REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO.57   OF 2008

Ramesh Kumar       … Petitioner

             Vs.

High Court of Delhi & Anr.       … Respondents

(With W.P. (C) No.66/2008)  

J U  D G M E N T  

Dr. B.S. CHAUHAN, J

1. These  two  petitions  have  been  filed  under  Article  32  of  the  

Constitution of India for seeking directions to the respondents i.e. the High  

Court  of  Delhi  and  Govt.  of  NCT of  Delhi  to  offer  appointment  to  the  

petitioners on the posts in the cadre of District Judge.  

2. The facts and circumstances giving rise to these petitions 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  on

19.5.2007.  Out  of  these  20  vacancies,  13  were  to  be  filled  up  from the  

General  Category  candidates,  3  from Scheduled  Castes  candidates  and 4  

from Scheduled Tribes candidates.  The petitioners who belong to Scheduled  

Castes  category  faced  the  selection  process.  The  result  was  declared  on  

3.1.2008. All the three vacancies reserved for Scheduled Castes candidates  

could  not  be  filled  up  as  the  Respondent  No.  1  found  only  one  person  

suitable for the post. The two petitioners herein were found unsuitable on the  

ground that they did not secure the required minimum marks in interview.  

Hence, these petitions.

3. Shri V. Shekhar, learned senior counsel appearing for the petitioners  

has submitted that in view of decision taken by the Respondent No. 1, a  

candidate  belonging  to  Scheduled  Castes  Category  would  be  called  for  

interview  provided  he  secured  45%  marks  in  written  test.  Only  three  

candidates belonging to the said category stood qualified in the written test,  

thus, they could have been offered the appointment without asking them to  

complete the formality of facing the interview.  It was not permissible for  

the Respondent No. 1 to fix minimum Bench Marks at the interview level  

also for the purpose of selection.  The petitions deserve to be allowed and  

the respondents be directed to offer the appointment to the petitioners.  

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4. Per contra, Shri A. Mariarputham, learned senior counsel appearing  

for the respondents has vehemently opposed the petitions contending  that  

mere passing the written test is not sufficient  for appointment as some of the  

required  qualities  of  a  candidate  can  be  assessed  only  in  viva-voce/oral  

examination.  The  competent  authority  is  permitted  in  law  to  fix  the  

minimum marks at  interview level  also.   In case,  the candidate  does not  

secure the marks so fixed, the candidate cannot claim the appointment to the  

post.   Decision for fixing the cut-off marks in the written test and further for  

securing the minimum Bench Marks in the interview had been taken prior to  

initiation of selection process and was made public at the same time. The  

petitioners did not challenge the said criteria at the appropriate stage. Once  

they had  appeared in the examination and could not succeed, petitioners  

cannot be permitted to take U-turn and challenge the selection process on  

this ground at all. The petitions lack merit and are liable to be dismissed.

5. We have considered the rival submissions made by learned counsel  

for the parties and perused the record.  

6. The  advertisement  dated  19.5.2007  provided  that  selection  process  

would be in two stages as it would comprise of  written examination  

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carrying 750 marks and Viva-Voce carrying 250 marks. Respondent  

No.1, the Delhi High Court furnished detailed information about the  

pattern  of  selection  process  in  the  instructions  annexed  to  the  

application form.  It provided 50% minimum qualifying marks in the  

written examination as well as in the interview for General Category  

candidates  and  45%  for  Scheduled  Castes  and  Scheduled  Tribes  

candidates.   

The relevant part of the said instruction reads as under:

“A candidate shall be eligible to appear in the viva-voce only   in case he secures 50% marks in the written examination i.e.   aggregate of  both parts  (objective/descriptive)  in the case of   general  category,  and  45%  marks  in  the  case  of  reserved   category.   

Interview/viva-voce  will  carry  250  marks.   A  candidate  of   general category must secure a minimum of 50% marks and a  candidate of reserved category must secure a minimum, of 45%  marks in the viva-voce”.

