'Appointments Only On Advertised Vacancies' : Supreme Court Holds 2 Judges To Be Wrongly Appointed; Refuses To Unseat Them Noting 10 Yrs Service

The Supreme Court recently held the procedure adopted by the Himachal Pradesh Public Service Commission and the High Court in the selection of Civil Judge (Junior Divisions) in 2013 to be wrong and consequently, the appointments of two judicial officers were found to be irregular. At the same time, the Court refused to unseat the two officers, considering the fact that they have rendered over ten years service and that there was no fault on their part in the irregularities.

A bench comprising Justices CT Ravikumar and Sudhansdhu Dhulia was hearing the appeals filed against a 2021 judgment of the Himachal Pradesh High Court which set aside the appointments of the two appellants as Civil Judge (Junior Division). The High Court, on its judicial side, found that the appointment of the appellants to be illegal as they were made over and above the advertised vacancies. Although the Supreme Court agreed with the High Court on the point of law, it found the High Court to have erred in quashing the appointments.

Firstly, the Supreme Court noted that the appellants had been serving as judicial officers for ten years and unseating them now will not be in the public interest.

"We also cannot fail to consider that the appellants were appointed from the list of candidates who had successfully passed the written examination and viva voce and they were in the merit list.

Secondly, it is nobody’s case that the appellants have been appointed by way of favouritism, nepotism or due to any act which can even remotely be called as “blameworthy”. Finally, they have now been working as judges for ten years. There is hence a special equity which leans in favour of the appellants", the Supreme Court said.

In this regard, the Court placed reliance on the recent Constitution Bench judgment in Sivanandan CT and others vs High Court of Kerala 2023 LiveLaw (SC) 658 where the Supreme Court refused to unseat certain District Judges in Kerala, despite finding their appointments to be illegal, in view of the fact that they have been rendering service for six years.

Background

The issue related to the appointment process advertised in February 2013. Eight vacancies were advertised by the HPPSC. However, later, it was decided that more anticipated vacancies ought to have been advertised. This was based on a 2011 judgment of the High Court in Shweta Dhingra v. State of HP that 2/3rd of the actual vacancies should be advertised as additional vacancies. Thus, the appellants were also picked up, though they were not figuring in the first merit list of eight candidates.

The Supreme Court held that the appointments in excess of the advertised vacancies are illegal. After referring to various precedents, the Court observed :

"The common thread that runs in all the above judgments is that appointments cannot be made over and above the vacancies which were advertised i.e., clear and anticipated vacancies, even though the Public Service Commission may have prepared a longer merit list than it was required to do."

The judgment authored by Justice Dhulia summed up the position of law as follows :

"To sum up the position of law as it stands, once clear and anticipated vacancies have been advertised, appointments can only be made on these vacancies. Vacancies which could not be anticipated before the date of advertisement, or the vacancies which did not exist at the time of advertisement, are the vacancies for the future i.e., next selection process."

The vacancies on which the appellants were appointed were not advertised on the date of notification, February 1, 2013. These two vacancies were in fact, created on 18.03.2013 i.e., after the notification of vacancies on 01.02.2013.

The Court also found the High Court's judgment in Shweta Dingra to be in conflict with the directions issued by the Supreme Court in Malik Mazhar Sultan case.

On 24.03.2009, the Supreme Court clarified in Malik Mazhar Sultan that the "High Courts/PSCs shall notify the existing number of vacancies plus the anticipated vacancies for the next one year."

Therefore, the directions given by the Division Bench of the Himachal Pradesh High Court in Shweta Dhingra (supra) were not necessary, the Court said.

"If at all it was necessary such an exercise should have been undertaken before the vacancies were advertised on 01.02.2013," it added.

Even while endorsing the High Court's judgment on the point of law, the Supreme Court observed that the High Court should not have unseated the candidates.

"What the High Court never answered was as to how much of this blame of “illegal” selection and appointment would rest on the High Court (on its administrative side). Undoubtedly, with all intentions of timely filling of the vacancies, the High Court still cannot escape the blame. From the very initiation of adding future vacancies after the select list was published, the High Court has been privy to the selection/appointment process....The High Court has placed the entire blame on the post selection exercise undertaken by the State Commission. This is not the correct position, though undoubtedly the Commission as the selecting authority must ultimately bear the brunt, yet the blame must be shared equally by the State Government and the High Court"

Case Title : Vivek Kaisth and another v. The State of Himachal Pradesh and others

Citation : 2023 LiveLaw (SC) 997

Click here to read the judgment