Judgment:
R.C. Lahoti, J.
1. This Letters Patent Appeal has been tiled against the judgment dated 21.2.1995 passed by a learned single Judge disposing of a writ petition filed by the respondent.
2. The writ petition was filed on 11,3.1992 seeking directions against Hon'ble the Chief Justice of Delhi High Court, the appellant herein, to declare the result of the selection test held on 16.9.1990 for the post of Supereme Court Master and to immediately appoint the per son selected therein against the vacancy falling in 25% selection quota. During, the pendency of the petition appointment orders of the candidates who had taken the examination in 1990 were issued. Since the petitioner had not been selected in the interview and no panel for successful candidates had been prepared as a result of the interview, the petitioner sought for an amendment in the writ petition by making an application which was allowed on 23.9.1992. In the amended writ petition, the petitioner had sought for issuance of a direction for quashing the notification dated 28.9.1999 to the extent to which it prescribed more than 12.5% marks for interview and the condition that only those candidates who secured 50% mark in the interview shall be considered qualified. A writ of mandamus was also sought for declaration of the select list of the candidates in the order of merit prepared on the basis of the aggregate of marks obtained in the written test and the interview held in pursuance to the notification dated 29.9.1990 and to appoint at least five persons out of the select list against five admitted vacancies for the selection quota notwithstanding the fact that selection process was started for filling up two vacancies which only were available at the relevant time of issue of notification dated 28.8.1990.
3. There are two directions made by the impugned judgment as under:-
(1) The selection list shall be prepared by adding up marks obtained in interview and making only those candidates securing 50% marks in the aggregate fit for appointment;
(2) that the appointment be made on the basis of such merit list for the vacancies available on the date when final selection was made (emphasis supplied by us).
4. It was conceded at the Bar by the learned counsel for the appellant that in so far as the direction No. 1 is concerned it has been accepted by the appellant and the appellant does not feel aggrieved thereby. The grievance of the appellant is confined to direction No.2.
5. It was submitted on behalf of the appellant that the Hon'ble the Chief Justice had directed only two vacancies in selection quota in the cadre of Supereme Court Master to be tilled; acting on which direction a notification inviting applications for appointment on the two posts was issued on 28.8.1990. A written test as contemplated by rules was held and the result announced on 7.8.1992. The candidates qualifying at the written test were called for interview held on 31.8.1992. The list of successful candidates was prepared accordingly. There were only two vacancies available on 28.8.1990. However, by the time the final selection was held on 31.8.1992 the number of vacancies available in selection quota was five. Inasmuch as the learned single Judge has directed the vacancies as available on the date when the final selection Was made to be filled up, the direction would result into five appointments being made though the entire process of selection from beginning to end was intended, initiated and finalised by keeping in view only two vacancies. It is also pointed out that as on 31.8.1992 there were 16 in-house candidates available in the feeding cadre holding the post of stenographers/assistants/senior translators as per list Annexure-A/2 (page 23 of the paperbook in LPA) who had become eligible for consideration for the post of Supereme Court Master on the basis of the Rules but they would be excluded from consideration inasmuch as the selection made on 31.8.1992 pursuant to the notification dated 28.8.1990 would result into five posts being filled up in accordance with the directions made by the learned single Judge though the process was intended and meant for filling up only two vacancies. The learned counsel for the appellant submitted that the direction made by the learned single Judge is in consistent with the rules and has also resulted, into the right' of 16 incumbents above-said being excluded from the zone of consideration and has also caused serious prejudice to the appellant who would have had available before him a wider list ofeligible applicants to choose the Supereme Court Master to be selected. Learnedcounsel for the appellant has placed reliance on the law laid down repeatedly by theSupreme Court and cited State of Bihar v. Secretariat Asstt Successful ExamineesUnion, : AIR1994SC736 , Harjinder Singh Sodhi v. State of Punjab and Ors. : (1996)6SCC322 , State of Bihar v. Madan Mohan Singh, 1994 Supp (3) SCC 308 and PremPrakash v. Union of India 1984 (Sup) SCC 687.
6. In the case of State of Bihar v. Madan Mohan Singh (supra), the appellant Govt had invited applications on 29.9.1989 for filling up 32 vacancies. After conducting interview in November, 1990 a panel of 32 candidates was drawn up. On 24.11.1990, a resolution was passed that any further vacancy within one year would be filled up from the merit list already prepared. A question arose whether the appointments can be made from the panel already drawn up or fresh recruitment process was required to be resorted to for filling up future vacancies. Their Lordships held that the crucial question was whether, in fact, the advertisement and the initial decision taken was meant to fill up 32 vacancies only. It was held:
'The temporary vacancies arose subsequently but even otherwise in the view we are taking namely that the particular advertisement and the consequent selection process were meant only to fill up 32 vacancies and not to fill up the other vacancies, the merit list prepared on the basis of the written test as well as the viva voce will hold good only for the purpose of filling up those 32 vacancies got exhausted and came to an end. If the same list has to be kept subsisting for the purpose of filling up other vacancies also that would naturally amount to deprivation of rights of other candidates who would have become eligible subsequent to the said advertisement and selection process.'
