Supreme Court Upholds Appointment of Civil Judges Despite Procedural Flaws: Vivek Kaisth & Anr. vs. State of Himachal Pradesh & Ors. (20 November 2023)

Date of the Judgment: 20 November 2023
Citation: 2023 INSC 1007
Judges: C.T. Ravikumar, J. and Sudhanshu Dhulia, J.
Can appointments to judicial posts be upheld even if the selection process had procedural flaws? The Supreme Court of India recently addressed this question in a case concerning the appointment of Civil Judges in Himachal Pradesh. The court, while acknowledging the procedural irregularities, ultimately upheld the appointments of the appellants, considering their years of service and the absence of any malfeasance on their part. This judgment highlights the balance between procedural correctness and the practical realities of public service. The bench consisted of Justice C.T. Ravikumar and Justice Sudhanshu Dhulia, with the majority opinion authored by Justice Sudhanshu Dhulia.

Case Background

In 2013, the Himachal Pradesh Public Service Commission (State Commission) issued an advertisement on February 1st, inviting applications for eight Civil Judge (Junior Division) posts. Six of these were existing vacancies, and two were anticipated vacancies. The preliminary examination was held on May 12, 2013, followed by the main written examination from July 15 to July 18, 2013. Eighty candidates qualified for the interview, which took place on October 7 and 8, 2013. The final list of selected candidates was published on October 8, 2013, which did not include the names of the appellants, Vivek Kaisth and Akansha Dogra.

Following the publication of the results, the State Government sought information from the Registrar General of the Himachal Pradesh High Court regarding the existing vacancies. The Registrar General, in a letter dated October 30, 2013, provided details of the existing vacancies, which included some posts that were not part of the original requisition. A meeting was held on October 21, 2013, involving officers from the State Government, the State Public Service Commission, and the High Court. This committee recommended the inclusion of additional candidates, including the appellants, based on a previous High Court decision in Shweta Dhingra v. State of H.P. & Ors.

Subsequently, the State Government, through a letter dated November 25, 2013, requested the Public Service Commission to sponsor three more candidates from the select list against newly identified roster points. Ultimately, only two names from the general category, Vivek Kaisth and Akansha Dogra, were recommended for appointment as Civil Judge (Junior Division). They were appointed on December 27, 2013, and later promoted to Civil Judge (Senior Division) on March 23, 2023.

Timeline

Course of Proceedings

The appointment of the appellants was challenged before the Himachal Pradesh High Court by one of the candidates, Shri Kuldeep Sharma, who argued that the additional vacancies should have been advertised along with the initial eight. The High Court allowed the writ petition, holding that the appointment of the appellants was illegal because they were appointed on “future vacancies” that were never advertised. However, the High Court did not grant any relief to the other candidates who had filed connected petitions.

Legal Framework

The Supreme Court referred to its earlier decisions in Malik Mazhar Sultan (3) v. Uttar Pradesh Service Commission and Malik Mazhar Sultan and Another v. Uttar Pradesh Public Service Commission and Others, which provided guidelines for timely filling of judicial vacancies. The Court noted that the directions in Malik Mazhar were to ensure that all vacancies of Civil Judge (Junior Division) are notified by January 15th of each year, including: (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, which was to be 10% of the number of posts. However, the third category was later modified by a three-judge bench in Malik Mazhar-2, which directed that only existing and anticipated vacancies for the next year should be notified, along with a waitlist.

The Court also considered the Himachal Pradesh Judicial Service Rules, 2004, which were amended to align with the directions in Malik Mazhar. However, the Court noted that the rules still included the third category of vacancies, which was removed in Malik Mazhar-2. The Court emphasized the importance of harmonizing the Service Rules with Articles 14 and 16 of the Constitution of India, as held in High Court of Kerala v. Reshma A. and Others.

