The Supreme Court of India, in a significant ruling on judicial appointments, has held that a vacancy arising from the non-approval of a recommended candidate by the Governor must be filled by the next eligible candidate from the same merit list. The Court clarified that such a vacancy cannot be treated as an “unforeseen vacancy” to be carried forward to the next recruitment cycle under the Uttar Pradesh Higher Judicial Service Rules, 1975.
The judgment was delivered by a bench comprising Justice Ahsanuddin Amanullah and Justice S.V.N. Bhatti in an appeal filed by Tosh Kumar Sharma against a decision of the High Court of Judicature at Allahabad. The Supreme Court set aside the High Court’s order and directed the appointment of the appellant to the post of Additional District and Sessions Judge, with notional seniority from the 2016 selection process.
Background of the Case
The matter originated from the ‘Direct Recruitment to the Uttar Pradesh Higher Judicial Service-2016’ advertisement for thirty-seven posts in the Unreserved/General Category. The appellant, Tosh Kumar Sharma, participated in the selection process and was placed at serial number 38 in the final merit list published on October 1, 2020.
The Allahabad High Court recommended the top thirty-seven candidates to the Governor of Uttar Pradesh for appointment. However, the Governor approved the appointment of only thirty-six candidates, leaving the thirty-seventh post vacant as one recommended candidate was not approved.
The appellant, being the next candidate in the merit list, contended that he should have been recommended for the vacant post. Instead, the High Court’s Selection and Appointment Committee decided to carry forward the vacancy to the next recruitment cycle. This decision was challenged by the appellant before the Allahabad High Court, which negatived his claim, leading to the present appeal before the Supreme Court.
Arguments of the Parties
Mr. Ajit Kumar Sinha, learned senior counsel for the appellant, argued that all thirty-seven vacancies advertised had to be filled from the same selection process. He contended that the vacancy arose because a recommended candidate was not approved by the State Government, and it was not a casual vacancy that occurred after a candidate had joined. Therefore, the High Court was obligated to recommend the next eligible candidate in the merit list, who was the appellant.
Mr. Sinha further submitted that Rule 8(2) of the Uttar Pradesh Higher Judicial Service Rules, 1975, relied upon by the High Court, was not applicable. He argued the rule applies only when the number of selected candidates available for appointment is less than the total number of posts, which was not the situation here, as more than thirty-seven eligible candidates were on the merit list.
Per contra, Ms. Preetika Dwivedi, counsel for the Allahabad High Court, defended the decision to carry forward the vacancy. She referred to the minutes of the Selection and Appointment Committee dated June 19, 2020, which resolved: “…The post now vacated after the cancellation of his candidature will be accounted for in the next recruitment process as an unforeseen vacancy.” The Committee also resolved to make a promotion against the post to comply with the Supreme Court’s orders in the Malik Mazhar Sultan case.
Supreme Court’s Analysis and Findings
The Supreme Court, after examining the constitutional framework for judicial appointments under Articles 233, 234, and 235, proceeded to analyze the core issue: the interpretation of Rule 8(2) of the 1975 Rules.
The Court observed that while the views of a High Court Committee are given due consideration, it was convinced that “if we refuse to intervene, an unjust outcome would be perpetuated.”
The bench found that Rule 8(2) was not attracted to the facts of the case. The rule states: “If at any selection the number of selected direct recruits available for appointment is less than the number of recruits decided by the Court to be taken from that source, the Court may increase correspondingly the number of recruits to be taken by promotion from the Nyayik Sewa…”
The Court emphasized the specific terminology used: ‘selected direct recruits available for appointment’. It reasoned that this phrase accounts for a situation where a candidate from a merit list is available but not initially recommended due to the limited number of posts. If a recommended candidate is not approved, the next person on the merit list becomes “available for appointment.”
The judgment states, “Had the term only been ‘selected direct recruits’, we could have upheld the contentions of Ms. Dwivedi. However, this is immediately followed by ‘available for appointment’. The provision fundamentally negates any option of approving the High Court’s invocation of Rule 8(2) of the Rules, as the said Rule itself is cognizant of availability for appointment.”
The Court provided an example to clarify its interpretation: “Rule 8(2) could have been pressed into service when, exempli gratia, vacancies advertised were ten, but only nine candidates figured in the Merit List, leaving one clear vacancy, which would be filled-up from the Nyayik Sewa by way of promotion…”
The Court distinguished the precedents cited by the High Court, such as Vallampati Sathish Babu v. State of Andhra Pradesh, noting that the rules in those cases were different and explicitly mandated carrying forward unfilled posts or prohibited a waiting list. In contrast, the Court found that Rule 8(2) in the present case accommodates the appointment of the next meritorious candidate. The Court concluded, “To try to read it in the manner the High Court would like us to read, would do violence to the plain and clear text of the Rule.”
The Final Decision
The Supreme Court allowed the appeal and set aside the impugned judgment of the Allahabad High Court. It issued the following directions:
- The High Court and the State Government are to process and issue an Appointment Letter to the appellant within two months.
- The appellant’s seniority will be reckoned notionally as part of the 2016 selection process.
- No back-wages or other emoluments preceding the date of actual joining shall be payable.
- To prevent future litigation on inter-se seniority, the appellant shall be placed immediately below all persons appointed pursuant to the 2016 Advertisement.
The Court concluded by noting that the matter “deserved a higher level of scrutiny, which the Division Bench did not accord it.”
