RAKHI RAY & ORS. v.

THE HIGH COURT OF DELHI & ORS. (Civil Appeal Nos. 1133-1135 of 2010)

FEBRUARY 01, 2010 [K.G. Balakrishnan CJI., Deepak Verma and Dr. B.S. Chauhan, JJ.]

2010 (2) SCR 239

The Judgment of the Court was delivered by

DR.  B.S.  CHAUHAN,  J. 1.  Applications  for  permission  to  file  Special  Leave Petitions are granted.  

2. Leave granted.

3.  These  appeals  have  been  filed  for  seeking  directions  to  the  

respondents i.e. the High Court of Delhi and the Lt. Governor of Delhi to offer  

the appointment to the appellants on the posts in the cadre of District Judges  

in Delhi Judicial Service.  

4. Facts and circumstances giving rise to these appeals are that in order  

to fill up 20 vacancies in the cadre of District Judge in Delhi, the respondent  

No.1, the High Court of Delhi, issued an advertisement dated 19.5.2007. Out  

of these 20 vacancies, 13 were to be filled up from the General Category  

candidates;  3  from  Scheduled  Castes;  and  4  from  Scheduled  Tribes.  

Appellants who belong to General Category, faced the selection process. The  

result was declared on 3.1.2008. Appellants found place in the merit list but  

much below. All the 13 vacancies in the said category were filled according to  

the merit list of General Category candidates. However, two posts reserved  

for Scheduled Castes candidates and four posts meant for Scheduled Tribes  

candidates could not be filled up for non availability of suitable candidates.  

5. Certain unsuccessful candidates approached the Delhi High Court by  

filing Writ Petition Nos. 2688/2008, 2913/2008 and 3932/2008 on the ground  

that 13 vacancies came into existence between 29.2.2008 and 23.5.2008 i.e.

during the pendency of the selection process which could have also been  

filled up from the said select list in view of the judgment of this Court in Malik  

Mazhar Sultan & Anr. v. U.P. Public Service Commission & Ors.  (2007) 2  

SCALE 159. The High Court disposed of all the petitions vide its judgment  

and order dated 3.10.2008 taking a view that only three vacancies came into  

existence subsequent to the date of Advertisement which could have been  

filled up from the said list.  Out  of  the said three vacancies,  two could be  

offered  to  General  Category  candidates  and one to  the  Scheduled Caste  

candidate and issued direction to appoint two more candidates whose names  

appeared at Serial  Nos.14 and 15 in General  Category Merit  List.  Hence,  

these  appeals  are  for  seeking  directions  to  the  respondents  for  offering  

appointment to the appellants also.  

6. Shri Ranjit Kumar, learned senior counsel appearing for the appellants  

has submitted that the judgment in  Malik Mazhar Sultan’s case (supra) was  

delivered by this Court on 4.1.2007. A large number of directions had been  

issued in the said case and it also formulated the calendar for conducting the  

examinations  for  filling  up  the  vacancies  in  the  Judicial  Service.  It  also  

provided  that  while  determining  the  number  of  vacancies,  the  concerned  

Authority  would  also  consider  alongwith  the  existing  vacancies,  as  what  

would be the anticipated vacancies that may arise within one year  due to  

retirement, due to elevation to the High Court, death or otherwise, say 10% of  

the  number  of  posts;  and  to  take  note  of  the  vacancies  arising  out  of  

deputation of Judicial Officers to other departments. It also provided that the  

select  list  so  prepared shall  be  valid  till  new select  list  is  published.  The  

examination is to be conducted every year. The High Courts were directed to  

give strict adherence to the aforesaid schedule fixed by this Court. So far as  

the Delhi  High Court  was concerned,  it  was provided that  the High Court  

would  amend its  calendar  accordingly.  In  view of  the  above,  it  has  been  

submitted that while making the advertisement, the Delhi High Court had not  

taken note of the anticipated vacancies which could be available during the

next year. As per the direction of this Court, as 13 more vacancies came into  

existence, those vacancies must be filled up from the select list so prepared.  

As the appellants are in the select list they should be offered appointments.

7.  On  the  contrary,  Shri  A.  Mariarputham,  learned  senior  counsel  

appearing  for  the  respondents  has  vehemently  opposed  the  appeals  

contending that  the law does not  permit  filling up the vacancies over and  

above the number of vacancies advertised. Thirteen vacancies of the General  

Category were advertised; the same had been filled up according to merit,  

therefore, selection process in that respect stood exhausted. The waiting list  

does not  survive.  The appellants had not  challenged the advertisement  in  

spite of the fact that the judgment in Malik Mazhar Sultan’s case (supra) was  

delivered  on  4.1.2007  and  vacancies  were  advertised  on  19.5.2007.  The  

appellants were not aggrieved for not offering the appointment to them, as  

they did not even approach the High Court for any relief. The Special Leave  

Petitions were filed at much belated stage on 24.10.2008, though the result  

had  been  declared  on  3.1.2008,  and  appointments  had  been  made  on  

3.4.2008. The directions of the Court could not supersede the statutory rules  

as there was a direction to fill up the vacancies as per the existing statutory  

rules.  Appointments  had been made according to  law.  Thus,  the  appeals  

have no merit and are liable to be dismissed.  

