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2025 DIGILAW 448 (HP)

Jagdish Sharma v. HP Public Service Commissioner

2025-03-22

SANDEEP SHARMA

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JUDGMENT : Sandeep Sharma, J. Precisely, the question which falls for consideration by this Court in the instant case is “Whether a post that falls vacant on account of retirement of an employee on 31 st December of the year can to be said to be an anticipated vacancy of that year or not?” 2. For having bird’s eye view, facts relevant for adjudication of the case at hand are that vide communication dated 12.09.2024 (Annexure P-3 ), Department of Personnel, Government of Himachal Pradesh made a reference to Himachal Pradesh Public Service Commission for convening DPC meeting to consider the promotion of three officers of Non-Tehsildar/Non-BDO category in HP Administrative Service cadre (in short “HPASC”) against the vacancies available in the calendar year 2024. While sending aforesaid communication, respondent-commission specifically came to be apprised that there are three clear cut vacancies and one anticipated vacancy, arising on 31.12.2024 on account of retirement of one Mr. Yog Raj, HPAS. 3. Pursuant to afore reference, respondent-commission convened meeting of Departmental Promotion Committee on 24.09.2024 and recommended the names of Mr. Ankur, Mr. Om Prakash Yadav and Ms. Kiran Gupta for their promotion in HPAS under the quota of Non-Tehsildar & Non-BDO categories (Annexure P-5) . Since, name of the petitioner, who was at serial No. 4 in the inter se seniority list of Non-Tehsildar & Non-BDO categories was not considered by DPC, he made a representation to the Government of Himachal Pradesh, which subsequently took up the matter with the respondent-commission. Vide communication dated 23.12.2024 (Annexure P-9), Department of Personnel, Government of Himachal Pradesh, apprised respondent-commission that though vide communication dated 12.09.2024, proposal with regard to consideration of four eligible Non-Tehsildar/Non BDO category officers for promotion to HPAS, for the calendar year 2024, was forwarded, but recommendations has been made qua three eligible officers. It also came to be clarified in the aforesaid communication that though a request was made through communication dated 12.09.2024 to recommend the name of three eligible candidates, but proposal, if perused in its entirety shows that fourth vacancy was also to be filled up, which was to arise on 31.12.2024 on account of retirement of Mr. Yograj, HPAS. 4. It also came to be clarified in the aforesaid communication that though a request was made through communication dated 12.09.2024 to recommend the name of three eligible candidates, but proposal, if perused in its entirety shows that fourth vacancy was also to be filled up, which was to arise on 31.12.2024 on account of retirement of Mr. Yograj, HPAS. 4. Vide communication dated 09.12.2024, Secretary, HP Public Service Commission, while responding to afore communication sent by Government of Himachal Pradesh, justified its action of recommending the names of three eligible candidates, as detailed hereinabove, by stating that vacancy occupied by an incumbent till 31.12.2024 cannot be said to have become available in the previous year i.e. 2024, rather such vacancy, if any, will become available on 01.01.2025. In nutshell, respondent-commission attempted to justify its recommendations by stating that on the date of convening DPC, in terms of reference made by Government of Himachal Pradesh, only three clear-cut vacancies in the HPAS for the Non-Tehsildar and Non- BDO categories were available. Since, pursuant to aforesaid communication sent by respondent-commission, no further action was taken by the Government of Himachal Pradesh with regard to request made by the petitioner herein, he has approached this Court in the instant proceedings filed under Article 226 of the Constitution of India, praying therein for the following main reliefs:- “(i) That a writ in the nature of certiorari may kindly be issued for quashing decision taken by respondent No. 1- Commission as conveyed vide letter dated 09.12.2024, Annexure P-10; (ii) That a writ in the nature of mandamus may kindly be issued directing respondent No.1-Commission to review the DPC convened on 24.09.2024 and consider the 4th vacancy to be filled up from Non-Tehsildar/Non- BDO categories officers in which the petitioner is at Sr. No. 4 out of which three officers have been recommended for appointment as HPAS vide Notification dated 24th October, 2024 and respondent No.1- Commission may be directed to recommend the name of petitioner for promotion as Himachal Pradesh Administrative Services; (iii) That a writ in the nature of mandamus may kindly be issued directing respondent No. 2 to offer the appointment to the petitioner as Himachal Pradesh Administrative Services, in the level 18 of the pay matrix i.e. Rs. 56,100- Rs. 1,77,500/- on regular basis w.e.f. 01.01.2025 and justice be done.” 5. 