PANKJESHWAR SHARMA AND OTHERS versus STATE OF JAMMU & KASHMIR AND OTHERS

[2020] 13 S.C.R.

PANKJESHWAR SHARMA AND OTHERS

STATE OF JAMMU & KASHMIR AND OTHERS

(Civil Appeal No(s).3904-3905 of 2020)

BDECEMBER 03, 2020

[L. NAGESWARA RAO, HEMANT GUPTA ANDAJAY RASTOGI, JJ.]

Service Law – Irregular appointments – Negative equality –2nd Respondent-Director General of Police invited applications forCthe post of Sub-Inspector of Police (Executive) in the State – The2nd respondent under its own assumption published the select listprovince wise – In the first round of litigation, the unsuccessfulcandidates filed writ petition – In compliance of the order ofDivision Bench of the High Court, fresh redrawn State-wise meritDlist was notified which appointed 259 candidates and cancelled theappointment of 47 candidates – In the second round of litigation,the ousted candidates challenged the redrawn State-wise list – TheDivision Bench of the High Court directed that those who did notcome within the merit zone in the redrawn merit list cannot be allowedto continue – The said order was challenged in SLP by the oustedEcandidates – In the SLP, various interlocutory applications werefiled by total of 22 candidates for their impleadment – The SupremeCourt without examining the inter se dispute of the parties and takingnote of the statement made by Advocate General of the State on itsface value accommodated all the 47 ousted candidates and 22Fimpleaded candidates on the post of Sub-Inspector – In the thirdround of litigation, the candidates who were higher in the order ofmerit qua those 22 candidates filed writ petition on premise that thewrit petitioner were denied their ligitimate right of fair considerationbeing higher in the redrawn list vis-a-vis, the 22 candidates – TheSingle Judge of the High Court allowed the writ petition and heldGthat the writ petitioners had right of fair consideration in seekingappointment based on their order of merit – The Division Bench ofthe High Court set aside the order of the Single Judge and recordeda finding that the Supreme Court had exercised its power u/Art. 142of the Constitution – Before the Supreme Court, the appellantsH

contended that the appointment of 22 candidates was not legallysustainable and violative of Art.14 of the Constitution – Held: Theappointments are to be made strictly in the order of merit in terms ofthe select list prepared by the competent authority and anyappointment in contravention is in violation of Art.14 of theConstitution with proviso that if any appointments are madedeviating from the merit drawn by the competent authority inexceptional cases as being reflected in the instant case where therewas on-going litigation and subsequent selection was also held togive quietus to the on-going litigation – The same cannot beapproved – The said appointments are irregular and cannot be heldto be illegal appointments – Further, if an appointment is madeillegally or irregularly, the same cannot be made the basis of furtherappointment and erroneous decision cannot be permitted toperpetuate further error to the detriment of the general welfare ofthe public or considerable section – Art.14 of the Constitutiondoes not envisage negative equality – In the instant case, 22candidates have completed 12 years of service and have gainedrich experience in the field – In the given situation, the SupremeCourt is not inclined to disturb the appointment of 22 candidates –The reasoning of the High Court that appointments were made bythe Supreme Court u/Art. 142 of the Constitution is not approved.

Dismissing the appeals, the Court

HELD: 1. It is settled principle of service jurisprudenceand has been consistently followed by this Court that the rules ofrecruitment to various services under the State or to class ofposts under the State, the State is bound to follow the same andto have the selection of the candidates to be made as per thescheme of recruitment rules and appointments shall be madeaccordingly. At the same time, all the efforts shall be made forstrict adherence to the procedure prescribed under therecruitment rules. On the contrary, if any appointments are madebypassing the recruitment procedure known to law, will resultedin violation of Article 14 and 16 of the Constitution. This Court inState of U.P. and Others vs. Rajkumar Sharma and Others andlater in Arup Das and Others vs. State of Assam and Othersconsidered the question of filling up of vacancies over and abovethe number of vacancies advertised and held that the filling up of

ABC

Avacancies over and above the number of vacancies advertisedwould be violative of fundamental rights guaranteed underArticle 14 and 16 of the Constitution and the selectees could notclaim appointments as matter of right. This Court further heldthat even if in some cases appointments had been madeerroneously or by mistake, that did not confer any right ofBappointment to another person as Article 14 of the Constitutiondoes not envisage negative equality and if the State or its authorityhad committed mistake at any given stage, it cannot be forcedto perpetuate the said mistake under the writ jurisdiction of theHigh Court under Article 226 of the Constitution. In situationCwhere the posts in excess of those advertised had been filled upin extraordinary circumstances, instead of invalidating the excessappointments, the relief could be moulded in such manner soas to strike just balance keeping the interest of the State andthe interest of the person seeking public employment dependsupon the facts of each case for which no set standard can be laidDdown. [Para 24][210-F-H; 211-A-D]

