Supreme Court of India
HIGH COURT OF JUDICATURE FOR RAJASTHANversusVEENA VERMA & ANR.
- Citation
- 2009 INSC 888
- Decided
- 7 July 2009
- Disposal
- Appeal(s) allowed
- Bench
- R V RAVEENDRAN
Holding
Posts created beyond the cadre strength without a specific order under Rule 6(2) are ex‑cadre and cannot be filled by direct recruitment; therefore only the seven advertised vacancies were valid.
Summary
The Rajasthan Higher Judicial Service (RHJS) advertised seven direct‑recruitment vacancies, stating that the number of posts could be increased. Veena Verma, an advocate, ranked eighth on the merit list and claimed that, based on a correct calculation of vacancies, there were actually ten posts available for direct recruitment, entitling her to appointment. The Supreme Court examined the RHJS Rules, particularly Rule 6 (strength of service) and Rule 9 (appointment limits), and held that the strength of the service can be varied only by a specific order under Rule 6(2) issued by the Governor in consultation with the High Court. Since no such order existed, posts created beyond the Schedule‑I strength are "ex‑cadre" and may be filled only by promotees, not by direct recruits. Consequently, the advertisement for seven posts was deemed final, and the petitioner could not claim a right to the eighth position. The Court set aside the High Court’s judgment, restored the dismissal of the writ petition, and allowed the appeals.
Issues considered
- The correct method of calculating vacancies for direct recruitment under the RHJS Rules.
- Whether posts created beyond the Schedule‑I strength without a Rule 6(2) order increase the cadre strength.
- Whether the petitioner could compel appointment to a post not advertised as a vacancy.
Subjects
service lawjudicial recruitmentcadre strengthRule 6Rule 9direct recruitmentex-cadre postsappointment vacancy
Judgment
[2009] 10 S.C.R. 795
HIGH COURT OF JUDICATURE FOR RAJASTHAN A
v.
VEENA VERMA & ANR.
(Civil Appeal No. 5699 of 2000)
JULY 7, 2009
8
[R.V. RAVEENDRAN AND MARKANDEY KATJU, JJ.]
Service Law:
Rajasthan Higher Judicial Service Rules, 1969: rr.6, 9 - c
Strength of service - Under r. 6(2), the strength of service may
be varied by the Governor in consultation with High Court -
Without specific order, the strength cannot be increased -
Inclusion of words in the advertisement that "the number of
posts is likely to increase" would not mean that appointment 0
was intended for more posts than advertised - On facts, since
only 7 posts were advertised, only 7 appointments could be
made - Judicial service.
An advertisement for appointment in the Rajasthan
Higher Judicial Service was published, inviting E
applications against 7 vacancies. The advertisement
stipulated that the number of posts could be increased.
Writ petitioner was a practicing Advocate and a
candidate for direct recruitment in RHJS. She stood 8th F
in the merit list of the selection. As she was not
appointed, she filed writ petition on the ground that on
correct calculations, the vacancies for direct recruitment
in RHJS in accordance with the applicable rules came to
10 and not 7 and she being the 8th selected candidate G
was entitled to appointment against the post. Single
Judge of High Court dismissed the petition. On appeal,
Division Bench was of the view that creation of posts
beyond the cadre strength mentioned in schedule-I
795 H
796 SUPREME COURT REPORTS [2009] 10 S.C.R.
A automatically implies increase in the strength in service
under sub-rule (2) of Rule 6 of RHJS Rules, 1969 and
directed to determine the number of vacancies as on
31.10.99 and in case the vacancies were more than 7 then
to consider writ petitioner for the post.
B
By a notification dated 21.12.1996, applications were
invited for appointment to 11 posts of RHJS by direct
appointment. The appellant and few other Chief Judicial
Magistrates filed writ petition on the ground that the said
posts were not available for direct recruitment. The writ
C petition was dismissed. The said order was challenged
in these appeals.
