2025 INSC 176 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S). 13950-13951 OF 2024

(Arising out of SLP(Civil) No(s). 6120-6121 of 2023)

AMRIT YADAV .…APPELLANT(S)

VERSUS

THE STATE OF JHARKHAND AND ORS. ….RESPONDENT(S)

WITH

CIVIL APPEAL NO(S). 13952 OF 2024

(Arising out of SLP(Civil) No(s). 3203 of 2023)

CIVIL APPEAL NO(S). 13955 OF 2024

(Arising out of SLP(Civil) No(s). 6118 of 2023)

CIVIL APPEAL NO(S). 13953 OF 2024

(Arising out of SLP(Civil) No(s). 3303 of 2023)

CIVIL APPEAL NO(S). 13954 OF 2024

(Arising out of SLP(Civil) No(s). 3399 of 2023)

J U D G M E N T

Mehta, J.

CIVIL APPEALS NO(S). 13950-13951 OF 2024

1. The present appeals by special leave, are preferred by the

appellant

1, assailing the following two judgments rendered by the

Division Bench of the High Court of Jharkhand at Ranchi

2: -

1

Hereinafter, referred to as “appellant-employee”.

2

Hereinafter referred to as “High Court”.

Civil Appeal No(s). 13950-13951 of 2024

2

i) Judgment dated 7

th November, 2019 in LPA No. 26 of

2019, whereby the learned Division Bench dismissed the

intra-court appeal preferred by the respondent -State

against the common judgment of learned Single Judge in

WP(S) No. 6709 of 2017 and other connected petitions

3,

who vide order dated 12

th September, 2018, had directed

the respondent-State to make a fresh panel for

appointment to the post of Class-IV employees as per the

conditions stipulated in the advertisement dated 29

th July,

2010. (Hereinafter, referred to as “first impugned order”).

ii) Judgment dated 24

th November, 2022 in batch of Letter

Patent Appeals

4, whereby, the learned Division Bench

dismissed the intra-court appeals (one amongst them filed

by the appellant-employee) against the judgment dated 9

th

March, 2022 passed by the learned Single Judge who vide

common order passed in batch of writ petitions

5, had

refused to interfere with the order of termination issued by

3

WP (S) Nos. 789 of 2018, 1257 of 2018, 1278 of 2018, 1342 of 2018, 1638 of 2018, 1757 of

2018, 544 of 2018, 1007 of 2018, 1915 of 2018, 1926 of 2018, 1893 of 2018 and 7047 of

2017.

4

LPA Nos. 305 of 2022, 197 of 2022, 185 of 2022, 186 of 2022 and 201 of 2022.

5

WP(S) Nos. 4440 of 2020, 187 of 2021, 4132 of 2020, 2219 of 2021, 4358 of 2020, 4363 of

2020, 4405 of 2020, 4407 of 2020 and 2244 of 2021.

Civil Appeal No(s). 13950-13951 of 2024

3

respondent-State. (Hereinafter, referred to as “second

impugned order”).

Factual Matrix: -

2. The Deputy Commissioner, Palamu

6 published an

advertisement dated 29

th July, 2010, inviting applications for

appointment to the post of Class IV employees

7. The language of

said advertisement is germane to the controversy at hand and the

same is extracted below: -

“Date: 29 July 2010 (Ranchi)

Last Date of application

submission 21/8/2010

OFFICE OF THE DISTRICT MAGISTRATE PALAMU

DISTRICT, NAZARAT BRANCH

Collectorate Palamu

(Information related to making the fourth panel)

Instructions for appointment to the post of class IV employee

Advertisement Number 1

Vacancy for the grade IV post - the eligible and interested

candidates are invited to apply in subscribed application form

to the vacant posts of Class IV category by sending application

to the appropriate offices of the State Government in Palamu

District on schedule date.

It will be mandatory to the candidate in list of the category to

submit the certificate along with the application in printed form

before the District Nazarat Branch, Palamu Collectorate till the

last date for submission of application. After the last date, the

application will not be considered without the eligible proof of

deprivation.

6

Hereinafter referred to as “respondent no. 4”.

7

For short “subject posts”.

Civil Appeal No(s). 13950-13951 of 2024

4

Applicants are instructed to appear in the examination on the

basis of admission eligibility, the cycling test of the qualified

candidate will be held on schedule to qualify in compulsory

basis. The date of examination will be announced later.

The complete details with terms and conditions to apply for the

post in application are as follows.