2. Further submission made by the Senior counsel for theappellants that they are higher in the order of merit qua these 22candidates who were appointed by the 2nd respondent takingshelter of the order of this Court dated 10th May, 2007 is notElegally sustainable and violative of Article 14 of the Constitution.The submission in the first blush appears to be attractive but itlacks foundation for the reason that the appointments in theordinary course are to be made strictly in the order of merit interms of the select list prepared by the competent authority ascontemplated under the relevant statutory recruitment rules andFany appointment in contravention indeed is in violation of Article14 of the Constitution with proviso that if any appointments aremade deviating from the merit list drawn by the competentauthority in exceptional cases as being reflected in the instantcase where there was on-going litigation and subsequent selectionGwas also held to give quietus to the on-going litigation, still onprinciple cannot be approved by this Court, are irregularappointments and cannot be held to be illegal as claimed by theappellants. [Para 33][214-F-H-; 215-A-B]

3. It is also not the case of the appellants that they areamongst 22 candidates in the order of merit published by the 2ndH

respondent awaiting appointment in reference to anadvertisement dated 25th February, 1999 and if their submissionis accepted at the face value as prayed for, atleast the presentappellants may not get march over 22 candidates waiting in theorder of merit who in the ordinary course could claim appointmentto the post of Sub-Inspector and the action of the State inextending its concession which has been recorded under the orderof this Court dated 10th May, 2007 is indeed the mistake beingcommitted, still it cannot be forced by the person as alleged tobe aggrieved to perpetuate the said mistake. [Para 34][215-B-D]4. This Court in Union of India and Another vs. KartickChandra Mondal and Others observed that if something is beingdone or acted upon erroneously that cannot become the foundationfor perpetuating further illegality. If an appointment is madeillegally or irregularly, the same cannot be made the basis offurther appointment and erroneous decision cannot be permittedto perpetuate further error to the detriment of the general welfareof the public or considerable section. This has been theconsistent approach of this Court. [Para 35][215-D-E]

5. In Arup Das and Others vs. State of Assam and Others,this Court observed that “even if in some cases appointments hadbeen made by mistake or wrongly, that did not confer any right ofappointment to another person, as Article 14 of the Constitutiondoes not envisage negative equality and if the State had committeda mistake, it cannot be forced to perpetuate the said mistake.” [Para36][215-E-F]

6. It is indisputed that by the time this Court is called uponto decide the matter, the so-called 22 candidates against whomthere is lis raised by the present appellants, had completedalmost more than 12 years of service and thus having richexperience in the field and the subsequent selection has alsobeen held of the post of Sub-Inspector pursuant to anadvertisement issued in February, 2001 and the concession whichwas recorded of the Advocate General of the State by this Courtin its order dated 10th May, 2007 at given point of time alsoappears to be bonafide, to give quietus to the on-going litigationpending in Courts for sufficient long time and no other litigationat that given point of time was pending in the court of law, in the

Agiven situation, this Court is not inclined to disturb theappointment of those 22 candidates which has been questionedby the appellants/candidates in the present batch of appeals. [Para37][215-G-H; 216-A-C]

7. This Court is also of the view that the appointments ofB22 candidates made by the 2nd respondent vide orders dated23rd February, 2008 and 11th March, 2008 which has given riseto further litigation are irregular appointments and not inconformity to the recruitment rules, still what being prayed bythe appellants if accepted by this Court that will perpetuate theillegality which has been committed by the State-respondent andCnegative equality cannot be claimed to perpetuate further illegalityunder Article 226 of the Constitution of India. [Para 40][216-E-F]

Arup Das and Others vs. State of Assam and Others(2012) 5 SCC 559 : [2012] 1 SCR 445 – relied on.

DState of U.P. and Others vs. Rajkumar Sharma andOthers (2006) 3 SCC 330 : [2006] 2 SCR 877; SurinderKumar Sharma vs. State of Jammu and Kashmir andOthers decided on 16th October, 2000; Union of Indiaand Another vs. Kartick Chandra Mondal and OthersE(2010) 2 SCC 422 : [2010] 1 SCR 1099; Gujarat StateDy. Executive Engineers’ Assn. vs. State of Gujarat(1994) Supp 2 SCC 591 : [1994] 3 SCR 983; BuddhiNath Chaudhary vs. Abahi Kumar (2001) 3 SCC 328: [2001] 2 SCR 18 – referred to.

Case Law Reference

From the Judgment and Order dated 20.03.2013 of the DivisionBench of High Court of Jammu and Kashmir at Jammu in LPA (SW)H2/2011 and LPA (SW) No.4/2011.

