caselaws.org

Supreme Court of India
Pankjeshwar Sharma vs The State Of Jammu And Kashmir on 3 December, 2020Author: L. Nageswara Rao

Bench: L. Nageswara Rao, Hemant Gupta, Ajay Rastogi

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(s).3904­3905 OF 2020
(Arising out of SLP(C) No(s). 20553­20554 of 2013)

PANKJESHWAR SHARMA AND OTHERS …APPELLANT(S)

VERSUS

STATE OF JAMMU & KASHMIR AND
OTHERS …RESPONDENT(S)

WITH

CIVIL APPEAL NO(s).3907 OF 2020
(Arising out of SLP(C) No(s).34564 of 2014)

CIVIL APPEAL NO(s).3908­3909 OF 2020
(Arising out of SLP(C) No(s).1621­1622 of 2014)

CIVIL APPEAL NO(s).3910 OF 2020
(Arising out of SLP(C) No(s).27135 of 2013)

CIVIL APPEAL NO(s).3918 OF 2020
(Arising out of SLP(C) No(s).29803 of 2013)

CIVIL APPEAL NO(s).3920 OF 2020
(Arising out of SLP(C) No(s).29765 of 2013)

CIVIL APPEAL NO(s).3921­3922 OF 2020
(Arising out of SLP(C) No(s). 27983­27984 of 2013)

CIVIL APPEAL NO(s).3930­3931 OF 2020
(Arising out of SLP(C) No(s).25906­25907 of 2013)

CIVIL APPEAL NO(s).3919 OF 2020
(Arising out of SLP(C) No(s).25929 of 2013)

1
CIVIL APPEAL NO(s).3923­3929 OF 2020
(Arising out of SLP(C) No(s).21645­21651 of 2013)

CIVIL APPEAL NO(s).3911­3917 OF 2020
(Arising out of SLP(C) No(s).21192­21198 of 2013)
CIVIL APPEAL NO(s).3932­3933 OF 2020
(Arising out of SLP(C) No(s).22708­22709 of 2013)

CIVIL APPEAL NO(s).3934 OF 2020
(Arising out of SLP(C) No(s).23227 of 2013)

JUDGMENT

Rastogi, J.

These present batch of appeals have been instituted by the

unsuccessful appellants being aggrieved with the impugned

judgment dated 20th March, 2013 passed by the Division Bench of

the High Court of Jammu & Kashmir in LPA No.02/2011 and

LPA No.04/2011 and placing reliance on its judgment dated

12th March, 2013, cognate LPAs at a later stage were disposed of.

2. The case has a chequered history and in order to appreciate

the grievance of the appellants, it will be necessary to glance

through the relevant background facts. It is the third round of

litigation arising out of the selection process held pursuant to an

advertisement (No.Pers/Rectt/SI/EX­99/A­405) dated 25 th

2
February, 1999 issued by the 2nd respondent­Director General of

Police, J&K State inviting applications for the post of

Sub­Inspector of Police (Executive), the post which is included in

the Schedule appended to the J&K Police (Executive) Rules to be

filled by open selection in terms of the procedure prescribed

under the Rules.

3. Admittedly, it is neither provided in the scheme of Rules nor

mentioned in the advertisement notice that the merit list of the

candidates based on the written and viva­voce test is to be

separately prepared for the Provinces of Jammu & Kashmir. It

reveals from the record that the last selected candidate from

Jammu Province secured 56 marks whereas, in Kashmir

Province, the last selected candidate secured 50 marks. The 2 nd

respondent under its own assumption published the select list of

total candidates of 252 Province­wise i.e. separately for Jammu &

Srinagar on 23rd April, 2000.

First round of litigation

4. The unsuccessful candidates challenged the selection

process by filing SWP No.567/20001 on manifold grounds inter

alia that the select list which was prepared Province­wise is not
1 Surinder Kumar Sharma vs. State of Jammu and Kashmir and Ors.

3
legally permissible and it ought to have been prepared as one

select list for the whole of the State of Jammu & Kashmir as the

post of Sub­Inspector is a State cadre post and therefore, the

selection ought to have been made by treating the State as a unit

and not on the basis of residence of the candidates of Jammu &

Kashmir Provinces.

5. The writ petitioners succeeded in persuading and the

learned Single Judge by judgment and order dated 16 th October,

2000 allowed the writ petitions with the direction that the select

list be prepared afresh of the State (J&K) and those who secured

50 or more marks in the revised select list be considered for

appointment without disturbing the appointments already made.

