Ramesh Kumar vs High Court Of Delhi &Amp; Anr on 1 February, 2010

     IN THE SUPREME COURT OF INDIA

                  CIVIL ORIGINAL JURISDICTION

               WRIT PETITION (CIVIL) NO.57 OF 2008

 Ramesh Kumar ... Petitioner  Vs.

High Court of Delhi & Anr. ... Respondents  (With W.P. (C) No.66/2008)

   JU DGMENT

 Dr. B.S. CHAUHAN, J



1. These two petitions have been filed under Article 32 of the  Constitution of
India for seeking directions to the respondents i.e. the High  Court of Delhi
and Govt. of NCT of Delhi to offer appointment to the  petitioners on the posts
in the cadre of District Judge.

2. The facts and circumstances giving rise to these petitions are that in  order
to fill up 20 vacancies in the cadre of District Judge in Delhi, the  Respondent
No.1, the High Court of Delhi issued an advertisement on 19.5.2007. Out of these
20 vacancies, 13 were to be filled up from the  General Category candidates, 3
from Scheduled Castes candidates and 4  from Scheduled Tribes candidates. The
petitioners who belong to Scheduled  Castes category faced the selection
process. The result was declared on  3.1.2008. All the three vacancies reserved
for Scheduled Castes candidates  could not be filled up as the Respondent No. 1
found only one person  suitable for the post. The two petitioners herein were
found unsuitable on the  ground that they did not secure the required minimum
marks in interview.  Hence, these petitions.



3. Shri V. Shekhar, learned senior counsel appearing for the petitioners  has
submitted that in view of decision taken by the Respondent No. 1, a  candidate
belonging to Scheduled Castes Category would be called for  interview provided
he secured 45% marks in written test. Only three  candidates belonging to the
said category stood qualified in the written test,  thus, they could have been
offered the appointment without asking them to  complete the formality of facing
the interview. It was not permissible for  the Respondent No. 1 to fix minimum
Bench Marks at the interview level  also for the purpose of selection. The
petitions deserve to be allowed and  the respondents be directed to offer the
appointment to the petitioners.    2

 4. Per contra, Shri A. Mariarputham, learned senior counsel appearing  for the
respondents has vehemently opposed the petitions contending that  mere passing
the written test is not sufficient for appointment as some of the  required
qualities of a candidate can be assessed only in viva-voce/oral  examination.
The competent authority is permitted in law to fix the  minimum marks at
interview level also. In case, the candidate does not  secure the marks so
fixed, the candidate cannot claim the appointment to the  post. Decision for
fixing the cut-off marks in the written test and further for  securing the
minimum Bench Marks in the interview had been taken prior to  initiation of
selection process and was made public at the same time. The  petitioners did not
challenge the said criteria at the appropriate stage. Once  they had appeared in
the examination and could not succeed, petitioners  cannot be permitted to take
U-turn and challenge the selection process on  this ground at all. The petitions
lack merit and are liable to be dismissed.

5. We have considered the rival submissions made by learned counsel  for the
parties and perused the record.



6. The advertisement dated 19.5.2007 provided that selection process  would be
in two stages as it would comprise of written examination    3

       carrying 750 marks and Viva-Voce carrying 250 marks. Respondent  No.1,
the Delhi High Court furnished detailed information about the  pattern of
selection process in the instructions annexed to the  application form. It
provided 50% minimum qualifying marks in the  written examination as well as in
the interview for General Category  candidates and 45% for Scheduled Castes and
Scheduled Tribes  candidates.

  The relevant part of the said instruction reads as under:  "A candidate
shall be eligible to appear in the viva-voce only in case he secures 50% marks
in the written examination i.e. aggregate of both parts (objective/descriptive)
in the case of general category, and 45% marks in the case of reserved category.

      Interview/viva-voce will carry 250 marks. A candidate of general category
must secure a minimum of 50% marks and a candidate of reserved category must
secure a minimum, of 45% marks in the viva-voce".