With

C.A. Nos. 3923-3929, 3911-3917, 3910, 3932-3933, 3918, 3921-3922, 3934, 3930-3931, 3919, 3920, 3908-3909, 3907 of 2020

Paramjit Singh Patwalia, Sr. Adv., Rajshekhar Rao, KotlaHarshavardhan, Kshitij Maheshwari, Abhinav Mukerji, Ms. Renu Gupta,Ms. Diksha Rai, Sumit Singh, Navyug Sethi, P. D. Sharma, Rajeev Sharma,Anup Kumar, Mishra Saurabh, Arjun Garg, Ms. Rati Tandon, Ms. ShashiJuneja, M. Shoeb Alam, Satish Pandey, Anupam Raina, Sunando Rana,and Ms. Purnima Bhat, Advs. for the appearing parties.

The Judgment of the Court was delivered by

RASTOGI, J.

These present batch of appeals have been instituted by theunsuccessful appellants being aggrieved with the impugned judgmentdated 20[th] March, 2013 passed by the Division Bench of the High Courtof Jammu & Kashmir in LPA No.02/2011 and LPA No.04/2011 andplacing reliance on its judgment dated 12[th] March, 2013, cognate LPAsat later stage were disposed of.

2. The case has chequered history and in order to appreciatethe grievance of the appellants, it will be necessary to glance throughthe relevant background facts. It is the third round of litigation arisingout of the selection process held pursuant to an advertisement(No.Pers/Rectt/SI/EX-99/A-405) dated 25[th] February, 1999 issued bythe 2nd respondent-Director General of Police, J&K State invitingapplications for the post of Sub-Inspector of Police (Executive), the postwhich is included in the Schedule appended to the J&K Police (Executive)Rules to be filled by open selection in terms of the procedure prescribedunder the Rules.

3. Admittedly, it is neither provided in the scheme of Rules normentioned in the advertisement notice that the merit list of the candidatesbased on the written and viva-voce test is to be separately prepared forthe Provinces of Jammu & Kashmir. It reveals from the record that thelast selected candidate from Jammu Province secured 56 marks whereas,in Kashmir Province, the last selected candidate secured 50 marks. The2nd respondent under its own assumption published the select list oftotal candidates of 252 Province-wise i.e. separately for Jammu &Srinagar on 23[rd] April, 2000.

EFG

AFirst round of litigation

4. The unsuccessful candidates challenged the selection processby filing SWP No.567/2000[1] on manifold grounds inter alia that the selectlist which was prepared Province-wise is not legally permissible and itought to have been prepared as one select list for the whole of the StateBof Jammu & Kashmir as the post of Sub-Inspector is State cadre postand therefore, the selection ought to have been made by treating theState as unit and not on the basis of residence of the candidates ofJammu & Kashmir Provinces.

5. The writ petitioners succeeded in persuading and the learnedCSingle Judge by judgment and order dated 16[th] October, 2000 allowedthe writ petitions with the direction that the select list be prepared afreshof the State (J&K) and those who secured 50 or more marks in therevised select list be considered for appointment without disturbing theappointments already made. Against the order of the learned Single Judge,State-respondent filed LPAs before the Division Bench of the High CourtDand the Division Bench by its judgment dated 19[th] August, 2002 modifiedthe order of the learned Single Judge with the direction to redraw themerit list State-wise and on redrawing the merit list, if the candidateswho have already been selected/appointed and come within the meritzone, they should not be disturbed but their seniority would be determinedEin accordance with their placement in the order of merit which would befinally prepared. The above order of the Division Bench dated 19[th]August, 2002 was the subject matter of challenge in SLP(C) No.24798/2002 which came to be dismissed by this Court under order dated 10thFebruary, 2004.F6. In compliance of the order of the Division Bench dated19[th] August, 2002, fresh redrawn State-wise merit list dated 19[th] May,2004 came to be notified by the 2[nd] respondent appointing 259 candidatesand at the same time, cancelled the appointment of 47 candidates whowere already in service since their names did not find place in the revisedmerit list at the State level.G

Second round of litigation

7. That the ousted candidates approached the learned Single Judgeof the High Court by filing writ petition challenging the redrawn State-

H1 Surinder Kumar Sharma vs. State of Jammu and Kashmir and Ors.

wise merit list dated 19[th] May, 2004 and the Learned Single Judge by itsorder dated 24[th] May, 2004 issued interim directions to allow such oustedcandidates to continue in service until the next date of hearing. Meanwhile,contempt proceedings being COA(LPASW) No.22/2004 were alsoinitiated against the 2nd respondent for non-compliance of the order ofthe Division Bench dated 19[th] August, 2002 and against the continuationof such 47 ousted candidates in the service. The Division Bench of theHigh Court by its order dated 03[rd] December, 2004 disposed of thecontempt petition with direction that “those who did not come withinthe merit zone in the re-drawn merit list cannot be allowed to continueand if any such person is being so continued, he will be removed asalready directed by the order dated 19.05.2004.”

