RAKHI RAY & ORS.versusTHE HIGH COURT OF DELHI & OR$.

                     [2010] 2 S.C.R. 239


                     RAKHI RAY & ORS.                                A
                              v.
           THE HIGH COURT OF DELHI & OR$.
           (Civil Appeal Nos. 1133-1135 of 2010)

                     FEBRUARY 01, 2010
                                                                     B
[K.G. BALAKRISHNAN CJI., DEEPAK VERMA AND DR.
               B.S. CHAUHAN, JJ.]

      Delhi Higher Judicial Services Rules, 1970 -
Appointment of District Judges - Filling up vacancies over           C
and above the number of vacancies advertised -
Permissibility of - Held: Not permissible - It amounts to filling
up of future vacancies - It is violative of Articles 14 and 16(1),
thus, a nullity - In case vacancies notified stand filled up,
process of selection comes to an end - Waiting list cannot           D
be used as a reservoir, to fill up the vacancy which comes into
existence after the issuance of notificationladve'rl:isement -
Only in a exceptional circumstance, such rule can be
deviated, only after adopting policy decision basSd on some
rational - More so, person whose name appears in the select          E
list does not acquire any indefeasible right of app'ointment -
On facts, thirteen vacancies of General Category advertised,
stood filled up according to merit, thus, selection process in
that respect stood exhausted and there is no scope of making
any further appointment- Constitution of India, 1950 - Articles      F
14 and 16(1) - Judiciary.

      Respondent No.1-High Court of Delhi issued an
advertisement to fill up 20 vacancies of District Judges
in Delhi. All the 13 vacancies in the General category were
filled up according to the merit list of General Category            G
candidates. However, the three posts reserved for
Scheduled Caste candidates and four for Scheduled
Tribe candidates could not be filled up due to non-
availability of suitable candidates. Certain unsuccessful
                            239                                      H
    240      SUPREME COURT REPORTS             [2010] 2 S.C.R..


A candidates filed writ petition on the ground that 13
  vacancies which came into existence during the
  pendency of the selection process, could have also been
  filled up from the said select list. High Court held that only
  three vacancies which came into existence subsequent
B to the date of advertisement could have been filled up
  from the said list. Out of the said three vacancies, two
  could be offered to General Category candidates and one
  to the Scheduled Caste candidate. It issued direction to
  appoint two more candidates whose names appeared at
c Serial Nos.14 and 15 in General Category Merit List.
  Appellants belonging to General Category had gone
  through selection process and were placed much below
  in the merit list. Hence the present appeals by appellants
  seeking directions for appointment.

D         Dismissing the appeal, the Court

         HELD: 1.1. Vacancies cannot be filled up over and
    above the number of vacancies advertised as "the
    recruitment of the candidates in excess of the notified
E   vacancies is a denial and deprivation of the constitutional
    right under Article 14 read with Article 16(1) of the
    Constitution", of those persons who acquired eligibility
    for the post in question in aceordance with the statutory
    rules subsequent to the date of notification of vacancies.
F   Filling up the vacancies over the notifie_d vacancies is
    neither permissible nor desirable, for the reason, that it
    amounts to "improper exercise of power and only in a
    rare and exceptional circumstance and in emergent
    situation, such a rule can be deviated and such a
    deviation is permissible only after adopting policy
G   decision based on some rational", otherwise the exercise
    would be arbitrary. Filling up of vacancies over the
    notified vacancies amounts to filling up of future
    vacancies and thus, not permissible in law. [Para 9] [247-
H   F-H; 248-A]
 RAKHI RAY & ORS. v. THE HIGH COURT OF DELHI 241
                     & ORS.
     1.2. Any appointment made beyond the number of           A
vacancies advertised is without jurisdiction, being
violative of Articles 14 and 16(1) of the Constitution of
India, thus, a nullity, inexecutable and unenforceable in
law. In case the vacancies notified stand filled up,
process of selection comes to an end. Waiting list etc.       B
cannot be used as a reservoir, to fill up the vacancy which
comes into existence after the issuance of notification/
advertisement. The unexhausted select list/waiting list
becomes meaningless and cannot be pressed in service
any more. [Para 14] (250-C-E]                                 c
     Union of India and Ors. v. /shwar Singh Khatri and Ors.
 (1992) Supp 3 SCC 84; Gujarat State Deputy Executive
 Engineers' Association v. State of Gujarat & Ors. (1994) Supp
 2 SCC 591; State of Biha(" and Ors. v. The Secretariat
Assistant S.E. Union 1986 and Ors. AIR 1994 SC 736; Prem D
Singh and Ors. v. Haryana State Electricity Board and Ors.
(1996) 4 SCC 319; Ashok Kumar and Ors. v. Chairman,
Banking Service Recruitment Board and Ors. AIR 1996 SC
976; Surinder Singh and Ors. v. State of Punjab and Ors. AIR
1998 SC 18; Madan Lal v. State of J & K & Ors. AIR 1995 . E
SC 1088; Kamlesh Kumar Sharma v. Yogesh Kumar Gupta
and Ors. AIR 1998 SC 1021; Sri Kant Tripathi v. State of__U.P.
and Ors. (2001) 10 SCC 237; State of J & K v. Sanjeev Kumar
and Ors. (2005) 4 SCC 148; State of U.P. v. Raj Kumar
Sharma and Ors. (2006) 3 SCC 330; Ram Avtar Patwari and F
Ors. v. State of Haryana and Ors. AIR 2007 SC 3242; State
of Punjab v. Raghbir Chand Sharma and Ors. AIR 2001 SC
2900; Mukul Saikia and Ors. v. State of Assam and Ors. AIR
2009 SC 747, relied on.
                                                               G
     2.1. In the instant case, as 13 vacancies of the
General. Category had been advertised and filled Lip, the
selection process s.o far as the General Category
candidates is concerned, stood exhausted and the
unexhausted select list is meant only to be consigned to H
    242     SUPREME COURT REPORTS               [2010] 2 S.C.R.


