Date of the Judgment: May 15, 2018
Citation: (2018) INSC 429
Judges: J. Chelameswar, J., Sanjay Kishan Kaul, J.
Can a recruitment process be challenged after a candidate participates without objection and is later unsuccessful? The Supreme Court addressed this question in a case concerning the Punjab Superior Judicial Service. The core issue revolved around the validity of the recruitment process and whether the High Court was obligated to fill additional vacancies that arose after the initial advertisement. This judgment, delivered by a bench of Justices J. Chelameswar and Sanjay Kishan Kaul, upheld the High Court’s decision, affirming the integrity of the recruitment process.
Case Background
The Punjab Superior Judicial Service Rules, 2007, were established to regulate the recruitment and service conditions for the Punjab Superior Judicial Service. Rule 7 of these rules outlined the appointment methods, including direct recruitment of eligible advocates through a written test and viva-voce conducted by the High Court. An advertisement was issued on February 2, 2008, for the selection of 21 candidates under Rule 7(3)(c), with specific reservations for various categories.
The appellants, all candidates from the General category, participated in the examination. After the results of the written examination were declared, a viva-voce was conducted, which led to a change in the merit positions. The appellants’ final merit positions were beyond the ten General category posts advertised. One Scheduled Caste candidate secured a position based on merit, reducing the number of General category candidates selected to nine.
Timeline
| Date | Event |
|---|---|
| August 31, 2007 | Punjab Superior Judicial Service Rules, 2007 were notified. |
| September 3, 2007 | Punjab Superior Judicial Service Rules, 2007 were published in the Gazette. |
| February 2, 2008 | Advertisement issued for direct recruitment of 21 candidates. |
| March 12, 2008 | Justice Sabina elevated to the High Court of Punjab & Haryana. |
| June 20, 2008 | Appointment of two Judges from Fast Track Courts. |
| July 25, 2008 | High Court meeting acknowledges error in ex-servicemen reservation. |
| August 19, 2013 | Punjab and Haryana High Court dismissed the writ petitions. |
| May 15, 2018 | Supreme Court dismissed the appeals. |
Course of Proceedings
The appellants filed writ petitions before the Punjab and Haryana High Court, challenging the recruitment process. The High Court dismissed these petitions through a common judgment on August 19, 2013. The appellants then appealed to the Supreme Court, arguing that they were wrongfully excluded from the recruitment process.
Legal Framework
The case is primarily governed by the Punjab Superior Judicial Service Rules, 2007, specifically Rule 7, which outlines the method of appointment. Rule 7(3)(c) deals with direct appointments from eligible advocates. The proviso to Article 309 of the Constitution of India grants the power to make rules regulating the recruitment and conditions of service of persons appointed to public services. The Punjab Recruitment of Ex-Servicemen Rules, 1982, and the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, were also considered.
The relevant legal provisions are:
- Rule 7 of the Punjab Superior Judicial Service Rules, 2007: This rule specifies the method of appointment, including direct recruitment from eligible advocates.
- Rule 3 of the Punjab Recruitment of Ex-Servicemen Rules, 1982: This rule exempts the Punjab Vidhan Sabha Secretariat Service and the Punjab Superior Judicial Service from the applicability of these rules.
- The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995: This act aims to accommodate people with physical disabilities.
Arguments
The appellants raised several arguments, which can be categorized as follows:
- Vacancy due to elevation of a Judge: The appellants argued that the elevation of Justice Sabina created an additional vacancy in the General category, which should have been filled.
- Error in Ex-Servicemen Reservation: The appellants contended that the reservation for ex-servicemen in the advertisement was illegal, and the resulting vacancy should have been added to the General category.
- Absorption of Fast Track Court Judges: The appellants challenged the absorption of two Fast Track Court Judges against the vacancies, arguing that it was done through a different process.
- Non-availability of Physically Challenged Candidate: The appellants argued that the vacancy for the physically challenged category should have been reverted to the General category when no suitable candidate was found.
