Supreme Court Upholds Appointments of Sub-Inspectors Despite Merit List Discrepancies: Pankjeshwar Sharma vs. State of J&K (2020)

Date of the Judgment: December 03, 2020

Citation: 2020 INSC 969

Judges: L. Nageswara Rao, Hemant Gupta, Ajay Rastogi

Can appointments made based on a statement by the Advocate General, rather than strict adherence to a merit list, be considered valid? The Supreme Court of India addressed this complex issue in a case involving the recruitment of Sub-Inspectors in Jammu & Kashmir. The core question revolved around whether the High Court was correct in upholding the appointments of 22 candidates who were not strictly in order of merit, based on a concession made by the Advocate General of the State in an earlier round of litigation. The judgment was delivered by a three-judge bench comprising Justices L. Nageswara Rao, Hemant Gupta, and Ajay Rastogi, with Justice Rastogi authoring the opinion.

Case Background

The case has a long and complex history, stemming from a recruitment process initiated in 1999 for the post of Sub-Inspector of Police (Executive) in Jammu & Kashmir. The initial advertisement (No.Pers/Rectt/SI/EX-99/A-405) was issued on February 25, 1999, by the Director General of Police, J&K, inviting applications for the post. The selection process involved a written test and a viva-voce.

Initially, the authorities prepared separate merit lists for the provinces of Jammu and Kashmir, which was not in accordance with the rules. This led to the first round of litigation. The last selected candidate from Jammu secured 56 marks, while the last selected candidate from Kashmir secured 50 marks. A select list of 252 candidates was published province-wise on April 23, 2000.

Timeline

Course of Proceedings

The initial selection process was challenged by unsuccessful candidates who argued that the province-wise merit list was illegal. The High Court of Jammu & Kashmir, in the first round of litigation, initially directed the preparation of a fresh state-wise merit list. The Division Bench modified this order, directing that candidates already selected should not be disturbed if they fell within the merit zone, but their seniority would be determined by their placement in the new merit list. This order was upheld by the Supreme Court.

Subsequently, 47 candidates who were removed from service due to the redrawn merit list approached the High Court. The High Court initially allowed them to continue in service, but later directed their removal. This led to a second round of litigation, where the Supreme Court, based on a statement by the Advocate General of the State, ordered that these 47 candidates, along with 22 others, be accommodated as Sub-Inspectors.

The third round of litigation arose when candidates who were higher in the merit list than the 22 accommodated candidates challenged their appointments. The Single Judge of the High Court ruled in favor of the petitioners, but this was overturned by the Division Bench, leading to the present appeals before the Supreme Court.

Legal Framework

The core legal issue revolves around the interpretation and application of the recruitment rules for the post of Sub-Inspector of Police (Executive) in Jammu & Kashmir. The Supreme Court emphasized that the State is bound to follow the rules of recruitment and that selections must be made as per the prescribed procedure. Any deviation from these rules would be a violation of Articles 14 and 16 of the Constitution, which guarantee equality before the law and equality of opportunity in matters of public employment.

The Court also referred to previous judgments which held that filling vacancies over and above the number advertised would be violative of these fundamental rights. The Court reiterated that even if some appointments are made erroneously, it does not confer any right of appointment to another person, as Article 14 does not envisage negative equality.

Arguments

Appellants’ Arguments:

• ✓ The appellants argued that the order of the Supreme Court dated May 10, 2007, was merely a record of the concession made by the Advocate General and not an order under Article 142 of the Constitution.
• ✓ They contended that the appointment of 22 persons as Sub-Inspectors, who were not on the redrawn merit list, deprived them of fair consideration for appointment, violating statutory rules and Article 14 of the Constitution.
• ✓ They claimed that there was no delay or laches on their part, as they were primarily aggrieved when the 22 candidates were appointed in 2008.
• ✓ The appellants also pointed out that some of them are currently serving in the police or other government departments and that not being considered for the post of Sub-Inspector is causing them mental agony.
• ✓ They stated that there are more than 100 vacant posts of Sub-Inspectors and they can be accommodated without disturbing the 22 candidates.
• ✓ They also clarified that they are not claiming any back wages.

Respondents’ Arguments:

• ✓ The respondents argued that the 47 ousted candidates had been working since 2000, had undergone training, and had participated in anti-insurgency operations.
• ✓ They stated that the State wanted to retain these candidates due to concerns about their safety.
• ✓ The respondents submitted that the Advocate General’s statement was made to settle the ongoing litigation and accommodate the 22 candidates who had been litigating since 2000.
• ✓ They pointed out that the appellants are not the senior-most 22 candidates in the redrawn merit list and that accepting their claim would disrupt appointments already made.
• ✓ The respondents also argued that the 22 candidates have served for more than 12 years.

The appellants argued that the 22 appointments were irregular and violated their right to fair consideration. The respondents, on the other hand, justified the appointments as a measure to settle long-standing litigation and accommodate candidates who had been in service for a considerable time.

