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Service & Administrative LawSupreme Court of India

Tosh Kumar Sharma v. High Court of Judicature at Allahabad & Ors.

Civil Appeal · 2025 INSC 921Decided 16 Jul 2025
C.A. No.-009510-009510 - 2025 (Arising out of SLP (C) No. 4605 of 2023) [@ Diary No. 42279/2022]
Justice Ahsanuddin Amanullah · Justice S.V.N. Bhatti

Background

The appellant took part in the 2016 Direct Recruitment to the Uttar Pradesh Higher Judicial Service and ranked 38th in the General Category merit list, one place below the 37 available vacancies. The Allahabad High Court recommended the top 37 candidates to the Governor for appointment, but the Governor's office approved only 36 of them, leaving one post vacant. Instead of recommending the appellant, the next-ranked eligible candidate, for that vacant post, the High Court treated it as unfilled and carried it forward to the next recruitment cycle, relying on Rule 8(2) of the U.P. Higher Judicial Service Rules, 1975. The appellant's challenge to this was rejected by the Allahabad High Court's Division Bench, leading to this appeal.

Decision Breakdown

The Supreme Court held that Rule 8(2) of the Rules, which uses the term "selected direct recruits available for appointment," applied only to a situation where fewer eligible candidates existed than there were vacancies, not to this case, where more than 37 eligible candidates existed but only 37 could be recommended due to the vacancy cap, and one recommended candidate later dropped out. The Court distinguished precedents relied on by the High Court (which involved rules expressly stating there would be "no waiting list" and unfilled posts would be carried forward), noting the U.P. Rules contained no such express bar. Since the appellant was not disqualified or ineligible, and this was not a case of creating an open-ended waiting list, the Court allowed the appeal, set aside the High Court's judgment, and directed that the appellant be appointed and placed immediately below the last-appointed candidate from the same 2016 selection for seniority purposes, with no back-wages for the period before he actually joins.

Lesson Learnt

When a recruitment rule is silent on carrying forward vacancies (unlike rules that expressly say there is "no waiting list"), a vacancy that opens up because a selected candidate's appointment does not materialize should ordinarily go to the next eligible candidate on the same merit list, rather than being left unfilled and pushed to a future recruitment cycle.

Tosh Kumar Sharma v. High Court of Judicature at Allahabad & Ors. – Legal Case Shots | LegalAware