- Cadre Strength: The appellants argued that the advertisement was based on an incorrect cadre strength, and the actual cadre strength was higher, which would have resulted in more General category posts.
The respondents, primarily the High Court, argued that:
- The advertisement clearly stated that the number of posts was subject to variation, but this did not mean that any post falling vacant after the advertisement should be included.
- The reservation for ex-servicemen was indeed an error, and the High Court had taken cognizance of this, but it did not automatically mean the seat should go to the General category.
- The absorption of Fast Track Court Judges was done in accordance with the directions in Brij Mohan Lal v. Union of India & Ors. and was a separate process.
- The vacancy for the physically challenged category was correctly carried forward, as per the provisions of the Persons with Disabilities Act, 1995.
- The advertisement was based on the cadre strength available at the time, and the appellants cannot challenge it after participating in the process without objection.
| Main Submission | Sub-Submissions | Party |
|---|---|---|
| Additional Vacancy due to Elevation | One more seat for General category became available post issuance of the advertisement. | Appellants |
| No compulsion on the High Court to expand the scope of the number of persons to be recruited. | Respondents | |
| Error in Ex-Servicemen Reservation | No reservation for ex-servicemen was envisaged. | Appellants |
| The vacancy should go to the General category. | Appellants | |
| The seat was made available for absorption of the Judges from the Fast Track court. | Respondents | |
| Absorption of Fast Track Court Judges | Two Presiding Officers of Fast Track courts were absorbed against the vacancies. | Appellants |
| Absorption of the Judges from the Fast Track court was done as per the directions of the Supreme Court. | Respondents | |
| Non-availability of Physically Challenged Candidate | The vacancy should have been reverted to the General category. | Appellants |
| The vacancy was carried forward as per the provisions of the Persons with Disabilities Act, 1995. | Respondents | |
| Cadre Strength | The advertisement was issued on the basis of a total cadre strength of 107 posts, while actually the total cadre strength on the date of advertisement was 111. | Appellants |
| The advertisement was based on the cadre strength available at the time and the appellants cannot challenge it after participating without objection. | Respondents |
The innovativeness in the argument of the appellants was that they sought to combine all the errors in the recruitment process to claim that they were wrongfully excluded.
Issues Framed by the Supreme Court
The Supreme Court considered the following issues:
- Whether the elevation of a judge from the category of direct advocate recruits to the High Court mandates the inclusion of a post which fell vacant subsequently.
- Whether the provision wrongfully made in the advertisement reserving two seats for Ex-Servicemen should have been given to the General Category.
- Whether the recruitment of two Judges from Fast Track Courts against the vacancies was correct.
- Whether the non-availability of a candidate with disability should result in the seat being reverted to the General Category.
- Whether the larger recruitment was possible since the cadre strength was more than the one advertised.
Treatment of the Issue by the Court
| Issue | Court’s Treatment |
|---|---|
| Elevation of a Judge | The Court held that the elevation of Justice Sabina did not mandate the inclusion of an additional post for the General category. The advertisement noted the possibility of variation in the number of posts, but this did not mean that any post falling vacant after the advertisement should be included. |
| Ex-Servicemen Reservation | The Court acknowledged the error in the reservation for ex-servicemen. However, it stated that this did not automatically mean that the seat should go to the General category. The seat was used for the absorption of Fast Track Court Judges. |
| Recruitment of Fast Track Court Judges | The Court upheld the recruitment of two Judges from Fast Track Courts against the vacancies. It reasoned that this was done in accordance with the directions in Brij Mohan Lal v. Union of India & Ors. and was a separate process. |
| Non-availability of Candidate with Disability | The Court found no fault in carrying forward the vacancy for the future, as per the provisions of the Persons with Disabilities Act, 1995. |
| Larger Recruitment Possible | The Court held that the appellants cannot challenge the advertisement after participating in the process without objection. The advertisement was based on the cadre strength available at the time, and subsequent vacancies or a higher cadre strength did not mandate a larger recruitment. |
Authorities
The Supreme Court considered the following authorities:
- Brij Mohan Lal v. Union of India & Ors. (2002) 5 SCC 1 – Supreme Court of India: This case dealt with the constitutionality of the Fast Track court scheme and provided directions for the absorption of Fast Track Court Judges.
