# CASE DETAILS VIVEK KAISTH & ANR v. THE STATE OF HIMACHAL PRADESH & ORS

- **Citation:** 2023 INSC 1007
- **Court:** Supreme Court of India
- **Decided:** 2023-11-20
- **Case number:** Civil Appeal Nos. 6233-6234 of 2023
- **Bench:** C.T. Ravikumar, Sudhanshu Dhulia
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/case-details-vivek-kaisth-anr-v-the-state-of-himachal-pradesh-ors-36951
- **Pages:** 31

## Headnote

Issue for consideration: The names of the two appellants herein were
included later in the fi nal selection list vide notifi cation dated 27.12.2013
issued by the State Government. The High Court has held these two
selections, and consequently the appointments to be illegal and these have
been quashed. This Court has to examine the validity of the selection and
appointment of these two appellants to the post of Civil Judge (Junior
Division), and whether they should now be unseated from their judicial
offi ce.
Service Law - Recruitment - Advertisement - An advertisement
was issued on 01.02.2013 whereby the State Commission invited
applications against the eight vacancies for the post of Civil Judge
(Junior Division) in Himachal Pradesh Judicial Service - After
examination, fi nal list was declared - Names of the two appellants
herein were included later - High Court held these to selections illegal
- Propriety:
Held: 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 - In
the instant case, it is clear that the appointment of the appellants was made
on posts which were not advertised and in fact did not even exist at the time
when the advertisement was made - The anomaly made in the selection/
appointment of these two candidates is quite apparent - The fi ndings of
614
SUPREME COURT REPORTS
[2023] 16 S.C.R.
the High Court were right - However, what the High Court missed was the
context, the facts and the circumstances of the case - The two appellants
have already served as Judicial Offi cers for nearly 10 years - Meanwhile,
they have also been promoted to the next higher post of Civil Judge (Senior
Division) - In this process of their selection and appointment, nothing
was brought to notice of this Court which may suggest any favouritism,
nepotism or so-called blame as to the conduct of these two appellants, in
securing these appointments - What the High Court never answered was
as to how much of this blame of "illegal" selection and appointment would
rest on the High Court (on its administrative side) - Though undoubtedly
the Commission as the selecting authority must ultimately bear the brunt,
yet the blame must be shared equally by the State Government and the High
Court - The judicial offi cers in question now have a rich experience of 10
years of judicial service behind them - Therefore, unseating the present
appellants from their posts would not be in public interest - 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 - For
the reasons stated above, in order to do complete justice and in exercise of
powers u/Art. 142 of the Constitution of India, the order of the High Court
as far as it quashes the selection and appointment of the appellants is set
aside. [Paras 28, 29, 31,32,36,37]
LIST OF CITATIONS AND OTHER REFERENCES
Sivanandan C.T. and Ors. v. High Court of Kerala and Ors. (2023)
SCC OnLine SC 994 - relied on.
Shweta Dhingra v. State of H.P. & Ors. (2011) SCC OnLine
HP 3566; Malik Mazhar Sultan and Another v. U.P. Public Service
Commission and Others (2008) 17 SCC 703; Malik Mazhar Sultan and
Another v. Uttar Pradesh Public Service Commission and Others (2009)
17 SCC 24; High Court of Kerala v. Reshma A. and Others [2021] 1
SCR 289: (2021) 3 SCC 755; Gujarat State Dy. Executive Engineers'
Assn. v. State of Gujarat (1994) Supp 2 SCC 591; Hoshiyar Singh v.
State of Haryana (1993) Supp. 4 SCC 377; State of Bihar v. Secretariat
Asstt. Successful Examinees' Union [1993] 3 Suppl. SCR 134:(1994) 1
SCC 126; State of Bihar v. Madan Mohan Singh (1994) Supp 3 SCC
308; Surinder Singh & Ors. v. State of Punjab & Anr. [1997] 3 Suppl

## Text

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[2023] 16 S.C.R. 613 : 2023 INSC 1007
613
CASE DETAILS
VIVEK KAISTH & ANR
v.
THE STATE OF HIMACHAL PRADESH & ORS
(Civil Appeal Nos. 6233-6234 of 2023)
NOVEMBER 20, 2023
[C.T. RAVIKUMAR AND SUDHANSHU DHULIA, JJ.]
HEADNOTES
Issue for consideration: The names of the two appellants herein were
included later in the fi nal selection list vide notifi cation dated 27.12.2013
issued by the State Government. The High Court has held these two
selections, and consequently the appointments to be illegal and these have
been quashed. This Court has to examine the validity of the selection and
appointment of these two appellants to the post of Civil Judge (Junior
Division), and whether they should now be unseated from their judicial
offi ce.