1. Name of the post - IV Grade

2. Educational Qualification - VIII Passed

3. The candidate should must be eligible in cycling (there the

cycle test should be organized to qualify on compulsory basis)

4. The candidate should be in sound health (should be

compulsory to submit the medical fitness certificate obtained

within last 6 months)

5. The candidate over to the maximum age should not be

consider to apply.

6. The applicant for general category is eligible to apply other

than the candidate in schedule caste and schedule tribe cast in

age relaxation in between 18 to 27 years and for backward class

/ extremely backward class should be eligible to apply in age of

18 to 28 years and for female candidate in unreserved and other

backward and scheduled and Scheduled Tribe Caste should

apply with age relaxation 18 to 40 years.

7. The candidate belong from the local areas should be given to

preference, will be eligible to apply and the candidate working

in government offices should be in preference to apply from the

date of publication of the advertisement in status of weightage

calculation. For which weightage will be given for service. It will

be mandatory for the daily wage to submit the certificate

obtained or from the employer.

8. Preference will be given to local applicants.

9. No traveling allowance will be given to the candidates

appearing in the final examination.

10. The emplacement will be effective for one year from the date

of publication.

11. It is only related to the preparation of advertisement panels.

12. Instructions given from time to time to the district by the

Jharkhand Government in this context should be applicable.

13. Information will be provided in the Devanagari script

prescribed letter form and educational and other qualification

proofs, eligible age certificate, reservation certificate, caste

certificate issued by the employment office, disability certificate

Civil Appeal No(s). 13950-13951 of 2024

5

issued by the civil surgeon of the district (if the applicant is

disabled) and residence certificate, caste proof issued by the

eligible sub divisional officer / appropriate office by the

Government of Jharkhand, It is mandatory for the candidate to

attach the photocopy of the certificate (issued within six

months) from the concerned authority including two passport

size photographs should must be submit.

14. It will be mandatory to attach a bank draft of Rs.100 in the

name of Deputy Collector, Palamu Secretariat along with 10x10

size envelope.

15. The decision of the District Selection Committee regarding

panel creation will be final.

16. The entire recruitment process will be completely

transparent. And all action will be taken according to the rules

of the government. Therefore, under the public interest, even in

your own interest, the broker should not come under the

influence of the middleman. The candidate is warned to do not

approach or recommend at any level. If any such attempt is

detected, the form will automatically be canceled and legal

action will be taken against the candidate.

Sd/-

The Deputy Commissioner Palamu ”

3. Pursuant to the issuance of the above advertisement, an

examination was conducted on 5

th November, 2017. Subsequently,

respondent No. 4 issued a press release

8 dated 9

th November,

2017, stating that before the final panel of selected candidates is

prepared, the candidates would be required to remain present in

the District Establishment Section, Palamu for the purpose of

counselling. Upon completion of the counselling process, the

District Education Officer

9 vide office order

10 dated 9

th March,

8

Memorandum No. 842 of 2017.

9

Hereinafter, referred to as “respondent no. 5”.

10

Memo no. 399.

Civil Appeal No(s). 13950-13951 of 2024

6

2018, issued appointment letter to the successful candidates,

including the appellant herein. Meanwhile, an FIR

11 came to be

registered at Police Station Daltonganj Town, District Palamu

alleging rampant corruption and mass scale cheating in the

examination conducted for the subject posts on 5

th November,

2017.

4. Aggrieved by the publication of the list of successful

candidates, some non -selected candidates preferred writ

petitions

12 before the High Court which came to be allowed vide

order dated 12

th September, 2018, directing the respondent-State

to prepare a fresh merit list as per the marks obtained in the

written examination conducted on 5

th November, 2017, without

counting the marks awarded to the candidates in interview. The

learned Single Judge opined that the appointment was not carried

out in accordance with the stipulations made in the advertisement

dated 29

th July, 2010, as there was admittedly, no provision for

interview in the advertisement which was conducted by the

respondent-State. The learned Single Judge further observed that

the respondent-State had acted de hors the rules and regulations

11

FIR No. 382 of 2017.

12

Supra note 3.

Civil Appeal No(s). 13950-13951 of 2024

7

while preparing the merit list by taking into account the

cumulative marks obtained by the candidates in written

examination as well as the interview.

5. Aggrieved, the respondent-State preferred an intra-court

appeal

13 assailing the aforesaid order of the learned Single Judge.

The Division Bench vide first impugned order dated 7

th November,

2019, dismissed the appeal and upheld the order dated 12

th

September, 2018, passed by the learned Single Judge. Pursuant

to the aforesaid direction of learned Single Judge, respondent No.

