TOSH KUMAR SHARMAversusHIGH COURT OF JUDICATURE AT ALLAHABAD & ORS. R1: HIGH COURT OF JUDICATURE AT ALLAHABAD R2: STATE OF UTTAR PRADESH R3: SELECTION & APPOINTMENT COMMITTEE OF U.P.H.J.S. EXAMINATION

          [2025] 7 S.C.R. 1998 : 2025 INSC 921

                Tosh Kumar Sharma
                          v.
    High Court of Judicature at Allahabad & Ors.
     R1: High Court of Judicature at Allahabad
             R2: State of Uttar Pradesh
     R3: Selection & Appointment Committee of
               U.P.H.J.S. Examination
                 (Civil Appeal No. 9510 of 2025)
                            16 July 2025
   [Ahsanuddin Amanullah and S.V.N. Bhatti, JJ.]


                     Issue for Consideration
Issue arose as regards the correctness of the order passed by
the High Court rejecting the claim raised for appointment by the
appellant to the post of Additional District and Sessions Judge in
the Uttar Pradesh Higher Judicial Service.

                             Headnotes†
Uttar Pradesh Higher Judicial Service Rules, 1975 – rr.8(2),
18(4) – Number of appointments to be made – Appointment
to the post of Additional District and Sessions Judge in the
State Higher Judicial Service – Appellant participated in
the selection process for ‘Direct Recruitment to the Uttar
Pradesh Higher Judicial Service-2016’ – Thirty-seven posts
under the General Category to be filled – Appellant placed
at thirty-eight position in the Merit List – One candidate out
of the thirty-seven candidates recommended by the High
Court did not receive approval from the Hon’ble Governor/
State Government, leaving the actual recruitment under the
General Category to thirty-six, with one vacancy remaining –
Claim of the appellant that since he was the next candidate
in line, he should automatically have been recommended for
appointment – However, the said vacant post was carried
forward for the next recruitment cycle – High Court rejected
the claim of appellant – Correctness:
Held: If there is refusal to intervene, an unjust outcome would
be perpetuated – Denial of recommendation and consequential
appointment of the appellant not justified – r.8(2) of the Rules does
not apply to the situation confronting the High Court upon the rejection
[2025] 7 S.C.R.                                                                  1999

  Tosh Kumar Sharma v. High Court of Judicature at Allahabad & Ors.


     of one candidature by the Hon’ble Governor/State Government from
     out of the communicated list – First portion of r.8(2) contemplates
     that the said Rule is attracted only when the number of ‘selected
     direct recruits available for appointment’ is less than the number of
     direct recruit vacancies, i.e., vacant posts available/advertised – In
     the absence of this condition being satisfied, the High Court not
     under obligation to act in terms of r.8(2) – Terminology employed in
     r.8(2) is ‘selected direct recruits available for appointment’ – Provision
     fundamentally negates any option of approving the High Court’s
     invocation of r.8(2), as the said Rule itself is cognizant of availability
     for appointment – Term ‘direct recruits’ occurring in r.18(4) also
     need to be construed bearing the other Rules in mind, including the
     phraseology engrafted in r.8(2) – r.8(2) could have been pressed
     into service when, exempli gratia, vacancies advertised were ten,
     but only nine candidates figured in the Merit List, leaving one clear
     vacancy, which would be filled-up from the Nyayik Sewa by way of
     promotion, and also adjusted in the next recruitment cycle for direct
     recruits correspondingly, as per the proviso to r.8(2) – Impugned
     judgment set aside – High Court and the State Government to
     process and issue appointment letter to the appellant – Seniority to
     be reckoned notionally as part of 2016 Advertisement – Constitution
     of India – Art.233, 234, 235, 236. [Paras 21, 22, 25]

