Supreme Court of India

VIVEK KAISTH & ANRversusTHE STATE OF HIMACHAL PRADESH & ORS

Citation: 2023 INSC 1007
Decided: 20 November 2023
Disposal: Disposed off
Bench: C T RAVIKUMAR

Holding

Appointments made to vacancies that were not advertised at the time of recruitment are invalid, but the Supreme Court may set aside such a finding in the interest of public justice under Article 142.

Summary

The Himachal Pradesh Public Service Commission advertised eight vacancies for Civil Judge (Junior Division) in 2013, but later added two names, including Vivek Kaist[h] and Akansha Dogra, to the select list via a government notification. The High Court held that these appointments were illegal because the added vacancies were not advertised and quashed them. The Supreme Court affirmed that appointments can only be made to advertised clear‑cut or anticipated vacancies and that the two posts were future vacancies created after the advertisement, rendering the selection unlawful. However, noting that the appellants have served for nearly ten years, have been promoted, and there is no evidence of favouritism, the Court exercised its power under Article 142 to set aside the High Court’s order quashing the appointments in the interest of public justice. Consequently, the appeals were allowed and the appointments were upheld, while other related appeals were dismissed.

Issues considered

The legality of appointing candidates to vacancies that were not advertised at the time of recruitment
Whether appointments made to future vacancies created after the advertisement can be validated
The applicability of the principles laid down in Malik Mazhar Sultan and subsequent cases to the present selection process
Whether equity and public interest justify setting aside a finding of illegality under Article 142

Legislation cited

Constitution of Indias. Article 14, s. Article 142, s. Article 16, s. Article 235
Himachal Pradesh Judicial Service Rules, 2004

Subjects

Service LawJudicial RecruitmentSelection ListAppointment ValidityArticle 142Public Service CommissionVacancy AdvertisementWaiting ListPublic InterestEquity

Judgment

[2023] 16 S.C.R. 613 : 2023 INSC 1007

CASE DETAILS

VIVEK KAISTH & ANR
v.
THE STATE OF HIMACHAL PRADESH & ORS
(Civil Appeal Nos. 6233-6234 of 2023)
NOVEMBER 20, 2023
[C.T. RAVIKUMAR AND SUDHANSHU DHULIA, JJ.]
HEADNOTES
Issue for consideration: The names of the two appellants herein were
included later in the ﬁnal selection list vide notiﬁcation dated 27.12.2013
issued by the State Government. The High Court has held these two
selections, and consequently the appointments to be illegal and these have
been quashed. This Court has to examine the validity of the selection and
appointment of these two appellants to the post of Civil Judge (Junior
Division), and whether they should now be unseated from their judicial
oﬃce.
Service Law – Recruitment – Advertisement – An advertisement
was issued on 01.02.2013 whereby the State Commission invited
applications against the eight vacancies for the post of Civil Judge
(Junior Division) in Himachal Pradesh Judicial Service – After
examination, ﬁnal list was declared – Names of the two appellants
herein were included later – High Court held these to selections illegal
– Propriety:
Held: 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 – In
the instant case, it is clear that the appointment of the appellants was made
on posts which were not advertised and in fact did not even exist at the time
when the advertisement was made – The anomaly made in the selection/
appointment of these two candidates is quite apparent – The ﬁndings of
613
614 SUPREME COURT REPORTS [2023] 16 S.C.R.

the High Court were right – However, what the High Court missed was the
context, the facts and the circumstances of the case – The two appellants
have already served as Judicial Oﬃcers for nearly 10 years – Meanwhile,
they have also been promoted to the next higher post of Civil Judge (Senior
Division) – In this process of their selection and appointment, nothing
was brought to notice of this Court which may suggest any favouritism,
nepotism or so-called blame as to the conduct of these two appellants, in
securing these appointments – 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) – 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 judicial oﬃcers in question 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 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 – For
the reasons stated above, in order to do complete justice and in exercise of
powers u/Art. 142 of the Constitution of India, the order of the High Court
as far as it quashes the selection and appointment of the appellants is set
aside. [Paras 28, 29, 31,32,36,37]
LIST OF CITATIONS AND OTHER REFERENCES
Sivanandan C.T. and Ors. v. High Court of Kerala and Ors. (2023)
SCC OnLine SC 994 – relied on.
Shweta Dhingra v. State of H.P. & Ors. (2011) SCC OnLine
HP 3566; Malik Mazhar Sultan and Another v. U.P. Public Service
Commission and Others (2008) 17 SCC 703; Malik Mazhar Sultan and
Another v. Uttar Pradesh Public Service Commission and Others (2009)
17 SCC 24; High Court of Kerala v. Reshma A. and Others [2021] 1
SCR 289: (2021) 3 SCC 755; Gujarat State Dy. Executive Engineers’
Assn. v. State of Gujarat (1994) Supp 2 SCC 591; Hoshiyar Singh v.
State of Haryana (1993) Supp. 4 SCC 377; State of Bihar v. Secretariat
Asstt. Successful Examinees’ Union [1993] 3 Suppl. SCR 134:(1994) 1
SCC 126; State of Bihar v. Madan Mohan Singh (1994) Supp 3 SCC
308; Surinder Singh & Ors. v. State of Punjab & Anr. [1997] 3 Suppl.
VIVEK KAISTH & ANR v. THE STATE OF HIMACHAL 615
PRADESH & ORS

SCR 538:(1997) 8 SCC 488; Rakhi Ray & Ors. v. High Court of Delhi
& Ors. [2010] 2 SCR 239:(2010) 2 SCC 637 – referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.6233-6234
of 2023.
From the Judgment and Order dated 20.09.2021 of the High Court of
Himachal Pradesh at Shimla in CWP Nos.3319 and 4498 of 2014.
With
Civil Appeal Nos.6236, 6235 And 6237 of 20023.
Appearances:
Paramjit Singh Patwalia, Harin P. Raval, P.V. Surendranatyh, Sr. Advs.,
Amit Kumar Singh, Ms. K Enatoli Sema, Ms. Chubalemla Chang, Prang
Newmai, Biju P Raman, Gauravjit Singh Patwalia, Amit Verma, Ms. Swati
Sood, Dipanshu Krishnan, Anshuman, Ms. Damini Chawla, Vishwanathan
Iyer, Anand Sharma, Arman Sharma, Ms. Jyoti Mehra, Ms. Pooja Sharma,
Sandeep Jindal, D.K. Thakur, Rajeev Kumar Gupta, Tavleen Singh, Joginder
Mann, Ms. Niharika, Dvyansh Thakur, Bimlesh Kumar Singh, Kanwal
Chaudhary, Chitranshul A. Sinha, Ms. Radhika Gautam, Ms. Shrestha
Narayan, Ms. Shreya Bansal, Abhishek Singh Chauhan, Tushar Bakshi, Ms.
Neelam Singh, Prabhat Kumar Rai, Christopher Dsouza, Subhash Chandran
K.R., Ms. Krishna L.R., Sawan Shukla, Ms. Lekha Sudhakaran, Advs for
the appearing parties.
JUDGMENT / ORDER OF THE SUPREME COURT

JUDGMENT

SUDHANSHU DHULIA, J.
1. The appellants before this Court have challenged the Judgment dated
20.09.2021 passed by the Division Bench of the High Court of Himachal
Pradesh (in Civil Appeal Nos.6233-6234 of 2023, Vivek Kaisth and Akansha
Dogra respectively), by which the appointment of the appellants to the post
of Civil Judge (Junior Division) has been quashed. There are presently
616 SUPREME COURT REPORTS [2023] 16 S.C.R.