It was also provided that final merit list will be drawn up from among  

the  candidates  who  have  secured  the  stipulated  minimum  marks  in  the  

written examination and also the stipulated minimum marks in the viva-voce  

by adding up the marks in the written examination and the viva-voce.

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     RESULT OF THE PETITIONERS REMAINED AS UNDER     

Name Marks  obtained  in  written test  Out of  750

Marks  obtained  in  interview  Out of 250

Grand total

Out of 1000

Result

Ramesh Kumar 357.50 105.00 462.50 Not  qualified  in  interview

Desh Raj Chalia 341.50  83.00 424.50 Not  qualified  in  interview

It  is  thus evident  that  the petitioners  were found unsuitable  on the  

ground  that  they  failed  to  secure  minimum  Bench  Marks  i.e.  112.50  in  

interview.

7. As  per  the  submissions  advanced  by  the  learned  counsel  for  the  

Respondent No.1, the High Court of Delhi had fixed the said criteria being  

empowered  by  the  statutory  provisions  contained  in  The  Delhi  Higher  

Judicial  Service  Rules,  1970  (hereinafter  called  ‘the  Rules”).   Rule  10  

thereof reads as under:

“The High Court shall before making recommendations   to the Administrator invite applications by advertisement and  may require the applicants to give such particulars as it may  prescribe  and  may  further  hold  such  tests  as  may  be  considered necessary.”   ( Emphasis added)  

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8. The  aforesaid  statutory  provision  undoubtedly  does  not  fix  any  

particular criteria or minimum Bench Marks either in the written test or in  

interview for the purpose of selection.  Rule 10 provides that the High Court  

“may  hold  such  tests  as  may  be  considered  necessary”, it  impliedly  

provides  for  requirement  necessary  for  assessment  of  suitability  of  a  

candidate.  There is  no challenge to the validity of  Rule  10 in these writ  

petitions. The question does arise as to whether the Rules enabled the High  

Court to fix the minimum Bench Marks for interview?  

9. In  State  of  U.P.  v.  Rafiquddin  & Ors.,  AIR  1988  SC 162;  Dr.  

Krushna Chandra Sahu & Ors.  v. State of Orissa & Ors.  AIR 1996 SC  

352;  Majeet  Singh,  UDC  &  Ors.  v. Employees’  State  Insurance  

Corporation & Anr. AIR 1990 SC 1104; and K.H. Siraj v. High Court of  

Kerala & Ors. AIR 2006 SC 2339, this Court held that Commission/Board  

has to satisfy itself that a candidate had obtained such aggregate marks in the  

written test as to qualify for interview and obtained “sufficient marks in viva  

voce”  which  would  show  his  suitability  for  service.   Such  a  course  is  

permissible for adjudging the qualities/capacities of the candidates. It may  

be necessary in view of the fact that it is imperative that only persons with a  

prescribed  minimum  of  said  qualities/capacities   should  be  selected  as  

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otherwise the standard of judiciary would get diluted and sub-standard stuff  

may  get  selected.  Interview may also  be the  best  mode  of  assessing  the  

suitability  of  a candidate for a particular  position as it  brings out  overall  

intellectual qualities of the candidates. While the written test will testify the  

candidate’s  academic  knowledge,  the  oral  test  can  bring  out  or  disclose  

overall  intellectual  and  personal  qualities  like  alertness,  resourcefulness,  

dependability, capacity for discussion, ability to take decisions, qualities of  

leadership etc. which are also essential for a Judicial Officer.  

10. Re-iterating similar views, this Court has given much  emphasis on  

interview in  Lila Dhar v. State of Rajasthan & Ors., AIR 1981 SC 1777; and  

Ashok Kumar Yadav & Ors. v. State of Haryana & Ors.  AIR 1987 SC 454  

stating  that   interview  can  evaluate  a  candidate’s  initiative,  alertness,  

resourcefulness,  dependableness,  co-operativeness,  capacity  for  clear  and  

logical presentation, effectiveness in discussion, effectiveness in meeting and  

dealing with others, adaptability, judgment, ability to make decision, ability to  

lead, intellectual and moral integrity with some degree  of error.