                                Case Law Cited
     A. Raja v. D. Kumar, 2025 INSC 629 : 2025 SCC OnLine SC
     1033 – relied on.
     Vallampati Sathish Babu v. State of Andhra Pradesh [2022] 2 SCR
     1080 : (2022) 13 SCC 193; Bihar State Electricity Board v. Suresh
     Prasad (2004) 2 SCC 681; Chief Justice of Andhra Pradesh v.
     L.V.A. Dixitulu [1979] 1 SCR 26 : (1979) 2 SCC 34; High Court of
     Judicature for Rajasthan v. P.P. Singh [2003] 1 SCR 593 : (2003)
     4 SCC 239; Ashok Pal Singh v. Uttar Pradesh Judicial Services
     Association [2010] 12 SCR 25 : (2010) 12 SCC 635; Rajendra
     Singh Verma v. Lieutenant Governor [2011] 12 SCR 496 : (2011)
     10 SCC 1; Dr. P.S. Malik v. High Court of Delhi (2020) 19 SCC
     714; High Court of Kerala v. Reshma A. [2021] 1 SCR 289 : (2021)
     3 SCC 755 – referred to.

                                  List of Acts
     Uttar Pradesh Higher Judicial Service Rules, 1975; Constitution
     of India.
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                              List of Keywords
     Post of Additional District and Sessions Judge; ‘2016 Advertisement’;
     General category; One vacancy remaining; ‘Selected direct recruits
     available for appointment’; ‘Selected direct recruits’; ‘Available for
     appointment’; Uttar Pradesh Higher Judicial Service; Merit List;
     Hon’ble Governor/State Government; Carried forward; Recruitment
     cycle; Exempli gratia; Nyayik Sewa.

                             Case Arising From
     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9510 of 2025
     From the Judgment and Order dated 22.09.2022 of the High Court
     of Judicature at Allahabad in WA No. 13979 of 2022

                         Appearances for Parties
     Advs. for the Appellant:
     Ajit Kumar Sinha, Sr. Adv., Deepak Goel, Jitendra Bharti, Ms. Alka
     Goyal, Ms. Archana Preeti Gupta.
     Advs. for the Respondents:
     Ms. Preetika Dwivedi, Abhisek Mohanty.

                Judgment / Order of the Supreme Court

                                    Order

     Leave granted.
2.   Heard Mr. Ajit Kumar Sinha, learned senior counsel for the appellant
     and Ms. Preetika Dwivedi, learned counsel for Respondent No.1-
     Allahabad High Court and Respondent No.3. The State of Uttar
     Pradesh is unrepresented, despite valid service of notice. We are
     glossing over the non-appearance in praesenti; however, the State
     to take note of defaults in appearances to avoid adverse orders that
     affect public interest.
3.   The present appeal is directed against the Final Judgment and
     Order dated 22.09.2022 in WRIT - A No.13979 of 2022 passed
     by a learned Division Bench of the High Court of Judicature at
     Allahabad [2022:AHC:164781-DB] (hereinafter referred to as the
     ‘Impugned Judgment’), whereby the claim raised for appointment by
     the appellant to the post of Additional District and Sessions Judge
[2025] 7 S.C.R.                                                         2001

     Tosh Kumar Sharma v. High Court of Judicature at Allahabad & Ors.


        in the Uttar Pradesh Higher Judicial Service (of the State of Uttar
        Pradesh) has been negatived.

        FACTUAL SETTING:
4.      The appellant, pursuant to the ‘Direct Recruitment to the Uttar Pradesh
        Higher Judicial Service-2016’ advertisement dated 10.05.2016
        (hereinafter referred to as the ‘2016 Advertisement’), participated
        in the said selection process. The final results were published on
        01.10.2020, and the appellant ranked at Sl. No.38 in the Merit List.
        However, since the total vacancies were only thirty-seven under
        the Unreserved/General Category (hereinafter referred to as the
        ‘General Category’), the High Court forwarded a list of the top thirty
        seven persons, who were placed above the appellant, to the Hon’ble
        Governor/Government of Uttar Pradesh for acceptance, clearance
        and final issuance of Appointment Letters. However, at the level of
        the Hon’ble Governor, State of Uttar Pradesh, only thirty-six persons
        out of the thirty-seven recommended candidates were approved and
        consequently appointed. Herein lies the genesis of the instant dispute.
5.      As per the appellant, since he was the next candidate in line as the
        next person (at Sl. No.38 in the Merit List) belonging to the General
        Category, he should automatically have been recommended to the
        State Government for appointment. The same was not done; instead,
        the said vacant post was carried forward for the next recruitment
        cycle and left unfilled in the subject selection.