four appeals before us. The other three appeals are of the appellants (in
connected appeals), who were also candidates for the post of Civil Judge
(Junior Division) for the year 2013 in the State of Himachal Pradesh, and
have also challenged the selection process as well as the appointment of the
present appellants, though for diﬀerent reasons. We propose to dispose of
these appeals by a common order. All the same, when we refer to the facts
in the present case, our reference would be conﬁned to the facts as contained
in Civil Appeal No.6233 of 2023 and Civil Appeal No.6234 of 2023.
2. An advertisement was issued on 1st February, 2013 whereby the
Himachal Pradesh Public Service Commission (hereinafter referred to
as “State Commission”), invited applications from eligible candidates
against eight vacancies for the post of Civil Judge (Junior Division) in
Himachal Pradesh Judicial Service. Out of the total eight vacancies, six were
“existing vacancies” and two were “anticipated vacancies”. The preliminary
examination for these posts was held on 12.05.2013 of which the results
were declared on 15.06.2013. The candidates, who had qualiﬁed preliminary
examination participated in the main written examination which was held
between 15th July, 2013 to 18th July, 2013. Eighty candidates qualiﬁed in
the written examination and were ultimately called for the interview, which
was held on 07th and 08th October, 2013. Finally, following candidates were
selected and the list was published on the website of the Commission and
in the newspaper on 08.10.2013. It is as under:

Sr. No. Roll No. Name of the Candidate Category
Clear Cut Vacancies
1. 1025 Ms. Anshu Chaudhary General
2. 2006 Sh. Nishant Verma Sch. Caste
3. 1670 Ms. Pratibha Negi Sch. Tribe
4. 2185 Ms. Anita Sharma Sch. Tribe
5. 2172 Sh. Baljeet O.B.C.
6. 1431 Sh. Jitender Kumar O.B.C.
Anticipated Vacancies
VIVEK KAISTH & ANR v. THE STATE OF HIMACHAL 617
PRADESH & ORS [SUDHANSHU DHULIA, J.]

1. 1126 Ms. Abha Chauhan General
2. 1319 Sh. Ajay Kumar General

3. The names of the two appellants who are before this Court, did not
ﬁgure in the above list and their names were included later vide notiﬁcation
dated 27.12.2013 issued by the State Government. Himachal Pradesh High
Court has held these two selections, and consequently the appointments to
be illegal and these have been quashed. These two appellants are now before
us in challenge to the judgement of the High Court dated 20.09.2021. We
have to examine the validity of the selection and appointment of these two
appellants to the post of Civil Judge (Junior Division), and whether they
should now be unseated from their judicial oﬃce.
4. After the publication of the results for the eight vacancies on
08.10.2013, as referred above, an exercise was evidently undertaken at the
level of the State Government, where an information was sought from the
Registrar General of the Himachal Pradesh High Court as to the correct
position of existing vacancies in the state judicial service in the cadre of
Civil Judge (Junior Division). This letter dated 19.10.2013 is as under: -
“No. Home-B(B)6-4/2006-VI-6
Government of Himachal Pradesh
Department Home
From:
The Additional Chief Secretary (Home)
to the Government of Himachal Pradesh
Shimla-171001.
Dated: 19th October, 2013
Sub: Recommendation to the posts of Civil Judge (Jr. Division) in
the light of the directions dated 04.01.2007 of Hon’ble Supreme Court in
Malik Mazhar Sultan’s case.
Sir,
I am directed to refer to the subject cited above and to enclose herewith
a copy of letter Number3-50/2012-PSC(E-I) dated 11 October, 2013 received
from Secretary, HP Public Service Commission vide which select list of 08
618 SUPREME COURT REPORTS [2023] 16 S.C.R.

candidates (06 against clear cut and 02 against anticipated vacancies) for the
appointment as Civil Judge (Jr. division) has been sent to this department. Before
proceeding further in this behalf, you are requested, on the administrative side,
kindly to send category wise details of all existing vacancies in the cadre of
Civil Judge (Jr. Division) to this department at the earliest.
Yours faithfully,
Enclosures: As above
[Devinder Saraswati]
Deputy Secretary (Home) to the
Government of Himachal Pradesh
Phone No. 0177-2626450”
5. In its reply the Registrar General of the High Court of Himachal
Pradesh vide its letter dated 30.10.2013 addressed to the Additional Chief
Secretary (Home) to Government of Himachal Pradesh wrote as under: -
“……….
With reference to your letter No. Home-B(B)6/2006-VI-6-74 dated
19.10.2013, on the captioned subject, I have been directed to inform
you that the existing vacancy position in the cadre of Civil Judge
(Junior Division) is as under:-

Sr. No. Category Roster Point Number of Vacancies
1 UR 42, 29, 30, 55, 56 6
and 11
2 SC 54 1
3 ST 14 & 39 2
4 OBC 33 & 42 2
It is informed that Roster Point No. 55, 56, 11 were not included in
the requisition of the posts to be notiﬁed during 2013 by the Registry
as that post has fallen vacant on 18.04.2013 due to creation of two
new pots of Civil Judges (Jr. Division) at Solan and Amb and one post
due to discharge from service of Shri Sunish Aggarwal, Civil Judge
(Junior Division)-cum-JMIC, AMMI on 19.09.2013.”
VIVEK KAISTH & ANR v. THE STATE OF HIMACHAL 619
PRADESH & ORS [SUDHANSHU DHULIA, J.]

6. A meeting was meanwhile held at the State level on 21.10.2013
to discuss the selection of Judicial Oﬃcers in the ongoing process of 2013
and the number of vacancies on which such selection could be made. The
meeting which was held on 21.10.2013, was attended by the following
oﬃcers: -
1. Sh. A.C. Dogra, Registrar General, High Court of Himachal
Pradesh
2. Sh. Sandeep Bhatnagar, IAS, Secretary, Himachal Pradesh Public
Service Commission
3. Sh. Devinder Saraswati, Deputy Secretary (Home) to the
Government of Himachal Pradesh
7. As we can see, in the said meeting, oﬃcers nominated by the
Government of Himachal Pradesh, State Public Service Commission and
the High Court of Himachal Pradesh were present. This Committee (we
will refer to it as Committee, only for the sake of convenience), notes that
earlier only 8 candidates were included in the select list, though a few
more should have been included, considering the vacancies in view of the
directions of the Himachal Pradesh High Court in Shweta Dhingra v. State
of H.P. & Ors. (2011) SCC OnLine HP 3566. It then recommended that
Akansha Dogra and Vivek Kaisth who are in the merit list of candidates in
the general category and Meenakshi and Parvez who are in the Scheduled
Caste and Scheduled Tribe category respectively should also be included
in the select list.
8. The logic was that that recommendations have been made for only
existing and anticipated vacancies, whereas it ought to have been made for
additional posts, which would be 2/3rd of the actual and anticipated vacancies
as directed in Shweta Dhingra (supra). The minutes of the meeting dated
21.10.2013 read as under:
“The contents of judgment in CWP No. 3135/20111 were gone through
wherein it has been directed that the H.P. Public Service Commission
will publish a revised Select List of the candidates from the year 2010

1 Shweta Dhingra vs State of Himachal Pradesh [(2011) SCC OnLine HP 3566] dated
03.09.2011
620 SUPREME COURT REPORTS [2023] 16 S.C.R.