56,100- Rs. 1,77,500/- on regular basis w.e.f. 01.01.2025 and justice be done.” 5. Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. J.L.Bhardwaj, learned Senior Counsel, duly assisted by Ms. Dhavanti Devi, learned counsel for the petitioner, is that since vide communication dated 12.09.2024, State of Himachal Pradesh had made reference to respondent-commission to convene meeting of the DPC for consideration of promotion of three officers of Non-Tehsildar & Non- BDO categories against three clear cut vacancies and one anticipated vacancy, it could not have recommended the name of only three candidates against three clear cut vacancies. Mr. Bhardwaj, learned Senior Counsel, while making this Court peruse minutes of DPC held on 24.09.2024 (Annexure P-5), argued that though there is no whisper/reason for non-consideration of the petitioner’s name, who was otherwise eligible on the given date, but even otherwise explanation rendered on record by the respondent-commission in its reply for not considering the name of the petitioner is wholly untenable. Mr. Bhardwaj, learned Senior counsel, states that since it is not in dispute that on 31.12.2024, person namely Mr. Yog Raj, HPAS, was to retire, vacancy was likely to arise on account of retirement of aforesaid officer, which was otherwise to be considered as anticipated vacancy for the year 2024. To substantiate his aforesaid argument, Mr. Bhardwaj, specifically referred to communication dated 12.09.2024 (Annexure P-3) , wherein respondents/State, while making reference specifically indicated in para 3 of the communication that there are three clear cut vacancies and one anticipated vacancy, which is further mentioned in proforma for referring proposal of promotion (available at page 40). He states that since person namely Yog Raj was to retire on 31.12.2024, post vacated by him shall be considered as anticipated vacancy for the year 2024. He further submitted that the explanation rendered on record by the respondent-commission qua non-consideration of petitioner’s name for anticipated vacancy by way of filing reply cannot be taken into consideration, especially when, same is not borne out from the proceedings of DPC held on the given date, rather same, being an after thought deserves to be ignored. While referring to notification dated 31.12.2021 (Annexure P-11) , Mr. Bhardwaj, learned Senior Counsel, further argued that in past, post likely to fall vacant on the last day of the year was considered to be anticipated vacancy of that year. While referring to notification dated 31.12.2021 (Annexure P-11) , Mr. Bhardwaj, learned Senior Counsel, further argued that in past, post likely to fall vacant on the last day of the year was considered to be anticipated vacancy of that year. If it is so, no discrimination should be meted out to the petitioner, who otherwise on account of non-consideration of his name, may suffer continuously in his service career. 6. To the contrary, Mr. Vikrant Thakur, learned counsel for the respondent-commission, while justifying the impugned action of respondent-commission, vehemently argued that though in reference dated 12.09.2024 (Annexure P-3), one anticipated vacancy of HPAS in the Non-Tehsildar & Non-BDO categories under 8% quota was shown to have occurred on 31.12.2024, but specific request in the communication was to convene a meeting of DPC to consider the promotion of three officers of the afore category under 8% quota. He states that perusal of aforesaid communication clearly reveals that names of only three eligible candidates were to be considered for promotion under relevant quota, but even if it is presumed that one anticipated vacancy was also to be taken into consideration, no illegality can be said to have been committed by the respondent- commission for not considering the name of the petitioner for the reason that under 8% quota, more than twenty officers of the aforesaid category could not have been promoted. He submitted that since, on the date of meeting of DPC, 17 posts under the Non- Tehsildar/Non-BDO categories stood filled up, only three persons could be recommended by the DPC. Mr. Vikrant Thakur, further argued that since person namely Yog Raj was to retire on 31.12.2024, there could not be any anticipated vacancy for the year 2024, rather on account of retirement of aforesaid person, vacancy would have become available on 01.01.2025. If it is so, there was no occasion, if any, for the DPC to take such vacancy into consideration, while convening DPC, in terms of reference made by Government of Himachal Pradesh vide communication dated 12.09.2024. Mr. If it is so, there was no occasion, if any, for the DPC to take such vacancy into consideration, while convening DPC, in terms of reference made by Government of Himachal Pradesh