The Supreme Court permitted two judicial officers to continue in service even though it held that their very appointment was wrong.

The court partly allowed their appeals against the judgment of the Himachal Pradesh High Court that had quashed their selection and appointment to the post of Civil Judge (Junior Division).

The two-Judge Bench of Justice C.T. Ravikumar and Justice Sudhanshu Dhulia held, “We therefore uphold the findings of the High Court on law as to the flaw in the process of selection, which followed post October 8, 2013, after declaration of results. All the same, for the reasons stated above, in order to do complete justice and in exercise of our powers under Article 142 of the Constitution of India, we set aside the order of the High Court as far as it quashes the selection and appointment of the appellants."

Senior Advocates Surendranath P. V., Paramjit Singh Patwalia and Advocate Amit Kumar Singh represented the appellants while Advocates Vishwanathan Iyer, Shimpy Sharma, and Arman Sharma represented the respondents.

Brief Facts -

An advertisement was issued on February 1, 2013 whereby the Himachal Pradesh Public Service Commission (HPPSC), 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 of which the results were declared. The candidates, who had qualified preliminary examination, participated in the main written examination which was held in July, 2013. Eighty candidates qualified in the written examination and were ultimately called for the interview.

Finally, the candidates were selected and the list was published on the website of the Commission and in the newspaper, however, the names of the two appellants did not figure in the said list and their names were included later vide a notification issued by the State Government. The Himachal Pradesh High Court held these two selections, and consequently the appointments to be illegal and quashed the same. Hence, the appellants approached the Apex Court. There were four appeals before the Court and the other three appeals were of the appellants who were also candidates for the post of Civil Judge (Junior Division) for the year 2013 in the Himachal Pradesh State and had challenged the selection process as well as the appointment of the appellants.

The Supreme Court after hearing the contentions of the counsel observed, “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). Undoubtedly, with all intentions of timely filling of the vacancies, the High Court still cannot escape the blame. … Not one note, letter, or an objection of any kind has been placed before us which can give even the slightest hint that the High Court, at any point of time, had objected to these appointments!”

The Court added that the objection has only come for the first time in form of additional affidavits before the High Court in the writ proceedings when the validity of the two appointments was challenged.

“The High Court has placed the entire blame on the post selection exercise undertaken by the State Commission. This is not the correct position, 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”, said the Court.

Furthermore, the Court noted that there was a violation of the process in making selection/appointment of the appellants, in as much as the vacancies on which the appellants were appointed were never advertised, and that these vacancies cannot be termed as “anticipated vacancies” for the simple reason that they were only created on April 18, 2013 i.e., after the selection process had begun and advertisement was issued on February 1, 2013.

“What is also important for our consideration at this stage is that the appellants in the present case have been working as Judicial Officers now for nearly 10 years. They are now Civil Judge (Senior Division). These judicial officers 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. Ordinarily, these factors as we have referred above, would not matter, once the very appointment is held to be wrong. But we also cannot fail to consider that the appellants were appointed from the list of candidates who had successfully passed the written examination and viva voce and they were in the merit list”, held the Court.

The Court also said that it is nobody’s case that the appellants have been appointed by way of favouritism, nepotism or due to any act which can even remotely be called as “blameworthy” and that they have now been working as judges for ten years.

"A Judge is a Judge of facts, as much as he is a Judge of law. The position of law we have already explained in the preceding paragraphs, which has been correctly followed by the Himachal Pradesh High Court. Now let us see the context of the case and its facts. Today, when we are delivering this judgment the two appellants have already served as Judicial Officers 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 (which has obviously benefitted them), nothing has been brought to our notice which may suggest any favouritism, nepotism or so-called blame as to the conduct of these two appellants, in securing these appointments. The High Court in fact notes this factor.”

“There is hence a special equity which leans in favour of the appellants. … We also make it clear that the present litigation which the appellants have gone through will not come in way of these judicial officers in any manner, as far as their judicial career is concerned. They shall be treated at par with the other appointees on the post of Civil Judge (Junior Division) for that year”, concluded the Court.

Accordingly, the Apex Court allowed the appeals, upheld the findings of the High Court on law as to the flaw in the selection process, and set aside the order as far as it quashed the selection and appointment of the appellants.

Cause Title- Vivek Kaisth & Anr. v. The State of Himachal & Ors. (Neutral Citation: 2023 INSC 1007)

Click here to read/download the Judgment