SUDESH KUMAR GOYALversusSTATE OF HARYANA & ORS.

                  [2023] 12 S.C.R. 414 : 2023 INSC 842



                             CASE DETAILS

                       SUDESH KUMAR GOYAL
                                      v.
                     STATE OF HARYANA & ORS.
                     (Civil Appeal No. 10861 of 2013)
                          SEPTEMBER 21, 2023
        [HRISHIKESH ROY AND PANKAJ MITHAL, JJ]

                              HEADNOTES

      Issue for consideration: Whether the appellant who qualified in the
selection process for appointment to the higher judicial service of the State
under the direct recruitment quota is entitled to be selected against a vacancy
caused by resignation of one of the selected candidates.
      Service law – Appointment to the higher judicial service of the
State under the direct recruitment quota - Appellant qualified the
selection process but was not appointed – Appointment sought against
the vacancy which arose on resignation of one of the selected candidate
– Appellant could not be appointed as he was at serial no. 14 of the merit
and the posts available were only 13 – Justification:
       Held: If one of the selected candidates joins and then resigns, it gives
rise to a fresh vacancy which could not have been filled up without issuing a
proper advertisement and following the fresh selection process – Appellant
did not acquire any indefeasible right to be appointed because he qualified
in the selection process and the Rules do not oblige the State to fill up all
the vacancies advertised – Respondent-State have justified the appointments
and have not acted in an arbitrary manner – They acted fairly and logically
without any malice against the appellant – Furthermore, selection was
initiated in the year 2007 and 16 years have passed since then – It would
be a travesty of justice to keep open the selection process for such a long
time and to direct at this stage to make any appointment on the basis of a
selection process initiated so far back – Thus, not proper to interfere with
the impugned judgment and order of the High Court.
                                     414
 SUDESH KUMAR GOYAL v. STATE OF HARYANA & ORS. 415



       LIST OF CITATIONS AND OTHER REFERENCES
       Shankarsan Dash v. Union of India (1991) 3 SCC 47; Brij Mohan Lal
(1) v. Union of India (2002) 2 SCC 1; Brij Mohan Lal (2) v. Union of India
(2012) 6 SCC 502 – referred to.
       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES
     CIVIL APPELLATE JURISDICTION : Civil Appeal No.10861 of
2013.
     From the Judgment and Order dated 18.05.2010 of the High Court of
Punjab & Haryana at Chandigarh in CWP No.16211 of 2009.
     Appearances:
    Rakesh Dahiya, Satyavan Kudalwal, Aditya Dahiya, Kapil Dahiya,
Advs. for the Appellant.
    Dr. Monika Gusain, Raju Ramchandran, Ashok Mathur, Advs. for the
Respondents.
       JUDGMENT / ORDER OF THE SUPREME COURT

                              JUDGMENT

     PANKAJ MITHAL, J.
      1. We had heard Shri Rakesh Dahiya learned counsel for the
appellant, as well as Shri Raju Ramachandran, learned senior counsel for
the respondents. Ms. (Dr.) Monika Gusain had appeared for the State of
Haryana and was also heard.
      2. The common judgment and order dated 18.05.2010 passed by
the Division Bench of the Punjab & Haryana High Court deciding 12
writ petitions, more particularly, writ petition No.16211 of 2009 is under
challenge in the present appeal. The bunch of the above writ petitions
were partially allowed but the appellant was not accorded any relief insofar
as his appointment to the higher judicial service of the State under direct
recruitment quota was concerned.
416           SUPREME COURT REPORTS                         [2023] 12 S.C.R.


      3. Before adverting to the two legal issues which have been addressed
by Shri Rakesh Dahiya in assailing the impugned judgment and order, we
consider it appropriate to briefly narrate the facts leading to the filing of the
writ petition and now the appeal arising therefrom.
      4. The Punjab & Haryana High Court on 18.05.2007 issued a
notification for the selection/recruitment of 22 officers in the Haryana
Superior Judicial Service by direct recruitment from the Bar, out of which,
14 were of general category, 5 of the scheduled caste and 3 of the backward
class. The selection was to be made in accordance with the provisions of
the Haryana Superior Judicial Service Rules, 2007 within the 25 per cent
quota for direct recruitment from the Bar.
     5. The appellant was one of the candidates, who applied for the post
along with the other candidates who preferred the connected writ petitions.
The appellant, despite having successfully qualified the written examination
and the interview and having secured the 14th position in the merit list, was
not appointed.
      6. Pursuant to the above notification dated 18.05.2007, the written
examination was held in February 2008 and the interviews of the successful
candidates were held on 08.04.2008 and 09.04.2008. The final result was
displayed on the website of the High Court on 15.07.2008 and the appellant
was placed at serial no.14 of the merit list of the general category candidates.
In spite of the fact that 14 general category posts for direct recruitment
were advertised and the appellant was within the first 14 general category
candidates who successfully qualified the written test and the interview, he
was not given appointment, whereas the first 13 candidates in order of merit
were appointed. Out of these 13 candidates, one of the candidates, namely,
Jitender Kumar Sinha joined the service but later resigned.
      7. It is in the above factual background that the appellant invoked the
writ jurisdiction of the High Court seeking his appointment against the 14 th
post of general category candidate, inter alia, on the allegation that the said
post could not be kept vacant, more particularly, in an arbitrary manner. It
is also contended that out of the 13 candidates appointed, one of them after
joining had resigned and, therefore, in any case the appellant could have
been adjusted against the said vacancy.
 SUDESH KUMAR GOYAL v. STATE OF HARYANA & ORS. 417
              [PANKAJ MITHAL, J.]