Service Law - Recruitment - Advertisement - An advertisement
was issued on 01.02.2013 whereby the State Commission invited
applications against the eight vacancies for the post of Civil Judge
(Junior Division) in Himachal Pradesh Judicial Service - After
examination, fi nal list was declared - Names of the two appellants
herein were included later - High Court held these to selections illegal
- Propriety:
Held: 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 - In
the instant case, it is clear that the appointment of the appellants was made
on posts which were not advertised and in fact did not even exist at the time
when the advertisement was made - The anomaly made in the selection/
appointment of these two candidates is quite apparent - The fi ndings of
614
SUPREME COURT REPORTS
[2023] 16 S.C.R.
the High Court were right - However, what the High Court missed was the
context, the facts and the circumstances of the case - The two appellants
have already served as Judicial Offi cers for nearly 10 years - Meanwhile,
they have also been promoted to the next higher post of Civil Judge (Senior
Division) - In this process of their selection and appointment, nothing
was brought to notice of this Court which may suggest any favouritism,
nepotism or so-called blame as to the conduct of these two appellants, in
securing these appointments - What the High Court never answered was
as to how much of this blame of "illegal" selection and appointment would
rest on the High Court (on its administrative side) - Though undoubtedly
the Commission as the selecting authority must ultimately bear the brunt,
yet the blame must be shared equally by the State Government and the High
Court - The judicial offi cers in question now have a rich experience of 10
years of judicial service behind them - Therefore, unseating the present
appellants from their posts would not be in public interest - 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 - For
the reasons stated above, in order to do complete justice and in exercise of
powers u/Art. 142 of the Constitution of India, the order of the High Court
as far as it quashes the selection and appointment of the appellants is set
aside. [Paras 28, 29, 31,32,36,37]
LIST OF CITATIONS AND OTHER REFERENCES
Sivanandan C.T. and Ors. v. High Court of Kerala and Ors. (2023)
SCC OnLine SC 994 - relied on.
Shweta Dhingra v. State of H.P. & Ors. (2011) SCC OnLine
HP 3566; Malik Mazhar Sultan and Another v. U.P. Public Service
Commission and Others (2008) 17 SCC 703; Malik Mazhar Sultan and
Another v. Uttar Pradesh Public Service Commission and Others (2009)
17 SCC 24; High Court of Kerala v. Reshma A. and Others [2021] 1
SCR 289: (2021) 3 SCC 755; Gujarat State Dy. Executive Engineers'
Assn. v. State of Gujarat (1994) Supp 2 SCC 591; Hoshiyar Singh v.
State of Haryana (1993) Supp. 4 SCC 377; State of Bihar v. Secretariat
Asstt. Successful Examinees' Union [1993] 3 Suppl. SCR 134:(1994) 1
SCC 126; State of Bihar v. Madan Mohan Singh (1994) Supp 3 SCC
308; Surinder Singh & Ors. v. State of Punjab & Anr. [1997] 3 Suppl.
615
SCR 538:(1997) 8 SCC 488; Rakhi Ray & Ors. v. High Court of Delhi
& Ors. [2010] 2 SCR 239:(2010) 2 SCC 637 - referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.6233-6234
of 2023.
From the Judgment and Order dated 20.09.2021 of the High Court of
Himachal Pradesh at Shimla in CWP Nos.3319 and 4498 of 2014.
With
Civil Appeal Nos.6236, 6235 And 6237 of 20023.
Appearances:
Paramjit Singh Patwalia, Harin P. Raval, P.V. Surendranatyh, Sr. Advs.,
Amit Kumar Singh, Ms. K Enatoli Sema, Ms. Chubalemla Chang, Prang
Newmai, Biju P Raman, Gauravjit Singh Patwalia, Amit Verma, Ms. Swati
Sood, Dipanshu Krishnan, Anshuman, Ms. Damini Chawla, Vishwanathan
Iyer, Anand Sharma, Arman Sharma, Ms. Jyoti Mehra, Ms. Pooja Sharma,
Sandeep Jindal, D.K. Thakur, Rajeev Kumar Gupta, Tavleen Singh, Joginder
Mann, Ms. Niharika, Dvyansh Thakur, Bimlesh Kumar Singh, Kanwal
Chaudhary, Chitranshul A. Sinha, Ms. Radhika Gautam, Ms. Shrestha
Narayan, Ms. Shreya Bansal, Abhishek Singh Chauhan, Tushar Bakshi, Ms.
Neelam Singh, Prabhat Kumar Rai, Christopher Dsouza, Subhash Chandran
K.R., Ms. Krishna L.R., Sawan Shukla, Ms. Lekha Sudhakaran, Advs for
the appearing parties.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
SUDHANSHU DHULIA, J.
1. The appellants before this Court have challenged the Judgment dated
20.09.2021 passed by the Division Bench of the High Court of Himachal
Pradesh (in Civil Appeal Nos.6233-6234 of 2023, Vivek Kaisth and Akansha
Dogra respectively), by which the appointment of the appellants to the post
of Civil Judge (Junior Division) has been quashed. There are presently
VIVEK KAISTH & ANR v. THE STATE OF HIMACHAL
PRADESH & ORS
616
SUPREME COURT REPORTS
[2023] 16 S.C.R.
four appeals before us. The other three appeals are of the appellants (in
connected appeals), who were also candidates for the post of Civil Judge
(Junior Division) for the year 2013 in the State of Himachal Pradesh, and
have also challenged the selection process as well as the appointment of the
present appellants, though for diff erent reasons. We propose to dispose of
these appeals by a common order. All the same, when we refer to the facts
in the present case, our reference would be confi ned to the facts as contained
in Civil Appeal No.6233 of 2023 and Civil Appeal No.6234 of 2023.