Against the order of the learned Single Judge, State­respondent

filed LPAs before the Division Bench of the High Court and the

Division Bench by its judgment dated 19 th August, 2002 modified

the order of the learned Single Judge with the direction to redraw

the merit list State­wise and on redrawing the merit list, if the

candidates who have already been selected/appointed and come

within the merit zone, they should not be disturbed but their

seniority would be determined in accordance with their

4
placement in the order of merit which would be finally prepared.

The above order of the Division Bench dated 19 th August, 2002

was the subject matter of challenge in SLP(C) No.24798/2002

which came to be dismissed by this Court under order dated 10 th

February, 2004.

6. In compliance of the order of the Division Bench dated

19th August, 2002, a fresh redrawn State­wise merit list dated

19th May, 2004 came to be notified by the 2 nd respondent

appointing 259 candidates and at the same time, cancelled the

appointment of 47 candidates who were already in service since

their names did not find place in the revised merit list at the

State level.

Second round of litigation

7. That the ousted candidates approached the learned Single

Judge of the High Court by filing a writ petition challenging the

redrawn State­wise merit list dated 19 th May, 2004 and the

Learned Single Judge by its order dated 24 th May, 2004 issued

interim directions to allow such ousted candidates to continue in

service until the next date of hearing. Meanwhile, contempt

proceedings being COA(LPASW) No.22/2004 were also initiated

5
against the 2nd respondent for non­compliance of the order of the

Division Bench dated 19th August, 2002 and against the

continuation of such 47 ousted candidates in the service. The

Division Bench of the High Court by its order dated 03 rd

December, 2004 disposed of the contempt petition with a

direction that “those who did not come within the merit zone in the

re­drawn merit list cannot be allowed to continue and if any such

person is being so continued, he will be removed as already

directed by the order dated 19.05.2004.”

8. That came to be challenged in a SLP at the instance of the

44 ousted candidates who have been directed to be removed from

service by the Division Bench by order dated 03 rd December,

2004. Various interlocutory applications by a total of 22

candidates were filed for their impleadment before this Court in

the pending Special Leave Petition which was later converted into

Civil Appeal No.4758/2006. This Court by its order dated 10 th

May, 2007 without examining the inter se dispute of the litigant

parties and taking note of the statement made by the learned

Advocate General of the State on its face value that all the 47

ousted candidates who are likely to loose their job as a result of

6
the order of the High Court dated 03rd December, 2004 passed in

contempt petition and such of 22 impleaded candidates on filing

of their interlocutory applications before this Court, will be

accommodated on the post of Sub­Inspector, disposed of the

appeal with the following order:­

“Mr. Altaf H. Nayak, learned Advocate General submits that all
the 47 petitioners who are likely to go out of job as a result of
the impugned order passed by the High Court and 22
respondents herein will be accommodated on the post of Sub­
Inspector. He further submits that all the 47 petitioners who
were selected on account of impugned selection and are
presently working will be allowed to continue on their posts. In
view of this statement made by learned Advocate General, we do
not think we need to determine any legal question involved in
this matter. Consequently the Appeal stands disposed of in view
of the statement made by learned Advocate General.”

9. That apart from the 47 ousted candidates who were earlier

in the order of merit but could not find place because of the merit

list being redrawn in purported compliance of the directions

made by the High Court in its order dated 19 th August, 2002, the

2nd respondent appointed 22 candidates vide its orders dated

23rd February, 2008 and 11th March, 2008. It reveals from the

record that these 22 candidates were much lower in the redrawn

merit list and their placement in the order of merit was not

brought to the notice of this Court and that gave rise to a further

litigation.
7
Third round of litigation

10. Some of the left out candidates who were higher in the order

of merit qua these 22 candidates who were appointed by the

2nd respondent vide orders dated 23 rd February, 2008 and

11th March, 2008 under the so­called alleged compliance of the

order of this Court dated 10th May, 2007, approached the High

Court by filing of a writ petition being SWP No.1084/2008 and

SWP No.1145/2008 on the premise that the writ petitioners were

denied their legitimate right of fair consideration being higher in

the redrawn merit list vis­a­viz, the 22 persons who were

indisputedly less meritorious still appointed and action of the

State is in violation of the statutory rules and is also a denial of

equal opportunity in seeking appointment on the envil of Article

14 of the Constitution.

