Supreme Court of India
Tosh Kumar Sharma vs High Court Of Judicature At Allahabad on 16 July, 2025
REPORTABLE
2025 INSC 921
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2025
[ARISING OUT OF SLP (C) NO.4605 OF 2023]
[@DIARY NO.42279/2022]
TOSH KUMAR SHARMA …APPELLANT
VERSUS
HIGH COURT OF JUDICATURE AT ALLAHABAD
& ORS. …RESPONDENTS
R1:HIGH COURT OF JUDICATURE AT ALLAHABAD
R2:STATE OF UTTAR PRADESH
R3:SELECTION & APPOINTMENT COMMITTEE OF U.P.H.J.S.
EXAMINATION
ORDER
Leave granted.
2. Heard Mr. Ajit Kumar Sinha, learned senior counsel
for the appellant and Ms. Preetika Dwivedi, learned
counsel for Respondent No.1-Allahabad High Court and
Respondent No.3. The State of Uttar Pradesh is
unrepresented, despite valid service of notice. We
Signature Not Verified
are glossing over the non-appearance in praesenti;
Digitally signed by
NITIN TALREJA
Date: 2025.08.04
16:07:44 IST
Reason:
however, the State to take note of defaults in
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appearances to avoid adverse orders that affect
public interest.
3. The present appeal is directed against the Final
Judgment and Order dated 22.09.2022 in WRIT – A
No.13979 of 2022 passed by a learned Division Bench
of the High Court of Judicature at Allahabad
[2022:AHC:164781-DB] (hereinafter referred to as the
‘Impugned Judgment’), whereby the claim raised for
appointment by the appellant to the post of
Additional District and Sessions Judge in the Uttar
Pradesh Higher Judicial Service (of the State of
Uttar Pradesh) has been negatived.
FACTUAL SETTING:
4. The appellant, pursuant to the ‘Direct Recruitment
to the Uttar Pradesh Higher Judicial Service-2016’
advertisement dated 10.05.2016 (hereinafter referred
to as the ‘2016 Advertisement’), participated in the
said selection process. The final results were
published on 01.10.2020, and the appellant ranked at
Sl. No.38 in the Merit List. However, since the total
vacancies were only thirty-seven under the
Unreserved/General Category (hereinafter referred to
as the ‘General Category’), the High Court forwarded
a list of the top thirty seven persons, who were
placed above the appellant, to the Hon’ble
Governor/Government of Uttar Pradesh for acceptance,
clearance and final issuance of Appointment Letters.
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However, at the level of the Hon’ble Governor, State
of Uttar Pradesh, only thirty-six persons out of the
thirty-seven recommended candidates were approved and
consequently appointed. Herein lies the genesis of
the instant dispute.
5. As per the appellant, since he was the next
candidate in line as the next person (at Sl. No.38 in
the Merit List) belonging to the General Category, he
should automatically have been recommended to the
State Government for appointment. The same was not
done; instead, the said vacant post was carried
forward for the next recruitment cycle and left
unfilled in the subject selection.
APPELLANT’S SUBMISSIONS:
6. Mr. Sinha, learned senior counsel for the
appellant, contended that once the vacancies as per
the 2016 Advertisement were for thirty-seven persons
in the General Category, the entirety of the said
thirty-seven vacancies had to be filled up from the
same selection process. It was urged that there
cannot be any question of carry-forward of any
vacancy in the facts of the present lis, for the
reason that it was not the case of a casual vacancy
having arisen after the candidates concerned had
joined their posts. Rather, it was a case where one
recommended candidate was not finally approved by the
Hon’ble Governor/State Government, which made the
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thirty seventh post available and vacant for
recruitment. In such a scenario, as canvassed by Mr.
Sinha, it was incumbent upon the High Court to
recommend/forward the name of the next eligible
candidate, which, as per the Merit List, was the
present appellant.
7. It was further argued that Rule 8(2) of the Uttar
Pradesh Higher Judicial Service Rules, 1975
(hereinafter referred to as the ‘Rules’), being
relied upon by the High Court, is not attracted in
the facts at hand as the same is applicable only when
the persons finally found eligible for being
recommended for appointment is less than the total
posts available, which is not the situation herein as
there were more than thirty-seven persons available
and eligible. Due to the restriction of thirty-seven
posts, as pointed out above, only thirty-seven names
were finally recommended to the Hon’ble
Governor/State Government, out of which only 36
candidates found favour.