2. An advertisement was issued on 1st February, 2013 whereby the
Himachal Pradesh Public Service Commission (hereinafter referred to
as "State Commission"), invited applications from eligible candidates
against eight vacancies for the post of Civil Judge (Junior Division) in
Himachal Pradesh Judicial Service. Out of the total eight vacancies, six were
"existing vacancies" and two were "anticipated vacancies". The preliminary
examination for these posts was held on 12.05.2013 of which the results
were declared on 15.06.2013. The candidates, who had qualifi ed preliminary
examination participated in the main written examination which was held
between 15th July, 2013 to 18th July, 2013. Eighty candidates qualifi ed in
the written examination and were ultimately called for the interview, which
was held on 07th and 08th October, 2013. Finally, following candidates were
selected and the list was published on the website of the Commission and
in the newspaper on 08.10.2013. It is as under:
Sr. No.
Roll No.
Name of the Candidate
Category
Clear Cut Vacancies
1.
1025
Ms. Anshu Chaudhary
General
2.
2006
Sh. Nishant Verma
Sch. Caste
3.
1670
Ms. Pratibha Negi
Sch. Tribe
4.
2185
Ms. Anita Sharma
Sch. Tribe
5.
2172
Sh. Baljeet
O.B.C.
6.
1431
Sh. Jitender Kumar
O.B.C.
Anticipated Vacancies
617
1.
1126
Ms. Abha Chauhan
General
2.
1319
Sh. Ajay Kumar
General
3. The names of the two appellants who are before this Court, did not
fi gure in the above list and their names were included later vide notifi cation
dated 27.12.2013 issued by the State Government. Himachal Pradesh High
Court has held these two selections, and consequently the appointments to
be illegal and these have been quashed. These two appellants are now before
us in challenge to the judgement of the High Court dated 20.09.2021. We
have to examine the validity of the selection and appointment of these two
appellants to the post of Civil Judge (Junior Division), and whether they
should now be unseated from their judicial offi ce.
4. After the publication of the results for the eight vacancies on
08.10.2013, as referred above, an exercise was evidently undertaken at the
level of the State Government, where an information was sought from the
Registrar General of the Himachal Pradesh High Court as to the correct
position of existing vacancies in the state judicial service in the cadre of
Civil Judge (Junior Division). This letter dated 19.10.2013 is as under: -
"No. Home-B(B)6-4/2006-VI-6
Government of Himachal Pradesh
Department Home
From:
The Additional Chief Secretary (Home)
to the Government of Himachal Pradesh
Shimla-171001.
Dated: 19th October, 2013
Sub: Recommendation to the posts of Civil Judge (Jr. Division) in
the light of the directions dated 04.01.2007 of Hon'ble Supreme Court in
Malik Mazhar Sultan's case.
Sir,
I am directed to refer to the subject cited above and to enclose herewith
a copy of letter Number3-50/2012-PSC(E-I) dated 11 October, 2013 received
from Secretary, HP Public Service Commission vide which select list of 08
VIVEK KAISTH & ANR v. THE STATE OF HIMACHAL
PRADESH & ORS [SUDHANSHU DHULIA, J.]
618
SUPREME COURT REPORTS
[2023] 16 S.C.R.
candidates (06 against clear cut and 02 against anticipated vacancies) for the
appointment as Civil Judge (Jr. division) has been sent to this department. Before
proceeding further in this behalf, you are requested, on the administrative side,
kindly to send category wise details of all existing vacancies in the cadre of
Civil Judge (Jr. Division) to this department at the earliest.
Yours faithfully,
Enclosures: As above
 [Devinder Saraswati]
 Deputy Secretary (Home) to the
 Government of Himachal Pradesh
 Phone No. 0177-2626450"
5. In its reply the Registrar General of the High Court of Himachal
Pradesh vide its letter dated 30.10.2013 addressed to the Additional Chief
Secretary (Home) to Government of Himachal Pradesh wrote as under: -
"..........
With reference to your letter No. Home-B(B)6/2006-VI-6-74 dated
19.10.2013, on the captioned subject, I have been directed to inform
you that the existing vacancy position in the cadre of Civil Judge
(Junior Division) is as under:-
Sr. No.
Category
Roster Point
Number of Vacancies
1
UR
42, 29, 30, 55, 56
and 11
6
2
SC
54
1
3
ST
14 & 39
2
4
OBC
33 & 42
2
It is informed that Roster Point No. 55, 56, 11 were not included in
the requisition of the posts to be notifi ed during 2013 by the Registry
as that post has fallen vacant on 18.04.2013 due to creation of two
new pots of Civil Judges (Jr. Division) at Solan and Amb and one post
due to discharge from service of Shri Sunish Aggarwal, Civil Judge
(Junior Division)-cum-JMIC, AMMI on 19.09.2013."
619
6. A meeting was meanwhile held at the State level on 21.10.2013
to discuss the selection of Judicial Offi cers in the ongoing process of 2013
and the number of vacancies on which such selection could be made. The
meeting which was held on 21.10.2013, was attended by the following
offi cers: -
1.