11. It reveals from the record that such of the 22 candidates of

whom reference has been made in the order of this Court dated

10th May, 2007, majority of them were lower in the order of merit

qua the candidates/writ petitioners who were contesting their

right claiming equal and fair opportunity for seeking appointment

as per their placement in the order of redrawn merit. The learned

8
Single Judge by order dated 26th August, 2010 allowed the writ

petitions with the direction that any appointment made on the

basis of concession made by the learned Advocate General of the

State, would not deprive the legitimate claim of the writ

petitioners being higher in the order of merit from seeking

appointment to the post of Sub­Inspector qua these 22

candidates and they indeed have a right of fair consideration in

seeking appointment based on their order of merit that gave rise

to filing of LPA No.02/2011 and cognate appeals before the

Division Bench of the High Court at the instance of the persons

aggrieved.

12. These batch of appeals were disposed of by the Division

Bench by its judgment dated 12 th March, 2013 setting aside the

judgment of the learned Single Judge dated 26 th August, 2010.

Relying upon the said judgment of the Division Bench dated

12th March, 2013, other cognate appeals were at a later stage

decided by the Division Bench and that became the subject

matter of challenge in appeals before us.

13. Mr. Paramjit Singh Patwalia, learned Senior counsel for the

appellants submits that the order of this Court dated 10 th May,

9
2007 merely recorded the concession made by the learned

Advocate General of the State and it has been completely

misconstrued by the Division Bench of the High Court in holding

that as the order has been passed by this Court in exercise of its

power under Article 142 of the Constitution to do complete

justice, it is not open to question in the collateral proceedings.

14. Learned Senior counsel further submits that by appointing

such 22 persons as Sub­Inspectors who had been nowhere in the

redrawn merit list prepared pursuant to an advertisement dated

25th February, 1999, at least right of the appellants of fair

consideration in seeking appointment who admittedly placed

higher in the order of redrawn merit list could not have been

divested in taking defence to the order of this Court dated 10 th

May, 2007 and such appointments made by the respondents of

22 persons as Sub­Inspectors is not only in violation of the

statutory recruitment rules but also in violation of Article 14 of

the Constitution are unsustainable and dehors the rules.

15. Learned Senior counsel further submits that there is no

delay or latches which could be attributed to the present

appellants as few of them earlier approached the Court at the

10
initial stage when the selection process came to be questioned in

the year 2000 but they were primarily aggrieved when 22

candidates were offered appointment by the State­respondent

under its orders dated 23 rd February, 2008 and 11th March, 2008

as they are nowhere in the order of redrawn merit list prepared

by the State­respondent in compliance of the judgment of the

Division Bench of the High Court dated 19th August, 2002 in the

first round of litigation and in the given circumstances, they

cannot be said to be the fence sitters as observed by the Division

Bench in the impugned judgment.

16. Learned Senior counsel for the appellants has made a

further feeble attempt to justify that there are 26 appellants who

are before this Court assailing the impugned judgment of the

Division Bench of the High Court in the instant proceedings and

10 of the appellants are presently serving as a Head

Constables/Constables in Jammu & Kashmir Police and 9 are

serving in various Government departments and only 7 of the

appellants are such who are employed in private sector and what

being contended by the appellants if not acceded to by this Court

and permitting the persons who are lower in merit to continue as

11
Sub­Inspectors, will be a heartburn and mental agony to them

and at least the on­going injustice with them ought not to be

permitted to continue. He furthermore submits that there will be

no financial implications to the respondents as the appellants are

not claiming any back wages and there still exists to their

information more than 100 vacant posts of Sub­Inspectors in

Jammu & Kashmir and the present appellants can also be

accommodated without disturbing these 22 candidates who

were appointed as Sub­Inspectors pursuant to an advertisement

dated 25th February, 1999.

17. The appellant in SLP(C) No.34564 of 2014 was selected in a

subsequent selection for the post of Sub­Inspector pursuant to

an advertisement issued in February, 2001 and was appointed

vide order dated 01st February, 2002 and on acceptance of what

being prayed by him, he will be entitled for seniority and

consequential benefits from 23rd April, 2000 and according to

him, that may not disturb even the appointments which are

made by the respondent of 47 plus 22 persons in respect of

whom grievance has been raised by the appellants in the instant

proceedings.

