Supreme Court of India
MALIK MAZHAR SULTAN & ANRversusU P PUBLIC SERVICE COMMISSION & ORS IN THE MATTER OF: STATE OF HARYANA
- Citation
- 2023 INSC 860
- Decided
- 26 September 2023
- Disposal
- Dismissed
- Bench
- D Y CHANDRACHUD
Holding
The State of Haryana cannot alter the established selection committee mechanism for judicial recruitment without cogent material, and the Supreme Court's 2009 order remains in force.
Summary
The State of Haryana sought a direction to conduct the entire recruitment of Junior Civil Judges through the Haryana Public Service Commission and to modify the Supreme Court's 12 February 2009 order that had placed the selection under a committee comprising High Court judges, the State, and the Commission. The Court examined the constitutional provisions under Articles 234, 235 and 309, the long‑standing practice since 2007 of using a selection committee, and the lack of any cogent material presented by the State to justify deviating from that practice. It noted that the Rules governing the selection expressly allow the Public Service Commission to set examination papers while the High Court’s role is limited to interview participation, and that the 2007 and 2009 orders intended a collaborative committee approach. The Court held that the State had not demonstrated any objective deficiency in the High Court’s involvement and therefore could not unilaterally alter the established procedure. Consequently, the application was dismissed and the State was directed to continue recruitment through the existing committee within two weeks.
Issues considered
- The State of Haryana may unilaterally modify the selection process for judicial officers to be conducted solely by the Public Service Commission, overriding the Supreme Court's 2009 order.
- Whether the constitutional provisions under Articles 234, 235 and 309 require consultation with the High Court and the Public Service Commission in judicial appointments.
- Whether the State has provided sufficient objective material to justify deviating from the selection committee framework established since 2007.
Legislation cited
- Constitution of Indias. Article 234, s. Article 235, s. Article 309
Subjects
Judicial recruitmentPublic Service CommissionSelection CommitteeConstitutional lawArticle 234Judicial independenceRule amendmentState vs High Court
Judgment
[2023] 12 S.C.R. 682 : 2023 INSC 860
CASE DETAILS
MALIK MAZHAR SULTAN & ANR
v.
U P PUBLIC SERVICE COMMISSION & ORS
IN THE MATTER OF: STATE OF HARYANA
IA No. 53466 of 2022 in
(Civil Appeal No. 1867 of 2006)
SEPTEMBER 26, 2023
[DR DHANANJAYA Y CHANDRACHUD, CJI.,
J. B. PARDIWALA AND MANOJ MISRA, JJ.]
HEADNOTES
Issue for consideration: The State of Haryana sought a direction that
it should be permitted to conduct the entire selection process of recruiting
judicial officers through the Public Service Commission and the order dated
12.02.2009 should be modified to facilitate this exercise.
Judicial Service – Selection process – State Government sought
selection process of recruiting judicial officers to be done through
the Public Service Commission – State Government not able to place
sufficient material to warrant deviation from the course of action
pursued since 2007:
Held: The order dated 04.01.2007 of the Supreme Court specifically
noted the importance of making timely appointments to the District
Judiciary – Order dated 11.05.2007 found fault with the understanding of
the High Court that the entire process would be carried out exclusively by
the High Court – This order, however, was modified on 12.02.2009 so as
to allow the selection process which was then underway to be concluded
by a process in which the Committee for selection composed of the Judges
nominated by the Chief Justice and the representatives of the State and the
Public Service Commission – The process which has been followed in the
State of Haryana is that the State Government has notified alterations in the
Rules so as to facilitate the selection process to the judicial service being
conducted under the supervision of a Committee consisting of three-Judges
682
MALIK MAZHAR SULTAN v. 683
U P PUBLIC SERVICE COMMISSION
of the High Court nominated by the Chief Justice, two representatives of the
State Government and a member of the Public Service Commission – It is
undisputed that since 2007, Rule 7B (Punjab Civil Service (Judicial Branch)
Haryana Amendment Rules 2020) was substituted so as to allow the selection
process to be conducted as mentioned above – If the State Government
wished to bring about any change in that position, it was incumbent upon
it to consult the High Court and to do so based on cogent material bearing
on objective data indicating the justification for abrogating the involvement
of the High Court in conducting the selection examination and overseeing
the process – However, the State Government has not placed sufficient
material to warrant a deviation from the course of action which has been
pursued since 2007, for over fifteen years, including, as recently as by the
notification dated 14.12.2020 – Accordingly, the request made by the State
Government cannot be accepted. [Paras 20, 21, 23 and 24]
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CIVIL APPELLATE JURISDICTION: IA No.53466 of 2022 in Civil
Appeal No. 1867 of 2006.