7. In State of Bihar v. Secretariat Assistant Successful Examinees Union (supra) advertisement inviting applications for vacancies falling up to 1985-86 was issued in the year 1985. Examination was held in November, 1987 and the result published in July, 1990. The empanelled candidates who were left out after filling up vacancies up to 1985-86 approached the High Court seeking appointment against vacancies available on the date of the publication of the result as well as the vacancies arising up to 1991. The High Court allowed the prayer. In an appeal before the Supreme Court their Lordships held that the direction given by the High Court was not proper and could not be sustained.
8. In Harjinder Singh Sodhl's case : (1996)6SCC322 their Lordship's have held that those who had sought for nomination to the post available in 1991 can be considered only for appointment to nine posts which arose in 1991 and could not be considered for selection for subsequent vacancies because that would have the effect of adversely affecting the candidates who became qualified later.
9. Prem Parkash v. UOI, : (1985)IILLJ341SC also lends support to the same view. Two previously selected persons were sought to be appointed against vacancies occurring in a later year. Their Lordships held that this must be avoided because that results in ouster of two newly selected persons. Justice to one group at the expenseof injustice to another is perpetuation of injustice in some form or the other, held their Lordships.
10. It is thus clear that selection and appointment to be made cannot exceed the number of vacancies notified.
11. On behalf of the respondent reliance was place on Umesh Chandra v. UOI, : AIR1985SC1351 and the subsequent directions given by the Supreme Court vide order dated 9.5.1986 in CMP 10751 of 1986 in the same matter (copy available on record), as also on a Division bench decision of this Court in J.N. Verma v. Hon'ble Chief Justice of Delhi High Court, CWP 2670/87 decided on 19.5.1992 (copy available on record). We have carefully perused the decisions so cited. However, none of them in our opinion helps the respondent.
11.1 The main decision in Umesh Chandra's case : AIR1985SC1351 does not lay down any law or principle which may apply to the issue at hand. By the subsequent order dated 9.5.1986 passed in that case, their Lordships have given a direction to accommodate some candidates of the previous list of successful candidates against the available vacancies. The direction appears to have been given in the facts and circumstances of that case in exercise of the jurisdiction conferred on the Supreme Court under Article 142 of the Constitution of India. No law or principle has been laid down to act as a precedent or be binding as the law laid down by the Supreme Court of India.
11.2. The Division Bench decision of Delhi High Court in J.N. Verma's case is clearly distinguishable inasmuch as the number of vacancies available at the tune when the selection process was initiated was not specified and the Selection Committee had prepared at list of the successful candidates. The Division Bench has held:
'If the circular had been issued for selection of candidates in the specified available vacancies only as many number of persons to be appointed in the available vacancies would be selected. As would be seen from the facts narrated above even the first three candidates were appointed in the leave vacancy available at that time and were not in the regular vacancies. Thus, the very idea in making the selection was to have a panel ready in order that the vacancies could be filled in expeditiously.'
Consequently, when the matter was placed before Hon'ble the Chief Justice, His Lordship had on 11.9.1985 directed that steps be taken up immediately to fill up all the vacancies which are at present lying vacant. Keeping in view the order of the Chief Justice the Division Bench has further held:
'This noting further strengthens the case of the petitioners that when selection is made pursuant to a circular which does not specify the available vacancies the idea in preparing the list is to make appointments as soon as vacancy arise. Undoubtedly under Article 229 of the Constitution of India appointment of officers and servants of a High Court has to be made by the Chief Justice. Thus, the Chief Justice must feel the administrative necessity to have a panel. In the facts of the present case however we find that since the Chief Justice directed issuance of a circular without specifying the vacancies and appointed Selection Committee to Select candidates without specifying the number and furthermore approved the list prepared by the Selection Committee shows that the Chief Justice did feel the administrative need to have the panel. It was thus not necessary for the Chief Justice to once again reiterate the decision to maintain a panel. The noting of the Chief Justice dated 6.8.1987 further makes the position abundantly clear that the list prepared by the Selection Committee was in fact a panel of selected candidates.'
11.3. It is, thereforee clear that in the case of J.N. Verma the selection was notagainst a specified number of vacancies. A panel of selected candidates was intended to be prepared so as to make available suitable candidates to fill up vacanciesas and when they occur. Thus the selection process was initiated and meant for filling up vacancies in contemplation. Such is not the case at hand. On the contrary,the fore quoted extracts go to support the case of the appellant before us ratherthan the respondent's.