12
18. Per contra, while supporting the impugned judgment of the

Division Bench of the High Court, learned counsel for the

respondents submits that 47 ousted candidates whose services

were terminated after the redrawn merit list was published, were

initially allowed to continue on the strength of the interim order

passed by the learned Single Judge of the High Court and during

pendency of the litigation, such 47 ousted candidates have been

continuously working in the department right from their

appointment in the year 2000 and the department had incurred

huge expenses on their training courses. Besides this, the said

47 candidates have taken part in anti­insurgency operations in

the State and as such there were apprehension of threat to their

life. The State accordingly wanted to retain them and when the

matter was listed before this Court in the earlier round of

litigation on 10th May, 2007, the difficulties were pointed out to

this Court and it was conceded that in case the appointment of

such 47 candidates is saved, there were 22 vacancies available

and such 22 applicants were not only became a party but have

been litigating since the year 2000 and in the given

circumstances, it was considered appropriate that in order to

settle the issue one for all and to sum up the on­going litigation

13
pending for the last eight years and subsequent selections were

also held for the post of Sub­Inspector pursuant to an

advertisement notified in February, 2001, 22 such candidates

may be accommodated along with 47 ousted candidates who

were allowed to continue since the year 2000. In the given

situation, the statement was made by the learned Advocate

General of the State under the bonafide impression that it will at

least give quietus to the on­going battle between the selected

candidates inter se pending since the year 1999.

19. Learned counsel further submits that it is not the case of

the appellants that they are the senior most 22 candidates in the

order of redrawn merit list, who have been left over from

consideration for appointment and also informed that there are

good number of candidates who are higher in the order of merit

qua the present appellants in the redrawn select list which was

prepared pursuant to a direction of the High Court in the first

round of litigation and the candidates with whom the present

appellants had a lis have been appointed in the year 2008 and

have served for more than 12 years and further submits that

what has been contended by the appellants if accepted by this

14
Court the appointments are to be made strictly in the order of

redrawn merit list, against 22 vacancies which are in dispute,

majority of appellants may not find their name in queue in

seeking appointment as they are not the senior most 22

candidates in the order of redrawn merit deprived from

consideration for appointment and submits that in the peculiar

facts and circumstances, what has been observed by the High

Court in the impugned judgment needs no further interference.

20. We have heard the counsel for the parties and with their

assistance perused the material on record.

21. Unfortunately, the advertisement to the post of Sub­

Inspector which was published by the 2 nd respondent way back

on 25th February, 1999 with the condition that one has not

crossed the age of 28 years as on 01 st January, 1999, after 21

years down the line, is still has not been finalised and we are

pondering over the inter se dispute of the candidates who had

participated in the selection process must have crossed the age of

43­47 years under the belief that they may still be considered for

appointment.

15
22. In the first round of litigation, when the controversy initially

arose as to whether the merit list Province­wise in Jammu &

Kashmir could have been prepared by the respondent and how

far it can held to be in conformity with the scheme of rules, while

examining the controversy, the learned Single Judge categorically

observed that all those candidates who have secured less than 50

marks have no right to contend that they have been arbitrarily

ignored on the basis of Province­wise selection and the claim of

those candidates who have obtained 50 or more than 50 marks

was left open to be considered by the learned Single Judge in the

proceedings initially in the year 2000. The further dispute which

was revisited/reviewed/re­examined by the Court at the later

stage in the second round of litigation primarily confined to the

candidates who obtained 50 or more than 50 marks under the

zone of consideration for being considered for appointment on the

post of Sub­Inspector pursuant to an advertisement dated

25th February, 1999.

23. The indistputed facts which manifest from the record as

noticed above is that the advertisement came to be notified by the

2nd respondent dated 25th February, 1999 holding selections for

16
the post of Sub­Inspector and the present batch of appeals are

preferred by the appellants/participants being higher in the order

of merit qua those 22 candidates who were appointed by the 2 nd

respondent vide orders 23rd February, 2008 and 11th March, 2008

on the basis of the concession made by the learned Advocate

General of the State recorded under order dated 10 th May, 2007

of this Court, with the claim that they have been deprived from

fair consideration in seeking appointment.

