# GURMEET PAL SINGH v. STATE OF PUNJAB & ANR

- **Citation:** [2018] 6 S.C.R. 1036
- **Court:** Supreme Court of India
- **Decided:** 2018-05-15
- **Case number:** Civil Appeal No. 4853 of 2018
- **Bench:** J. Chelameswar, Sanjay Kishan Kaul
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gurmeet-pal-singh-v-state-of-punjab-anr-33225
- **Pages:** 14

## Headnote

Judicial Service - Punjab Superior Judicial Service Rules,
2007- r.7(3)(c) - Advertisement issued, inviting applications for
selection to Punjab Superior Judicial Service through direct
recruitment from amongst the Advocates - Appellants-candidates
appeared for the written examination - On declaration of the result
of the written examination, viva voce was held whereafter there was
variation in the merit position of the candidates in the combined
marks compared with just the written examination - Challenged by
appellants - Held: When a candidate appears in an examination
without objection and is subsequently found to be not successful, a
challenge to the process is precluded - Appellants not having
challenged the advertisement at the relevant point of time, cannot
be permitted to contend that having not made the mark in the cut
off for the select list, something must be done to somehow
accommodate them - No relief granted to the appellants -
Constitution of India - Art.309.
Judicial Service - Punjab Superior Judicial Service -
Advertisement issued for selection provided for the possibility of
the number of posts being subject to variation - Post advertisement
one more seat became available - Impact of - Held: This would not
mandate the inclusion of a post which fell vacant subsequently, nor
can there be even otherwise a compulsion on High Court to
necessarily expand the scope of the number of persons to be
recruited.
Judicial Service - Punjab Superior Judicial Service -
Advertisement issued for selection provided for two seats for ExServicemen - Held: Such reservation had no force of law in view of
r.3, 1982 Rules carving out an exception in respect of the Punjab
Vidhan Sabha Secretariat Service and the Punjab Superior Judicial
Service - Punjab Recruitment of Ex-Servicemen Rules,1982- r.3.
[2018] 6 S.C.R. 1036
1036
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Judicial Service - Punjab Superior Judicial Service - Filling
up of existing and prospective vacancies - Held: No doubt every
endeavor should be made to fill up the existing vacancies and
prospective vacancies - However, there cannot be a blanket
proposition that an advertisement is defective merely because every
vacancy which existed or which is contemplated was not taken into
account - A subsequent vacancy arising from an elevation to High
Court can hardly be treated as in contemplation and it is always
open to not even fill up a vacancy.
Reservation - Right of members belonging to reserved
category to be included in the unreserved category - Held: Members
belonging to the reserved category, who get selected in open
competition on the basis of their merit, have a right to be included
in the General/Unreserved category and are not to be included in
the quota reserved for the SC category.
Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995 - Non-availability of
candidate under Physically Challenged category - Vacancy carried
forward for the future - Propriety of - Held: Provisions of the
1995 Act are towards the social objective of accommodating people
with physical disability - There is nothing wrong in carrying forward
the vacancy for the future.
Dismissing the appeals, the Court
HELD: A.Effect of elevation of a Judge from the category of
direct advocate recruits to the High Court:
1.1 The elevation of one Justice Sabina on 12.03.2008 is a
matter of fact. The submission of the appellants is that one more
seat for General category became available post issuance of the
advertisement and since the number of posts were subject to
variation, this vacancy should be made available to the General
category. It is not in dispute that the advertisement was issued
prior to such elevation on 02.02.2008 and the advertisement noted
the possibility of the number of posts being subject to variation.
However, this would not mandate the inclusion of a post which
fell vacant subsequently, nor can there be even otherwise a
compulsion on the High Court to neces

## Text

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SUPREME COURT REPORTS
[2018] 6 S.C.R.
GURMEET PAL SINGH
v.
STATE OF PUNJAB & ANR.
(Civil Appeal No. 4853 of 2018)
MAY 15, 2018
[J. CHELAMESWAR AND SANJAY KISHAN KAUL, JJ.]
