“Availability for Appointment” Re-Interpreted: The Supreme Court Mandates Same-Cycle Substitution of Vacancies in U.P. Higher Judicial Service

1. Introduction

In Tosh Kumar Sharma v. High Court of Judicature at Allahabad & Ors., 2025 INSC 921, the Supreme Court of India revisited the mechanics of filling vacancies in the Uttar Pradesh Higher Judicial Service (UPHJS) once the Governor withholds approval for a recommended candidate. The dispute arose when one of thirty-seven general-category candidates recommended under the 2016 UPHJS advertisement was not approved by the Governor. Instead of forwarding the next person on the merit list, the High Court’s Selection & Appointment Committee carried the vacancy forward to the next recruitment round and simultaneously promoted an officer from the Nyayik Sewa under Rule 8(2) of the UPHJS Rules, 1975 (“the 1975 Rules”).

The appellant, placed 38^th on the merit list, contended that the unapproved slot had to be offered to him. The Division Bench of the Allahabad High Court rejected his writ petition. The present appeal examines whether Rule 8(2) truly authorised the High Court to carry forward the vacancy and substitute it by promotion, or whether the “next-in-merit” principle prevails.

2. Summary of the Judgment

Leave granted and appeal allowed; High Court’s judgment set aside.
The vacancy created by the Governor’s non-approval must be filled from the same merit list; Rule 8(2) does not authorise its carry-forward in such circumstances.
The appellant is directed to be appointed as Additional District & Sessions Judge within two months. Seniority is to be reckoned notionally with no claim to back-wages.
For systemic clarity, the Court ordered that the appellant be placed below all candidates already appointed through the 2016 cycle, thus avoiding fresh seniority disputes.

3. Detailed Analysis

3.1 Precedents Cited & Their Influence

Chief Justice of A.P. v. L.V.A. Dixitulu (1979) & subsequent Article 235 cases – affirmed the High Court’s primacy over subordinate judiciary but recognised judicial review where “real injustice” occurs.
High Court of Judicature for Rajasthan v. P.P. Singh (2003); Rajendra Singh Verma (2011); Dr. P.S. Malik (2020) – clarified that Committees of Judges can act for the Full Court, yet those decisions remain reviewable when palpably unjust.
Malik Mazhar Sultan orders – emphasized expeditious filling-up of judicial posts; the Selection Committee invoked these to justify promotion, but the Supreme Court found the factual substratum distinguishable.
Bihar SEB v. Suresh Prasad (2004) & Vallampati Sathish Babu (2022) – relied on by the High Court; both upheld an employer’s discretion where rules expressly barred waiting lists. The Court distinguished them because Rule 8(2) contains the phrase “selected direct recruits available for appointment”, which contemplates future substitution from the same list.
A. Raja v. D. Kumar (2025) – cited for interpretive methodology; the Court used its principles to adopt a contextual, purposive reading of Rule 8(2).

3.2 The Court’s Legal Reasoning

Textual Interpretation of Rule 8(2).
Rule 8(2) applies only when “the number of selected direct recruits available for appointment is less than the number of recruits decided …”.
Key phrases:
- selected direct recruits – those figuring in the final merit list;
- available for appointment – still eligible and willing.
Because 38 candidates (and more) were available for 37 posts, the triggering condition for promotion never arose.
Doctrine of Same-Cycle Substitution. Vacancies arising before actual appointment must be filled from the existing merit list; only post-appointment (casual) vacancies may justify carry-forward or promotion.
Constitutional Context (Arts. 233-236). While Article 235 vests control in the High Court, that control is subject to statutory rules. The High Court’s action contradicted its own Rule 8(2).
Equitable Considerations. Denying appointment to the next-in-merit, despite an on-record vacancy, offends fairness and the objectives of transparent recruitment highlighted in Malik Mazhar Sultan.

3.3 Anticipated Impact

Judicial Service Recruitments: High Courts recruiting under similar rules must now exhaust the merit list for vacancies occurring until appointment orders are issued.
Public Services Beyond Judiciary: Though limited to UPHJS Rules, the reasoning is persuasive for any service rule that uses the phrase “available for appointment.”
Reduction in Litigation: Clear demarcation between “carry-forward” and “same-cycle substitution” will curb future disputes on abandoned vacancies.
Administrative Discipline: State Governments must adhere to timelines; non-approval without justification could now trigger automatic substitution rather than prolonging vacancy.

4. Complex Concepts Simplified

Merit List: The final ranking of candidates after the entire selection process. Appointment is generally offered in that order.
Waiting List vs. Same-Cycle Substitution: • A “waiting list” is an explicit list of reserve candidates. • “Same-cycle substitution” (as adopted here) automatically draws the next ranked candidate without constituting a new waiting list.
Carry-Forward Vacancy: An unfilled post moved to a future recruitment drive, often affecting reservation quotas.
Nyayik Sewa: U.P. Civil Judge (Senior Division) cadre eligible for promotion to Higher Judicial Service.
Article 235 Control: High Court’s constitutional authority over subordinate courts, including appointments and promotions, but limited by valid rules.

5. Conclusion

The Supreme Court has crystallised a vital principle: when an advertised judicial vacancy remains unfilled because the approving authority refuses one of the recommended names, the High Court must look to the existing merit list before resorting to carry-forward or promotion mechanisms.

By foregrounding the phrase “available for appointment” in Rule 8(2), the Court forestalls administrative improvisations that undermine merit and delay justice delivery. While upholding the High Court’s institutional primacy, the judgment reinforces that such prerogative must function within the four corners of the governing rules and the Constitution. Future selection authorities—judicial or otherwise—will have to respect this “doctrine of immediate substitution” whenever similarly worded rules are in play.