8. That came to be challenged in SLP at the instance of the44 ousted candidates who have been directed to be removed from serviceby the Division Bench by order dated 03[rd] December, 2004. Variousinterlocutory applications by total of 22 candidates were filed for theirimpleadment before this Court in the pending Special Leave Petitionwhich was later converted into Civil Appeal No.4758/2006. This Courtby its order dated 10[th] May, 2007 without examining the inter se disputeof the litigant parties and taking note of the statement made by the learnedAdvocate General of the State on its face value that all the 47 oustedcandidates who are likely to loose their job as result of the order of theHigh Court dated 03[rd] December, 2004 passed in contempt petition andsuch of 22 impleaded candidates on filing of their interlocutory applicationsbefore this Court, will be accommodated on the post of Sub-Inspector,disposed of the appeal with the following order:-

“Mr. Altaf H. Nayak, learned Advocate General submits that allthe 47 petitioners who are likely to go out of job as result of theimpugned order passed by the High Court and 22 respondentsherein will be accommodated on the post of Sub-Inspector. Hefurther submits that all the 47 petitioners who were selected onaccount of impugned selection and are presently working will beallowed to continue on their posts. In view of this statement madeby learned Advocate General, we do not think we need todetermine any legal question involved in this matter. Consequentlythe Appeal stands disposed of in view of the statement made bylearned Advocate General.”

A9. That apart from the 47 ousted candidates who were earlier inthe order of merit but could not find place because of the merit list beingredrawn in purported compliance of the directions made by the HighCourt in its order dated 19[th] August, 2002, the 2[nd] respondent appointed22 candidates vide its orders dated 23[rd] February, 2008 and 11[th] March,2008. It reveals from the record that these 22 candidates were muchBlower in the redrawn merit list and their placement in the order of meritwas not brought to the notice of this Court and that gave rise to furtherlitigation.

Third round of litigation

C10. Some of the left out candidates who were higher in the orderof merit qua these 22 candidates who were appointed by the 2[nd]respondent vide orders dated 23[rd] February, 2008 and 11[th] March, 2008under the so-called alleged compliance of the order of this Court dated10[th] May, 2007, approached the High Court by filing of writ petitionbeing SWP No.1084/2008 and SWP No.1145/2008 on the premise thatDthe writ petitioners were denied their legitimate right of fair considerationbeing higher in the redrawn merit list vis-a-vis, the 22 persons who wereindisputedly less meritorious still appointed and action of the State is inviolation of the statutory rules and is also denial of equal opportunity inseeking appointment on the envil of Article 14 of the Constitution.E11. It reveals from the record that such of the 22 candidates of

11. It reveals from the record that such of the 22 candidates ofwhom reference has been made in the order of this Court dated 10thMay, 2007, majority of them were lower in the order of merit qua thecandidates/writ petitioners who were contesting their right claiming equaland fair opportunity for seeking appointment as per their placement inFthe order of redrawn merit. The learned Single Judge by order dated26[th] August, 2010 allowed the writ petitions with the direction that anyappointment made on the basis of concession made by the learnedAdvocate General of the State, would not deprive the legitimate claim ofthe writ petitioners being higher in the order of merit from seekingappointment to the post of Sub-Inspector qua these 22 candidates andGthey indeed have right of fair consideration in seeking appointmentbased on their order of meritthat gave rise to filing of LPA No.02/2011and cognate appeals before the Division Bench of the High Court at theinstance of the persons aggrieved.

12. These batch of appeals were disposed of by the Division BenchHby its judgment dated 12[th] March, 2013 setting aside the judgment of the

learned Single Judge dated 26[th] August, 2010. Relying upon the saidjudgment of the Division Bench dated 12[th] March, 2013, other cognateappeals were at later stage decided by the Division Bench and thatbecame the subject matter of challenge in appeals before us.

13. Mr. Paramjit Singh Patwalia, learned Senior counsel for theappellants submits that the order of this Court dated 10[th] May, 2007merely recorded the concession made by the learned Advocate Generalof the State and it has been completely misconstrued by the DivisionBench of the High Court in holding that as the order has been passed bythis Court in exercise of its power under Article 142 of the Constitutionto do complete justice, it is not open to question in the collateralproceedings.