Judicial Service - Punjab Superior Judicial Service Rules,
2007- r.7(3)(c) - Advertisement issued, inviting applications for
selection to Punjab Superior Judicial Service through direct
recruitment from amongst the Advocates - Appellants-candidates
appeared for the written examination - On declaration of the result
of the written examination, viva voce was held whereafter there was
variation in the merit position of the candidates in the combined
marks compared with just the written examination - Challenged by
appellants - Held: When a candidate appears in an examination
without objection and is subsequently found to be not successful, a
challenge to the process is precluded - Appellants not having
challenged the advertisement at the relevant point of time, cannot
be permitted to contend that having not made the mark in the cut
off for the select list, something must be done to somehow
accommodate them - No relief granted to the appellants -
Constitution of India - Art.309.
Judicial Service - Punjab Superior Judicial Service -
Advertisement issued for selection provided for the possibility of
the number of posts being subject to variation - Post advertisement
one more seat became available - Impact of - Held: This would not
mandate the inclusion of a post which fell vacant subsequently, nor
can there be even otherwise a compulsion on High Court to
necessarily expand the scope of the number of persons to be
recruited.
Judicial Service - Punjab Superior Judicial Service -
Advertisement issued for selection provided for two seats for ExServicemen - Held: Such reservation had no force of law in view of
r.3, 1982 Rules carving out an exception in respect of the Punjab
Vidhan Sabha Secretariat Service and the Punjab Superior Judicial
Service - Punjab Recruitment of Ex-Servicemen Rules,1982- r.3.
[2018] 6 S.C.R. 1036
1036
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Judicial Service - Punjab Superior Judicial Service - Filling
up of existing and prospective vacancies - Held: No doubt every
endeavor should be made to fill up the existing vacancies and
prospective vacancies - However, there cannot be a blanket
proposition that an advertisement is defective merely because every
vacancy which existed or which is contemplated was not taken into
account - A subsequent vacancy arising from an elevation to High
Court can hardly be treated as in contemplation and it is always
open to not even fill up a vacancy.
Reservation - Right of members belonging to reserved
category to be included in the unreserved category - Held: Members
belonging to the reserved category, who get selected in open
competition on the basis of their merit, have a right to be included
in the General/Unreserved category and are not to be included in
the quota reserved for the SC category.
Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995 - Non-availability of
candidate under Physically Challenged category - Vacancy carried
forward for the future - Propriety of - Held: Provisions of the
1995 Act are towards the social objective of accommodating people
with physical disability - There is nothing wrong in carrying forward
the vacancy for the future.
Dismissing the appeals, the Court
HELD: A.Effect of elevation of a Judge from the category of
direct advocate recruits to the High Court:
1.1 The elevation of one Justice Sabina on 12.03.2008 is a
matter of fact. The submission of the appellants is that one more
seat for General category became available post issuance of the
advertisement and since the number of posts were subject to
variation, this vacancy should be made available to the General
category. It is not in dispute that the advertisement was issued
prior to such elevation on 02.02.2008 and the advertisement noted
the possibility of the number of posts being subject to variation.
However, this would not mandate the inclusion of a post which
fell vacant subsequently, nor can there be even otherwise a
compulsion on the High Court to necessarily expand the scope
of the number of persons to be recruited. In fact, the persons,
GURMEET PAL SINGH v. STATE OF PUNJAB
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who may have become eligible post the advertisement would
suffer a prejudice were subsequent vacant posts to be included
against an earlier advertisement. The plea based on the vacancy
of this seat is, thus, completely devoid of merit.[Para 7][1044-C-E]
B. The provision wrongfully made in the advertisement
reserving two seats for Ex-Servicemen:
1.2 The advertisement did make a provision for two seats
for Ex-Servicemen- one in General category and one from
Backward Class category. However, such reservation had no
force of law in view of Rule 3 of the Punjab Recruitment of ExServicemen Rules, 1982 carving out an exception in respect of
the Punjab Vidhan Sabha Secretariat Service and the Punjab
Superior Judicial Service. The High Court having noticed this
fact, abandoned the process of recruitment for this category. It
did initially resolve that the vacancy advertised for Ex-Servicemen
(General) would also go to the General category but ultimately
that is not what was done. The said seat was, however, made
available for absorption of the Judges from the Fast Track court.
