VIVEK KAISTH & ANR versus THE STATE OF HIMACHAL PRADESH & ORS
[2023] 16 S.C.R. 613, Supreme Court of India, 2023
Outcome: Disposed off
Segment: Issues
[2023] 16 S.C.R. 613 : 2023 INSC 1007
613
CASE DETAILS
VIVEK KAISTH & ANR
v.
THE STATE OF HIMACHAL PRADESH & ORS
(Civil Appeal Nos. 6233-6234 of 2023)
NOVEMBER 20, 2023
[C.T. RAVIKUMAR AND SUDHANSHU DHULIA, JJ.]
HEADNOTES
Issue for consideration: The names of the two appellants herein were 
included later in the ﬁ nal selection list vide notiﬁ cation dated 27.12.2013 
issued by the State Government. The High Court has held these two 
selections, and consequently the appointments to be illegal and these have 
been quashed. This Court has to examine the validity of the selection and 
appointment of these two appellants to the post of Civil Judge (Junior 
Division), and whether they should now be unseated from their judicial 
oﬃ  ce.
Service Law – Recruitment – Advertisement – An advertisement 
was issued on 01.02.2013 whereby the State Commission invited 
applications against the eight vacancies for the post of Civil Judge 
(Junior Division) in Himachal Pradesh Judicial Service – After 
examination, ﬁ nal list was declared – Names of the two appellants 
herein were included later – High Court held these to selections illegal 
– Propriety:
Held: The position of law as it stands, once clear and anticipated 
vacancies have been advertised, appointments can only be made on 
these vacancies – Vacancies which could not be anticipated before the 
date of advertisement, or the vacancies which did not exist at the time of 
advertisement, are the vacancies for the future i.e., next
selection process – In 
the instant case, it is clear that the appointment of the appellants was made 
on posts which were not advertised and in fact did not even exist at the time 
when the advertisement was made – The anomaly made in the selection/
appointment of these two candidates is quite apparent – The ﬁ ndings of
614 
SUPREME COURT REPORTS 
[2023] 16 S.C.R.
the High Court were right – However, what the High Court missed was the 
context, the facts and the circumstances of the case – The two appellants 
have already served as Judicial Oﬃ  cers for nearly 10 years – Meanwhile, 
they have also been promoted to the next higher post of Civil Judge (Senior 
Division) – In this process of their selection and appointment, nothing 
was brought to notice of this Court which may suggest any favouritism, 
nepotism or so-called blame as to the conduct of these two appellants, in 
securing these appointments – What the High Court never answered was 
as to how much of this blame of “illegal” selection and appointment would 
rest on the High Court (on its administrative side) – Though undoubtedly 
the Commission as the selecting authority must ultimately bear the brunt, 
yet the blame must be shared equally by the State Government and the High 
Court – The judicial oﬃ  cers in question now have a rich experience of 10 
years of judicial service behind them – Therefore, unseating the present 
appellants from their posts would not be in public interest – The appellants 
were appointed from the list of candidates who had successfully passed 
the written examination and viva voce and they were in the merit list – For 
the reasons stated above, in order to do complete justice and in exercise of 
powers u/Art. 142 of the Constitution of India, the order of the High Court 
as far as it quashes the
selection and appointment of the appellants is set 
aside. [Paras 28, 29, 31,32,36,37]
LIST OF CITATIONS AND OTHER REFERENCES
Sivanandan C.T. and Ors. v. High Court of Kerala and Ors. (2023) 
SCC OnLine SC 994 – relied on.
Shweta Dhingra v. State of H.P. & Ors. (2011) SCC OnLine 
HP 3566; Malik Mazhar Sultan and Another v. U.P. Public Service 
Commission and Others (2008) 17 SCC 703; Malik Mazhar Sultan and 
Another v. Uttar Pradesh Public Service Commission and Others (2009) 
17 SCC 24; High Court of Kerala v. Reshma A. and Others [2021] 1 
SCR 289: (2021) 3 SCC 755; Gujarat State Dy. Executive Engineers’ 
Assn. v. State of Gujarat (1994) Supp 2 SCC 591; Hoshiyar Singh v. 
State of Haryana (1993) Supp. 4 SCC 377; State of Bihar v. Secretariat 
Asstt. Successful Examinees’ Union [1993] 3 Suppl. SCR 134:(1994) 1 
SCC 126; State of Bihar v. Madan Mohan Singh (1994) Supp 3 SCC 
308; Surinder Singh & Ors. v. State of Punjab & Anr. [1997] 3 Suppl.
615
SCR 538:(1997) 8 SCC 488; Rakhi Ray & Ors. v. High Court of Delhi 
& Ors. [2010] 2 SCR 239:(2010) 2 SCC 637 – referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED 
ORDER AND APPEARANCES
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.6233-6234 
of 2023.
From the Judgment and Order dated 20.09.2021 of the High Court of 
Himachal Pradesh at Shimla in CWP Nos.3319 and 4498 of 2014.
With
Civil Appeal Nos.6236, 6235 And 6237 of 20023.
Appearances:
Paramjit Singh Patwalia, Harin P. Raval, P.V. Surendranatyh, Sr. Advs., 
Amit Kumar Singh, Ms. K Enatoli Sema, Ms. Chubalemla Chang, Prang 
Newmai, Biju P Raman, Gauravjit Singh Patwalia, Amit Verma, Ms. Swati 
Sood, Dipanshu Krishnan, Anshuman, Ms. Damini Chawla, Vishwanathan 
Iyer, Anand Sharma, Arman Sharma, Ms. Jyoti Mehra, Ms. Pooja Sharma, 
Sandeep Jindal, D.K. Thakur, Rajeev Kumar Gupta, Tavleen Singh, Joginder 
Mann, Ms. Niharika, Dvyansh Thakur, Bimlesh Kumar Singh, Kanwal 
Chaudhary, Chitranshul A. Sinha, Ms. Radhika Gautam, Ms. Shrestha 
Narayan, Ms. Shreya Bansal, Abhishek Singh Chauhan, Tushar Bakshi, Ms. 
Neelam Singh, Prabhat Kumar Rai, Christopher Dsouza, Subhash Chandran 
K.R., Ms. Krishna L.R., Sawan Shukla, Ms. Lekha Sudhakaran, Advs for 
the appearing parties.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
SUDHANSHU DHULIA, J.
1. The appellants before this Court have challenged the Judgment dated 
20.09.2021 passed by the Division Bench of the High Court of Himachal 
Pradesh (in Civil Appeal Nos.6233-6234 of 2023,
Vivek Kaisth and Akansha 
Dogra respectively), by which the appointment of the appellants to the post 
of Civil Judge (Junior Division) has been quashed. There are presently 
VIVEK KAISTH & ANR v. THE STATE OF HIMACHAL 
PRADESH & ORS
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SUPREME COURT REPORTS 
[2023] 16 S.C.R.
four appeals before us. The other three appeals are of the appellants (in 
connected appeals), who were also candidates for the post of Civil Judge 
(Junior Division) for the year 2013 in the State of Himachal Pradesh, and 
have also challenged the selection process as well as the appointment of the 
present appellants, though for diﬀ erent reasons. We propose to dispose of 
these appeals by a common order. All the same, when we refer to the facts 
in the present case, our reference would be conﬁ ned to the facts as contained 
in Civil Appeal No.6233 of 2023 and Civil Appeal No.6234 of 2023. 
2. An advertisement was issued on 1st February, 2013 whereby the 
Himachal Pradesh Public Service Commission (hereinafter referred to 
as “State Commission”), invited applications from eligible candidates 
against eight vacancies for the post of Civil Judge (Junior Division) in 
Himachal Pradesh Judicial Service. Out of the total eight vacancies, six were 
“existing vacancies” and two were “anticipated vacancies”. The preliminary 
examination for these posts was held on 12.05.2013 of which the results 
were declared on 15.06.2013. The candidates, who had qualiﬁ ed preliminary 
examination participated in the main written examination which was held 
between 15th July, 2013 to 18th July, 2013. Eighty candidates qualiﬁ ed in 
the written examination and were ultimately called for the interview, which 
was held on 07th and 08th October, 2013.
