2023INSC842

C.A. No. 10861 OF 2013

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 10861 OF 2013

SUDESH KUMAR GOYAL …APPELLANT

VERSUS

THE STATE OF HARYANA & ORS. …RESPONDENTS

J U D G M E N T

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.

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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

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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 14

th position in the merit list, was not

appointed.

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

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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 14

th 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

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defeated by adopting an arbitrary approach. The respondents

have acted purely in an arbitrary manner in keeping the 14

th

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 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 an y

discordant note in the decisions in State of

Haryana v. Subhash Chander Marwaha,

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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 14

th 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

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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 was

taken to add these 4 general category vacancies to the already

advertised vacancies, thus making the number of general

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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

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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

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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 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

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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 indefeasibl e right to be

appointed because he qualified in the selection process.

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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 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

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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.

……………………….. J.

(HRISHIKESH ROY )

……………………….. J.

(PANKAJ MITHAL)

NEW DELHI;

SEPTEMBER 21, 2023.