      8. Shri Dahiya, in the light of the ratio laid down by the Apex Court
in Shankarsan Dash v. Union of India (1991) 3 SCC 47, has argued that
though he is conscious that the appellant by selection itself has not acquired
any indefeasible right to be appointed, nonetheless, his right for appointment
cannot be defeated by adopting an arbitrary approach. The respondents have
acted purely in an arbitrary manner in keeping the 14th post vacant and not
filling it by the appointment of the appellant.
      9. The relevant paragraph 7 of the above decision reads as under:-
      “It is not correct to say that if a number of vacancies are notified for
      appointment and adequate number of candidates are found fit, the
      successful candidates acquire an indefeasible right to be appointed
      which cannot be legitimately denied. Ordinarily the notification
      merely amounts to an invitation to qualified candidates to apply for
      recruitment and on their selection they do not acquire any right to the
      post. Unless the relevant recruitment rules so indicate, the State is
      under no legal duty to fill up all or any of the vacancies. However, it
      does not mean that the State has the licence of acting in an arbitrary
      manner. The decision not to fill up the vacancies has to be taken bona
      fide for appropriate reasons. And if the vacancies or any of them are
      filled up, the State is bound to respect the comparative merit of the
      candidates, as reflected at the recruitment test, and no discrimination
      can be permitted. This correct position has been consistently followed
      by this Court, and we do not find any discordant note in the decisions
      in State of Haryana v. Subhash Chander Marwaha, Neelima Shangla
      v. State of Haryana, or Jatendra Kumar v. State of Punjab”.
       10. A simple reading of the above paragraph would reveal that though
it is up to the employer or the State to fill up all the notified vacancies or to
keep all of them or any of them vacant but it does not mean that the employer/
State can act arbitrarily in not filling up those posts and the decision not to fill
up the vacancies has to be a bona fide one supported by appropriate reasons.
     11. The relevant rules of 2007, do not oblige the State to fill up all the
vacancies advertised.
     12. The respondents, in order to justify the non-appointment of the
appellant on the 14th vacancy, submitted that the notification/advertisement
418          SUPREME COURT REPORTS                          [2023] 12 S.C.R.


dated 18.05.2007 advertised 22 posts for direct recruitment in the higher
judicial service, out of which 14 were meant to be filled up by general
category candidates but only 13 selected general category candidates were
appointed. The reason being that 5 general category candidates who were
working as Additional District & Sessions Judges (Fast Track Court) in
Haryana pursuant to the notification dated 26.05.2003 applied for their
absorption and filed writ petition No.8587 of 2007 seeking their regularisation
on substantive posts which petition came to be disposed of vide order dated
30.05.2007 directing them to make representation on administrative side to
the High Court in terms of Brij Mohan Lal (1) v. Union of India (2002) 2
SCC 1. Acting on the aforesaid representation, the selection committee of
the High Court recommended for absorption of the above 5 Fast Track Court
judges on fresh posts. Accepting the recommendations of the Committee,
out of the 14 general category posts, 5 officers of the Fast Track Court were
adjusted, thus leaving only 9 to be filled up as per selection. In the meantime,
20 fresh vacancies of the cadre became available, out of which, 5 were to
be filled up by direct recruitment from the Bar, (4 general category and 1
scheduled caste category). Therefore, a conscious decision was taken to add
these 4 general category vacancies to the already advertised vacancies, thus
making the number of general category vacancies to be 13 [14-5=9+4=13].
Thus, only 13 candidates were appointed. The respondents have not acted
arbitrarily in making such appointments.
      13. Under the Fast Track Court scheme envisaged by the Central
Government, State Governments were required to establish Fast Track
Courts for disposal of long pending cases. In Brij Mohan Lal (1) (supra),
certain directions were issued for the proper implementation of the above
scheme. Some of the said directions which are relevant for our purpose
provide that for the appointment of judges in the Fast Track Courts, first
preference be given to the eligible judicial officers who may be promoted on
ad-hoc basis after following the procedure in force for the promotion of the
judicial officers. Second preference was to be accorded to the retired judges
who have good service records with no adverse comment in their ACRs.
The third preference was to be given to the members of the Bar for direct
appointment as Fast Track Court judges and that they may be continued
against the regular post if the Fast Track Court ceases to function. They
may be absorbed in regular vacancies in the subsequent recruitment if their
 SUDESH KUMAR GOYAL v. STATE OF HARYANA & ORS. 419
              [PANKAJ MITHAL, J.]