Finally, following candidates were 
selected and the list was published on the website of the Commission and 
in the newspaper on 08.10.2013. It is as under:
Sr. No.
Roll No.
Name of the Candidate
Category
Clear Cut Vacancies
1.
1025
Ms. Anshu Chaudhary 
General
2.
2006
Sh. Nishant Verma
Sch. Caste
3.
1670
Ms. Pratibha Negi 
Sch. Tribe
4.
2185
Ms. Anita Sharma
Sch. Tribe
5.
2172
Sh. Baljeet
O.B.C.
6.
1431
Sh. Jitender Kumar
O.B.C.
Anticipated Vacancies
617
1.
1126
Ms. Abha Chauhan
General
2.
1319
Sh. Ajay Kumar
General
3. The names of the two appellants who are before this Court, did not 
ﬁ gure in the above list and their names were included later vide notiﬁ cation 
dated 27.12.2013 issued by the State Government. Himachal Pradesh High 
Court has held these two selections, and consequently the appointments to 
be illegal and these have been quashed. These two appellants are now before 
us in challenge to the judgement of the High Court dated 20.09.2021. We 
have to examine the validity of the selection and appointment of these two 
appellants to the post of Civil Judge (Junior Division), and whether they 
should now be unseated from their judicial oﬃ  ce. 
4. After the publication of the results for the eight vacancies on 
08.10.2013, as referred above, an exercise was evidently undertaken at the 
level of the State Government, where an information was sought from the 
Registrar General of the Himachal Pradesh High Court as to the correct 
position of existing vacancies in the state judicial service in the cadre of 
Civil Judge (Junior Division). This letter dated 19.10.2013 is as under: - 
“No. Home-B(B)6-4/2006-VI-6
Government of Himachal Pradesh
Department Home
From: 
The Additional Chief Secretary (Home) 
to the Government of Himachal Pradesh
Shimla-171001.
Dated: 19th October, 2013
Sub: Recommendation to the posts of Civil Judge (Jr. Division) in 
the light of the directions dated 04.01.2007 of Hon’ble Supreme Court
in 
Malik Mazhar Sultan’s case. 
Sir, 
I am directed to refer to the subject cited above and to enclose herewith 
a copy of letter Number3-50/2012-PSC(E-I) dated 11 October, 2013 received 
from Secretary, HP Public Service Commission vide which select list of 08 
VIVEK KAISTH & ANR v. THE STATE OF HIMACHAL 
PRADESH & ORS [SUDHANSHU DHULIA, J.]
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[2023] 16 S.C.R.
candidates (06 against clear cut and 02 against anticipated vacancies) for the 
appointment as Civil Judge (Jr. division) has been sent to this department. Before 
proceeding further in this behalf, you are requested, on the administrative side, 
kindly to send category wise details of all existing vacancies in the cadre of 
Civil Judge (Jr. Division) to this department at the earliest. 
Yours faithfully, 
Enclosures: As above
 [Devinder Saraswati] 
 Deputy Secretary (Home) to the 
 Government of Himachal Pradesh 
 Phone No. 0177-2626450”
5. In its reply the Registrar General of the High Court of Himachal 
Pradesh vide its letter dated 30.10.2013 addressed to the Additional Chief 
Secretary (Home) to Government of Himachal Pradesh wrote as under: -
“……….
With reference to your letter No. Home-B(B)6/2006-VI-6-74 dated 
19.10.2013, on the captioned subject, I have been directed to inform 
you that the existing vacancy position in the cadre of Civil Judge 
(Junior Division) is as under:-
Sr. No. 
Category
Roster Point
Number of Vacancies 
1
UR
42, 29, 30, 55, 56 
and 11
6
2
SC
54
1
3
ST
14 & 39
2
4
OBC
33 & 42
2
It is informed that Roster Point No. 55, 56, 11 were not included in 
the requisition of the posts to be notiﬁ ed during 2013 by the Registry 
as that post has fallen vacant on 18.04.2013 due to creation of two 
new pots of Civil Judges (Jr. Division) at Solan and Amb and one post 
due to discharge from service of Shri Sunish
Aggarwal, Civil Judge 
(Junior Division)-cum-JMIC, AMMI on 19.09.2013.”
619
6. A meeting was meanwhile held at the State level on 21.10.2013 
to discuss the selection of Judicial Oﬃ  cers in the ongoing process of 2013 
and the number of vacancies on which such selection could be made. The 
meeting which was held on 21.10.2013, was attended by the following 
oﬃ  cers: -
1. 
 Sh. A.C. Dogra, Registrar General, High Court of Himachal 
Pradesh
2. 
Sh. Sandeep Bhatnagar, IAS, Secretary, Himachal Pradesh Public 
Service Commission
3. 
Sh. Devinder Saraswati, Deputy Secretary (Home) to the 
Government of Himachal Pradesh
7. As we can see, in the said meeting, oﬃ  cers nominated by the 
Government of Himachal Pradesh, State Public Service Commission and 
the High Court of Himachal Pradesh were present. This Committee (we 
will refer to it as Committee, only for the sake of convenience), notes that 
earlier only 8 candidates were included in the select list, though a few 
more should have been included, considering the vacancies in view of the 
directions of the Himachal Pradesh High Court in Shweta Dhingra v. State 
of H.P. & Ors. (2011) SCC OnLine HP 3566. It then recommended that 
Akansha Dogra and Vivek Kaisth who are in the merit list of candidates in 
the general category and Meenakshi and Parvez who are in the Scheduled 
Caste and Scheduled Tribe category respectively should also be included 
in the select list. 
8. The logic was that that recommendations have been made for only 
existing and anticipated vacancies, whereas it ought to have been
made for 
additional posts, which would be 2/3rd of the actual and anticipated vacancies 
as directed in Shweta Dhingra (supra). The minutes of the meeting dated 
21.10.2013 read as under:
“The contents of judgment in CWP No. 3135/20111 were gone through 
wherein it has been directed that the H.P. Public Service Commission 
will publish a revised Select List of the candidates from the year 2010 
1 
Shweta Dhingra vs State of Himachal Pradesh [(2011) SCC OnLine HP 3566] dated 
03.09.2011 
VIVEK KAISTH & ANR v. THE STATE OF HIMACHAL 
PRADESH & ORS [SUDHANSHU DHULIA, J.]
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SUPREME COURT REPORTS 
[2023] 16 S.C.R.
merit list by including 2/3 of the actual and anticipated vacancies. It 
was further directed that the Hon’ble High Court, Govt. of H.P. and 
the H.P. Public Service Commission shall jointly take up the exercise 
of preparation of select list immediately after the publication of the 
merit list and this exercise shall be completed within two weeks of the 
publication of the merit list every year.
2. The Govt. (in the Department of Home) has sent a requisition for 
ﬁ lling up 08 vacancies of Civil Judge (Jr. Division) for 2013. The 
category-wise break up of vacancies is as under: -
 Clear Cut Vacancies: - 06 (General-01, 
 SC-01, ST-02 & OBC-02)
 Anticipated Vacancies: - 02 (General)
3. On completion of the recruitment process of H.P. Judicial Service 
Examination, 2013 for ﬁ lling up of the above mentioned vacancies, 
the H.P. Public Service Commission prepared the result and published 
the merit list on the website of the Commission and newspapers of 
08.10.2013. The H.P. Public Service Commission recommended the 
following candidates to the Govt. of H.P. on the publication of the 
merit list: -
Sr. No.
Roll No.