24. It is a settled principle of service jurisprudence and has

been consistently followed by this Court that the rules of

recruitment to various services under the State or to a class of

posts under the State, the State is bound to follow the same and

to have the selection of the candidates to be made as per the

scheme of recruitment rules and appointments shall be made

accordingly. At the same time, all the efforts shall be made for

strict adherence to the procedure prescribed under the

recruitment rules. On the contrary, if any appointments are

made bypassing the recruitment procedure known to law, will

resulted in violation of Article 14 and 16 of the Constitution.

This Court in State of U.P. and Others vs. Rajkumar Sharma and

17
Others2 and later in Arup Das and Others vs. State of Assam and

Others3 considered the question of filling up of vacancies over and

above the number of vacancies advertised and held that the

filling up of vacancies over and above the number of vacancies

advertised would be violative of fundamental rights guaranteed

under Article 14 and 16 of the Constitution and the selectees

could not claim appointments as a matter of right. This Court

further held that even if in some cases appointments had been

made erroneously or by mistake, that did not confer any right of

appointment to another person as Article 14 of the Constitution

does not envisage negative equality and if the State or its

authority had committed a mistake at any given stage, it cannot

be forced to perpetuate the said mistake under the writ

jurisdiction of the High Court under Article 226 of the

Constitution. In a situation where the posts in excess of those

advertised had been filled up in extraordinary circumstances,

instead of invalidating the excess appointments, the relief could

be moulded in such a manner so as to strike a just balance

keeping the interest of the State and the interest of the person

2 State of U.P. and Others vs. Rajkumar Sharma and Others (2006) 3 SCC 330
3 Arup Das and Others vs. State of Assam and Others (2012) 5 SCC 559

18
seeking public employment depends upon the facts of each case

for which no set standard can be laid down.

25. Initially when the selections were challenged in the year

2000, it was in reference to the policy decision taken by the State

Government in preparing two separate merit lists of Jammu &

Kashmir Provinces arising from a common advertisement dated

25th February, 1999 and it was indeed in clear contravention to

the scheme of rules and the learned Single Judge of the High

Court categorically observed that as the key of marks for Jammu

& Kashmir Provinces are different and 50 marks being the lower

among the two Provinces secured by the last candidate, the

limited controversy examined by the learned Single Judge of the

High Court was in the four corners confining it to the

persons/candidates who obtained 50 or more marks in the

selection process and still deprived from consideration for

appointment.

26. To make this fact further clear, it was observed by the

learned Single Judge in Surinder Kumar Sharma vs. State of

Jammu and Kashmir and Others 4 decided on 16th October, 2000

4 SWP No.576/2000 titled Surinder Kumar Sharma vs. State of Jammu and Kashmir

19
i.e. the first round of litigation. The controversy center around is

reproduced hereunder:­

“Therefore, all those candidates who have received less than 50 marks have no
right to contend that they have been wrongly ignored on the basis of Province
wise selection. The claims of those candidates who have obtained 50 or more
than 50 marks would be considered in the light of this judgment.”

27. At the outset, those who secured less than 50 marks, their

claim of consideration for appointment was eliminated by the

learned Single Judge even in the first instance when the

controversy initially raised by the candidates affected at a very

threshold after the select list was notified by the 2 nd respondent

in the year 2000 and if any person was aggrieved on account of

his non­selection, secured 50 or more than 50 marks being

deprived from fair consideration in seeking appointment, cause of

action was accrued to him at such given point of time in the first

place, when examined and decided by the learned Single Judge of

the High Court by its judgment dated 16 th October, 2000 and

directed the State authorities to consider all such candidates for

appointment who have secured 50 or more than 50 marks if left

out from being considered for appointment as their right of fair

consideration is being seriously jeopardized which was although

modified by the Division Bench at the later stage by its judgment

20
dated 19th August, 2002 as a consequence, 47 candidates were

going to be affected in the first round of litigation. The later

controversy remained confined to examine the fate of those 47

ousted candidates who could be over and above the candidates

who are to be appointed in the redrawn merit list of the State of

Jammu & Kashmir, to be adjusted despite being appointed and

working for sufficient time deserve indulgence of the Court.

28. That further litigation was raised at the behest of 47 ousted

candidates, it has come on record that they were allowed to

continue in the first instance under the interim order as they

were already working for quite some time and finally their

controversy reached to this Court in the second round of

litigation and since much water has flown in the Ganges by that

time and the alleged 47 ousted candidates were working right

from the year 2000 and the department had incurred huge

expenses on their training courses and they had taken part in

anti­insurgency operations in the State and the State was

concerned about them as there were apprehension of threat to

their life, under these circumstances, the State has shown its

intention to retain them in service.