A record room. [Para 15] [250-E-F]

       2.2 It is clear that this Court in Malik Mazhar Sultan's
  case clarified that selection was to be made as per the
  existing Rules and direction was issued for amending the
  existing laws to adopt the recommendations of Justice
8
  Shetty Commission as approved by this Court for the
  future. [Para 21] [253-C-D]

       Malik Mazhar Sultan and Anr. v. U.P. Public Service
  Commission and Ors. (2007) 2 SCALE 159; All India Judges'
C Association and Ors. v. Union of India and Ors. AIR 1993 SC
  2493; All India Judges' Association and Ors. v. Union of India
  and Ors. AIR 2002 SC 1752; Syed T.A. Naqshbandi and Ors.
  v. State of J & K and Ors. (2003) 9 sec 592, referred to.

0       Hemani Malhotra v. High Court of Delhi and Ors. AIR
    2008 SC 2103/distinguished.

         2.3. The appointments had to be made in view of the
    provisions of the Delhi Higher Judicial Service Rules,
    1970. The said rules provide for advertisement of the
E   vacancies after being determined. The rules further
    provide for implementation of reservation policies in
    favour of Scheduled Castes, Scheduled Tribes and Other
    Backward Classes. As the reservation policy is to be
    implemented, a number of vacancies to be filled up is to
F   be determined, otherwise it would not be possible to
    implement the reservation policy at all. Thus, the question
    of taking into consideration the anticipated vacancies, as
    per the judgment in Malik Mazhar Sultan's case which had
    not been determined in view of the existing statutory rules
G   could not arise. It cannot be said that the High Court
    could have filled vacancies over and above the
    vacancies advertised on 19.5.2007, as per the directions
    issued by this Court in Malik Mazhar Sultan's case. More
    so, no explanation could be furnished by appellants as
H   to why they could not challenge the advertisement itself,
 RAKHI RAY & ORS. v. THE HIGH COURT OF DELHI 243
                     & ORS.
if it was not in conformity with the directions issued by      A
this Court in the said case. [Paras 24 and 25] [254-D-F;
254-G-H; 255-A]

     2.4. It was submitted that the Delhi High Court had
issued directions to offer appointment to two persons
                                                               8
implementing the judgment in Malik Mazhar Sultan's case
whose names appeared in select list at SI. Nos. 14 and
15, and, as the High Court had implemented the said
directions, the appellants could not be treated with such
hostile discrimination. Undoubtedly, the directions had        C
been issued to fill up two vacancies over and above the
vacancies notified. However, that part of the judgment is
not under challenge. In such a fact situation, it is neither
desirable nor permissible in law to make any comment
on that. A person whose name appears in the select list
does not acquire any indefeasible right of appointment.        D
Empanelment at the best is a condition of eligibility for
purpose of appointment and by itself does not amount
to selection or create a vested right to be appointed: The
vacancies have to be filled up as per the statutory rules
and in conformity with the constitutional mandate. In the      E
instant case, once 13 notified vacancies were filled up,
the selection process came to an end, thus there could
be no scope of any further appointment. [Para 26] [255-
B-E]
                                                               F
                    Case Law Reference:
  (1992) Supp 3 sec 84       Relied on.           Para 9
  (1994) Supp 2 sec 591 Relied on.                Para 9
  AIR 1994 SC 736            Relied on.          Para 9        G