 It was also provided that final merit list will be drawn up from among  the
candidates who have secured the stipulated minimum marks in the  written
examination and also the stipulated minimum marks in the viva-voce  by adding up
the marks in the written examination and the viva-voce.     4

      RESULT OF THE PETITIONERS REMAINED AS UNDER

 Name Marks Marks Grand total Result obtained in obtained in

                   written test interview

                   Out of 750 Out of 250 Out of 1000

 Ramesh Kumar 357.50 105.00 462.50 Not qualified in interview

 Desh Raj Chalia 341.50 83.00 424.50 Not qualified in interview

 It is thus evident that the petitioners were found unsuitable on the  ground
that they failed to secure minimum Bench Marks i.e. 112.50 in  interview.



7. As per the submissions advanced by the learned counsel for the  Respondent
No.1, the High Court of Delhi had fixed the said criteria being  empowered by
the statutory provisions contained in The Delhi Higher  Judicial Service Rules,
1970 (hereinafter called `the Rules"). Rule 10  thereof reads as under:

            "The High Court shall before making recommendations to the
Administrator invite applications by advertisement and may require the
applicants to give such particulars as it may prescribe and may further hold
such tests as may be considered necessary." ( Emphasis added)

   5

 8. The aforesaid statutory provision undoubtedly does not fix any  particular
criteria or minimum Bench Marks either in the written test or in  interview for
the purpose of selection. Rule 10 provides that the High Court  "may hold
such tests as may be considered necessary", it impliedly  provides for
requirement necessary for assessment of suitability of a  candidate. There is no
challenge to the validity of Rule 10 in these writ  petitions. The question does
arise as to whether the Rules enabled the High  Court to fix the minimum Bench
Marks for interview?

9. In State of U.P. v. Rafiquddin & Ors., AIR 1988 SC 162; Dr.  Krushna
Chandra Sahu & Ors. v. State of Orissa & Ors. AIR 1996 SC  352; Majeet
Singh, UDC & Ors. v. Employees' State Insurance  Corporation & Anr. AIR
1990 SC 1104; and K.H. Siraj v. High Court of  Kerala & Ors. AIR 2006 SC
2339, this Court held that Commission/Board  has to satisfy itself that a
candidate had obtained such aggregate marks in the  written test as to qualify
for interview and obtained "sufficient marks in viva  voce" which
would show his suitability for service. Such a course is  permissible for
adjudging the qualities/capacities of the candidates. It may  be necessary in
view of the fact that it is imperative that only persons with a  prescribed
minimum of said qualities/capacities should be selected as  6

 otherwise the standard of judiciary would get diluted and sub-standard stuff
may get selected. Interview may also be the best mode of assessing the
suitability of a candidate for a particular position as it brings out overall
intellectual qualities of the candidates. While the written test will testify
the  candidate's academic knowledge, the oral test can bring out or disclose
overall intellectual and personal qualities like alertness, resourcefulness,
dependability, capacity for discussion, ability to take decisions, qualities of
leadership etc. which are also essential for a Judicial Officer.

10. Re-iterating similar views, this Court has given much emphasis on  interview
in Lila Dhar v. State of Rajasthan & Ors., AIR 1981 SC 1777; and  Ashok
Kumar Yadav & Ors. v. State of Haryana & Ors. AIR 1987 SC 454  stating
that interview can evaluate a candidate's initiative, alertness,
resourcefulness, dependableness, co-operativeness, capacity for clear and
logical presentation, effectiveness in discussion, effectiveness in meeting and
dealing with others, adaptability, judgment, ability to make decision, ability
to  lead, intellectual and moral integrity with some degree of error.

11. In Shri Durgacharan Misra v. State of Orissa & Ors. AIR 1987 SC  2267,
this Court considered the Orissa Judicial Service Rules which did not    7

 provide for prescribing the minimum cut-off marks in interview for the  purpose
of selection. This Court held that in absence of the enabling  provision for
fixation of minimum marks in interview would amount to  amending the rules
itself. While deciding the said case, the Court placed  reliance upon its
earlier judgments in B.S. Yadav & Ors. v. State of  Haryana & Ors. AIR
1981 SC 561; P.K. Ramachandra Iyer & Ors. v  Union of India & Ors. AIR
1984 SC 541; and Umesh Chandra Shukla v.  Union of India & Ors. AIR 1985 SC
1351, wherein it had been held that  there was no "inherent
jurisdiction" of the Selection Committee/Authority  to lay down such norms
for selection in addition to the procedure prescribed  by the Rules. Selection
is to be made giving strict adherence to the statutory  provisions and if such
power i.e. "inherent jurisdiction" is claimed, it has to  be explicit
and cannot be read by necessary implication for the obvious  reason that such
deviation from the rules is likely to cause irreparable and  irreversible harm.