8. We have considered the rival submissions made by learned counsel for  

the parties and perused the record.

9. It is a settled legal proposition that vacancies cannot be filled up over  

and above the number of  vacancies advertised as “the recruitment  of  the  

candidates in excess of the notified vacancies is a denial and deprivation of  

the  constitutional  right  under  Article  14  read  with  Article  16(1)  of  the  

Constitution”, of those persons who acquired eligibility for the post in question  

in accordance with the statutory rules subsequent to the date of notification of  

vacancies.  Filling  up  the  vacancies  over  the  notified  vacancies  is  neither

permissible  nor  desirable,  for  the  reason,  that  it  amounts  to  “improper  

exercise of power and only in a rare and exceptional circumstance and in  

emergent  situation,  such  a  rule  can  be  deviated  and  such  a  deviation  is  

permissible  only  after  adopting  policy  decision  based  on  some  rational”,  

otherwise the exercise would be arbitrary. Filling up of vacancies over the  

notified  vacancies  amounts  to  filling  up of  future  vacancies  and thus,  not  

permissible in law. (Vide Union of India & Ors. v. Ishwar Singh Khatri & Ors.   

(1992)  Supp  3  SCC  84;  Gujarat  State  Deputy  Executive  Engineers’  

Association v. State of Gujarat & Ors. (1994) Supp 2 SCC 591; State of Bihar  

& Ors. v. The Secretariat Assistant S.E. Union 1986 & Ors AIR 1994 SC 736;  

Prem Singh & Ors. v. Haryana State Electricity Board & Ors. (1996) 4 SCC  

319; and  Ashok Kumar & Ors.  v.  Chairman, Banking Service Recruitment  

Board & Ors. AIR 1996 SC 976).  

10. In Surinder Singh & Ors. v. State of Punjab & Ors. AIR 1998 SC 18,  

this Court held as under:

“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 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  

appointment, 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…..Exercise of such power has to be tested on the touch-stone of  

reasonableness….It is not a matter of course that the authority can fill up  

more posts than advertised.”

(Emphasis added)

11. Similar view has been re-iterated in  Madan Lal v. State of J & K &  

Ors. AIR 1995 SC 1088; Kamlesh Kumar Sharma v. Yogesh Kumar Gupta &  

Ors. AIR 1998 SC 1021;  Sri Kant Tripathi v. State of U.P. & Ors.  (2001) 10  

SCC 237; State of J & K v. Sanjeev Kumar & Ors. (2005) 4 SCC 148; State  

of  U.P. v.  Raj  Kumar Sharma & Ors.  (2006) 3 SCC 330; and  Ram Avtar  

Patwari & Ors. v. State of Haryana & Ors. AIR 2007 SC 3242).

12. In  State of Punjab v. Raghbir Chand Sharma & Ors. AIR 2001 SC  2900, this Court examined the case where only one post was advertised and  

the candidate whose name appeared at Serial No. 1 in the select list joined  

the post, but subsequently resigned. The Court rejected the contention that  

post can be filled up offering the appointment to the next candidate in the  

select list observing as under:–

“With the appointment of the first candidate for the only post in respect of  

which the consideration came to be made and select list prepared, the  

panel ceased to exist and has outlived its utility and at any rate, no one  

else  in  the  panel  can  legitimately  contend  that  he  should  have  been  

offered  appointment  either  in  the  vacancy  arising  on  account  of  the  

subsequent resignation of the person appointed from the panel or any  

other vacancies arising subsequently.”

13. In  Mukul Saikia & Ors. v. State of Assam & Ors.  AIR 2009 SC 747,  

this  Court  dealt  with  a  similar  issue  and  held  that  “if  the  requisition  and

advertisement was only for 27 posts, the State cannot appoint more than the  

number of posts advertised”. The Select List “got exhausted when all the 27  

posts  were  filled”.  Thereafter,  the  candidates  below  the  27  appointed  

candidates have no right to claim appointment to any vacancy in regard to  

which selection was not held. The “currency of Select List  had expired as  

soon  as  the  number  of  posts  advertised  are  filled  up,  therefore,  the  

appointments beyond the number of posts advertised would amount to filling  

up future vacancies” and said course is impermissible in law.

14. In view of above, the law can be summarised to the effect that any  

appointment  made beyond the number  of  vacancies  advertised is  without  

jurisdiction, being violative of Articles 14 and 16(1) of the Constitution of India,  

thus, a nullity, inexecutable and unenforceable in law. In case the vacancies  

notified stand filled up, 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.  