vide communication dated 12.09.2024. Mr. Thakur, further contended that though respondents-State after having received representation of the petitioner vide communication dated 24.11.2024, requested the respondent-commission to look into the matter and review the DPC of Non-Tehsildar/Non-BDO categories held on 24.09.2024, but once vide communication dated 09.12.2024 (Annexure P-10), clarification was given for not considering the name of the petitioner against so called anticipated vacancy, no further request was made by the Government of Himachal Pradesh. While referring to communication dated 31.01.2025 (Annexure R-1) annexed with the reply filed by the respondent-commission, Mr. Thakur, submitted that vide aforesaid communication, respondent- State of Himachal Pradesh itself accepted that vacancy occupied by an incumbent till 31.12.2024 cannot be said to be an anticipated vacancy of 2024, rather same shall be treated as vacancy of 2025. Lastly, Mr. Thakur, submitted that otherwise also, DPC is not bound by the proposal of State of Himachal Pradesh, rather promotion, if any, is to be made on the basis of rules as well as records of eligible candidates. 7. Mr. Ravi Chauhan, learned Deputy Advocate General, also adopted the arguments raised by Mr. Vikrant Thakur, learned counsel for the respondent-commission. 8. I have heard learned counsel for the parties and gone through the record. 9. It is not in dispute that petitioner herein, being from the Non-Tehsildar & Non-BDO category, is/was eligible to be considered under 8% quota fixed for induction of aforesaid category in the HPAS cadre. Sanctioned cadre strength of HPAS is 245 posts, out of which 20 posts fall to the share of Non-Tehsildar & Non-BDO categories under 8% quota. As per proposal dated 12.09.2024 (Annexure P-3) 17 posts in afore quota already stood filled up, meaning thereby, only three posts could have been filled up from amongst the eligible candidates of afore category. 10. Having perused aforesaid communication, this Court finds force in the submission of Mr. Vikrant Thakur, learned counsel for the respondent-commission, that the request was made only to consider the promotion of three officers from Non-Tehsildar & Non- BDO categories in HPAS, against the vacancies available in calendar year 2024. 10. Having perused aforesaid communication, this Court finds force in the submission of Mr. Vikrant Thakur, learned counsel for the respondent-commission, that the request was made only to consider the promotion of three officers from Non-Tehsildar & Non- BDO categories in HPAS, against the vacancies available in calendar year 2024. True it is that in para 3 of the afore communication, it came to be mentioned that four vacancies have become available to the share of the officers belonging from Non-Tehsildar & Non-BDO categories, out of which three were clearcut vacancies and one was anticipated vacancy. As per afore communication, one post, against which fourth eligible candidate could have been considered was to fall vacant on 31.12.2024 and as such, being an anticipated vacancy, it could also be taken into consideration by the DPC, while considering the cases of eligible candidates for promotion to the HPAS cadre under 8% quota in the calendar year 2024. 11. Though Mr. J.L.Bhardwaj, learned Senior Counsel for the petitioner, vehemently argued that the post, which was to fall vacant on account of retirement of Mr. Yog Raj on 31.12.2024 shall be treated as anticipated vacancy of the calendar year 2024, but this Court is not persuaded to agree with aforesaid submission of Mr. Bhardwaj, for the reason that an employee retiring on 31.12.2024 or on the last day of the year shall be deemed to be in service till mid night of that year or on 31.12.2024. If it is so, vacancy, if any, on account of retirement of an employee on 31.12.2024 or on the last day of a particular year, cannot be said to be an anticipated vacancy of the previous year i.e. 31.12.2024, as is in the case at hand, rather such vacancy shall be deemed to have occurred on 01.01.2025. Though having taken note of proposal sent by State of Himachal Pradesh vide communication dated 12.09.2024 (Annexure-3), respondent-commission was required to consider names of three eligible candidates for filing up three clear cut vacancies, but even if it is presumed that as per proposal, it was also to take into consideration anticipated vacancy, which as per the petitioner had to occur on 31.12.2024 on account of retirement of Mr. Yog Raj, no illegality can be said to have have been committed by the respondent- commission inasmuch as not considering the post to be vacated by Mr. Yog Raj, no illegality can be said to have have been committed by the respondent- commission inasmuch as not considering the post to be vacated by Mr. Yog Raj on 31.12.2024, as an anticipated vacancy of calendar year 2024. True it is that in proposal sent by respondent/State