[Paras 4, 8][1044-F-H]
C.The recruitment of two Judges from Fast Track Courts:
1.3 The appointment of two Judges in the Fast Track court
was made against the two vacancies, i.e., one of ExServicemen(General) category and the second which occurred
on elevation of Justice Sabina from the subordinate judiciary to
the High Court. Such selection was preceded by a Selection
Committee constituted by the High Court in order to assess the
suitability for absorption of the Judges. A completely different
process was followed for absorption of the Judges from the Fast
Track court. The moot point, however, remains whether one of
the vacancies in the advertisement, which arose ought to have
been utilized for absorption of these Fast Track court Judges,
which, in turn, affected the senior-most, the appellant. In a way,
the appellant suffered the consequences both of a more
meritorious candidate from the SC category being found eligible,
because of which he went one slot down. But, it is a wellestablished legal position that members belonging to the
reserved category, who get selected in open competition on the
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basis of their merit have a right to be included in the General/
Unreserved category and are not to be included in the quota
reserved for the SC category. [Paras 11, 12][1046-B, D-E]
1.4 Insofar as the adjustment against the seat which was
made available on account of the wrongful reservation for ExServicemen, the fact that the said appellant made an endeavour
by taking three successive subsequent exams held on 08.04.2011,
02.01.2012 and 29.04.2013, but was unsuccessful, cannot be lost
sight of. Not only that, there has been a passage of a decade
since the initial recruitment and though the appellants cannot be
blamed for judicial delays, it is really not possible to put the clock
back. Thus, the recruitment process is not interfered with on
this aspect. [Paras 13, 14][1046-F-G; 1047-A]
D. Non-availability of candidate with disability:
1.5 The plea based on an inherent right in view of the
wording of the advertisement qua the seat meant for person with
disability when no candidate is available is intrinsically flawed.
The provisions of the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act,
1995, are towards the social objective of accommodating people
with physical disability. There is nothing wrong in carrying forward
the vacancy for the future. [Para 15][1047-B-C]
E.The larger recruitment was possible since the cadre strength
was more:
1.6 The undisputed fact is that the advertisement was issued
on the basis of a cadre strength of 107. Twenty-seven(27) posts
would arise in the category in question and six (6) were already
occupied, thus, the advertisement was issued for twenty-one(21)
posts. The advertisement was not challenged by any of the
appellants. When a candidate appears in an examination without
objection and is subsequently found to be not successful a
challenge to the process is precluded. Thus, undoubtedly the
appellants not having challenged the advertisement at the
relevant point of time, cannot be permitted to contend that having
not made the mark in the cut off for the select list, something
must be done to somehow accommodate them. The plea of the
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existence of a larger number of posts is in this direction. No doubt
every endeavor should be made to fill up the existing vacancies
and prospective vacancies. However, there cannot be a blanket
proposition that the advertisement is defective merely because
every vacancy which existed or which is contemplated was not
taken into account. A subsequent vacancy arising from an
elevation can hardly be treated as in contemplation. Merely
because the name of a candidate finds a place in the select merit
list does not given an indefeasible right to appointment as well
and it is always open to not even fill up a vacancy. The cadre
strength of 111 relied upon by the appellants is available from
the Gradation and Distribution List of Officers of the Judicial
Department, Punjab corrected up to 31.01.2010, i.e., which was
subsequent to the advertisement and the recruitment process.
Thus, the appellants cannot get any relief even on this ground.
No relief is granted to the appellants. [Paras 16, 17 and 18][1047D-G; 1048-A-B, D-E]
Brij Mohan Lal v. Union of India & Ors. (2002) 5 SCC
1 : [2002] 3 SCR 810; Samta Andolan Samiti v. Union
of India (2014) 14 SCC 745 : [2013] 11 SCR 1124;
Ashok Kumar & Anr.v. State of Bihar & Ors. (2017) 4
SCC 357 : [2016] 8 SCR 815; Chandra Prakash Tiwari
v. Shakuntala Shukla (2002) 6 SCC 127 : [2002]
3 SCR 948; Malik Mazhar Sultan & Anr. v. U.P. Public
Service Commission & Ors. (2008) 17 SCC 703;
Kulwinder Pal Singh & Anr. v. State of Punjab & Ors.
(2016) 6 SCC 532 : [2016] 4 SCR 439 - relied on.