Name of the Candidate
Category
Against Clear Cut Vacancies
1
1025
Ms. Anshu Chaudhary
General
2
2006
Sh. Nishant Verma
Sch. Caste
3
1678
Ms. Pratibha Negi
Sch. Tribe
4
2185
Ms. Anita Sharma
Sch. Tribe
5
2172
Sh. Baljeet
OBC
6
1431
Sh. Jitender Kumar
OBC
Against Anticipated Vacancies
1
1126
Ms. Abha Chauhan
General
2
1319
Sh. Ajay Kumar
General
The result of HPJS Examination, 2013 was perused by the 
Committee and keeping in view of the directions of Hon’ble High
621
Court of H.P. to prepare the selection list by including 2/3 of the 
actual and anticipated vacancies, Ms. Akanksha Dogra, Roll No. 
20969, Sh. Vivek Kaisth, Roll No. 1299 candidates of general 
category, Ms. Meenakshi, Roll No. 1386 (Sch. Caste Category) and 
Sh. Parvez, Roll No.1139 (Sch. Tribe Category) can be kept in the 
select list as no other candidate from OBC category had qualiﬁ ed 
the HPJS Examination – 2013. Accordingly, it was decided to 
include the name(s) of Ms. Akanksha Dogra, Roll No. 2099, Sh. 
Vivek Kaisth, Roll No. 1299 candidates of general category, Ms. 
Meenakshi, Roll No.1386 (Sch. Caste Category) and Sh. Parvez, 
roll No. 1139 (Sch. Tribe Category) candidates in the select list 
and the Commission should publish the select list accordingly.” 
9. In Shweta Dhingra (supra) the Division Bench of the Himachal 
Pradesh High Court was dealing with the selection of Civil Judge (Junior 
Division) in the State for the year 2010, and it was of the opinion that 
apart from clear and anticipated vacancies, the Commission should 
prepare a select list of some additional candidates. This entire exercise 
therefore for the appointment of few more judicial oﬃ  cers was done in 
the present case, with the belief that this is what ought to have been done 
in terms of the directions of the Himachal Pradesh High Court in Shweta 
Dhingra (supra), and we must therefore reproduce the directions given 
in that case. We reproduce most of this order in order to get a
proper 
perspective: 
2. The Apex Court in Malik Mazhar Sultan (3) v. Uttar Pradesh 
Service Commission has issued the guidelines with regard to 
the ﬁ lling up of the vacancies to the post of Civil Judge (Junior 
Division) by direct recruitment. The vacancies have to be notiﬁ ed by 
15th January every year. The vacancies include existing vacancies 
on account of retirement and future vacancies and which may arise 
on account of promotion, death or otherwise. It is also held in the 
judgment that the select list will operate till the select list for the 
subsequent year comes into operation. Still further, it is directed that 
the select list should be published in the order of merit and should 
be double of the vacancies notiﬁ ed. This direction was subsequently 
modiﬁ ed by the Apex Court by the order dated 24th March, 2009 to 
VIVEK KAISTH & ANR v. THE STATE OF HIMACHAL 
PRADESH & ORS [SUDHANSHU DHULIA, J.]
622 
SUPREME COURT REPORTS 
[2023] 16 S.C.R.
the eﬀ ect that the select list should contain the existing number of 
vacancies and the anticipated vacancies for the succeeding year and 
should include some candidates in the waiting list. Unfortunately, 
the select list published by the Public Service Commission was 
only for the clear cut vacancies of ﬁ ve and three anticipated. No 
doubt, the said list is in the order of merit. As far as the facts of the 
instant cases are concerned, there is no dispute with regard to the 
select list on the aspect of communal rotation, so that we need not 
go into that aspect at this stage, we may refer the same for future 
guidelines later in this judgment.
3. …………..
4. Steps for recruitment for the year 2011 have already been initiated. 
We ﬁ nd that six clear cut vacancies have been notiﬁ ed (2-SC, 2-ST 
and 2-OBC). Six are anticipated (2-General, 1-ST and 3-OBC). The 
Public Service Commission, it is expected would be publishing the 
select list by the end of October, 2011. Therefore, the select list already 
prepared/to be duly prepared is to operate till the select list of 2011 is 
published. There will be a direction to the High Court to intimate all 
the available vacancies as on 15th October, 2011 to the Commission 
and the Government on or before 17th October, 2011. Steps for ﬁ lling 
up for those vacancies shall be taken by the Commission and the 
Government from the select list of 2010 and the appointments shall 
be made before
29th October, 2011.
5. It is informed that the select list happened to be limited to the 
clear cut vacancies and actual number of anticipated vacancies in 
view of the directions already issued by the Government in 2008-09. 
We ﬁ nd that the Government had issued such instructions in order to 
avoid unnecessarily (Sic unnecessary) litigation. But apparently, the 
Government has not taken note of directions issued by the Apex Court, 
which is already referred to above. Therefore, there will be a direction 
to the Public Service Commission to publish a revised select list of the 
candidates from the year 2010 merit list by including 2/3 of the actual 
and anticipated vacancies.
6. The select list and the merit list are two concepts. The merit list is the
623
list of candidates ranked according to their score in the examination-
cum-interview. The select list is one which is prepared according to 
the communal roster.
7. Pursuant to the judgment of this Court in CWP No. 3828 of 2009, 
titled Hakikat v. State of H.P., the roster is now to be maintained by 
the High Court; earlier it was maintained by the Government. Since 
the select list is to be published by the Public Service Commission, 
there will be direction to the High Court, Government and the 
Public Service Commission to jointly take up this exercise of 
preparation of select list immediately after the publication of the 
merit list and this exercise shall be completed within two weeks of 
the publication of the merit list, every year. Thereafter, the Public 
Service Commission shall publish the select list. Once the select list 
is published, the appointment shall be strictly made according to the 
said list prepared on the basis of merit-cum-communal rotation.”
10. The directions given by the Division Bench of the High Court 
in paragraphs 5 and 7 are important. The ﬁ rst direction is regarding the 
additional vacancies, which were to be 2/3rd of the actual and anticipated 
vacancies and second direction was the joint exercise to be undertaken by 
the State Commission, State Government and the High Court in determining 
and ﬁ lling these vacancies. This also explains why the joint exercise was 
undertaken on 21.10.2013 by the three-member Committee, which we have
already referred to, in the preceding paragraphs. 
11. What is not clear though, is why in addition to clear and anticipated 
vacancies further vacancies i.e., 2/3rd of clear and anticipated vacancies were 
to be published. If that had to be a waiting list then such a direction could 
not have been given after the selections were over. In any case, there was 
no pressing urgency for picking new vacancies for the selection year 2013, 
after the selection was over and result had been announced. 
12. Be that as it may, in the case at hand, consequent to the joint meeting 
and the decision taken therein the Additional Chief Secretary (Home) vide 
his letter dated 25.11.2013 wrote to the Secretary Public Service Commission 
as under: -
“……………….. 
VIVEK KAISTH & ANR v. THE STATE OF HIMACHAL 
PRADESH & ORS [SUDHANSHU DHULIA, J.]

624 
SUPREME COURT REPORTS 
[2023] 16 S.C.R.

I am directed to refer to the letter No. 3-50/2012-PSC(E-1) dated 
11th October, 2013 on the subject cited above and to say that as 
per this Department requisition 8 (eight) posts of Civil Judge (Jr. 
Division)-cum-JMIC has been recommended by the Commission. In 
the meantime, 2 (two) additional post of (Jr. Division)-cum-JMIC has 
been created for Civil Court at Solan and Amb (Una).
Besides, one Civil Judge-(Jr. Division)-cum-JMIC, Amit was 
dismissed from the Government service on 19.09.2013. As such 
three more posts of (Jr. Division) have become available in the 
Department. As per his letter No. HHC/GAZ/14-49/74-VI-30012 
dated 30th October, 2013 (photocopy enclosed for ready reference) 
the Registrar General, H.P. High Court has informed that roster 
point 55, 56 & 11 were not included in the previous requisition 
of the posts to be notiﬁ ed during the year 2013 by the Registry of 
Hon’ble High Court.