vide communication dated 12.09.2024, department concerned had construed the post of Mr. Yog Raj, which was to be vacated on 31.12.2024 as an anticipated vacancy, but such presumption/conclusion, if any, of the State Government was not binding upon the respondent-commission, rather it, while considering the proposal in its entirety, could have taken decision independently with regard to availability of actual vacancy on the date of convening of meeting of DPC. Since on the relevant date, respondent- commission was of the view that there was no anticipated vacancy for the calendar year 2024, coupled with the fact that proposal was only to recommend names of three eligible officers against three clearcut vacancies, no fault, if any, can be found with the action of commission is not considering the name of the petitioner, who otherwise claims himself to be at serial No. 4 in the inter se seniority of eligible candidates, for promotion. 12. True it is that perusal of minutes of DPC meeting held on 24.09.2024 nowhere suggests that though discussion, if any, with regard to anticipated vacancy, which as per respondent/State was to become available on 31.12.2024 on the retirement of Mr. Yog Raj, but such omission, if any, on the part of the DPC may not be of much relevance for the reason that since before convening meeting of DPC, respondent/commission in the given facts and circumstances had arrived at a definite conclusion that there is no anticipated vacancy for the relevant year, coupled with the fact that there was only a request on behalf of respondent/State to convene DPC to consider promotion of three officers of Non-Tehsildar & Non-BDO categories of HPAS cadre, there was otherwise no requirement, if any, to discuss such matter in the meeting. Minutes of DPC meeting, if perused in its entirety, clearly reveals that two responsible officers of respondent/State i.e. Additional Chief Secretary and Special Secretary (Personnel), were present, meaning thereby, that the factum of non-consideration of so called anticipated vacancy during the meeting of DPC held on 24.09.2024 was very much in the knowledge of the respondent/State, but yet at that stage, no objection was ever raised. 13. Though at this stage, Mr. J.L.Bhardwaj, learned Senior Counsel, attempted to argue that bare perusal of proposal, which ultimately came to be placed before DPC clearly reveals that same was prepared by the Junior Officer and at that relevant time, complete details with regard to proposal sent by the Government of Himachal Pradesh vide communication dated 12.09.2024 were not placed before the DPC, as a result thereof, it failed to take note of anticipated vacancy, however, this Court is not at all impressed with the aforesaid submission of Mr. Bhardwaj, for the reason as has been detailed hereinabove. 14. Proposal, if any, made by the Junior Officer of HPPSC was on the basis of communication dated 12.09.2024, but since prior to convening of meeting of DPC, respondent-commission itself was convinced that there were only three posts, against which names of eligible candidates from Non-Tehsildar/Non-BDO categories could be recommended, there was otherwise no occasion, if any, to deliberate upon such aspect of the matter in the meeting of DPC. Even if, for the sake of arguments, afore submission made by Mr. Bhardwaj is accepted, same may not have any bearing on the case at hand for the reason that in no event, posts more than three could have been recommended by the DPC to be filled up for the reason that only twenty posts under Non-Tehsildar & Non-BDO categories under 8% quota are available, out of which 17 posts already stood filled up. If it is so, only three posts were to be filled up by recommending the name of three eligible candidates, which in the case at hand has been done by respondent-commission. 15. If it is so, only three posts were to be filled up by recommending the name of three eligible candidates, which in the case at hand has been done by respondent-commission. 15. No doubt, in the case at hand, respondent/State at one point of time, having taken note of objection raised by the petitioner herein, took up the matter with the respondent-commission vide communication dated 23.11.2024 (Annexure P-9) , thereby requesting to review the DPC of Non-Tehsildar & Non-BDO categories held on 24.09.2024, but once plausible explanation was rendered on record by the respondent-commission for not treating the vacancy scheduled to be anticipated vacancy, respondent/State itself dropped the matter and sent communication dated 31.01.2025 (Annexure R-1), thereby concurring with the decision of the respondent-commission inasmuch as considering the vacancy to occur on 31.12.2024 to be vacancy of 2025 and not of calendar year 2024. At this juncture, it would be apt to take note of Clause 16.15 of Handbook on Personnel Matters, which reads as under:- “16.15 Procedure to be followed