FACTS
This case involves a legal challenge to the appointment of two people, Vivek Kaisth and Akansha Dogra, as Civil Judges (Junior Division) in Himachal Pradesh. They were selected in the 2013 Himachal Pradesh Judicial Services Examination. The issue was whether their appointments were valid under the Constitution.
On 1 February 2013, the Himachal Pradesh Public Service Commission (HPPSC) advertised 8 vacancies—6 existing and 2 anticipated—for the post of Civil Judge (Junior Division). The selection process went ahead, and the merit list was released on 8 October 2013. However, Vivek and Akansha’s names were not in that list.
Later, on 21 October 2013, a meeting was held between the HPPSC, the State Government, and the Himachal Pradesh High Court. They noted that some new vacancies had arisen after the original advertisement. Based on that, and referring to the judgment in Shweta Dhingra v. State of H.P., 2011 SCC OnLine HP 3566, they decided to include the appellants in the selection list. They were officially appointed on 27 December 2013.
After undergoing training, both Vivek and Akansha were posted as judges. Over the years, they performed well and were promoted to the position of Civil Judge (Senior Division). They served the judiciary for nearly ten years without any complaints.
However, in 2021, another candidate from the same exam batch, Kuldeep Sharma, challenged their appointments in the Himachal Pradesh High Court. He argued that the posts to which Vivek and Akansha were appointed had not been advertised at the time of the examination.
On 20 September 2021, the High Court ruled in Kuldeep Sharma’s favor. It said that their appointments were against unadvertised vacancies, violating Articles 14 and 16 of the Constitution, which guarantee equality and equal opportunity in public employment. Their appointments were quashed.
In response, Vivek and Akansha filed an appeal before the Supreme Court to protect their positions.
ISSUES RAISED
- Did the appointments to unadvertised posts violate Articles 14 and 16 of the Constitution of India?
- Was it correct to rely on the Shweta Dhingra judgment after the later decision in Malik Mazhar Sultan (2)?
- Can such appointments be saved under Article 142, considering the appellants’ long and honest service?
- Can public interest be a valid reason to uphold the appointments when there was no bad faith involved?
CONTENTIONS
Appellants:
Vivek and Akansha argued that they followed the rules and were not responsible for any procedural mistake. They cleared all the exams and were added to the list in a transparent manner. Their selection was approved by all the relevant authorities, including the HPPSC, State Government, and High Court.
They further pointed out that they had served for nearly ten years, been promoted, and never faced any complaints. Since they had no role in the legal error and had served honestly, they requested the Supreme Court to protect their appointments using Article 142 of the Constitution. They cited Sivanandan C.T. v. High Court of Kerala, 2023 SCC OnLine SC 994, where a similar issue was resolved in favor of judicial officers.
Respondents:
The respondents argued that the appointments were invalid because they were made for posts that were not mentioned in the original job advertisement. This, they said, was against the law and violated the rights of other eligible candidates who never got a fair chance to apply.
They referred to Malik Mazhar Sultan (2), (2009) 17 SCC 24, and Malik Mazhar Sultan (3), (2008) 17 SCC 703, where the Supreme Court had clearly said that only existing and anticipated vacancies (within one year) can be advertised. Since the posts to which Vivek and Akansha were appointed didn’t fall into this category, the respondents said their appointments were void from the beginning.
RATIONALE
The Supreme Court accepted that the appointments made to Vivek and Akansha were not in line with the rules. Referring to the Malik Mazhar Sultan (2) decision, the Court said only two types of vacancies can be advertised and filled: (1) those existing at the time of advertisement, and (2) those expected to arise within the next year. Anything outside this scope cannot be filled.
The Shweta Dhingra case, which was relied on by the authorities, had been overruled by Malik Mazhar Sultan (2). So, using that judgment as a reason to appoint Vivek and Akansha was wrong.
However, the Court also acknowledged that this was not a case of favoritism, corruption, or manipulation. The authorities misunderstood the law and made the mistake, not the candidates. Vivek and Akansha had done everything properly and served well as judges for nearly ten years.
Given these facts, the Court used its extraordinary powers under Article 142 of the Constitution to protect their appointments. It said removing them now would be unjust and harmful to the judiciary, as they were experienced and capable officers. The Court also referred to Sivanandan C.T., where similar relief was granted.
DEFECTS OF LAW
- Outdated Rules: The Himachal Pradesh Judicial Service Rules, 2004 still allowed 10% future vacancies, which was against the Supreme Court’s direction in Malik Mazhar Sultan (2). These rules should have been amended immediately.
- Institutional Lapses: All three bodies—the High Court, HPPSC, and State Government—were involved in the mistake. However, during the case, the High Court tried to avoid responsibility even though it had been a part of the appointment process.
- No Waitlist Maintained: As per Malik Mazhar Sultan (2) and Gujarat State Dy. Executive Engineers’ Ass’n v. State of Gujarat, (1994) Supp. 2 SCC 591, a waitlist should be maintained to handle future vacancies. In this case, no waitlist was made, forcing the authorities to take ad hoc decisions.
- Unfair to Other Candidates: Because these vacancies were not advertised, other qualified candidates never had the chance to compete. This violated the principle of equal opportunity guaranteed by the Constitution.
- Violation of Articles 14 and 16: By making appointments to unadvertised posts, the authorities failed to ensure fairness and transparency, which is a clear breach of constitutional norms.
INFERENCE
This judgment shows the Supreme Court’s attempt to balance legal rules with practical fairness. It strongly reaffirmed that government jobs must be given only through properly advertised vacancies. This ensures equal opportunity for all, as required by Articles 14 and 16 of the Constitution.
At the same time, the Court showed compassion and fairness. It saw that Vivek and Akansha were not responsible for the legal mistake and had served with honesty and dedication. Their removal would not just harm them personally, but also weaken the judicial system by taking away experienced officers. That’s why the Court used Article 142 to do complete justice.
This case also sends a strong message to government authorities and courts. Rules must be kept up to date. All departments must take joint responsibility for following legal procedures correctly. Future mistakes can be avoided by creating waitlists and strictly following court rulings.
Overall, this case is an example of how the judiciary can maintain both the rule of law and equity. It warns that procedural rules must be followed, but also protects those who are honest and stuck in a flawed system. It highlights the importance of institutional responsibility, transparency, and constitutional values in public employment.
By – Prrisha Jain
O.P. Jindal Global University