Supreme Court of India
Ramesh Kumar vs High Court Of Delhi & Anr on 1 February, 2010
Equivalent citations: AIR 2010 SUPREME COURT 3714, 2010 (3) SCC 104, 2010 AIR SCW 946, 2010 LAB. I. C. 1075, (2010) 124 FACLR 1050, (2010) 1 SCT 717, (2010) 2 SERVLJ 183, (2010) 3 MAD LJ 332, (2010) 2 LAB LN 109, (2010) 2 ESC 170, (2010) 167 DLT 98, (2010) 2 SERVLR 144, 2010 (2) SCALE 86, (2010) 2 SCALE 86
Author: B.S. Chauhan
Bench: K.G. Balakrishnan, Deepak Verma, B.S. Chauhan
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.57 OF 2008
Ramesh Kumar ... Petitioner
Vs.
High Court of Delhi & Anr. ... Respondents
(With W.P. (C) No.66/2008)
JU DGMENT
Dr. B.S. CHAUHAN, J
1. These two petitions have been filed under Article 32 of the
Constitution of India for seeking directions to the respondents i.e. the High
Court of Delhi and Govt. of NCT of Delhi to offer appointment to the
petitioners on the posts in the cadre of District Judge.
2. The facts and circumstances giving rise to these petitions are that in
order to fill up 20 vacancies in the cadre of District Judge in Delhi, the
Respondent No.1, the High Court of Delhi issued an advertisement on
19.5.2007. Out of these 20 vacancies, 13 were to be filled up from the
General Category candidates, 3 from Scheduled Castes candidates and 4
from Scheduled Tribes candidates. The petitioners who belong to Scheduled
Castes category faced the selection process. The result was declared on
3.1.2008. All the three vacancies reserved for Scheduled Castes candidates
could not be filled up as the Respondent No. 1 found only one person
suitable for the post. The two petitioners herein were found unsuitable on the
ground that they did not secure the required minimum marks in interview.
Hence, these petitions.
3. Shri V. Shekhar, learned senior counsel appearing for the petitioners
has submitted that in view of decision taken by the Respondent No. 1, a
candidate belonging to Scheduled Castes Category would be called for
interview provided he secured 45% marks in written test. Only three
candidates belonging to the said category stood qualified in the written test,
thus, they could have been offered the appointment without asking them to
complete the formality of facing the interview. It was not permissible for
the Respondent No. 1 to fix minimum Bench Marks at the interview level
also for the purpose of selection. The petitions deserve to be allowed and
the respondents be directed to offer the appointment to the petitioners.
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4. Per contra, Shri A. Mariarputham, learned senior counsel appearing
for the respondents has vehemently opposed the petitions contending that
mere passing the written test is not sufficient for appointment as some of the
required qualities of a candidate can be assessed only in viva-voce/oral
examination. The competent authority is permitted in law to fix the
minimum marks at interview level also. In case, the candidate does not
secure the marks so fixed, the candidate cannot claim the appointment to the
post. Decision for fixing the cut-off marks in the written test and further for
securing the minimum Bench Marks in the interview had been taken prior to
initiation of selection process and was made public at the same time. The
petitioners did not challenge the said criteria at the appropriate stage. Once
they had appeared in the examination and could not succeed, petitioners
cannot be permitted to take U-turn and challenge the selection process on
this ground at all. The petitions lack merit and are liable to be dismissed.
5. We have considered the rival submissions made by learned counsel
for the parties and perused the record.
6. The advertisement dated 19.5.2007 provided that selection process
would be in two stages as it would comprise of written examination
3
carrying 750 marks and Viva-Voce carrying 250 marks. Respondent
No.1, the Delhi High Court furnished detailed information about the
pattern of selection process in the instructions annexed to the
application form. It provided 50% minimum qualifying marks in the
written examination as well as in the interview for General Category
candidates and 45% for Scheduled Castes and Scheduled Tribes
candidates.