8. It was also submitted that the one candidate who
was not approved by the Hon’ble Governor/State
Government had accepted the said position, and there
was no pending litigation vis-à-vis the said person
and the High Court/State Government. Learned senior
counsel argued that as the said thirty seventh post
was never filled up pursuant to the 2016
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Advertisement, technically, such a post was still
available. The contention of the High Court that it
had been subsequently filled up by carry-forward to
the next recruitment cycle, thus, ought not to be
sustained. The Court was urged to allow the appeal.
SUBMISSIONS BY RESPONDENTS NO.1 AND 3:
9. Per contra, Ms. Dwivedi, learned counsel for the
High Court, in support of the Impugned Judgment,
submitted that the appellant may not be eligible for
the reason that there was one candidate (Mr. Shakir
Hasan) belonging to the Other Backward Classes
Category (hereinafter referred to as the ‘OBC
Category’), who had fared better than the appellant
in the Merit List, and if somebody was to be
appointed for the said thirty seventh post, it would
be Mr. Shakir Hasan. On the direct query as to
whether the appointment of Mr. Shakir Hasan had
materialised, learned counsel informed us that he had
been appointed, treating him as falling in the OBC
Category.
10. The Court’s next line of examining proceeded as
follows:
(a) Whether, even after the appointment of Mr. Shakir
Hasan in the OBC Category, a vacancy in the General
Category subsisted, in relation to the selection
process initiated by the 2016 Advertisement?
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(b) Whether any candidate had staked a claim for
appointment on the ground that she/he stood higher in
the Merit List than the appellant but had not been
recommended for appointment?
11. Learned counsel referred to the Counter-Affidavit
to submit that in accordance with Rule 8(2) of the
Rules, after the candidature of one recommended
person was not approved by the Hon’ble Governor/State
Government, the Selection and Appointment Committee
vide Minutes dated 19.06.2020 had resolved, inter
alia, as under:
‘…The post now vacated after the cancellation of his
candidature will be accounted for in the next
recruitment process as an unforeseen vacancy. It is
also resolved that promotion under Rule 8(2) of
Rules, 1975 against one post be made so that
necessary compliance of the order of Apex Court in
Malik Mazhar Sultan’s case may be ensured.’
12. Learned counsel argued that the promotion was
also made against the post remaining vacant on
account of the rejected candidature as per the Rules.
13. Ms. Dwivedi, as an officer of the Court, on the
factual score, submitted viz. (a) Mr. Shakir Hasan
was appointed under the OBC Category, and (b) no
other person had sought appointment on the thirty
seventh post under the General Category claiming to
be higher up on the Merit List than the appellant. We
appreciate her fair stand.
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ANALYSIS:
14. Before appreciating the crux of the matter at
hand, we may note the special position of the High
Court in matters relating to the Judicial Services of
the State(s)/Union Territory(ies) under its
jurisdiction. It would be fitting to advert to
certain Articles from the Constitution of India, 1950
(hereinafter referred to as the ‘Constitution’):
‘233. Appointment of district judges.—
(1) Appointments of persons to be, and the
posting and promotion of, district judges
in any State shall be made by the Governor
of the State in consultation with the High
Court exercising jurisdiction in relation
to such State.
(2) A person not already in the service of
the Union or of the State shall only be
eligible to be appointed a district judge
if he has been for not less than seven
years an advocate or a pleader and is
recommended by the High Court for
appointment.
xxx
234. Recruitment of persons other than
district judges to the judicial service.—
Appointments of persons other than
district judges to the judicial service of
a State shall be made by the Governor of
the State in accordance with rules made by
him in that behalf after consultation with
the State Public Service Commission and
with the High Court exercising
jurisdiction in relation to such State.
235. Control over subordinate courts.— The
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control over district courts and courts
subordinate thereto including the posting
and promotion of, and the grant of leave
to, persons belonging to the judicial
service of a State and holding any post
inferior to the post of district judge
shall be vested in the High Court, but
nothing in this article shall be construed
as taking away from any such person any
right of appeal which he may have under
the law regulating the conditions of his
service or as authorising the High Court
to deal with him otherwise than in
accordance with the conditions of his
service prescribed under such law.