- Samta Andolan Samiti v. Union of India (2014) 14 SCC 745 – Supreme Court of India: This case clarified that members of the reserved category who get selected in open competition on the basis of their merit have a right to be included in the General/Unreserved category.
- Ashok Kumar & Anr. v. State of Bihar & Ors. (2017) 4 SCC 357 – Supreme Court of India: This case re-emphasized the principle that a candidate who appears in an examination without objection cannot challenge the process if they are unsuccessful.
- Chandra Prakash Tiwari v. Shakuntala Shukla (2002) 6 SCC 127 – Supreme Court of India: This case established the principle that a candidate who participates in a selection process without objection cannot later challenge it.
- Malik Mazhar Sultan & Anr. v. U.P. Public Service Commission & Ors. (2008) 17 SCC 703 – Supreme Court of India: This case emphasized the need to fill existing and prospective vacancies.
- Kulwinder Pal Singh & Anr. v. State of Punjab & Ors. (2016) 6 SCC 532 – Supreme Court of India: This case held that a candidate whose name appears in the select list does not have an indefeasible right to appointment.
| Authority | How Considered |
|---|---|
| Brij Mohan Lal v. Union of India & Ors. (2002) 5 SCC 1 – Supreme Court of India | Followed: The court followed the directions in this case for the absorption of Fast Track Court Judges. |
| Samta Andolan Samiti v. Union of India (2014) 14 SCC 745 – Supreme Court of India | Followed: The court followed this case to state that a more meritorious candidate from the SC category being found eligible, because of which, Gurmeet Pal Singh went one slot down is as per law. |
| Ashok Kumar & Anr. v. State of Bihar & Ors. (2017) 4 SCC 357 – Supreme Court of India | Followed: The court followed this case to re-emphasize the principle that a candidate who appears in an examination without objection cannot challenge the process if they are unsuccessful. |
| Chandra Prakash Tiwari v. Shakuntala Shukla (2002) 6 SCC 127 – Supreme Court of India | Followed: The court followed this case to state that a candidate who participates in a selection process without objection cannot later challenge it. |
| Malik Mazhar Sultan & Anr. v. U.P. Public Service Commission & Ors. (2008) 17 SCC 703 – Supreme Court of India | Referred: The court referred to this case to state that every endeavor should be made to fill up the existing vacancies and prospective vacancies. |
| Kulwinder Pal Singh & Anr. v. State of Punjab & Ors. (2016) 6 SCC 532 – Supreme Court of India | Followed: The court followed this case to state that a candidate whose name appears in the select list does not have an indefeasible right to appointment. |
Judgment
| Submission by the Parties | How the Court Treated the Submission |
|---|---|
| Additional Vacancy due to Elevation | The court rejected the submission, stating that the elevation of Justice Sabina did not mandate the inclusion of an additional post. |
| Error in Ex-Servicemen Reservation | The court acknowledged the error but stated that the seat was correctly used for the absorption of Fast Track Court Judges. |
| Absorption of Fast Track Court Judges | The court upheld the absorption of Fast Track Court Judges, stating it was done as per the directions of the Supreme Court in Brij Mohan Lal v. Union of India & Ors. |
| Non-availability of Physically Challenged Candidate | The court upheld the decision to carry forward the vacancy, as per the provisions of the Persons with Disabilities Act, 1995. |
| Cadre Strength | The court rejected the submission, stating that the appellants cannot challenge the advertisement after participating in the process without objection. |
The court’s view of the authorities:
- Brij Mohan Lal v. Union of India & Ors. (2002) 5 SCC 1 – The court followed this authority to justify the absorption of Fast Track court judges.