merit list by including 2/3 of the actual and anticipated vacancies. It
was further directed that the Hon’ble High Court, Govt. of H.P. and
the H.P. Public Service Commission shall jointly take up the exercise
of preparation of select list immediately after the publication of the
merit list and this exercise shall be completed within two weeks of the
publication of the merit list every year.
2. The Govt. (in the Department of Home) has sent a requisition for
ﬁlling up 08 vacancies of Civil Judge (Jr. Division) for 2013. The
category-wise break up of vacancies is as under: -
Clear Cut Vacancies: - 06 (General-01,
SC-01, ST-02 & OBC-02)
Anticipated Vacancies: - 02 (General)
3. On completion of the recruitment process of H.P. Judicial Service
Examination, 2013 for ﬁlling up of the above mentioned vacancies,
the H.P. Public Service Commission prepared the result and published
the merit list on the website of the Commission and newspapers of
08.10.2013. The H.P. Public Service Commission recommended the
following candidates to the Govt. of H.P. on the publication of the
merit list: -

Sr. No. Roll No. Name of the Candidate Category
Against Clear Cut Vacancies
1 1025 Ms. Anshu Chaudhary General
2 2006 Sh. Nishant Verma Sch. Caste
3 1678 Ms. Pratibha Negi Sch. Tribe
4 2185 Ms. Anita Sharma Sch. Tribe
5 2172 Sh. Baljeet OBC
6 1431 Sh. Jitender Kumar OBC
Against Anticipated Vacancies
1 1126 Ms. Abha Chauhan General
2 1319 Sh. Ajay Kumar General
The result of HPJS Examination, 2013 was perused by the
Committee and keeping in view of the directions of Hon’ble High
VIVEK KAISTH & ANR v. THE STATE OF HIMACHAL 621
PRADESH & ORS [SUDHANSHU DHULIA, J.]

Court of H.P. to prepare the selection list by including 2/3 of the
actual and anticipated vacancies, Ms. Akanksha Dogra, Roll No.
20969, Sh. Vivek Kaisth, Roll No. 1299 candidates of general
category, Ms. Meenakshi, Roll No. 1386 (Sch. Caste Category) and
Sh. Parvez, Roll No.1139 (Sch. Tribe Category) can be kept in the
select list as no other candidate from OBC category had qualiﬁed
the HPJS Examination – 2013. Accordingly, it was decided to
include the name(s) of Ms. Akanksha Dogra, Roll No. 2099, Sh.
Vivek Kaisth, Roll No. 1299 candidates of general category, Ms.
Meenakshi, Roll No.1386 (Sch. Caste Category) and Sh. Parvez,
roll No. 1139 (Sch. Tribe Category) candidates in the select list
and the Commission should publish the select list accordingly.”
9. In Shweta Dhingra (supra) the Division Bench of the Himachal
Pradesh High Court was dealing with the selection of Civil Judge (Junior
Division) in the State for the year 2010, and it was of the opinion that
apart from clear and anticipated vacancies, the Commission should
prepare a select list of some additional candidates. This entire exercise
therefore for the appointment of few more judicial oﬃcers was done in
the present case, with the belief that this is what ought to have been done
in terms of the directions of the Himachal Pradesh High Court in Shweta
Dhingra (supra), and we must therefore reproduce the directions given
in that case. We reproduce most of this order in order to get a proper
perspective:
2. The Apex Court in Malik Mazhar Sultan (3) v. Uttar Pradesh
Service Commission has issued the guidelines with regard to
the ﬁ lling up of the vacancies to the post of Civil Judge (Junior
Division) by direct recruitment. The vacancies have to be notiﬁed by
15th January every year. The vacancies include existing vacancies
on account of retirement and future vacancies and which may arise
on account of promotion, death or otherwise. It is also held in the
judgment that the select list will operate till the select list for the
subsequent year comes into operation. Still further, it is directed that
the select list should be published in the order of merit and should
be double of the vacancies notiﬁed. This direction was subsequently
modiﬁed by the Apex Court by the order dated 24th March, 2009 to
622 SUPREME COURT REPORTS [2023] 16 S.C.R.

the eﬀect that the select list should contain the existing number of
vacancies and the anticipated vacancies for the succeeding year and
should include some candidates in the waiting list. Unfortunately,
the select list published by the Public Service Commission was
only for the clear cut vacancies of ﬁve and three anticipated. No
doubt, the said list is in the order of merit. As far as the facts of the
instant cases are concerned, there is no dispute with regard to the
select list on the aspect of communal rotation, so that we need not
go into that aspect at this stage, we may refer the same for future
guidelines later in this judgment.
3. …………..
4. Steps for recruitment for the year 2011 have already been initiated.
We ﬁnd that six clear cut vacancies have been notiﬁed (2-SC, 2-ST
and 2-OBC). Six are anticipated (2-General, 1-ST and 3-OBC). The
Public Service Commission, it is expected would be publishing the
select list by the end of October, 2011. Therefore, the select list already
prepared/to be duly prepared is to operate till the select list of 2011 is
published. There will be a direction to the High Court to intimate all
the available vacancies as on 15th October, 2011 to the Commission
and the Government on or before 17th October, 2011. Steps for ﬁlling
up for those vacancies shall be taken by the Commission and the
Government from the select list of 2010 and the appointments shall
be made before 29th October, 2011.
5. It is informed that the select list happened to be limited to the
clear cut vacancies and actual number of anticipated vacancies in
view of the directions already issued by the Government in 2008-09.
We ﬁnd that the Government had issued such instructions in order to
avoid unnecessarily (Sic unnecessary) litigation. But apparently, the
Government has not taken note of directions issued by the Apex Court,
which is already referred to above. Therefore, there will be a direction
to the Public Service Commission to publish a revised select list of the
candidates from the year 2010 merit list by including 2/3 of the actual
and anticipated vacancies.
6. The select list and the merit list are two concepts. The merit list is the
VIVEK KAISTH & ANR v. THE STATE OF HIMACHAL 623
PRADESH & ORS [SUDHANSHU DHULIA, J.]

list of candidates ranked according to their score in the examination-
cum-interview. The select list is one which is prepared according to
the communal roster.
7. Pursuant to the judgment of this Court in CWP No. 3828 of 2009,
titled Hakikat v. State of H.P., the roster is now to be maintained by
the High Court; earlier it was maintained by the Government. Since
the select list is to be published by the Public Service Commission,
there will be direction to the High Court, Government and the
Public Service Commission to jointly take up this exercise of
preparation of select list immediately after the publication of the
merit list and this exercise shall be completed within two weeks of
the publication of the merit list, every year. Thereafter, the Public
Service Commission shall publish the select list. Once the select list
is published, the appointment shall be strictly made according to the
said list prepared on the basis of merit-cum-communal rotation.”
10. The directions given by the Division Bench of the High Court
in paragraphs 5 and 7 are important. The ﬁrst direction is regarding the
additional vacancies, which were to be 2/3rd of the actual and anticipated
vacancies and second direction was the joint exercise to be undertaken by
the State Commission, State Government and the High Court in determining
and ﬁlling these vacancies. This also explains why the joint exercise was
undertaken on 21.10.2013 by the three-member Committee, which we have
already referred to, in the preceding paragraphs.
11. What is not clear though, is why in addition to clear and anticipated
vacancies further vacancies i.e., 2/3rd of clear and anticipated vacancies were
to be published. If that had to be a waiting list then such a direction could
not have been given after the selections were over. In any case, there was
no pressing urgency for picking new vacancies for the selection year 2013,
after the selection was over and result had been announced.
12. Be that as it may, in the case at hand, consequent to the joint meeting
and the decision taken therein the Additional Chief Secretary (Home) vide
his letter dated 25.11.2013 wrote to the Secretary Public Service Commission
as under: -
“………………..
624 SUPREME COURT REPORTS [2023] 16 S.C.R.