5 vide office order dated 7

th December, 2020, relieved the

appellant-employee and other candidates who were purportedly

selected de hors the rules and terminated their service.

6. The appellant-employee and other similarly aggrieved

candidates assailed their termination order by preferring writ

petitions

14 before the High Court seeking issuance of a writ to

reinstate them in service. The learned Single Judge vide order

dated 9

th March, 2022, dismissed the batch of writ petitions,

holding that no case for interference was made out as admittedly,

the respondent-State had changed the rules of the game by

13

LPA No. 26 of 2019.

14

Supra note 5.

Civil Appeal No(s). 13950-13951 of 2024

8

introducing the interview round in the selection process after the

ball had been set rolling. The learned Single Judge further held

that the respondent-State had prepared the fresh panel of selected

candidates in compliance with the direction of the High Court in

WP (S) No. 6709 of 2017 and other analogous petitions

15, which

stood affirmed in the first impugned order and hence, the

termination orders were valid in the eyes of law.

7. Aggrieved, the appellant-employee and other similarly

situated candidates preferred a batch of intra-court appeals

16

assailing the order dated 9

th March, 2022, passed by the learned

Single Judge. The learned Division Bench, vide order dated 24

th

November, 2022, dismissed these appeals and held that as the

decision with respect to preparation of fresh panel of selected

candidates had attained finality in view of the judgment of the

Coordinate Bench, the respondent-State was justified in issuing

the order terminating the services of the appellant-employee and

other similarly situated candidates for being less meritorious.

15

Supra note 3.

16

Supra note 4.

Civil Appeal No(s). 13950-13951 of 2024

9

8. Aggrieved, the appellant-employee has approached this Court

by way of these appeals by special leave assailing the impugned

orders passed by the learned Division Bench of the High Court.

Submissions on behalf of the appellant-employee: -

9. Learned senior counsel appearing for the appellant-employee

strenuously contended that the appellant-employee was duly

selected and has been appointed to the subject posts, purely on

merit, vide Memorandum No. 399 dated 9

th March, 2018, issued

by the competent authority. There was no allegation of fraud or

misrepresentation on the part of the appellant-employee while

seeking the appointment on the post in question.

10. It was submitted that pursuant to the valid appointment of

the appellant-employee, he has satisfactorily served the

respondent-State for two and a half years and has also completed

his probation period. Further, the learned counsel urged that as

the appellant-employee has become over-age for other Government

jobs, a sympathetic view ought to be taken by setting aside the

termination order dated 7

th December, 2020 issued by respondent

No. 5.

Civil Appeal No(s). 13950-13951 of 2024

10

11. He further contended that the Division Bench grossly erred

in issuing a direction to the respondent-State to prepare a fresh

panel of selected candidates without impleading the affected

persons, such as the appellant-employee, as a party in the

proceedings and thus, violated the principles of natural justice.

The non-selected candidates who had filed the writ petitions had

voluntarily refrained from appearing in the counselling process,

and hence, they lacked locus to challenge the recruitment process.

12. Learned counsel concluded his submissions by imploring

this Court to take a sympathetic view and to accept the appeals,

set aside the impugned judgments, quash the termination order

dated 7

th December, 2020, and direct the respondent-State to

reinstate the appellant-employee in service.

Submissions on behalf of the respondent-State: -

13. Per contra, learned counsel appearing on behalf of the

respondent-State contended that the impugned judgments do not

suffer from any infirmity or illegality. He contended that the fresh

panel of selected candidates, was prepared by the respondent-

State in compliance with the direction of the High Court vide order

dated 12

th September, 2018. Once the appointment of the

appellant-employee was found to be de hors the law, he cannot

Civil Appeal No(s). 13950-13951 of 2024

11

claim a preferential right of continuing in service as against the

candidates who were admittedly higher in merit.

14. Learned standing counsel further contended that the case of

the appellant-employee suffers from gross delay which remains

unexplained as he is laying challenge to judgment

17 of the Division

Bench dated 7

th November, 2019 after a period of more than 3

years. As such, the appellant-employee is not entitled to any relief.

On these grounds, the learned Counsel for the respondent-State

implored this Court to dismiss the appeal s and affirm the

impugned judgments.

Issues: -

15. We have given our thoughtful consideration to the

submissions advanced at bar and have carefully gone through the

impugned judgments and the material placed on record.

16. The core issues presented for adjudication before this Court

in these appeals are: -

(1) Whether the advertisement dated 29

th July, 2010 issued

by respondent No. 4 and appointment process carried out

in pursuance thereof, was valid in the eyes of law?

17

First impugned order.