Allowing the appeals, the Court
0 Held : 1.1. The recruitment to RHJS is governed by
Rajasthan Higher Judicial Service Rules, 1969 as
amended from time to time. Rule 6 provided for the
strength of the service and also provides for varying the
strength from time to time. Rule 9 of the Rules provided
that the number of persons appointed to the Service by
E direct recruitment shall at no time exceed one third of the
total strength of service. It also provided that subject to
the aforesaid limit every fourth person, after three
persons appointed by promotion in the service, had to
be a direct recruit as far as possible. [Para 5] [801-E-G]
F
1.2. The proportion had to be maintained keeping in
view the total strength of the service. The strength of the
service as per Rule 6(1) is that specified in Schedule-I
until orders varying the same are passed under sub-rule
G (2). Sub-rule (2) of rule 6 provided that the strength of the
service may be varied by the Governor from time to time
in consultation with the Court. [Paras 14 and 15] [807-8-
D]
2. The mere inclusion of the words in the
H
HIGH COURT OF JUDICATURE FOR RAJASTHAN v. 797
VEENA VERMA & ANR.
advertisement that "the number of posts is likely to A
increase" would not mean that selection advertised for
seven posts, was intended for more posts. Since only 7
posts were advertised only 7 appointments could be
made. Since the Full Court of the High Court
recommended only 7 persons, the Government could not B
appoint more than 7. [Para 21] [809-A-C]
3. The practice followed by the authorities in
recruitment was that vacancies in the RHJS were
determined for filling every fourth post by direct
recruitment and these were advertised. At the relevant C
time, when the vacancies were advertised in the quota of
direct recruits, there were 28 vacancies, therefore seven
posts were advertised for direct recruitment in RHJS.
Hence advertisement of seven vacancies was rightfully
done. The Selection Committee was called upon to make D
the recommendation for seven posts. The list forwarded
by the Selection Committee was considered and all the
seven persons who were recommended by the Selection
- Committee were recommended by the Full Court to be
appointed. Rule 9 prescribed the maximum quota for E
direct recruits, but there was no minimum quota. It is ·
entirely in the discretion of the authorities concerned to
decide how much percent of the total vacancies in RHJS
would be allotted to direct recruits, provided the
maximum prescribed is not exceeded. [Paras 22 and 23] "F
(809-C-G]
4. As regards the process of Selection and the
provision for keeping a list ready for appointment on the
fourth post, the writ petitioner had no right to get G
appointment since the advertisement was only for seven
posts and the writ petitioner did not challenge the
advertisement. The Court cannot issue a mandamus to
increase the posts. The High Court appointed a
Committee to determine the vacancies for the period H
798 SUPREME COURT REPORTS [2009) 10 S.C.R.
A 1.8.1991 to 31.7.1992. The Committee reported that 28 ~
vacancies had occurred during the said period. On the ,..
recommendation of the said Committee, the Full Court of
the High Court resolved on 29.9.1993 that 7 vacancies
were to be filled by direct recruits. It is evident that the
B selection was only for 7 posts. In the Full Court
Resolution it was nowhere mentioned that the posts were
likely to increase. Subsequent ad hoc promotions were for
subsequent vacancies and for that there was a fresh •
advertisement. [Paras 24, 25 and 26] [809-G-H; 810-F-H;
c 811-8-C]
Shankarsan Dash vs. Union of India AIR 1991 SC 1612,
relied on.
5.1. Under sub-rule(2) of rule 6, the strength of the
D service may be varied by the Governor from time to time
in consultation with the High Court. No such order has
been passed under sub-rule (2) of Rule 6. Without such
an order it cannot be said that the strength of the service
has been increased. The posts can be created de hors
E the cadre of a service, and these are known as ex cadre
posts. The posts created without a specific order under
Rule 6(2) are ex cadre posts. Hence the temporary or
-
permanent vacancies or posts created beyond the
number of posts in Schedule-I without a specific order
F under Rule 6(2) varying Schedule-I to the Rules are only
ex cadre posts and can only be filled in by promotees,
and not by direct recruitment. [Para 27] [811-E-G; 812-A]
5.2. Rule 9(2) uses the words 'as far as possible'. This
means that there is no hard and fast rule that after every
G three persons appointed by promotion, the fourth person
has to be appointed by direct recruitment. The Division
Bench of the High Court gave a wrong interpretation of
Rule 9(2) of the Rules by observing "It does not give a
licence to the respondents to refuse to appoint every
H fourth person by direct recruitment on the ground that it ·-
HIGH COURT OF JUDICATURE FOR RAJASTHAN v. 799
VEENA VERMA & ANR.