From the Judgment and Order dated 21.10.2005 of the High Court of
Judicature at Allahabad in CMWP No.40058 of 2005.
Appearances:
Lokesh Sinhal, Sr. AAG, Amit Anand Tiwari, Barun Kumar Sinha,
A.A.Gs., Mrs. Aishwarya Bhati, A.S.G., Anoop Rattan, AG, P.S. Patwalia,
Vijay Hansaria, Dr. Manish Singhvi, Jaideep Gupta, R. Bala, Sr. Advs., Ejaz
Maqbool, Dr. Monika Gusain, Ashok Mathur, Ms. Sneha Kalita, Ms. Kavya
Jhawar, Lakshmi Raman Singh, M. R. Shamshad, Shibashish Misra, Ms.
Asha Gopalan Nair, Gaurav Sharma, Naresh K. Sharma, Vinod Sharma,
G. N. Reddy, Rushab Aggarwal, Pashupathi Nath Razdan, Ms. Maitreyee
Jagat Joshi, Ms. Riddhima Juneja, Japnish Singh Bhatia, Astik Gupta, Ms.
Akanksha Tomar, P. I. Jose, James P. Thomas, Mrs. Naresh Bakshi, Anuvrat
Sharma, Naresh Kumar, K. Parameshwar, Ms. Arti Gupta, Ms. Kanti,
Chinmay Kalgaonkar, Sahil Tagotra, Ms. Abhivyakti Banerjee, Gajendra
Singh Negi, Gaurav Agrawal, Raghvendra Kumar, Anand Kumar Dubey,
Maneesh Pathak, Ms. Harsha Sharma, Arun K. Sinha, V. N. Raghupathy,
684 SUPREME COURT REPORTS [2023] 12 S.C.R.
Manendra Pal Gupta, M. Bangaraswamy, Varun Varma, S. Shashank Reddy,
Siddhartha Chowdhury, G. Prakash, M/s. Plr Chambers and Co., Ms.
Deepanwita Priyanka, Ahanthem Henry, Maibam Nabaghanashyam
Singh, Bharat Bagla, Aaditya Aniruddha Pande, Sourav Singh, Aditya
Krishna, Milind Kumar, Gopal Singh, Ranjan Mukherjee, Kaushal
Yadav, Nandlal Kumar Mishra, Pramod Kumar, Shafik Ahmed, Arjun
Raghuvanshi, Abhishek Yadav, Vipin Nair, Sumeer Sodhi, Dhruv
Wadhwa, Santosh Krishnan, Ms. Deepshikha Sansanwal, Krishnanand
Pandeya, Ms. K. Enatoli Sema, Ms. Limayinla Jamir, Amit Kumar
Singh, Ms. Chubalemla Chang, Prang Newmai, T. G. Narayanan Nair,
Shail Kumar Dwivedi, Anil K. Jha, Ms. Mantika Haryani, Ms. Muskan
Surana, Ms. Astha Sharma, Nishe Rajen Shonker, Rana Ranjit Singh,
Vivek Kumar Singh, Ravish Singh, Ms. Akanksha Singh, Avijeet Kumar,
Mrs. Sweta Singh, M/s. Parekh & Co., Ms. Uttara Babbar, Malak
Manish Bhatt, Sabarish Subramanian, Ms. Devyani Gupta, Vishnu
Unnikrishnan, C Kranthi Kumar, Ms. Tanvi Anand, Danish Saifi, Kunal
Chatterji, Ms. Maitrayee Banerjee, Rohit Bansal, Ms. Kshitij Singh,
Merusagar Samantaray, M/s. Corporate Law Group, Ms. Ruchi Kohli,
Ms. Preetika Dwivedi, Abhisek Mohanty, Atul Sharma, Sri Harsha
Peechara, Duvvuri Subrahmanya Bhanu, Ms. Kriti Sinha, Ms. Pallavi,
Rajiv Kumar Choudhry, Krishnayan Sen, Anil Shrivastav, Ms. Kamini
Jaiswal, Radha Shyam Jena, Parijat Sinha, Narendra Kumar, Arjun Garg,
Aakash Nandolia, Ms. Sagun Srivastava, Ms. Shreya Bansal, Aniket
Singh, Ms. A. Subhashini, Kamal Mohan Gupta, Prakash Kumar Singh,