I am directed to refer to the letter No. 3-50/2012-PSC(E-1) dated
th
11 October, 2013 on the subject cited above and to say that as
per this Department requisition 8 (eight) posts of Civil Judge (Jr.
Division)-cum-JMIC has been recommended by the Commission. In
the meantime, 2 (two) additional post of (Jr. Division)-cum-JMIC has
been created for Civil Court at Solan and Amb (Una).
Besides, one Civil Judge-(Jr. Division)-cum-JMIC, Amit was
dismissed from the Government service on 19.09.2013. As such
three more posts of (Jr. Division) have become available in the
Department. As per his letter No. HHC/GAZ/14-49/74-VI-30012
dated 30th October, 2013 (photocopy enclosed for ready reference)
the Registrar General, H.P. High Court has informed that roster
point 55, 56 & 11 were not included in the previous requisition
of the posts to be notiﬁed during the year 2013 by the Registry of
Hon’ble High Court.
Keeping in view of above position you are requested to sponsor
three more candidates from the select list against roster point 55, 56
& 11 from the unreserved category at the earliest.”
13. Ultimately, however, only two names from the general category
who were next in the order of merit were made available for the select list
which were of Vivek Kaisth and Akansha Dogra (appellants before this
Court), who were recommended for appointment as Civil Judge (Jr. Division)
by the State Public Service Commission. Appointment letters were thereafter
issued to the appellants on 27.12.2013 and they were appointed as Civil
Judge (Jr. Division) under the general category. The two appellants were
then sent for training in the judicial academy. The Himachal Pradesh High
Court subsequently posted them as Civil Judge (Jr. Division) in diﬀerent
districts. After completing their period of probation and having completed
around 9 years of service as Civil Judge (Jr. Division), both the appellants
have also been promoted to the next higher post of Civil Judge (Sr. Division),
which was done on 23.03.2023.
14. The ﬁrst question which comes to our mind is whether the directions
of the Himachal Pradesh High Court in Shweta Dhingra (supra), were at
all in line with the decision of this Court in Malik Mazhar Sultan (3) and
VIVEK KAISTH & ANR v. THE STATE OF HIMACHAL 625
PRADESH & ORS [SUDHANSHU DHULIA, J.]

Another v. U.P. Public Service Commission and Others (2008) 17 SCC 703
(hereafter referred to as “Malik Mazhar”). We will discuss that in a while,
but since at the root of it all lies the directions given by this court in Malik
Mazhar, it would be necessary at this stage to refer to this decision of the
Apex Court in order to get a clear perspective of the matter.
The main purpose for the directions given by this Court in Malik
Mazhar was to timely ﬁll judicial vacancies in the States. This Court had
ﬁxed a time period to be followed by each High Court so that the existing
judicial vacancies are ﬁlled without any delay. Judicial services in States
start from the cadre of Civil Judge (Junior Division), who are also called
Judicial Magistrates, when they work on the criminal side. In Malik Mazhar,
it was directed that all “vacancies” of Civil Judge (Junior Division) shall be
notiﬁed by the 15th January of that year. The vacancies were to be as follows: -
“(a) Existing vacancies.
(b) Future vacancies that may arise within one year due to retirement.
(c) Future vacancies that may arise due to promotion, death or
otherwise, say ten per cent of the number of posts.”
The third category which was the “future vacancies”, that may come
due to reasons other than retirement, were to be 10% of the cadre strength,
as this was clariﬁed in the judgment.
“We further direct that ten per cent of unforeseen vacancies would
be in respect of sanctioned posts and not vacancies occurring in a
particular year.”
Then there was a timeline for receiving the applications, holding
preliminary examination, main examination and prompt declaration of
results and also viva voce to be held between 1st October to 15th October.
By 1st November, the results were to be declared and appointment letters
were to be issued. Latest by 2nd January, the incumbent must join the post.
15. The following was the time table drawn by the Supreme Court in
Malik Mazhar, for making these appointments:
“For appointment to the post of Civil Judge (Junior Division) by
direct recruitment
626 SUPREME COURT REPORTS [2023] 16 S.C.R.

S.No. Description Date
1 Number of vacancies to be notiﬁed by the High Court. 15th January
Vacancies to be calculated including
(a) Existing vacancies.
(b) Future vacancies that may arise within one year
due to retirement
(c) Future vacancies that may arise due to promotion,
death or otherwise, say ten per cent of the number
of posts.
2 Advertisement inviting applications from eligible 1st February
candidates.
3 Last date for receipt of application 1st March
4 Publication of list of eligible applicants. 2nd April
The list may be put on the website.
5 Dispatch/Issue of admit cards to the eligible applicants. 2 n d t o 3 0 t h
April
6 Preliminary written examination 15th May
Objective questions with multiple choice which can be
scrutinised by computer.
7 Declaration of result of preliminary written examination 15th June
(a) Result may be put on the website and also
published in the newspaper.
(b) The ratio of 1:10 of the available vacancies to the
successful candidates be maintained
8 Final written examination 15th July
Subjective/Narrative.
9 Declaration of result of ﬁnal written examination 30th August
(a) Result may be put on the website and also
published in the newspaper.
(b) The ratio of 1:3 of the available vacancies to the
successful candidates be maintained.
(c) Dates of interview of the successful candidates
may be put on the internet which can be printed
by the candidates and no separate intimation of
the date of interview need be sent.
VIVEK KAISTH & ANR v. THE STATE OF HIMACHAL 627
PRADESH & ORS [SUDHANSHU DHULIA, J.]

10 Viva voce. 1st to
15th October

11 Declaration of ﬁnal select list and communication to 1st November
the appointing authority

(a) Result may be put on the website and also
published in the newspaper.

(b) Select list be published in order of merit and
should be double the number of vacancies notiﬁed.

12 Issue of appointment letter by the competent authority 1st December
for all existing vacant posts as on date.
13 Last date for joining. 2nd January of
the following
year

16. The Court further requested the Chief Justice of each High Court
to constitute a committee of two or three Judges to monitor the selection
process so that timely selection of judicial oﬃcers can be made. There
were other directions as well. The diﬃculty, however, was to ﬁgure out the
number of vacancies to be advertised. As far as (a) existing vacancies and
(b) future vacancies which were to come within one year due to retirement
were concerned, there was no diﬃculty in anticipating these vacancies.
It is the third category which was given in “C” as “future vacancies” that
created some confusion in diﬀerent States as there could be no clarity of what
these vacancies would be or how they were to be calculated. Ultimately, a
three Judge Bench of this Court in Malik Mazhar Sultan and Another v.
Uttar Pradesh Public Service Commission and Others (2009) 17 SCC 24
(hereafter referred to as “Malik Mazhar-2”) clariﬁed this aspect in its order
dated 24.03.2009 as follows:
“1. On 4-1-2007 [Malik Mazhar Sultan (3) v. U.P. Public Service
Commission, (2008) 17 SCC 703 : (2010) 1 SCC (L&S) 942] , this
Court had given certain directions regarding the selection and
appointment of members of the subordinate judicial oﬃcers in various
courts. In the tabular form, the number of vacancies are notiﬁed by
628 SUPREME COURT REPORTS [2023] 16 S.C.R.

