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2013 DIGILAW 852 (HP)

NISHTHA v. STATE OF H. P.

2013-09-27

DEV DARSHAN SUD

body2013
JUDGMENT DEV DARSHAN SUD, J. 1. THE petitioner applied for interview/test for selection as Lecturer (Computer Application). She appeared in the interview for this post on 27.5.2011, and was assigned Roll No. 2. According to the result Annexure:P5 she is shown at Serial No.2 having secured 54 marks in the interview. This aspect is not disputed. 2. IN this petition, the petitioner challenges the candidatures of the third respondent but with the intervention of subsequent events, it is not necessary for me to go into that issue. This writ petition is pending before this Court since Whether reporters of the Local papers are allowed to see the judgment? No. 18.8.2011. CMP No. 3711 of 2013 has been filed by the petitioner with the pleading that Sh. Gaurav Rana, who was one of the selected candidates, has not joined pursuant to his selection as he is already working in the Government Polytechnic, Sunder Nagar where his services have been regularized. In these circumstances, the petitioner being the next candidate in the order of merit, should and ought to be selected and appointed. Learned counsel appearing for the Public Service Commission submits that according to the Rules of the Himachal Pradesh Public Service Commission (Procedure & Transaction of Business and Procedure for the conduct of Examinations, Screening Tests & Interviews Etc.) Rules, 2007 (as amended up to 31st March, 2012), it is provided: "If a candidate fails to join the post on the basis of the recommendation of the Commission, on demand from the concerned appointing authority after cancellation of the offer of appointment of such candidate, the replacement will be given by the Commission at its discretion if the demand is received within a period of one year from the date of sending recommendation of the Commission to the concerned appointing authority provided that no fresh requisition has been received for the said post in the intervening period." The State also opposes the prayer made by the petitioner on the ground that a fresh requisition would be sent to the Public Service Commission and there is no right vested in the petitioner to claim selection as a matter of right. 3. LEARNED counsel appearing for the petitioner relies upon the decisions of the Supreme Court in R.S. Mittal Vs. Union of India, 1995 (Supp (2) SCC 230, Asha Kaul (Mrs) and another Vs. 3. LEARNED counsel appearing for the petitioner relies upon the decisions of the Supreme Court in R.S. Mittal Vs. Union of India, 1995 (Supp (2) SCC 230, Asha Kaul (Mrs) and another Vs. State of Jammu and Kashmir and others, (1993) 2 SCC 573 , Miss Neelima Shangla Vs. State of Haryana and others, (1986) 4 SCC 268 , Jai Narain Ram Vs. State of U.P and others, AIR 1996 SC 703 ..In support of this contention the petitioner should and ought to be appointed as the right accrues to him by virtue of his selection by being placed on the waiting list. He also places reliance on the judgment of the Supreme Court in State of J&K & Ors. Vs. Sat Pal, JT 2013 (2) SC 530 holding: "............................................... 12. The date of filing of the representation by the parties concerned and/or the date on which the competent authority chooses to fill up the vacancy in question, is of no consequence whatsoever. The only relevant date is the date of arising of the vacancy. It would be a different legal proposition, if the appointing authority decides not to fill up an available vacancy, despite the availability of candidates on the waiting list. The offer made to Trilok Nath on 22.4.2008 by itself, leads to the inference that the vacancy under reference arose within the period of one year, i.e., during the period of validity of the waiting list postulated by the rules. The offer of the vacancy to Trilok Nath, negates the proposition posed above, i.e., the desire of the employer not to fill up the vacancy. Herein, the appellants wished to fill up the vacancy under reference. Moreover, this is not a case where the respondent was seeking appointment against a vacancy, over and above the posts for which the process of selection/recruitment was conducted. Based on the aforesaid inference, we have no hesitation in concluding that the appellants ought to have appointed the respondent Sat Pal, against the vacancy which was offered to Trilok Nath. 13. The issue arising for consideration herein, has already been adjudicated upon by this Court. In the first instance reference may be made to the decision rendered by this Court in Virender S.Hooda Vs. State of Haryana (1999) 3 SCC 696 . 