LexRAKHI RAY & ORS. versus THE HIGH COURT OF DELHI & OR$.
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[2010] 2 S.C.R. 239 RAKHI RAY & ORS. v. THE HIGH COURT OF DELHI & OR$. (Civil Appeal Nos. 1133-1135 of 2010) FEBRUARY 01, 2010 [K.G. BALAKRISHNAN CJI., DEEPAK VERMA AND DR. B.S. CHAUHAN, JJ.] A B Delhi Higher Judicial Services Rules, 1970 - Appointment of District Judges - Filling up vacancies over C and above the number of vacancies advertised - Permissibility of - Held: Not permissible - It amounts to filling up of future vacancies - It is violative of Articles 14 and 16(1 ), thus, a nullity - In case vacancies notified stand filled up, process of selection comes to an end - Waiting list cannot D be used as a reservoir, to fill up the vacancy which comes into existence after the issuance of notificationladve'rl:isement - Only in a exceptional circumstance, such rule can be deviated, only after adopting policy decision basSd on some rational - More so, person whose name appears in the select E list does not acquire any indefeasible right of app'ointment - On facts, thirteen vacancies of General Category advertised, stood filled up according to merit, thus, selection process in that respect stood exhausted and there is no scope of making any further appointment- Constitution of India, 1950 - Articles F 14 and 16(1) - Judiciary. Respondent No.1-High Court of Delhi issued an advertisement to fill up 20 vacancies of District Judges in Delhi. All the 13 vacancies in the General category were filled up according to the merit list of General Category G candidates. However, the three posts reserved for Scheduled Caste candidates and four for Scheduled Tribe candidates could not be filled up due to non- availability of suitable candidates. Certain unsuccessful 239 H 240 SUPREME COURT REPORTS [2010] 2 S.C.R.. A candidates filed writ petition on the ground that 13 vacancies which came into existence during the pendency of the selection process, could have also been filled up from the said select list. High Court held that only three vacancies which came into existence subsequent B to the date of advertisement could have been filled up from the said list. Out of the said three vacancies, two could be offered to General Category candidates and one to the Scheduled Caste candidate. It issued direction to appoint two more candidates whose names appeared at c Serial Nos.14 and 15 in General Category Merit List. Appellants belonging to General Category had gone through selection process and were placed much below in the merit list. Hence the present appeals by appellants seeking directions for appointment. D Dismissing the appeal, the Court HELD: 1.1. Vacancies cannot be filled up over and above the number of vacancies advertised as "the recruitment of the candidates in excess of the notified E vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution", of those persons who acquired eligibility for the post in question in aceordance with the statutory rules subsequent to the date of notification of vacancies. F Filling up the vacancies over the notifie_d vacancies is neither permissible nor desirable, for the reason, that it amounts to "improper exercise of power and only in a rare and exceptional circumstance and in emergent situation, such a rule can be deviated and such a deviation is permissible only after adopting policy G decision based on some rational", otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, not permissible in law. [Para 9] [247- H F-H; 248-A] RAKHI RAY & ORS. v. THE HIGH COURT OF DELHI 241 & ORS. 1.2. Any appointment made beyond the number of A vacancies advertised is without jurisdiction, being violative of Articles 14 and 16(1) of the Constitution of India, thus, a nullity, inexecutable and unenforceable in law. In case the vacancies notified stand filled up, process of selection comes to an end. Waiting list etc. B cannot be used as a reservoir, to fill up the vacancy which comes into existence after the issuance of notification/ advertisement. The unexhausted select list/waiting list becomes meaningless and cannot be pressed in service any more. [Para 14] (250-C-E] c Union of India and Ors. v. /shwar Singh Khatri and Ors. (1992) Supp 3 SCC 84; Gujarat State Deputy Executive Engineers' Association v. State of Gujarat & Ors. (1994) Supp 2 SCC 591; State of Bi
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