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2020 DIGILAW 457 (HP)

Dharmender Kumar v. State of Himachal Pradesh

2020-07-22

JYOTSNA REWAL DUA, TARLOK SINGH CHAUHAN

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JUDGMENT Tarlok Singh Chauhan, J. - Whether a candidate whose name has been included in the waiting list is entitled for appointment against the unfilled post arising out of the joining and thereafter resignation of the selected candidate is the question that is poised for consideration in this petition. 2. Respondent No. 3 i.e. Himachal Pradesh Staf Selection Commission, Hamirpur, vide advertisement dated 16.09.2017 issued an advertisement for recruitment of Ophthalmic Officer. The petitioner being eligible, appeared for the said post, and was placed at Serial No. 2 of the waiting list. 3. The grievance of the petitioner is that despite there being vacancy on account of the selected candidate having resigned after joining, the respondents are not ofering him the said post, therefore, they be directed by issuing a writ of mandamus to ofer the post in question to the petitioner. 4. The appointments to be made by respondent No. 3 are governed by Rules of Business & Procedure of Himachal Pradesh Subordinate Services Selection Board that have been framed under Article 162 of the Constitution of India. 5. Rule 16.6 thereof provides that "The candidates placed in the waiting list/panel shall have no right to be appointed except when a selected/recommended candidate does not join and the waiting list is still in operation". 6. Admittedly, the petitioner was placed at Serial No. 2 of the waiting list because out of two selected candidates, one candidate Kuldeep Mohan did not join whereas the other candidate Sumit Kumar joined but thereafter left the job. The candidate who was placed at Serial No. 1 of the waiting list was appointed against the vacancy created by the non-joining of the selected candidate i.e. Kuldeep Mohan. However, the petitioner despite being at Serial No. 2 was not ofered the job by invoking the provisions of Rule 16.6 (supra). 7. It is vehemently contended by the learned counsel for the petitioner that since one vacant post of Ophthalmic Officer is still vacant, therefore, respondents should be directed to appoint the petitioner. Whereas the stand of the respondents is categoric to the efect that the selection process had already come to an end by declaring of the final result and joining of the selected candidates. Whereas the stand of the respondents is categoric to the efect that the selection process had already come to an end by declaring of the final result and joining of the selected candidates. In case, selected candidates resigns, then the vacancy arising due to resignation after joining is treated as a new vacancy and as a general rule, no new vacancy can be filled up without advertisement of the post. We have heard learned counsel for the parties and have gone through the records of the case. 8. The law pertaining to the candidates, whose names are included in the waiting list viz-a-viz, the right of appointment against unfilled post because of selected candidate having not joined or after joining having resigned or left the job, has been settled beyond doubt by Hon'ble Supreme Court. 9. In this regard, Court may refer to the judgment of the Hon'ble Supreme Court in case of Raj Rishi Mehra and others versus State of Punjab and another, (2013) 12 SCC 243 , wherein it was observed as under:- 15. The question whether the candidates whose names are included in the waiting list are entitled to be appointed against the unfilled posts as of right is no longer res integra and must be answered in negative in view of the judgments of this Court in Union of India v. Ishwar Singh Khatri, (1992) Supp3 SCC 84 , Gujarat State Dy. The question whether the candidates whose names are included in the waiting list are entitled to be appointed against the unfilled posts as of right is no longer res integra and must be answered in negative in view of the judgments of this Court in Union of India v. Ishwar Singh Khatri, (1992) Supp3 SCC 84 , Gujarat State Dy. Executive Engineers Association v. State of Gujarat and others, (1994) Supp2 SCC 591 , State of Bihar v. Secretariat Assistant Successful Examinees Union 1986 and others, (1994) 1 SCC 126 , Prem Singh and others v. Haryana SEB and others, (1996) 4 SCC 319 , Ashok Kumar and others v. Chairman, Banking Service Recruitment Board and others, (1996) 1 SCC 283 , Surinder Singh and others v. State of Punjab and another, (1997) 8 SCC 488 , Madan Lal and others v. State of J&K and others, (1995) 3 SCC 486 , Kamlesh Kumar Sharma v. Yogesh Kumar Gupta and others, (1998) 3 SCC 45 , State of J&K and others v. Sanjeev Kumar and others, (2005) 4 SCC 148 , State of U.P. and others v. Rajkumar Sharma and others, (2006) 3 SCC 330 , Ram Avtar Patwari and others v. State of Haryana and others, (2007) 10 SCC 94 and Rakhi Ray and others v. High Court of Delhi and others, (2010) 2 SCC 637 . 