«/ was not possible for any other reason than the A
-- maintenance of the limit of one third of the total strength
imposed by sub-rule (1) of Rule 9 on direct recruitment".
This was a wrong view taken by the Division Bench of
the High Court. The words 'as far as possible' in Rule 9(2)
give a discretion to the authorities and the Court cannot B
interfere with this discretion, unless it is palpably arbitrary.
The Division Bench of the High Court erred in law in
holding that for the purpose of direct recruitment the
temporary or permanent posts created outside the cadre
without amending Schedule-I were also be included c
while calculating the strength of the service. The Division
\ Bench also erred in holding that whenever posts are
created, the strength of the service is deemed to have-
been automatically increased although there is no order
under Rule 6(2) in this connection amending Schedule-I.
~
D
There has to be a specific order under Rule 6(2)
amending Schedule-I otherwise it cannot be said that the
strength of the cadre has been increased. Hence the
temporary or permanent posts created outside the cadre
cannot be taken into consideration for determining the
E
strength of the cadre. [Paras 28 and 30] [812-A-G]
Case Law Reference:
AIR 1991 SC 1612 relied on Para 26
F
CIVIL APPELl:.ATE JURISDICTION : Civil Appeal No.
5699 of 2000.
From the Judgment & Order dated 30.4.1999 of the High
Court of Judicature for Rajasthan at Jodhpur in D.B. Civil G
Special Appeal No. 410 of 1998.
WITH
C.A. No. 5702, 5700, 5701 of 2000.
H
800 SUPREME COURT REPORTS [2009] 10 S.C.R.
A M.R. Calla, Rakesh Dwivedi, M.N. Rao, P.S. Patwalia,
Manish Singhvi, AAG, Sushil Kumar Jain, Puneet Jain, Archana
Tiwari, Milind Kumar, Anant Prakash, Ankit Dalela, Shantanu
Krishna, Rahul Dua, Mukti Chaudhary, Preetika Dwivedi,
Annam D.N. Rao, Neelam Jain, Amit Pawan, S.K.
-
B Bhattacharya, Ajay Choudhary, Sandhya Goswami, Shobha,
Aruneshwar Gupta, Surya Kant and Sunil Kumar Jain for the
appearing parties.
The Judgment of the Court was delivered by
C MARKANDEY KATJU, J.
C.A. Nos. 5699/2000, 5702/2000 & 5700/2000
1. These appeals are directed against the judgment &
order of the Rajasthan High Court dated 30.4.1999 in 0.8.
D Special Civil Appeal No. 410/1998. CA No. 5699/2000 is filed
by the High Court of Rajasthan, C.A. No.5702/2000 is by State
of Rajasthan and C.A. No. 5700 is by a promotee Judicial
Officer.
E 2. An advertisement dated 31.10.1994 was published by
the High Court inviting applications for being considered for
appointment in the RHJS against 7 vacancies including the two
vacancies reserved for candidates belonging to Scheduled
Castes and one vacancy for a candidate belonging to
F Scheduled Tribe. It was also stipulated in the advertisement that
the number of posts could be increased.
3. Civil Writ Petition No. 4580/1996 was filed in the
Rajasthan High Court by Ms. Veena Verma, (first respondent
in CA No. 5699/2000) an Advocate practicing in Ajmer, who
G was a candidate for direct recruitm~nt in the Rajasthan Higher
Judicial Service ('RHJS' for short). She stood 8th in the merit
list of the selection. In her petition she claimed that she was
entitled to be declared selected and appointed as on a correct
calculation, the vacancies for direct recruitment in the RHJS in
H accordance with the applicable rules came to 10 and not 7, and
HIGH COURT OF JUDICATURE FOR RAJASTHAN v. 801
VEENA VERMA & ANR. [MARKANDEY KAT JU, J.]
"'I the petitioner being the 8 th selected candidate was entitled to A
appointment against the post. The learned Si11gle Judge
... dismissed the petition by judgment dated 30.3.1998. But by the
impugned judgment dated 30.4.1999, the Division Bench of the
High Court has set aside the judgment of the learned Single
Judge of the High Court and directed the High Court to B
determine the number of vacancies as on 31.10.1994, and if
the vacancies were more than seven, then consider Veena
Verma for the post in RHJS.