21
29. It reveals from the record that the Government intended to

give quietus to the on­going litigation and in the second round of

litigation in this Court as there were 22 interlocutory applications

filed by the applicants in the pending proceedings, who were

claiming their appointment, under the bonafide belief that certain

vacancies are available with the State and if such 22 candidates

who have filed their applications for impleadment in the pending

proceedings in this Court if taken care of, atleast there will be a

quietus to the on­going litigation and that appears to be the

reason to which the learned Advocate General of the State made

a statement before this Court that not only 47 ousted candidates

who have been appointed and served for the last 7 years, such 22

candidates may also be accommodated on the post of Sub­

Inspector and after recording the statement made by the learned

Advocate General of the State, there left no legal issue to be

examined in the pending civil appeal and on the basis of the

alleged concession made by the learned Advocate General, this

Court by order dated 10th May, 2007 disposed of the appeal.

30. It is true that ordinarily in the open selection,

appointments are to be made strictly in the order of merit in

22
terms of the procedure prescribed under the relevant statutory

recruitment rules or in absence under the guidelines if

prescribed, still if appointments are made for exceptional reasons

deviating from the merit list which ordinarily is not permissible

but in unforeseen exigencies, if the State with a bonafide

intention to give quietus to the on­going litigation pending for the

last eight years extended its concession to adjust such 22

candidates who are under litigation for long time with no

malafides or bias being imputed to the State action could have

been possible only if those who are litigating and agitating their

grievance reached upto this Court cannot be held to be faulted.

31. Mr. P.S. Patwalia, learned Senior counsel for the appellants

has pointed out certain instances and it is also reflected from the

written submission that such of the candidates who have secured

50 or more marks have also been deprived from consideration in

seeking appointment but the statement of fact does not hold

factually correct for the reason that in the first round of litigation,

the learned Single Judge categorically observed that the dispute

remain confined to such of the candidates who have secured 50

or more than 50 marks in the selection process held by the

23
respondent pursuant to an advertisement dated 25 th February,

1999. In the given circumstances, if the candidates who have

secured 50 or more marks and still left from consideration for

appointment, their right accrued to make their claim when the

judgment was initially pronounced by the learned Single Judge

dated 16th October, 2000 although modified by the Division

Bench in the first round of litigation by judgment and order dated

19th August, 2002 but none of the so­called

appellants/candidates who have secured 50 or more than 50

marks ever made their claim in seeking appointment at a later

stage and what is reflected from the record that there were only

47 ousted candidates who secured 50 or more than 50 marks

and if the present appellants who have secured 50 or more marks

as claimed by them were not there within 47 ousted candidates,

no grievance at a belated stage could be raised and open to be

entertained and deserves rejection.

32. The submission further made by learned Senior counsel for

the appellants that the finding recorded by the Division Bench of

the High Court that the appointment of these 22 candidates

against whom there was a grievance raised by the appellants, are

24
being appointed by this Court in exercise of its power under

Article 142 of the Constitution for doing complete justice, is not

reflected from the order of this Court dated 10 th May, 2007. We

find substance in what being urged and hold that the order of

this Court dated 10th May, 2007 was not under Article 142 of the

Constitution and it was clearly reflected from the order itself that

it was passed on the basis of the concession made by the learned

Advocate General of the State and recorded by this Court in its

order dated 10th May, 2007.

33. Further submission made by the learned Senior counsel for

the appellants that they are higher in the order of merit qua

these 22 candidates who were appointed by the 2 nd respondent

taking shelter of the order of this Court dated 10 th May, 2007 is

not legally sustainable and violative of Article 14 of the

Constitution. The submission in the first blush appears to be

attractive but it lacks foundation for the reason that the

appointments in the ordinary course are to be made strictly in

the order of merit in terms of the select list prepared by the

competent authority as contemplated under the relevant

statutory recruitment rules and any appointment in

25
contravention indeed is in violation of Article 14 of the

Constitution with a proviso that if any appointments are made

deviating from the merit list drawn by the competent authority in

exceptional cases as being reflected in the instant case where

there was on­going litigation and subsequent selection was also

held to give quietus to the on­going litigation, still on principle

cannot be approved by this Court, are irregular appointments

and cannot be held to be illegal as claimed by the appellants.