14. Learned Senior counsel further submits that by appointingsuch 22 persons as Sub-Inspectors who had been nowhere in the redrawnmerit list prepared pursuant to an advertisement dated 25[th] February,1999, at least right of the appellants of fair consideration in seekingappointment who admittedly placed higher in the order of redrawn meritlist could not have been divested in taking defence to the order of thisCourt dated 10[th] May, 2007 and such appointments made by therespondents of 22 persons as Sub-Inspectors is not only in violation ofthe statutory recruitment rules but also in violation of Article 14 of theConstitution are unsustainable and dehors the rules.15. Learned Senior counsel further submits that there is no delayor latches which could be attributed to the present appellants as few ofthem earlier approached the Court at the initial stage when the selectionprocess came to be questioned in the year 2000 but they were primarilyaggrieved when 22 candidates were offered appointment by the State-respondent under its orders dated 23[rd] February, 2008 and 11[th] March,2008 as they are nowhere in the order of redrawn merit list prepared bythe State-respondent in compliance of the judgment of the Division Benchof the High Court dated 19[th] August, 2002 in the first round of litigationand in the given circumstances, they cannot be said to be the fencesitters as observed by the Division Bench in the impugned judgment.

16. Learned Senior counsel for the appellants has made furtherfeeble attempt to justify that there are 26 appellants who are before thisCourt assailing the impugned judgment of the Division Bench of theHigh Court in the instant proceedings and 10 of the appellants are

Apresently serving as Head Constables/Constables in Jammu & KashmirPolice and 9 are serving in various Government departments and only 7of the appellants are such who are employed in private sector and whatbeing contended by the appellants if not acceded to by this Court andpermitting the persons who are lower in merit to continue asSub-Inspectors, will be heartburn and mental agony to them and atBleast the on-going injustice with them ought not to be permitted to continue.He furthermore submits that there will be no financial implications to therespondents as the appellants are not claiming any back wages and therestill exists to their information more than 100 vacant posts ofSub-Inspectors in Jammu & Kashmir and the present appellants canCalso be accommodated without disturbing these 22 candidates who wereappointed as Sub-Inspectors pursuant to an advertisement dated 25thFebruary, 1999.

17. The appellant in SLP(C) No.34564 of 2014 was selected in asubsequent selection for the post of Sub-Inspector pursuant to anDadvertisement issued in February, 2001 and was appointed vide orderdated 01[st] February, 2002 and on acceptance of what being prayed byhim, he will be entitled for seniority and consequential benefits from 23[rd]April, 2000 and according to him, that may not disturb even theappointments which are made by the respondent of 47 plus 22 personsin respect of whom grievance has been raised by the appellants in theEinstant proceedings.

18. Per contra, while supporting the impugned judgment of theDivision Bench of the High Court, learned counsel for the respondentssubmits that 47 ousted candidates whose services were terminated afterthe redrawn merit list was published, were initially allowed to continueFon the strength of the interim order passed by the learned Single Judgeof the High Court and during pendency of the litigation, such 47 oustedcandidates have been continuously working in the department right fromtheir appointment in the year 2000 and the department had incurredhuge expenses on their training courses. Besides this, the said 47Gcandidates have taken part in anti-insurgency operations in the Stateand as such there were apprehension of threat to their life. The Stateaccordingly wanted to retain them and when the matter was listed beforethis Court in the earlier round of litigation on 10[th] May, 2007, the difficultieswere pointed out to this Court and it was conceded that in case theappointment of such 47 candidates is saved, there were 22 vacanciesHavailable and such 22 applicants were not only became party but havebeen litigating since the year 2000 and in the given circumstances, it wasconsidered appropriate that in order to settle the issue one for all and tosum up the on-going litigation pending for the last eight years andsubsequent selections were also held for the post of Sub-Inspectorpursuant to an advertisement notified in February, 2001, 22 suchcandidates may be accommodated along with 47 ousted candidates whowere allowed to continue since the year 2000. In the given situation, thestatement was made by the learned Advocate General of the State underthe bonafide impression that it will at least give quietus to the on-goingbattle between the selected candidates inter se pending since the year1999.

19. Learned counsel further submits that it is not the case of theappellants that they are the senior most 22 candidates in the order ofredrawn merit list, who have been left over from consideration forappointment and also informed that there are good number of candidateswho are higher in the order of merit qua the present appellants in theredrawn select list which was prepared pursuant to direction of theHigh Court in the first round of litigation and the candidates with whomthe present appellants had lis have been appointed in the year 2008and have served for more than 12 years and further submits that whathas been contended by the appellants if accepted by this Court theappointments are to be made strictly in the order of redrawn merit list,against 22 vacancies which are in dispute, majority of appellants maynot find their name in queue in seeking appointment as they are not thesenior most 22 candidates in the order of redrawn merit deprived fromconsideration for appointment and submits that in the peculiar facts andcircumstances, what has been observed by the High Court in the impugnedjudgment needs no further interference.

20. We have heard the counsel for the parties and with theirassistance perused the material on record.

21. Unfortunately, the advertisement to the post of Sub-Inspectorwhich was published by the 2nd respondent way back on 25[th] February,1999 with the condition that one has not crossed the age of 28 years ason 01[st] January, 1999, after 21 years down the line, is still has not beenfinalised and we are pondering over the inter se dispute of the candidateswho had participated in the selection process must have crossed the age

[2020] 13 S.C.R.

