[2023] 12 S.C.R. 414 : 2023 INSC 842
SUDESH KUMAR GOYAL
v.
STATE OF HARYANA & ORS.
(Civil Appeal No. 10861 of 2013)
SEPTEMBER 21, 2023
[HRISHIKESH ROY AND PANKAJ MITHAL*, JJ]
Issue for consideration: Whether the appellant who qualified in
the selection process for appointment to the higher judicial service
of the State under the direct recruitment quota is entitled to be
selected against a vacancy caused by resignation of one of the
selected candidates.
Service law – Appointment to the higher judicial service of the
State under the direct recruitment quota - Appellant qualified
the selection process but was not appointed – Appointment
sought against the vacancy which arose on resignation of one
of the selected candidate – Appellant could not be appointed
as he was at serial no. 14 of the merit and the posts available
were only 13 – Justification:
Held: 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 – Appellant did not acquire any indefeasible
right to be appointed because he qualified in the selection process
and the Rules do not oblige the State to fill up all the vacancies
advertised – Respondent-State have justified the appointments
and have not acted in an arbitrary manner – They acted fairly and
logically without any malice against the appellant – Furthermore,
selection was initiated in the year 2007 and 16 years have passed
since then – It would be a travesty of justice to keep open the
selection 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 – Thus, not proper to interfere with the impugned
judgment and order of the High Court.
Shankarsan Dash v. Union of India (1991) 3 SCC 47;
Brij Mohan Lal (1) v. Union of India (2002) 2 SCC 1;
Brij Mohan Lal (2) v. Union of India (2012) 6 SCC 502
– referred to.
* Author
[2023] 12 S.C.R. 415
SUDESH KUMAR GOYAL v. STATE OF HARYANA & ORS.
CIVIL APPELLATE JURISDICTION : Civil Appeal No.10861 of 2013.
From the Judgment and Order dated 18.05.2010 of the High Court of
Punjab & Haryana at Chandigarh in CWP No.16211 of 2009.
Rakesh Dahiya, Satyavan Kudalwal, Aditya Dahiya, Kapil Dahiya,
Advs. for the Appellant.
Dr. Monika Gusain, Raju Ramchandran, Ashok Mathur, Advs. for
the Respondents.
The Judgment of the Court was delivered by
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.
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 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 and having secured the 14th
position in the merit list, was not appointed.
416 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
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 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 against the
14th 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 defeated by adopting an arbitrary
approach. The respondents have acted purely in an arbitrary manner
in keeping the 14th 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
[2023] 12 S.C.R. 417
SUDESH KUMAR GOYAL v. STATE OF HARYANA & ORS.
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, 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
appellant on the 14th 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 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
418 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
was taken to add these 4 general category vacancies to the already
advertised vacancies, thus making the number of general 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
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 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
[2023] 12 S.C.R. 419
SUDESH KUMAR GOYAL v. STATE OF HARYANA & ORS.
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 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.
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
420 [2023] 12 S.C.R.
SUPREME COURT REPORT: DIGITAL
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 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.
Headnotes prepared by: Nidhi Jain Result of the case : Appeal dismissed.