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in a separate section. However, the core issue that the Court addressed was:

• Whether the appointments of 22 candidates, made based on the concession of the Advocate General and deviating from the merit list, were valid and could be sustained.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

Cases:

• ✓ State of U.P. and Others vs. Rajkumar Sharma and Others (2006) 3 SCC 330 – The Court referred to this case to highlight that filling up vacancies over and above the number of vacancies advertised would be violative of fundamental rights under Articles 14 and 16 of the Constitution.
• ✓ Arup Das and Others vs. State of Assam and Others (2012) 5 SCC 559 – This case was cited to reinforce that filling up vacancies over and above the number of vacancies advertised would be violative of fundamental rights guaranteed under Article 14 and 16 of the Constitution. It also stated that even if some appointments had been made erroneously, that did not confer any right of appointment to another person.
• ✓ Union of India and Another vs. Kartick Chandra Mondal and Others (2010) 2 SCC 422 – This case was cited to support the principle that if something is being done or acted upon erroneously, that cannot become the foundation for perpetuating further illegality.
• ✓ Gujarat State Dy. Executive Engineers’ Assn. vs. State of Gujarat (1994) Supp 2 SCC 591 – This case was cited to show that the Court had previously refused to set aside appointments made through a “wait list,” even though they were not in accordance with law, due to the length of service of the incumbents.
• ✓ Buddhi Nath Chaudhary vs. Abahi Kumar (2001) 3 SCC 328 – This case was cited to show that the Court had previously declined to disturb appointments even if they were improper, due to the incumbents’ long service and experience.

Judgment

The Supreme Court, while acknowledging that the appointments of the 22 candidates were irregular, decided not to disturb them. The Court noted that the appointments were made based on a concession by the Advocate General, with the intention to give quietus to the long-standing litigation.

The Court emphasized that the order of May 10, 2007, was not made under Article 142 of the Constitution but was based on the Advocate General’s concession. The Court also observed that the 22 candidates had served for over 12 years.

The Court held that the appointments, though irregular, could not be deemed illegal, and that the appellants could not claim negative equality to perpetuate an error.

How each authority was viewed by the Court:

• ✓State of U.P. and Others vs. Rajkumar Sharma and Others [CITATION]*: The Court used this case to highlight that filling vacancies beyond the advertised number violates Articles 14 and 16 of the Constitution.
• ✓Arup Das and Others vs. State of Assam and Others [CITATION]*: The Court used this case to reinforce that filling vacancies beyond the advertised number violates Articles 14 and 16 and that erroneous appointments do not confer rights.
• ✓Union of India and Another vs. Kartick Chandra Mondal and Others [CITATION]*: The Court used this case to support the principle that if something is being done or acted upon erroneously, that cannot become the foundation for perpetuating further illegality.
• ✓Gujarat State Dy. Executive Engineers’ Assn. vs. State of Gujarat [CITATION]*: The Court used this case as a precedent where appointments were not set aside due to the length of service.
• ✓Buddhi Nath Chaudhary vs. Abahi Kumar [CITATION]*: The Court used this case as a precedent where appointments were not disturbed due to long service and experience.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the following factors:

• ✓ The fact that the 22 candidates had been serving for over 12 years.
• ✓ The desire to bring an end to the long-standing litigation.
• ✓ The fact that the appointments were made based on a concession by the Advocate General, with a bonafide intention to settle the issue.
• ✓ The principle that negative equality cannot be claimed to perpetuate an error.

The Court emphasized that while the appointments were irregular, they were not illegal and that disturbing them after such a long period would not be in the interest of justice.

The Court’s decision was more influenced by the factual aspects of the case, particularly the long service of the 22 candidates and the need to end the litigation. The legal aspects, such as the violation of recruitment rules, were considered but given less weight in the final decision.

Key Takeaways

• ✓ Appointments made deviating from the merit list can be upheld in exceptional circumstances, especially when there is a long-standing litigation and the appointments are based on a bonafide concession by the State.
• ✓ The principle of negative equality cannot be used to perpetuate an error, and the Court may not force the State to continue with an irregular action.
• ✓ Length of service and the need to give quietus to long-standing disputes can be significant factors in the Court’s decision-making process.
• ✓ While adherence to recruitment rules is essential, the Court may consider equitable factors in cases where appointments have been made irregularly but not illegally.

Directions

The Supreme Court did not give any specific directions, as it dismissed the appeals and upheld the appointments of the 22 candidates.

Development of Law

The ratio decidendi of this case is that while appointments should ideally be made strictly according to merit and recruitment rules, the Court may uphold irregular appointments under exceptional circumstances, particularly when they are made to settle long-standing litigation, based on a bonafide concession by the State, and when the incumbents have served for a considerable period. This judgment does not change the previous position of law that appointments should be made strictly in accordance with the rules, but it carves out an exception for certain extraordinary situations.

Conclusion

In conclusion, the Supreme Court dismissed the appeals, upholding the appointments of the 22 Sub-Inspectors, despite acknowledging that these appointments were irregular. The Court’s decision was influenced by the long service of the candidates, the desire to end the long-standing litigation, and the bonafide intention behind the Advocate General’s concession. The judgment underscores the importance of following recruitment rules while also recognizing that exceptional circumstances may warrant deviations, especially when equitable considerations are involved.