11. In Shri Durgacharan Misra v. State of Orissa & Ors. AIR 1987 SC  

2267, this Court considered the Orissa Judicial Service Rules which did not  

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provide for  prescribing the  minimum cut-off  marks  in   interview for  the  

purpose  of  selection.  This  Court  held  that  in  absence  of  the  enabling  

provision  for  fixation  of  minimum marks  in  interview would  amount  to  

amending the rules itself.  While deciding the said case, the Court placed  

reliance  upon  its  earlier  judgments  in  B.S.  Yadav  &  Ors.  v. State  of  

Haryana & Ors. AIR 1981 SC 561;  P.K. Ramachandra Iyer  & Ors. v  

Union of India & Ors. AIR 1984 SC 541; and Umesh Chandra Shukla v.  

Union of India & Ors. AIR 1985 SC 1351, wherein it had been held that  

there was  no “inherent jurisdiction” of  the Selection Committee/Authority  

to lay down such norms for selection in addition to the procedure prescribed  

by the Rules. Selection is to be made giving strict adherence to the statutory  

provisions and if such power i.e. “inherent jurisdiction” is claimed, it has to  

be  explicit  and  cannot  be  read  by  necessary  implication  for  the  obvious  

reason that such deviation from the rules is likely to cause irreparable and  

irreversible harm.

12.  Similarly, in  K Manjusree v.  State of Andhra Pradesh & Anr.  

AIR 2008 SC 1470, this Court held that selection criteria  has to be adopted  

and declared at the time of commencement of the recruitment process. The  

rules of the game cannot be changed after the game is over.  The competent  

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authority, if the statutory rules do not restrain, is fully competent to prescribe  

the  minimum  qualifying  marks  for  written  examination  as  well  as  for  

interview. But such prescription must be done at the time of initiation of  

selection process. Change of criteria of  selection in the midst of selection  

process is not permissible.  

13. Thus, law on the issue can be summarised to the effect that in case the  

statutory rules prescribe a particular mode of selection, it has to be given  

strict adherence accordingly. In case, no procedure is prescribed by the rules  

and  there  is  no  other  impediment  in  law,  the  competent  authority  while  

laying down the norms for selection may prescribe for the tests and further  

specify the minimum Bench Marks for written test as well as for viva-voce.  

14. In  the  instant  case,  the  Rules  do  not  provide  for  any  particular  

procedure/criteria for holding the tests rather it enables the High Court to  

prescribe the criteria.  This Court in All India Judges’ Association & Ors.  

v  Union  of  India  &  Ors. AIR  2002  SC  1752  accepted  Justice  Shetty  

Commission’s Report in this regard which had prescribed  for not having  

minimum marks for interview.  The Court further explained that to give  

effect to the said judgment, the existing statutory rules may be amended.  

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However, till the amendment is carried out, the vacancies shall be filled as  

per the existing statutory rules.  A similar view has been reiterated by this  

Court while dealing with the appointment of Judicial Officers in Syed T.A.  

Naqshbandi & Ors. v.  State of J & K & Ors.  (2003) 9 SCC 592; and  

Malik  Mazhar  Sultan  &  Anr.  v.  Union  Public  Service  Commission  

(2007)  2  SCALE   159.   We  have  also  accepted  the  said  settled  legal  

proposition while deciding the connected cases, i.e., Civil Appeals @ SLP  

(Civil) Nos….. in CC 14852-14854 of 2008 (Rakhi Ray & Ors. v. The High  

Court of Delhi & Ors.) vide judgment and order of this date.  It has been  

clarified in Ms. Rakhi Ray (supra) that where statutory rules do not deal with  

a particular subject/issue,  so far as the appointment of the Judicial Officers  

is concerned, directions issued by this Court would have binding effect.  