the High Court/Public Service Commission. It was directed that the
further vacancies that may arise due to elevation or death or otherwise,
10% of the posts shall be notiﬁed and this is referred at para 15 of the
order; it is further stated: (Malik Mazhar case [Malik Mazhar Sultan
(3) v. U.P. Public Service Commission, (2008) 17 SCC 703 : (2010) 1
SCC (L&S) 942] , SCC p. 711)
“15. We further direct that ten per cent of unforeseen vacancies would
be in respect of sanctioned posts and not vacancies occurring in a
particular year.”
2. It has been pointed out by the counsel appearing for the various
High Courts that 10% of the sanctioned posts are notiﬁed in some
States. A large number of posts are to be notiﬁed whereas there was
corresponding number of vacancies to be ﬁlled if the candidates
are selected in the select list. There may be an expectation for such
candidates to get appointment and this creates unwanted litigation
by the candidates and it is prayed that the existing vacancies alone
be notiﬁed along with the anticipated vacancies that may arise in the
next one year and some candidates also be included in the wait list
prepared by the High Courts/PSCs.
3. In supersession of the order passed by this Court on 4-1-2007
[Malik Mazhar Sultan (3) v. U.P. Public Service Commission, (2008)
17 SCC 703 : (2010) 1 SCC (L&S) 942] , this Court directs that
in future the High Courts/PSCs shall notify the existing number of
vacancies plus the anticipated vacancies for the next one year and
some candidates also be included in the wait list. To this extent
earlier order is modiﬁed.”
(emphasis supplied)
17. In other words, subsequent to the clariﬁcation by a three Judge
Bench of this Court in Malik Mazhar-2, the third category earlier created
in Malik Mazhar, did not exist any longer. Therefore, the directions given
by the Division Bench of the Himachal Pradesh High Court in Shweta
Dhingra (supra) in our opinion, were not necessary, and the reliance upon
these directions by the three-member Committee in the present case were
misplaced since the ‘vacancies’ had already been advertised. If at all, it
VIVEK KAISTH & ANR v. THE STATE OF HIMACHAL 629
PRADESH & ORS [SUDHANSHU DHULIA, J.]

was necessary such an exercise should have been undertaken before the
vacancies were advertised on 01.02.2013.
18. We may also refer here to the 2004 Rules of Himachal Pradesh
known as Himachal Pradesh Judicial Service Rules, 2004. The Rules were
amended to bring them in tune with the directions of this Court in Malik
Mazhar. After the amendment, the number of vacancies which were to be
notiﬁed as per the Himachal Pradesh Judicial Service Rules were as follows:
(a) existing vacancies;
(b) future vacancies that may arise within one year due to retirement;
and
(c) future vacancies that may arise due to promotion, death or
otherwise, say ten percent of the number of posts.
The clariﬁcation made by this Court about the number of vacancies
to be notiﬁed in Malik Mazhar-2 was perhaps not noticed while making
changes in the above Rules. As such, the vacancies as given in the 2004 Rules
are not in tune with what this Court had deﬁned as ‘vacancies’ in terms of
Malik Mazhar-2. In any case if more vacancies had to be advertised, over
and above the existing and anticipated vacancies then this could only have
been done prior to the advertisement i.e., February 1, 2013.
19. All the same, even if there is an apparent dichotomy between
what the Service Rules suggest and what is mandated by this Court in
Malik Mazhar this must be resolved by making a harmonious interpretation
between the Service Rules and Articles 14 and 16 of the Constitution of
India, as held by this Court in High Court of Kerala v. Reshma A. and
Others (2021) 3 SCC 755. The importance of the Service Rules cannot
be belittled. The directions given in Malik Mazhar too emphasise that
appointments have to be made as per the Service Rules of each State, as the
procedure of selection and appointment may vary between diﬀerent states.
This Court was conscious of this aspect. The concern of this Court was for
timely recruitment to ﬁll the judicial vacancies. Removing any doubt on
a conﬂict between the directions in Malik Mazhar and Service Rules, this
Court in Reshma A. (supra) explained as under:
“59. …………. The object and purpose of this Court in the decision
630 SUPREME COURT REPORTS [2023] 16 S.C.R.

in Malik Mazhar (3) [Malik Mazhar Sultan (3) v. U.P. Public Service
Commission, (2008) 17 SCC 703] was to ensure the expeditious ﬁlling
up of judicial vacancies in the State Judicial Services. It was in this
perspective, that the Court set down strict timelines for compliance. At
the same time, it is evident that the decision did not provide for essential
aspects such as eligibility, modalities for conducting the examination
and the application of reservations in making appointments to State
Judicial Services. Hence, a signiﬁcant ﬁeld in regard to the process
of selection and appointments to the judicial services is not covered
by the decision in Malik Mazhar (3) [Malik Mazhar Sultan (3) v. U.P.
Public Service Commission, (2008) 17 SCC 703] for which one has
to fall back upon construing the rules governing the State Judicial
Service in question.”
In Malik Mazhar, this Court had dealt with any probable conﬂict
of duties on interference with the independent functioning of State
Commissions where it reiterated its sole purpose of timely ﬁlling up of
judicial vacancies. This is what it said:
“6. Though no submission was made by any learned counsel
appearing for any State Government that the constitution of Selection
Committee by the Chief Justice of the High Court to monitor the timely
appointment of Judges at subordinate/district level would amount
to interference with the independent functioning of the State Public
Service Commission, but some State Governments in their responses
have indicated so. In view of what we have already noted about the
appointments to be made in accordance with the respective Judicial
Services Rules in the States, the apprehension of interference seems
to be wholly misplaced. A Committee constituted by the Chief Justice
of the High Court to ensure that the vacancies are timely ﬁlled and
the problem of delay in dispensation of justice is tackled to some
extent can under no circumstances be said to be interference with
the independent functioning of the authorities under the Rules or of
independent functioning of the State Public Service Commission.”
20. In Reshma A. (supra) while dealing with a situation where there
was an almost similar dichotomy between the Kerala Judicial Service Rules
and the directions given in Malik Mazhar, this Court was of the opinion that
VIVEK KAISTH & ANR v. THE STATE OF HIMACHAL 631
PRADESH & ORS [SUDHANSHU DHULIA, J.]

