Himachal Pradesh Public Service Commission invited applications from eligible candidates against 8 vacancies for a post of Civil Judge (Junior Division) in Himachal Pradesh Judicial Service. Out of total 8 vacancies, 6 were ‘existing vacancies’ and 2 were ‘anticipated vacancies’. The purpose of a ‘waiting list’ is only to fill shortfall of ‘clear and anticipated vacancies’. Evidently, in present selection process, there was no ‘waiting list’. There ought to have been one. However, absence of a ‘waiting list’ has not caused any difficulty as all 8 candidates who were selected gave their joining and were consequently appointed.

The question would remain whether selection/appointment can be made on vacancies, which were never advertised. These were ‘future vacancies’, which were deleted in Malik Mazhar Sultan v. Uttar Pradesh Public Service Commission, (2009) 17 SCC 24. These vacancies technically could only be filled next year. Rakhi Ray v. High Court of Delhi, (2010) 2 SCC 637 held, practice of making appointments on ‘future vacancies’ from a ‘waiting list’ was wrong. “In case vacancies notified stand filled up, process of selection comes to an end. A ‘waiting list’ cannot be used as a reservoir.”

It is nobody’s case, Appellants have been appointed by way of favouritism, nepotism or due to any act which can even remotely be called as ‘blameworthy’. They have now been working as Judges for 10 years. There is hence a special equity which leans in favour of Appellants.

– Hon’ble Justice Sudhanshu Dhulia, Vivek Kaisth v. State of Himachal Pradesh, [Civil Appeal Nos. 6233-6234 of 2023].