opinion, this cannot be Para 12 done, as the question would still remain whether selection/appointment can be made on vacancies, which were never advertised, apart from the fact that this would in any case go against the very concept of a ‘waiting list’ that we have explained above. The vacancies on which the appointments have been made could not be anticipated at the time of advertisement (February 1st, 2013), and hence these vacancies were not advertised. These two vacancies were in fact, created on 18.03.2013 i.e., after the notifi cation of vacancies on 01.02.2013. These were the “future vacancies”, which earlier could fall under the “C” category given in Malik Mazhar but were deleted in Malik Mazhar-2. These vacancies technically could only be fi lled next year and should have been notifi ed by January 15th, 2014 as per the directions in Malik Mazhar. The argument of the appellants (in connected appeals), particularly against the present appellants, that had there been a waiting list they could have been considered for appointment in that category for these vacancies, in our opinion, is a complete misunderstanding of the concept of a “waiting list”.
28. To sum up the position of law as it stands, once clear and anticipated vacancies have been advertised, appointments can only be made on these vacancies. Vacancies which could not be anticipated before the date of advertisement, or the vacancies which did not exist at the time of advertisement, are the vacancies for the future i.e., next selection process. Malik Mazhar mandates yearly selection/appointment on the post of Civil Judge (Junior Division). There is a time line fi xed, and ‘vacancies’ have to be declared on January 15th of each year. The process has to be completed by October of the same year. Once this is followed, as it ought to be, the object sought to be achieved (under the guidelines given in Malik Mazhar), of timely fi lling of judicial vacancies is achieved.
29. In the case at hand, it is clear that the appointment of the appellants (Vivek Kaisth and Akansha Dogra) was made on posts which were not advertised and in fact did not even exist at the time when the advertisement was made. The anomaly made in the selection/appointment of these two candidates is quite apparent.
30. The appointment of the appellants was challenged before the Himachal Pradesh High Court by respondent No.4 herein. Respondent No.4 (Shri Kuldeep Sharma), who was also one of the candidates, in the merit VIVEK KAISTH & ANR v. THE STATE OF HIMACHAL PRADESH & ORS [SUDHANSHU DHULIA, J.] list of candidates along with the appellants, obviously did not question the existence of these two vacancies but only that these vacancies ought to have been advertised along with the initial 8 vacancies. Initially, only three posts for general category candidates were advertised, against which nine candidates were called for the interview, as per the Rules on 1:3 ratio and he being low in the order of merit was not called for the interview. His argument was that, if fi ve posts were to be advertised as it ought to have been, then fi fteen candidates would have been called for the interview which would have included him and he therefore had a fair chance of making it to the select list. According to him, the belated decision of the inclusion of two seats was not fair. Respondent no. 4, however, in our opinion had no case for his appointment since these two vacancies could not have been advertised earlier, as these vacancies did not exist at that time. Similarly, another writ petition was also fi led before the High Court claiming violation of reservation etc. due to the inclusion of two seats! Their case was that the two Schedule Tribe candidates should have been selected on the general seats, and the two seats vacated by them would have given to the reserved candidates. The claim of these appellants (in connected appeals) for their appointments on the posts is again based on the fact that these two vacancies ought to have been advertised earlier is again wrong. The High Court has allowed the writ petition fi led by respondent No.4 to the extent that it held that the appointment of the appellants was in violation of the law in as much as they were not appointed either on the existing vacancies or anticipated vacancies but they were appointed on “future vacancies” which were never advertised. It is true that the vacancies which were advertised were only 8, including those on the reserved posts. The High Court, however, did not grant any relief to the present appellants, or the other candidates in other connected petitions. Their writ petitions were dismissed.
31. In the preceding paragraphs of the present order, we have already clarifi ed the position of law and therefore, in our opinion, the High Court was right in holding this position, which is the settled position of law. What the High Court missed was the context, the facts and the circumstances of the case.