CA No. 5701/2000
-{\
c
4. Vide a Notification dated 21.12.1996, applications were
invited for appointment to eleven posts of RHJS by direct
recruitment. The appellant and certain other Chief Judicial
Magistrates filed WP No. 139 of 1997 for quashing the said
notification dated 21.12.1996 on the ground that the said D
number of posts were not available for direct recruitment. They
contended that ad hoc and temporary posts were being
counted and added to the sanctioned strength of RHJS service
to create more posts for direct recruits. The said writ petition
was heard along with DB(C) Special Appeal No. 410/1998. The E
said writ petition was dismissed on 30.4.1999 in view of the
judgment dated 30.4.1999 rendered in DB(C) Special Appeal
No. 410/1998. The said order is challenged in this appeal.
"
5. The recruitment to RHJS is governed by Rajasthan
F
Higher Judicial Service Rules 1969 ("the Rules" for short), as
amended from time to time. Rule 6 of the Rules provides for
the strength of the service and also provides for varying the
strength from time to time. Rule 9 of the Rules provides that
the number of persons appointed to the Service by direct
recruitment shall at no time exceed one third of the total strength G
of service. It is also provided that subject to the aforesaid limit
every fourth person, after three persons appointed by promotion
in the service, has to be a direct recruit as far as possible.
Respondent No. 1 Veena Verma contends that on a correct
application of the aforesaid rules the correct number of H
802 SUPREME COURT REPORTS [2009] 10 S.C.R.
A vacancies in RHJS at the relevant time came to 10 and not 7.
She, therefore, submitted that if the vacancies had been
correctly calculated by the High Court she would have been
among the 10 selected candidates and, therefore, would have
-
been appointed as a result of the selection.
B
6. The appellants, on the other hand, contended that the
writ petitioner (Veena Verma) had no legal right to maintain a
writ petition for getting herself declared to be selected or
appointed. According to the appellants, the vacancies had been
correctly calculated on a proper interpretation of ~he rules and
C the appellant had no right to challenge the calculation of I ,.
vacancies as she could not compel the authorities to advertise
more posts or to appoint more persons than the authorities
decided to do.
D 7. The learned Single Judge, after examining the rival
contentions, came to the conclusion that on a correct
interpretation of rule 6 of the Rules, the cadre strength can only
be changed by orders passed under sub-rule (2) of Rule 6.
According to the learned Single Judge the cadre strength is as
E specified in Schedule-I to the Rules, and it can only be changed
by an order under Rule 6 (2). The plea of Veena Verma that
there were ten vacancies on a proper calculation on the correct
interpretation of the Rules did not find favour with the learned
Single Judge. The learned Single Judge found that the selection
F was for a definite number of posts viz. 7 as advertised, though
the advertisement mentioned that the vacancies could be
increased. The learned Single Judge observed that no increase
in the vacancies was ordered or effected by the High Court and,
therefore, when there were only 28 vacancies in the RHJS, 7
was the maximum posts that could be filled by direct
G recruitment. Hence, the writ petition of Veena Verma was
rejected as she was 8th in the merit list.
8. Veena Verma challenged the order of the learned Singh
Judge in DB. (C) Special Appeal No. 410/1998. The Division
H
HIGH COURT OF JUDICATURE FOR RAJASTHAN v. 803
VEENA VERMA & ANR. [MARKANDEY KATJU, J.]
~ Bench held that posts created beyond the number specified in A
Schedule I to the Rules should be treated to be an increase in
..... strength under Rule 6(2). It referred to the number of posts
manned by members of RHJS as under:
'We had directed the learned counsel for the High
B
Court to submit before us date-wise charts showing the
vacancy position from time to time. The position which
,., emerges is that at the relevant time, the number of posts
in the RHJS mentioned in Schedule I to the Rules was 89
only against which factually more than 200 persons were
holding posts which were expected to be manned by
c
members of the RHJS. On 31.7.1992, 17 direct recruits
and 66 promotees were occupying posts in RHJS on
substantive basis whereas a total of 167 officers were
working in the posts of RHJs level including those
appointed on substantive basis, officiating basis and ad D
hoc basis. On the date of the advertisement the position
was that 20 direct recruits and 63 promotees were working
in the RHJS on substantive basis whereas the total
number of officers manning the posts of RHJS level was
204. The statistics produced by the High Court further E
shows that on 31. 7.1992, 31 Courts of District and
Sessions Judges, 56 Courts of Addi. District and Sessions
Judges and 23 Courts, which have to be manned by
Officers of the level of members of RHJS were available
in the State. The total courts available for members of F
RHJS officers were 110. Besides this, there were 5 family
courts and 18 other Tribunals and Courts expected to be
manned by RHJS officers available. Also besides this,
three posts were available on deputation either at the High
Court Registry or the State government and other G
· autonomous bodies. Thus, the total courts available for
• being manned by the RHJS Officars by 31.7.1992 were
176. It is true that so far as deputation on posts which are
not to be exclusively manned by the members of RHJS,
H
804 SUPREME COURT REPORTS (2009] 10 S.C.R.
A the Government or autonomous bodies are not obliged to
take members of the RHJS on deputation and, therefore,
sending of officers to such posts on deputation depends
upon their acceptance. Such posts, therefore, cannot be
counted while counting the strength of service. Even
B otherwise, such posts are not created by the Governor in
consultation with the court under Rule 6 (2) so that they can
be taken to be variance of the strength of the service under
Rule 6 (2) of the Rules. However, this is not the case with
the posts for which qualification for appointment itself is
c being a member of the judicial service. Such posts cannot
be taken to the posts which are not reckoned for the
purpose of determining vacancies for direct recruitment.
The position as on 31.10.1994, when the vacancies were
advertised was that, 32 courts of District Judges, 30 posts
of Courts of Addi. District and Sessions Judges, 30 posts
D
of RHJS level, 5 Consumer fora, 21 posts in Tribunals and
Boards, 39 posts for deputation to the Registry and the
State Government, 32 posts in consumer fora, totalling 219
were available, 167 officers were posted to man them.
Similarly, when 219 posts, which could be filled in by
E appointment from the member of the RHJS were available
as on 31.10.1994, only 203 officers were posted to man
them."
The Division Bench concluded that in such a situation, not to
F count such posts as are required to be manned by officers of
the level of RHJS, for the purpose of direct recruitment on the
specious excuse that they were temporary posts outside the
cadre for temporary periods would not be justified. The High
Court concluded that whenever a court is created, whatever be
G the nature or tenure of the post stated in the order creating it,
irrespective of whether Rule 6 (2) is mentioned therein or not,
posts will have to be deemed to be created under Rule 6 (2)
of the Rules enhancing the cadre strength. It therefore allowed
the appeal holding that when the advertisement gave the
H number of posts as seven, but also stated that the 'number of
HIGH COURT OF JUDICATURE FOR RAJASTHAN v. 805
VEENA VERMA & ANR. [MARKANDEY KAT JU, J.]
'~ vacancies are likely to be increased', no finality could be A
attached to the number mentioned in the advertisement and the
writ petitioner should be given appointment, if the number of
vacancies were actually more than seven.
9. The said order is under challenge in these appeals. The
B
State of Rajasthan and the promotee Judicial Officer contend
that in the absence of an order under Rule 6(2) varying the
strength of service, notifications or orders creating courts cannot
be treated as increasing the strength of the service. On the other
hand, the High Court of Rajasthan in its appeal supports the
finding of the Division Bench that any order creating a court
c
ought to be deemed as creating a post under Rule 6(2). The
High Court's challenge is limited to be direction to increase the
advertised vacancies from seven. On the contentions urged, the
points arising for decision are : (1) what would be cadre
~
strength on correct interpretation of the Rules? (2) whether the D
High Court correctly calculated the vacancies for direct
recruitment at the relevant time?; (3) whether the writ-petitioner
(Ms. Veena Verma) could compel the High Court to increase
the vacancies to the maximum permissible limit under the
restrictions provided by the rule and':k:> appoint or consider E
appointment of the appellant-petitioner to :3 post in the RHJS?
10. Rule 6 of the Rules provide for the strength of the
• Service. It reads as under :-
F
"6. Strength of the Service :
(1) The strength of the service shall, until orders varying the
same have been passed under sub-rule (2), be as
specified in Schedule I.
G
(2) The strength of the service may be varied by the
ii Governor from time to time, in consultation with the court.