12. Similarly, in K Manjusree v. State of Andhra Pradesh & Anr.  AIR 2008 SC
1470, this Court held that selection criteria has to be adopted  and declared at
the time of commencement of the recruitment process. The  rules of the game
cannot be changed after the game is over. The competent    8

 authority, if the statutory rules do not restrain, is fully competent to
prescribe  the minimum qualifying marks for written examination as well as for
interview. But such prescription must be done at the time of initiation of
selection process. Change of criteria of selection in the midst of selection
process is not permissible.



13. Thus, law on the issue can be summarised to the effect that in case the
statutory rules prescribe a particular mode of selection, it has to be given
strict adherence accordingly. In case, no procedure is prescribed by the rules
and there is no other impediment in law, the competent authority while  laying
down the norms for selection may prescribe for the tests and further  specify
the minimum Bench Marks for written test as well as for viva-voce.

14. In the instant case, the Rules do not provide for any particular
procedure/criteria for holding the tests rather it enables the High Court to
prescribe the criteria. This Court in All India Judges' Association & Ors.
v Union of India & Ors. AIR 2002 SC 1752 accepted Justice Shetty
Commission's Report in this regard which had prescribed for not having  minimum
marks for interview. The Court further explained that to give  effect to the
said judgment, the existing statutory rules may be amended.    9

 However, till the amendment is carried out, the vacancies shall be filled as
per the existing statutory rules. A similar view has been reiterated by this
Court while dealing with the appointment of Judicial Officers in Syed T.A.
Naqshbandi & Ors. v. State of J & K & Ors. (2003) 9 SCC 592; and
Malik Mazhar Sultan & Anr. v. Union Public Service Commission  (2007) 2
SCALE 159. We have also accepted the said settled legal  proposition while
deciding the connected cases, i.e., Civil Appeals @ SLP  (Civil) Nos..... in CC
14852-14854 of 2008 (Rakhi Ray & Ors. v. The High  Court of Delhi &
Ors.) vide judgment and order of this date. It has been  clarified in Ms. Rakhi
Ray (supra) that where statutory rules do not deal with  a particular
subject/issue, so far as the appointment of the Judicial Officers  is concerned,
directions issued by this Court would have binding effect.

15. The view taken hereinabove is in conformity with the law laid down  by this
Court in Nand Kishore v. State of Punjab (1995) 6 SCC 614,  wherein it has been
observed as under :-

      "Their Lordship's decisions declare the existing law but do not enact
any fresh law, is not in keeping with the plenary function of the Supreme Court
under Article 141 of the Constitution, for the Court is not merely the
interpreter of the law as existing but much beyond that. The Court as a wing of
the State is by itself a source of law. The law is what the Court says it
is."     10

 16. These cases are squarely covered by the judgment of this Court in  Hemani
Malhotra v. High Court of Delhi AIR 2008 SC 2103, wherein it  has been held that
it was not permissible for the High Court to change the  criteria of selection
in the midst of selection process. This Court in All  India Judges' case (supra)
had accepted Justice Shetty Commission's  Report in this respect i.e. that there
should be no requirement of securing  the minimum marks in interview, thus, this
ought to have been given effect  to. The Court had issued directions to offer
the appointment to candidates  who had secured the requisite marks in aggregate
in the written examination  as well as in interview, ignoring the requirement of
securing minimum  marks in interview.