Aof 43-47 years under the belief that they may still be considered forappointment.

22. In the first round of litigation, when the controversy initiallyarose as to whether the merit list Province-wise in Jammu & Kashmircould have been prepared by the respondent and how far it can held toBbe in conformity with the scheme of rules, while examining thecontroversy, the learned Single Judge categorically observed that all thosecandidates who have secured less than 50 marks have no right to contendthat they have been arbitrarily ignored on the basis of Province-wiseselection and the claim of those candidates who have obtained 50 ormore than 50 marks was left open to be considered by the learned SingleCJudge in the proceedings initially in the year 2000. The further disputewhich was revisited/reviewed/re-examined by the Court at the later stagein the second round of litigation primarily confined to the candidates whoobtained 50 or more than 50 marks under the zone of consideration forbeing considered for appointment on the post of Sub-Inspector pursuantDto an advertisement dated 25[th] February, 1999.23. The indistputed facts which manifest from the record as noticedabove is that the advertisement came to be notified by the 2nd respondentdated 25th February, 1999 holding selections for the post of Sub-Inspectorand the present batch of appeals are preferred by the appellants/Eparticipants being higher in the order of merit qua those 22 candidateswho were appointed by the 2nd respondent vide orders 23[rd] February,2008 and 11[th] March, 2008 on the basis of the concession made by thelearned Advocate General of the State recorded under order dated 10[th]May, 2007 of this Court, with the claim that they have been deprivedfrom fair consideration in seeking appointment.F

24. It is settled principle of service jurisprudence and has beenconsistently followed by this Court that the rules of recruitment to variousservices under the State or to class of posts under the State, the Stateis bound to follow the same and to have the selection of the candidatesto be made as per the scheme of recruitment rules and appointmentsGshall be made accordingly. At the same time, all the efforts shall bemade for strict adherence to the procedure prescribed under therecruitment rules. On the contrary, if any appointments are madebypassing the recruitment procedure known to law, will resulted in violationof Article 14 and 16 of the Constitution. This Court in State of U.P. and

Others vs. Rajkumar Sharma and Others[2] and later in Arup Dasand Others vs. State of Assam and Others[3] considered the question offilling up of vacancies over and above the number of vacancies advertisedand held that the filling up of vacancies over and above the number ofvacancies advertised would be violative of fundamental rights guaranteedunder Article 14 and 16 of the Constitution and the selectees could notclaim appointments as matter of right. This Court further held thateven if in some cases appointments had been made erroneously or bymistake, that did not confer any right of appointment to another personas Article 14 of the Constitution does not envisage negative equality andif the State or its authority had committed mistake at any given stage,it cannot be forced to perpetuate the said mistake under the writjurisdiction of the High Court under Article 226 of the Constitution. In asituation where the posts in excess of those advertised had been filledup in extraordinary circumstances, instead of invalidating the excessappointments, the relief could be moulded in such manner so as tostrike just balance keeping the interest of the State and the interest ofthe person seeking public employment depends upon the facts of eachcase for which no set standard can be laid down.

25. Initially when the selections were challenged in the year 2000,it was in reference to the policy decision taken by the State Governmentin preparing two separate merit lists of Jammu & Kashmir Provincesarising from common advertisement dated 25th February, 1999 and itwas indeed in clear contravention to the scheme of rules and the learnedSingle Judge of the High Court categorically observed that as the key ofmarks for Jammu & Kashmir Provinces are different and 50 marksbeing the lower among the two Provinces secured by the last candidate,the limited controversy examined by the learned Single Judge of theHigh Court was in the four corners confining it to the persons/candidateswho obtained 50 or more marks in the selection process and still deprivedfrom consideration for appointment.

26. To make this fact further clear, it was observed by the learnedSingle Judge in Surinder Kumar Sharma vs. State of Jammu andKashmir and Others[4] decided on 16[th] October, 2000 i.e. the first roundof litigation. The controversy center around is reproduced hereunder:-

2 State of U.P. and Others vs. Rajkumar Sharma and Others (2006) 3 SCC 330

3 Arup Das and Others vs. State of Assam and Others (2012) 5 SCC 559

4 SWP No.576/2000 titled Surinder Kumar Sharma vs. State of Jammu and Kashmir

212SUPREME COURT REPORTS

A“Therefore, all those candidates who have received less than 50marks have no right to contend that they have been wrongly ignoredon the basis of Province wise selection. The claims of thosecandidates who have obtained 50 or more than 50 marks wouldbe considered in the light of this judgment.”