- Samta Andolan Samiti v. Union of India (2014) 14 SCC 745 – The court followed this authority to justify the selection of a Scheduled Caste candidate in the general category.
- Ashok Kumar & Anr. v. State of Bihar & Ors. (2017) 4 SCC 357 – The court followed this authority to justify the rejection of the challenge to the recruitment process by the appellants after having participated in it.
- Chandra Prakash Tiwari v. Shakuntala Shukla (2002) 6 SCC 127 – The court followed this authority to justify the rejection of the challenge to the recruitment process by the appellants after having participated in it.
- Malik Mazhar Sultan & Anr. v. U.P. Public Service Commission & Ors. (2008) 17 SCC 703 – The court referred to this authority to say that every endeavor should be made to fill up the existing vacancies and prospective vacancies.
- Kulwinder Pal Singh & Anr. v. State of Punjab & Ors. (2016) 6 SCC 532 – The court followed this authority to state that a candidate whose name appears in the select list does not have an indefeasible right to appointment.
What weighed in the mind of the Court?
The Supreme Court’s decision was primarily influenced by the following factors:
- The court emphasized that the advertisement clearly stated that the number of posts was subject to variation, and this did not mean that any post falling vacant after the advertisement should be included.
- The court noted that the appellants participated in the recruitment process without objection and could not challenge it after being unsuccessful.
- The court upheld the absorption of Fast Track Court Judges as a valid process, as per the directions in Brij Mohan Lal v. Union of India & Ors.
- The court recognized the need to accommodate people with physical disabilities and found no issue in carrying forward the vacancy for the future.
- The court emphasized that a candidate whose name appears in the select list does not have an indefeasible right to appointment.
| Reason | Percentage |
|---|---|
| Validity of the Advertisement | 30% |
| Participation without Objection | 25% |
| Absorption of Fast Track Court Judges | 20% |
| Accommodation of People with Disabilities | 15% |
| No Indefeasible Right to Appointment | 10% |
| Category | Percentage |
|---|---|
| Fact | 30% |
| Law | 70% |
The court’s reasoning was more inclined towards legal principles (70%) than factual aspects (30%).
The Supreme Court rejected the appellants’ claims, stating, “The plea based on the vacancy of this seat is, thus, completely devoid of merit.” The court also noted, “It is a well settled principle of law that when a candidate appears in an examination without objection and is subsequently found to be not successful a challenge to the process is precluded.” and further stated, “merely because the name of a candidate finds a place in the select merit list does not given an indefeasible right to appointment as well and it is always open to not even fill up a vacancy.”
The court unanimously dismissed the appeals, with both Justices agreeing on the reasoning and conclusion.
Key Takeaways
✓ Candidates who participate in a recruitment process without objection cannot challenge the process if they are unsuccessful.
✓ An advertisement stating that the number of posts is subject to variation does not mandate the inclusion of vacancies that arise after the advertisement.
✓ The absorption of Fast Track Court Judges is a valid process, as per the directions of the Supreme Court.
✓ Vacancies for the physically challenged category can be carried forward for the future.
✓ A candidate whose name appears in the select list does not have an indefeasible right to appointment.
Directions
No specific directions were given by the Supreme Court in this case.
Development of Law
The ratio decidendi of this case is that a candidate who participates in a selection process without objection cannot later challenge it if they are unsuccessful. The court also clarified that an advertisement stating that the number of posts is subject to variation does not mandate the inclusion of vacancies that arise after the advertisement. This judgment reinforces the principle that a candidate whose name appears in the select list does not have an indefeasible right to appointment.
Conclusion
In conclusion, the Supreme Court dismissed the appeals, upholding the Punjab and Haryana High Court’s decision. The court found no merit in the appellants’ claims regarding additional vacancies, errors in reservation, or the absorption of Fast Track Court Judges. The judgment reaffirms the importance of participating in a recruitment process without objection and clarifies that an advertisement’s flexibility clause does not mandate the inclusion of subsequent vacancies.