236. Interpretation.—In this Chapter—
(a) the expression “district judge”
includes judge of a city civil court,
additional district judge, joint district
judge, assistant district judge, chief
judge of a small cause court, chief
presidency magistrate, additional chief
presidency magistrate, sessions judge,
additional sessions judge and assistant
sessions judge;
(b) the expression “judicial service”
means a service consisting exclusively of
persons intended to fill the post of
district judge and other civil judicial
posts inferior to the post of district
judge.’
15. In several judgments, including, but not limited
to, Chief Justice of Andhra Pradesh v L.V.A.
Dixitulu, (1979) 2 SCC 34; High Court of Judicature
for Rajasthan v P.P. Singh, (2003) 4 SCC 239;
Rajendra Singh Verma v Lieutenant Governor, (2011) 10
SCC 1, and; Dr. P.S. Malik v High Court of Delhi,
(2020) 19 SCC 714, it has been spelt out by the Court
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that Article 235 of the Constitution bestows
complete, exclusive and effective control over
Judicial Officers, encompassing appointment, removal,
reduction of rank, dismissal, transfer, promotion
etc. on the concerned High Court.
16. Three learned Judges of this Court in the High
Court of Judicature for Rajasthan (supra) opined that
a Committee of Judges can be authorised by the Full
Court/Chief Justice or the concerned High Court Rules
to decide on matters, and such delegation to the
Committee was permissible in law. In Rajendra Singh
Verma (supra), the facts of the lead case were that
an officer of the Delhi Higher Judicial Service was
recommended to be compulsorily retired by the
Screening Committee of the Delhi High Court, and the
Full Court approved such recommendation. Aggrieved,
that officer moved the Delhi High Court by way of a
writ petition, which was dismissed. When the matter
was carried to this Court, no reason was found to
interfere and the appeal(s) were dismissed, inter
alia, with the observation:
‘218. On a careful consideration of the
entire material, it must be held that the
evaluation made by the Committee/Full
Court, forming their unanimous opinion, is
neither so arbitrary nor capricious nor
can be said to be so irrational, so as to
shock the conscience of this Court to
warrant or justify any interference. In
cases of such assessment, evaluation and
formulation of opinions, a vast range of
multiple factors play a vital and9
important role and no one factor should be
allowed to be blown out of proportion
either to decry or deify an issue to be
resolved or claims sought to be considered
or asserted. In the very nature of things,
it would be difficult, nearing almost an
impossibility to subject such exercise
undertaken by the Full Court to judicial
review except in an extraordinary case
when the Court is convinced that some real
injustice, which ought not to have taken
place, has really happened and not merely
because there could be another possible
view or someone has some grievance about
the exercise undertaken by the
Committee/Full Court.’
(emphasis supplied)
17. In this appeal, we are, in effect, considering
the legality of the decision(s) taken by the
Selection and Appointment Committee comprising of
learned Judges of the High Court on the conclusion of
selection process initiated pursuant to the subject
advertisement. Doubtlessly, the views of a Committee
of the High Court or the Full Court itself are to be
bestowed due consideration and appropriate weightage.
However, we are convinced that in the instant appeal,
the appellant deserves to succeed, and if we refuse
to intervene, an unjust outcome would be perpetuated.
The reasons for our statement follow hereinafter.
18. This Court is required to examine how the said
vacancy of one post should be treated, and if at all
it should be filled up from the Merit List resulting
from the 2016 Advertisement, or not.
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19. Having considered the matter in its entirety, we
find substance in the contentions of the learned
senior counsel for the appellant. The fact remains
that thirty-seven posts under the General Category
were to be filled pursuant to the 2016 Advertisement.
It is a fact that the appellant was placed at
position thirty-eight in the Merit List. It is also a
fact that one candidate out of the thirty-seven
candidates recommended by the High Court did not
receive approval from the Hon’ble Governor/State
Government, leaving the actual recruitment under the
General Category to thirty-six, with one vacancy
remaining. For clarity, it is noted that another
candidate, although appointed, unfortunately, later
committed suicide. However, this does not impact the
present matter, and we are not reckoning the said
resultant vacancy in appreciating the applicability
of Rule 8 of the Rules to the controversy presented
by the admitted circumstances of this case.
20. The issue, thus, lies in a narrow compass of Rule
8. Let us look at Rule 8, especially sub-Rule (2) of
the Rules:
‘8. Number of appointments to be made –
(1) The Court, shall, from time to time,
but not later than three years from the
last recruitment, fix the number of
officers to be taken at the recruitment
keeping in view the vacancies then
existing and likely to occur in the next
two years.
