VIVEK KAISTH & ANR versus THE STATE OF HIMACHAL PRADESH & ORS

Citation: [2023] 16 S.C.R. 613 · Decided: 20-11-2023 · Supreme Court of India · Bench: C.T. RAVIKUMAR · Disposal: Disposed off
cites 2 · see the full citation network in Lexace
Open in Lexace · Ask the AI about this case
Judgment (excerpt)

[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
Excerpt shown. Read the full judgment & AI analysis in Lexace.