The relevant provisions are:

• Malik Mazhar Sultan (3) v. Uttar Pradesh Service Commission: Directions for timely filling of judicial vacancies.
• Malik Mazhar Sultan and Another v. Uttar Pradesh Public Service Commission and Others: Clarification on the calculation of vacancies.
• Himachal Pradesh Judicial Service Rules, 2004: Rules governing the appointment of judicial officers in Himachal Pradesh.
• Article 14 of the Constitution of India: Equality before the law.
• Article 16 of the Constitution of India: Equality of opportunity in matters of public employment.

Arguments

Arguments of the Appellants (Vivek Kaisth and Akansha Dogra):

• The appellants argued that they were duly selected and appointed as Civil Judges and had been serving for nearly 10 years.
• They contended that their selection process, though flawed, did not involve any malfeasance or favoritism.
• The appellants emphasized their experience as judicial officers and argued that unseating them would not be in the public interest.

Arguments of the Respondents (State of Himachal Pradesh and Others):

• The State of Himachal Pradesh supported the High Court’s decision, stating that the appointments were made on vacancies that were not advertised.
• The respondents argued that the High Court was correct in holding that the appointments were illegal as they violated the settled position of law.

Arguments of the other candidates (Meenakshi, Parvez and Ashitosh Thakur):

• These candidates argued that the additional vacancies should have been advertised along with the initial eight vacancies.
• They contended that the inclusion of two general category candidates affected the chances of reserved category candidates.
• They argued that if a waiting list was prepared, they would have been considered for appointment.

Innovativeness of the argument: The appellants’ argument that their long service and lack of malfeasance should be considered is a novel approach, emphasizing practical realities over strict procedural compliance. The other candidates’ argument that the vacancies should have been advertised earlier was also innovative.

Issues Framed by the Supreme Court

The Supreme Court framed the following issues:

1. Whether the selection and appointment of the appellants to the post of Civil Judge (Junior Division) was valid?
2. Whether the directions of the Himachal Pradesh High Court in Shweta Dhingra (supra) were in line with the decision of the Supreme Court in Malik Mazhar Sultan (3)?
3. Whether the appointments could be made on vacancies which were not advertised?
4. Whether the appellants could be unseated from their judicial office after serving for nearly 10 years?

Treatment of the Issue by the Court

Authorities

The Supreme Court relied on the following authorities:

On Timely Filling of Judicial Vacancies:

• Malik Mazhar Sultan (3) v. Uttar Pradesh Service Commission (2008) 17 SCC 703 (Supreme Court of India): This case laid down the guidelines for timely filling of judicial vacancies.
• Malik Mazhar Sultan and Another v. Uttar Pradesh Public Service Commission and Others (2009) 17 SCC 24 (Supreme Court of India): Clarified the calculation of vacancies to be notified.

On Interpretation of Service Rules:

• High Court of Kerala v. Reshma A. and Others (2021) 3 SCC 755 (Supreme Court of India): Emphasized the need for harmonious interpretation between service rules and constitutional principles.

On Limitations of Waiting Lists:

• Gujarat State Dy. Executive Engineers’ Assn. v. State of Gujarat (1994) Supp 2 SCC 591 (Supreme Court of India): Explained the nature and purpose of a waiting list.
• Hoshiyar Singh v. State of Haryana (1993) Supp. 4 SCC 377 (Supreme Court of India): Held that Public Service Commission cannot recommend more names than advertised.
• State of Bihar v. Secretariat Asstt. Successful Examinees’ Union (1994) 1 SCC 126 (Supreme Court of India): Reiterated that appointments cannot exceed advertised vacancies.
• State of Bihar v. Madan Mohan Singh (1994) Supp 3 SCC 308 (Supreme Court of India): Reiterated that appointments cannot exceed advertised vacancies.
• Surinder Singh & Ors. v. State of Punjab & Anr. (1997) 8 SCC 488 (Supreme Court of India): Stated that candidates in the waiting list have no vested right to be appointed except to the limited extent.
• Rakhi Ray & Ors. v. High Court of Delhi & Ors. (2010) 2 SCC 637 (Supreme Court of India): Held that waiting lists cannot be used as a reservoir to fill future vacancies.

