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Himachal Pradesh High Court · body

2019 DIGILAW 1895 (HP)

Kehar Singh v. H. P. Staff Selection Commission

2019-12-10

AJAY MOHAN GOEL

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JUDGMENT : AJAY MOHAN GOEL, J. 1. Brief facts necessary for the adjudication of the present petition are that vide Advertisement Annexure P-3, the Himachal Pradesh Staff Selection Commission, Hamirpur invited applications from eligible candidates to fill up various posts including the posts of Junior Environmental Engineer (on contract basis) for Himachal Pradesh State Pollution Control Board. As per the Advertisement, in all, 12 posts of Junior Environmental Engineer (on contract basis) were advertised for being appointed in the Himachal Pradesh State Pollution Control Board. Out of 12 posts, 5 were meant for General Unreserved category, 1 for General (BPL) category, 2 for Scheduled Caste (UR) category, 2 for OBC (UR) category, 1 OBC (BPL) category and 1 for Scheduled Tribe (UR) category. Petitioner before this Court being eligible to participate in the process which was so initiated by the Himachal Pradesh Staff Selection Commission, applied for being considered for the post of Junior Environmental Engineer. As he belonged to OBC category, he submitted his candidature for being considered against the posts reserved for OBC category. It is a matter of record that the petitioner, on the basis of selection process which was so undertaken by the Staff Selection Commission, could not find his place in the merit either against the General Unreserved seats or for the seats which were reserved for OBC Unreserved category. However, he was at Sr. No. 1 in the Waiting List Panel so prepared by the Staff Selection Commission for OBC Unreserved category. One Shri Raman Deep, who stood selected against the post reserved for OBC category, after joining the said post, tendered his resignation. Thereafter, vide communication dated 31.07.2019, (Annexure R- 2/3) appended with the reply filed by the Himachal Pradesh State Pollution Control Board, called upon the Himachal Pradesh Staff Selection Commission to recommend suitable candidates out of the Waiting List Panel for appointment against the post of Junior Environmental Engineer, which had become available post tendering of resignation of Shri Raman Deep. Thereafter, vide communication dated 31.07.2019, (Annexure R- 2/3) appended with the reply filed by the Himachal Pradesh State Pollution Control Board, called upon the Himachal Pradesh Staff Selection Commission to recommend suitable candidates out of the Waiting List Panel for appointment against the post of Junior Environmental Engineer, which had become available post tendering of resignation of Shri Raman Deep. This request of the Board was turned down by the Staff Selection Commission, Hamirpur vide communication dated 19th August, 2019 (Annexure R-2/4), on the plea that as the candidate recommended for appointment had actually joined and thereafter tendered his resignation, therefore, the vacancy stood exhausted and a person in the Waiting List could not be recommended for appointment against said vacancy and the same could only be filled up by initiating fresh process for filling up the post in issue. 2. Feeling aggrieved, the petitioner, who was at Sr. No. 1 in the Waiting List of OBC category candidates has filed this writ petition, inter alia, praying for the following reliefs: “ (i) That the respondent No. 2 may kindly be directed to consider the petitioner for appointment to the post of Junior Environmental Engineer against the post reserved for OBC (UR) category from the select/waiting list prepared by the respondent No. 1 at Annexure P-8 against the post vacated by the respondent No. 3 who was selected in the same selection at Annexure P-7 and accordingly respondent No. 1 may kindly be directed to do the needful, in the interest of justice. (ii) Any other order which this Hon’ble Court deems just and proper in the facts and circumstances of the case, may kindly be passed in favour of the petitioner and against the respondent.” 3. It is not in dispute that the candidate who was actually selected under the OBC category joined the vacancy in issue and thereafter tendered his resignation. 4. Learned counsel for the petitioner has argued that in terms of the Himachal Pradesh Staff Selection Commission, Hamirpur (Rules of Business and Procedure) Rules, 2004, the life of the Waiting Panel is one year, therefore, the act of the respondent-Commission in denying appointment to the petitioner against the vacancy, is per se arbitrary and not sustainable in the eyes of law. In the alternative, he has argued that otherwise also, case of the petitioner is squarely covered under Clause 16.8 thereof, because now as a vacancy otherwise has become available post tendering of resignation by Shri Raman Deep and therefore also, name of the petitioner can be recommended by the Commission to the Himachal Pradesh State Pollution Control Board in terms of Clause 16.8 of the said Rules of Business and Procedure. 5. On the other hand, learned Senior Counsel appearing for the Commission has argued that the Waiting Panel is not to be construed for a post which stands exhausted by a recommended candidate. As per him, a person whose name figures in the Waiting Panel can be recommended for appointment only if a person who was in the merit list, though offered appointment, does not joins the post in issue. In support of his contention, Mr. Shreedhar has relied upon the judgment of Hon’ble Supreme Court in Manoj Manu and another Vs. Union of India and others, (2013) 12 Supreme Court Cases 171. 6. As regards Clause 16.8, Mr. Shreedhar has argued that said Clause of the Rules of Business and Procedure does not come to the rescue of the petitioner, because this Clause will come into picture only if a fresh requisition is sent by the employer to the Staff Service Commission and, that too, within the period of six months as from the date when the Waiting Panel comes into existence. 7. I have heard learned counsel for the parties and have also gone through the documents appended with the petition as well as other documents which have been appended with the respective responses filed by the parties concerned. 8. As I have already mentioned hereinabove, in the present case, the vacancy which has become available, has so accrued on account of the resignation which has been tendered by Shri Raman Deep, meaning thereby that here it is not a case where a candidate who was recommended for appointment by the Commission, did not join the post in issue. On the contrary, the candidate in issue joined the post and thereafter tendered his resignation. On the contrary, the candidate in issue joined the post and thereafter tendered his resignation. It is exactly such a situation which was before the Hon’ble Supreme Court in Manoj Manu’s case (supra), in which, Hon’ble Supreme Court has laid the law that when a selected candidate joins the post, there is culmination of the process with the exhaustion of the notified vacancy and vacancies arising thereafter, may be on account of resignation of selected candidate, have to be filled up by fresh examination. 9. Coming back to the facts of the present case, as the post against which the petitioner is now seeking appointment, already stood exhausted by virtue of the recommended candidate having joined the post in issue, therefore, no mandamus can be issued to the Commission to recommend the name of the petitioner for being considered for appointment against the vacancy which has been vacated on account of the resignation so tendered by Shri Raman Deep. 10. As far as Clause 16.8 of the Rules of Business and Procedure is concerned, in my considered view, the same is also of no assistance to the petitioner for the simple reason that the eventuality which has been contemplated in this particular Clause has not arisen as far as the facts of the present case are concerned. On a pointed query so made to the learned counsel appearing for the Himachal Pradesh State Pollution Control Board, he stated that the Pollution Control Board is in the process of amending the Recruitment and Promotion Rules and the process for filling the up the posts, including the vacancy which has become available post tendering of resignation by Shri Raman Deep, shall be initiated after any amendment is made therein. 11. In view of the observations made hereinabove, as there is no merit in this petition and further as there is no illegality in the action of the respondent-Corporation in not recommending the name of the petitioner against the vacancy which has become available on account of resignation tendered by Shri Raman Deep, this petition being devoid of any merit is dismissed. Miscellaneous applications, if any, also stand disposed of.