in such cases, it is better to seek harmony between the two and held that “A
better line of approach is to seek an interpretation which will bring harmony
between them.” Without going into the details of the Reshma A. (supra)
case, the problem which arose there was that the Service Rules in Kerala
required the “merit list” to be “twice” the number of “probable vacancies”.
After the ﬁrst half of the candidates from the list were given appointments
on the notiﬁed vacancies, the remaining candidates of the list, i.e., nearly
half, claimed appointment on vacancies which came subsequently i.e.,
subsequent to the notiﬁcation of vacancies. The claim of these candidates
was based on a provision of Service Rules [Rule 7(2)]2 which stipulated
that the list shall be valid for “one year”, and therefore since the merit list
was still a valid list, appointments could be made on these vacancies, was
the case of the petitioners before the Kerala High Court. Their claim was
accepted by the learned Single Judge in writ petition as well as in Appeal
before the Division Bench. The Kerala High Court was thus here before this
Court, in Reshma A (supra). Indeed, a literal interpretation of sub-rule (2) of
Rule 7 would give a right of consideration to the petitioners who were before
the Kerala High Court, but that would be against service jurisprudence as
that would amount to making appointments on vacancies which were not
advertised, vacancies which came up after the notiﬁed date on which would
also rest the claim of such candidates who gained eligibility subsequently
and had a right of consideration. Hence, this exercise would principally be
in violation of Articles 14 and 16 of the Constitution of India. This is how
this Court resolved the issue:
“71.1. Undoubtedly, the validity of Rule 7(2) was not in question
before the High Court. The counsel for the respondents argued that it
does not lie in the province of the appellant to raise a doubt about the
validity of its own rules, more particularly Rule 7(2). It is necessary
to note that Mr V. Giri, learned Senior Counsel appearing on behalf
of the appellant did not suggest or argue that Rule 7(2) should be held

2 Rule 7 (2) “The merit list prepared by the High Court shall be forwarded for the
approval of the Governor. The list approved by the Governor shall come into force
from the date of the approval and shall be valid till the notiﬁed vacancies and the
vacancies that may arise within one year from the date of approval of the list, are ﬁlled
up or a fresh list comes into force, whichever is earlier.”
632 SUPREME COURT REPORTS [2023] 16 S.C.R.

to be invalid. The submission of the learned Senior Counsel is that the
expression “probable” denotes an addition/deduction which has to be
made due to the imponderables of service such as death, resignation
and promotion. The submission of the appellant is that a literal
interpretation of Rule 7(2), without reference to the constitutional
requirement of not operating a select list beyond the notiﬁed vacancies,
would render the Rule violative of Articles 14 and 16 and such an
interpretation should be avoided. In other words, his submission was
that a constitutional interdict cannot be overcome in the manner it has
been suggested by the respondents and a harmonious interpretation
of the judicial service rules in the light of the directions in Malik
Mazhar Sultan (3) [Malik Mazhar Sultan (3) v. U.P. Public Service
Commission, (2008) 17 SCC 703 : (2010) 1 SCC (L&S) 942] should
have been resorted to by the High Court. We are in agreement with
this line of submissions, based as it is on the precedent of this Court.
71.2. It is a settled principle of service jurisprudence that when
vacancies are notiﬁed for conducting a selection for appointments to
public posts, the number of appointments cannot exceed the vacancies
which are notiﬁed. The answer to this submission, which has been
proﬀered by the respondents is that under Rule 7(1) a probable number
of vacancies is required to be notiﬁed and since an exact number is not
notiﬁed, there is no constitutional bar in exceeding the 37 probable
vacancies that were notiﬁed in 2019. The diﬃculty in accepting the
submission is simply this : it attributes to the expression “probable
number of vacancies” a meaning which is inconsistent with basic
principles of service jurisprudence, the requirement of observing
the mandate of equality of opportunity in public employment under
Articles 14 and 16 and is contrary to the ordinary meaning of the
expression. Black’s Law Dictionary [ 11th Edn. (Thomson Reuters
West, 2019).The deﬁnition of “Probable” in the 4th Edn., Revision 6
(1971) of the Black’s Law Dictionary was:“Having the appearance
of truth; having the character of probability; appearing to be founded
in reason or experience …; having more evidence for than against;
supported by evidence which inclines the mind to believe, but leaves
some room for doubt; Apparently true yet possibly false.”] deﬁnes the
expression “probable” as:
VIVEK KAISTH & ANR v. THE STATE OF HIMACHAL 633
PRADESH & ORS [SUDHANSHU DHULIA, J.]

“Probable : likely to exist, be true, or happen”
“Probable number of vacancies”, as we have seen, is based on
computing the existing vacancies and the vacancies anticipated to
occur during the year. It also accounts for the possibility of inclusion of
some of the candidates that are in the wait list. However, the expression
“probable” cannot be interpreted as a vague assessment of vacancies
that is not founded in reason and can be altered without a statutorily
prescribed cause. To allow the concept of probable number of
vacancies in Rule 7(1) to trench upon future vacancies which will arise
in a succeeding year would lead to a serious constitutional infraction.
Candidates who become eligible for applying for recruitment during
a succeeding year of recruitment would have a real constitutional
grievance that vacancies which have arisen during a subsequent
year during which they have become eligible have been allocated to
an earlier recruitment year. If the directions of the High Court are
followed, this would seriously aﬀect the fairness of the process which
has been followed by glossing over the fact that vacancies which have
arisen during 2020 will be allocated for candidates in the select list
for the year 2019. Such a course of action would constitute a serious
infraction of Articles 14 and 16 and must be avoided.
71.3. To reiterate, the submission of the appellant which we are
inclined to accept is not that Rule 7(2) is invalid but that a harmonious
interpretation of Rules 7(1) and (2) must be adopted that is consistent
with the Article 142 directions in Malik Mazhar Sultan (3) [Malik
Mazhar Sultan (3) v. U.P. Public Service Commission, (2008) 17 SCC
703 : (2010) 1 SCC (L&S) 942] to bring the rules in accord with the
governing principles of constitutional jurisprudence in matters of
public employment.”
21. Appointments cannot be made over and above the vacancies
which have been advertised, except in an emergency situation or for some
unforeseen reasons, in public interest or when a policy decision is taken by
the State Government in this regard, as held by this court in Gujarat State
Dy. Executive Engineers’ Assn. v. State of Gujarat (1994) Supp 2 SCC 591.
22. In Hoshiyar Singh v. State of Haryana (1993) Supp. 4 SCC 377,
this Court had held that Public Service Commission cannot recommend
634 SUPREME COURT REPORTS [2023] 16 S.C.R.

more names than what have been advertised and any appointment, which
is made in excess to the vacancies, which have been advertised would be
arbitrary. The reason being that such selection/appointment would deprive
those candidates who are not eligible for appointment at the time these posts
were advertised but had become eligible in the subsequent year would be
deprived of competing against such posts. This decision has been followed
in a catena of other judgments by this Court. Reference may be made here
to some of these decisions, such as State of Bihar v. Secretariat Asstt.
Successful Examinees’ Union (1994) 1 SCC 126 and State of Bihar v.
Madan Mohan Singh (1994) Supp 3 SCC 308.
23. 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.
24. In Malik Mazhar-2, this Court had directed that a waiting list
of candidates should also be prepared. Evidently in the present selection
process there was no “waiting list”. There ought to have been one. However,
the absence of a waiting list has not caused any diﬃculty as all the eight
candidates who were selected gave their joining and were consequently
appointed. The purpose of a waiting list is that when selected candidates are
unable to join the post for any reason whatsoever, the post should not remain
vacant and this shortfall of candidates can be met from the candidates who
are in the waiting list. The candidates who are in the waiting list have also
qualiﬁed the examination in every respect, but they are just lower down in
the merit and for this reason they could not make it to the ﬁnal select list
of candidates. But they are just short of it and that is why they are in the
waiting list. The purpose of a “waiting list” is only to ﬁll the shortfall of
“clear and anticipated vacancies.”
25. What constitutes a “waiting list” and what its purpose is has
been explained by this Court in Gujarat State Dy. Executive Engineers’
Association (supra) as follows:
“8. Coming to the next issue, the ﬁrst question is what is a waiting
list?; can it be treated as a source of recruitment from which candidates
may be drawn as and when necessary?; and lastly how long can it
VIVEK KAISTH & ANR v. THE STATE OF HIMACHAL 635
PRADESH & ORS [SUDHANSHU DHULIA, J.]