  (1996) 4 sec 319           Relied on.           Para 9
  AIR 1996 SC 976            Relied on.           Para 9
  AIR 1998 SC 18             Referred to.        Para 10       H
        Ranjit Kumar and Mariarputham, S.S. Ray, Bina Gupta,
    Annam, D.N. Rao, Neelam Jain, Vimal Dubey and Naresh
    Kumar for the appearing Parties.
G
        Mariarputham, V.N. Raghupathy, N.K. Jha, C.S.N. Mohan
    Rao, Annam, D.N. Rao, Neelam Jain, Vimal Dubey for the
    appearing Parties.

        The Judgment of the Court was delivered by
H
                                                                          •

 RAKHI RAY & ORS. v. THE HIGH COURT OF DELHI 245
                     & ORS.
     DR. 8.5. CHAUHAN, J. 1. Applications for permission to           A
file Special Leave Petitions are granted.

     2. Leave granted.

     3. These appeals have been filed for seeking directions
to the respondents i.e. the High Court of Delhi and the Lt.           8
Governor of Delhi to offer the· appointment to the appellants on
the posts in the cadre of District Judges in Delhi Judicial
Service.

      4. Facts and circumstances giving rise to these appeals         C
 are that in order to fill up 20 vacancies in the cadre of District
Judge in Delhi, the respondent No.1, the High Court of Delhi,
 issued an advertisement dated 19.5.2007. Out of these 20
vacancies, 13 were to be filled up from the General Category
candidates; 3 from Scheduled Castes; and 4 from Scheduled             D
Tribes. Appellants who belong to General Category, faced the
selection process. The result was declared on 3.1.2008.
Appellants found place in the merit list but much below. All the
13 vacancies in the said category were filled according to the
merit list of General Category candidates. However, two posts         E
reserved for Scheduled Castes candidates and four posts
meant for Scheduled Tribes candidates could not be filled up
for non availability of suitable candidates.

      5. Certain unsuccessful candidates approached the Delhi
High Court by filing Writ Petition Nos. 2688/2008, 2913/2008          F
and 3932/2008 on the ground that 13 vacancies came into
existence between 29.2.2008 and 23.5.2008 i.e. during the
pendency of the selection process which could have also been
filled up from the said select list in view of the judgment of this
Court in Malik Mazhar Sultan & Anr. v. U.P. Public Service            G
Commission & Ors. (2007) 2 SCALE 159. The High Court
disposed of all the petitions vide its judgment and order dated
3.10.2008 taking a view that only three vacancies came into
existence subsequent to the date of Advertisement which could
have been filled up from the said list. Out of the said three         H
    246      SUPREME COURT REPORTS                  [2010] 2 S.C.R.


A vacancies, two could be offered to General Category
  candidates and one to the Scheduled Caste candidate and
  issued direction to appoint two more candidates whose names
  appeared at Serial Nos.14 and 1,5/ln General Category Merit
  List. Hence, these appeal§,,,ar-ef for seeking directions to the
B respondents for offering appointment to the appellants also.

           6. Shri Ranjit Kumar, learned senior counsel appearing· for
    the appellants has submitted that the judgment in Malik Mazhar
     Sultan's case (supra) was delivered by this Court on 4.1.2007.
C   A large number of directions had been issued in the said case
    and it also formulated the calendar for conducting the
    examinations for filling up the vacancies in the Judicial Service.
     It also provided that while determining the number of vacancies,
    the concerned Authority would also consider alongwith the
    existing vacancies, as what would be the anticipated vacancies
D   that may arise within one year due to retirement, due to
    elevation to the High Court, death or otherwise, say 10% of the
    number of posts; and to take note of the vacancies arising out
    of deputation of Judicial Officers t9 other departments. It also
    provided that the select list so prepared shall be valid till new
E   select list is published. The examination is to be conducted
    every year. The High Courts were directed to give strict
    adherence to the aforesaid schedule fixed by this Court. So far
    as the Delhi High Court was concerned, it was provided that
    the High Court would amend its calendar accordingly. In view
F   of the above, it has been submitted that while making the
    advertisement, the Delhi High Court had not taken note of the
    anticipated vacancies which could be available during the next
    year. As per the direction of this Court, as 13 more vacancies
    came into existence, those vacancies must be filled up from
G   the select list so prepared. As the appellants are in the select
    list they should be offered appointments.