15. In the instant case, as 13 vacancies of the General  Category had  

been advertised and filled up, the selection process so far as the General  

Category candidates  is  concerned,  stood exhausted and the unexhausted  

select list is meant only to be consigned to record room.  

16. So far as the submission made by Shri Ranjit Kumar that directions  

issued by this Court in Malik Mazhar Sultan (supra) had to be given effect to  

is concerned, the same requires consideration elaborately.  

17. In  All India Judges’ Association & Ors. v. Union of India & Ors.  AIR  

1993 SC 2493, several directions had been issued by this Court in respect of  

the service conditions of the Judicial Officers. In view thereof, a notification  

dated  21st  March,  1996  was  issued  appointing  Justice  K.J.  Shetty  

Commission to consider about their service conditions.

18. In  All India Judges’ Association & Ors. v. Union of India & Ors.  AIR  

2002  SC  1752,  this  Court  considered  various  aspects  of  Justice  Shetty  

Commission Report and approved the same. However, the question arose as  

to  whether  the  recommendations  so  accepted  by  this  Court  could  be  

implemented as such or was it required to be incorporated in the statutory  

rules governing the service conditions of the Judicial Officers or alteration of  

the rules applicable to them? This Court held as under:  

“We are aware that it will become necessary for service and other rules to  

be amended so as to implement this judgment….”  

19. In  Syed T.A. Naqshbandi & Ors. v. State of J & K & Ors.  (2003) 9  

SCC  592,  this  Court  reconsidered  the  same  issue  while  examining  the  

appointments to the post of District & Sessions Judges (Selection Grade) in  

the State of Jammu & Kashmir and relying upon its earlier judgment in  All  India Judges’ Association (supra) held as under:

“Reliance placed upon the recommendations of Justice Jagannatha  

Shetty Commission or the decision reported in All India Judges’ Assn. v.   

Union of India or even the resolution of the Full Court of the High Court   

dated 27-4-2002 is not only inappropriate but a misplaced one and the  

grievances espoused based on this assumption deserve a mere mention  

only to be rejected. The conditions of service of members of any service  

for that matter are governed by statutory rules and orders, lawfully made  

in the absence of rules to cover the area which has not been specifically   

covered by such rules, and so long as they are not replaced or amended   

in the manner known to law, it  would be futile for anyone to claim for   

those existing rules/orders being ignored yielding place to certain policy   

decisions  taken  even  to  alter,  amend  or  modify  them.  Alive  to  this  

indisputable position of law only, this Court observed at SCC p. 273, para  

38, that “we are aware that it will become necessary for service and other  

rules to be amended so as to implement this judgment”. Consequently,

the High Court could not be found at fault for considering the matters in  

question in the light of the Jammu and Kashmir Higher Judicial Service  

Rules, 1983 and the Jammu and Kashmir District and Sessions Judges  

(Selection Grade Post) Rules, 1968 as well as the criteria formulated by  

the High Court. Equally, the guidelines laid down by the High Court for the  

purpose of adjudging the efficiency, merit and integrity of the respective  

candidates cannot be said to be either arbitrary or irrational or illegal in  

any manner to warrant the interference of this Court with the same. Even  

de hors any provision of law specifically enabling the High Courts with  

such powers in view of Article 235 of the Constitution of India, unless the  

exercise of power in this regard is shown to violate any other provision of  

the Constitution of India or any of the existing statutory rules, the same  

cannot be challenged by making it a justiciable issue before courts. The  

grievance of the petitioners, in this regard, has no merit of acceptance”.

(Emphasis added)

20. In  Malik Mazhar Sultan’s  case (supra), this Court made it clear that  

appointments  in  Judicial  Service  have  to  be  made  as  per  the  existing  

statutory rules. However, direction was issued to amend the rules for future  

selections.  This  Court  considered  the  correspondences  between  various  

authorities of the States and also the decision taken in the conference of the  

Chief Ministers and Chief Justices held on 11.3.2006, and observed as under:

“…  Before  we  issue  general  directions  and  the  time  schedule  to  be  

adhered to for filling vacancies that may arise in subordinate courts and  

district courts,  it is necessary to note that selections are required to be  

conducted  by  the  concerned  authorities  as  per  the  existing  Judicial   

Service Rules in the respective States/Union Territories…… As already  

indicated, the  selection is to be conducted  by authorities empowered to  

do so as per the existing Rules. … 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….” (Emphasis added).  

21. Therefore, it is clear that this Court clarified that selection was to be  

made as per the existing Rules and direction was issued for amending the  

existing laws to adopt the recommendations of Justice Shetty Commission as  

approved by this Court for the future.  