The relevant part of the said instruction reads as under:
"A candidate shall be eligible to appear in the viva-voce only
in case he secures 50% marks in the written examination i.e.
aggregate of both parts (objective/descriptive) in the case of
general category, and 45% marks in the case of reserved
category.
Interview/viva-voce will carry 250 marks. A candidate of
general category must secure a minimum of 50% marks and a
candidate of reserved category must secure a minimum, of 45%
marks in the viva-voce".
It was also provided that final merit list will be drawn up from among
the candidates who have secured the stipulated minimum marks in the
written examination and also the stipulated minimum marks in the viva-voce
by adding up the marks in the written examination and the viva-voce.
4
RESULT OF THE PETITIONERS REMAINED AS UNDER
Name Marks Marks Grand total Result
obtained in obtained in
written test interview
Out of 750 Out of 250 Out of 1000
Ramesh Kumar 357.50 105.00 462.50 Not qualified in
interview
Desh Raj Chalia 341.50 83.00 424.50 Not qualified in
interview
It is thus evident that the petitioners were found unsuitable on the
ground that they failed to secure minimum Bench Marks i.e. 112.50 in
interview.
7. As per the submissions advanced by the learned counsel for the
Respondent No.1, the High Court of Delhi had fixed the said criteria being
empowered by the statutory provisions contained in The Delhi Higher
Judicial Service Rules, 1970 (hereinafter called `the Rules"). Rule 10
thereof reads as under:
"The High Court shall before making recommendations
to the Administrator invite applications by advertisement and
may require the applicants to give such particulars as it may
prescribe and may further hold such tests as may be
considered necessary." ( Emphasis added)
5
8. The aforesaid statutory provision undoubtedly does not fix any
particular criteria or minimum Bench Marks either in the written test or in
interview for the purpose of selection. Rule 10 provides that the High Court
"may hold such tests as may be considered necessary", it impliedly
provides for requirement necessary for assessment of suitability of a
candidate. There is no challenge to the validity of Rule 10 in these writ
petitions. The question does arise as to whether the Rules enabled the High
Court to fix the minimum Bench Marks for interview?
9. In State of U.P. v. Rafiquddin & Ors., AIR 1988 SC 162; Dr.
Krushna Chandra Sahu & Ors. v. State of Orissa & Ors. AIR 1996 SC
352; Majeet Singh, UDC & Ors. v. Employees' State Insurance
Corporation & Anr. AIR 1990 SC 1104; and K.H. Siraj v. High Court of
Kerala & Ors. AIR 2006 SC 2339, this Court held that Commission/Board
has to satisfy itself that a candidate had obtained such aggregate marks in the
written test as to qualify for interview and obtained "sufficient marks in viva
voce" which would show his suitability for service. Such a course is
permissible for adjudging the qualities/capacities of the candidates. It may
be necessary in view of the fact that it is imperative that only persons with a
prescribed minimum of said qualities/capacities should be selected as
6
otherwise the standard of judiciary would get diluted and sub-standard stuff
may get selected. Interview may also be the best mode of assessing the
suitability of a candidate for a particular position as it brings out overall
intellectual qualities of the candidates. While the written test will testify the
candidate's academic knowledge, the oral test can bring out or disclose
overall intellectual and personal qualities like alertness, resourcefulness,
dependability, capacity for discussion, ability to take decisions, qualities of
leadership etc. which are also essential for a Judicial Officer.
10. Re-iterating similar views, this Court has given much emphasis on
interview in Lila Dhar v. State of Rajasthan & Ors., AIR 1981 SC 1777; and
Ashok Kumar Yadav & Ors. v. State of Haryana & Ors. AIR 1987 SC 454
stating that interview can evaluate a candidate's initiative, alertness,
resourcefulness, dependableness, co-operativeness, capacity for clear and
logical presentation, effectiveness in discussion, effectiveness in meeting and
dealing with others, adaptability, judgment, ability to make decision, ability to
lead, intellectual and moral integrity with some degree of error.