Sibo Sankar Mishra, Satish Pandey, Samir Ali Khan, Pranjal Sharma,
Mrs. D. Bharathi Reddy, Ms. Adviteeya, Sai Shashank, Deepayan Dutta,
Shuvodeep Roy, Sunil Kumar Verma, Ms. Binu Tamta, M/s. Arputham
Aruna and Co, Aravindh S., Abbas, Ms. Swarupama Chaturvedi, Ms.
Chitrangda Rastaravara, Pratyush Shrivastava, Arvind Kumar Sharma,
Suvendu Suvasis Dash, Shantwanu Singh, Rahul Dubey, Ms. Pragya
Singh, Sunny Singh, Akshay Singh, Ashok Kumar Singh, Ms. G. Indira,
Jatinder Kumar Bhatia, Krishnam Mishra, Vishnu Sharma, Ms. Mrinal
Gopal Elker, Siddhesh Shirish Kotwal, Ms. Ana Upadhyay, Ms. Manya
Hasija, Tejasvi Gupta, Pawan Upadhyay, Nirnimesh Dube, Rajeev
Kumar Dubey, Ashiwan Mishra, Kamlendra Mishra, Y. Raja Gopala
Rao, Pradeep Misra, Ms. S. Janani, Pukhrambam Ramesh Kumar,
MALIK MAZHAR SULTAN v. 685
U P PUBLIC SERVICE COMMISSION
Karun Sharma, R. Sathish, Ms. Asha Jain Madan, Ms. Hemantika
Wahi, T. V. Ratnam, M. Yogesh Kanna, Raj Bahadur Yadav, Jagjit
Singh Chhabra, Ajay Pal, Mayank Dahiya, Ms. Sugandh Rathor,
Abhijit Sengupta, T. Mahipal, Santosh Kumar - I, K. K. Mohan, T.
V. George, Mrs. Bina Gupta, Sunil Kumar Jain, Ms. Rashika Swarup,
Anandh Kannan N., Siddharth, Amit Kumar Agrawal, R. Nedumaran,
Ms. Sumita Hazarika, B. Balaji, Ashwani Kumar, Karan Bharihoke,
Rajiv Shankar Dwivedi, Ms. Tulika Mukherjee, Ms. Aastha Shrestha,
Beenu Sharma, Rushab Aggarwal, Japneesh S Bhatia, Ms. Ridhima S
Juneja, Shailesh Madiyal, Braj Kishore Mishra, Ardhendumauli Kumar
Prasad, Ranjan Kumar, John Mathew, Dharam Veer Yadav, Ms. Kirti,
Sanjeev Kumar, Sanjeev Malhotra, Ms. Sakshi Kakkar, Gaichangpou
Gangmei, Omprakash Ajitsingh Parihar, Ajay Kumar Singh, Sayaree
Basu Mallik, Ms. Purnima Krishna, Talha Abdul Rahman, Devashish
Bharuka, Ms. Sarvshree, Shobhit Dwivedi, Ms. Swati Mishra, Sumeer
Sodhi, Dhruv Wadhwa, Somesh Chandra Jha, Surender Kumar Gupta,
Chitvan Singhal, P.K. Thakur, Tavleen Singh, Bimlesh Kumar Singh,
Advs. for the appearing parties.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
DR DHANANJAYA Y CHANDRACHUD, CJI
1. An application has been filed by the State of Haryana in the
proceedings in Malik Mazhar Sultan v U P Public Service Commission 1
seeking two directions:
(i) The recruitment of judicial officers in the Judicial Branch of
the Haryana Civil Service be conducted in accordance with the
provisions of Part C of the Punjab Civil Service (Judicial Branch)
Rules 19512 (as applicable to State of Haryana); and
(ii) The order of this Court dated 12 February 2009 in IA 60 of 2008
filed by the High Court of Punjab and Haryana be modified.