(3) Notwithstanding anything contained in sub-rules (1) and
(2), the Governor may, in consultation with the Court, hold
H
'
806 SUPREME COURT REPORTS [2009] 10 S.C.R.
A any appointment to the service in abeyance for such time
as he deems fit, without thereby entitling any person to
compensation."
11. Rule 7 of the Rules provides that for the purpose of
recruitment to the Service the principles and procedures of
8
recruitment and promotion laid down shall be followed.
12. Rule 8 provides that recruitment to the Service shall
be made; (i) by promotion from amongst the members of the
Rajasthan Judicial Service or (ii) by direct recruitment from the
C advocates practicing in the court or courts subordinate thereto
for a period of not less than seven years.
13. Rule 9 provides for appointment to the Service. It reads
as under:
D "9. Appointment to the service:-
(1) Subject to the provisions of these rules, appointment
of persons to the service shall be made by the Governor
on the recommendation of the court made from time to
E time;
Provided that the number of persons appointed to the
service by direct recruitment shall at no time exceed one
third of the total strength of the service.
F (2) Subject to the provisions of sub-rule (1 ), after every
three persons appointed by promotion, the fourth person
shall, as far as possible, be appointed by direct
recruitment. If a suitable person is not available for
appointment by direct recruitment, the post may be filed
G by promotion from amongst the members of the Rajasthan
Judicial Service."
14. Rules 6, 7, 8 and 9 provide the scheme of recruitment.
The proportion of promotees and direct recruits in the RHJS
H
HIGH COURT OF JUDICATURE FOR RAJASTHAN v. 807
VEENA VERMA & ANR. [MARKANDEY KATJU, J.]
has to be maintained in accordance with rule 9. Rule 9 provides A
two things: (i) the number of persons appointed to the Service
by direct recruitment shall at no time exceed one third of the
total strength of the service. Thus, a maximum limit of one third
at any given point of time is provided for appointment of direct
recruits in the Service in the RHJS; (ii) after every three persons B
appointed by promotion, the fourth person shall, as far as
possible, be appointed by direct recruitment. The proportion
has to be maintained keeping in view the total strength of the
service.
· 15. The strength of the service as per Rule 6(1) is that
c
specified in Schedule-I until orders varying the same are
passed under sub-rule (2). Sub-rule (2) of rule 6 provides that
the strength of the service may be varied by the Governor from
time to time in consultation with the Court. The question arises
as to whether the strength of the service can be taken to be D
varied by the Governor creating courts of Addi. District Judges
or naming the places where such courts are to be established,
in consultation with the Court without specifically varying the
strength of the service under Rule 6(2). In our opinion the answer
has to be in the negative. E
16. The writ-petitioner contended that neither an
' amendment of the Schedule to the Rules, nor an order under
Rule 6(2) was necessary, and by creation of courts or posts,
the strength of the service is deemed to be varied. The F
promotees, however, submitted that the prop-er and correct
construction to be put on Rule 6 would be that mere orders
creating posts in the RHJS exceeding the number of posts
mentioned in the Schedule cannot be taken to be orders
passed under sub-rnle (2) of Rule 6 varying the strength of the
G
service.
17. It was pointed out on behalf of the respondents that the
term 'member of the Service' has been defined in Rule 3 (f) of
the Rules to mean a person appointed in a substantive capacity
H
808 SUPREME COURT REPORTS [2009] 10 S.C.R.
•
A to a post in the service. It was also pointed out that Rule 22
provides for temporary or officiating appointment of a person
from amongst the persons who are eligible for appointment to
the Service by promotion under clause (1) or under rule 8 when
temporary or permanent vacancies occur.
B
18. It was submitted on behalf of Veena Verma, the writ
petitioner, that in the advertisement in question, though 7 posts
were mentioned it was also stipulated that the posts advertised
may be increased. Hence it was submitted that the
advertisement was not for 7 posts only. It was further submitted
C that the respondents wrongly advertised only 7 posts and, in
fact, 10 posts should have been advertised.