Civil Appeal No(s). 13950-13951 of 2024

12

(2) Whether the direction issued by the High Court vide order

dated 12

th September, 2018 was justified considering the

fact that the candidates earlier appointed to the subject

posts were neither impleaded as party nor were heard

before the issuance of a direction that adversely affected

their service?

Discussion and Analysis: -

Issue No. 1: Whether the advertisement dated 29

th

July, 2010

by respondent No. 4 and appointment process carried out in

pursuance thereof was valid in the eyes of law?

17. To adjudge the validity of the recruitment process and the

appointments made thereunder for the subject posts, we deem it

fit to consider the terms and conditions of the advertisement dated

29

th July, 2010, issued by respondent No. 4 on the touchstone of

the precedents of this Court so as to find out whether the same

was in conformity with law or not.

18. A three-Judge Bench of this Court in Renu v. District and

Sessions Judge, Tis Hazari Courts, Delhi,

18 discussed in detail

the requirements of a valid advertisement and observed thus:-

18

(2014) 14 SCC 50.

Civil Appeal No(s). 13950-13951 of 2024

13

“16. Another important requirement of public appointment is that

of transparency. Therefore, the advertisement must specify the

number of posts available for selection and recruitment. The

qualifications and other eligibility criteria for such posts

should be explicitly provided and the schedule of recruitment

process should be published with certainty and clarity. The

advertisement should also specify the rules under which the

selection is to be made and in absence of the rules, the

procedure under which the selection is likely to be undertaken.

This is necessary to prevent arbitrariness and to avoid change

of criteria of selection after the selection process is

commenced, thereby unjustly benefiting someone at the cost

of others.”

(emphasis supplied)

19. Thus, the advertisements which fail to mention the number

of posts available for selection are invalid and illegal due to lack of

transparency. This Court further expounded in Renu(supra) that

any appointment in violation of the mandate of Articles 14 and 16

of the Constitution of India is not only irregular but also illegal and

cannot be sustained. It is a trite law that a valid advertisement

inviting applications for public employment must include the total

number of seats, the ratio of reserved and unreserved seats,

minimum qualification for the posts and procedural clarity with

respect to the type and manner of selection stages, i.e., written,

oral examination and interviews.

20. Further, the position of law is settled that though there is no

fundamental right to claim reservation as Articles 16(4) and (4-A)

of the Constitution of India are in the nature of enabling provisions

only and do not mandate the State or its instrumentalities to

Civil Appeal No(s). 13950-13951 of 2024

14

provide reservation in every selection process but inspite thereof,

the State’s decision to not provide reservation has to be based on

some quantifiable data and valid reasoning.

21. Reference in this regard may be made to this Court’s decision

in Mukesh Kumar v. State of Uttarakhand ,

19 wherein, it was

held that:-

“12. Articles 16(4) and 16(4-A) do not confer fundamental

right to claim reservations in promotion [Ajit Singh

(2) v. State of Punjab, (1999) 7 SCC 209]. By relying upon

earlier judgments of this Court, it was held in Ajit Singh

(2) [Ajit Singh (2) v. State of Punjab, (1999) 7 SCC 209] that

Articles 16(4) and 16(4-A) are in the nature of enabling

provisions, vesting a discretion on the State Government

to consider providing reservations, if the circumstances so

warrant. It is settled law that the State Government cannot

be directed to provide reservations for appointment in

public posts [C.A. Rajendran v. Union of India, AIR 1968 SC

507]. Similarly, the State is not bound to make reservation for

Scheduled Castes and Scheduled Tribes in matters of

promotions. However, if they wish to exercise their discretion

and make such provision, the State has to collect quantifiable

data showing inadequacy of representation of that class in

public services. If the decision of the State Government to

provide reservations in promotion is challenged, the State

concerned shall have to place before the Court the requisite

quantifiable data and satisfy the Court that such reservations

became necessary on account of inadequacy of representation

of Scheduled Castes and Scheduled Tribes in a particular class

or classes of posts without affecting general efficiency of

administration as mandated by Article 335 of the Constitution.

[M. Nagaraj v. Union of India, (2006) 8 SCC 212]

13. Articles 16(4) and 16(4-A) empower the State to make

reservation in matters of appointment and promotion in favour

of the Scheduled Castes and Scheduled Tribes “if in the opinion

of the State they are not adequately represented in the services

of the State”. It is for the State Government to decide

whether reservations are required in the matter of

appointment and promotions to public posts. The language

19

(2020) 3 SCC 1.