1 Civil Appeal No 1867 of 2006
2 “Rules”
686 SUPREME COURT REPORTS [2023] 12 S.C.R.
2. The issue bears upon the filling up of 175 posts of Junior Civil
Judges.
3. By its order dated 4 January 2007, this Court underscored that an
independent and efficient judicial system is part of the basic structure of the
Constitution and that if a sufficient number of Judges is not appointed, the
dispensation of justice to citizens would be seriously affected. The Court
noted that the judicial system faces problems arising out of delays in the
dispensation of justice for which one of the major causes is an insufficient
number of judges when compared to the large number of cases pending or
in relation to the judge-population ratio. In this backdrop, the Court issued
directions, noting that it had become necessary to take steps to ensure that
vacancies in judicial institutions are filled on a timely basis.
4. The relevant part of the order of this Court is extracted below:
“Before we issue general directions and the time schedule to be
adhered to for filling vacancies that may arise in subordinate courts
and district courts, it is necessary to note that selections are required to
be conducted by the concerned authorities as per the existing Judicial
Service Rules in the respective States/Union Territories. We may,
however, note that, progressively, the concerned authorities would
consider, discuss and eventually may arrive at a consensus that the
selection process be conducted by the High Court itself or by Public
Service Commission under the control and supervision of the High
Court. In this regard, considerable progress has already been made.
Reference can be made to the decision taken in a Conference held
between the Chief Justices and Chief Ministers, minutes whereof
show that in some of the States, selection of subordinate judicial
officers at all levels of civil judges is already being made by the High
Courts. Some States, where selection is still being made by the Public
Service Commission, were agreeable to entrust the selection to the
High Courts whereas Chief Ministers/Ministers of Himachal Pradesh,
West Bengal, Punjab and Kerala were of the view that the present
system may continue but the decision taken jointly was that in the said
States [Himachal Pradesh, West Bengal, Punjab and Kerala] setting
up of question papers and evaluation of answer sheets be entrusted
to the High Court. Further decision taken was that in other States
MALIK MAZHAR SULTAN v. U P PUBLIC SERVICE 687
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where selection of subordinate judicial officers is not being done by
the High Courts, such selection be entrusted to the High Courts by
amending relevant Rules. In this connection, with the affidavit filed
on behalf of the Calcutta High Court, a copy of the letter dated 15th
September, 2006, addressed by the Registrar General of the said Court
to the Secretary, Judicial Department, Government of West Bengal, has
also been annexed. That letter refers to the aforesaid decision taken
in the Conference of Chief Ministers and Chief Justices held on 11th
March, 2006 requesting the State Government for effecting suitable
amendment in the recruitment rules in terms of the decision in the
Conference above-referred. At this stage, however, these are not the
issues for our consideration. As already indicated, the selection is to be
conducted by authorities empowered to do so as per the existing Rules.”