On Equitable Relief:

• Sivanandan C.T. and Ors. v. High Court of Kerala and Ors. (2023) SCC OnLine SC 994 (Supreme Court of India): Held that it would not be in public interest to unseat candidates who had been working for a long time.

On Directions of High Court:

• Shweta Dhingra v. State of H.P. & Ors. (2011) SCC OnLine HP 3566 (High Court of Himachal Pradesh): The High Court directed inclusion of 2/3rd of the actual and anticipated vacancies.

Judgment

How each authority was viewed by the Court:

• Malik Mazhar Sultan (3) v. Uttar Pradesh Service Commission [CITATION]: The court relied on this case to emphasize the need for timely filling of judicial vacancies and the importance of following the prescribed timelines.
• Malik Mazhar Sultan and Another v. Uttar Pradesh Public Service Commission and Others [CITATION]: The court used this case to clarify the calculation of vacancies and to highlight that only existing and anticipated vacancies should be notified.
• High Court of Kerala v. Reshma A. and Others [CITATION]: This case was used to emphasize the importance of harmonizing the Service Rules with Articles 14 and 16 of the Constitution of India.
• Gujarat State Dy. Executive Engineers’ Assn. v. State of Gujarat [CITATION]: The court relied on this case to explain the nature and purpose of a waiting list and to emphasize that it cannot be used as a source of recruitment for future vacancies.
• Hoshiyar Singh v. State of Haryana [CITATION]: This case was used to reinforce that Public Service Commissions cannot recommend more names than what has been advertised.
• State of Bihar v. Secretariat Asstt. Successful Examinees’ Union [CITATION] and State of Bihar v. Madan Mohan Singh [CITATION]: These cases were used to reiterate that appointments cannot exceed the advertised vacancies.
• Surinder Singh & Ors. v. State of Punjab & Anr. [CITATION]: The court used this case to clarify that candidates in the waiting list have no vested right to be appointed except to the limited extent when a candidate selected against an existing vacancy does not join.
• Rakhi Ray & Ors. v. High Court of Delhi & Ors. [CITATION]: This case was used to reiterate that waiting lists cannot be used as a reservoir to fill future vacancies.
• Sivanandan C.T. and Ors. v. High Court of Kerala and Ors. [CITATION]: The court relied on this case to justify its decision to not unseat the appellants, emphasizing that it would not be in public interest to unseat candidates who had been working for a long time.
• Shweta Dhingra v. State of H.P. & Ors. [CITATION]: The court held that the directions given by the High Court in this case were not necessary and were misplaced.

What weighed in the mind of the Court?

The Supreme Court’s decision was influenced by several factors, which can be categorized as follows:

• Procedural Flaws: The Court acknowledged that the appointments of the appellants were made on vacancies that were not advertised, which was a violation of the established legal principles.
• Length of Service: The Court emphasized that the appellants had been working as judicial officers for nearly 10 years and were now promoted to Civil Judge (Senior Division). This was a significant factor in the Court’s decision to not unseat them.
• Absence of Malfeasance: The Court noted that there was no evidence of any favoritism, nepotism, or blameworthy conduct on the part of the appellants in securing their appointments.
• Public Interest: The Court held that unseating the appellants after such a long period of service would not be in the public interest, as it would deprive the state of experienced judicial officers.
• Equity: The Court considered the special equity that leaned in favor of the appellants, given their long service and the fact that they had qualified for the judicial service.

Logical Reasoning:

The Court considered alternative interpretations, such as strictly adhering to the procedural requirements and unseating the appellants. However, it rejected this approach in favor of a more pragmatic solution that balanced the need for procedural compliance with the practical realities of public service and the equity in favor of the appellants. The final decision was reached by exercising the Court’s powers under Article 142 of the Constitution, which allows the Court to pass orders necessary to do complete justice.