 Sh. A.C. Dogra, Registrar General, High Court of Himachal
Pradesh
2.
Sh. Sandeep Bhatnagar, IAS, Secretary, Himachal Pradesh Public
Service Commission
3.
Sh. Devinder Saraswati, Deputy Secretary (Home) to the
Government of Himachal Pradesh
7. As we can see, in the said meeting, offi cers nominated by the
Government of Himachal Pradesh, State Public Service Commission and
the High Court of Himachal Pradesh were present. This Committee (we
will refer to it as Committee, only for the sake of convenience), notes that
earlier only 8 candidates were included in the select list, though a few
more should have been included, considering the vacancies in view of the
directions of the Himachal Pradesh High Court in Shweta Dhingra v. State
of H.P. & Ors. (2011) SCC OnLine HP 3566. It then recommended that
Akansha Dogra and Vivek Kaisth who are in the merit list of candidates in
the general category and Meenakshi and Parvez who are in the Scheduled
Caste and Scheduled Tribe category respectively should also be included
in the select list.
8. The logic was that that recommendations have been made for only
existing and anticipated vacancies, whereas it ought to have been made for
additional posts, which would be 2/3rd of the actual and anticipated vacancies
as directed in Shweta Dhingra (supra). The minutes of the meeting dated
21.10.2013 read as under:
"The contents of judgment in CWP No. 3135/20111 were gone through
wherein it has been directed that the H.P. Public Service Commission
will publish a revised Select List of the candidates from the year 2010
1
Shweta Dhingra vs State of Himachal Pradesh [(2011) SCC OnLine HP 3566] dated
03.09.2011
VIVEK KAISTH & ANR v. THE STATE OF HIMACHAL
PRADESH & ORS [SUDHANSHU DHULIA, J.]
620
SUPREME COURT REPORTS
[2023] 16 S.C.R.
merit list by including 2/3 of the actual and anticipated vacancies. It
was further directed that the Hon'ble High Court, Govt. of H.P. and
the H.P. Public Service Commission shall jointly take up the exercise
of preparation of select list immediately after the publication of the
merit list and this exercise shall be completed within two weeks of the
publication of the merit list every year.
2. The Govt. (in the Department of Home) has sent a requisition for
fi lling up 08 vacancies of Civil Judge (Jr. Division) for 2013. The
category-wise break up of vacancies is as under: -
 Clear Cut Vacancies: - 06 (General-01,
 SC-01, ST-02 & OBC-02)
 Anticipated Vacancies: - 02 (General)
3. On completion of the recruitment process of H.P. Judicial Service
Examination, 2013 for fi lling up of the above mentioned vacancies,
the H.P. Public Service Commission prepared the result and published
the merit list on the website of the Commission and newspapers of
08.10.2013. The H.P. Public Service Commission recommended the
following candidates to the Govt. of H.P. on the publication of the
merit list: -
Sr. No.
Roll No.
Name of the Candidate
Category
Against Clear Cut Vacancies
1
1025
Ms. Anshu Chaudhary
General
2
2006
Sh. Nishant Verma
Sch. Caste
3
1678
Ms. Pratibha Negi
Sch. Tribe
4
2185
Ms. Anita Sharma
Sch. Tribe
5
2172
Sh. Baljeet
OBC
6
1431
Sh. Jitender Kumar
OBC
Against Anticipated Vacancies
1
1126
Ms. Abha Chauhan
General
2
1319
Sh. Ajay Kumar
General
The result of HPJS Examination, 2013 was perused by the
Committee and keeping in view of the directions of Hon'ble High
621
Court of H.P. to prepare the selection list by including 2/3 of the
actual and anticipated vacancies, Ms. Akanksha Dogra, Roll No.
20969, Sh. Vivek Kaisth, Roll No. 1299 candidates of general
category, Ms. Meenakshi, Roll No. 1386 (Sch. Caste Category) and
Sh. Parvez, Roll No.1139 (Sch. Tribe Category) can be kept in the
select list as no other candidate from OBC category had qualifi ed
the HPJS Examination - 2013. Accordingly, it was decided to
include the name(s) of Ms. Akanksha Dogra, Roll No. 2099, Sh.
Vivek Kaisth, Roll No. 1299 candidates of general category, Ms.
Meenakshi, Roll No.1386 (Sch. Caste Category) and Sh. Parvez,
roll No. 1139 (Sch. Tribe Category) candidates in the select list
and the Commission should publish the select list accordingly."