5. In the above observations, the Court observed that selections
are required to be conducted in terms of existing judicial service rules
in the States/Union Territories. The Court expressed the view that
a consensus has to be evolved so that the selection process can be
conducted by the High Courts or by the Public Service Commissions
under the control and supervision of the High Courts. The above extract
contains a reference to a decision which was arrived at during the
Conference between the Chief Justices and Chief Ministers. Several
States where the selection was being conducted by the Public Service
Commissions had agreed to entrust the process to the High Courts.
Certain States (Himachal Pradesh, West Bengal, Punjab and Kerala)
desired that the existing system may continue, but the drawing up of
question papers and evaluation of answer sheets would be entrusted to
the High Court. In States where the selection was not being done by
the High Courts, it was expected that the selection should be entrusted
to them by amending the relevant Rules. This Court rejected the
submission that the constitution of a Committee by the Chief Justice
to oversee the process of appointment to the judicial service would
amount to an encroachment on the functioning the State Public Service
Commissions, since the object and purport of doing so was to ensure
that the vacancies are filled up on a timely basis and the problem of
delay in the dispensation of justice is tackled.
688 SUPREME COURT REPORTS [2023] 12 S.C.R.
6. On 15 January 2007, the Registrar General of the High Court of
Punjab and Haryana conveyed to the State Government that in view of the
order dated 4 January 2007 in Malik Mazhar Sultan (supra), the vacancies
in the cadre of Civil Judge and District Judge up to 15 January every year
will be notified by the High Court and the process of recruitment would be
conducted by the High Court “at its end” by advertising the posts, conducting
the examination and declaring the results.
7. On 23 March 2007, the State of Haryana constituted a Selection
Committee consisting of:
(i) Three-Judges nominated by the Chief Justice;
(ii) The Advocate General;
(iii) The Legal Remembrancer; and
(iv) The Secretary of the Legislative Department.
8. The State Government has stated on affidavit that the Members of
the Haryana Public Service Commission stood impeached between 2006
and 2008; and the Commission was reconstituted in September 2008.
9. Recruitment to the judicial service in the State of Haryana is
governed by the Rules, as applicable to the State of Haryana. Part C of the
Rules provides for ‘Examination of Candidates’. Part C is prefaced by the
provision that:
“The following rules and instructions, which are liable to alteration
from year to year, are prescribed for the examination of candidates
for admission to the Judicial Branch of Haryana Civil Service”.
(emphasis supplied)
10. Rules 4 and 5 of Part C are set out below:
“4. The examination papers shall be set and marks awarded by the
examiners who will be appointed by the Haryana Public Service
Commission. There shall also be a test in viva voce which will
be conducted by the Haryana Public Service Commission. The
representative of the High Court shall be one of the members
of the Selection Committee and the opinion given by him with
regard to the suitability of the candidate shall not be disregarded
MALIK MAZHAR SULTAN v. U P PUBLIC SERVICE 689
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unless there are strong and cogent reasons for not accepting the
opinion, which reasons must be recorded in writing.
5. The Judges of the High Court may, from time to time, declare
what the subject of the examination shall be.”
11. From 2007, the State Government has, on the occasion of each
recruitment, notified amendments to the Rules in question so as to provide
for the filling up of vacancies in the judicial service under a Committee
consisting of the representatives of the High Court, the State Government
and the Public Service Commission.
12. On 11 May 2007, an IA3 was filed before this Court by the State
of Haryana on which the following order was passed:
“So far as prayer No.1 is concerned, we may state that after considering
all the points including the points raised by the State in this IA, the
order was passed by this Court and hence the prayer is rejected.
So far as prayer No.2 is concerned, in our opinion, the order passed by
this Court is very clear. It is also clear from the following observations:
“Before we issue general directions and the time schedule to be
adhered to for filling vacancies that may arise in subordinate
courts and district courts, it is necessary to note that selections
are required to be conducted by the concerned authorities as
per the existing Judicial Service Rules in the respective States/
Union Territories.”