Keeping in view of above position you are requested to sponsor 
three more candidates from the select list against roster point 55, 56 
& 11 from the unreserved category at the earliest.”
13. Ultimately, however, only two names from the general category 
who were next in the order of merit were made available for the select list 
which were of Vivek Kaisth and Akansha Dogra (appellants before this 
Court), who were recommended for appointment as Civil Judge (Jr. Division) 
by the State Public Service Commission. Appointment letters were thereafter 
issued to the appellants on 27.12.2013 and they were appointed as Civil 
Judge (Jr. Division) under the general category. The two appellants were 
then sent for training in the judicial academy. The Himachal Pradesh High 
Court subsequently posted them as Civil Judge (Jr. Division) in diﬀ erent 
districts. After completing their period of probation and having completed 
around 9 years of service as Civil Judge (Jr. Division), both the appellants 
have also been promoted to the next higher post of Civil Judge (Sr. Division), 
which was done on 23.03.2023. 
14. The ﬁ rst question which comes to our mind is whether the directions 
of the Himachal Pradesh High Court in Shweta Dhingra (supra), were at 
all in line with the decision of this Court in Malik Mazhar Sultan (3) and
625
Another v. U.P. Public Service Commission and Others (2008) 17 SCC 703 
(hereafter referred to as “Malik Mazhar”). We will discuss that in a while, 
but since at the root of it all lies the directions given by this court in Malik 
Mazhar, it would be necessary at this stage to refer to this decision of the 
Apex Court in order to get a clear perspective of the matter.
The main purpose for the directions given by this Court in Malik 
Mazhar was to timely ﬁ ll judicial vacancies in the States. This Court had 
ﬁ xed a time period to be followed by each High Court so that the existing 
judicial vacancies are ﬁ lled without any delay. Judicial services in States 
start from the cadre of Civil Judge (Junior Division), who are also called 
Judicial Magistrates, when they work on the criminal side. In Malik Mazhar, 
it was directed that all “vacancies” of Civil Judge (Junior Division) shall be 
notiﬁ ed by the 15th January of that year. The vacancies were to be as follows: -
 “(a) Existing vacancies.
(b) Future vacancies that may arise within one year due to retirement. 
(c) 
Future vacancies that may arise due to promotion, death or 
otherwise, say ten per cent of the number of posts.” 
The third category which was the “future vacancies”, that may come 
due to reasons other than retirement, were to be 10% of the cadre strength, 
as this was clariﬁ ed in the judgment. 
“We further direct that ten per cent of unforeseen vacancies would 
be in respect of sanctioned posts and not
vacancies occurring in a 
particular year.”
Then there was a timeline for receiving the applications, holding 
preliminary examination, main examination and prompt declaration of 
results and also viva voce to be held between 1st October to 15th October. 
By 1st November, the results were to be declared and appointment letters 
were to be issued. Latest by 2nd January, the incumbent must join the post.
15. The following was the time table drawn by the Supreme Court in 
Malik Mazhar, for making these appointments: 
“For appointment to the post of Civil Judge (Junior Division) by 
direct recruitment
VIVEK KAISTH & ANR v. THE STATE OF HIMACHAL 
PRADESH & ORS [SUDHANSHU DHULIA, J.]
626 
SUPREME COURT REPORTS 
[2023] 16 S.C.R.
S.No.
Description
Date
1
Number of vacancies to be notiﬁ ed by the High Court.
Vacancies to be calculated including
(a) 
Existing vacancies.
(b) 
Future vacancies that may arise within one year 
due to retirement
(c) 
Future vacancies that may arise due to promotion, 
death or otherwise, say ten per cent of the number 
of posts.
15th January
2
Advertisement inviting applications from eligible 
candidates.
1st February
3
 Last date for receipt of application
1st March
4
Publication of list of eligible applicants.
The list may be put on the website.
2nd April
5
Dispatch/Issue of admit cards to the eligible applicants.
2nd to 30th 
April
6
Preliminary written examination
Objective questions with multiple choice which can be 
scrutinised by computer.
15th May
7
Declaration of result of preliminary written examination
(a) 
Result may be put on the website and also 
published in the newspaper.
(b) 
The ratio of 1:10 of the available vacancies to the 
successful candidates be maintained
15th June
8
Final written examination
Subjective/Narrative.
15th July
9
Declaration of result of ﬁ nal written examination
(a) 
Result may be put on the website and also 
published in the newspaper.
(b) 
The ratio of 1:3 of the available vacancies to the 
successful candidates be maintained.
(c) 
Dates of interview of the successful candidates 
may be put on the internet which can be printed 
by the candidates and no separate intimation of 
the date of
interview need be sent.
30th August
627
10
Viva voce.
1st to
15th October
11
Declaration of ﬁ nal select list and communication to 
the appointing authority
(a) 
Result may be put on the website and also 
published in the newspaper.
(b) 
Select list be published in order of merit and 
should be double the number of vacancies notiﬁ ed.
1st November
12
Issue of appointment letter by the competent authority 
for all existing vacant posts as on date.
1st December
13
Last date for joining.
2nd January of 
the following 
year
16. The Court further requested the Chief Justice of each High Court 
to constitute a committee of two or three Judges to monitor the selection 
process so that timely selection of judicial oﬃ  cers can be made. There 
were other directions as well. The diﬃ  culty, however, was to ﬁ gure out the 
number of vacancies to be advertised. As far as (a) existing vacancies and 
(b) future vacancies which were to come within one year due to retirement 
were concerned, there was no diﬃ  culty in anticipating these vacancies. 
It is the third category which was given in “C” as “future vacancies” that 
created some confusion in diﬀ erent States as there could be no clarity of what 
these vacancies would be or how they were to be calculated. Ultimately, a 
three Judge Bench of this Court in Malik Mazhar Sultan and Another v. 
Uttar Pradesh Public Service Commission and Others (2009) 17 SCC 24 
(hereafter referred to as “Malik Mazhar-2”) clariﬁ ed this aspect in its order 
dated 24.03.2009 as follows: 
“1.
On 4-1-2007 [Malik Mazhar Sultan (3) v. U.P. Public Service 
Commission, (2008) 17 SCC 703 : (2010) 1 SCC (L&S) 942] , this 
Court had given certain directions regarding the selection and 
appointment of members of the subordinate judicial oﬃ  cers in various 
courts. In the tabular form, the number of vacancies are notiﬁ ed by 
VIVEK KAISTH & ANR v. THE STATE OF HIMACHAL 
PRADESH & ORS [SUDHANSHU DHULIA, J.]
628 
SUPREME COURT REPORTS 
[2023] 16 S.C.R.
the High Court/Public Service Commission. It was directed that the 
further vacancies that may arise due to elevation or death or otherwise, 
10% of the posts shall be notiﬁ ed and this is referred at para 15 of the 
order; it is further stated: (Malik Mazhar case [Malik Mazhar Sultan 
(3) v. U.P. Public Service Commission, (2008) 17 SCC 703 : (2010) 1 
SCC (L&S) 942] , SCC p. 711)
“15. We further direct that ten per cent of unforeseen vacancies would 
be in respect of sanctioned posts and not vacancies occurring in a 
particular year.”
2. It has been pointed out by the counsel appearing for the various 
High Courts that 10% of the sanctioned posts are notiﬁ ed in some 
States. A large number of posts are to be notiﬁ ed whereas there was 
corresponding number of vacancies to be ﬁ lled if the candidates 
are selected in the select list. There may be an expectation for such 
candidates to get appointment and this creates unwanted litigation 
by the candidates and it is prayed that the existing vacancies alone 
be notiﬁ ed along with the anticipated vacancies that may arise in the 
next one year and some candidates also be included in the wait list 
prepared by the High Courts/PSCs.