17. In pursuance of those directions, the Delhi High Court offered the
appointment to such candidates. Selection to the post involved herein has  not
been completed in any subsequent years to the selection process under
challenge. Therefore, in the instant case, in absence of any statutory
requirement of securing minimum marks in interview, the High Court ought  to
have followed the same principle. In such a fact-situation, the question of
acquiescence would not arise.

18. In view of the above, as it remains admitted position that petitioner
Ramesh Kumar had secured 46.25% marks in aggregate and as he was    11

 required only to have 45% marks for appointment, writ petition No.57 of  2008
stands allowed. The connected writ petition filed by Desh Raj Chalia  as he
failed to secure the required marks in aggregate, stands dismissed. The
respondents are requested to offer appointment to petitioner Ramesh Kumar,  at
the earliest, preferably within a period of two months from the date of
submitting the certified copy of this order before the Delhi High Court. It is,
however, clarified that he shall not be entitled to get any seniority or any
other perquisite on the basis of his notional entitlement. Service benefits
shall be given to him from the date of his appointment. No costs.
................................CJI.

   .................................... J.

                                             (DEEPAK VERMA)

 . .................................... J.

                                             (Dr. B.S. CHAUHAN)

New Delhi,

February 1, 2010.

   12

                                                             REPORTABLE

 IN THE SUPREME COURT OF INDIA

                  CIVIL APPELLATE JURISDICTION

               CIVIL APPEAL NOS. OF 2010

(Arising out of SLP (C) Nos. .......... Of 2008 in CC 14852-14854/2008)
Rakhi Ray & Ors. ... Appellants  Vs.

The High Court of Delhi & Ors. ... Respondents    JU DGMENT

Dr. B.S. Chauhan, J.

1. Applications for permission to file Special Leave Petitions are  granted.

2. Leave granted.

3. These appeals have been filed for seeking directions to the  respondents i.e.
the High Court of Delhi and the Lt. Governor of Delhi to  offer the appointment
to the appellants on the posts in the cadre of District  Judges in Delhi
Judicial Service.

4. Facts and circumstances giving rise to these appeals are that in order  to
fill up 20 vacancies in the cadre of District Judge in Delhi, the respondent
No.1, the High Court of Delhi, issued an advertisement dated 19.5.2007.  Out of
these 20 vacancies, 13 were to be filled up from the General Category
candidates; 3 from Scheduled Castes; and 4 from Scheduled Tribes.  Appellants
who belong to General Category, faced the selection process.  The result was
declared on 3.1.2008. Appellants found place in the merit list  but much below.
All the 13 vacancies in the said category were filled  according to the merit
list of General Category candidates. However, two  posts reserved for Scheduled
Castes candidates and four posts meant for  Scheduled Tribes candidates could
not be filled up for non availability of  suitable candidates.



5. Certain unsuccessful candidates approached the Delhi High Court by  filing
Writ Petition Nos. 2688/2008, 2913/2008 and 3932/2008 on the  ground that 13
vacancies came into existence between 29.2.2008 and  23.5.2008 i.e. during the
pendency of the selection process which could have  also been filled up from the
said select list in view of the judgment of this  Court in Malik Mazhar Sultan
& Anr. v. U.P. Public Service  Commission & Ors. (2007) 2 SCALE 159. The
High Court disposed of all  the petitions vide its judgment and order dated
3.10.2008 taking a view that  only three vacancies came into existence
subsequent to the date of  Advertisement which could have been filled up from
the said list. Out of the said three vacancies, two could be offered to General
Category candidates  and one to the Scheduled Caste candidate and issued
direction to appoint  two more candidates whose names appeared at Serial Nos.14
and 15 in  General Category Merit List. Hence, these appeals are for seeking
directions  to the respondents for offering appointment to the appellants also.