The Court’s reasoning was based on the following:

• The appointments were flawed as they were made on vacancies that were not advertised.
• The appellants had served for nearly 10 years without any blemish.
• Unseating the appellants would not be in the public interest.
• There was no evidence of any malfeasance on the part of the appellants.

The majority opinion, authored by Justice Sudhanshu Dhulia, concluded that while the process of selection was flawed, the appellants should not be unseated due to their long service and the absence of any malfeasance. The Court used its powers under Article 142 to do complete justice.

“A Judge is a Judge of facts, as much as he is a Judge of law.”

“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.”

“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 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.”

Key Takeaways

• Appointments to public posts must strictly adhere to the advertised vacancies.
• Waiting lists cannot be used to fill future vacancies that were not part of the original advertisement.
• Courts may exercise their powers under Article 142 of the Constitution to do complete justice, especially in cases where there are procedural flaws but no malfeasance.
• Long service and absence of misconduct can be considered when deciding on the validity of appointments.
• This judgment sets a precedent for balancing procedural correctness with the practical realities of public service.

Directions

The Supreme Court directed that the present litigation will not come in the way of the judicial officers’ career and that they shall be treated at par with the other appointees on the post of Civil Judge (Junior Division) for that year.

Development of Law

The ratio decidendi of this case is that while appointments to public posts must strictly adhere to the advertised vacancies, courts can exercise their powers under Article 142 of the Constitution of India to do complete justice, especially when there are procedural flaws but no malfeasance and when a long period of service has been rendered. This decision clarifies that the principles of natural justice and equity can be given considerable weight in cases where procedural lapses are not accompanied by any wrongdoing or malfeasance. It also reinforces the concept that a waiting list cannot be used as a reservoir to fill future vacancies.

Conclusion

In conclusion, the Supreme Court upheld the appointment of the appellants, Vivek Kaisth and Akansha Dogra, as Civil Judges, despite acknowledging the procedural flaws in their selection process. The Court emphasized that while the appointments were made on vacancies that were not advertised, the appellants’ long service, absence of malfeasance, and the public interest in retaining experienced judicial officers justified the use of its powers under Article 142 of the Constitution to set aside the High Court’s order. This judgment reinforces the importance of procedural compliance in public appointments while also considering the practical realities and equitable factors in specific cases.

Category

Parent Category: Service Law

Child Categories:

• Judicial Appointments
• Article 142, Constitution of India
• Waiting List
• Malik Mazhar Sultan
• Himachal Pradesh Judicial Service Rules, 2004

Parent Category: Constitution of India

Child Categories:

• Article 14, Constitution of India
• Article 16, Constitution of India
• Article 142, Constitution of India

Parent Category: Himachal Pradesh Judicial Service Rules, 2004

Child Categories:

• Appointments of Civil Judges

FAQ

Q: What was the main issue in this case?

A: The main issue was whether the appointment of the appellants as Civil Judges was valid, given that they were appointed on vacancies that were not part of the original advertisement.

Q: What did the High Court decide?

A: The High Court held that the appointments were illegal because they were made on “future vacancies” that were not advertised.

Q: What did the Supreme Court decide?

A: The Supreme Court upheld the High Court’s finding that the appointments were flawed but set aside the order to unseat the appellants, considering their years of service and the absence of any malfeasance.

Q: What is Article 142 of the Constitution of India?

A: Article 142 empowers the Supreme Court to pass orders necessary to do complete justice in any cause or matter pending before it.

Q: What is the significance of the Malik Mazhar Sultan cases?

A: The Malik Mazhar Sultan cases laid down guidelines for the timely filling of judicial vacancies and clarified the calculation of vacancies to be notified.

Q: Can a waiting list be used to fill future vacancies?

A: No, a waiting list can only be used to fill vacancies that were part of the original advertisement.

Q: What is the key takeaway from this judgment?

A: The key takeaway is that while procedural compliance is important in public appointments, courts can exercise their powers to do complete justice, especially when there are procedural flaws but no malfeasance and when long service has been rendered.