11. In Shri Durgacharan Misra v. State of Orissa & Ors. AIR 1987 SC
2267, this Court considered the Orissa Judicial Service Rules which did not
7
provide for prescribing the minimum cut-off marks in interview for the
purpose of selection. This Court held that in absence of the enabling
provision for fixation of minimum marks in interview would amount to
amending the rules itself. While deciding the said case, the Court placed
reliance upon its earlier judgments in B.S. Yadav & Ors. v. State of
Haryana & Ors. AIR 1981 SC 561; P.K. Ramachandra Iyer & Ors. v
Union of India & Ors. AIR 1984 SC 541; and Umesh Chandra Shukla v.
Union of India & Ors. AIR 1985 SC 1351, wherein it had been held that
there was no "inherent jurisdiction" of the Selection Committee/Authority
to lay down such norms for selection in addition to the procedure prescribed
by the Rules. Selection is to be made giving strict adherence to the statutory
provisions and if such power i.e. "inherent jurisdiction" is claimed, it has to
be explicit and cannot be read by necessary implication for the obvious
reason that such deviation from the rules is likely to cause irreparable and
irreversible harm.
12. Similarly, in K Manjusree v. State of Andhra Pradesh & Anr.
AIR 2008 SC 1470, this Court held that selection criteria has to be adopted
and declared at the time of commencement of the recruitment process. The
rules of the game cannot be changed after the game is over. The competent
8
authority, if the statutory rules do not restrain, is fully competent to prescribe
the minimum qualifying marks for written examination as well as for
interview. But such prescription must be done at the time of initiation of
selection process. Change of criteria of selection in the midst of selection
process is not permissible.
13. Thus, law on the issue can be summarised to the effect that in case the
statutory rules prescribe a particular mode of selection, it has to be given
strict adherence accordingly. In case, no procedure is prescribed by the rules
and there is no other impediment in law, the competent authority while
laying down the norms for selection may prescribe for the tests and further
specify the minimum Bench Marks for written test as well as for viva-voce.
14. In the instant case, the Rules do not provide for any particular
procedure/criteria for holding the tests rather it enables the High Court to
prescribe the criteria. This Court in All India Judges' Association & Ors.
v Union of India & Ors. AIR 2002 SC 1752 accepted Justice Shetty
Commission's Report in this regard which had prescribed for not having
minimum marks for interview. The Court further explained that to give
effect to the said judgment, the existing statutory rules may be amended.
9
However, till the amendment is carried out, the vacancies shall be filled as
per the existing statutory rules. A similar view has been reiterated by this
Court while dealing with the appointment of Judicial Officers in Syed T.A.
Naqshbandi & Ors. v. State of J & K & Ors. (2003) 9 SCC 592; and
Malik Mazhar Sultan & Anr. v. Union Public Service Commission
(2007) 2 SCALE 159. We have also accepted the said settled legal
proposition while deciding the connected cases, i.e., Civil Appeals @ SLP
(Civil) Nos..... in CC 14852-14854 of 2008 (Rakhi Ray & Ors. v. The High
Court of Delhi & Ors.) vide judgment and order of this date. It has been
clarified in Ms. Rakhi Ray (supra) that where statutory rules do not deal with
a particular subject/issue, so far as the appointment of the Judicial Officers
is concerned, directions issued by this Court would have binding effect.
15. The view taken hereinabove is in conformity with the law laid down
by this Court in Nand Kishore v. State of Punjab (1995) 6 SCC 614,
wherein it has been observed as under :-
"Their Lordship's decisions declare the existing law but do not
enact any fresh law, is not in keeping with the plenary function
of the Supreme Court under Article 141 of the Constitution, for
the Court is not merely the interpreter of the law as existing but
much beyond that. The Court as a wing of the State is by itself
a source of law. The law is what the Court says it is."
10
16. These cases are squarely covered by the judgment of this Court in
Hemani Malhotra v. High Court of Delhi AIR 2008 SC 2103, wherein it
has been held that it was not permissible for the High Court to change the
criteria of selection in the midst of selection process. This Court in All
India Judges' case (supra) had accepted Justice Shetty Commission's
Report in this respect i.e. that there should be no requirement of securing
the minimum marks in interview, thus, this ought to have been given effect
to. The Court had issued directions to offer the appointment to candidates
who had secured the requisite marks in aggregate in the written examination
as well as in interview, ignoring the requirement of securing minimum
marks in interview.