6. Shri Ranjit Kumar, learned senior counsel appearing for the appellants  has
submitted that the judgment in Malik Mazhar Sultan's case (supra)  was delivered
by this Court on 4.1.2007. A large number of directions had  been issued in the
said case and it also formulated the calendar for  conducting the examinations
for filling up the vacancies in the Judicial  Service. It also provided that
while determining the number of vacancies,  the concerned Authority would also
consider alongwith the existing  vacancies, as what would be the anticipated
vacancies that may arise within  one year due to retirement, due to elevation to
the High Court, death or  otherwise, say 10% of the number of posts; and to take
note of the  vacancies arising out of deputation of Judicial Officers to other
departments.  It also provided that the select list so prepared shall be valid
till new select  list is published. The examination is to be conducted every
year. The High  Courts were directed to give strict adherence to the aforesaid
schedule fixed  by this Court. So far as the Delhi High Court was concerned, it
was provided that the High Court would amend its calendar accordingly. In view
of the  above, it has been submitted that while making the advertisement, the
Delhi  High Court had not taken note of the anticipated vacancies which could be
available during the next year. As per the direction of this Court, as 13 more
vacancies came into existence, those vacancies must be filled up from the
select list so prepared. As the appellants are in the select list they should be
offered appointments.



7. On the contrary, Shri A. Mariarputham, learned senior counsel  appearing for
the respondents has vehemently opposed the appeals  contending that the law does
not permit filling up the vacancies over and  above the number of vacancies
advertised. Thirteen vacancies of the  General Category were advertised; the
same had been filled up according to  merit, therefore, selection process in
that respect stood exhausted. The  waiting list does not survive. The appellants
had not challenged the  advertisement in spite of the fact that the judgment in
Malik Mazhar  Sultan's case (supra) was delivered on 4.1.2007 and vacancies were
advertised on 19.5.2007. The appellants were not aggrieved for not offering  the
appointment to them, as they did not even approach the High Court for  any
relief. The Special Leave Petitions were filed at much belated stage on
24.10.2008, though the result had been declared on 3.1.2008, and appointments
had been made on 3.4.2008. The directions of the Court could  not supersede the
statutory rules as there was a direction to fill up the  vacancies as per the
existing statutory rules. Appointments had been made  according to law. Thus,
the appeals have no merit and are liable to be  dismissed.



8. We have considered the rival submissions made by learned counsel  for the
parties and perused the record.



9. It is a settled legal proposition that vacancies cannot be filled up over
and above the number of vacancies advertised as "the recruitment of the
candidates in excess of the notified vacancies is a denial and deprivation of
the constitutional right under Article 14 read with Article 16(1) of the
Constitution", of those persons who acquired eligibility for the post in
question in accordance with the statutory rules subsequent to the date of
notification of vacancies. Filling up the vacancies over the notified  vacancies
is neither permissible nor desirable, for the reason, that it amounts  to
"improper exercise of power and only in a rare and exceptional
circumstance and in emergent situation, such a rule can be deviated and  such a
deviation is permissible only after adopting policy decision based on  some
rational", otherwise the exercise would be arbitrary. Filling up of
vacancies over the notified vacancies amounts to filling up of future  vacancies
and thus, not permissible in law. (Vide Union of India & Ors. v.  Ishwar
Singh Khatri & Ors. (1992) Supp 3 SCC 84; Gujarat State  Deputy Executive
Engineers' Association v. State of Gujarat & Ors.  (1994) Supp 2 SCC 591;
State of Bihar & Ors. v. The Secretariat  Assistant S.E. Union 1986 &
Ors AIR 1994 SC 736; Prem Singh & Ors.  v. Haryana State Electricity Board
& Ors. (1996) 4 SCC 319; and Ashok  Kumar & Ors. v. Chairman, Banking
Service Recruitment Board &  Ors. AIR 1996 SC 976).



10. In Surinder Singh & Ors. v. State of Punjab & Ors. AIR 1998 SC  18,
this Court held as under:

 "A waiting list prepared in an examination conducted by the Commission
does not furnish a source of recruitment. It is operative only for the
contingency that if any of the selected candidates does not join then the person
from the waiting list may be pushed up and be appointed in the vacancy so caused
or if there is some extreme exigency the Government may as a matter of policy
decision pick up persons in order of merit from the waiting list. But the view
taken by the High Court that since the vacancies have not been worked out
properly, therefore, the candidates from the waiting list were liable to be
appointed does not appear to be sound. This practice, may result in depriving
those candidates who become eligible for competing for the vacancies available
in future. If the waiting list in one examination was to operate as an infinite
stock for appointment, there is a danger that the State Government may resort to
the device of not holding an examination for years together and pick up
candidates from the waiting list as and when required. The constitutional
discipline requires that this Court should not permit such improper exercise of
power which may result in creating a vested interest and perpetrate waiting list
for the candidates of one examination at the cost of entire set of fresh
candidates either from the open or even from service.....Exercise of such power
has to be tested on the touch- stone of reasonableness....It is not a matter of
course that the authority can fill up more posts than advertised."
(Emphasis added)