Civil Appeal No(s). 13950-13951 of 2024

15

in clauses (4) and (4-A) of Article 16 is clear, according to

which, the inadequacy of representation is a matter within

the subjective satisfaction of the State. The State can form

its own opinion on the basis of the material it has in its

possession already or it may gather such material through

a Commission/ Committee, person or authority. All that is

required is that there must be some material on the basis

of which the opinion is formed. The Court should show due

deference to the opinion of the State which does not, however,

mean that the opinion formed is beyond judicial scrutiny

altogether. The scope and reach of judicial scrutiny in matters

within the subjective satisfaction of the executive are

extensively stated in Barium Chemicals Ltd. v. Company Law

Board [Barium Chemicals Ltd. v. Company Law Board , AIR

1967 SC 295], which need not be reiterated. [ Indra

Sawhney v. Union of India, 1992 Supp (3) SCC 217]”

(emphasis supplied)

22. Thus, it is imperative that the State must specifically mention

in the advertisement the total number of reserved and unreserved

seats. However, if the State does not intend to provide reservation,

in view of the quantifiable data indicating adequacy of

representation, this aspect must also be specifically mentioned in

the advertisement.

23. In the present case, the advertisement dated 29

th July, 2010,

issued by respondent No. 4 is completely silent on the aspect of

total number of posts and the number of reserved quota and

general quota posts. We are of the view that if the State chooses

not to provide reservation, that decision must also be conveyed

through the advertisement along with the afore-mentioned lists of

inclusions. This Court in the case of State of Karnataka v.

Civil Appeal No(s). 13950-13951 of 2024

16

Umadevi,

20 observed that any appointment made in violation of

the statutory rules as well as the mandate of Articles 14 and 16 of

the Constitution would be a nullity in law.

24. In the wake of the afore-mentioned judicial precedents, we

are of the view that the entire recruitment process initiated for the

subject posts, in furtherance of the advertisement dated 29

th July,

2010, is in violation of both the legal precedents and settled law.

Therefore, we hold that the advertisement dated 29

th July, 2010,

issued by respondent No. 4 was not a valid advertisement inviting

applications for public employment and is thus, a nullity in law.

Issue No. 2: Whether the direction issued by the High Court

vide order dated 12

th

September, 2018, was justified

considering the fact that the candidates earlier appointed to

the subject posts were neither impleaded as party nor were

heard before the issuance of a direction that adversely

affected their service?

25. Before answering this issue, we deem it fit to discuss the

background of this case. The respondent-State had issued the

advertisement dated 29

th July, 2010, in complete disregard to the

20

(2006) 4 SCC 1.

Civil Appeal No(s). 13950-13951 of 2024

17

precedents of this Court as well as in sheer contravention of the

mandate of Articles 14 and 16 of the Constitution of India as

discussed in the first issue. In pursuance of this advertisement,

the respondent-State has carried out the entire recruitment

process. The limited ground of challenge in the legal proceedings

from which the first impugned order emanates was that the

petitioners therein had pleaded foul-play on the part of the

respondent-State, and contended that the rules of the game had

been changed by respondent-State by awarding marks to some

candidates in the interview round. The High Court in this regard

was justified in ordering preparation of a fresh panel of selected

candidates on the basis of the marks secured in the written

examination, conducted on 5

th November, 2017. This decision has

been upheld by the Division Bench in the first impugned order

dated 7

th November, 2019 which has now attained finality as no

further challenge thereto was laid by either the respondent-State

or the appellant-employee at that time.

26. Subsequently, the respondent-State prepared fresh panel of

selected candidates. However, the name of the appellant-employee

was not included in the fresh panel, for being lower in merit and

his services were terminated by order dated 7

th December, 2020. It

Civil Appeal No(s). 13950-13951 of 2024

18

is then that fresh writ petitions

21 came to be preferred by the

appellant-employee and other similarly situated candidates laying

challenge to order whereby their services were terminated. In our

view, the appellant-employee was precluded from invoking the

jurisdiction of the learned Single Judge who could not have

interfered with the decision which had attained finality after being

upheld by the Division Bench in the first impugned order. Until

and unless, a review petition was filed against the first impugned

order, it provided finality with respect to the present

advertisement.

27. Hence, the learned Single Judge rightly dismissed the writ

petitions filed by the appellant-employee and other similarly

situated candidates against their termination order. No error

whatsoever was committed by the learned Division Bench in

dismissing the appeal as it had clearly stated that the appellants

therein failed to lay challenge to the decision of the Coordinate

Bench in the first impugned order dated 7

th November, 2019. The

Division Bench in a fresh round of litigation could not have

21

Supra note 5.