17. In pursuance of those directions, the Delhi High Court offered the
appointment to such candidates. Selection to the post involved herein has
not been completed in any subsequent years to the selection process under
challenge. Therefore, in the instant case, in absence of any statutory
requirement of securing minimum marks in interview, the High Court ought
to have followed the same principle. In such a fact-situation, the question of
acquiescence would not arise.
18. In view of the above, as it remains admitted position that petitioner
Ramesh Kumar had secured 46.25% marks in aggregate and as he was
11
required only to have 45% marks for appointment, writ petition No.57 of
2008 stands allowed. The connected writ petition filed by Desh Raj Chalia
as he failed to secure the required marks in aggregate, stands dismissed. The
respondents are requested to offer appointment to petitioner Ramesh Kumar,
at the earliest, preferably within a period of two months from the date of
submitting the certified copy of this order before the Delhi High Court. It is,
however, clarified that he shall not be entitled to get any seniority or any
other perquisite on the basis of his notional entitlement. Service benefits
shall be given to him from the date of his appointment. No costs.
................................CJI.
.................................... J.
(DEEPAK VERMA)
. .................................... J.
(Dr. B.S. CHAUHAN)
New Delhi,
February 1, 2010.
12
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. OF 2010
(Arising out of SLP (C) Nos. .......... Of 2008 in CC 14852-14854/2008)
Rakhi Ray & Ors. ... Appellants
Vs.
The High Court of Delhi & Ors. ... Respondents
JU DGMENT
Dr. B.S. Chauhan, J.
1. Applications for permission to file Special Leave Petitions are
granted.
2. Leave granted.
3. These appeals have been filed for seeking directions to the
respondents i.e. the High Court of Delhi and the Lt. Governor of Delhi to
offer the appointment to the appellants on the posts in the cadre of District
Judges in Delhi Judicial Service.
4. Facts and circumstances giving rise to these appeals are that in order
to fill up 20 vacancies in the cadre of District Judge in Delhi, the respondent
No.1, the High Court of Delhi, issued an advertisement dated 19.5.2007.
Out of these 20 vacancies, 13 were to be filled up from the General Category
candidates; 3 from Scheduled Castes; and 4 from Scheduled Tribes.
Appellants who belong to General Category, faced the selection process.
The result was declared on 3.1.2008. Appellants found place in the merit list
but much below. All the 13 vacancies in the said category were filled
according to the merit list of General Category candidates. However, two
posts reserved for Scheduled Castes candidates and four posts meant for
Scheduled Tribes candidates could not be filled up for non availability of
suitable candidates.
5. Certain unsuccessful candidates approached the Delhi High Court by
filing Writ Petition Nos. 2688/2008, 2913/2008 and 3932/2008 on the
ground that 13 vacancies came into existence between 29.2.2008 and
23.5.2008 i.e. during the pendency of the selection process which could have
also been filled up from the said select list in view of the judgment of this
Court in Malik Mazhar Sultan & Anr. v. U.P. Public Service
Commission & Ors. (2007) 2 SCALE 159. The High Court disposed of all
the petitions vide its judgment and order dated 3.10.2008 taking a view that
only three vacancies came into existence subsequent to the date of
Advertisement which could have been filled up from the said list. Out of the
said three vacancies, two could be offered to General Category candidates
and one to the Scheduled Caste candidate and issued direction to appoint
two more candidates whose names appeared at Serial Nos.14 and 15 in
General Category Merit List. Hence, these appeals are for seeking directions
to the respondents for offering appointment to the appellants also.
