Meghalaya High Court Upholds Appointment Of Three Judges "Over & Above" Advertised Vacancies, Cites Exceptional Circumstances

Recently, the Meghalaya High Court upheld the appointments of three judicial officers who were appointed over and above the advertised vacancies. It is a settled position of law that no appointment could be made beyond the stipulated number of vacancies prescribed in the recruitment advertisement. However, a deviation is permissible in exceptional circumstances where an appointment could be made over and above the number of vacancies prescribed in the recruitment advertisement, it said. “While holding that if the requisition and advertisement are for a certain number of posts only, the State cannot make more appointments than the number of posts, this Court went on to hold that the State could deviate from the advertisement and make appointments in posts falling vacant thereafter in exceptional cases or in an emergent situation, and, that too, by taking a policy decision in that behalf.”, the Supreme Court had held in Arup Das & Ors. vs. State of Assam & Ors. reported in (2012) 5 SCC 559. The Supreme Court in Prem Singh & Ors. vs. Haryana State Electricity Board & Ors. reported in (1996) 4 SCC 319 made clear that in an exceptional circumstance, the selection process by way of requisition and advertisement can be made for clear and anticipated vacancies but not for future vacancies. Therefore, the position which emerges from the abovementioned precedent is that in an exceptional circumstance, it would be permissible for the authorities to make recruitment over and above the prescribed number of vacancies only when the recruitment was made for clear and anticipated vacancies, High Court said. In the present case, during the COVID-19 outbreak, the recruitment of three waitlisted officers, for the post of Magistrate First Class, Subordinate District Council Court (KHADC), was made over and above the prescribed number of vacancies mentioned in the advertisement because the authorities couldn't conduct a fresh recruitment drive for the remaining vacant posts not prescribed in the advertisement.Out of three judicial officers, 2 were recruited against two existing vacancies, and another official was recruited against the anticipated vacancy which was under the process of being sanctioned and thereafter sanctioned.The petition was filed challenging the appointment of the three judicial officers on the cleared and anticipated vacancy. The argument canvassed by the petitioners against the appointment was that no appointment could be made in deviation of the recruitment notification. The petitioners argued that it is impermissible to make appointments over and above the prescribed number of vacancies in the advertisement.Having noted that no recruitment was made for future advertisement/vacancies which may arise in the future, the Court refused to interfere with the recruitment stating that the appointment of the judicial officers/respondents No. 4, 5, and 6, were made during the COVID-19 period. According to the court, the recruitment was made due to compelling circumstances and based on a policy decision, and also in consideration of the fact that these officers are presently manning positions in outlying benches of the District Council Courts of special nature for the past 2(two) years, therefore their appointments could not be interfered with.“Apart from the discussions made herein above, another factor that deserves consideration is the fact that the respondents No. 4, 5 and 6, are qualified candidates who have come through a selection process, and have been discharging their duties for over 2(two) years now, and unseating them at this stage, will surely not be in public interest. Coupled with this is also the fact that, the petitioners though not disclosing in the writ petition, are unsuccessful candidates who did not even clear the written examination, and by displacing the respondents No. 4, 5 and 6, would not mean that they would be in contention or qualified to be appointed against the said posts. It is also to be noted that, there has been no allegation of any favoritism or nepotism or that the selection process was vitiated in any manner to render the selection invalid, but the only challenge is that there was a deviation from the advertisement.”, the bench comprising Justice H. S. Thangkhiew said. The petition was accordingly dismissed. Appearance: For the Petitioner(s) : Ms. P. Chettri, Adv. Ms. N. Kharshemlang, Adv. For the Respondent(s) : Dr. N. Mozika, Sr. Adv. with Mr. M.L. Nongpiur, Adv. (For R 1) Mr. N.D. Chullai, AAG with Ms. Z.E. Nongkynrih,GA (For R 2&3) Mr. K.C. Gautam, Adv. (For R 4,5&6) Case Details: Smti Naphibanmer Laso & Anr. Versus Khasi Hills Autonomous District Council (KHADC) & ORS., WP(C) No. 328 of 2022Citation: 2024 LiveLaw (Megh) 23Click here to read/download the judgment

Meghalaya High Court Upholds Appointment Of Three Judges "Over & Above" Advertised Vacancies, Cites Exceptional Circumstances

Yash Mittal

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