Civil Appeal No(s). 13950-13951 of 2024

19

reviewed the orders passed by a Coordinate Bench in relation to

the same controversy.

28. It is before this Court, for the first time, that the appellant-

employee has laid challenge to the first impugned order dated 7

th

November, 2019, thus, the only controversy that demands our

attention is whether the Division Bench was correct in directing

the respondent-State to prepare fresh panel of selected candidates

without giving an opportunity of hearing to the candidates who

were likely to get affected by such direction.

29. The position of law is crystallized on the aspect of compliance

with the principles of natural justice in both administrative

spheres as well as judicial decisions. It is trite law that the

principles of natural justice cannot be applied in any straitjacket

formula and it is imperative to understand that there are certain

exceptions to their applicability. Reference in this regard may be

made to the decision of this Court in Dharampal Satyapal Ltd.

v. CCE,

22

wherein it was held thus: -

“38. But that is not the end of the matter. While the law on

the principle of audi alteram partem has progressed in

the manner mentioned above, at the same time, the courts

have also repeatedly remarked that the principles of

natural justice are very flexible principles. They cannot be

applied in any straitjacket formula. It all depends upon the

22

(2015) 8 SCC 519.

Civil Appeal No(s). 13950-13951 of 2024

20

kind of functions performed and to the extent to which a

person is likely to be affected. For this reason, certain

exceptions to the aforesaid principles have been invoked

under certain circumstances. For example, the courts have

held that it would be sufficient to allow a person to make

a representation and oral hearing may not be necessary in

all cases, though in some matters, depending upon the

nature of the case, not only full-fledged oral hearing but

even cross-examination of witnesses is treated as a

necessary concomitant of the principles of natural justice.

Likewise, in service matters relating to major punishment by

way of disciplinary action, the requirement is very strict and

full-fledged opportunity is envisaged under the statutory rules

as well. On the other hand, in those cases where there is an

admission of charge, even when no such formal inquiry is held,

the punishment based on such admission is upheld. It is for

this reason, in certain circumstances, even post-decisional

hearing is held to be permissible. Further, the courts have

held that under certain circumstances principles of

natural justice may even be excluded by reason of diverse

factors like time, place, the apprehended danger and so on.

…

40. In this behalf, we need to notice one other exception which

has been carved out to the aforesaid principle by the courts.

Even if it is found by the court that there is a violation of

principles of natural justice, the courts have held that it

may not be necessary to strike down the action and refer

the matter back to the authorities to take fresh decision

after complying with the procedural requirement in those

cases where non-grant of hearing has not caused any

prejudice to the person against whom the action is taken.

Therefore, every violation of a facet of natural justice may

not lead to the conclusion that the order passed is always

null and void. The validity of the order has to be decided on

the touchstone of “prejudice”. The ultimate test is always the

same viz. the test of prejudice or the test of fair hearing.”

(emphasis supplied)

30. In the present case, the Division Bench in the first impugned

order dated 7

th November, 2019, had confirmed the directions

passed by the learned Single Judge to the respondent-State to

prepare a fresh panel of selected candidates without affording any

Civil Appeal No(s). 13950-13951 of 2024

21

opportunity of hearing to the candidates, who were earlier declared

successful by the respondent-State and were holding the subject

posts. Subsequently, the respondent-State relieved the appellant-

employee and other candidates selected de hors the rules and

terminated their services vide order dated 7

th December, 2020.

31. In our view, since the very selection and appointment of the

appellant-employee was a nullity in the eyes of law, the learned

Single Judge committed no error in directing the respondent-State

to prepare fresh panel of selected candidates without hearing the

candidates who were likely to get affected. In this regard, we are

benefitted by the decision of this Court in Union of India v.

Raghuwar Pal Singh,

23 wherein, it was held that when the

appointment of the candidates is a nullity in law making them

disentitled to hold the posts, the principles of natural justice were

not required to be complied with, particularly when the same

would be nothing short of an exercise in futility. The relevant

portion is extracted hereinbelow: -

“20. For taking this contention forward, we may assume, for

the time being, that the then Director Incharge H.S. Rathore,

Agriculture Officer had the authority to issue a letter of

appointment. Nevertheless, he could do so only upon obtaining

prior written approval of the competent authority. No case has

been made out in the original application that due approval was

23

(2018) 15 SCC 463.