19. It was submitted that the direct recruits have a quota
of 33% in the total cadre strength. In the schedule to the Rules,
D the cadre strength has been specified as 89, out of which only
19 posts were held by the direct recruits. In fact, 33% of 89
posts is around 30 since 19 posts were held by the direct
recruits. Hence it was contended that at least 10 more direct
recruits were required to be taken in the cadre of RHJS. It is
E submitted that this was precisely the reason why although seven
posts were mentioned in the advertisement, a rider was put that
the posts advertised may be increased. After the selections
were held, in which the petitioner also appeared, a list of
selected candidates was prepared and the list prepared by the
F Selection committee was placed before the Full Court.
20. The writ-petitioner asserted that in the select list
prepared by the Selection Committee, her name finds place
at serial No. 8. The Full Court considering that only seven posts
were to be filled, considered the case of the first seven
G candidates in the merit list and recommended them for
appointment to the Governor. The writ-petitioner further
contended that the petitioner is being denied appointment on
wrongful interpretation of Rule 6 of the Rajasthan Higher Judicial
Service Rules, 1969.
H
HIGH COURT OF JUDICATURE FOR RAJASTHAN v. 809
VEENA VERMA & ANR. [MARKANDEY KATJU, J.]
21. The appellant contested the writ petition filed by the A
~
petitioner and strenuously urged that the writ petitioner had
applied knowing fully well that the selections were limited to
seven posts only. The mere inclusion of the words in the
advertisement that "the number of posts is likely to increase"
does not mean that she can take it for granted that a selection B
which was advertised for seven posts, was intended for more
posts. We agree with this contention. Since only 7 posts were
advertised only 7 appointments could be made. However, even
+.
assuming that more than 7 appointments could be made, since
the Full Court of the High Court recommended only 7 persons c
the Government could not appoint more than 7.
22. The practice followed by the authorities in recruitment
was that vacancies in the RHJS were determined for filling every
fourth post by direct recruitment and these were advertised. At
the relevant time, when the vacancies were advertised in the D
"I
quota of direct recruits, there were 28 vacancies, therefore
seven posts were advertised for direct recruitment in RHJS.
Hence in our opinion advertisement of seven vacancies was
rightfully done. The Selection Committee was called upon to
make the recommendation for seven posts. The list forwarded E
by the Selection Committee was considered and all the seven
persons who were recommended by the Selection Committee
were recommended by the Full Court to be appointed.
1
23. It may be noted that Rule 9 prescribes the maximum. F
quota for direct recruits, but there is no minimum quota. It is
entirely in the discretion of the authorities concerned to decide
how much percent of the total vacancies in RHJS will be allotted
to direct recruits, provided the maximum prescribed is not
exceeded.
G
24. As regards the process of selection and the provision
for keeping a list ready for appointment on the fourth post, in
our opinion the writ-petitioner had no right to get appointment
since the advertisement was only for seven posts and the writ-
H
810 SUPREME COURT REPORTS [2009] 10 S.C.R.
A petitioner has not challenged the advertisement. We extract
below the resolution of the full court of the High Court
recqmmending seven candidates for appointment to RHJS:
"Having considered the recommendations of the
Committee constituted under Rule 20 (2) of the Rajasthan
B
Higher Judicial Service Rules, 1969, resolved to accept
unanimously the recommendations and to send the names
of the following selected candidates, arranged in order of
merit to the Governor for appointment to the Rajasthan
Higher Judicial Service :
c
1. Shri Bulaki Das Saraswati (Bikaner)
2. Shri Shashital Gupta (Dholpur)
3. Smt. Usha Dube, (Udaipur)
D
4. Shri Mahendra Kumar Maheshwari (Ajmer)
5. Shri Vishnu Kumar Mathur (Jaipur)
6. Miss Anuradha Sharma (Bhilwara)
E
7. Shri Sukhpal Bunde! (SC) (Dausa)."
The writ-petitioner's name was not in list of candidates
recommended by the Full Court.
F 25. The appellants also point out that the advertisement
only stated that the number of posts could be increased, but
no such increase in fact was made. We are of the opinion that
the Court cannot issue a mandamus to increase the posts. The
High Court had appointed a Committee to determine the
G vacancies for the period 1.8.1991 to 31.7.1992. The
Committee reported that 28 vacancies had occurred during the
said period. On the recommendation of the said Committee,
the Full Court of the High Court resolved on 29.9.1993 that 7
vacancies were to be filled by direct recruits. The said
H
HIGH COURT OF JUDICATURE FOR RAJASTHAN v. 811
VEENA VERMA & ANR. [MARKANDEY KATJU, J.]
