REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4853 OF 2018 [Arising out of SLP(C) No.33680/2013]

GURMEET PAL SINGH                        ….APPELLANT

Versus

STATE OF PUNJAB & ANR.         ….RESPONDENTS

WITH

Civil Appeal No._4856 of 2018 [Arising out of SLP(C) No.3826/2014]

Civil Appeal No.4857 of 2018 [Arising out of SLP(C) No.8431/2014]

Civil Appeal No.4858 of 2018 [Arising out of SLP(C) No.31833/2014]

Civil Appeal No.4854 of 2018 [Arising out of SLP(C) No.36660/2013]

Civil Appeal No.4855 of 2018 [Arising out of SLP(C) No.2997/2014]

J U D G M E N T

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

1

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.  Sub-clause

(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  ten (10)  from General  category,  six  (6)  from Scheduled

Caste (‘SC’) category, two (2) from Backward Class category, one (1)

from  Ex-Serviceman  (General)  category,  one  (1)  from  B.C.  (Ex-

Serviceman)  category  and  one  (1)  from  Physically  Challenged

2

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.

3

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 (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

4

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

5

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:

Sr. No .

Candidate’s Name

Father/Husband’s Name

Notification dated  2.2.2008

Rank  as per Merit  List

Notification dated  21.10.2009

Notification  dated  8.4.2011

Notification  dated  2.1.2012

Notification dated  29.4.2013

Notification dated  23.3.2015

1. Gurmeet  Pal Singh

Santokh Singh Appeared  in the Exam

11 - Appeared in the Exam

Appeared in the Exam

Appeared  in the  Exam

-

2. Kadambini Mukand Lal  Arora

Appeared  in the Exam

13 - Appeared in the Exam

Appeared in the Exam

Appeared  in the  Exam

Appeared  in the  Exam

3. Anuradha Bhavnesh Shukla Appeared  in the Exam

12 - - - - -

4. Preeti  Bhargav

Narinder  Bharbav

Appeared  in the Exam

15 - - - - -

5. Parmod      Kumar

Satyapal Sharma Appeared in the Exam

16 - Appeared in the Exam

- Appeared in the Exam

-

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.

6

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

7

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,  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

8

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

1(2002) 5 SCC 1

9

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.”

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.

10

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

2(2014) 14 SCC 745 – para 16

11

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.

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

12

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 re-emphasised 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

3(2017) 4 SCC 357 4(2002) 6 SCC 127 5(2008) 17 SCC 703

13

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.

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

6(2016) 6 SCC 532

14

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.

15

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

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.

..….….…………………….J. [J. Chelameswar]

              ...……………………………J. [Sanjay Kishan Kaul]

New Delhi; May 15, 2018.

16