3. In supersession of the order passed by this Court on 4-1-2007 
[Malik Mazhar Sultan (3) v. U.P. Public Service Commission, (2008) 
17 SCC 703 : (2010) 1 SCC (L&S) 942] , this Court directs that 
in future the High Courts/PSCs shall notify the existing
number of 
vacancies plus the anticipated vacancies for the next one year and 
some candidates also be included in the wait list. To this extent 
earlier order is modiﬁ ed.”
(emphasis supplied)
17. In other words, subsequent to the clariﬁ cation by a three Judge 
Bench of this Court in Malik Mazhar-2, the third category earlier created 
in Malik Mazhar, did not exist any longer. Therefore, the directions given 
by the Division Bench of the Himachal Pradesh High Court in Shweta 
Dhingra (supra) in our opinion, were not necessary, and the reliance upon 
these directions by the three-member Committee in the present case were 
misplaced since the ‘vacancies’ had already been advertised. If at all, it
629
was necessary such an exercise should have been undertaken before the 
vacancies were advertised on 01.02.2013. 
18. We may also refer here to the 2004 Rules of Himachal Pradesh 
known as Himachal Pradesh Judicial Service Rules, 2004. The Rules were 
amended to bring them in tune with the directions of this Court in Malik 
Mazhar. After the amendment, the number of vacancies which were to be 
notiﬁ ed as per the Himachal Pradesh Judicial Service Rules were as follows: 
(a) existing vacancies;
(b) future vacancies that may arise within one year due to retirement; 
and
(c) 
future vacancies that may arise due to promotion, death or 
otherwise, say ten percent of the number of posts. 
The clariﬁ cation made by this Court about the number of vacancies 
to be notiﬁ ed in Malik Mazhar-2 was perhaps not noticed while making 
changes in the above Rules. As such, the vacancies as given in the 2004 Rules 
are not in tune with what this Court had deﬁ ned as ‘vacancies’ in terms of 
Malik Mazhar-2. In any case if more vacancies had to be advertised, over 
and above the existing and anticipated vacancies then this could only have 
been done prior to the advertisement i.e., February 1, 2013.
19. All the same, even if there is an apparent dichotomy between 
what the Service Rules suggest and what is mandated by this Court in 
Malik Mazhar this must be resolved by making a harmonious interpretation 
between the Service Rules and Articles 14 and 16 of the Constitution of 
India, as held
by this Court in High Court of Kerala v. Reshma A. and 
Others (2021) 3 SCC 755. The importance of the Service Rules cannot 
be belittled. The directions given in Malik Mazhar too emphasise that 
appointments have to be made as per the Service Rules of each State, as the 
procedure of selection and appointment may vary between diﬀ erent states. 
This Court was conscious of this aspect. The concern of this Court was for 
timely recruitment to ﬁ ll the judicial vacancies. Removing any doubt on 
a conﬂ ict between the directions in Malik Mazhar and Service Rules, this 
Court in Reshma A. (supra) explained as under: 
“59. …………. The object and purpose of this Court in the decision 
VIVEK KAISTH & ANR v. THE STATE OF HIMACHAL 
PRADESH & ORS [SUDHANSHU DHULIA, J.]
630 
SUPREME COURT REPORTS 
[2023] 16 S.C.R.
in Malik Mazhar (3) [Malik Mazhar Sultan (3) v. U.P. Public Service 
Commission, (2008) 17 SCC 703] was to ensure the expeditious ﬁ lling 
up of judicial vacancies in the State Judicial Services. It was in this 
perspective, that the Court set down strict timelines for compliance. At 
the same time, it is evident that the decision did not provide for essential 
aspects such as eligibility, modalities for conducting the examination 
and the application of reservations in making appointments to State 
Judicial Services. Hence, a signiﬁ cant ﬁ eld in regard to the process 
of selection and appointments to the judicial services is not covered 
by the decision in Malik Mazhar (3) [Malik Mazhar Sultan (3) v. U.P. 
Public Service Commission, (2008) 17 SCC 703] for which one has 
to fall back upon construing the rules governing the State Judicial 
Service in question.” 
In Malik Mazhar, this Court had dealt with any probable conﬂ ict 
of duties on interference with the independent functioning of State 
Commissions where it reiterated its sole purpose of timely ﬁ lling up of 
judicial vacancies. This is what it said: 
“6. Though no submission was made by any learned counsel 
appearing for any State Government that the constitution of Selection 
Committee by the Chief Justice of the High Court to monitor the timely 
appointment of Judges at subordinate/district level would amount 
to interference with the independent functioning of the
State Public 
Service Commission, but some State Governments in their responses 
have indicated so. 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. A Committee constituted by the Chief Justice 
of the High Court to ensure that the vacancies are timely ﬁ lled and 
the problem of delay in dispensation of justice is tackled to some 
extent can under no circumstances be said to be interference with 
the independent functioning of the authorities under the Rules or of 
independent functioning of the State Public Service Commission.”
20. In Reshma A. (supra) while dealing with a situation where there 
was an almost similar dichotomy between the Kerala Judicial Service Rules 
and the directions given in Malik Mazhar, this Court was of the opinion that
631
in such cases, it is better to seek harmony between the two and held that “A 
better line of approach is to seek an interpretation which will bring harmony 
between them.” Without going into the details of the Reshma A. (supra) 
case, the problem which arose there was that the Service Rules in Kerala 
required the “merit list” to be “twice” the number of “probable vacancies”. 
After the ﬁ rst half of the candidates from the list were given appointments 
on the notiﬁ ed vacancies, the remaining candidates of the list, i.e., nearly 
half, claimed appointment on vacancies which came subsequently i.e., 
subsequent to the notiﬁ cation of vacancies. The claim of these candidates 
was based on a provision of Service Rules [Rule 7(2)]2 which stipulated 
that the list shall be valid for “one year”, and therefore since the merit list 
was still a valid list, appointments could be made on these vacancies, was 
the case of the petitioners before the Kerala High Court. Their claim was 
accepted by the learned Single Judge in writ petition as well as in Appeal 
before the Division Bench. The Kerala High Court was thus here before this 
Court, in Reshma A (supra). Indeed, a literal interpretation of sub-rule (2) of 
Rule 7 would give a right of consideration to the petitioners who were before 
the Kerala High Court, but that would be against service jurisprudence as 
that would amount to making appointments on vacancies which were not 
advertised, vacancies which came up after the
notiﬁ ed date on which would 
also rest the claim of such candidates who gained eligibility subsequently 
and had a right of consideration. Hence, this exercise would principally be 
in violation of Articles 14 and 16 of the Constitution of India. This is how 
this Court resolved the issue: 
“71.1. Undoubtedly, the validity of Rule 7(2) was not in question 
before the High Court. The counsel for the respondents argued that it 
does not lie in the province of the appellant to raise a doubt about the 
validity of its own rules, more particularly Rule 7(2). It is necessary 
to note that Mr V. Giri, learned Senior Counsel appearing on behalf 
of the appellant did not suggest or argue that Rule 7(2) should be held 
2 
Rule 7 (2) “The merit list prepared by the High Court shall be forwarded for the 
approval of the Governor. The list approved by the Governor shall come into force 
from the date of the approval and shall be valid till the notiﬁ ed vacancies and the 
vacancies that may arise within one year from the date of approval of the list, are ﬁ lled 
up or a fresh list comes into force, whichever is earlier.”
VIVEK KAISTH & ANR v. THE STATE OF HIMACHAL 
PRADESH & ORS [SUDHANSHU DHULIA, J.]