6. Shri Ranjit Kumar, learned senior counsel appearing for the appellants
has submitted that the judgment in Malik Mazhar Sultan's case (supra)
was delivered by this Court on 4.1.2007. A large number of directions had
been issued in the said case and it also formulated the calendar for
conducting the examinations for filling up the vacancies in the Judicial
Service. It also provided that while determining the number of vacancies,
the concerned Authority would also consider alongwith the existing
vacancies, as what would be the anticipated vacancies that may arise within
one year due to retirement, due to elevation to the High Court, death or
otherwise, say 10% of the number of posts; and to take note of the
vacancies arising out of deputation of Judicial Officers to other departments.
It also provided that the select list so prepared shall be valid till new select
list is published. The examination is to be conducted every year. The High
Courts were directed to give strict adherence to the aforesaid schedule fixed
by this Court. So far as the Delhi High Court was concerned, it was provided
that the High Court would amend its calendar accordingly. In view of the
above, it has been submitted that while making the advertisement, the Delhi
High Court had not taken note of the anticipated vacancies which could be
available during the next year. As per the direction of this Court, as 13 more
vacancies came into existence, those vacancies must be filled up from the
select list so prepared. As the appellants are in the select list they should be
offered appointments.
7. On the contrary, Shri A. Mariarputham, learned senior counsel
appearing for the respondents has vehemently opposed the appeals
contending that the law does not permit filling up the vacancies over and
above the number of vacancies advertised. Thirteen vacancies of the
General Category were advertised; the same had been filled up according to
merit, therefore, selection process in that respect stood exhausted. The
waiting list does not survive. The appellants had not challenged the
advertisement in spite of the fact that the judgment in Malik Mazhar
Sultan's case (supra) was delivered on 4.1.2007 and vacancies were
advertised on 19.5.2007. The appellants were not aggrieved for not offering
the appointment to them, as they did not even approach the High Court for
any relief. The Special Leave Petitions were filed at much belated stage on
24.10.2008, though the result had been declared on 3.1.2008, and
appointments had been made on 3.4.2008. The directions of the Court could
not supersede the statutory rules as there was a direction to fill up the
vacancies as per the existing statutory rules. Appointments had been made
according to law. Thus, the appeals have no merit and are liable to be
dismissed.
8. We have considered the rival submissions made by learned counsel
for the parties and perused the record.
9. It is a settled legal proposition that vacancies cannot be filled up over
and above the number of vacancies advertised as "the recruitment of the
candidates in excess of the notified vacancies is a denial and deprivation of
the constitutional right under Article 14 read with Article 16(1) of the
Constitution", of those persons who acquired eligibility for the post in
question in accordance with the statutory rules subsequent to the date of
notification of vacancies. Filling up the vacancies over the notified
vacancies is neither permissible nor desirable, for the reason, that it amounts
to "improper exercise of power and only in a rare and exceptional
circumstance and in emergent situation, such a rule can be deviated and
such a deviation is permissible only after adopting policy decision based on
some rational", otherwise the exercise would be arbitrary. Filling up of
vacancies over the notified vacancies amounts to filling up of future
vacancies and thus, not permissible in law. (Vide Union of India & Ors. v.
Ishwar Singh Khatri & Ors. (1992) Supp 3 SCC 84; Gujarat State
Deputy Executive Engineers' Association v. State of Gujarat & Ors.
(1994) Supp 2 SCC 591; State of Bihar & Ors. v. The Secretariat
Assistant S.E. Union 1986 & Ors AIR 1994 SC 736; Prem Singh & Ors.
v. Haryana State Electricity Board & Ors. (1996) 4 SCC 319; and Ashok
Kumar & Ors. v. Chairman, Banking Service Recruitment Board &
Ors. AIR 1996 SC 976).