operate? These are some important questions which do arise as a
result of direction issued by the High Court. A waiting list prepared
in service matters by the competent authority is a list of eligible and
qualiﬁed candidates who in order of merit are placed below the last
selected candidate. How it should operate and what is its nature may
be governed by the rules. Usually it is linked with the selection or
examination for which it is prepared. For instance, if an examination
is held say for selecting 10 candidates for 1990 and the competent
authority prepares a waiting list then it is in respect of those 10 seats
only for which selection or competition was held. Reason for it is
that whenever selection is held, except where it is for single post, it is
normally held by taking into account not only the number of vacancies
existing on the date when advertisement is issued or applications are
invited but even those which are likely to arise in future within one
year or so due to retirement etc. It is more so where selections are held
regularly by the Commission. Such lists are prepared either under the
rules or even otherwise mainly to ensure that the working in the oﬃce
does not suﬀer if the selected candidates do not join for one or the
other reason or the next selection or examination is not held soon. A
candidate in the waiting list in the order of merit has a right to claim
that he may be appointed if one or the other selected candidate does
not join. But once the selected candidates join and no vacancy arises
due to resignation etc. or for any other reason within the period the
list is to operate under the rules or within reasonable period where
no speciﬁc period is provided then candidate from the waiting list has
no right to claim appointment to any future vacancy which may arise
unless the selection was held for it. He has no vested right except to
the limited extent, indicated above, or when the appointing authority
acts arbitrarily and makes appointment from the waiting list by picking
and choosing for extraneous reasons.
9. A waiting list prepared in an examination conducted by the
Commission does not furnish a source of recruitment. It is operative
only for the contingency that if any of the selected candidates does
not join then the person from the waiting list may be pushed up and
be appointed in the vacancy so caused or if there is some extreme
exigency the Government may as a matter of policy decision pick up
636 SUPREME COURT REPORTS [2023] 16 S.C.R.

persons in order of merit from the waiting list. But the view taken by
the High Court that since the vacancies have not been worked out
properly, therefore, the candidates from the waiting list were liable to
be appointed does not appear to be sound. This practice, may result
in depriving those candidates who become eligible for competing for
the vacancies available in future. If the waiting list in one examination
was to operate as an inﬁnite stock for appointments, there is a danger
that the State Government may resort to the device of not holding an
examination for years together and pick up candidates from the waiting
list as and when required. The constitutional discipline requires that
this Court should not permit such improper exercise of power which
may result in creating a vested interest and perpetrate waiting list
for the candidates of one examination at the cost of entire set of fresh
candidates either from the open or even from service.”
This was reiterated by this Court in Surinder Singh & Ors. v. State
of Punjab & Anr. (1997) 8 SCC 488:
“Candidates in the waiting list have no vested right to be appointed
except to the limited extent that when a candidate selected against the
existing vacancy does not join for some reason and the waiting list is
still operative.”
26. In Rakhi Ray & Ors. v. High Court of Delhi & Ors. (2010) 2
SCC 637, the practice of making appointments on future vacancies from the
waiting list was held to be wrong. “In case the vacancies notiﬁed stand ﬁlled
up, the process of selection comes to an end. Waiting list, etc. cannot be used
as a reservoir, to ﬁll up the vacancy which comes into existence after the
issuance of notiﬁcation/advertisement. The unexhausted select list/waiting
list becomes meaningless and cannot be pressed in service any more” 3.
27. We are referring to the position of law on “waiting list” because
one of the arguments of the appellants (in connected appeals) before us is
that, since in any case there was a direction in Malik Mazhar-2 for having a
“waiting list”, therefore the names of those two appellants ought to have been
considered as names from the “waiting list”. In our opinion, this cannot be

3 Para 12
VIVEK KAISTH & ANR v. THE STATE OF HIMACHAL 637
PRADESH & ORS [SUDHANSHU DHULIA, J.]

done, as the question would still remain whether selection/appointment can
be made on vacancies, which were never advertised, apart from the fact that
this would in any case go against the very concept of a ‘waiting list’ that we
have explained above. The vacancies on which the appointments have been
made could not be anticipated at the time of advertisement (February 1st,
2013), and hence these vacancies were not advertised. These two vacancies
were in fact, created on 18.03.2013 i.e., after the notiﬁcation of vacancies
on 01.02.2013. These were the “future vacancies”, which earlier could fall
under the “C” category given in Malik Mazhar but were deleted in Malik
Mazhar-2. These vacancies technically could only be ﬁlled next year and
should have been notiﬁed by January 15th, 2014 as per the directions in
Malik Mazhar. The argument of the appellants (in connected appeals),
particularly against the present appellants, that had there been a waiting list
they could have been considered for appointment in that category for these
vacancies, in our opinion, is a complete misunderstanding of the concept
of a “waiting list”.
28. 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.
Malik Mazhar mandates yearly selection/appointment on the post of Civil
Judge (Junior Division). There is a time line ﬁxed, and ‘vacancies’ have to
be declared on January 15th of each year. The process has to be completed
by October of the same year. Once this is followed, as it ought to be, the
object sought to be achieved (under the guidelines given in Malik Mazhar),
of timely ﬁlling of judicial vacancies is achieved.
29. In the case at hand, it is clear that the appointment of the appellants
(Vivek Kaisth and Akansha Dogra) was made on posts which were not
advertised and in fact did not even exist at the time when the advertisement
was made. The anomaly made in the selection/appointment of these two
candidates is quite apparent.
30. The appointment of the appellants was challenged before the
Himachal Pradesh High Court by respondent No.4 herein. Respondent No.4
(Shri Kuldeep Sharma), who was also one of the candidates, in the merit
638 SUPREME COURT REPORTS [2023] 16 S.C.R.

list of candidates along with the appellants, obviously did not question
the existence of these two vacancies but only that these vacancies ought
to have been advertised along with the initial 8 vacancies. Initially, only
three posts for general category candidates were advertised, against which
nine candidates were called for the interview, as per the Rules on 1:3 ratio
and he being low in the order of merit was not called for the interview. His
argument was that, if ﬁve posts were to be advertised as it ought to have
been, then ﬁfteen candidates would have been called for the interview which
would have included him and he therefore had a fair chance of making it
to the select list. According to him, the belated decision of the inclusion
of two seats was not fair. Respondent no. 4, however, in our opinion had
no case for his appointment since these two vacancies could not have been
advertised earlier, as these vacancies did not exist at that time. Similarly,
another writ petition was also ﬁled before the High Court claiming violation
of reservation etc. due to the inclusion of two seats! Their case was that the
two Schedule Tribe candidates should have been selected on the general
seats, and the two seats vacated by them would have given to the reserved
candidates. The claim of these appellants (in connected appeals) for their
appointments on the posts is again based on the fact that these two vacancies
ought to have been advertised earlier is again wrong. The High Court has
allowed the writ petition ﬁled by respondent No.4 to the extent that it held
that the appointment of the appellants was in violation of the law in as much
as they were not appointed either on the existing vacancies or anticipated
vacancies but they were appointed on “future vacancies” which were never
advertised. It is true that the vacancies which were advertised were only 8,
including those on the reserved posts. The High Court, however, did not
grant any relief to the present appellants, or the other candidates in other
connected petitions. Their writ petitions were dismissed.
31. In the preceding paragraphs of the present order, we have already
clariﬁed the position of law and therefore, in our opinion, the High Court
was right in holding this position, which is the settled position of law. What
the High Court missed was the context, the facts and the circumstances of
the case.
32. A Judge is a Judge of facts, as much as he is a Judge of law. The
position of law we have already explained in the preceding paragraphs, which
VIVEK KAISTH & ANR v. THE STATE OF HIMACHAL 639
PRADESH & ORS [SUDHANSHU DHULIA, J.]