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Note – The limitation of three years
mentioned in this sub-rule shall not apply
to the first recruitment held after the
enforcement of these rules.
(2) If at any selection the number of
selected direct recruits available for
appointment is less than the number of
recruits decided by the Court to be taken
from that source, the Court may increase
correspondingly the number of recruits to
be taken by promotion from the Nyayik
Sewa;
Provided that the number of vacancies
filled in as aforesaid under this sub rule
shall be taken into consideration while
fixing the number of vacancies to be
allotted to the quota of direct recruits
at the next recruitment, and the quota for
direct recruits may be raised accordingly;
so, however, that the percentage of direct
recruits in the service does not in any
case exceed 25% of strength of the
service:’
(emphasis supplied)
21. Rule 8(2) is not mired in complexity. As per the
contention of the High Court, the thirty seventh post
was a vacancy which had to be carried forward, and
was done so by the Selection and Appointment
Committee, which also resolved to make a promotion
against one post as per the orders passed at
different points in time in Malik Mazhar Sultan and
Anr. v Uttar Pradesh Public Service Commission and
Ors., Civil Appeal No.1867/2006. On deeper scrutiny,
our finding is that Rule 8(2) of the Rules does not
apply to the situation confronting the High Court
upon the rejection of one candidature by the Hon’ble
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Governor/State Government from out of the
communicated list. The first portion of Rule 8(2) of
the Rules itself contemplates that the said Rule is
attracted only when the number of ‘selected direct
recruits available for appointment’ is less than the
number of direct recruit vacancies, i.e., vacant
posts available/advertised. In the absence of this
condition being satisfied, the High Court is not
under obligation to act in terms of Rule 8(2) of the
Rules. Admittedly, and at the cost of repetition,
thirty-seven General Category posts were available as
per the 2016 Advertisement, of which thirty-seven
candidates were recommended. Among these thirty-seven
candidates, the Hon’ble Governor/State Government
rejected one person’s candidature. The terminology
employed in Rule 8(2) is ‘selected direct recruits
available for appointment’. Had the term only been
’selected direct recruits’, we could have upheld the
contentions of Ms. Dwivedi. However, this is
immediately followed by ‘available for appointment’.
The provision fundamentally negates any option of
approving the High Court’s invocation of Rule 8(2) of
the Rules, as the said Rule itself is cognizant of
availability for appointment. This implies that it
accounts for a situation wherein, for instance, a
Merit List contains eleven candidates, but the
recruitment process culminates in recommending ten
candidates for notification. If the top ten
candidates are approved by the Hon’ble Governor/State
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Government, the person placed at the eleventh
position is out of the game. However, if, for any
reason, one or more of the top ten candidates do not
get approved for appointment, the eleventh-ranked
candidate from the same selection process is entitled
to be offered an appointment. This logically flows
from reading and construing ‘selected direct recruits
available for appointment’ as a whole. We have borne
in mind the principles elucidated recently by a
Three-Judge Bench in A. Raja v D. Kumar, 2025 SCC
OnLine SC 1033, which has considered a whole host of
relevant precedents on interpretive methods. We find
our analysis to be in accord therewith. The term
‘direct recruits’ occurring in Rule 18(4) of the
Rules will, therefore, also need to be construed
bearing the other Rules in mind, including the
phraseology engrafted in Rule 8(2).
22. Rule 8(2) could have been pressed into service
when, exempli gratia, vacancies advertised were ten,
but only nine candidates figured in the Merit List,
leaving one clear vacancy, which would be filled-up
from the Nyayik Sewa by way of promotion, and also
adjusted in the next recruitment cycle for direct
recruits correspondingly, as per the proviso to Rule
8(2), such that the direct recruits do not ever
exceed 25% strength of the service.
23. The appellant was placed at the thirty eighth
position in merit, alongside others ranking below
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him, who were all eligible for appointment, i.e.,
‘available for appointment’. However, due to the
limited number of posts, i.e., thirty-seven in the
General Category, the top thirty-seven from the Merit
List were recommended for final appointment. As fate
would have it, the candidature of one originally
recommended person did not materialise into an
appointment, and the said person accepted the
position.