32. A Judge is a Judge of facts, as much as he is a Judge of law. The position of law we have already explained in the preceding paragraphs, which has been correctly followed by the Himachal Pradesh High Court. Now let us see the context of the case and its facts. Today, when we are delivering this judgment the two appellants have already served as Judicial Offi cers for nearly 10 years. Meanwhile, they have also been promoted to the next higher post of Civil Judge (Senior Division). In this process of their selection and appointment (which has obviously benefi tted them), nothing has been brought to our notice which may suggest any favouritism, nepotism or so- called blame as to the conduct of these two appellants, in securing these appointments. The High Court in fact notes this factor. While placing the blame on the State Commission it records that “………. there is nothing on record suggestive of the fact that any mala fi des were behind the selection of respondents Nos.4 and 6……….”
33. The two appellants had qualifi ed the examination and were in the merit list. Should we quash their appointment and unseat them from judicial service, is the question. The same question was there before the High Court and it expressed its inability to protect the appointment of the appellants for two reasons. The fi rst reason was that since it had determined a fi nding of illegality in the appointment, it saw no reason to continue with these appointments on grounds of hardship and equity, as that could only be done only under Article 142 of the Constitution of India and these powers the High Court did not have. The second reason given was that in any case the balance of equity would lie in favour of the petitioner (i.e. respondent No. 4 before High Court), and not the present appellants. The reasons given were as follows : “Having carefully perused aforesaid judgments rendered by Hon’ble Apex Court, which have been otherwise taken note above this Court fi nds that though in the aforesaid cases, selection of the petitioners therein was held to be not in accordance with law but their selection was protected by Hon’ble Apex Court, while exercising power under Article 142 of the Constitution of India, which power is fi rstly not available with this Court, and secondly, in the case at hand, there is active challenge to the selection of the respondents Nos. 4 and 6 by the petitioners herein, whose rights are equally important as that of the aforesaid respondents and, in case respondents Nos. 4 and 6 are allowed to continue on their posts, same would result in infringement of VIVEK KAISTH & ANR v. THE STATE OF HIMACHAL PRADESH & ORS [SUDHANSHU DHULIA, J.] right of the petitioners to participate/being considered in the selection process for the posts in question, and while balancing equalities, the party which is fi ghting for a just cause, its right (Sic rights) are to be protected and not of the party, which is benefi ciary of an illegality committed by the selecting /appointing authorities.”
34. The appellants were not entitled for any equitable relief in view of the High Court as they were the benefi ciaries of an illegality committed by the Selection/appointing authority. But then it failed to take this question further, which in our opinion, it ought to have done. What the High Court never answered was as to how much of this blame of “illegal” selection and appointment would rest on the High Court (on its administrative side). Undoubtedly, with all intentions of timely fi lling of the vacancies, the High Court still cannot escape the blame. From the very initiation of adding future vacancies after the select list was published, the High Court has been privy to the selection/appointment process. The decision of the three- member committee which included representatives of the High Court (dated 21.10.2013) to initially add four more posts to the vacancies, and the fact that the High Court never had any objection to the additional appointments, although these appointments were made under its watch, are signifi cant facts. After these appointments were made, it was the High Court which posted these offi cers in diff erent districts in the State under Article 235 of the Constitution of India. It then trained them as Judicial Offi cers. Not one note, letter, or an objection of any kind has been placed before us which can give even the slightest hint that the High Court, at any point of time, had objected to these appointments! The objection has only come for the fi rst time in form of additional affi davits before the High Court in the writ proceedings when the validity of these two appointments was challenged. The additional affi davit fi led by the Registrar General of the High Court before the Division Bench of the High Court says that these appointments were not made in consultation with the High Court. This, however, does not refl ect the correct position, to say the least. The High Court has placed the entire blame on the post selection exercise undertaken by the State Commission. This is not the correct position, though undoubtedly the Commission as the selecting authority must ultimately bear the brunt, yet the blame must be shared equally by the State Government and the High Court.
35. Having gone through the pleadings of the appellants and that of the respondents, we are of the considered view that there has been a violation of the process in making selection/appointment of the appellants, in as much as the vacancies on which the appellants were appointed were never advertised, and strictly speaking these vacancies cannot be termed as “anticipated vacancies” for the simple reason that these vacancies were only created on 18.04.2013 i.e. after the selection process had begun and advertisement was issued on 01.02.2013.