632 
SUPREME COURT REPORTS 
[2023] 16 S.C.R.
to be invalid. The submission of the learned Senior Counsel is that the 
expression “probable” denotes an addition/deduction which has to be 
made due to the imponderables of service such as death, resignation 
and promotion. The submission of the appellant is that a literal 
interpretation of Rule 7(2), without reference to the constitutional 
requirement of not operating a select list beyond the notiﬁ ed vacancies, 
would render the Rule violative of Articles 14 and 16 and such an 
interpretation should be avoided. In other words, his submission was 
that a constitutional interdict cannot be overcome in the manner it has 
been suggested by the respondents and a harmonious interpretation 
of the judicial service rules in the light of the directions in Malik 
Mazhar Sultan (3) [Malik Mazhar Sultan (3) v. U.P. Public Service 
Commission, (2008) 17 SCC 703 : (2010) 1 SCC (L&S) 942] should 
have been resorted to by the High Court. We are in agreement with 
this line of submissions, based as it is on the precedent of this Court.
71.2. It is a settled principle of service jurisprudence that when 
vacancies are notiﬁ ed for conducting a selection for appointments to 
public posts, the number of appointments cannot exceed the vacancies 
which are notiﬁ ed. The answer to this submission, which has been 
proﬀ ered by the respondents is that under Rule 7(1) a probable number 
of vacancies is required to be notiﬁ ed and since an exact number
is not 
notiﬁ ed, there is no constitutional bar in exceeding the 37 probable 
vacancies that were notiﬁ ed in 2019. The diﬃ  culty in accepting the 
submission is simply this : it attributes to the expression “probable 
number of vacancies” a meaning which is inconsistent with basic 
principles of service jurisprudence, the requirement of observing 
the mandate of equality of opportunity in public employment under 
Articles 14 and 16 and is contrary to the ordinary meaning of the 
expression. Black’s Law Dictionary [ 11th Edn. (Thomson Reuters 
West, 2019).The deﬁ nition of “Probable” in the 4th Edn., Revision 6 
(1971) of the Black’s Law Dictionary was:“Having the appearance 
of truth; having the character of probability; appearing to be founded 
in reason or experience …; having more evidence for than against; 
supported by evidence which inclines the mind to believe, but leaves 
some room for doubt; Apparently true yet possibly false.”] deﬁ nes the 
expression “probable” as:
633
“Probable : likely to exist, be true, or happen”
“Probable number of vacancies”, as we have seen, is based on 
computing the existing vacancies and the vacancies anticipated to 
occur during the year. It also accounts for the possibility of inclusion of 
some of the candidates that are in the wait list. However, the expression 
“probable” cannot be interpreted as a vague assessment of vacancies 
that is not founded in reason and can be altered without a statutorily 
prescribed cause. To allow the concept of probable number of 
vacancies in Rule 7(1) to trench upon future vacancies which will arise 
in a succeeding year would lead to a serious constitutional infraction. 
Candidates who become eligible for applying for recruitment during 
a succeeding year of recruitment would have a real constitutional 
grievance that vacancies which have arisen during a subsequent 
year during which they have become eligible have been allocated to 
an earlier recruitment year. If the directions of the High Court are 
followed, this would seriously aﬀ ect the fairness of the process which 
has been followed by glossing over the fact that vacancies which have 
arisen during 2020 will be allocated for candidates in the select list 
for the year 2019. Such a course of action would constitute a serious 
infraction of Articles 14 and 16 and must be avoided.
71.3. To reiterate, the submission of the appellant which we are 
inclined to accept is not that Rule 7(2) is invalid but that a
harmonious 
interpretation of Rules 7(1) and (2) must be adopted that is consistent 
with the Article 142 directions in Malik Mazhar Sultan (3) [Malik 
Mazhar Sultan (3) v. U.P. Public Service Commission, (2008) 17 SCC 
703 : (2010) 1 SCC (L&S) 942] to bring the rules in accord with the 
governing principles of constitutional jurisprudence in matters of 
public employment.”
21. Appointments cannot be made over and above the vacancies 
which have been advertised, except in an emergency situation or for some 
unforeseen reasons, in public interest or when a policy decision is taken by 
the State Government in this regard, as held by this court in Gujarat State 
Dy. Executive Engineers’ Assn. v. State of Gujarat (1994) Supp 2 SCC 591. 
22. In Hoshiyar Singh v. State of Haryana (1993) Supp. 4 SCC 377, 
this Court had held that Public Service Commission cannot recommend 
VIVEK KAISTH & ANR v. THE STATE OF HIMACHAL 
PRADESH & ORS [SUDHANSHU DHULIA, J.]
634 
SUPREME COURT REPORTS 
[2023] 16 S.C.R.
more names than what have been advertised and any appointment, which 
is made in excess to the vacancies, which have been advertised would be 
arbitrary. The reason being that such selection/appointment would deprive 
those candidates who are not eligible for appointment at the time these posts 
were advertised but had become eligible in the subsequent year would be 
deprived of competing against such posts. This decision has been followed 
in a catena of other judgments by this Court. Reference may be made here 
to some of these decisions, such as State of Bihar v. Secretariat Asstt. 
Successful Examinees’ Union (1994) 1 SCC 126 and State of Bihar v. 
Madan Mohan Singh (1994) Supp 3 SCC 308.
23. The common thread that runs in all the above judgments is that 
appointments cannot be made over and above the vacancies which were 
advertised i.e., clear and anticipated vacancies, even though the Public 
Service Commission may have prepared a longer merit list than it was 
required to do. 
24. In Malik Mazhar-2, this Court had directed that a waiting list 
of candidates should also be prepared. Evidently in the present selection 
process there was no “waiting list”. There ought to have been one. However, 
the absence of a waiting list has not caused any diﬃ  culty as all the eight 
candidates who were selected gave their joining and were consequently 
appointed. The purpose of a waiting list is that when selected candidates are 
unable
to join the post for any reason whatsoever, the post should not remain 
vacant and this shortfall of candidates can be met from the candidates who 
are in the waiting list. The candidates who are in the waiting list have also 
qualiﬁ ed the examination in every respect, but they are just lower down in 
the merit and for this reason they could not make it to the ﬁ nal select list 
of candidates. But they are just short of it and that is why they are in the 
waiting list. The purpose of a “waiting list” is only to ﬁ ll the shortfall of 
“clear and anticipated vacancies.” 
25. What constitutes a “waiting list” and what its purpose is has 
been explained by this Court in Gujarat State Dy. Executive Engineers’ 
Association (supra) as follows:
“8. Coming to the next issue, the ﬁ rst question is what is a waiting 
list?; can it be treated as a source of recruitment from which candidates 
may be drawn as and when necessary?; and lastly how long can it
635
operate? These are some important questions which do arise as a 
result of direction issued by the High Court. A waiting list prepared 
in service matters by the competent authority is a list of eligible and 
qualiﬁ ed candidates who in order of merit are placed below the last 
selected candidate. How it should operate and what is its nature may 
be governed by the rules. Usually it is linked with the selection or 
examination for which it is prepared. For instance, if an examination 
is held say for selecting 10 candidates for 1990 and the competent 
authority prepares a waiting list then it is in respect of those 10 seats 
only for which selection or competition was held. Reason for it is 
that whenever selection is held, except where it is for single post, it is 
normally held by taking into account not only the number of vacancies 
existing on the date when advertisement is issued or applications are 
invited but even those which are likely to arise in future within one 
year or so due to retirement etc. It is more so where selections are held 
regularly by the Commission. Such lists are prepared either under the 
rules or even otherwise mainly to ensure that the working in the oﬃ  ce 
does not suﬀ er if the selected candidates do not join for one or the 
other reason or the next selection or examination is not held soon. A 
candidate in the waiting list in the order of merit has a right to claim 
that he may be appointed if one or the other selected candidate does
not join. But once the selected candidates join and no vacancy arises 
due to resignation etc. or for any other reason within the period the 
list is to operate under the rules or within reasonable period where 
no speciﬁ c period is provided then candidate from the waiting list has 
no right to claim appointment to any future vacancy which may arise 
unless the selection was held for it. He has no vested right except to 
the limited extent, indicated above, or when the appointing authority 
acts arbitrarily and makes appointment from the waiting list by picking 
and choosing for extraneous reasons.