Therefore, this Court expressed that in future what course of action
to be taken. In our opinion, therefore, the High Court was not right
in addressing a letter to the State Government. Accordingly to the
understanding of the High Court the vacancies were to be filled up at
its end by advertising the posts and by conducting the examinations and
declaring the results which was not true. The application is accordingly
disposed of.”
(emphasis supplied)
3 IA No 17
690 SUPREME COURT REPORTS [2023] 12 S.C.R.
13. By its observations in the above order, this Court was of the view
that the understanding of the High Court that the vacancies were to be filled
up “at its end” by advertising the posts and conducting the examination and,
eventually, declaring the results was not a correct reading of the previous
order dated 4 January 2007. Be that as it may, on 23 May 2008, a meeting
was held of a Selection Committee consisting of three-Judges of the High
Court, the Chief Secretary of the Government of Haryana, the Principal
Secretary, Home and Justice, the Advocate General and the Joint Registrar
(Recruitment). The minutes recorded an assurance of the Chief Secretary
that sanction for taking the selection of candidates for Haryana Civil
Service (Judicial Branch) out of the purview of the Haryana Public Service
Commission and entrusting it to the Selection Committee of the High Court
would be sent shortly, after obtaining the approval of the Cabinet.
14. Following the above development, on 12 February 2009, this Court
took up IA No 60 filed by the High Court and two writ petitions in which
the following order was passed:
“The Public Service Commission had initiated steps to fill up 78
vacancies of Civil Judge (Jr.Division) pursuant to the request made
by the High Court of Punjab & Haryana and on 14th September 2008
a notification was issued by the Haryana Public Service Commission.
There were about 6,000 candidates appeared for the preliminary
examination which was held on 16.11.2008 and the result was also
published by the Public Service Commission and the candidates
have to appear for final selection. Meanwhile, the High Court after
consultations with the Government of Haryana and the Public Service
Commission decided that further process of selection would be held
at the instance of the High Court and the Public Service Commission
jointly. The High Court has now constituted a Committee and the
Committee will set up the question papers which will be valued and
thereafter followed by interview wherein three Judges are nominated
by the Chief Justice of the Punjab & Haryana and three members of
the Public Service Commission would participate.
In the Writ Petition(C) Nos.39 and 40/2009, the petitioners allege that
the process of recruitment had already been initiated by the Public
Service Commission as per Article 235 of the Constitution of India
MALIK MAZHAR SULTAN v. U P PUBLIC SERVICE 691
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and as per the Punjab Civil Service (Judicial Branch) Rules, 1951 (as
applicable to State of Haryana) and it is submitted that the recruitment
had already been started on the basis of the rules. The same can be
continued under the said rules and any deviation would be against the
decision of this Court in Hemen Malhotra Vs. High Court of Delhi,
reported in (2008) 7 SCC p.11 and other cases and the writ petitioners
pray that Haryana Public Service Commission alone has got the
authority to continue the further selection process.
We are not inclined to interfere with the process of selection as the
Public Service Commission is also involved in the process of selection.
The fi nal recruitment would take place on the basis of the joint
consultation with the High Court of Punjab & Haryana, representatives
of the State and the Haryana Public Service Commission as per the
decision of December 22, 2008. As large number of posts are still
lying vacant, we request the High Court as well as Haryana Public
Service Commission and the State Government to complete the process
of selection at the earliest. The order of 11.5.2007 is modified to the
extent indicated above.”
(emphasis supplied)
15. The process which has been followed in the State of Haryana
is that the State Government has notified alterations in the Rules so as to
facilitate the selection process to the judicial service being conducted under
the supervision of a Committee consisting of three-Judges of the High Court
nominated by the Chief Justice, two representatives of the State Government
and a member of the Public Service Commission.