9. In Shweta Dhingra (supra) the Division Bench of the Himachal
Pradesh High Court was dealing with the selection of Civil Judge (Junior
Division) in the State for the year 2010, and it was of the opinion that
apart from clear and anticipated vacancies, the Commission should
prepare a select list of some additional candidates. This entire exercise
therefore for the appointment of few more judicial offi cers was done in
the present case, with the belief that this is what ought to have been done
in terms of the directions of the Himachal Pradesh High Court in Shweta
Dhingra (supra), and we must therefore reproduce the directions given
in that case. We reproduce most of this order in order to get a proper
perspective:
2. The Apex Court in Malik Mazhar Sultan (3) v. Uttar Pradesh
Service Commission has issued the guidelines with regard to
the fi lling up of the vacancies to the post of Civil Judge (Junior
Division) by direct recruitment. The vacancies have to be notifi ed by
15th January every year. The vacancies include existing vacancies
on account of retirement and future vacancies and which may arise
on account of promotion, death or otherwise. It is also held in the
judgment that the select list will operate till the select list for the
subsequent year comes into operation. Still further, it is directed that
the select list should be published in the order of merit and should
be double of the vacancies notifi ed. This direction was subsequently
modifi ed by the Apex Court by the order dated 24th March, 2009 to
VIVEK KAISTH & ANR v. THE STATE OF HIMACHAL
PRADESH & ORS [SUDHANSHU DHULIA, J.]
622
SUPREME COURT REPORTS
[2023] 16 S.C.R.
the eff ect that the select list should contain the existing number of
vacancies and the anticipated vacancies for the succeeding year and
should include some candidates in the waiting list. Unfortunately,
the select list published by the Public Service Commission was
only for the clear cut vacancies of fi ve and three anticipated. No
doubt, the said list is in the order of merit. As far as the facts of the
instant cases are concerned, there is no dispute with regard to the
select list on the aspect of communal rotation, so that we need not
go into that aspect at this stage, we may refer the same for future
guidelines later in this judgment.
3. ..............
4. Steps for recruitment for the year 2011 have already been initiated.
We fi nd that six clear cut vacancies have been notifi ed (2-SC, 2-ST
and 2-OBC). Six are anticipated (2-General, 1-ST and 3-OBC). The
Public Service Commission, it is expected would be publishing the
select list by the end of October, 2011. Therefore, the select list already
prepared/to be duly prepared is to operate till the select list of 2011 is
published. There will be a direction to the High Court to intimate all
the available vacancies as on 15th October, 2011 to the Commission
and the Government on or before 17th October, 2011. Steps for fi lling
up for those vacancies shall be taken by the Commission and the
Government from the select list of 2010 and the appointments shall
be made before 29th October, 2011.
5. It is informed that the select list happened to be limited to the
clear cut vacancies and actual number of anticipated vacancies in
view of the directions already issued by the Government in 2008-09.
We fi nd that the Government had issued such instructions in order to
avoid unnecessarily (Sic unnecessary) litigation. But apparently, the
Government has not taken note of directions issued by the Apex Court,
which is already referred to above. Therefore, there will be a direction
to the Public Service Commission to publish a revised select list of the
candidates from the year 2010 merit list by including 2/3 of the actual
and anticipated vacancies.
6. The select list and the merit list are two concepts. The merit list is the
623
list of candidates ranked according to their score in the examinationcum-interview. The select list is one which is prepared according to
the communal roster.
7. Pursuant to the judgment of this Court in CWP No. 3828 of 2009,
titled Hakikat v. State of H.P., the roster is now to be maintained by
the High Court; earlier it was maintained by the Government. Since
the select list is to be published by the Public Service Commission,
there will be direction to the High Court, Government and the
Public Service Commission to jointly take up this exercise of
preparation of select list immediately after the publication of the
merit list and this exercise shall be completed within two weeks of
the publication of the merit list, every year. Thereafter, the Public
Service Commission shall publish the select list. Once the select list
is published, the appointment shall be strictly made according to the
said list prepared on the basis of merit-cum-communal rotation."
10. The directions given by the Division Bench of the High Court
in paragraphs 5 and 7 are important. The fi rst direction is regarding the
additional vacancies, which were to be 2/3rd of the actual and anticipated
vacancies and second direction was the joint exercise to be undertaken by
the State Commission, State Government and the High Court in determining
and fi lling these vacancies. This also explains why the joint exercise was
undertaken on 21.10.2013 by the three-member Committee, which we have
already referred to, in the preceding paragraphs.
11. What is not clear though, is why in addition to clear and anticipated
vacancies further vacancies i.e., 2/3rd of clear and anticipated vacancies were
to be published. If that had to be a waiting list then such a direction could
not have been given after the selections were over. In any case, there was
no pressing urgency for picking new vacancies for the selection year 2013,
after the selection was over and result had been announced.
12. Be that as it may, in the case at hand, consequent to the joint meeting
and the decision taken therein the Additional Chief Secretary (Home) vide
his letter dated 25.11.2013 wrote to the Secretary Public Service Commission
as under: -
"....................
VIVEK KAISTH & ANR v. THE STATE OF HIMACHAL
PRADESH & ORS [SUDHANSHU DHULIA, J.]
624
SUPREME COURT REPORTS
[2023] 16 S.C.R.

I am directed to refer to the letter No. 3-50/2012-PSC(E-1) dated
11th October, 2013 on the subject cited above and to say that as
per this Department requisition 8 (eight) posts of Civil Judge (Jr.
Division)-cum-JMIC has been recommended by the Commission. In
the meantime, 2 (two) additional post of (Jr. Division)-cum-JMIC has
been created for Civil Court at Solan and Amb (Una).