        APPELLANT’S SUBMISSIONS:
6.      Mr. Sinha, learned senior counsel for the appellant, contended that
        once the vacancies as per the 2016 Advertisement were for thirty-
        seven persons in the General Category, the entirety of the said
        thirty-seven vacancies had to be filled up from the same selection
        process. It was urged that there cannot be any question of carry-
        forward of any vacancy in the facts of the present lis, for the reason
        that it was not the case of a casual vacancy having arisen after the
        candidates concerned had joined their posts. Rather, it was a case
        where one recommended candidate was not finally approved by the
        Hon’ble Governor/State Government, which made the thirty seventh
        post available and vacant for recruitment. In such a scenario, as
        canvassed by Mr. Sinha, it was incumbent upon the High Court to
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     recommend/forward the name of the next eligible candidate, which,
     as per the Merit List, was the present appellant.
7.   It was further argued that Rule 8(2) of the Uttar Pradesh Higher
     Judicial Service Rules, 1975 (hereinafter referred to as the ‘Rules’),
     being relied upon by the High Court, is not attracted in the facts at
     hand as the same is applicable only when the persons finally found
     eligible for being recommended for appointment is less than the
     total posts available, which is not the situation herein as there were
     more than thirty-seven persons available and eligible. Due to the
     restriction of thirty-seven posts, as pointed out above, only thirty-
     seven names were finally recommended to the Hon’ble Governor/
     State Government, out of which only 36 candidates found favour.
8.   It was also submitted that the one candidate who was not approved
     by the Hon’ble Governor/State Government had accepted the said
     position, and there was no pending litigation vis-à-vis the said person
     and the High Court/State Government. Learned senior counsel argued
     that as the said thirty seventh post was never filled up pursuant to
     the 2016 Advertisement, technically, such a post was still available.
     The contention of the High Court that it had been subsequently filled
     up by carry-forward to the next recruitment cycle, thus, ought not to
     be sustained. The Court was urged to allow the appeal.

     SUBMISSIONS BY RESPONDENTS NO.1 AND 3:
9.   Per contra, Ms. Dwivedi, learned counsel for the High Court, in
     support of the Impugned Judgment, submitted that the appellant
     may not be eligible for the reason that there was one candidate (Mr.
     Shakir Hasan) belonging to the Other Backward Classes Category
     (hereinafter referred to as the ‘OBC Category’), who had fared
     better than the appellant in the Merit List, and if somebody was to
     be appointed for the said thirty seventh post, it would be Mr. Shakir
     Hasan. On the direct query as to whether the appointment of Mr.
     Shakir Hasan had materialised, learned counsel informed us that
     he had been appointed, treating him as falling in the OBC Category.
10. The Court’s next line of examining proceeded as follows:
     (a)   Whether, even after the appointment of Mr. Shakir Hasan
           in the OBC Category, a vacancy in the General Category
           subsisted, in relation to the selection process initiated by the
           2016 Advertisement?
[2025] 7 S.C.R.                                                         2003

  Tosh Kumar Sharma v. High Court of Judicature at Allahabad & Ors.