Case Law Reference
[2002] 3 SCR 810
relied on
Para 9
[2013] 11 SCR 1124
relied on
Para 12
[2016] 8 SCR 815
relied on
Para 16
[2002] 3 SCR 948
relied on
Para 16
(2008) 17 SCC 703
relied on
Para 16
[2016] 4 SCR 439
relied on
Para 17
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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4853
of 2018.
From the Judgment and Order dated 19.08.2013 of the High Court
of Punjab and Haryana at Chandigarh in Civil Writ Petition No.1999 of
2009.
WITH
C. A. Nos. 4856, 4857, 4858, 4854 and 4855 of 2018.
Salman Khurshid, Sr. Adv., Gopal Sankaranarayan, Rohit Sharma,
Anshul Chowdhary, Adil Boppar, Ms. Sakshi, Sandeep Das, Ms. Surbhi
Sharma, Parmanand Gaur, Balbir Singh Gupta, Mrs. Kanchan Kaur Dhodi,
Ms. Upasana Nath, Anis Ahmed Khan, Rohit Sharma, Anshul Chowdhary,
Gauravjeet Narwan, Yash Pal Dhingra, Advs. for the Appellant.
Appellant-in-person.
Nidhesh Gupta, Sr. Adv., Ms. Vriti Gujral, Puneet Varshney, Ashok
Mathur, Ms. Ranjeeta Rohatgi, Subhasish Bhowmick, Gagan Gupta,
Saurabh Gupta, Sajith P., Karan Dewan, Ms. Aditi Gupta, Advs. for the
Respondents.
The Judgment of the Court was delivered by
SANJAY KISHAN KAUL, J. 1. In exercise of the powers
conferred by the proviso to Article 309 of the Constitution of India, the
Punjab Superior Judicial Service Rules, 2007 (hereinafter referred to as
the 'said Rules') were notified on 31.08.2007 duly published in the Gazette
of 03.09.2007 for regulating the recruitment and the conditions of service
of the persons appointed to the Punjab Superior Judicial Service. The
method of appointment as per Rule 7 of the said Rules was both from
amongst the members of the Punjab Civil Service (Judicial Branch), as
well as direct appointment from amongst the eligible advocates on the
basis of written test and viva-voce conducted by the High Court. Subclause (c) of Sub-rule (3) of Rule 7 dealt with the latter direct appointment
for which 25 per cent of the posts were reserved. The appeals in question
relate to the process of the direct recruitment under these Rules at the
first instance, carried out in pursuance of the advertisement issued on
02.02.2008.
2. In terms of the aforesaid advertisement, applications were invited
for selection of twenty one (21) candidates, with a further breakup of
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ten (10) from General category, six (6) from Scheduled Caste ('SC')
category, two (2) from Backward Class category, one (1) from ExServiceman (General) category, one (1) from B.C. (Ex-Serviceman)
category and one (1) from Physically Challenged category of Locomotor
or Orthopedic Disability, under Rule 7(3)(c) of the said Rules. It may be
noted that the advertisement also stated that 'the number of posts will
be subject to variation.' Note 4 to the advertisement qua the Physically
Challenged category also stated that "if no candidate is found suitable or
medically fit under this category, the post shall be reverted to the General
category candidate."
3. The appellants before this Court are all candidates, who
appeared for the examination. It may be noted that none had assailed
the advertisement on any account prior to the declaration of the result.
On declaration of the result of the written examination, viva-voce was
held and there was variation in the merit position of the candidates in the
combined marks as compared with just the written examination. The
appellants all belong to the General category and their merit position
was beyond the ten (10) candidates whose recruitment was envisaged
under the advertisement. It may be noted that one of the SC candidates
obtained marks to merit consideration without the benefit of reservation
and consequently nine (9) of the General category candidates were
recruited against the ten (10) posts.
4. There were five developments, which need to be taken note of,
in view of the pleas advanced on behalf of the appellants. The first was
the elevation of Justice Sabina as a Judge of the High Court of Punjab &
Haryana on 12.03.2008, and, thus, the submission of the appellants is
that one more seat for General category became available post issuance
of the advertisement and since the number of posts were subject to
variation, this vacancy should be made available to the General category.