      7. On the contrary, Shri A. Mariarputham, learned senior
  coun'sel appearing for the respondents has vehemently
H opposed the appeals contending that the law does not permit
 RAKHI RAY & ORS. v. THE HIGH COURT OF DELHI 247
         & ORS. [DR. B.S. CHAUHAN, J.]
 filling up the vacancies over and above the number of vacancies      A
 advertised. Thirteen vacancies of the General Category were
advertised; the same had been filled up according to merit,
therefore, selection process in that respect stood exhausted.
The waiting list does not survive. The appellants had not
challenged the advertisement in spite of the fact that the            B
judgment in Malik Mazhar Sultan's case (supra) was delivered
on 4.1.2007 and vacancies were advertised on 19.5.2007. The
appellants were not aggrieved for not offering the appointment
to them, as they did not even approach the High Court for any
relief. The Special Leave Petitions were filed at much belated        c
stage on 24.10.2008, though the result had been declared on
3.1.2008, and appointments had been made on 3.4.2008. The
directions of the Court could not supersede the statutory,rules
as there was a direction to fill up the vacancies as per the
existing statutory rules. Appointments had been made                  D
according to law. Thus, the appeals have no merit and are liable
to be dismissed.

     8. We have considered the rival submissions made by
learned counsel for the parties and perused the r~cord.
                                                                      E
      9. It is a settled legal proposition that vacancies cannot be
filled up over and above the number of vacancies advertised
as "the recruitment of the candidates in excess of the notified
vacancies is a denial and deprivation of the constitutional right
under Article 14 read with Article 16( 1) of the Constitution", of    F
those persons who acquired eligibility for the post in question
in accordance with the statutory rules subsequent to the date
of notification of vacancies. Filling up the vacancies over the
notified vacancies is neither permissible nor desirable, for the
reason, that it amounts to "improper exercise of power and only       G
in a rare and exceptional circumstance and in emergent
situation, such a rule can be deviated and such a deviation is
permissible only after adopting policy decision based on some
rational'', otherwise the exercise would be arbitrary. Filling up
of vacancies over the notified vacancies amounts to filling up        1-i
    248      SUPREME COURT REPORTS                   [2010] 2 S.C.R.


A   of future vacancies and thus, not permissible in law. (Vide Union
    of India & Ors. v. lshwar Singh Khatri & Ors. (1992) Supp 3
    SCC 84; Gujarat State Deputy Executive Engineers'
    Association v. State of Gujarat & Ors. (1994) Supp 2 SCC 591;
    State of Bihar & Ors. v. The Secretariat Assistant S.E. Union
s   1986 & Ors AIR 1994 SC 736; Prem Singh & Ors. v. Haryana
    State Electricity Board & Ors. (1996) 4 SCC 319; and Ashok
    Kumar & Ors. v. Chairman, Banking Service Recruitment
    Board & Ors. AIR 1996 SC 976).

      10. In Surinder Singh & Ors. v. State of Punjab & Ors.
C AIR 1998 SC 18, this Court held as under:

          "A waiting list prepared in an examination conducted by
          the Commission does not furnish a source of recruitment.
          It is operative only for the contingency that if any of the
D         selected candidates does not join then the person from the
          waiting list may be pushed up and be appointed in· the
          vacancy so caused or if there is some extreme exigency
          the Government may as a matter of policy decision pick
          up persons in order of merit from the waiting list. But the
E         view taken by the High Court that since the vacancies
          have not been worked out properly, therefore, the
          candidates from the waiting list were liable to be
          appointed does not appear to be sound. This practice,
          may result in depriving those candidates who become
F         eligible for compe!ing for the vacancies available in future.
          If the waiting list in one examination was to operate as an
          infinite stock for appointment, there is a danger that the
          State Government may resort to the device of not holding
          an examination for years together and pick up candidates
          from the waiting list as ·and when required. The
G
          constitutional discipline requires that this Court should not
          permit such improper exercise of power which may result
          in creating a vested interest and perpetrate waiting list for
          the candidates of one examination at the cost of entire set
          of fresh candidates either from the open or even from
H
 RAKHI RAY & ORS. v. THE HIGH COURT OF DELHI 249
         & ORS. [DR. 8.S. CHAUHAN, J.]
     service ..... Exercise of such power has to be tested on the    A
     touch-stone· of reasonableness .... It is not a matter of
     course that the authority can fill up more posts than
     advertised. "

