Appointments over advertised vacancies illegal, SC refuses to unseat two officers considering their 10 years of service

While hearing the Vivek Kaisth & Anr. vs. The State of Himachal Pradesh & Ors. case on November 20, 2023, the Supreme Court (SC) bench stated that the procedure adopted by the Himachal Pradesh Public Service Commission and the High Court in the 2013 selection of Civil Judge (Junior Division) was wrong. In this context, the appointments of two judicial officers were found to be irregular. Moreover, the bench consisting of Justice Sudhanshu Dhulia and Justice CT Ravikumar refused to unseat the two officers considering their 10 years of service. The SC was hearing the appeals filed by the appellants against the judgment passed by the Division Bench of the High Court, by which the appointment of the appellants to the post of Civil Judge (Junior Division) has been quashed. The High Court found that the appellant’s appointments were illegal because they were made over advertised vacancies. 

The SC while delivering the judgment noted that “we also cannot fail to consider that the appellants were appointed from the list of candidates who had successfully passed the written examination and viva voce and they were in the merit list. Secondly, it is nobody’s case that the appellants have been appointed by way of favoritism, nepotism, or due to any act which can even remotely be called “blameworthy”. Finally, they have now been working as judges for ten years. There is hence a special equity which leans in favor of the appellants.” During the court proceedings, the SC considered various precedents and observed that “The common thread that runs in all the above judgments is that appointments cannot be made over and above the vacancies which were advertised i.e., clear and anticipated vacancies, even though the Public Service Commission may have prepared a longer merit list than it was required to do.”

Following this, Justice Dhulia read in its order, “To sum up the position of law as it stands, once clear and anticipated vacancies have been advertised, appointments can only be made on these vacancies. Vacancies which could not be anticipated before the date of advertisement, or the vacancies which did not exist at the time of advertisement, are the vacancies for the future i.e., next selection process.” The SC set aside the order of the High Court as far as it quashes the selection and appointment of the appellants.