Judicial Service | Vacancy Arising Due To Elevation Of Judge Not Anticipated Vacancy : Supreme Court

The factual matrix of the case was such that the High Court of Himachal Pradesh had invited applications from eligible Senior Civil Judges having a minimum service of five years in the said cadre for promotion and appointment as Additional District & Sessions Judges. This was the basis of one anticipated vacancy, which was likely to occur within one year due to retirement.

Since the petitioner secured the second rank, he was not appointed. Subsequently, the petitioner made a representation to the High Court for consideration of his candidature for promotion and appointment as an Additional District Judge. The representation was made for a vacancy which had arisen on 30.7.2023 on account of elevation of Sh. Rakesh Kainthla, District & Sessions Judge as a Judge of the High Court. However, the same came to be rejected. Against this, the petitioner approached the High Court.

The High Court noted that in Malik Mazhar Sultan's case (2007), as per the Top Court's directions, one of the categories was "future vacancies that may arise due to elevation to the High Court, death or otherwise, say 10% of the number of posts".

However, following this, in Malik Mazhar Sultan's case (2009) the Top Court directed that in future the High Courts/Public Service Commissions shall notify the existing number of vacancies plus the anticipated vacancies for the next one year.

“Thus, by virtue of the direction of the Supreme Court, vacancies that would arise due to elevation or death stood excluded from the vacancies which had to be notified by the High Courts.,” the High Court said.

In this background, the matter was brought before the Top Court. During today's proceedings, Justice Misra said that elevation can never be anticipated. Thus, it would not amount to anticipated vacancy.

"The issue here is that the vacancy has arisen on account of the elevation of Rakesh Kainthla. Now, elevation can never be anticipated...it is not an anticipated vacancy."

However, Senior Advocate P.S. Patwalia, appearing for the petitioner, submitted that the vacancy is a future one and not anticipated. At this, Justice Misra posed “How can the High Court assume future vacancy on likely elevations?” He further explained that future vacancies can only be assumed on the basis of the tenure of service. It is only when the vacancy arises on account of taking oath that the vacancy can be anticipated., he added.

At this stage Patwalia referred to the reasoning of the High Court and categorically objected to the interpretation reached by the High Court, terming the same as erroneous. They have not diluted future (vacancy) at all in this order (Malik Mazhar Sultan (2)), he said.

However, the Court refused to accept his argument and said that this did not amount to a misreading of the Supreme Court's order. It reiterated that it is not a vacancy that can be anticipated and expressed its inclination not to interfere with the impugned order.

“The law related to wait-listed candidate is that if someone from the select list is unable to join then you get the offered appointment against the vacancies for which recruitment has been held. Now, there was no recruitment for this vacancy and there could be none because this is not anticipated vacancy…,the Court said while dismissing the instant SLP.

Case Title: NITIN MITTAL Versus STATE OF HIMACHAL PRADESH AND ANR., SLP(C) No. 13333/2024