Civil Appeal No(s). 13950-13951 of 2024

22

granted by the competent authority before issuance of the letter

of appointment to the respondent. Thus, it is indisputable that

no prior approval of the competent authority was given for the

appointment of the respondent. In such a case, the next

logical issue that arises for consideration is : whether the

appointment letter issued to the respondent, would be a

case of nullity or a mere irregularity? If it is a case of

nullity, affording opportunity to the incumbent would be a

mere formality and non -grant of opportunity may not

vitiate the final decision of termination of his services. The

Tribunal has rightly held that in absence of prior approval of

the competent authority, the Director Incharge could not have

hastened issuance of the appointment letter. The act of

commission and omission of the then Director Incharge would,

therefore, suffer from the vice of lack of authority and nullity in

law.

…

23. In State of Manipur [State of Manipur v. Y. Token Singh,

(2007) 5 SCC 65 : (2007) 2 SCC (L&S) 107] , the appointment

letters were cancelled on the ground that the same were issued

without the knowledge of the department of the State. The

Court after adverting to the reported decisions concluded

that the candidates were not entitled to hold the posts and

in a case of such nature, principles of natural justice were

not required to be complied with, particularly when the

same would result in futility. …”

(emphasis supplied)

32. Hence, in view of the above principle and the factual scenario

in the case at hand, it is clear that if the subject appointments

were ab-initio nullity in the eyes of law, it was not incumbent on

the learned Single Judge to pass the order after hearing all the

parties that were likely to be affected by such decision, i.e., the

candidates who were already appointed on the subject posts

including the appellant-employee.

Civil Appeal No(s). 13950-13951 of 2024

23

33. Therefore, we are of the view that the learned Single Judge

did not commit any error while issuing a direction vide order dated

12

th September, 2018, for preparation of fresh panel of selected

candidates in consonance with the statutory rules and procedure

prescribed in the advertisement as it is clearly discernible from our

discussion in the first issue that the recruitment process was void

ab-initio and ultra vires the Constitution of India. Therefore, there

was no need to comply with the principles of natural justice as that

would be nothing, but an exercise in futility and the appellant-

employee thus, cannot be allowed to claim prejudice from the fact

that he was neither impleaded nor heard before the issuance of a

direction affecting his service.

34. With respect to the power of cancellation of the entire

selection process, this Court in M.P. State Coop. Bank Ltd. v.

Nanuram Yadav,

24 held thus:-

“24. It is clear that in the matter of public appointments, the

following principles are to be followed:

(1) The appointments made without following the appropriate

procedure under the rules/government circulars and without

advertisement or inviting applications from the open market

would amount to breach of Articles 14 and 16 of the

Constitution of India.

(2) Regularisation cannot be a mode of appointment.

24

(2007) 8 SCC 264.

Civil Appeal No(s). 13950-13951 of 2024

24

(3) An appointment made in violation of the mandatory

provisions of the statute and in particular, ignoring the

minimum educational qualification and other essential

qualification would be wholly illegal. Such illegality cannot be

cured by taking recourse to regularisation.

(4) Those who come by back door should go through that door.

(5) No regularisation is permissible in exercise of the statutory

power conferred under Article 162 of the Constitution of India

if the appointments have been made in contravention of the

statutory rules.

(6) The court should not exercise its jurisdiction on

misplaced sympathy.

(7) If the mischief played is so widespread and all pervasive,

affecting the result, so as to make it difficult to pick out

the persons who have been unlawfully benefited or

wrongfully deprived of their selection, it will neither be

possible nor necessary to i ssue individual show-cause

notice to each selectee. The only way out would be to

cancel the whole selection.

(8) When the entire selection is stinking, conceived in fraud

and delivered in deceit, individual innocence has no place

and the entire selection has to be set aside.”

(emphasis supplied)

35. Thus, it is clear that once the appointment process is

declared to be a nullity in law, every action taken in furtherance of

such appointment process is also illegal, and, therefore, the

constitutional courts have jurisdiction to set aside such

appointments wholly and ab-initio. This power of the Court is not

curtailed even in a situation where a third-party right has been

created in those who have been offered appointment or have even

joined the service.

Civil Appeal No(s). 13950-13951 of 2024

25

36. This Court in State of U.P. v. U.P. State Law Officers’

Assn.,

25 while dealing with the back-door entries in public

appointment observed as under: -

“19. … The appointments may, therefore, be made on

considerations other than merit and there exists no provision to

prevent such appointments. The method of appointment is indeed

not calculated to ensure that the meritorious alone will always be

appointed or that the appointments made will not be on

considerations other than merit. In the absence of guidelines,

the appointments may be made purely on personal or political

considerations, and be arbitrary. This being so those who

come to be appointed by such arbitrary procedure can hardly

complain if the termination of their appointment is equally

arbitrary. Those who come by the back door have to go by the

same door. This is more so when the order of appointment itself

stipulates that the appointment is terminable at any time without

assigning any reason. Such appointments are made, accepted and

understood by both sides to be purely professional engagements

till they last. The fact that they are made by public bodies cannot

vest them with additional sanctity. Every appointment made to a

public office, howsoever made, is not necessarily vested with

public sanctity. There is, therefore, no public interest involved in

saving all appointments irrespective of their mode. From the

inception some engagements and contracts may be the product of

the operation of the spoils system. There need be no legal anxiety

to save them.”