The second is arising from a defect in the advertisement inasmuch as no
reservation for ex-serviceman was envisaged, as Rule 3 of the Punjab
Recruitment of Ex-Servicemen Rules, 1982 (hereinafter referred to as
the 'Ex-Servicemen Rules') exempted the applicability of these Rules
to the Punjab Vidhan Sabha Secretariat Service and the Punjab Superior
Judicial Service. The High Court also took cognizance of this fact and,
thus, the reservation being not in accordance with law, resolved
appropriately in a meeting of the Judges held on 25.07.2008. The meeting
noted that the vacancy, which was advertised as Ex-Serviceman
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(General) category should also go to the General category. Thus, a
second seat as per the appellants became available for the General
category. The third is the absorption of two Presiding Officers of Fast
Track courts against which vacancies for direct recruitment purportedly
under Rule 7(2) of the said Rules even though the present recruitment
exercise was under Rule 7(3) of the said Rules. Fourthly, no candidate
was available in the physically challenged category, but instead of carrying
it to the General category as per Note 4 of the advertisement, the vacancy
was carried forward. Finally, the advertisement was issued on the basis
of a total cadre strength of 107 posts, while actually the total cadre
strength on the date of advertisement was 111, i.e., there were four
more posts, which could have been filled in and the General category
would have got two more seats and two more candidates could have
been absorbed in the General category.
5. The endeavor of the appellants by filing writ petitions before
the Punjab and Haryana High Court, however, was not successful and
in terms of the common judgment dated 19.08.2013 all the writ petitions
were dismissed. In the course of the last decade since the recruitment
process took place in the year 2008, similar recruitment of advocates
was carried out five times through different notifications. Three of the
candidates before this Court took their chances in different examinations.
The details of these are disclosed as per Annexure A to the additional
affidavit filed on behalf of respondent No.2/the High Court, which is
reproduced hereinunder:
GURMEET PAL SINGH v. STATE OF PUNJAB
[SANJAY KISHAN KAUL, J.]
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6. The appellants, however, contend that if they have been
wrongfully excluded, whether they appeared in a subsequent examination
or not, or whether they were successful or not in the subsequent
examination, would not be material. It is also the case of the appellants
that though a decade has passed since the examination was held, the
delays in the adjudication process should not deprive them of being
appointed even if there have been subsequent recruitments, and if that
aspect weighs with the Court, the relief can be suitably modified qua
the issue of seniority.
A. Effect of elevation of a Judge from the category of direct
advocate recruits to the High Court:
7. The elevation of Justice Sabina on 12.03.2008 is a matter of
fact. It is not also in dispute that the advertisement was issued prior to
such elevation on 02.02.2008 and the advertisement noted the possibility
of the number of posts being subject to variation. However, in our view,
this would not mandate the inclusion of a post which fell vacant
subsequently, nor can there be even otherwise a compulsion on the High
Court to necessarily expand the scope of the number of persons to be
recruited. In fact, the persons, who may have become eligible post the
advertisement would suffer a prejudice were subsequent vacant posts
to be included against an earlier advertisement. The plea based on the
vacancy of this seat is, thus, completely devoid of merit.
B.
The provision wrongfully made in the advertisement
reserving two seats for Ex-Servicemen:
8. The advertisement dated 02.02.2008 did make a provision for
two seats for Ex-Servicemen - one in General category and one from
Backward Class category. However, such a reservation had no force
of law in view of Rule 3 of the Ex-Servicemen Rules, carving out an
exception in respect of the Punjab Vidhan Sabha Secretariat Service
and the Punjab Superior Judicial Service. The High Court having noticed
this fact, abandoned the process of recruitment for this category in terms
of the minutes of meeting dated 25.07.2008. It did initially resolve that
the vacancy advertised for Ex-Servicemen (General) would also go to
the General category but ultimately that is not what was done. The said
seat was, however, made available for absorption of the Judges from
the Fast Track court. In fact, there were two Judges recruited from the
Fast Track court - one against this post and the other against the vacancy,
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which arose on account of the elevation of Justice Sabina through a
different exercise, which will be discussed later on.
C.