34. It is also not the case of the appellants that they are

amongst 22 candidates in the order of merit published by the

2nd respondent awaiting appointment in reference to an

advertisement dated 25th February, 1999 and if their submission

is accepted at the face value as prayed for, atleast the present

appellants may not get a march over 22 candidates waiting in the

order of merit who in the ordinary course could claim

appointment to the post of Sub­Inspector and the action of the

State in extending its concession which has been recorded under

the order of this Court dated 10th May, 2007 is indeed the

mistake being committed, still it cannot be forced by the person

as alleged to be aggrieved to perpetuate the said mistake.

26
35. This Court in Union of India and Another vs. Kartick

Chandra Mondal and Others5 observed that if something is being

done or acted upon erroneously that cannot become the

foundation for perpetuating further illegality. If an appointment is

made illegally or irregularly, the same cannot be made the basis

of further appointment and erroneous decision cannot be

permitted to perpetuate further error to the detriment of the

general welfare of the public or a considerable section. This has

been the consistent approach of this Court.

36. In Arup Das and Others vs. State of Assam and Others 6, this

Court observed that “even if in some cases appointments had

been made by mistake or wrongly, that did not confer any right of

appointment to another person, as Article 14 of the Constitution

does not envisage negative equality and if the State had

committed a mistake, it cannot be forced to perpetuate the said

mistake.”

37. It is indisputed that by the time we are called upon to

decide the matter, the so­called 22 candidates against whom

there is a lis raised by the present appellants, had completed

5 Union of India and Another vs. Kartick Chandra Mondal and Others (2010) 2 SCC 422
6 Arup Das and Others vs. State of Assam and Others (2012) 5 SCC 559

27
almost more than 12 years of service and thus having rich

experience in the field and the subsequent selection has also

been held of the post of Sub­Inspector pursuant to an

advertisement issued in February, 2001 and the concession

which was recorded of the learned Advocate General of the State

by this Court in its order dated 10th May, 2007 at a given point of

time also appears to be bonafide, to give quietus to the on­going

litigation pending in Courts for sufficient long time and no other

litigation at that given point of time was pending in the court of

law, in the given situation, this Court is not inclined to disturb

the appointment of those 22 candidates which has been

questioned by the appellants/candidates in the present batch of

appeals.

38. In Gujarat State Dy. Executive Engineers’ Assn. vs. State of

Gujarat7, this Court recorded a finding that appointments given

under the “wait list” were not in accordance with law. It, however,

refused to set aside such appointments in view of length of

service (five years and more).

7 Gujarat State Dy. Executive Engineers’ Assn. vs. State of Gujarat (1994) Supp 2 SCC 591

28
39. In Buddhi Nath Chaudhary vs. Abahi Kumar8, this Court has

observed that appointments were held to be improper. But this

Court did not disturb the appointments on the ground that the

incumbents had worked for several years and had gained good

experience. “We have extended equitable considerations to such

selected candidates who have worked on the post for a long

period”.

40. We are also of the view that the appointments of 22

candidates made by the 2nd respondent vide orders dated

23rd February, 2008 and 11th March, 2008 which has given rise to

a further litigation are irregular appointments and not in

conformity to the recruitment rules, still what being prayed by

the appellants if accepted by this Court that will perpetuate the

illegality which has been committed by the State­respondent and

negative equality cannot be claimed to perpetuate further

illegality under Article 226 of the Constitution of India.

41. To conclude, we do not approve the reasoning of the High

Court that appointments of these 22 candidates have been made

under Article 142 of the Constitution to do complete justice but

after the matter has been dilated by us, we are not inclined to
8 Buddhi Nath Chaudhary vs. Abahi Kumar (2001) 3 SCC 328

29
disturb the appointment of these 22 candidates against whom a

grievance has been raised by the appellants in the present batch

of appeals.

42. Consequently, we find no substance in the present appeals

and are accordingly dismissed. No costs.

43. Pending application(s), if any, stand disposed of.

…………….………………………….J.
(L. NAGESWARA RAO)

……………..…………………………J.
(HEMANT GUPTA)

……………………………………….J.
(AJAY RASTOGI)

NEW DELHI
DECEMBER 03, 2020

30

Comments

Leave a Reply

Sign In

Register

Reset Password

Please enter your username or email address, you will receive a link to create a new password via email.