24. In light of the above, we are unable to justify
the denial of recommendation and consequential
appointment of the appellant. For the sake of
clarity, this is not a case where the appellant is
ineligible or otherwise disqualified for appointment.
This is also not a case where a ‘continuing wait
list’ is being created. For the reasons stated above,
this appeal is allowed. The Impugned Judgment is set
aside.
25. The High Court and the State Government are
directed to process and issue Appointment Letter to
the appellant. His seniority would be reckoned
notionally as part of the 2016 Advertisement’s
selection process. Needless to state, no back-wages
or any other emoluments preceding the date of actual
joining in service shall be due and/or payable to the
appellant. The entire exercise, including necessary
formalities, shall be completed within two months
from the date. The appellant shall be assigned a
15
posting, and shall complete the prescribed training.
26. We have perused Ashok Pal Singh v Uttar Pradesh
Judicial Services Association, (2010) 12 SCC 635;
High Court of Kerala v Reshma A., (2021) 3 SCC 755,
and; Vallampati Sathish Babu v State of Andhra
Pradesh, (2022) 13 SCC 193, which find mention in the
High Court’s Counter-Affidavit. Insofar as Ashok Pal
Singh (supra) is concerned, it does not even touch
upon the specific issue emanating herein. The High
Court of Kerala (supra) reiterates the settled
principle that, ordinarily, the number of
appointments made cannot exceed the vacancies
advertised/notified, as well as the understanding
that a selection process may reasonably contemplate
both actual and anticipated vacancies, but not future
vacancies. We are unable to see how this judgment in
any way militates against what we have held.
Vallampati Sathish Babu (supra) held:
‘20. An identical question came to be
considered by this Court in Suresh
Prasad [Bihar SEB v. Suresh Prasad, (2004)
2 SCC 681: 2004 SCC (L&S) 438]. In the
said decision, it is specifically observed
and held that even in case candidates
selected for appointment have not joined,
in the absence of any statutory rules to
the contrary, the employer is not bound to
offer the unfilled vacancy to the
candidates next below the said candidates
in the merit list. It is also further held
that in the absence of any provision, the
employer is not bound to prepare a waiting
list in addition to the panel of selected
candidates and to appoint the candidates16
from the waiting list in case the
candidates from the panel do not join. The
aforesaid decision of this Court has been
subsequently followed by the Andhra
Pradesh High Court in Samiulla
Shareef [State of A.P. v. Samiulla
Shareef, 2013 SCC OnLine AP 482].’
(emphasis supplied)
27. The dicta in Vallampati Sathish Babu (supra),
following Bihar State Electricity Board v Suresh
Prasad, (2004) 2 SCC 681, was based on the
provision/Rule therein. The concerned provision in
Vallampati Sathish Babu (supra) is as follows:
‘13. Rule 16 of the 2012 Rules is in
respect of preparation of the select list.
Sub-rule (5) of Rule 16 of the 2012 Rules,
which is relevant for the purpose of this
case reads as under:
“(5) The number of candidates selected
shall not be more than the number of
vacancies notified. There shall be no
waiting list and posts if any unfilled for
any reason whatsoever shall be carried
forward for future recruitment.”’
(emphasis supplied)
28. Rule 8(2) of the Rules specifically incorporates
and employs the term ‘selected direct recruits
available for appointment’. To try to read it in the
manner the High Court would like us to read, would do
violence to the plain and clear text of the Rule. As
such, Vallampati Sathish Babu (supra) and Bihar State
Electricity Board (supra) do not aid the High Court.
We may, in passing, albeit, record that the matter
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deserved a higher level of scrutiny, which the
Division Bench did not accord it.
29. Learned counsel for the High Court, at this
juncture, prayed that to put an authoritative quietus
to the issue(s) and prevent further litigation
concerning inter-se seniority, this Court may direct
that the appellant be placed below the last-appointed
candidate in the same selection process. Finding
merit in the request made, the same was put to the
learned senior counsel for the appellant. On
instructions, learned senior counsel does not oppose
such a proposal. Ordered accordingly – the appellant
shall be placed immediately below all persons
appointed pursuant to the 2016 Advertisement,
including Mr. Shakir Hasan, to reckon his seniority
and entry into service without financial commitments
to the State Government.
……………………..J.
[AHSANUDDIN AMANULLAH]
……………………..J.
[S.V.N. BHATTI]
NEW DELHI
16TH JULY, 2025
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