11. Similar view has been re-iterated in Madan Lal v. State of J & K &
Ors. AIR 1995 SC 1088; Kamlesh Kumar Sharma v. Yogesh Kumar  Gupta & Ors.
AIR 1998 SC 1021; Sri Kant Tripathi v. State of U.P. &  Ors. (2001) 10 SCC
237; State of J & K v. Sanjeev Kumar & Ors.  (2005) 4 SCC 148; State of
U.P. v. Raj Kumar Sharma & Ors. (2006) 3  SCC 330; and Ram Avtar Patwari
& Ors. v. State of Haryana & Ors.  AIR 2007 SC 3242).



12. In State of Punjab v. Raghbir Chand Sharma & Ors. AIR 2001 SC  2900,
this Court examined the case where only one post was advertised and  the
candidate whose name appeared at Serial No. 1 in the select list joined  the
post, but subsequently resigned. The Court rejected the contention that  post
can be filled up offering the appointment to the next candidate in the  select
list observing as under:-

       "With the appointment of the first candidate for the only post in
respect of which the consideration came to be made and select list prepared, the
panel ceased to exist and has outlived its utility and at any rate, no one else
in the panel can legitimately contend that he should have been offered
appointment either in the vacancy arising on account of the subsequent
resignation of the person appointed from the panel or any other vacancies
arising subsequently."



13. In Mukul Saikia & Ors. v. State of Assam & Ors. AIR 2009 SC  747,
this Court dealt with a similar issue and held that "if the requisition and
advertisement was only for 27 posts, the State cannot appoint more than the
number of posts advertised". The Select List "got exhausted when all
the 27  posts were filled". Thereafter, the candidates below the 27
appointed  candidates have no right to claim appointment to any vacancy in
regard to  which selection was not held. The "currency of Select List had
expired as  soon as the number of posts advertised are filled up, therefore, the
appointments beyond the number of posts advertised would amount to filling  up
future vacancies" and said course is impermissible in law.

14. In view of above, the law can be summarised to the effect that any
appointment made beyond the number of vacancies advertised is without
jurisdiction, being violative of Articles 14 and 16(1) of the Constitution of
India, thus, a nullity, inexecutable and unenforceable in law. In case the
vacancies notified stand filled up, process of selection comes to an end.
Waiting list etc. cannot be used as a reservoir, to fill up the vacancy which
comes into existence after the issuance of notification/advertisement. The
unexhausted select list/waiting list becomes meaningless and cannot be  pressed
in service any more.



15. In the instant case, as 13 vacancies of the General Category had been
advertised and filled up, the selection process so far as the General Category
candidates is concerned, stood exhausted and the unexhausted select list is
meant only to be consigned to record room.



16. So far as the submission made by Shri Ranjit Kumar that directions  issued
by this Court in Malik Mazhar Sultan (supra) had to be given effect  to is
concerned, the same requires consideration elaborately.

17. In All India Judges' Association & Ors. v. Union of India & Ors.
AIR 1993 SC 2493, several directions had been issued by this Court in  respect
of the service conditions of the Judicial Officers. In view thereof, a
notification dated 21st March, 1996 was issued appointing Justice K.J. Shetty
Commission to consider about their service conditions.

 18. In All India Judges' Association & Ors. v. Union of India & Ors.
AIR 2002 SC 1752, this Court considered various aspects of Justice Shetty
Commission Report and approved the same. However, the question arose as  to
whether the recommendations so accepted by this Court could be  implemented as
such or was it required to be incorporated in the statutory  rules governing the
service conditions of the Judicial Officers or alteration of  the rules
applicable to them? This Court held as under:  "We are aware that it will
become necessary for service and other rules to be amended so as to implement
this judgment...."