16. In Surinder Singh's case, this Court observed as under: "14...9. A waiting list prepared in an examination conducted by the Commission does not furnish a source of recruitment. It is operative only for the contingency that if any of the selected candidates does not join then the person from the waiting list may be pushed up and be appointed in the vacancy so caused or if there is some extreme exigency the Government may as a matter of policy decision pick up persons in order of merit from the waiting list. But the view taken by the High Court that since the vacancies have not been worked out properly, therefore, the candidates from the waiting list were liable to be appointed does not appear to be sound. This practice, may result in depriving those candidates who become eligible for competing for the vacancies available in future. But the view taken by the High Court that since the vacancies have not been worked out properly, therefore, the candidates from the waiting list were liable to be appointed does not appear to be sound. This practice, may result in depriving those candidates who become eligible for competing for the vacancies available in future. If the waiting list in one examination was to operate as an infinite stock for appointments, there is a danger that the State Government may resort to the device of not holding an examination for years together and pick up candidates from the waiting list as and when required. The constitutional discipline requires that this Court should not permit such improper exercise of power which may result in creating a vested interest and perpetrate waiting list for the candidates of one examination at the cost of entire set of fresh candidates either from the open or even from service. 17. In Rakhi Ray's case, this Court referred to a number of judicial precedents and held: "7. It is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as "the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution", of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies. Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to "improper exercise of power and only in a rare and exceptional circumstance and in emergent situation, such a rule can be deviated from and such a deviation is permissible only after adopting policy decision based on some rationale", otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, is not permissible in law." 18. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, is not permissible in law." 18. In State of Punjab v. Raghbir Chand Sharma, (2002) 1 SCC 113 , a two Judge Bench considered the questions as to when the recruitment process can be said to have come to an end and whether the select list can be operated qua the posts/vacancies which become available due to resignation of the existing incumbent and answered the same in negative by making the following observations: "4. ...With the appointment of the first candidate for the only post in respect of which the consideration came to be made and select panel prepared, the panel ceased to exist and has outlived its utility and, at any rate, no one else in the panel can legitimately contend that he should have been offered appointment either in the vacancy arising on account of the subsequent resignation of the person appointed from the panel or any other vacancies arising subsequently. The circular order dated 22-3- 1957, in our view, relates to select panels prepared by the Public Service Commission and not a panel of the nature under consideration. That apart, even as per the circular orders as also the decision relied upon for the first respondent, no claim can be asserted and countenanced for appointment after the expiry of six months. We find no rhyme or reason for such a claim to be enforced before courts, leave alone there being any legally protected right in the first respondent to get appointed to any vacancy arising subsequently, when somebody else was appointed by the process of promotion taking into account his experience and needs as well as administrative exigencies." 19. In Mukul Saikia v. State of Assam, (2009) 1 SCC 386 , this Court held that once the appointments are made against the advertised posts, the select list gets exhausted and those who are placed below the last appointee cannot claim appointment against the posts which subsequently become available. Paragraph 33 of the judgment which contains discussion on this issue is reproduced below: "33. 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. Paragraph 33 of the judgment which contains discussion on this issue is reproduced below: "33. 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, appointments 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 regularisation of the private respondents." 10. Notably, the provisions of Rule 16.6 are in consonance with the aforesaid judgment(s), which clearly lay down that a waiting list prepared in an examination conducted by the Commission does not furnish a source of recruitment. It is operative only for the contingency that if any of the selected candidates does not join then the person from the waiting list may be pushed up and be appointed in the vacancy so caused. Once the appointments are made against the advertised posts, the select list gets exhausted and those who are placed below the last appointee cannot claim appointment against the posts which subsequently become available. The question is answered accordingly. 11. In view of the aforesaid discussion, we find no merit in this petition and the same is accordingly dismissed, so also the pending application(s), if any.