     (b)   Whether any candidate had staked a claim for appointment on
           the ground that she/he stood higher in the Merit List than the
           appellant but had not been recommended for appointment?
11. Learned counsel referred to the Counter-Affidavit to submit that in
    accordance with Rule 8(2) of the Rules, after the candidature of one
    recommended person was not approved by the Hon’ble Governor/
    State Government, the Selection and Appointment Committee vide
    Minutes dated 19.06.2020 had resolved, inter alia, as under:
           ‘…The post now vacated after the cancellation of his
           candidature will be accounted for in the next recruitment
           process as an unforeseen vacancy. It is also resolved
           that promotion under Rule 8(2) of Rules, 1975 against
           one post be made so that necessary compliance of the
           order of Apex Court in Malik Mazhar Sultan’s case may
           be ensured.’
12. Learned counsel argued that the promotion was also made against
    the post remaining vacant on account of the rejected candidature
    as per the Rules.
13. Ms. Dwivedi, as an officer of the Court, on the factual score, submitted
    viz. (a) Mr. Shakir Hasan was appointed under the OBC Category,
    and (b) no other person had sought appointment on the thirty seventh
    post under the General Category claiming to be higher up on the
    Merit List than the appellant. We appreciate her fair stand.

     ANALYSIS:
14. Before appreciating the crux of the matter at hand, we may note the
    special position of the High Court in matters relating to the Judicial
    Services of the State(s)/Union Territory(ies) under its jurisdiction. It
    would be fitting to advert to certain Articles from the Constitution of
    India, 1950 (hereinafter referred to as the ‘Constitution’):
           ‘233. Appointment of district judges.—
           (1) Appointments of persons to be, and the posting and
           promotion of, district judges in any State shall be made
           by the Governor of the State in consultation with the High
           Court exercising jurisdiction in relation to such State.
           (2) A person not already in the service of the Union or of
           the State shall only be eligible to be appointed a district
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          judge if he has been for not less than seven years an
          advocate or a pleader and is recommended by the High
          Court for appointment.
          xxx
          234. Recruitment of persons other than district judges
          to the judicial service.— Appointments of persons other
          than district judges to the judicial service of a State shall
          be made by the Governor of the State in accordance with
          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.
          235. Control over subordinate courts.— The control over
          district courts and courts subordinate thereto including
          the posting and promotion of, and the grant of leave to,
          persons belonging to the judicial service of a State and
          holding any post inferior to the post of district judge shall
          be vested in the High Court, but nothing in this article shall
          be construed as taking away from any such person any
          right of appeal which he may have under the law regulating
          the conditions of his service or as authorising the High
          Court to deal with him otherwise than in accordance with
          the conditions of his service prescribed under such law.
          236. Interpretation.—In this Chapter—
          (a) the expression “district judge” includes judge of a city
          civil court, additional district judge, joint district judge,
          assistant district judge, chief judge of a small cause court,
          chief presidency magistrate, additional chief presidency
          magistrate, sessions judge, additional sessions judge and
          assistant sessions judge;
          (b) the expression “judicial service” means a service
          consisting exclusively of persons intended to fill the post
          of district judge and other civil judicial posts inferior to the
          post of district judge.’
15. In several judgments, including, but not limited to, Chief Justice of
    Andhra Pradesh v L.V.A. Dixitulu, (1979) 2 SCC 34; High Court of
    Judicature for Rajasthan v P.P. Singh, (2003) 4 SCC 239; Rajendra
[2025] 7 S.C.R.                                                            2005

  Tosh Kumar Sharma v. High Court of Judicature at Allahabad & Ors.