Besides, one Civil Judge-(Jr. Division)-cum-JMIC, Amit was
dismissed from the Government service on 19.09.2013. As such
three more posts of (Jr. Division) have become available in the
Department. As per his letter No. HHC/GAZ/14-49/74-VI-30012
dated 30th October, 2013 (photocopy enclosed for ready reference)
the Registrar General, H.P. High Court has informed that roster
point 55, 56 & 11 were not included in the previous requisition
of the posts to be notifi ed during the year 2013 by the Registry of
Hon'ble High Court.

Keeping in view of above position you are requested to sponsor
three more candidates from the select list against roster point 55, 56
& 11 from the unreserved category at the earliest."
13. Ultimately, however, only two names from the general category
who were next in the order of merit were made available for the select list
which were of Vivek Kaisth and Akansha Dogra (appellants before this
Court), who were recommended for appointment as Civil Judge (Jr. Division)
by the State Public Service Commission. Appointment letters were thereafter
issued to the appellants on 27.12.2013 and they were appointed as Civil
Judge (Jr. Division) under the general category. The two appellants were
then sent for training in the judicial academy. The Himachal Pradesh High
Court subsequently posted them as Civil Judge (Jr. Division) in diff erent
districts. After completing their period of probation and having completed
around 9 years of service as Civil Judge (Jr. Division), both the appellants
have also been promoted to the next higher post of Civil Judge (Sr. Division),
which was done on 23.03.2023.
14. The fi rst question which comes to our mind is whether the directions
of the Himachal Pradesh High Court in Shweta Dhingra (supra), were at
all in line with the decision of this Court in Malik Mazhar Sultan (3) and
625
Another v. U.P. Public Service Commission and Others (2008) 17 SCC 703
(hereafter referred to as "Malik Mazhar"). We will discuss that in a while,
but since at the root of it all lies the directions given by this court in Malik
Mazhar, it would be necessary at this stage to refer to this decision of the
Apex Court in order to get a clear perspective of the matter.
The main purpose for the directions given by this Court in Malik
Mazhar was to timely fi ll judicial vacancies in the States. This Court had
fi xed a time period to be followed by each High Court so that the existing
judicial vacancies are fi lled without any delay. Judicial services in States
start from the cadre of Civil Judge (Junior Division), who are also called
Judicial Magistrates, when they work on the criminal side. In Malik Mazhar,
it was directed that all "vacancies" of Civil Judge (Junior Division) shall be
notifi ed by the 15th January of that year. The vacancies were to be as follows: -
 "(a) Existing vacancies.
(b) Future vacancies that may arise within one year due to retirement.
(c)
Future vacancies that may arise due to promotion, death or
otherwise, say ten per cent of the number of posts."
The third category which was the "future vacancies", that may come
due to reasons other than retirement, were to be 10% of the cadre strength,
as this was clarifi ed in the judgment.
"We further direct that ten per cent of unforeseen vacancies would
be in respect of sanctioned posts and not vacancies occurring in a
particular year."
Then there was a timeline for receiving the applications, holding
preliminary examination, main examination and prompt declaration of
results and also viva voce to be held between 1st October to 15th October.
By 1st November, the results were to be declared and appointment letters
were to be issued. Latest by 2nd January, the incumbent must join the post.
15. The following was the time table drawn by the Supreme Court in
Malik Mazhar, for making these appointments:
"For appointment to the post of Civil Judge (Junior Division) by
direct recruitment
VIVEK KAISTH & ANR v. THE STATE OF HIMACHAL
PRADESH & ORS [SUDHANSHU DHULIA, J.]
626
SUPREME COURT REPORTS
[2023] 16 S.C.R.
S.No.
Description
Date
1
Number of vacancies to be notifi ed by the High Court.
Vacancies to be calculated including
(a)
Existing vacancies.
(b)
Future vacancies that may arise within one year
due to retirement
(c)
Future vacancies that may arise due to promotion,
death or otherwise, say ten per cent of the number
of posts.
15th January
2
Advertisement inviting applications from eligible
candidates.
1st February
3
 Last date for receipt of application
1st March
4
Publication of list of eligible applicants.
The list may be put on the website.
2nd April
5
Dispatch/Issue of admit cards to the eligible applicants.
2nd to 30th
April
6
Preliminary written examination
Objective questions with multiple choice which can be
scrutinised by computer.
15th May
7
Declaration of result of preliminary written examination
(a)
Result may be put on the website and also
published in the newspaper.
(b)
The ratio of 1:10 of the available vacancies to the
successful candidates be maintained
15th June
8
Final written examination
Subjective/Narrative.
15th July
9
Declaration of result of fi nal written examination
(a)
Result may be put on the website and also
published in the newspaper.
(b)
The ratio of 1:3 of the available vacancies to the
successful candidates be maintained.
(c)
Dates of interview of the successful candidates
may be put on the internet which can be printed
by the candidates and no separate intimation of
the date of interview need be sent.
30th August
627
10
Viva voce.
1st to
15th October
11
Declaration of fi nal select list and communication to
the appointing authority
(a)
Result may be put on the website and also
published in the newspaper.
(b)
Select list be published in order of merit and
should be double the number of vacancies notifi ed.