The recruitment of two Judges from Fast Track Courts:
9. The Fast Track courts owe their origin to the allocation of funds
under the 11th Finance Commission to deal with long pending cases,
particularly Sessions cases. A time bound utilization within a period of
five years was envisaged and, thus, various State Governments were
required to take necessary steps to establish such courts. We may notice
here that obviously the regular cadre strength of Judges has been awfully
inadequate to meet the pendency and inflow of cases, one methodology
could be to increase the cadre strength itself. There have been periodic
reviews for this purpose in the last few years. However, not having
done that at the relevant stage, a short cut method was envisaged to, at
least, temporarily create the Fast Track courts for certain category of
cases. However, since the fund from the Central Government ceased
after five years, the question arose as to what was to happen to these
Fast Track courts especially keeping in mind that a number of the presiding
officers had been appointed directly from the Bar. The challenge laid to
the constitutionality of this scheme for Fast Track courts was repelled in
Brij Mohan Lal v. Union of India & Ors.1. In para 10 of the judgment,
directions were issued to deal with the initial teething problems of the
Scheme. Direction No.4, after the earlier directions recorded that
preference will be given to appointment on ad hoc promotions, followed
by retired Judges, stipulated as under:
"4. The third preference shall be given to members of the Bar for
direct appointment in these Courts. They should be preferably in
the age group of 35-45 years, so that they could aspire to continue
against the regular posts if the Fast Track Courts cease to function.
The question of their continuance in service shall be reviewed
periodically by the High Court based on their performance. They
may be absorbed in regular vacancies, if subsequent recruitment
takes place and their performance in the Fast Track Courts is
found satisfactory. For the initial selection, the High Court shall
adopt such methods of selection as are normally followed for
selection of members of the Bar as direct recruits to the Superior/
Higher Judicial Services."
 1 (2002) 5 SCC 1
GURMEET PAL SINGH v. STATE OF PUNJAB
[SANJAY KISHAN KAUL, J.]
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10. The stand of the High Court is that it is in furtherance of the
aforesaid judgment that a provision was made for absorption of the Judges
appointed to the Fast Track court on a permanent basis.
11. The appointment was made vide order dated 20.06.2008 and
two such Judges in the Fast Track court against the two vacancies, i.e.,
one of Ex-Servicemen (General) category and the second which occurred
on elevation of Justice Sabina from the subordinate judiciary to the High
Court. Such selection was preceded by a Selection Committee
constituted by the High Court in order to assess the suitability for
absorption of the Judges. The Judges were marked on a benchmark of
100 marks, out of which 50 marks were from written test, 25 marks for
viva-voce and 25 marks for performance as a Judge of the Fast Track
court. These two obtained the highest marks qua the vacancies for
Punjab as recorded in the minutes of the meeting dated 18.03.2008.
12. The aforesaid shows that a completely different process was
followed for absorption of the Judges from the Fast Track court. The
moot point, however, remains whether one of the vacancies in the
advertisement, which arose ought to have been utilized for absorption of
these Fast Track court Judges, which, in turn, affected the senior-most,
i.e., Gurmeet Pal Singh. In a way, Gurmeet Pal Singh suffered the
consequences both of a more meritorious candidate from the SC category
being found eligible, because of which he went one slot down. But then
it is a well-established legal position that members belonging to the
reserved category, who get selected in open competition on the basis of
their merit have a right to be included in the General/Unreserved category
and are not to be included in the quota reserved for the SC category
(Samta Andolan Samiti v. Union of India2).
13. Insofar as the adjustment against the seat which was made
available on account of the wrongful reservation for Ex-Servicemen,
we cannot lose sight of the fact that the said Mr. Gurmeet Pal Singh
made an endeavour by taking three successive subsequent exams held
on 08.04.2011, 02.01.2012 and 29.04.2013, but was unsuccessful (chart
reproduced above). Not only that, there has been a passage of a decade
since the initial recruitment and though the appellants cannot be blamed
for judicial delays, it is really not possible to put the clock back for all the
aforesaid reasons.
 2 (2014) 14 SCC 745 - para 16
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14. We are, thus, not inclined on this aspect to interfere with the
recruitment process.