     Singh Verma v Lieutenant Governor, (2011) 10 SCC 1, and; Dr. P.S.
     Malik v High Court of Delhi, (2020) 19 SCC 714, it has been spelt out
     by the Court that Article 235 of the Constitution bestows complete,
     exclusive and effective control over Judicial Officers, encompassing
     appointment, removal, reduction of rank, dismissal, transfer, promotion
     etc. on the concerned High Court.
16. Three learned Judges of this Court in the High Court of Judicature
    for Rajasthan (supra) opined that a Committee of Judges can be
    authorised by the Full Court/Chief Justice or the concerned High Court
    Rules to decide on matters, and such delegation to the Committee
    was permissible in law. In Rajendra Singh Verma (supra), the facts
    of the lead case were that an officer of the Delhi Higher Judicial
    Service was recommended to be compulsorily retired by the Screening
    Committee of the Delhi High Court, and the Full Court approved such
    recommendation. Aggrieved, that officer moved the Delhi High Court
    by way of a writ petition, which was dismissed. When the matter
    was carried to this Court, no reason was found to interfere and the
    appeal(s) were dismissed, inter alia, with the observation:
           ‘218. On a careful consideration of the entire material, it
           must be held that the evaluation made by the Committee/
           Full Court, forming their unanimous opinion, is neither so
           arbitrary nor capricious nor can be said to be so irrational,
           so as to shock the conscience of this Court to warrant
           or justify any interference. In cases of such assessment,
           evaluation and formulation of opinions, a vast range of
           multiple factors play a vital and important role and no one
           factor should be allowed to be blown out of proportion
           either to decry or deify an issue to be resolved or claims
           sought to be considered or asserted. In the very nature of
           things, it would be difficult, nearing almost an impossibility
           to subject such exercise undertaken by the Full Court to
           judicial review except in an extraordinary case when the
           Court is convinced that some real injustice, which ought not
           to have taken place, has really happened and not merely
           because there could be another possible view or someone
           has some grievance about the exercise undertaken by the
           Committee/Full Court.’
                                                  (emphasis supplied)
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17. In this appeal, we are, in effect, considering the legality of the
    decision(s) taken by the Selection and Appointment Committee
    comprising of learned Judges of the High Court on the conclusion
    of selection process initiated pursuant to the subject advertisement.
    Doubtlessly, the views of a Committee of the High Court or the Full
    Court itself are to be bestowed due consideration and appropriate
    weightage. However, we are convinced that in the instant appeal,
    the appellant deserves to succeed, and if we refuse to intervene, an
    unjust outcome would be perpetuated. The reasons for our statement
    follow hereinafter.
18. This Court is required to examine how the said vacancy of one post
    should be treated, and if at all it should be filled up from the Merit
    List resulting from the 2016 Advertisement, or not.
19. Having considered the matter in its entirety, we find substance in
    the contentions of the learned senior counsel for the appellant. The
    fact remains that thirty-seven posts under the General Category
    were to be filled pursuant to the 2016 Advertisement. It is a fact that
    the appellant was placed at position thirty-eight in the Merit List. It
    is also a fact that one candidate out of the thirty-seven candidates
    recommended by the High Court did not receive approval from the
    Hon’ble Governor/State Government, leaving the actual recruitment
    under the General Category to thirty-six, with one vacancy remaining.
    For clarity, it is noted that another candidate, although appointed,
    unfortunately, later committed suicide. However, this does not impact
    the present matter, and we are not reckoning the said resultant
    vacancy in appreciating the applicability of Rule 8 of the Rules to the
    controversy presented by the admitted circumstances of this case.
20. The issue, thus, lies in a narrow compass of Rule 8. Let us look at
    Rule 8, especially sub-Rule (2) of the Rules:
          ‘8. Number of appointments to be made –
          (1) The Court, shall, from time to time, but not later than
          three years from the last recruitment, fix the number of
          officers to be taken at the recruitment keeping in view
          the vacancies then existing and likely to occur in the next
          two years.
          Note - The limitation of three years mentioned in this sub-
          rule shall not apply to the first recruitment held after the
          enforcement of these rules.
[2025] 7 S.C.R.                                                            2007

  Tosh Kumar Sharma v. High Court of Judicature at Allahabad & Ors.


           (2) If at any selection the number of selected direct recruits
           available for appointment is less than the number of recruits
           decided by the Court to be taken from that source, the
           Court may increase correspondingly the number of recruits
           to be taken by promotion from the Nyayik Sewa;
           Provided that the number of vacancies filled in as aforesaid
           under this sub rule shall be taken into consideration while
           fixing the number of vacancies to be allotted to the quota
           of direct recruits at the next recruitment, and the quota
           for direct recruits may be raised accordingly; so, however,
           that the percentage of direct recruits in the service does
           not in any case exceed 25% of strength of the service:’
                                                  (emphasis supplied)