16. By a notification dated 14 December 2020 issued by the Governor
in exercise of powers conferred by Article 234 read with proviso to Article
309 of the Constitution, the Punjab Civil Service (Judicial Branch) Haryana
Amendment Rules 2020 were notified. Rule 7B has been substituted in the
following terms:
“7B (1)Notwithstanding anything to the contrary contained in
these rules, appointment to two hundred and thirty nine
presently lying vacant and seventeen anticipatory/unforeseen
posts of Civil Judges (Junior Division) shall be made by
692 SUPREME COURT REPORTS [2023] 12 S.C.R.
the State Government through Special recruitment on the
recommendations of a Selection Committee constituted for
the purpose in the manner hereinafter laid down.
(2) The Selection Committee referred to in sub-rule (1) shall
comprise of the following members, namely:-
(i) three Judges of the High Court of Punjab and Haryana
nominated by the Chief Justice, of whom the senior-most
shall be the Chairman;
(ii) the Advocate General, Haryana;
(iii) the Chief Secretary to Government, Haryana; and
(iv) the Chairman of the Haryana Public Service Commission.”.
Part C of the Rules which provides for conducting of the competitive
examination has also been substituted. The substitution of Rule 7B was
specifically made to facilitate the filling up of 239 vacancies in the post of
Civil Judge (Junior Division) which were lying vacant and 7 anticipated
vacancies.
17. In the application which has now been filed before this Court, the
State of Haryana seeks a direction that it should be permitted to conduct
the entire selection process through the Public Service Commission for
recruitment to the Judicial Branch and the order dated 12 February 2009
should be modified in order to facilitate this exercise.
18. In support of the application, it has been urged by Mr Lokesh Sinha,
Senior AAG, that the Rules contemplate that:
(i) The selection process to the judicial service has to be carried out
by the Public Service Commission;
(ii) Rule 4 of Part-C provides that while the examination papers shall
be set and marks awarded by the examiners appointed by the Public
Service Commission, a representative of the High Court shall be
one of the members of the Selection Committee for conducting the
viva voce and the opinion given by that representative in regard
to the suitability of the candidate would not be disregarded, save
and except for cogent reasons to be recorded in writing;
MALIK MAZHAR SULTAN v. U P PUBLIC SERVICE 693
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(iii) Rule 5 provides that the Judges of the High Court may from time
to time declare the subject of the examination;
(iv) Hence, in terms of the mandate of the Rules, it is for the Public
Service Commission to carry out the entire process of recruitment
and a limited role is assigned to the representative of the High
Court in conducting interviews; and
(v) The order of this Court dated 4 January 2007 also contemplated
that the rules for recruitment which have been framed by the
respective States have to be followed.
19. Responding to the above submissions, it has been urged on behalf
of the High Court of Punjab and Haryana, by Mr P S Patwalia, senior
counsel, that:
(i) From 2007 a consistent pattern has been followed by which
recruitment has been made under the auspices of a Selection
Committee consisting of three representatives of the High Court
and three other members, namely, (a) the Advocate General;
(b) the Chief Secretary; and (c) the Chairperson of the Haryana
Public Service Commission;
(ii) This process which has been consistently followed should not
be deviated from, particularly, having regard to the fact that the
entrustment of the process to the High Court would subserve the
integrity and independence of the selection process; and
(iii) A unilateral decision has been taken by the State Government to
take over the process in deviation of settled practice under the
rule making power which has received the imprimatur of this
Court.
20. The order of this Court dated 4 January 2007 specifically noted
the importance of making timely appointments to the District Judiciary.
This Court made a reference to the decision which was arrived at in the
Conference of Chief Justices and Chief Ministers by which the High Courts
were to be entrusted with the role of making appointments to the judicial
service. Several States have already ensured the amendment of their Rules
framed under Articles 234 and 309 by entrusting the selection process to
694 SUPREME COURT REPORTS [2023] 12 S.C.R.
the High Courts. This Court also noted that in other States where the work
was being conducted under the authority of the Public Service Commission,
the work of selection was being supervised by a Committee appointed by
the High Court. Thereafter, the order of this Court of 11 May 2007 found
fault with the understanding of the High Court that the entire process would
be carried out exclusively by the High Court. This order, however, was
modified on 12 February 2009 so as to allow the selection process which
was then underway to be concluded by a process in which the Committee
for selection composed of the Judges nominated by the Chief Justice and
representatives of the State and the Public Service Commission.