B27. At the outset, those who secured less than 50 marks, theirclaim of consideration for appointment was eliminated by the learnedSingle Judge even in the first instance when the controversy initiallyraised by the candidates affected at very threshold after the select listwas notified by the 2[nd] respondent in the year 2000 and if any personwas aggrieved on account of his non-selection, secured 50 or more thanC50 marks being deprived from fair consideration in seeking appointment,cause of action was accrued to him at such given point of time in thefirst place, when examined and decided by the learned Single Judge ofthe High Court by its judgment dated 16[th] October, 2000 and directedthe State authorities to consider all such candidates for appointment whoDhave secured 50 or more than 50 marks if left out from being consideredfor appointment as their right of fair consideration is being seriouslyjeopardized which was although modified by the Division Bench at thelater stage by its judgment dated 19[th] August, 2002 as consequence, 47candidates were going to be affected in the first round of litigation. Thelater controversy remained confined to examine the fate of those 47Eousted candidates who could be over and above the candidates who areto be appointed in the redrawn merit list of the State of Jammu & Kashmir,to be adjusted despite being appointed and working for sufficient timedeserve indulgence of the Court.

28. That further litigation was raised at the behest of 47 oustedFcandidates, it has come on record that they were allowed to continue inthe first instance under the interim order as they were already workingfor quite some time and finally their controversy reached to this Court inthe second round of litigation and since much water has flown in theGanges by that time and the alleged 47 ousted candidates were workingGright from the year 2000 and the department had incurred huge expenseson their training courses and they had taken part in anti-insurgencyoperations in the State and the State was concerned about them as therewere apprehension of threat to their life, under these circumstances, theState has shown its intention to retain them in service.

29. It reveals from the record that the Government intended togive quietus to the on-going litigation and in the second round of litigationin this Court as there were 22 interlocutory applications filed by theapplicants in the pending proceedings, who were claiming theirappointment, under the bonafide belief that certain vacancies are availablewith the State and if such 22 candidates who have filed their applicationsfor impleadment in the pending proceedings in this Court if taken careof, atleast there will be quietus to the on-going litigation and that appearsto be the reason to which the learned Advocate General of the Statemade statement before this Court that not only 47 ousted candidateswho have been appointed and served for the last 7 years, such 22candidates may also be accommodated on the post of Sub-Inspectorand after recording the statement made by the learned Advocate Generalof the State, there left no legal issue to be examined in the pending civilappeal and on the basis of the alleged concession made by the learnedAdvocate General, this Court by order dated 10th May, 2007 disposedof the appeal.30. It is true that ordinarily in the open selection, appointmentsare to be made strictly in the order of merit in terms of the procedureprescribed under the relevant statutory recruitment rules or in absenceunder the guidelines if prescribed, still if appointments are made forexceptional reasons deviating from the merit list which ordinarily is notpermissible but in unforeseen exigencies, if the State with bonafideintention to give quietus to the on-going litigation pending for the lasteight years extended its concession to adjust such 22 candidates whoare under litigation for long time with no malafides or bias being imputedto the State action could have been possible only if those who are litigatingand agitating their grievance reached upto this Court cannot be held tobe faulted.

31. Mr. P.S. Patwalia, learned Senior counsel for the appellantshas pointed out certain instances and it is also reflected from the writtensubmission that such of the candidates who have secured 50 or moremarks have also been deprived from consideration in seeking appointmentbut the statement of fact does not hold factually correct for the reasonthat in the first round of litigation, the learned Single Judge categoricallyobserved that the dispute remain confined to such of the candidates whohave secured 50 or more than 50 marks in the selection process held bythe respondent pursuant to an advertisement dated 25[th] February, 1999.

AIn the given circumstances, if the candidates who have secured 50 ormore marks and still left from consideration for appointment, their rightaccrued to make their claim when the judgment was initially pronouncedby the learned Single Judge dated 16th October, 2000 although modifiedby the Division Bench in the first round of litigation by judgment andorder dated 19th August, 2002 but none of the so-called appellants/Bcandidates who have secured 50 or more than 50 marks ever made theirclaim in seeking appointment at later stage and what is reflected fromthe record that there were only 47 ousted candidates who secured 50 ormore than 50 marks and if the present appellants who have secured 50or more marks as claimed by them were not there within 47 oustedCcandidates, no grievance at belated stage could be raised and open tobe entertained and deserves rejection.

32. The submission further made by learned Senior counsel forthe appellants that the finding recorded by the Division Bench of theHigh Court that the appointment of these 22 candidates against whomDthere was grievance raised by the appellants, are being appointed bythis Court in exercise of its power under Article 142 of the Constitutionfor doing complete justice, is not reflected from the order of this Courtdated 10[th] May, 2007. We find substance in what being urged and holdthat the order of this Court dated 10[th] May, 2007 was not under Article142 of the Constitution and it was clearly reflected from the order itselfEthat it was passed on the basis of the concession made by the learnedAdvocate General of the State and recorded by this Court in its orderdated 10[th] May, 2007.