19. In Syed T.A. Naqshbandi & Ors. v. State of J & K & Ors. (2003) 9
SCC 592, this Court reconsidered the same issue while examining the
appointments to the post of District & Sessions Judges (Selection Grade) in
the State of Jammu & Kashmir and relying upon its earlier judgment in All
India Judges' Association (supra) held as under:

             "Reliance placed upon the recommendations of Justice
Jagannatha Shetty Commission or the decision reported in All India Judges' Assn.
v. Union of India or even the resolution of the Full Court of the High Court
dated 27-4- 2002 is not only inappropriate but a misplaced one and the
grievances espoused based on this assumption deserve a mere mention only to be
rejected. The conditions of service of members of any service for that matter
are governed by statutory rules and orders, lawfully made in the absence of
rules to cover the area which has not been specifically covered by such rules,
and so long as they are not replaced or amended in the manner known to law, it
would be futile for anyone to claim for those existing rules/orders being
ignored yielding place to certain policy decisions taken even to alter, amend or
modify them. Alive to this indisputable position of law only, this Court
observed at SCC p. 273, para 38, that "we are aware that it will become
necessary for service and other rules to be amended so as to implement this
judgment". Consequently, the High Court could not be found at fault for
considering the matters in question in the light of the Jammu and Kashmir Higher
Judicial Service Rules, 1983 and the Jammu and Kashmir District and Sessions
Judges (Selection Grade Post) Rules, 1968 as well as the criteria formulated by
the High Court. Equally, the guidelines laid down by the High Court for the
purpose of adjudging the efficiency, merit and integrity of the respective
candidates cannot be said to be either arbitrary or irrational or illegal in any
manner to warrant the interference of this Court with the same. Even de hors any
provision of law specifically enabling the High Courts with such powers in view
of Article 235 of the Constitution of India, unless the exercise of power in
this regard is shown to violate any other provision of the Constitution of India
or any of the existing statutory rules, the same cannot be challenged by making
it a justiciable issue before courts. The grievance of the petitioners, in this
regard, has no merit of acceptance". (Emphasis added)



20. In Malik Mazhar Sultan's case (supra), this Court made it clear that
appointments in Judicial Service have to be made as per the existing  statutory
rules. However, direction was issued to amend the rules for future  selections.
This Court considered the correspondences between various  authorities of the
States and also the decision taken in the conference of the  Chief Ministers and
Chief Justices held on 11.3.2006, and observed as  under:

         "... Before we issue general directions and the time schedule to
be adhered to for filling vacancies that may arise in subordinate courts and
district courts, it is necessary to note that selections are required to be
conducted by the concerned authorities as per the existing Judicial Service
Rules in the respective States/Union Territories...... As already indicated, the
selection is to be conducted by authorities empowered to do so as per the
existing Rules. ... 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...."
(Emphasis added).



21. Therefore, it is clear that this Court clarified that selection was to be
made as per the existing Rules and direction was issued for amending the
existing laws to adopt the recommendations of Justice Shetty Commission  as
approved by this Court for the future.



22. So far as the judgment of this Court in Hemani Malhotra v. High  Court of
Delhi & Ors. AIR 2008 SC 2103 is concerned, the facts are quite
distinguishable. The Delhi High Court did not frame any statutory rule
providing for cut-off marks in interview for assessing the suitability for
selection. After the selection process had been initiated, such a resolution
was adopted. Therefore, the basic issue for consideration before this Court  had
been as to whether it was permissible for the High Court to change the
selection criteria at the midst of the selection process. The Court placing
reliance upon its earlier judgments held that once the selection process starts,
it is not permissible for the competent authority to change the selection
criteria  and in that view observation was made that a fresh merit list is to be
prepared  ignoring the said resolution of the High Court taking cut-off marks in
interview. Undoubtedly, the Court had taken note of Justice Shetty  Commission
Report in this regard and held that such a criteria could not have  been
provided. In absence of any statutory rule governing a particular issue,
directions issued by this Court would prevail.