                                              (Emphasis added)       8
     11. Similar view has been re-iterated in Madan Lal v.
State of J & K & Ors. AIR 1995 SC 1088; Kamlesh Kumar
Sharma v. Yogesh Kumar Gupta & Ors. AIR 1998 SC 1021;
Sri Kant Tripathi v. State of U.P. & Ors. (2001) 10 SCC 237;
State of J & K v. Sanjeev Kumar & Ors. (2005) 4 SCC 148;             C
State of U.P. v. Raj Kumar Sharma & Ors. (2006) 3 SCC 330;
and Ram Avtar Patwari & Ors. v. State of Haryana & Ors. AIR
2007 SC 3242).

    12. In State of Punjab v. Raghbir Chand Sharma & Ors.            D
AIR 2001 SC 2900, this Court examined the case where only
one post was advertised and the candidate whose name
appeared at Serial No. 1 in the select list joined the post, but
subsequently resigned. The Court rejected the contention that
post can be filled up offering the appointment .to the next          E
candidate in the select list observing as under:-

     "With the appointment of the first candidate for the only
     post in respect of which the consideration came to be
     made and select list prepared, the panel ceased to exist
     and has outlived its utility and at any rate, no one else in    F
     the panel can legitimately contend that he should have
     been offered appointment either in the vacancy arising on
     account of the subsequent resignation of the person
    'appointed from the panel or any other vacancies arising
     subsequently."                                                  G

        13. In Mukul Saikia & Ors. v. State of Assam & Ors. AIR
2009 SC 747, this Court dealt with a similar issue and held that
'.'if the requisition and advertisement was only for 27 posts, the
                                                                     H
    250      SUPREME COURT REPORTS                  [2010] 2 S.C.R.


A State cannot appoint more than the number of posts
  advertised". The Select List "got exhausted when all the 27
  posts were filled". Thereafter, the candidates below the 27
  appointed candidates have no right to claim appointment to any
  vacancy in regard to which selection was not held. The
B "cl)rrency of Select List had expired as soon as the number of
  posts advertised are filled up, therefore, the appointments
  beyond the number of posts advertised would amount to filling
  up future vacancies" and said course is impermissible in law.

        14. In view of above, the law can be summarised to the
C effect that any appointment made beyond the number of
  vacancies advertised is without jurisdiction, being violative of
  Articles 14 and 16(1) of the Constitution of India, thus, a nullity,
  inexecutable and unenforceable in law. In case the vacancies
  notified stand filled up, process of selection comes to an end.
D Waiting list etc. cannot be used as a reservoir, to fill up fhe
  vacancy which comes into existence after the issuance of
  notification/advertisement. The unexhausted select list/waiting
  list becomes meaningless and cannot be pressed in service
  any more.
E
        15. In the instant case, as 13 vacancies of the General
  Category had been advertised and filled up, the selection
  process so far as the General Category candidates is
  concerned, stood exhausted and the unexhausted select list is
F meant only to be consigned to record room.

         16. So far as the submission made by Shri Ranjit Kumar
    that directions issued by this Court in Malik Mazhar Sultan
    (supra) had to be given effect to is concerned, the same
    requires consideration elaborately.
G
          17. In A// India Judges' Association & Ors. v. Union of
    India & Ors. AIR 1993 SC 2493, several directions had been
    issued by this Court in respect of the service conditions of the
    Judicial Officers. In view thereof, a notification dated 21st
H
 RAKHI RAY & ORS. v. THE HIGH COURT OF DELHI 251
         & ORS. [DR. B.S. CHAUHAN, J.]
March, 1996 was issued appointing Justice K.J. Shetty            A
Commission to consider about their service conditions.