1st November
12
Issue of appointment letter by the competent authority
for all existing vacant posts as on date.
1st December
13
Last date for joining.
2nd January of
the following
year
16. The Court further requested the Chief Justice of each High Court
to constitute a committee of two or three Judges to monitor the selection
process so that timely selection of judicial offi cers can be made. There
were other directions as well. The diffi culty, however, was to fi gure out the
number of vacancies to be advertised. As far as (a) existing vacancies and
(b) future vacancies which were to come within one year due to retirement
were concerned, there was no diffi culty in anticipating these vacancies.
It is the third category which was given in "C" as "future vacancies" that
created some confusion in diff erent States as there could be no clarity of what
these vacancies would be or how they were to be calculated. Ultimately, a
three Judge Bench of this Court in Malik Mazhar Sultan and Another v.
Uttar Pradesh Public Service Commission and Others (2009) 17 SCC 24
(hereafter referred to as "Malik Mazhar-2") clarifi ed this aspect in its order
dated 24.03.2009 as follows:
"1. On 4-1-2007 [Malik Mazhar Sultan (3) v. U.P. Public Service
Commission, (2008) 17 SCC 703 : (2010) 1 SCC (L&S) 942] , this
Court had given certain directions regarding the selection and
appointment of members of the subordinate judicial offi cers in various
courts. In the tabular form, the number of vacancies are notifi ed by
VIVEK KAISTH & ANR v. THE STATE OF HIMACHAL
PRADESH & ORS [SUDHANSHU DHULIA, J.]
628
SUPREME COURT REPORTS
[2023] 16 S.C.R.
the High Court/Public Service Commission. It was directed that the
further vacancies that may arise due to elevation or death or otherwise,
10% of the posts shall be notifi ed and this is referred at para 15 of the
order; it is further stated: (Malik Mazhar case [Malik Mazhar Sultan
(3) v. U.P. Public Service Commission, (2008) 17 SCC 703 : (2010) 1
SCC (L&S) 942] , SCC p. 711)
"15. We further direct that ten per cent of unforeseen vacancies would
be in respect of sanctioned posts and not vacancies occurring in a
particular year."
2. It has been pointed out by the counsel appearing for the various
High Courts that 10% of the sanctioned posts are notifi ed in some
States. A large number of posts are to be notifi ed whereas there was
corresponding number of vacancies to be fi lled if the candidates
are selected in the select list. There may be an expectation for such
candidates to get appointment and this creates unwanted litigation
by the candidates and it is prayed that the existing vacancies alone
be notifi ed along with the anticipated vacancies that may arise in the
next one year and some candidates also be included in the wait list
prepared by the High Courts/PSCs.
3. In supersession of the order passed by this Court on 4-1-2007
[Malik Mazhar Sultan (3) v. U.P. Public Service Commission, (2008)
17 SCC 703 : (2010) 1 SCC (L&S) 942] , this Court directs that
in future the High Courts/PSCs shall notify the existing number of
vacancies plus the anticipated vacancies for the next one year and
some candidates also be included in the wait list. To this extent
earlier order is modifi ed."
(emphasis supplied)
17. In other words, subsequent to the clarifi cation by a three Judge
Bench of this Court in Malik Mazhar-2, the third category earlier created
in Malik Mazhar, did not exist any longer. Therefore, the directions given
by the Division Bench of the Himachal Pradesh High Court in Shweta
Dhingra (supra) in our opinion, were not necessary, and the reliance upon
these directions by the three-member Committee in the present case were
misplaced since the 'vacancies' had already been advertised. If at all, it
629
was necessary such an exercise should have been undertaken before the
vacancies were advertised on 01.02.2013.
18. We may also refer here to the 2004 Rules of Himachal Pradesh
known as Himachal Pradesh Judicial Service Rules, 2004. The Rules were
amended to bring them in tune with the directions of this Court in Malik
Mazhar. After the amendment, the number of vacancies which were to be
notifi ed as per the Himachal Pradesh Judicial Service Rules were as follows:
(a) existing vacancies;
(b) future vacancies that may arise within one year due to retirement;
and
(c)
future vacancies that may arise due to promotion, death or
otherwise, say ten percent of the number of posts.
The clarifi cation made by this Court about the number of vacancies
to be notifi ed in Malik Mazhar-2 was perhaps not noticed while making
changes in the above Rules. As such, the vacancies as given in the 2004 Rules
are not in tune with what this Court had defi ned as 'vacancies' in terms of
Malik Mazhar-2. In any case if more vacancies had to be advertised, over
and above the existing and anticipated vacancies then this could only have
been done prior to the advertisement i.e., February 1, 2013.
19. All the same, even if there is an apparent dichotomy between
what the Service Rules suggest and what is mandated by this Court in
Malik Mazhar this must be resolved by making a harmonious interpretation
between the Service Rules and Articles 14 and 16 of the Constitution of
India, as held by this Court in High Court of Kerala v. Reshma A. and
Others (2021) 3 SCC 755. The importance of the Service Rules cannot
be belittled. The directions given in Malik Mazhar too emphasise that
appointments have to be made as per the Service Rules of each State, as the
procedure of selection and appointment may vary between diff erent states.