21. Rule 8(2) is not mired in complexity. As per the contention of the
    High Court, the thirty seventh post was a vacancy which had to be
    carried forward, and was done so by the Selection and Appointment
    Committee, which also resolved to make a promotion against one post
    as per the orders passed at different points in time in Malik Mazhar
    Sultan and Anr. v Uttar Pradesh Public Service Commission and
    Ors., Civil Appeal No.1867/2006. On deeper scrutiny, our finding is
    that Rule 8(2) of the Rules does not apply to the situation confronting
    the High Court upon the rejection of one candidature by the Hon’ble
    Governor/State Government from out of the communicated list. The
    first portion of Rule 8(2) of the Rules itself contemplates that the said
    Rule is attracted only when the number of ‘selected direct recruits
    available for appointment’ is less than the number of direct recruit
    vacancies, i.e., vacant posts available/advertised. In the absence of
    this condition being satisfied, the High Court is not under obligation
    to act in terms of Rule 8(2) of the Rules. Admittedly, and at the cost
    of repetition, thirty-seven General Category posts were available as
    per the 2016 Advertisement, of which thirty-seven candidates were
    recommended. Among these thirty-seven candidates, the Hon’ble
    Governor/State Government rejected one person’s candidature.
    The terminology employed in Rule 8(2) is ‘selected direct recruits
    available for appointment’. Had the term only been ’selected direct
    recruits’, we could have upheld the contentions of Ms. Dwivedi.
    However, this is immediately followed by ‘available for appointment’.
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     The provision fundamentally negates any option of approving the
     High Court’s invocation of Rule 8(2) of the Rules, as the said Rule
     itself is cognizant of availability for appointment. This implies that it
     accounts for a situation wherein, for instance, a Merit List contains
     eleven candidates, but the recruitment process culminates in
     recommending ten candidates for notification. If the top ten candidates
     are approved by the Hon’ble Governor/State Government, the person
     placed at the eleventh position is out of the game. However, if,
     for any reason, one or more of the top ten candidates do not get
     approved for appointment, the eleventh-ranked candidate from the
     same selection process is entitled to be offered an appointment. This
     logically flows from reading and construing ‘selected direct recruits
     available for appointment’ as a whole. We have borne in mind the
     principles elucidated recently by a Three-Judge Bench in A. Raja v
     D. Kumar, 2025 SCC OnLine SC 1033, which has considered a
     whole host of relevant precedents on interpretive methods. We find
     our analysis to be in accord therewith. The term ‘direct recruits’
     occurring in Rule 18(4) of the Rules will, therefore, also need to be
     construed bearing the other Rules in mind, including the phraseology
     engrafted in Rule 8(2).
22. Rule 8(2) could have been pressed into service when, exempli gratia,
    vacancies advertised were ten, but only nine candidates figured in
    the Merit List, leaving one clear vacancy, which would be filled-up
    from the Nyayik Sewa by way of promotion, and also adjusted in the
    next recruitment cycle for direct recruits correspondingly, as per the
    proviso to Rule 8(2), such that the direct recruits do not ever exceed
    25% strength of the service.
23. The appellant was placed at the thirty eighth position in merit,
    alongside others ranking below him, who were all eligible for
    appointment, i.e., ‘available for appointment’. However, due to the
    limited number of posts, i.e., thirty-seven in the General Category,
    the top thirty-seven from the Merit List were recommended for final
    appointment. As fate would have it, the candidature of one originally
    recommended person did not materialise into an appointment, and
    the said person accepted the position.
24. In light of the above, we are unable to justify the denial of
    recommendation and consequential appointment of the appellant.
    For the sake of clarity, this is not a case where the appellant is
[2025] 7 S.C.R.                                                            2009

  Tosh Kumar Sharma v. High Court of Judicature at Allahabad & Ors.