33. Further submission made by the learned Senior counsel forthe appellants that they are higher in the order of merit qua these 22Fcandidates who were appointed by the 2[nd] respondent taking shelter ofthe order of this Court dated 10[th] May, 2007 is not legally sustainableand violative of Article 14 of the Constitution. The submission in the firstblush appears to be attractive but it lacks foundation for the reason thatthe appointments in the ordinary course are to be made strictly in theGorder of merit in terms of the select list prepared by the competentauthority as contemplated under the relevant statutory recruitment rulesand any appointment in contravention indeed is in violation of Article 14of the Constitution with proviso that if any appointments are madedeviating from the merit list drawn by the competent authority inexceptional cases as being reflected in the instant case where there wasHon-going litigation and subsequent selection was also held to give quietusto the on-going litigation, still on principle cannot be approved by thisCourt, are irregular appointments and cannot be held to be illegal asclaimed by the appellants.

34. It is also not the case of the appellants that they are amongst22 candidates in the order of merit published by the 2[nd] respondentawaiting appointment in reference to an advertisement dated 25[th] February,1999 and if their submission is accepted at the face value as prayed for,atleast the present appellants may not get march over 22 candidateswaiting in the order of merit who in the ordinary course could claimappointment to the post of Sub-Inspector and the action of the State inextending its concession which has been recorded under the order ofthis Court dated 10[th] May, 2007 is indeed the mistake being committed,still it cannot be forced by the person as alleged to be aggrieved toperpetuate the said mistake.

35. This Court in Union of India and Another vs. KartickChandra Mondal and Others[5 ]observed that if something is being doneor acted upon erroneously that cannot become the foundation forperpetuating further illegality. If an appointment is made illegally orirregularly, the same cannot be made the basis of further appointmentand erroneous decision cannot be permitted to perpetuate further errorto the detriment of the general welfare of the public or considerablesection. This has been the consistent approach of this Court.

36. In Arup Das and Others vs. State of Assam and Others[6],this Court observed that “even if in some cases appointments hadbeen made by mistake or wrongly, that did not confer any right ofappointment to another person, as Article 14 of the Constitutiondoes not envisage negative equality and if the State had committeda mistake, it cannot be forced to perpetuate the said mistake.”

37. It is indisputed that by the time we are called upon to decidethe matter, the so-called 22 candidates against whom there is lis raisedby the present appellants, had completed almost more than 12 years ofservice and thus having rich experience in the field and the subsequentselection has also been held of the post of Sub-Inspector pursuant to an

5 Union of India and Another vs. Kartick Chandra Mondal and Others (2010) 2 SCC422

6 Arup Das and Others vs. State of Assam and Others (2012) 5 SCC 559

Aadvertisement issued in February, 2001 and the concession which wasrecorded of the learned Advocate General of the State by this Court inits order dated 10[th] May, 2007 at given point of time also appears to bebonafide, to give quietus to the on-going litigation pending in Courts forsufficient long time and no other litigation at that given point of time waspending in the court of law, in the given situation, this Court is not inclinedBto disturb the appointment of those 22 candidates which has beenquestioned by the appellants/candidates in the present batch of appeals.

38. In Gujarat State Dy. Executive Engineers’ Assn. vs. Stateof Gujarat[7], this Court recorded finding that appointments given underthe “wait list” were not in accordance with law. It, however, refused toCset aside such appointments in view of length of service (five years andmore).

39. In Buddhi Nath Chaudhary vs. Abahi Kumar[8], this Courthas observed that appointments were held to be improper. But this Courtdid not disturb the appointments on the ground that the incumbents hadDworked for several years and had gained good experience. “We haveextended equitable considerations to such selected candidates who haveworked on the post for long period”.

40. We are also of the view that the appointments of 22 candidatesmade by the 2nd respondent vide orders dated 23[rd] February, 2008 andE11[th] March, 2008 which has given rise to further litigation are irregularappointments and not in conformity to the recruitment rules, still whatbeing prayed by the appellants if accepted by this Court that willperpetuate the illegality which has been committed by the State-respondent and negative equality cannot be claimed to perpetuate furtherFillegality under Article 226 of the Constitution of India.

41. To conclude, we do not approve the reasoning of the HighCourt that appointments of these 22 candidates have been made underArticle 142 of the Constitution to do complete justice but after the matterhas been dilated by us, we are not inclined to disturb the appointment ofGthese 22 candidates against whom grievance has been raised by theappellants in the present batch of appeals.

7 Gujarat State Dy. Executive Engineers’ Assn. vs. State of Gujarat

(1994) Supp 2 SCC 591

8 Buddhi Nath Chaudhary vs. Abahi Kumar (2001) 3 SCC 328

42. Consequently, we find no substance in the present appealsand are accordingly dismissed. No costs.

43. Pending application(s), if any, stand disposed of.

Ankit Gyan

Appeals dismissed.