11.4 None of the decisions relied by the learned counsel for the respondent has application to the case at hand.
12. The case at hand relates to appointment against the vacancies in the Registry which is a subject matter lying exclusively within the jurisdiction of the Chief Justice under Article 229 of the Consititution. The Selection Process was initiated under the order of the Chief Justice for filling up of two vacancies only. At no point of time Hon'ble the Chief Justice has directed any vacancy beyond two to be filled up from out of the candidates selected.
13. Under Article 229 of the Constitution appointments of officers and servants of aHigh Court shall be made by the Chief Justice of the Court or such other Judge orOfficer of the Court as he may direct. The object of this Article is to secure the independence of the High Court. The Constitution confers exclusive jurisdiction on theChief justice so far as the appointment of officers and servants of a High Court isconcerned. No appointment may be made unless sanctioned or ordered by theChief justice. It is true that an action of the Chief Justice acting on the administrative side is subject to judicial review in exercise of the writ jurisdiction of the HighCourt which is saved by Article 226 of the Constitution. But a clear and well defined distinction exists between judicially reviewing an action of the Chief Justicewhere he has acted and directing a Chief Justice to act in a particular mannerwhen he has not yet acted. In the case at hand, the Chief Justice had directed only twoappointments to be made. By directing the Chief Justice to make five appointments instead of two where the Chief Justice was neither constitutionally nor legallyobliged to make such number of appointments, in our opinion amounts to exceedingthe limits of judicial review and transgressing upon the constitutional power of theChief Justice.
14. The direction made by the learned single Judge cannot be sustained for several reasons. Firstly, such a direction would tantamount to usurping the power which the Constitution has chosen to vest exclusively in the Chief Justice. Secondly, it is notin conformity with the law laid down by the Supreme Court consistently in the cases referred to hereinabove. Thirdly, the selection process initiated in the year 1990 for only two vacancies had a limited zone of consideration by including therein a limited number of employees, eligible till then; while a selection process initiated with five vacancies would have provided a wider zone of consideration from amongst the eligible employees by reference to the date on which 5 vacancies became available. The right of employees to be considered for selection who had become eligible by the time five vacancies became available has been taken away for no fault of theirs. Fourthly, the right of the employer i.e. the High Court to have a wider number of eligible candidates to choose from has been prejudiced.
15. The appeal deserves to be allowed.
16. After the hearing in the appeal was closed on 26.10.1998, on the next day, the respondent moved an application seeking re-hearing of the appeal submitting that CM 2389/97 filed by the respondent was to be taken up for hearing along with the hearing in the appeal itself but the same has escaped his attention and in the interest of justice he should be heard on the application. The prayer was allowed and we have additionally heard the learned counsel for the parties on the application.
17. By CM 2389/97 the respondent proposed to invite the attention of the court to the fact that subsequent to the passing of the impugned order by the learned single Judge the appellant itself has been following the policy of making appointments out of panel and beyond the number of vacancies available on the date of initiation of the selection process. He submitted that as the appellant itself has adopted such policy or practice, there is no justification for the appellant pursuing this appeal.
18. This prayer has been vehemently opposed by the learned counsel for the appellant submitting that there was not such practice being followed by the appellant. It was pointed out that the singular instance which has been cited by the respondent in his application relates to a case where the Hon'ble Chief Justice had asked for recommendation of a committee of Judges and specifically directed such vacancies to be filled up against which appointments were made. Such a single instance cannot in any case be said to be a 'practise followed' by the appellant benefit whereof may be claimed by the respondent. Apart from this we are clearly of the opinion that if in any stray incident something has been done in departure from the law or even a practice not supportable in law was followed that cannot provide a ground for raising an argument that the respondent should also be allowed or should have been allowed the benefit of an appointment in excess of notified vacancies. We have to decide the case in accordance with law and determine the rights and obligations of the parties consistently therewith.
19. We may place on record that as against the vacancies of 1995, the respondent has participated in the process of selection which was initiated subsequent to the impugned proceedings. He has been selected and appointed in the year 1997. He is contesting the present appeal for the purpose of seeking an appointment from a back date which, as already stated, we have found to be not permissble.
20. The appeal is allowed. The impugned judgment in so far as it directs the appellant to make appointment against the vacancies available on the date when final selection was made is set aside. Instead, it is directed that the appointment shallremain confined to the two vacancies available on the date of notification i.e.29.8.1990. No order as to costs.
21. Though the appeal has been disposed of, before parting we would like to make an observation of our own. We find Hon'ble the Chief Justice having been imp leaded as party to the litigation for which there was no occasion much less a justification. Only the High Court should have been joined as a party to be represented by the Registrar. The tendency on the part of the writ petitioners so impleading Hon'ble the Chief Justice has to be deprecated.