has been correctly followed by the Himachal Pradesh High Court. Now let
us see the context of the case and its facts. Today, when we are delivering
this judgment the two appellants have already served as Judicial Oﬃcers
for nearly 10 years. Meanwhile, they have also been promoted to the next
higher post of Civil Judge (Senior Division). In this process of their selection
and appointment (which has obviously beneﬁtted them), nothing has been
brought to our notice which may suggest any favouritism, nepotism or so-
called blame as to the conduct of these two appellants, in securing these
appointments. The High Court in fact notes this factor. While placing the
blame on the State Commission it records that “………. there is nothing on
record suggestive of the fact that any mala ﬁdes were behind the selection
of respondents Nos.4 and 6……….”
33. The two appellants had qualiﬁed the examination and were in
the merit list. Should we quash their appointment and unseat them from
judicial service, is the question. The same question was there before the
High Court and it expressed its inability to protect the appointment of the
appellants for two reasons. The ﬁrst reason was that since it had determined
a ﬁnding of illegality in the appointment, it saw no reason to continue with
these appointments on grounds of hardship and equity, as that could only be
done only under Article 142 of the Constitution of India and these powers
the High Court did not have. The second reason given was that in any case
the balance of equity would lie in favour of the petitioner (i.e. respondent
No. 4 before High Court), and not the present appellants. The reasons given
were as follows :
“Having carefully perused aforesaid judgments rendered by Hon’ble
Apex Court, which have been otherwise taken note above this Court
ﬁnds that though in the aforesaid cases, selection of the petitioners
therein was held to be not in accordance with law but their selection
was protected by Hon’ble Apex Court, while exercising power under
Article 142 of the Constitution of India, which power is ﬁrstly not
available with this Court, and secondly, in the case at hand, there is
active challenge to the selection of the respondents Nos. 4 and 6 by
the petitioners herein, whose rights are equally important as that of
the aforesaid respondents and, in case respondents Nos. 4 and 6 are
allowed to continue on their posts, same would result in infringement of
640 SUPREME COURT REPORTS [2023] 16 S.C.R.

right of the petitioners to participate/being considered in the selection
process for the posts in question, and while balancing equalities, the
party which is ﬁghting for a just cause, its right (Sic rights) are to be
protected and not of the party, which is beneﬁciary of an illegality
committed by the selecting /appointing authorities.”
34. The appellants were not entitled for any equitable relief in view of
the High Court as they were the beneﬁciaries of an illegality committed by
the Selection/appointing authority. But then it failed to take this question
further, which in our opinion, it ought to have done. 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 decision of the three-
member committee which included representatives of the High Court (dated
21.10.2013) to initially add four more posts to the vacancies, and the fact
that the High Court never had any objection to the additional appointments,
although these appointments were made under its watch, are signiﬁcant
facts. 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 objection has only come for the
ﬁrst time in form of additional aﬃdavits before the High Court in the writ
proceedings when the validity of these two appointments was challenged.
The additional aﬃdavit ﬁled by the Registrar General of the High Court
before the Division Bench of the High Court says that these appointments
were not made in consultation with the High Court. 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.
VIVEK KAISTH & ANR v. THE STATE OF HIMACHAL 641
PRADESH & ORS [SUDHANSHU DHULIA, J.]

35. Having gone through the pleadings of the appellants and that
of the respondents, 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.
36. What is also important for our 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 Judge (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. Ordinarily, these factors as we have referred above,
would not matter, once the very appointment is held to be wrong. But 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. In a recent Constitution Bench
decision of this Court in Sivanandan C.T. and Ors. v. High Court of Kerala
and Ors. (2023) SCC OnLine SC 994 though the ﬁnding arrived at by this
Court was that the Rules of the game were changed by the High Court of
Kerala by prescribing minimum marks for the viva voce, which were not
existing in the Rules and therefore in essence the appointment itself was in
violation of the Rules, yet considering that those persons who had secured
appointments under this selection have now been working for more than
6 years it was held that it would not be in public interest to unseat them. It
was stated in Para 58 as under: -
“58. The question which now arises before the Court is in regard to the
relief which can be granted to the petitioners. The ﬁnal list of successful
candidates was issued on 6 March 2017. The candidates who have
been selected have been working as District and Sessions Judges for
642 SUPREME COURT REPORTS [2023] 16 S.C.R.

about six years. In the meantime, all the petitioners who are before
the Court have not functioned in judicial oﬃce. At this lapse of time,
it may be diﬃcult to direct either the unseating of the candidates who
have performed their duties. Unseating them at this stage would be
contrary to public interest since they have gained experience as judicial
oﬃcers in the service of the State of Kerala. While the grievance of the
petitioners is that if the aggregate of marks in the written examination
and viva-voce were taken into account, they would rank higher than
three candidates who are respondents to these proceedings, equally,
we cannot lose sight of the fact that all the selected candidates are
otherwise qualiﬁed for judicial oﬃce and have been working over a
length of time. Unseating them would, besides being harsh, result in
a situation where the higher judiciary would lose the services of duly
qualiﬁed candidates who have gained experience over the last six
years in the post of District Judge.”
And therefore, one of the directions in the said case was as under:
‘60. XXX
XXX
(vi) In terms of relief, we hold that it would be contrary to the public
interest to direct the induction of the petitioners into the Higher Judicial
Service after the lapse of more than six years. Candidates who have
been selected nearly six years ago cannot be unseated. They were
all qualiﬁed and have been serving the district judiciary of the state.
Unseating them at this stage would be contrary to public interest. To
induct the petitioners would be to bring in new candidates in preference
to those who are holding judicial oﬃce for a length of time. To deprive
the state and its citizens of the beneﬁt of these experienced judicial
oﬃcers at a senior position would not be in public interest.”
The case at hand is on a similar footing if not better than the petitioners
in the above case.
37. We therefore uphold 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. All the same, for the reasons stated above, in
order to do complete justice and in exercise of our powers under Article
VIVEK KAISTH & ANR v. THE STATE OF HIMACHAL 643
PRADESH & ORS [SUDHANSHU DHULIA, J.]

142 of the Constitution of India, we set aside the order of the High Court
as far as it quashes the selection and appointment of the appellants. To that
extent, these appeals succeed and are hereby allowed.
38. As we have not touched the ﬁndings of the High Court on law and
it was indeed the correct position of law, the remaining Civil Appeals No.
6237 of 2023, 6235 of 2023 and 6236 of 2023 (ﬁled by Meenakshi, Parvez
and Ashitosh Thakur respectively) are hereby dismissed.
39. We also make it clear that the present litigation which the appellants
have gone through will not come in way of these judicial oﬃcers in any
manner, as far as their judicial career is concerned. They shall be treated at
par with the other appointees on the post of Civil Judge (Junior Division)
for that year. Pending applications, if any, are also disposed of.

Headnotes prepared by: Appeals disposed of.
Ankit Gyan

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