Pankjeshwar Sharma and Others vs State of Jammu & Kashmir and Others

Dismissing the appeals, the Court

HELD: 1. It is a settled principle of service jurisprudence and has been consistently followed by this Court that the rules of recruitment to various services under the State or to a class of posts under the State, the State is bound to follow the same and to have the selection of the candidates to be made as per the scheme of recruitment rules and appointments shall be made accordingly. At the same time, all the efforts shall be made for strict adherence to the procedure prescribed under the recruitment rules. On the contrary, if any appointments are made bypassing the recruitment procedure known to law, will resulted in violation of Article 14 and 16 of the Constitution. This Court in State of U.P. and Others vs. Rajkumar Sharma and Others and later in Arup Das and Others vs. State of Assam and Others considered the question of filling up of vacancies over and above the number of vacancies advertised and held that the filling up of vacancies over and above the number of vacancies advertised would be violative of fundamental rights guaranteed under Article 14 and 16 of the Constitution and the selectees could not claim appointments as a matter of right. This Court further held that even if in some cases appointments had been made erroneously or by mistake, that did not confer any right of appointment to another person as Article 14 of the Constitution does not envisage negative equality and if the State or its authority had committed a mistake at any given stage, it cannot be forced to perpetuate the said mistake under the writ jurisdiction of the High Court under Article 226 of the Constitution. In a situation where the posts in excess of those advertised had been filled up in extraordinary circumstances, instead of invalidating the excess appointments, the relief could be moulded in such a manner so as to strike a just balance keeping the interest of the State and the interest of the person seeking public employment depends upon the facts of each case for which no set standard can be laid down. [Para 24][210-F-H; 211-A-D]

2. Further submission made by the Senior counsel for the appellants that they are higher in the order of merit qua these 22 candidates who were appointed by the 2nd respondent taking shelter of the order of this Court dated 10th May, 2007 is not legally sustainable and violative of Article 14 of the Constitution. The submission in the first blush appears to be attractive but it lacks foundation for the reason that the appointments in the ordinary course are to be made strictly in the order of merit in terms of the select list prepared by the competent authority as contemplated under the relevant statutory recruitment rules and any appointment in contravention indeed is in violation of Article

14 of the Constitution with a proviso that if any appointments are made deviating from the merit list drawn by the competent authority in exceptional cases as being reflected in the instant case where there was on-going litigation and subsequent selection was also held to give quietus to the on-going litigation, still on principle cannot be approved by this Court, are irregular appointments and cannot be held to be illegal as claimed by the appellants. [Para 33][214-F-H-; 215-A-B]

3. It is also not the case of the appellants that they are amongst 22 candidates in the order of merit published by the 2nd respondent awaiting appointment in reference to an advertisement dated 25th February, 1999 and if their submission is accepted at the face value as prayed for, atleast the present appellants may not get a march over 22 candidates waiting in the order of merit who in the ordinary course could claim appointment to the post of Sub-Inspector and the action of the State in extending its concession which has been recorded under the order of this Court dated 10th May, 2007 is indeed the mistake being committed, still it cannot be forced by the person as alleged to be aggrieved to perpetuate the said mistake. [Para 34][215-BD]

4. This Court in Union of India and Another vs. Kartick Chandra Mondal and Others observed that if something is being done or acted upon erroneously that cannot become the foundation for perpetuating further illegality. If an appointment is made illegally or irregularly, the same cannot be made the basis of further appointment and erroneous decision cannot be permitted to perpetuate further error to the detriment of the general welfare of the public or a considerable section. This has been the consistent 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 had been made by mistake or wrongly, that did not confer any right of appointment to another person, as Article 14 of the Constitution does not envisage negative equality and if the State had committed a mistake, it cannot be forced to perpetuate the said mistake.” [Para 36][215-E-F]

6. It is indisputed that by the time this Court is called upon to decide the matter, the so-called 22 candidates against whom there is a lis raised by the present appellants, had completed almost more than 12 years of service and thus having rich experience in the field and the subsequent selection has also been held of the post of Sub-Inspector pursuant to an advertisement issued in February, 2001 and the concession which was recorded of the Advocate General of the State by this Court in its order dated 10th May, 2007 at a given point of time also appears to be bonafide, to give quietus to the on-going litigation pending in Courts for sufficient long time and no other litigation at that given point of time was pending in the court of law, in the given situation, this Court is not inclined to disturb the appointment of those 22 candidates which has been questioned by the appellants/candidates in the present batch of appeals. [Para 37][215-G-H; 216-A-C]

7. This Court is also of the view that the appointments of

22 candidates made by the 2nd respondent vide orders dated 23rd February, 2008 and 11th March, 2008 which has given rise to a further litigation are irregular appointments and not in conformity to the recruitment rules, still what being prayed by the appellants if accepted by this Court that will perpetuate the illegality which has been committed by the State-respondent and negative equality cannot be claimed to perpetuate further illegality under Article 226 of the Constitution of India. [Para 40][216-EF] Arup Das and Others vs. State of Assam and Others (2012) 5 SCC 559 : [2012] 1 SCR 445 – relied on. State of U.P. and Others vs. Rajkumar Sharma and Others (2006) 3 SCC 330 : [2006] 2 SCR 877; Surinder Kumar Sharma vs. State of Jammu and Kashmir and Others decided on 16th October, 2000; Union of India and Another vs. Kartick Chandra Mondal and Others (2010) 2 SCC 422 : [2010] 1 SCR 1099; Gujarat State Dy. Executive Engineers’ Assn. vs. State of Gujarat (1994) Supp 2 SCC 591 : [1994] 3 SCR 983; Buddhi Nath Chaudhary vs. Abahi Kumar (2001) 3 SCC 328 : [2001] 2 SCR 18 – referred to.