Summary
The Supreme Court held that two judicial appointments against later-created, unadvertised vacancies were legally flawed, but protected the officers under Article 142 after nearly ten years of blameless service and promotion. The ordinary rule against exceeding advertised vacancies remained intact, and competing candidates obtained no appointment relief. The protected officers were to be treated at par with their recruitment-year colleagues without career prejudice from the litigation.
Issues
- Whether later-created judicial vacancies could be filled through a completed recruitment for advertised existing and anticipated vacancies.
- Whether a waiting list or earlier recruitment directions justified the additional appointments.
- Whether the officers should nevertheless retain their posts in the exceptional circumstances.
Provisions considered
- Articles 14 and 16, Constitution of IndiaThe governing equality principles prevent a select or waiting list from being used to fill unadvertised future vacancies at the expense of later eligible candidates; service rules must be read harmoniously with those principles. (¶ 19–28)
- Provisions governing notification of vacancies, Himachal Pradesh Judicial Service Rules, 2004, as amendedThe vacancy provisions were considered with the clarified Malik Mazhar directions. Any exercise to add vacancies had to occur before advertisement, rather than after publication of results. (¶¶ 17–20, 27–29, 35)
- Article 142, Constitution of IndiaThe Court protected the two officers’ appointments as exceptional complete-justice relief while affirming that the selection process had violated the governing law. (¶ 32–39)
Held
- Malik Mazhar’s 2009 clarification replaced the earlier additional ten-percent category with existing and anticipated vacancies for the next year, together with a waiting list. Reliance on Shweta Dhingra to add vacancies after the selection was over was misplaced. (¶ 14–18)
- A waiting list meets shortfalls when selected candidates do not join the advertised posts; it is not an ongoing source for future vacancies. All eight selected candidates had joined, so no such shortfall existed here. (¶ 24–28)
- The two additional posts did not exist when recruitment was advertised and could not be treated as anticipated vacancies in that process. They belonged to the following recruitment exercise; the competing candidates’ claims founded on their supposed earlier availability also failed. (¶¶ 27–31, 35, 38)
- The State, Public Service Commission and High Court administration shared responsibility for the defective additional appointments. The record did not support the High Court administration’s attempt to disclaim its involvement. (¶ 32–35)
- The officers had passed the examination and interview, appeared in the merit list, committed no blameworthy act and served for nearly ten years with promotion. Their experience and the absence of favouritism or nepotism created a special equity and public-interest basis for protecting them. Long service was not stated as a general cure for unlawful appointments. (¶ 32–37)
- Article 142 relief set aside only the cancellation of these officers’ appointments. The legal findings remained intact; the other appeals were dismissed, and the protected officers were to face no career disadvantage from this litigation. (¶ 37–39)
Result
Vivek Kaisth and Akansha Dogra’s appeals allowed to the extent of protecting their selection and appointment under Article 142. Findings on the legal flaw retained. Connected appeals Nos. 6237, 6235 and 6236 of 2023 dismissed. Protected officers to be treated at par with other appointees of that year, without litigation-related career prejudice. Pending applications disposed of.