This Court was conscious of this aspect. The concern of this Court was for
timely recruitment to fi ll the judicial vacancies. Removing any doubt on
a confl ict between the directions in Malik Mazhar and Service Rules, this
Court in Reshma A. (supra) explained as under:
"59. ............. The object and purpose of this Court in the decision
VIVEK KAISTH & ANR v. THE STATE OF HIMACHAL
PRADESH & ORS [SUDHANSHU DHULIA, J.]
630
SUPREME COURT REPORTS
[2023] 16 S.C.R.
in Malik Mazhar (3) [Malik Mazhar Sultan (3) v. U.P. Public Service
Commission, (2008) 17 SCC 703] was to ensure the expeditious fi lling
up of judicial vacancies in the State Judicial Services. It was in this
perspective, that the Court set down strict timelines for compliance. At
the same time, it is evident that the decision did not provide for essential
aspects such as eligibility, modalities for conducting the examination
and the application of reservations in making appointments to State
Judicial Services. Hence, a signifi cant fi eld in regard to the process
of selection and appointments to the judicial services is not covered
by the decision in Malik Mazhar (3) [Malik Mazhar Sultan (3) v. U.P.
Public Service Commission, (2008) 17 SCC 703] for which one has
to fall back upon construing the rules governing the State Judicial
Service in question."
In Malik Mazhar, this Court had dealt with any probable confl ict
of duties on interference with the independent functioning of State
Commissions where it reiterated its sole purpose of timely fi lling up of
judicial vacancies. This is what it said:
"6. Though no submission was made by any learned counsel
appearing for any State Government that the constitution of Selection
Committee by the Chief Justice of the High Court to monitor the timely
appointment of Judges at subordinate/district level would amount
to interference with the independent functioning of the State Public
Service Commission, but some State Governments in their responses
have indicated so. 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. A Committee constituted by the Chief Justice
of the High Court to ensure that the vacancies are timely fi lled and
the problem of delay in dispensation of justice is tackled to some
extent can under no circumstances be said to be interference with
the independent functioning of the authorities under the Rules or of
independent functioning of the State Public Service Commission."
20. In Reshma A. (supra) while dealing with a situation where there
was an almost similar dichotomy between the Kerala Judicial Service Rules
and the directions given in Malik Mazhar, this Court was of the opinion that
631
in such cases, it is better to seek harmony between the two and held that "A
better line of approach is to seek an interpretation which will bring harmony
between them." Without going into the details of the Reshma A. (supra)
case, the problem which arose there was that the Service Rules in Kerala
required the "merit list" to be "twice" the number of "probable vacancies".
After the fi rst half of the candidates from the list were given appointments
on the notifi ed vacancies, the remaining candidates of the list, i.e., nearly
half, claimed appointment on vacancies which came subsequently i.e.,
subsequent to the notifi cation of vacancies. The claim of these candidates
was based on a provision of Service Rules [Rule 7(2)]2 which stipulated
that the list shall be valid for "one year", and therefore since the merit list
was still a valid list, appointments could be made on these vacancies, was
the case of the petitioners before the Kerala High Court. Their claim was
accepted by the learned Single Judge in writ petition as well as in Appeal
before the Division Bench. The Kerala High Court was thus here before this
Court, in Reshma A (supra). Indeed, a literal interpretation of sub-rule (2) of
Rule 7 would give a right of consideration to the petitioners who were before
the Kerala High Court, but that would be against service jurisprudence as
that would amount to making appointments on vacancies which were not
advertised, vacancies which came up after the notifi ed date on which would
also rest the claim of such candidates who gained eligibility subsequently
and had a right of consideration. Hence, this exercise would principally be
in violation of Articles 14 and 16 of the Constitution of India. This is how
this Court resolved the issue:
"71.1. Undoubtedly, the validity of Rule 7(2) was not in question
before the High Court. The counsel for the respondents argued that it
does not lie in the province of the appellant to raise a doubt about the
validity of its own rules, more particularly Rule 7(2). It is necessary
to note that Mr V. Giri, learned Senior Counsel appearing on behalf
of the appellant did not suggest or argue that Rule 7(2) should be held
2
Rule 7 (2) "The merit list prepared by the High Court shall be forwarded for the
approval of the Governor. The list approved by the Governor shall come into force
from the date of the approval and shall be valid till the notifi ed vacancies and the
vacancies that may arise within one year from the date of approval of the list, are fi lled
up or a fresh list comes into force, whichever is earlier."
VIVEK KAISTH & ANR v. THE STATE OF HIMACHAL
PRADESH & ORS [SUDHANSHU DHULIA, J.]
632
SUPREME COURT REPORTS
[2023] 16 S.C.R.
to be invalid. The submission of the learned Senior Counsel is that the
expression "probable" denotes an addition/deduction which has to be
made due to the imponderables of service such as death, resignation
and promotion. The submission of the appellant is that a literal
interpretation of Rule 7(2), without reference to the constitutional
requirement of not operating a select list beyond the notifi ed vacancies,
would render the Rule violative of Articles 14 and 16 and such an
interpretation should be avoided.