13. The issue arising for consideration herein, has already been adjudicated upon by this Court. In the first instance reference may be made to the decision rendered by this Court in Virender S.Hooda Vs. State of Haryana (1999) 3 SCC 696 . In the instant case administrative instructions envisaged, that vacancies which came into existence within six months of the date of recommendation by the Public Service Commission, could be filled up from the earlier process of selection. The observations made by this Court on the instant issue, in the aforesaid background, are being extracted below: ".....The fact that there were further vacancies available and when 9 vacancies were advertised to be filled up within a period of six months after announcement of the previous selection cannot be disputed at all. In terms of the circulars issued by the Government on 22.3.1957 and 26.5.1972 when such vacancies arise within six months from the receipt of the recommendation of the Public Service Commission they have to be filled up out of the waiting list maintained by the Commission. In respect of the vacancies which arise after the expiry of six months it is necessary to send the requisition to the Commission. It is also made clear that if the Commission makes recommendations regarding a post to the Department and additional vacancies occur in the Department within a period of six months on the receipt of the recommendations, then the vacancies which occur later on can be filled in from amongst the additional candidates recommended by the Commission. It is urged on behalf of the appellants that letter dated 7.1.1992 indicated that the cadre strength in the Haryana Civil Service (Executive Branch) was 440 and the officers filling these posts were around 129 and there was a shortfall of 111 and 23 posts had to be filled up by direct recruitment. Thus 12 posts for direct recruitment were vacant when the advertisement for recruitment was made which was held in 1991. Therefore, the appellants' case ought to have been considered when some of the vacancies arose by reason of non appointment of some of the candidates. Therefore, the Government ought to have considered the case of the appellants as per the rank obtained by them and the appellants had to be appointed if they came within the range of selection. Therefore, the appellants' case ought to have been considered when some of the vacancies arose by reason of non appointment of some of the candidates. Therefore, the Government ought to have considered the case of the appellants as per the rank obtained by them and the appellants had to be appointed if they came within the range of selection. Thus when these vacancies arise within the period of six months from the. date of previous selection the circulars are attracted and hence the view of the High Court that vacancies arose after selection process commenced has no relevance and is contrary to the declared policy of the Government in the matter to fill up such posts from the waiting list." This Court has also considered the same issue wherein there were no rules/administrative instructions for filling up vacancies from the waiting list. While examining the aforesaid issue this Court in Mukul Saikia v. State of Assam, (2009) 1 SCC 386 , held as under: "At the outset it should be noticed that the select list prepared by APSC could be used to fill the notified vacancies and not future vacancies. If the requisition and advertisement was only for 27 posts, the State cannot appoint more than the number of posts advertised, even though APSC had prepared a select list of 64 candidates. The select list got exhausted when all the 27 posts were filled. Thereafter, the candidates below the 27 appointed candidates have no right to claim appointment to any vacancy in regard to which selection was not held. The fact that evidently and admittedly the names of the appellants appeared in the select list dated 17.7.2000 below the persons who have been appointed on merit against the said 27 vacancies, and as such they could not have been appointed in excess of the number of posts advertised as the currency of select list had expired as soon as the number of posts advertised are filled up, therefore, appointment beyond the number of posts advertised would amount to filling up future vacancies meant for direct candidates in violation of quota rules. Therefore, the appellants are not entitled to claim any relief for themselves. The question that remains for consideration is whether there is any ground for challenging the. Therefore, the appellants are not entitled to claim any relief for themselves. The question that remains for consideration is whether there is any ground for challenging the. regularization of the private respondents." The determination rendered by this Court in the aforesaid judgments, substantiates the view expressed by us in the foregoing paragraphs." (P.535 537) 4. THE law on the point being settled, this writ petition is disposed of with the direction that if the petitioner is qualified in the interview for the selection of Lecturer (Computer Application) supra and if she is the first candidate in the waiting list, her case shall be considered in accordance with the judgment of the Supreme Court in Sat Pal's case supra. I am not expressing any opinion on any other points as raised in the writ petition. Writ petition is disposed of. No order as to costs. Miscellaneous applications also stand disposed of.