10. In Surinder Singh & Ors. v. State of Punjab & Ors. AIR 1998 SC
18, this Court held as under:
"A waiting list prepared in an examination conducted by
the Commission does not furnish a source of recruitment. It is
operative only for the contingency that if any of the selected
candidates does not join then the person from the waiting list
may be pushed up and be appointed in the vacancy so caused
or if there is some extreme exigency the Government may as a
matter of policy decision pick up persons in order of merit
from the waiting list. But the view taken by the High Court
that since the vacancies have not been worked out properly,
therefore, the candidates from the waiting list were liable to
be appointed does not appear to be sound. This practice, may
result in depriving those candidates who become eligible for
competing for the vacancies available in future. If the waiting
list in one examination was to operate as an infinite stock for
appointment, there is a danger that the State Government may
resort to the device of not holding an examination for years
together and pick up candidates from the waiting list as and
when required. The constitutional discipline requires that this
Court should not permit such improper exercise of power
which may result in creating a vested interest and perpetrate
waiting list for the candidates of one examination at the cost of
entire set of fresh candidates either from the open or even from
service.....Exercise of such power has to be tested on the touch-
stone of reasonableness....It is not a matter of course that the
authority can fill up more posts than advertised."
(Emphasis added)
11. Similar view has been re-iterated in Madan Lal v. State of J & K &
Ors. AIR 1995 SC 1088; Kamlesh Kumar Sharma v. Yogesh Kumar
Gupta & Ors. AIR 1998 SC 1021; Sri Kant Tripathi v. State of U.P. &
Ors. (2001) 10 SCC 237; State of J & K v. Sanjeev Kumar & Ors.
(2005) 4 SCC 148; State of U.P. v. Raj Kumar Sharma & Ors. (2006) 3
SCC 330; and Ram Avtar Patwari & Ors. v. State of Haryana & Ors.
AIR 2007 SC 3242).
12. In State of Punjab v. Raghbir Chand Sharma & Ors. AIR 2001 SC
2900, this Court examined the case where only one post was advertised and
the candidate whose name appeared at Serial No. 1 in the select list joined
the post, but subsequently resigned. The Court rejected the contention that
post can be filled up offering the appointment to the next candidate in the
select list observing as under:-
"With the appointment of the first candidate for the only post in
respect of which the consideration came to be made and select list
prepared, the panel ceased to exist and has outlived its utility and
at any rate, no one else in the panel can legitimately contend that
he should have been offered appointment either in the vacancy
arising on account of the subsequent resignation of the person
appointed from the panel or any other vacancies arising
subsequently."
13. In Mukul Saikia & Ors. v. State of Assam & Ors. AIR 2009 SC
747, this Court dealt with a similar issue and held that "if the requisition and
advertisement was only for 27 posts, the State cannot appoint more than the
number of posts advertised". The Select List "got exhausted when all the 27
posts were filled". Thereafter, the candidates below the 27 appointed
candidates have no right to claim appointment to any vacancy in regard to
which selection was not held. The "currency of Select List had expired as
soon as the number of posts advertised are filled up, therefore, the
appointments beyond the number of posts advertised would amount to filling
up future vacancies" and said course is impermissible in law.
14. In view of above, the law can be summarised to the effect that any
appointment made beyond the number of vacancies advertised is without
jurisdiction, being violative of Articles 14 and 16(1) of the Constitution of
India, thus, a nullity, inexecutable and unenforceable in law. In case the
vacancies notified stand filled up, process of selection comes to an end.
Waiting list etc. cannot be used as a reservoir, to fill up the vacancy which
comes into existence after the issuance of notification/advertisement. The
unexhausted select list/waiting list becomes meaningless and cannot be
pressed in service any more.
15. In the instant case, as 13 vacancies of the General Category had been
advertised and filled up, the selection process so far as the General Category
candidates is concerned, stood exhausted and the unexhausted select list is
meant only to be consigned to record room.
16. So far as the submission made by Shri Ranjit Kumar that directions
issued by this Court in Malik Mazhar Sultan (supra) had to be given effect
to is concerned, the same requires consideration elaborately.
17. In All India Judges' Association & Ors. v. Union of India & Ors.
AIR 1993 SC 2493, several directions had been issued by this Court in
respect of the service conditions of the Judicial Officers. In view thereof, a
notification dated 21st March, 1996 was issued appointing Justice K.J. Shetty
Commission to consider about their service conditions.