9. 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 
VIVEK KAISTH & ANR v. THE STATE OF HIMACHAL 
PRADESH & ORS [SUDHANSHU DHULIA, J.]
636 
SUPREME COURT REPORTS 
[2023] 16 S.C.R.
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 inﬁ nite stock for appointments, 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.”
This was reiterated by this Court in Surinder Singh & Ors. v. State 
of Punjab & Anr. (1997) 8 SCC 488:
“Candidates in the waiting list have no vested right to be appointed 
except to the limited extent that when a candidate selected against the 
existing vacancy does not join for some reason and the waiting list is 
still operative.”
26. In Rakhi Ray & Ors. v. High Court of Delhi & Ors. (2010) 2 
SCC 637, the practice of making appointments on future vacancies from the
waiting list was held to be wrong. “In case the vacancies notiﬁ ed stand ﬁ lled 
up, the process of selection comes to an end. Waiting list, etc. cannot be used 
as a reservoir, to ﬁ ll up the vacancy which comes into existence after the 
issuance of notiﬁ cation/advertisement. The unexhausted select list/waiting 
list becomes meaningless and cannot be pressed in service any more”3. 
27. We are referring to the position of law on “waiting list” because 
one of the arguments of the appellants (in connected appeals) before us is 
that, since in any case there was a direction in Malik Mazhar-2 for having a 
“waiting list”, therefore the names of those two appellants ought to have been 
considered as names from the “waiting list”. In our opinion, this cannot be 
3 
Para 12
637
done, as the question would still remain whether selection/appointment can 
be made on vacancies, which were never advertised, apart from the fact that 
this would in any case go against the very concept of a ‘waiting list’ that we 
have explained above. The vacancies on which the appointments have been 
made could not be anticipated at the time of advertisement (February 1st, 
2013), and hence these vacancies were not advertised. These two vacancies 
were in fact, created on 18.03.2013 i.e., after the notiﬁ cation of vacancies 
on 01.02.2013. These were the “future vacancies”, which earlier could fall 
under the “C” category given in Malik Mazhar but were deleted in Malik 
Mazhar-2. These vacancies technically could only be ﬁ lled next year and 
should have been notiﬁ ed by January 15th, 2014 as per the directions in 
Malik Mazhar. The argument of the appellants (in connected appeals), 
particularly against the present appellants, that had there been a waiting list 
they could have been considered for appointment in that category for these 
vacancies, in our opinion, is a complete misunderstanding of the concept 
of a “waiting list”. 
28. To sum up the position of law as it stands, once clear and 
anticipated vacancies have been advertised, appointments can only be made 
on these vacancies. Vacancies which could not be anticipated before the 
date of advertisement, or the vacancies which did not exist at the time of 
advertisement, are the vacancies for the future i.e.,
next selection process. 
Malik Mazhar mandates yearly selection/appointment on the post of Civil 
Judge (Junior Division). There is a time line ﬁ xed, and ‘vacancies’ have to 
be declared on January 15th of each year. The process has to be completed 
by October of the same year. Once this is followed, as it ought to be, the 
object sought to be achieved (under the guidelines given in Malik Mazhar), 
of timely ﬁ lling of judicial vacancies is achieved.
29. In the case at hand, it is clear that the appointment of the appellants 
(Vivek Kaisth and Akansha Dogra) was made on posts which were not 
advertised and in fact did not even exist at the time when the advertisement 
was made. The anomaly made in the selection/appointment of these two 
candidates is quite apparent.
30. The appointment of the appellants was challenged before the 
Himachal Pradesh High Court by respondent No.4 herein. Respondent No.4 
(Shri Kuldeep Sharma), who was also one of the candidates, in the merit 
VIVEK KAISTH & ANR v. THE STATE OF HIMACHAL 
PRADESH & ORS [SUDHANSHU DHULIA, J.]
638 
SUPREME COURT REPORTS 
[2023] 16 S.C.R.
list of candidates along with the appellants, obviously did not question 
the existence of these two vacancies but only that these vacancies ought 
to have been advertised along with the initial 8 vacancies. Initially, only 
three posts for general category candidates were advertised, against which 
nine candidates were called for the interview, as per the Rules on 1:3 ratio 
and he being low in the order of merit was not called for the interview. His 
argument was that, if ﬁ ve posts were to be advertised as it ought to have 
been, then ﬁ fteen candidates would have been called for the interview which 
would have included him and he therefore had a fair chance of making it 
to the select list. According to him, the belated decision of the inclusion 
of two seats was not fair. Respondent no. 4, however, in our opinion had 
no case for his appointment since these two vacancies could not have been 
advertised earlier, as these vacancies did not exist at that time. Similarly, 
another writ petition was also ﬁ led before the High Court claiming violation 
of reservation etc. due to the inclusion of two seats! Their case was that the 
two Schedule Tribe candidates should have been selected on the general 
seats, and the two seats vacated by them would have given to the reserved 
candidates. The claim of these appellants (in connected appeals) for their 
appointments on the posts is again based on the fact that these two vacancies
ought to have been advertised earlier is again wrong. The High Court has 
allowed the writ petition ﬁ led by respondent No.4 to the extent that it held 
that the appointment of the appellants was in violation of the law in as much 
as they were not appointed either on the existing vacancies or anticipated 
vacancies but they were appointed on “future vacancies” which were never 
advertised. It is true that the vacancies which were advertised were only 8, 
including those on the reserved posts. The High Court, however, did not 
grant any relief to the present appellants, or the other candidates in other 
connected petitions. Their writ petitions were dismissed. 
31. In the preceding paragraphs of the present order, we have already 
clariﬁ ed the position of law and therefore, in our opinion, the High Court 
was right in holding this position, which is the settled position of law. What 
the High Court missed was the context, the facts and the circumstances of 
the case. 
32. A Judge is a Judge of facts, as much as he is a Judge of law. The 
position of law we have already explained in the preceding paragraphs, which
639
has been correctly followed by the Himachal Pradesh High Court. Now let 
us see the context of the case and its facts. Today, when we are delivering 
this judgment the two appellants have already served as Judicial Oﬃ  cers 
for nearly 10 years. Meanwhile, they have also been promoted to the next 
higher post of Civil Judge (Senior Division). In this process of their selection 
and appointment (which has obviously beneﬁ tted them), nothing has been 
brought to our notice which may suggest any favouritism, nepotism or so-
called blame as to the conduct of these two appellants, in securing these 
appointments. The High Court in fact notes this factor. While placing the 
blame on the State Commission it records that “………. there is nothing on 
record suggestive of the fact that any mala ﬁ des were behind the selection 
of respondents Nos.4 and 6……….”
33. The two appellants had qualiﬁ ed the examination and were in 
the merit list. Should we quash their appointment and unseat them from 
judicial service, is the question. The same question was there before the 
High Court and it expressed its inability to protect the appointment of the 
appellants for two reasons. The ﬁ rst reason was that since it had determined 
a ﬁ nding of illegality in the appointment, it saw no reason to continue with 
these appointments on grounds of hardship and equity, as that could only be 
done only under Article 142 of the Constitution of India and these powers 
the High Court did not have. The
second reason given was that in any case 
the balance of equity would lie in favour of the petitioner (i.e. respondent 
No. 4 before High Court), and not the present appellants. The reasons given 
were as follows : 
“Having carefully perused aforesaid judgments rendered by Hon’ble 
Apex Court, which have been otherwise taken note above this Court 
ﬁ nds that though in the aforesaid cases, selection of the petitioners 
therein was held to be not in accordance with law but their selection 
was protected by Hon’ble Apex Court, while exercising power under 
Article 142 of the Constitution of India, which power is ﬁ rstly not 
available with this Court, and secondly, in the case at hand, there is 
active challenge to the selection of the respondents Nos. 4 and 6 by 
the petitioners herein, whose rights are equally important as that of 
the aforesaid respondents and, in case respondents Nos. 4 and 6 are 
allowed to continue on their posts, same would result in infringement of 
VIVEK KAISTH & ANR v. THE STATE OF HIMACHAL 
PRADESH & ORS [SUDHANSHU DHULIA, J.]