15. The view taken hereinabove is in conformity with the law laid down  

by this  Court  in  Nand Kishore  v.  State  of  Punjab (1995)  6  SCC 614,  

wherein it has been observed as under :-

“Their Lordship’s decisions declare the existing law but do not   enact any fresh law, is not in keeping with the plenary function   of the Supreme Court under Article 141 of the Constitution, for   the Court is not merely the interpreter of the law as existing but   much beyond that.  The Court as a wing of the State is by itself   a source of law.  The law is what the Court says it is.”   

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16. These cases are squarely covered by the judgment of this Court in  

Hemani Malhotra v. High Court of  Delhi AIR 2008 SC 2103, wherein it  

has been held  that it was not permissible for the High Court to change the  

criteria  of selection in the midst  of  selection process.   This Court  in  All  

India  Judges’  case (supra)  had  accepted  Justice  Shetty  Commission’s  

Report in this respect i.e. that there should be no requirement of  securing  

the minimum marks in interview, thus, this ought to have been given effect  

to.  The Court had issued directions to offer the appointment to candidates  

who had secured the requisite marks in aggregate in the written examination  

as  well  as  in  interview,  ignoring  the  requirement  of  securing  minimum  

marks in interview.

17. In pursuance  of  those directions,  the Delhi  High Court  offered the  

appointment to such candidates.  Selection to the post involved herein has  

not been completed in any subsequent years to the selection process under  

challenge.   Therefore,  in  the  instant  case,  in  absence  of  any  statutory  

requirement of securing minimum marks in interview, the High Court ought  

to have followed the same principle.  In such a fact-situation, the question of  

acquiescence would not arise.

18. In view of the above, as it remains admitted position that petitioner  

Ramesh  Kumar  had  secured  46.25% marks  in  aggregate  and  as  he  was  

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required only to have 45% marks for appointment, writ  petition No.57 of  

2008 stands allowed.  The connected writ petition filed by Desh Raj Chalia  

as he failed to secure the required marks in aggregate, stands dismissed.  The  

respondents are requested to offer appointment to petitioner Ramesh Kumar,  

at the earliest,  preferably within a period of two months from the date of  

submitting the certified copy of this order before the Delhi High Court.  It is,  

however, clarified that he shall not be entitled to get any seniority or any  

other perquisite on the basis of his notional entitlement.  Service benefits  

shall be given to him from the date of his appointment.  No costs.

           ..…………………………CJI.

    ……………………………... J.           (DEEPAK VERMA)

         . ..………………………….... J.           (Dr. B.S. CHAUHAN)

New Delhi, February 1, 2010.   

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                                          REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.                  OF 2010 (Arising out of SLP (C) Nos. ………. Of  2008 in CC 14852-14854/2008)

Rakhi Ray & Ors.     …  Appellants

             Vs.

The High Court of Delhi & Ors.     …  Respondents

J U  D G M E N T  

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.    

 ………………………………

CJI.

………………………………….J. (DEEPAK VERMA)

…………………………………..J. (Dr. B.S. CHAUHAN)

New Delhi, February 1, 2010.

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

SPECIAL  LEAVE PETITION(C) NO. 28488 OF 2008

Navin Kumar Jha     …   Petitioner

             Vs.

Lt. Governor & Ors.      …  Respondents

With  SLP(C) No. 29248 of 2008

JUDGMENT

Dr.  B.S. CHAUHAN, J.

In view of  our  judgment pronounced today in CA Nos…….. of  2010 @ SLP(C)  

Nos.….… @CC Nos. 14852-14854 of 2008 (Rakhi Ray & Ors.  vs. High Court of  Delhi  

& Ors.),  these   Special Leave Petitions are dismissed.

           ..…………………………CJI.

    ……………………………... J.           (DEEPAK VERMA)

         . ..………………………….... J.           (Dr. B.S. CHAUHAN)

New Delhi, February 1, 2010.