18. In All India Judges' Association & Ors. v. Union of India & Ors.
AIR 2002 SC 1752, this Court considered various aspects of Justice Shetty
Commission Report and approved the same. However, the question arose as
to whether the recommendations so accepted by this Court could be
implemented as such or was it required to be incorporated in the statutory
rules governing the service conditions of the Judicial Officers or alteration of
the rules applicable to them? This Court held as under:
"We are aware that it will become necessary for service and
other rules to be amended so as to implement this judgment...."
19. In Syed T.A. Naqshbandi & Ors. v. State of J & K & Ors. (2003) 9
SCC 592, this Court reconsidered the same issue while examining the
appointments to the post of District & Sessions Judges (Selection Grade) in
the State of Jammu & Kashmir and relying upon its earlier judgment in All
India Judges' Association (supra) held as under:
"Reliance placed upon the recommendations of Justice
Jagannatha Shetty Commission or the decision reported in
All India Judges' Assn. v. Union of India or even the
resolution of the Full Court of the High Court dated 27-4-
2002 is not only inappropriate but a misplaced one and the
grievances espoused based on this assumption deserve a mere
mention only to be rejected. The conditions of service of
members of any service for that matter are governed by
statutory rules and orders, lawfully made in the absence of
rules to cover the area which has not been specifically
covered by such rules, and so long as they are not replaced or
amended in the manner known to law, it would be futile for
anyone to claim for those existing rules/orders being ignored
yielding place to certain policy decisions taken even to alter,
amend or modify them. Alive to this indisputable position of
law only, this Court observed at SCC p. 273, para 38, that "we
are aware that it will become necessary for service and other
rules to be amended so as to implement this judgment".
Consequently, the High Court could not be found at fault for
considering the matters in question in the light of the Jammu
and Kashmir Higher Judicial Service Rules, 1983 and the
Jammu and Kashmir District and Sessions Judges (Selection
Grade Post) Rules, 1968 as well as the criteria formulated by
the High Court. Equally, the guidelines laid down by the High
Court for the purpose of adjudging the efficiency, merit and
integrity of the respective candidates cannot be said to be
either arbitrary or irrational or illegal in any manner to
warrant the interference of this Court with the same. Even de
hors any provision of law specifically enabling the High Courts
with such powers in view of Article 235 of the Constitution of
India, unless the exercise of power in this regard is shown to
violate any other provision of the Constitution of India or any
of the existing statutory rules, the same cannot be challenged
by making it a justiciable issue before courts. The grievance of
the petitioners, in this regard, has no merit of acceptance".
(Emphasis added)
20. In Malik Mazhar Sultan's case (supra), this Court made it clear that
appointments in Judicial Service have to be made as per the existing
statutory rules. However, direction was issued to amend the rules for future
selections. This Court considered the correspondences between various
authorities of the States and also the decision taken in the conference of the
Chief Ministers and Chief Justices held on 11.3.2006, and observed as
under:
"... Before we issue general directions and the time schedule to
be adhered to for filling vacancies that may arise in
subordinate courts and district courts, it is necessary to note
that selections are required to be conducted by the concerned
authorities as per the existing Judicial Service Rules in the
respective States/Union Territories...... As already indicated,
the selection is to be conducted by authorities empowered to do
so as per the existing Rules. ... In view of what we have
already noted about the appointments to be made in
accordance with the respective Judicial Services Rules in the
States, the apprehension of interference seems to be wholly
misplaced...." (Emphasis added).
21. Therefore, it is clear that this Court clarified that selection was to be
made as per the existing Rules and direction was issued for amending the
existing laws to adopt the recommendations of Justice Shetty Commission
as approved by this Court for the future.
22. So far as the judgment of this Court in Hemani Malhotra v. High
Court of Delhi & Ors. AIR 2008 SC 2103 is concerned, the facts are quite
distinguishable. The Delhi High Court did not frame any statutory rule
providing for cut-off marks in interview for assessing the suitability for
selection. After the selection process had been initiated, such a resolution
was adopted. Therefore, the basic issue for consideration before this Court
had been as to whether it was permissible for the High Court to change the
selection criteria at the midst of the selection process. The Court placing
reliance upon its earlier judgments held that once the selection process starts,
it is not permissible for the competent authority to change the selection criteria
and in that view observation was made that a fresh merit list is to be prepared
ignoring the said resolution of the High Court taking cut-off marks in
interview. Undoubtedly, the Court had taken note of Justice Shetty
Commission Report in this regard and held that such a criteria could not have
been provided. In absence of any statutory rule governing a particular issue,
directions issued by this Court would prevail.
