When Selected Candidate Joins And Then Resigns, Vacancy Must Be Filled By A Fresh Selection Process & Not From Previous Merit List: Supreme Court

The Supreme Court on Thursday (21.09.2023) held that an applicant who has qualified in the selection process cannot be selected against a vacancy caused by resignation of one of the selected candidates. The Apex Court observed that, a fresh vacancy arises when a selected candidate joins and then resigns and the same cannot be filled up without following a fresh selection process. .

A division bench of Justice Hrishikesh Roy and Justice Pankaj Mithal also observed that an applicant does not acquire any indefeasible right to be appointed just because he/she has qualified in the selection process. 

The appellant in this case, had applied for direct recruitment from the bar to the Haryana Superior Judicial Service based on a 2007 notification of the Punjab & Haryana High Court. 14 general category posts for direct recruitment were advertised.

The grievance of the Appellant was that despite successfully qualifying the written test and the interview and falling within the first 14 general category candidates, he was not appointed. However, the first 13 candidates were given appointment in order of merit.

The Appellant argued that even though by selection alone the appellant has not acquired any indefeasible right to be appointed, his right for appointment cannot be defeated in an arbitrary manner.

The Respondents contended that they did not act arbitrarily by denying appointment to the Appellant. It was explained by the Respondent that initially 14 general category vacancies were advertised in the direct quota out of which 5 seats were filled up by absorption of Fast Track Court judges in terms of the directions in the Brij Mohan Lal (2) v. Union of India (2012) 6 SCC 502 and Brij Mohan Lal (1) v. Union of India (2002) 2 SCC 1. Meanwhile, 20 fresh vacancies arose, out of which 5 (4 general category and 1 scheduled caste category) were to be filled up by direct recruitment from the Bar. Hence only 13 candidates could be appointed.

In Brij Mohan Lal (1) (supra) certain directions were issued for implementation of the Fast Track Court scheme of the Central Government. Under this scheme, State Governments were required to set up Fast Track Courts for disposal of long pending cases. Brij Mohan Lal (2) (supra) issued further directions in relation to the Scheme.

The Apex Court held that the reasoning given by the Respondents shows that they did not act arbitrarily and hence refused to interfere with the decision of the High Court:

“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.”

The Appellant also argued that since out of the 13 candidates appointed, one of them had resigned after joining, his appointment could have been adjusted against the said vacancy. However, the Apex Court did not find any merit in this argument and observed: 

“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.”

While dismissing the appeal the Court also observed that the selection procedure was initiated in 2007 and 16 years have passed by 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.” The Court observed.

Adv. Rakesh Dahiya appeared for the appellant, Sr. Adv. Raju Ramachandran appeared for the respondents. Adv. Monika Gusain appeared for the State of Haryana.

Case Title: Sudesh Kumar Goyal V. The State of Haryana & Ors., Civil Appeal No. 10861 of 2013

Citation: 2023 LiveLaw (SC) 812; 2023INSC842

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