D. Non-availability of candidate with disability:
15. The plea based on an inherent right in view of the wording of
the advertisement qua the seat meant for person with disability when no
candidate is available is intrinsically flawed. The provisions of the Persons
with Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995, are towards the social objective of
accommodating people with physical disability. We find nothing wrong
in carrying forward the vacancy for the future.
E. The larger recruitment was possible since the cadre
strength was more:
16. The undisputed fact is that the advertisement was issued on
the basis of a cadre strength of 107. Twenty-seven (27) posts would
arise in the category in question and six (6) were already occupied and,
thus, the advertisement was issued for twenty-one (21) posts. The
advertisement was not challenged by any of the appellants. It is a well
settled principle of law that when a candidate appears in an examination
without objection and is subsequently found to be not successful a
challenge to the process is precluded. In a recent judgment in Ashok
Kumar & Anr. v. State of Bihar & Ors.3, this principle has been reemphasised by referring to the earlier judgments on this point starting
from Chandra Prakash Tiwari v. Shakuntala Shukla4. Thus,
undoubtedly the appellants not having challenged the advertisement at
the relevant point of time, cannot be permitted to contend that having not
made the mark in the cut off for the select list, something must be done
to somehow accommodate them. The plea of the existence of a larger
number of posts is in this direction. No doubt every endeavor should be
made to fill up the existing vacancies and prospective vacancies keeping
in mind the judgment in Malik Mazhar Sultan & Anr. v. U.P. Public
Service Commission & Ors.5. However, there cannot be a blanket
proposition that the advertisement is defective merely because every
vacancy which existed or which is contemplated is not taken into account.
Certainly, a subsequent vacancy arising from an elevation can hardly be
treated as in contemplation.
 3 (2017) 4 SCC 357
 4 (2002) 6 SCC 127
 5 (2008) 17 SCC 703
GURMEET PAL SINGH v. STATE OF PUNJAB
[SANJAY KISHAN KAUL, J.]
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SUPREME COURT REPORTS
[2018] 6 S.C.R.
17. We agree with the contention advanced by learned counsel
appearing for the High Court, more so when merely because the name
of a candidate finds a place in the select merit list does not given an
indefeasible right to appointment as well and it is always open to not
even fill up a vacancy. (Kulwinder Pal Singh & Anr. v. State of Punjab
& Ors.6).
18. It is also the plea of learned counsel appearing for respondent
No.2 that the cadre consisted of only 107 posts. This is stated to be
quite apparent from the gradation and distribution list of officers of The
Judicial Department, Punjab corrected up to 01.01.2008. The strength,
including permanent and temporary has been mentioned as 109.
However, at serial No.6, under the temporary post are two temporary
posts of Additional District & Sessions Judges sanctioned by the Punjab
Government letter dated 27.01.2004 for setting up of special courts at
Patiala and Jalandhar. These courts were actually not set up till much
later. It was also contended that even if the cadre strength was 109,
then the particular category would be entitled to 27.25 (25% of 109 =
27.25) posts, with this six (6) posts filled up. Therefore, once again, one
would come to 21 posts. The cadre strength of 111 relied upon by the
appellants is available from the Gradation and Distribution List of Officers
of the Judicial Department, Punjab corrected up to 31.01.2010, i.e., which
was subsequent to the advertisement and the recruitment process. Thus,
the appellants cannot get any relief even on this ground.
Conclusion:
19. We have dealt with the pleas advanced before us on behalf of
the appellants. We have, of course, perused the impugned order. We
may note that the line of attack before the High Court appeared majorly
to be on different pleas, though it cannot be said that the issues raised
before us have been raised for the first time. The focus was, however,
elsewhere. We have, thus, dealt with the pleas, which have been advanced
before us.
20. We are, thus, unable to grant any relief to the appellants in the
present case.
21. We may, however, note in the end that one of the appellants,
Ms. Kadambini, Advocate, argued the appeal in person and, without
taking anything away from the endeavour of the other learned senior
 6 (2016) 6 SCC 532
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counsel, did a commendable job. However, that cannot be a ground to
accommodate the said appellant.
22. The appeals are accordingly dismissed leaving the parties to
bear their own costs.
Divya Pandey
 Appeals dismissed.
GURMEET PAL SINGH v. STATE OF PUNJAB
[SANJAY KISHAN KAUL, J.]