23. Therefore, it is evident from the aforesaid judgment that in spite of
acceptance of the recommendations made by Justice Shetty Commission,
this Court insisted that the existing law/statutory rules in making the
appointment of Judicial Officers be amended accordingly. In Syed
T.A.Naqshbandi (supra), this Court repealed the contention which is being
advanced by the learned counsel for the petitioners therein and the Court in
crystal clear words held that appointments have to be made giving strict
adherence to the existing statutory provisions and not as per the
recommendations made by Justice Shetty Commission. Of course, in
absence of statutory rule to deal with a particular issue, the High Courts are
bound to give effect to the directions issued by this Court.
24. The appointments had to be made in view of the provisions of the
Delhi Higher Judicial Service Rules, 1970. The said rules provide for
advertisement of the vacancies after being determined. The rules further
provide for implementation of reservation policies in favour of Scheduled
Castes, Scheduled Tribes and Other Backward Classes. As the reservation
policy is to be implemented, a number of vacancies to be filled up is to be
determined, otherwise it would not be possible to implement the reservation
policy at all. Thus, in view of the above, the question of taking into
consideration the anticipated vacancies, as per the judgment in Malik
Mazhar Sultan (supra), which had not been determined in view of the
existing statutory rules could not arise.
25. In view of above, we do not find any force in the submissions that the
High Court could have filled vacancies over and above the vacancies
advertised on 19.5.2007, as per the directions issued by this Court in Malik
Mazhar Sultan's case (supra). More so, no explanation could be furnished
by Shri Ranjit Kumar, learned senior counsel for the appellants as to why the
appellants could not challenge the advertisement itself, if it was not in
conformity with the directions issued by this court in the said case.
26. It has further been submitted on behalf of the appellants that the Delhi
High Court vide its judgment and order dated 3.10.2008 had issued
directions to offer appointment to two persons implementing the said
judgment in Malik Mazhar Sultan's case (supra) whose names appeared in
select list at SI. Nos. 14 and 15, and, as the High Court had implemented the
said directions, the appellants could not be treated with such hostile
discrimination. Undoubtedly, the directions had been issued to fill up two
vacancies over and above the vacancies notified. However, that part of the
judgment is not under challenge before us. In such a fact situation, it is
neither desirable nor permissible in law to make any comment on that. A
person whose name appears in the select list does not acquire any
indefeasible right of appointment. Empanelment at the best is a condition of
eligibility for purpose of appointment and by itself does not amount to
selection or create a vested right to be appointed. The vacancies have to be
filled up as per the statutory rules and in conformity with the constitutional
mandate. In the instant case, once 13 notified vacancies were filled up, the
selection process came to an end, thus there could be no scope of any
further appointment.
27. In view of the above, we do not find any force in these appeals which
are accordingly dismissed.
....................................
CJI.
........................................J.
(DEEPAK VERMA)
.........................................J.
(Dr. B.S. CHAUHAN)
New Delhi,
February 1, 2010.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION(C) NO. 28488 OF 2008
Navin Kumar Jha ... Petitioner
Vs.
Lt. Governor & Ors. ... Respondents
With
SLP(C) No. 29248 of 2008
JUDGMENT
Dr. B.S. CHAUHAN, J.
In view of our judgment pronounced today in CA Nos........ of 2010 @ SLP(C) Nos........ @CC Nos. 14852-14854 of 2008 (Rakhi Ray & Ors. vs. High Court of Delhi & Ors.), these Special Leave Petitions are dismissed.
................................CJI.
.................................... J. (DEEPAK VERMA) . .................................... J. (Dr. B.S. CHAUHAN) New Delhi, February 1, 2010.