     ineligible or otherwise disqualified for appointment. This is also not a
     case where a ‘continuing wait list’ is being created. For the reasons
     stated above, this appeal is allowed. The Impugned Judgment is
     set aside.
25. The High Court and the State Government are directed to process
    and issue Appointment Letter to the appellant. His seniority would
    be reckoned notionally as part of the 2016 Advertisement’s selection
    process. Needless to state, no back-wages or any other emoluments
    preceding the date of actual joining in service shall be due and/or
    payable to the appellant. The entire exercise, including necessary
    formalities, shall be completed within two months from the date.
    The appellant shall be assigned a posting, and shall complete the
    prescribed training.
26. We have perused Ashok Pal Singh v Uttar Pradesh Judicial Services
    Association, (2010) 12 SCC 635; High Court of Kerala v Reshma A.,
    (2021) 3 SCC 755, and; Vallampati Sathish Babu v State of Andhra
    Pradesh, (2022) 13 SCC 193, which find mention in the High Court’s
    Counter-Affidavit. Insofar as Ashok Pal Singh (supra) is concerned,
    it does not even touch upon the specific issue emanating herein.
    The High Court of Kerala (supra) reiterates the settled principle
    that, ordinarily, the number of appointments made cannot exceed
    the vacancies advertised/notified, as well as the understanding that
    a selection process may reasonably contemplate both actual and
    anticipated vacancies, but not future vacancies. We are unable to
    see how this judgment in any way militates against what we have
    held. Vallampati Sathish Babu (supra) held:
           ‘20. An identical question came to be considered by this
           Court in Suresh Prasad [Bihar SEB v. Suresh Prasad,
           (2004) 2 SCC 681: 2004 SCC (L&S) 438]. In the said
           decision, it is specifically observed and held that even in
           case candidates selected for appointment have not joined,
           in the absence of any statutory rules to the contrary, the
           employer is not bound to offer the unfilled vacancy to
           the candidates next below the said candidates in the
           merit list. It is also further held that in the absence of any
           provision, the employer is not bound to prepare a waiting
           list in addition to the panel of selected candidates and
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          to appoint the candidates from the waiting list in case
          the candidates from the panel do not join. The aforesaid
          decision of this Court has been subsequently followed by
          the Andhra Pradesh High Court in Samiulla Shareef [State
          of A.P. v. Samiulla Shareef, 2013 SCC OnLine AP 482].’
                                                 (emphasis supplied)

27. The dicta in Vallampati Sathish Babu (supra), following Bihar State
    Electricity Board v Suresh Prasad, (2004) 2 SCC 681, was based
    on the provision/Rule therein. The concerned provision in Vallampati
    Sathish Babu (supra) is as follows:
          ‘13. Rule 16 of the 2012 Rules is in respect of preparation
          of the select list. Sub-rule (5) of Rule 16 of the 2012
          Rules, which is relevant for the purpose of this case
          reads as under:
          “(5) The number of candidates selected shall not be
          more than the number of vacancies notified. There
          shall be no waiting list and posts if any unfilled for any
          reason whatsoever shall be carried forward for future
          recruitment.”’
                                                 (emphasis supplied)

28. Rule 8(2) of the Rules specifically incorporates and employs the
    term ‘selected direct recruits available for appointment’. To try to
    read it in the manner the High Court would like us to read, would do
    violence to the plain and clear text of the Rule. As such, Vallampati
    Sathish Babu (supra) and Bihar State Electricity Board (supra) do
    not aid the High Court. We may, in passing, albeit, record that the
    matter deserved a higher level of scrutiny, which the Division Bench
    did not accord it.
29. Learned counsel for the High Court, at this juncture, prayed that
    to put an authoritative quietus to the issue(s) and prevent further
    litigation concerning inter-se seniority, this Court may direct that the
    appellant be placed below the last-appointed candidate in the same
    selection process. Finding merit in the request made, the same was
    put to the learned senior counsel for the appellant. On instructions,
    learned senior counsel does not oppose such a proposal. Ordered
[2025] 7 S.C.R.                                                    2011

  Tosh Kumar Sharma v. High Court of Judicature at Allahabad & Ors.


     accordingly – the appellant shall be placed immediately below all
     persons appointed pursuant to the 2016 Advertisement, including Mr.
     Shakir Hasan, to reckon his seniority and entry into service without
     financial commitments to the State Government.

     Result of the case: Appeal allowed.




     †
         Headnotes prepared by: Nidhi Jain