(emphasis supplied)

37. It is, therefore, clear that a beneficiary of a back-door

procedure cannot claim proper treatment as per law when they

come at the receiving end.

38. In the present case, the appellant-employee, who had been

appointed under the advertisement dated 29

th July, 2010, does not

have any right on the subject posts once it is concluded that the

25

(1994) 2 SCC 204.

Civil Appeal No(s). 13950-13951 of 2024

26

advertisement is itself void and is declared illegal and

unconstitutional. The candidates’ right to continue on such posts

is contingent upon the legality of the advertisement and the

recruitment process conducted in pursuance thereof.

39. At this juncture, before parting, we deem it fit to note that

public employment is a duty entrusted by the Constitution of India

with the State. Therefore, it becomes imperative that the rigours of

Articles 14 and 16 are not ignored by the State in relation to the

matter concerning public employment. Arbitrariness in public

employment goes to the very root of the fundamental right to

equality. While no person can claim a fundamental right to

appointment, it does not mean that the State can be allowed to act

in an arbitrary or capricious manner. The State is accountable to

the public at large as well as the Constitution of India, which

guarantees equal and fair treatment to each person. Public

employment process thus, must always be fair, transparent,

impartial and within the bounds of the Constitution of India. Every

citizen has a fundamental right to be treated fairly and impartially,

which is an appendage of right to equality under Article 14 of the

Constitution of India. A violation of this guarantee is liable to

judicial scrutiny as well as criticism.

Civil Appeal No(s). 13950-13951 of 2024

27

Conclusion: -

40. In view of the peculiar facts of this case and discussion made

hereinabove, we do not deem it fit to delve into the observations

made in the impugned judgments as the subject matter dealt

therein is different. The question with respect to the illegality of the

recruitment process was not raised in any of the proceedings

before the Courts below. On the other hand, it was here, for the

first time, before this Court, that the appellant-employee have laid

challenge to the first impugned order.

41. Resultantly, the appeals stand disposed of with the following

directions: -

i. The advertisement dated 29

th July, 2010, issued by

respondent No. 4 and all the consequential proceedings

conducted in pursuance thereof are hereby quashed for

being violative of Articles 14 and 16 and judicial

precedents of this Court.

ii. All the appointments made in furtherance of the direction

of the High Court dated 12

th September, 2018, with respect

to the subject posts are quashed.

iii. The respondent-State shall issue a fresh advertisement,

compliant with the constitutional mandate and in

Civil Appeal No(s). 13950-13951 of 2024

28

accordance with the extant Rules and the observations

made hereinabove. Thereafter, the recruitment process

shall be re-conducted in accordance with law for the

subject posts.

iv. In the interest of justice, we direct that the fresh

notification shall be issued in terms of our direction(supra)

within six months from today and will specifically provide

suitable age relaxation in order to accommodate all such

aspirants, who would have in the supervening period and

during the pendency of the present litigation crossed the

age limit for selection on the subject posts.

42. Parties are directed to bear their own costs.

43. Pending application(s), if any, shall stand disposed of.

CIVIL APPEALS NO(S). 13952 OF 2024

CIVIL APPEALS NO(S). 13953 OF 2024

CIVIL APPEALS NO(S). 13954 OF 2024

CIVIL APPEALS NO(S). 13955 OF 2024

44. In these appeals, the appellants have laid challenge only to

the second impugned order of the High Court dated 24

th

November, 2022. As we have quashed the advertisement dated

29

th July, 2010 and the consequential selection process thereto in

Civil Appeal No(s). 13950-13951 of 2024, the question involved in

Civil Appeal No(s). 13950-13951 of 2024

29

these appeals has become academic and therefore, does not merit

our interference.

45. The appeals are accordingly dismissed. No costs.

46. Pending application(s), if any, shall stand disposed of.

…..…………………… J.

(PANKAJ MITHAL)

……………………….. J.

(SANDEEP MEHTA)

New Delhi;

February 10, 2025.