     18. In All India Judges' Association & Ors. v. Union of
India & Ors. AIR 2002 SC 1752, this Court considered various
aspects of Justice Shetty Commission Report and approved 8
the same. However, the question arose as to whether the
recommendations so accepted by this Court could be
implemented as such or was it required to be incorporated in
the statutory rules governing the service conditions of the
Judicial Officers or alteration of the rules applicable to them? C
This Court held as under:

    "We are aware that it will become necessary for service
    and other rules to be amended so as to implement this
    judgment. ... "
                                                                 D
     19. In Syed T.A. Naqshbandi & Ors. v. State of J & K &
Ors. (2003) 9 sec 592, this Court reconsidered the same
issue while examining the appointments to the post of District
& Sessions Judges (Selection Grade) in the State of Jammu
& Kashmir and relying upon its earlier judgment in All India     E
Judges' Association (supra) held as under:

           "Reliance placed upon the recommendations of
    Justice Jagannatha Shetty Commission or the decision
    reported in All India Judges' Assn. v. Union of India or
    even the resolution of the Full Court of the High Court F
    dated 27-4-2002 is not only inappropriate but a
    misplaced one and the grievances espoused based on
    this assumption deserve a mere mention only to be
    rejected. The conditions of service of members of any
    seNice for that matter are governed by statutory rules and G
    orders, lawfully made in the absence of rules to cover the
    area which has not been specifically covered by such
    rules, and so long as they are not replaced or amended
    in the manner known to law, it would be futile for anyone
    to claim for those existing rules/orders being ignored H
    252      SUPREME COURT REPORTS                   [2010] 2 S.C.R.

A         yielding place to certain policy decisions taken even to
          alter, amend or modify them. Alive to this indisputable
          position of law only, this Court observed at SCC p. 273,
          para 38, that "we are aware that it will become necessary
          for service and other rules to be amended so as to
B         implement this judgment". Consequently, the High Court
          could not be found at fault for considering the matters in
          question in the light of the Jammu and KashrnirF!lgher
          Judicial Service Rules, 1983 and the Jam mu and Kashmir
          District and Sessions Judges (Selection Grade Post)
c         Rules, 1968 as well as the criteria formulated by the High
          Court. Equally, the guidelines laid down by the High Court
          for the purpose of adjudging the efficiency, merit and
          integrity of the respective candidates cannot be said to be
          either arbitrary or irrational or illegal in any manner to
          warrant the interference of this Court with the same. Even
D
          de hors any provision of '1aw specifically enabling the High
          Courts with· such powers in view of Article 235 of the
          Constitution of India, unless the exercise of pow~r in this
          regard is shown to violate any other provision of. the
          Constitution of India or any of the existing statutory rules,
E         the same cannot be challenged by making it a justiciable
          issue before courts. The grievance of the petitioners, in
          this regard, has no merit of acceptance".

                                                  (Emphasis added)
F
          20. In Malik Mazhar Sultan's case (supra), this Court made
  it clear that appointments in Judicial Service have to be made
  as per the existing statutory rules. However, direction was
  issued to amend the rules for future selections. This Court
G considered the correspondences between various authorities
  of the States an·d also the decision taken\n the' conference of
  the Chief Ministers and Chief Justices held on 11.3.2006, and
  observed as under:

          • ... Before we issue general directions and the time
H         schedule to be adhered
                             I   .
                                   to for filling vacancies that may
 RAKHI RAY & ORS. v. THE HIGH COURT OF DELHI 253
         & ORS. [DR. B.S. CHAUHAN, J.]
    ·. arise in subordinate courts and district courts, it is A
       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 ...... As already indicated, the selection
       is to be conducted by authorities empowered to do so as B
       per the existing Rules. ... In view of what we have already
       noted about the appointments to be made in accordance
       with the respective Judicial Services Rules in the States,
       the apprehension of interference seems to be wholly
       misplaced ... ." (Emphasis added).                           c
     21. Therefore, it is clear that this Court clarified that
selection was to be made as per the existing Rules and
direction was issued for amending the existing laws to adopt
the recommendations of Justice Shetty Commission as
approved by this Court for the future.                                 D

       22. So far as the judgment of this Court in Hemani
 Malhotra v. High Court of Delhi & Ors. AIR 2008 SC 2103 is
 concerned, the facts are quite distinguishable. The Delhi High
 Court did not frame any statutory rule providing for cut-off marks    E
 in interview for assessing the suitability for selection. After the
selection process had been initiated, such a resolution was
adopted. Therefore, the basic issue for consideration before
this Court had been as to whether it was permissible for the
High Court to change the selection criteria at the midst of the        F
selection process. The Court placing reliance upon its earlier
judgments held that once the selection process starts, it is not
permissible for the competent authority to change the selection
criteria and in that view observation was made that a fresh merit
list is to be prepared ignoring the said resolution of the High        G
Court taking cut-off marks in interview. Undoubtedly, the Court
 had taken note of Justice Shelly Commission Report in this
regard and held that such <Lctiteria could not have been
 provided. In absence of any statutory rule governing a particular
 issue, directions issued by this Court would prevail.
                                                                       H
    254     SUPREME COURT REPORTS                  [2010] 2 S.C.R.


