Supreme Court Directs Appointment From Selection List When Recommended Candidate Is Not Approved

A bench of Justices Ahsanuddin Amanullah and S. V. N. Bhatti heard an appeal by a candidate challenging the Allahabad High Court’s decision to refuse his appointment as an Additional District and Sessions Judge arising out of the ‘Direct Recruitment to the Uttar Pradesh Higher Judicial Service–2016’ selection. The appeal questioned whether a vacancy that arose because the Governor did not approve one of the recommended candidates had to be filled from the same merit list.

The Court allowed the appeal, set aside the Division Bench judgment of the Allahabad High Court dated 22.09.2022 and directed the High Court and the State to process and issue the appointment letter to the appellant within two months. The Court held that Rule 8(2) of the Uttar Pradesh Higher Judicial Service Rules, 1975 did not apply to a situation where the number of selected direct recruits "available for appointment" equalled the advertised vacancies but one recommended candidate did not receive gubernatorial approval. The Court, in its reasoning, observed: “Rule 8(2) is not mired in complexity. ... 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... 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’... 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.” The Court further directed that no back-wages or other emoluments preceding actual joining would be payable and that the appellant’s seniority would be notionally reckoned as part of the 2016 selection process.

Background The dispute arose from the 2016 Advertisement for direct recruitment to the Uttar Pradesh Higher Judicial Service. The appellant secured the 38th rank in the merit list while thirty-seven General Category posts were advertised. The High Court forwarded the top thirty-seven names to the Governor for approval; the Governor approved only thirty-six. The High Court treated the unfilled post as an unforeseen vacancy and, invoking Rule 8(2), carried it forward to the next recruitment cycle and promoted against one post. The appellant contended that, as the next eligible candidate in the same merit list, he should have been recommended for appointment when one recommended candidate did not receive gubernatorial approval.

Mr. Ajit Kumar Sinha, appearing for the appellant, argued that Rule 8(2) applied only where the number of selected candidates available for appointment was less than the vacancies advertised and that this was not the case here. Ms. Preetika Dwivedi, for the High Court and the Selection and Appointment Committee, relied on the Committee’s minutes and precedent including Malik Mazhar Sultan, and submitted that promotion and carry-forward were permissible. The State of Uttar Pradesh did not appear despite service.

The Supreme Court reviewed Articles 233–236 and an array of precedents on the High Court’s control over subordinate judicial appointments and interpretive principles. The Court distinguished authorities cited by the High Court — including decisions accepting carry-forward in different rule contexts — and found that Rule 8(2) expressly contemplated availability for appointment. The Court noted that the vacancy resulted from non-approval of a recommended candidate and not from an insufficiency of eligible selected recruits. It therefore directed the High Court and State to issue the appointment letter to the appellant, to complete formalities within two months, to assign posting and prescribe training, and to reckon his seniority notionally within the 2016 selection while placing him immediately below those appointed pursuant to that advertisement. The Court clarified that no monetary claims prior to actual joining would be admissible.

Case Details: Case No.: 2025 INSC 921 (Civil Appeal arising out of SLP (C) No.4605 of 2023; Diary No.42279/2022) Case Title: Tosh Kumar Sharma v High Court of Judicature at Allahabad & Ors. Appearances: For the Petitioner(s): Mr. Ajit Kumar Sinha, learned Senior Counsel For the Respondent(s): Ms. Preetika Dwivedi, learned Counsel (for Respondent No.1–High Court of Judicature at Allahabad and Respondent No.3–Selection & Appointment Committee); State of Uttar Pradesh: Unrepresented.