22. So far as the judgment of this Court in Hemani Malhotra v. High Court   

of  Delhi  &  Ors. AIR  2008  SC  2103  is  concerned,  the  facts  are  quite  

distinguishable.  The  Delhi  High  Court  did  not  frame  any  statutory  rule  

providing  for  cut-off  marks  in  interview  for  assessing  the  suitability  for  

selection. After the selection process had been initiated, such a resolution  

was adopted. Therefore, the basic issue for consideration before this Court  

had been as to whether it was permissible for the High Court to change the  

selection  criteria  at  the  midst  of  the  selection  process.  The Court  placing  

reliance  upon  its  earlier  judgments  held  that  once  the  selection  process  

starts, it is not permissible for the competent authority to change the selection  

criteria and in that view observation was made that a fresh merit list is to be  

prepared ignoring the said resolution of the High Court taking cut-off marks in  

interview.  Undoubtedly,  the  Court  had  taken  note  of  Justice  Shetty  

Commission Report in this regard and held that such a criteria could not have  

been provided. In absence of any statutory rule governing a particular issue,  

directions issued by this Court would prevail.

23. Therefore, it is evident from the aforesaid judgment that in spite of  

acceptance of  the recommendations made by Justice Shetty Commission,  

this  Court  insisted  that  the  existing  law/statutory  rules  in  making  the  

appointment  of  Judicial  Officers  be  amended  accordingly.  In  Syed  

T.A.Naqshbandi  (supra),  this Court  repealed the contention which is being  

advanced by the learned counsel for the petitioners therein and the Court in  

crystal  clear  words  held  that  appointments  have  to  be  made  giving  strict

adherence  to  the  existing  statutory  provisions  and  not  as  per  the  

recommendations  made  by  Justice  Shetty  Commission.  Of  course,  in  

absence of statutory rule to deal with a particular issue, the High Courts are  

bound to give effect to the directions issued by this Court.  

24. The appointments had to be made in view of the provisions of the  

Delhi  Higher  Judicial  Service  Rules,  1970.  The  said  rules  provide  for  

advertisement  of  the  vacancies  after  being  determined.  The  rules  further  

provide  for  implementation  of  reservation  policies  in  favour  of  Scheduled  

Castes, Scheduled Tribes and Other Backward Classes. As the reservation  

policy is to be implemented, a number of vacancies to be filled up is to be  

determined, otherwise it would not be possible to implement the reservation  

policy  at  all.  Thus,  in  view  of  the  above,  the  question  of  taking  into  

consideration the anticipated vacancies, as per the judgment in Malik Mazhar   

Sultan  (supra),  which  had  not  been  determined  in  view  of  the  existing  

statutory rules could not arise.

25. In view of above, we do not find any force in the submissions that the  

High  Court  could  have  filled  vacancies  over  and  above  the  vacancies  

advertised on 19.5.2007, as per the directions issued by this Court in  Malik  

Mazhar Sultan’s case (supra). More so, no explanation could be furnished by  

Shri Ranjit Kumar, learned senior counsel for the appellants as to why the  

appellants  could  not  challenge  the  advertisement  itself,  if  it  was  not  in  

conformity with the directions issued by this court in the said case.

26. It has further been submitted on behalf of the appellants that the Delhi  

High Court vide its judgment and order dated 3.10.2008 had issued directions  

to offer appointment to two persons implementing the said judgment in Malik  

Mazhar Sultan’s case (supra) whose names appeared in select list at SI. Nos.  

14 and 15, and, as the High Court had implemented the said directions, the  

appellants could not be treated with such hostile discrimination. Undoubtedly,  

the directions had been issued to fill up two vacancies over and above the

vacancies notified. However, that part of the judgment is not under challenge  

before us. In such a fact situation, it is neither desirable nor permissible in law  

to make any comment on that. A person whose name appears in the select  

list does not acquire any indefeasible right of appointment. Empanelment at  

the best is a condition of eligibility for purpose of appointment and by itself  

does not amount to selection or create a vested right to be appointed. The  

vacancies have to be filled up as per the statutory rules and in conformity with  

the constitutional mandate. In the instant case, once 13 notified vacancies  

were filled up, the selection process came to an end, thus there could be no  

scope of any further appointment.

27. In view of the above, we do not find any force in these appeals which  

are accordingly dismissed.  

JUDGMENT

SLP (C) NO. 28488 and 29248 of 2008.

Navin Kumar Jha

v.

Lt. Governor & Ors.

DR. B.S. CHAUHAN, J. In view of our judgment pronounced today in CA Nos.  

1133-1135 of  2010 @ SLP(C) Nos.  3662-3664/2010@ CC Nos.  14852-14854 of  

2008  (Rakhi  Ray  & Ors.  vs.  High  Court  of  Delhi  & Ors.)  these  Special  Leave  

Petitions are dismissed.