640 
SUPREME COURT REPORTS 
[2023] 16 S.C.R.
right of the petitioners to participate/being considered in the selection 
process for the posts in question, and while balancing equalities, the 
party which is ﬁ ghting for a just cause, its right (Sic rights) are to be 
protected and not of the party, which is beneﬁ ciary of an illegality 
committed by the selecting /appointing authorities.”
34. The appellants were not entitled for any equitable relief in view of 
the High Court as they were the beneﬁ ciaries of an illegality committed by 
the Selection/appointing authority. But then it failed to take this question 
further, which in our opinion, it ought to have done. What the High Court 
never answered was as to how much of this blame of “illegal” selection 
and appointment would rest on the High Court (on its administrative side). 
Undoubtedly, with all intentions of timely ﬁ lling of the vacancies, the High 
Court still cannot escape the blame. From the very initiation of adding 
future vacancies after the select list was published, the High Court has 
been privy to the selection/appointment process. The decision of the three-
member committee which included representatives of the High Court (dated 
21.10.2013) to initially add four more posts to the vacancies, and the fact 
that the High Court never had any objection to the additional appointments, 
although these appointments were made under its watch, are signiﬁ cant 
facts. After these appointments were made, it was the
High Court which 
posted these oﬃ  cers in diﬀ erent districts in the State under Article 235 of 
the Constitution of India. It then trained them as Judicial Oﬃ  cers. Not one 
note, letter, or an objection of any kind has been placed before us which 
can give even the slightest hint that the High Court, at any point of time, 
had objected to these appointments! The objection has only come for the 
ﬁ rst time in form of additional aﬃ  davits before the High Court in the writ 
proceedings when the validity of these two appointments was challenged. 
The additional aﬃ  davit ﬁ led by the Registrar General of the High Court 
before the Division Bench of the High Court says that these appointments 
were not made in consultation with the High Court. This, however, does 
not reﬂ ect the correct position, to say the least. The High Court has placed 
the entire blame on the post selection exercise undertaken by the State 
Commission. This is not the correct position, though undoubtedly the 
Commission as the selecting authority must ultimately bear the brunt, yet the 
blame must be shared equally by the State Government and the High Court.
641
35. Having gone through the pleadings of the appellants and that 
of the respondents, we are of the considered view that there has been a 
violation of the process in making selection/appointment of the appellants, 
in as much as the vacancies on which the appellants were appointed were 
never advertised, and strictly speaking these vacancies cannot be termed 
as “anticipated vacancies” for the simple reason that these vacancies were 
only created on 18.04.2013 i.e. after the selection process had begun and 
advertisement was issued on 01.02.2013.
36. What is also important for our consideration at this stage is that the 
appellants in the present case have been working as Judicial Oﬃ  cers now for 
nearly 10 years. They are now Civil Judge (Senior Division). These judicial 
oﬃ  cers now have a rich experience of 10 years of judicial service behind 
them. Therefore, unseating the present appellants from their posts would 
not be in public interest. Ordinarily, these factors as we have referred above, 
would not matter, once the very appointment is held to be wrong. But we 
also cannot fail to consider that the appellants were appointed from the list 
of candidates who had successfully passed the written examination and viva 
voce and they were in the merit list. Secondly, it is nobody’s case that the 
appellants have been appointed by way of favouritism, nepotism or due to 
any act which can even remotely be called as “blameworthy”. Finally, they 
have now been working
as judges for ten years. There is hence a special 
equity which leans in favour of the appellants. In a recent Constitution Bench 
decision of this Court in Sivanandan C.T. and Ors. v. High Court of Kerala 
and Ors. (2023) SCC OnLine SC 994 though the ﬁ nding arrived at by this 
Court was that the Rules of the game were changed by the High Court of 
Kerala by prescribing minimum marks for the viva voce, which were not 
existing in the Rules and therefore in essence the appointment itself was in 
violation of the Rules, yet considering that those persons who had secured 
appointments under this selection have now been working for more than 
6 years it was held that it would not be in public interest to unseat them. It 
was stated in Para 58 as under: -
“58. The question which now arises before the Court is in regard to the 
relief which can be granted to the petitioners. The ﬁ nal list of successful 
candidates was issued on 6 March 2017. The candidates who have 
been selected have been working as District and Sessions Judges for 
VIVEK KAISTH & ANR v. THE STATE OF HIMACHAL 
PRADESH & ORS [SUDHANSHU DHULIA, J.]
642 
SUPREME COURT REPORTS 
[2023] 16 S.C.R.
about six years. In the meantime, all the petitioners who are before 
the Court have not functioned in judicial oﬃ  ce. At this lapse of time, 
it may be diﬃ  cult to direct either the unseating of the candidates who 
have performed their duties. Unseating them at this stage would be 
contrary to public interest since they have gained experience as judicial 
oﬃ  cers in the service of the State of Kerala. While the grievance of the 
petitioners is that if the aggregate of marks in the written examination 
and viva-voce were taken into account, they would rank higher than 
three candidates who are respondents to these proceedings, equally, 
we cannot lose sight of the fact that all the selected candidates are 
otherwise qualiﬁ ed for judicial oﬃ  ce and have been working over a 
length of time. Unseating them would, besides being harsh, result in 
a situation where the higher judiciary would lose the services of duly 
qualiﬁ ed candidates who have gained experience over the last six 
years in the post of District Judge.”
And therefore, one of the directions in the said case was as under:
‘60. XXX
 XXX
(vi) In terms of relief, we hold that it would be contrary to the public 
interest to direct the induction of the petitioners into the Higher Judicial 
Service after the lapse of more than six years. Candidates who have 
been selected nearly six years ago cannot be unseated. They were 
all qualiﬁ ed and have been serving the district
judiciary of the state. 
Unseating them at this stage would be contrary to public interest. To 
induct the petitioners would be to bring in new candidates in preference 
to those who are holding judicial oﬃ  ce for a length of time. To deprive 
the state and its citizens of the beneﬁ t of these experienced judicial 
oﬃ  cers at a senior position would not be in public interest.”
The case at hand is on a similar footing if not better than the petitioners 
in the above case. 
37. We therefore uphold the ﬁ ndings of the High Court on law as to 
the ﬂ aw in the process of selection, which followed post October 8, 2013, 
after declaration of results. All the same, for the reasons stated above, in 
order to do complete justice and in exercise of our powers under Article
643
142 of the Constitution of India, we set aside the order of the High Court 
as far as it quashes the selection and appointment of the appellants. To that 
extent, these appeals succeed and are hereby allowed. 
38. As we have not touched the ﬁ ndings of the High Court on law and 
it was indeed the correct position of law, the remaining Civil Appeals No. 
6237 of 2023, 6235 of 2023 and 6236 of 2023 (ﬁ led by Meenakshi, Parvez 
and Ashitosh Thakur respectively) are hereby dismissed. 
39. We also make it clear that the present litigation which the appellants 
have gone through will not come in way of these judicial oﬃ  cers in any 
manner, as far as their judicial career is concerned. They shall be treated at 
par with the other appointees on the post of Civil Judge (Junior Division) 
for that year. Pending applications, if any, are also disposed of.
Headnotes prepared by: 
Appeals disposed of.
Ankit Gyan
VIVEK KAISTH & ANR v. THE STATE OF HIMACHAL 
PRADESH & ORS [SUDHANSHU DHULIA, J.]