Appointments can't be made over and above clear, anticipated vacancies: SC

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Court said that it was nobody’s case that the appellants had been appointed by way of favouritism, nepotism or due to any act which could even remotely be called as “blameworthy”, and finally, they had now been working as judges for ten years, hence there was a special equity which leaned in their favour

The Supreme Court has said that once clear and anticipated vacancies have been advertised, appointments can only be made on these vacancies, as it upheld the Himachal Pradesh High Court's decision finding anomaly in two appointments made as civil judge (junior division) for future 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," a bench of Justices C T Ravikumar and Sudhanshu Dhulia explained.

The court upheld the findings of the high court on law as to the flaw in the process of selection, which followed post October 8, 2013, after declaration of results for the post of Civil Judge (Junior Division) for the year 2013.

However, it protected the two additional appointments made in view of the persons who completed 10 years in service and got promoted as well.

As per the facts of the case, after the final results, two names from the general category, Vivek Kaisth and Akansha Dogra, appellants before the top court, who were next in the order of merit, were made available for the select list. Appointment letters were issued to the appellants on December 27, 2013 and they were appointed as Civil Judges (Jr Division) under the general category.

Having gone through facts, the law, and relevant SC judgments, including on Malik Mazhar Sultan, the bench said, "We are of the considered view that there has been a violation of the process in making selection/appointment of the appellants, in as much as the vacancies on which the appellants were appointed were never advertised, and strictly speaking these vacancies cannot be termed as 'anticipated vacancies' for the simple reason that these vacancies were only created on 18.04.2013 i.e. after the selection process had begun and advertisement was issued on 01.02.2013."

The bench rejected the claim of the high court that these appointments were not made in consultation with it. 

"This, however, does not reflect the correct position, to say the least. 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," the bench said.

It also pointed out the three-member selection committee included the high court's representatives who never made any objection to additional appointments.

"After these appointments were made, it was the High Court which posted these officers in different districts in the State under Article 235 of the Constitution of India. It then trained them as Judicial Officers. Not one note, letter, or an objection of any kind has been placed before us which can give even the slightest hint that the High Court, at any point of time, had objected to these appointments!" the bench said.

Observing that a Judge is a Judge of facts, as much as he is a Judge of law, the bench said that the position of law had been correctly followed by the Himachal Pradesh High Court.

However, "What the High Court missed was the context, the facts, and the circumstances of the case," the bench said. 

The court further said that "what is also important for consideration at this stage is that the appellants in the present case have been working as Judicial Officers now for nearly 10 years. They are now Civil Judges (Senior Division). These judicial officers now have a rich experience of 10 years of judicial service behind them". 

"Therefore, unseating the present appellants from their posts would not be in public interest," the bench said.

"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 bench added.

In order to do complete justice and in exercise of powers under Article 142 of the Constitution, the bench set aside the order of the High Court as far as it quashed the selection and appointment of the appellants.

Case Title: Vivek Kaisth & And Vs The State of Himachal Pradesh & Ors