SUDESH KUMAR GOYAL (APPELLANT) Vs. THE STATE OF HARYANA & ORS. (RESPONDENTS)

CIVIL APPEAL NO. 10861 OF 2013

(2JB, HRISHIKESH ROY and PANKAJ MITHAL JJ., delivered by PANKAJ MITHAL J.)

Facts: The common judgment and order dated 18.05.2010 passed by the Division Bench of the Punjab & Haryana High Court deciding 12 writ petitions, more particularly, writ petition No.16211 of 2009 is under challenge in the present appeal. The bunch of the above writ petitions were partially allowed but the appellant was not accorded any relief insofar as his appointment to the higher judicial service of the State under direct recruitment quota was concerned.

Issue: Whether the appellant has the right to be appointed to the vacant position to the higher judicial service owing to the resignation by the appointed candidate?

Arguments on behalf of counsel for appellant: Shri Rakesh Dahiya

It is submitted that in the light of the ratio laid down by the Apex Court in Shankarsan Dash v. Union of India (1991) 3 SCC 47, has argued that though he is conscious that the appellant by selection itself has not acquired any indefeasible right to be appointed, nonetheless, his right for appointment cannot be defeated by adopting an arbitrary approach. The respondents have acted purely in an arbitrary manner in keeping the 14th post vacant and not filling it by the appointment of the appellant. Further, it is submitted that though it is up to the employer or the State to fill up all the notified vacancies or to keep all of them or any of them vacant but it does not mean that the employer/State can act arbitrarily in not filling up those posts and the decision not to fill up the vacancies has to be a bona fide one supported by appropriate reasons. The relevant rules of 2007, do not oblige the State to fill up all the vacancies advertised.

Arguments on behalf of counsel for respondents: Shri Raju Ramachandran

The respondents, in order to justify the non-appointment of the appellant on the 14th vacancy, submitted that the notification/advertisement dated 18.05.2007 advertised 22 posts for direct recruitment in the higher judicial service, out of which 14 were meant to be filled up by general category candidates but only 13 selected general category candidates were appointed. The reason being that 5 general category candidates who were working as Additional District & Sessions Judges (Fast Track Court) in Haryana pursuant to the notification dated 26.05.2003 applied for their absorption and filed writ petition No.8587 of 2007 seeking their regularisation on substantive posts which petition came to be disposed of vide order dated 30.05.2007 directing them to make representation on administrative side to the High Court in terms of Brij Mohan Lal (1) v. Union of India (2002) 2 SCC 1 .Further, it can be noticed that initially 14 general category vacancies within the direct quota were advertised, out of which, 5 were filled up by absorption of the Fast Track Court judges in terms of the directions contained in the Brij Mohan Lal. Adding 4 general category posts which in the meantime fell vacant, all 13 vacancies were duly filled up from the selected candidates. The appellant could not be appointed as he was at serial No.14 of the merit and the posts available were only 13.

Held: The court dismissed the present appeal and held that, “In view of the reasoning given by the respondents for appointing only 13 selected candidates leaving the appellant who was at Sl. No.14, we are of the opinion that the respondents have justified the appointments and have not acted in an arbitrary manner. The respondents have acted fairly and logically without any malice against the appellant. Thus, on the touchstone of the decision cited on behalf of the appellant himself, we do not find any arbitrariness on the part of the respondents. Therefore, the decision of the Division Bench of the High Court is not liable to be disturbed on the above count, more particularly when the appellant has not acquired any indefeasible right to be appointed because he qualified in the selection process.”

Further, the court further observed that, “This apart, as may be noticed that the procedure for selection of superior/higher judicial service officers by direct recruitment from the Bar was initiated by the Punjab and Haryana High Court way back in the year 2007 and now we are in the year 2023 meaning thereby that 16 years have passed by in between. It would be a travesty of justice to keep open the selection process for such a long time and to direct at this stage to make any appointment on the basis of a selection process initiated so far back. For this additional reason also, we do not deem it proper to interfere with the impugned judgment and order of the High Court.”