performance in Fast Track Court is found satisfactory and in making such
absorption, the High Court shall adopt such methods of selection as are
normally followed for selection of superior/higher judicial service officers
amongst the members of the Bar by direct recruitment.
      14. It is worth mentioning that Brij Mohan Lal (2) v. Union of India
(2012) 6 SCC 502, vide paragraph 207, without interfering with the policy
decision of the government, in exercise of its power under Article 142 of
the Constitution of India issued certain more directions in relation to Fast
Track Court Scheme. One of the directions was for creation of additional
10% posts for the absorption of Fast Track Court judges. Another direction
was that all those who have been appointed by way of direct recruitment
from the Bar under the Fast Track Court Scheme would be entitled to be
appointed to the regular cadre of the higher judicial services of the respective
States in the manner laid down therein. In addition to the above, it directed
that candidates who were promoted as Fast Track Court judges from the
post of Civil Judge (Sr. Division) having requisite experience in service
shall be entitled to be absorbed and remain promoted to the higher judicial
service of the State against the 25% quota after giving due weightage to the
fact that they have already put in a number of years’ service in the higher
judicial service.
      15. In view of the aforesaid facts and circumstances, it can be noticed
that initially 14 general category vacancies within the direct quota were
advertised, out of which, 5 were filled up by absorption of the Fast Track
Court judges in terms of the directions contained in the Brij Mohan Lal (1)
& (2) (supra). Adding 4 general category posts which in the meantime fell
vacant, all 13 vacancies were duly filled up from the selected candidates.
The appellant could not be appointed as he was at serial No.14 of the merit
and the posts available were only 13.
      16. The absorption of Fast Track Court judges was done after following
the prescribed procedure for the selection. The appointment/absorption of
the aforesaid Fast Track Court judges was in accordance with the directions
contained in Brij Mohan Lal (1) & (2) (supra) and has been affirmed by
the High Court under the impugned order which part of the judgment is not
being assailed specifically.
420            SUPREME COURT REPORTS                      [2023] 12 S.C.R.


      17. In view of the reasoning given by the respondents for appointing
only 13 selected candidates leaving the appellant who was at Sl. No.14, we
are of the opinion that the respondents have justified the appointments and
have not acted in an arbitrary manner. The respondents have acted fairly and
logically without any malice against the appellant. Thus, on the touchstone
of the decision cited on behalf of the appellant himself, we do not find any
arbitrariness on the part of the respondents. Therefore, the decision of the
Division Bench of the High Court is not liable to be disturbed on the above
count, more particularly when the appellant has not acquired any indefeasible
right to be appointed because he qualified in the selection process.
       18. This takes us to the second argument that the appellant could have
been easily adjusted against the vacancy caused due to resignation of one
of the selected candidates. The argument per se is bereft of merit inasmuch
as all the vacancies notified stood filled up initially. However, if one of the
selected candidates joins and then resigns, it gives rise to a fresh vacancy
which could not have been filled up without issuing a proper advertisement
and following the fresh selection process. The Division Bench has rightly
dealt with the above contention in the light of the precedent of the various
decisions of this Court and we do not feel that any error has been committed
in this context.
      19. This apart, as may be noticed that the procedure for selection of
superior/higher judicial service officers by direct recruitment from the Bar
was initiated by the Punjab and Haryana High Court way back in the year
2007 and now we are in the year 2023 meaning thereby that 16 years have
passed by in between. It would be a travesty of justice to keep open the
selection process for such a long time and to direct at this stage to make
any appointment on the basis of a selection process initiated so far back.
For this additional reason also, we do not deem it proper to interfere with
the impugned judgment and order of the High Court.
     20. To conclude, we do not find any merit in this appeal and as such
dismiss the same with no order as to costs.


Headnotes prepared by:                                        Appeal dismissed.
Nidhi Jain