21. Part C of the Rules governing the selection to the judicial service in
the State of Haryana contains provisions in terms of Rules 4 and 5 to the effect
that the examination papers shall be set and marks awarded by examiners
appointed by the Public Service Commission, while the High Court will have
a representative only in the Committee conducting the interviews. However,
the initial part of Part C contains a provision that the rules and instructions
are liable to alteration from year to year. It is undisputed that since 2007
Rule 7B has been substituted so as to allow for the selection process to
be conducted under the supervision of a Committee consisting of three
representatives of the High Court and three persons representing the State
Government, including the Public Service Commission. This arrangement
has been followed even in the previous recruitment which was conducted
pursuant to the notification dated 14 December 2020.
22. Article 234 of the Constitution provides that appointments to the
judicial service of a State, other than district Judges, shall be made by the
Governor of the State in accordance with the rules made by him in that
behalf, after consultation with the State Public Service Commission and
with the High Court exercising jurisdiction in relation to such State.
23. The consistent pattern which has been followed by the State
Government is that recruitment to the judicial service has been entrusted to
a Selection Committee, as noted above. If the State Government wished to
bring about any change in that position, it was incumbent upon it to consult
the High Court and to do so based on cogent material bearing on objective
data indicating the justification for abrogating the involvement of the High
Court in conducting the selection examination and overseeing the process.
MALIK MAZHAR SULTAN v. U P PUBLIC SERVICE 695
COMMISSION [DR DHANANJAYA Y CHANDRACHUD, CJI]
The State Government has, during the course of its submissions, set out
only two grounds for the proposed departure, namely:
(i) Under the Rules it is a mandate of the Public Service Commission
to fill up vacancies in the judicial service; and
(ii) Even in the order dated 4 January 2007, this Court observed that
the Rules of each State/UT have to be followed. This would be
a superficial understanding of the position as it obtains in the
State of Haryana. The consistent course of action which was
followed on the basis of the exercise of the rule making power,
by the substitution of Rule 7B, would have been founded on the
understanding that a broad-based committee consisting of both
representatives of the High Court and of the State and the Public
Service Commission should be entrusted with the task. This
acknowledges the position that the High Court is best situated
to understand the needs of the judicial service. Judges of the
High Court who participate in the selection process have domain
knowledge both of the subject and of the nature of the service.
If this understanding, which has been reflected in the consistent
course of action since 2007, was to be deviated from, this had
to be based on cogent material which is found to be evidently
lacking. The State Government has not come before this Court
seeking a modification of the arrangement by placing objective
data which would indicate either the inability of the High Court
to perform its task thus far or demonstrating that there have been
deficiencies in the process conducted by the High Court.
24. Hence, for the above reasons, we are of the view that the State
Government has not placed sufficient material before this Court to warrant
a deviation from the course of action which has been pursued since 2007,
for over fifteen years, including, as recently as by the notification dated 14
December 2020.
25. We accordingly do not accede to the request which has been made
by the State Government in the IA which shall accordingly stand dismissed.
26. There is an urgent need to ensure that the existing 175 vacancies of
Junior Civil Judges are filled up at the earliest. The State Government shall,
696 SUPREME COURT REPORTS [2023] 12 S.C.R.
therefore, within a period of two weeks from the date of this order, take
necessary steps to ensure that the recruitment is conducted by a Committee
consisting of (i) three Judges of the High Court nominated by the Chief
Justice; (ii) the Chief Secretary of the State of Haryana; (iii) the Advocate
General of Haryana; and (iv) the Chairperson of the Haryana Public Service
Commission.
27. The Public Service Commission shall provide all required logistical
support in accord with the past practice followed since 2007.
Headnotes prepared by: IA dismissed.
Ankit Gyan
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