36. What is also important for our consideration at this stage is that the appellants in the present case have been working as Judicial Offi cers now for nearly 10 years. They are now Civil Judge (Senior Division). These judicial offi cers now have a rich experience of 10 years of judicial service behind them. Therefore, unseating the present appellants from their posts would not be in public interest. Ordinarily, these factors as we have referred above, would not matter, once the very appointment is held to be wrong. But we also cannot fail to consider that the appellants were appointed from the list of candidates who had successfully passed the written examination and viva voce and they were in the merit list. Secondly, it is nobody’s case that the appellants have been appointed by way of favouritism, nepotism or due to any act which can even remotely be called as “blameworthy”. Finally, they have now been working as judges for ten years. There is hence a special equity which leans in favour of the appellants. In a recent Constitution Bench decision of this Court in Sivanandan C.T. and Ors. v. High Court of Kerala and Ors. (2023) SCC OnLine SC 994 though the fi nding arrived at by this Court was that the Rules of the game were changed by the High Court of Kerala by prescribing minimum marks for the viva voce, which were not existing in the Rules and therefore in essence the appointment itself was in violation of the Rules, yet considering that those persons who had secured appointments under this selection have now been working for more than 6 years it was held that it would not be in public interest to unseat them. It was stated in Para 58 as under: – “58. The question which now arises before the Court is in regard to the relief which can be granted to the petitioners. The fi nal list of successful candidates was issued on 6 March 2017. The candidates who have been selected have been working as District and Sessions Judges for VIVEK KAISTH & ANR v. THE STATE OF HIMACHAL PRADESH & ORS [SUDHANSHU DHULIA, J.] about six years. In the meantime, all the petitioners who are before the Court have not functioned in judicial offi ce. At this lapse of time, it may be diffi cult to direct either the unseating of the candidates who have performed their duties. Unseating them at this stage would be contrary to public interest since they have gained experience as judicial offi cers in the service of the State of Kerala. While the grievance of the petitioners is that if the aggregate of marks in the written examination and viva-voce were taken into account, they would rank higher than three candidates who are respondents to these proceedings, equally, we cannot lose sight of the fact that all the selected candidates are otherwise qualifi ed for judicial offi ce and have been working over a length of time. Unseating them would, besides being harsh, result in a situation where the higher judiciary would lose the services of duly qualifi ed candidates who have gained experience over the last six years in the post of District Judge.” And therefore, one of the directions in the said case was as under: ‘60. XXX XXX (vi) In terms of relief, we hold that it would be contrary to the public interest to direct the induction of the petitioners into the Higher Judicial Service after the lapse of more than six years. Candidates who have been selected nearly six years ago cannot be unseated. They were all qualifi ed and have been serving the district judiciary of the state. Unseating them at this stage would be contrary to public interest. To induct the petitioners would be to bring in new candidates in preference to those who are holding judicial offi ce for a length of time. To deprive the state and its citizens of the benefi t of these experienced judicial offi cers at a senior position would not be in public interest.” The case at hand is on a similar footing if not better than the petitioners in the above case.
37. We therefore uphold the fi ndings of the High Court on law as to the fl aw in the process of selection, which followed post October 8, 2013, after declaration of results. All the same, for the reasons stated above, in order to do complete justice and in exercise of our powers under Article 142 of the Constitution of India, we set aside the order of the High Court as far as it quashes the selection and appointment of the appellants. To that extent, these appeals succeed and are hereby allowed.
38. As we have not touched the fi ndings of the High Court on law and it was indeed the correct position of law, the remaining Civil Appeals No. 6237 of 2023, 6235 of 2023 and 6236 of 2023 (fi led by Meenakshi, Parvez and Ashitosh Thakur respectively) are hereby dismissed.
39. We also make it clear that the present litigation which the appellants have gone through will not come in way of these judicial offi cers in any manner, as far as their judicial career is concerned. They shall be treated at par with the other appointees on the post of Civil Judge (Junior Division) for that year. Pending applications, if any, are also disposed of. Headnotes prepared by: Appeals disposed of. Ankit Gyan VIVEK KAISTH & ANR v. THE STATE OF HIMACHAL PRADESH & ORS [SUDHANSHU DHULIA, J.]