A       23. Therefore; it is evident from the aforesaid judgment that
   in spite of acceptance of the recommendations made by
   Justice Shelly Commission, this Court insisted that the existing
   law/statutory rules in making the appointment of Judicial Officers
   be amended accordingly. In Syed T.A.Naqshbandi (supra), this
B Court repealed the contention which is being advanced by the
   learned counsel for the petitioners therein and the Court in
  crystal clear words held that appointments have to be made
  giving strict adherence to the existing statutory provisions and
   not as per the recommendations made by Justice Shetty
c Commission. Of course, in absence of statutory rule to deal with
  a particular issue, the High Courts are bound to give effect to
  the directions issued by this Court.

        24. The appointments had to be made in view of the
  provisions of the Delhi Higher Judicial Service Rules, 1970. The
D said rules provide for advertisement of the vacancies after being
  determined. The rules further provide for implementation of
  reservation policies in favour of Scheduled Castes, Scheduled
  Tribes and Other Backward Classes. As the reservation policy
  is to be implemented, a number of vacancies to be filled up is
E to be determined, otherwise it would not be possible to
  implement the reservation policy at all. Thus, in view of the
  above, the question of taking into consideration the anticipated
  vacancies, as per the judgment in ·Malik Mazhar Sultan (supra),
  which had not been determined in view of the existing statutory
F rules could not arise.

         25. In view of above, we do not find any force in the
   submissions that the High Court could have filled vacancies
  -over and above the vacancies advertised on 19.5.2007, as per
G the directions issued by this Court in Malik Mazhar Sultan's
   case (supra). More so, no explanation could be furnished by
   Shri Ranjit Kumar, learned senior counsel for the appellants as
   to why the appellants could not challenge the advertisement
   itself, if it was not in conformity with the directions issued by
   this court in the said case.
H                                                                       ·~
  RAKRIRAY & ORS. v. THE HIGH COURT OF DELHI 255
         & ORS. [DR. 8.S. CHAUHAN, J.] .
         26. It has further been submitted on behalf of the appellants A
  that the Delhi High Court vide its judgment and order dated
  3.10.2008 had issued directions to offer appointment to two
  persons implementing the said judgment in Malik Mazhar
   Sultan's case (supra) whose names appeared in select list at
  SI. Nos. 14 and 15, and, as the High Court had implemented B
  the said directions, the appellants could not be treated with such
  hostile discrimination. Undoubtedly, the directions had been
  issued to fill up two vacancies over and above the vacancies
  notified. However, that part of the judgment is not under
  challenge before us. In such a fact situation, it is neither c
  desirable nor permissible in law to make any comment on that.
  A person whose name appears in the select list does not
  acquire any indefeasible right of appointment. Empanel111_ent-at·
  the best is a condition of eligibility for purpose ofappointment
  and by itself does not amount to selection or create a vested D
. right to be--appointed. The vacancies have to be filled up as
  per the statutory rules and in conformity with the constitutional
  mandate. In the instant case, once 13 notified vacancies were
  filled up, the selection process came to an end, thus there could
  be no scope of any further appointment.
                                                                       E
        27. In view of the above, we do not find any force in these
 appeals which are accordingly dismissed.

                             JUDGMENT
        SLP (C) NO. 28488 and 29248 of 2008.                          F
                        Navin Kumar Jha
                                 v.
                       Lt. Governor & Ors.
    DR. B.S. CHAUHAN, J. In view of our judgment                      G
pronounced today in CA Nos. 1133-1135 of 2010@ SLP(C)
Nos. 3662-3664/2010@ CC Nos. 14852-14854 of 2008 (Rakhi
Ray & Ors. vs. High Court of Delhi & Ors.) these Special
Leave Petitions are dismissed.

 N.J.         Appeals and Special Leave Petitions dismissed.          H