+ resolution is extracted below: A
"Having considered the report of the promotion
committee, resolve that seven vacancies are determined
for direct recruitment to the RHJS cadre keeping
reservation for Schedule Castes/Scheduled Tribes as per
B
rules".
~
26. It is evident that the selection was only for 7 posts. In
the Full Court Resolution it was nowhere mentioned that the
posts were likely to increase. Subsequent ad hoc promotions
were for subsequent vacancies and for that there was a fresh c
advertisement. In our opinion, the writ petitioner could not have
any claim to be appointed against future vacancies in view of
the decision in Shankarsan Dash vs. Union of India AIR 1991
SC 1612, wherein it was observed:
D
"We, therefore, reject the claim that the appellant
had acquired a right to be appointed against the vacancy
arising later on the basis of any of the rules"
27. We cannot agree with the view of the Division Bench
of the High Court that creation of posts beyond the cadre E
strength mentioned in Schedule-I automatically implies increase
in the strength in service under sub-rule (2) of Rule 6 of the
Rules. It may be noted that under sub-rule (2) of rule 6, the
strength of the service may be varied by the Governor from time
to time in consultation with the High Court. No such order has F
been passed under sub-rule (2) of Rule 6. Without such an order
it cannot be said that the strength of the service has been
increased. It may be mentioned that posts can be created de
hors the cadre of a service, and these are known as ex cadre
posts. The posts created without a specific order under Rule G
6(2) are ex cadre posts. Hence in our opinion the temporary
or permanent vacancies or posts created beyond the number
of posts in Schedule-I without a specific order under Rule 6(2)
varying Schedule-I to the Rules areonly ex cadre posts, and can
H
812 SUPREME COURT REPORTS [2009] 10 S.C.R. '
A only be filled in by promotees, and not by direct recruitment.
•
28. It may be noted that Rule 9(2) uses the words ·as far
as possible'. In our opinion, this means that there is no hard
and fast rule that ::ifter every three persons appointed by
. B promotion, the fourth person has to be appointed by direct
recruitment. In Dur opinion, the Division Bench of the High Court
has given a wrong interpretation of Rule 9(2) of the Rules by
observing "it does not give a licence to the respondents to
refuse to appoint every fourth person by direct recruitment dn
the ground that it was not possible for any other reason than
C the maintenance of the limit of one third of the total strength
imposed by sub-rule ( 1) of Rule 9 on direct recruitment". In our
opinion this is a wrong view taken by the Division Bench of the
High Court as is evident from the words ·as far as possible' in
Rule 9(2). These words give a discretion to the authorities, and
D the Court cannot interfere with this discretion, unless it is
palpably arbitrary.
29. In our opinion, the Division Bench of the High Court
erred in law in holding that for the purpose of direct recruitment
E the temporary or permanent posts created outside the cadre
without amending Schedule-I were also to be included while
calculating the strength of the service.
30. The Division Bench also erred in holding that whenever
posts are created, the strength of the service is deemed to have
F been automatically increased although there is no order under
Rule 6(2) in this connection amending Schedule-I. In our
opinion, there has to be a specific order under Rule 6(2)
amending Schedule-I otherwise it cannot be said that the
strength of the cadre has been increased. Hence, in our opinion,
G the temporary or permanent posts created outside the cadre
cannot be taken into consideration for determining the strength
of the cadre.
31. For the reasons given above, CA No. 5699, 5702 and
H
HIGH COURT OF JUDICATURE FOR RAJASTHAN v. 813
VEENA VERMA & ANR. [MARKANDEY KATJU, J.]
5700 of 2000 are allowed. The impugned judgment of the High A
- Court is· set aside and the order of the learned Single Judge
dismissing the writ petitions filed by Veena Verma stands
restored. There shall be no order as to costs.
32. Consequently, CA No. 5701/2000 is also allowed. As
8
the High Court dismissed WP No. 139/1997 without examining
the case oh merits, in view of its judgment in the case of Veena
Verma, the order dated 30.04.1999 in WP No. 139/1997 is set
aside and the writ petition is remanded to the High Court for
disposal on merits in accordance with law.
c
D.G. Appeals allowed.
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