23. Therefore, it is evident from the aforesaid judgment that in spite of
acceptance of the recommendations made by Justice Shetty Commission,  this Court
insisted that the existing law/statutory rules in making the  appointment of
Judicial Officers be amended accordingly. In Syed  T.A.Naqshbandi (supra), this
Court repealed the contention which is being  advanced by the learned counsel
for the petitioners therein and the Court in  crystal clear words held that
appointments have to be made giving strict  adherence to the existing statutory
provisions and not as per the  recommendations made by Justice Shetty
Commission. Of course, in  absence of statutory rule to deal with a particular
issue, the High Courts are  bound to give effect to the directions issued by
this Court.

 24. The appointments had to be made in view of the provisions of the  Delhi
Higher Judicial Service Rules, 1970. The said rules provide for  advertisement
of the vacancies after being determined. The rules further  provide for
implementation of reservation policies in favour of Scheduled  Castes, Scheduled
Tribes and Other Backward Classes. As the reservation  policy is to be
implemented, a number of vacancies to be filled up is to be  determined,
otherwise it would not be possible to implement the reservation  policy at all.
Thus, in view of the above, the question of taking into  consideration the
anticipated vacancies, as per the judgment in Malik  Mazhar Sultan (supra),
which had not been determined in view of the  existing statutory rules could not
arise.



25. In view of above, we do not find any force in the submissions that the  High
Court could have filled vacancies over and above the vacancies  advertised on
19.5.2007, as per the directions issued by this Court in Malik  Mazhar Sultan's
case (supra). More so, no explanation could be furnished  by Shri Ranjit Kumar,
learned senior counsel for the appellants as to why the  appellants could not
challenge the advertisement itself, if it was not in  conformity with the
directions issued by this court in the said case.

 26. It has further been submitted on behalf of the appellants that the Delhi
High Court vide its judgment and order dated 3.10.2008 had issued  directions to
offer appointment to two persons implementing the said  judgment in Malik Mazhar
Sultan's case (supra) whose names appeared in  select list at SI. Nos. 14 and
15, and, as the High Court had implemented the  said directions, the appellants
could not be treated with such hostile  discrimination. Undoubtedly, the
directions had been issued to fill up two  vacancies over and above the
vacancies notified. However, that part of the  judgment is not under challenge
before us. In such a fact situation, it is  neither desirable nor permissible in
law to make any comment on that. A  person whose name appears in the select list
does not acquire any  indefeasible right of appointment. Empanelment at the best
is a condition of  eligibility for purpose of appointment and by itself does not
amount to  selection or create a vested right to be appointed. The vacancies
have to be  filled up as per the statutory rules and in conformity with the
constitutional  mandate. In the instant case, once 13 notified vacancies were
filled up, the  selection process came to an end, thus there could be no scope
of any  further appointment.

 27. In view of the above, we do not find any force in these appeals which  are
accordingly dismissed.

  ....................................

CJI.

  ........................................J.

                                      (DEEPAK VERMA)

 .........................................J.

                                      (Dr. B.S. CHAUHAN)

New Delhi,

February 1, 2010.

                                                                    REPORTABLE

 IN THE SUPREME COURT OF INDIA

                    CIVIL APPELLATE JURISDICTION

          SPECIAL LEAVE PETITION(C) NO. 28488 OF 2008

 Navin Kumar Jha ... Petitioner  Vs.

Lt. Governor & Ors. ... Respondents  With

                           SLP(C) No. 29248 of 2008

                                    JUDGMENT

Dr. B.S. CHAUHAN, J.

 In view of our judgment pronounced today in CA Nos........ of 2010 @ SLP(C)
Nos........ @CC Nos. 14852-14854 of 2008 (Rakhi Ray & Ors. vs. High Court of
Delhi  & Ors.), these Special Leave Petitions are dismissed.
................................CJI.

   .................................... J.

                                                  (DEEPAK VERMA)

 . .................................... J.

                                                  (Dr. B.S. CHAUHAN)

New Delhi,

February 1, 2010.