when appointing authority does not agree with the recommendation of DPC The D.P.C. is a recommendatory body and the recommendations made by it are subject to approval by the appointing authority. There may be certain occasions when, for valid reasons, the appointing authority may find it necessary to disagree with the recommendations of the duly constituted D.P.C. In cases where the recommendations of the DPC/Commission are not acceptable to the appointing authority, a second reference with cogent reasons shall be made to the DPC/Commission. If after re- consideration a particular Department still feels that the recommendations made by the DPC/Commission should not be accepted, the Administrative Department with the approval of the Minister-in-Charge shall prepare a self-contained summary of the case and after obtaining advice of the Department of Personnel, place the matter before the Cabinet Sub-Committee convened, for the said purpose.” 16. As per aforesaid provision, DPC is a recommending body and the recommendations are made subject to approval by the appointing authority. In case appointing authority has any reservation with regard to recommendations, it can disagree with the recommendation made by DPC. However, in the instant case, respondent-State never disagreed with recommendation of DPC, rather straightway proceeded to issue appointment letter to three eligible candidates on 24.10.2024, meaning thereby, recommendations made by respondent-commission were duly accepted. In case appointing authority has any reservation with regard to recommendations, it can disagree with the recommendation made by DPC. However, in the instant case, respondent-State never disagreed with recommendation of DPC, rather straightway proceeded to issue appointment letter to three eligible candidates on 24.10.2024, meaning thereby, recommendations made by respondent-commission were duly accepted. If it is so, there was no occasion, if any, for the respondents-State to send communication dated 23.11.2024 (Annexure P-9), thereby making request to review the DPC. Whether request to review DPC could have been made by the respondent- State after having issued appointment letter to the recommendees of DPC is a question to be decided in appropriate proceedings because in the instant case such exercise may be futile for the reason that after making request to review DPC held on particular date, respondent itself vide subsequent communication concurred with the decision of the respondent-commission in not treating the vacancy to occur on 31.12.2024 as a vacancy of that calendar year. 17. At this stage, Mr. Bhardwaj, specifically referred to Clause 16.8 of Chapter 16 of Handbook on Personnel Matters, to state that vacancy occurring between 1 st January and 31 st December of a year shall be treated of vacancy of that year only. The relevant portion reads as under:- “16.8 Method of calculating vacancies For holding meetings of the Departmental Promotion Committees, the precise number of vacancies for which select-list is to be prepared has to be worked out. From 23-6-1984, the number of regular vacancies that arose in each of the previous year/ years immediately preceding and the actual number of vacancies proposed to be filled in the current, year is to be worked out and select, list drawn year wise. For calculating the number of vacancies in the current year, all vacancies anticipated during the next 12 months from 1st January to 31st December shall be taken into account and should include only the existing vacancies (duly sanctioned and not merely budgeted) and anticipated retirements and promotions. Short-term temporary vacancies as detailed in Para -16.23(3) should not be taken into account for preparing panels. (H.P. Govt. Deptt. of Personnel letters No.1-13/73-DP(A-II) dated 27-4-1983 and Nos. PER(AP-II)A(1)-1-80-III dated 23-6-84- Annexures 16.18 and 16.24) and No. Per(AP-II)B(3)1/94 dated 16- 11-1994-Annexure-16.55)” 18. There cannot be any quarrel with aforesaid argument advanced by Mr. Short-term temporary vacancies as detailed in Para -16.23(3) should not be taken into account for preparing panels. (H.P. Govt. Deptt. of Personnel letters No.1-13/73-DP(A-II) dated 27-4-1983 and Nos. PER(AP-II)A(1)-1-80-III dated 23-6-84- Annexures 16.18 and 16.24) and No. Per(AP-II)B(3)1/94 dated 16- 11-1994-Annexure-16.55)” 18. There cannot be any quarrel with aforesaid argument advanced by Mr. Bhardwaj as well as aforesaid instruction issued by the Government of Himachal Pradesh. Vacancy, if any, occurred between 1 st January and 31 st December of a year shall be treated as vacancy of that year. However, in the instant case, no vacancy under the Non-Tehsildar & Non-BDO categories of HPAS became available on 31.12.2024. At the cost of repetition, it is observed that though Mr. Yog Raj, HPAS had to retire on 31.12.2024, but certainly, if vacancy, which was to occur on account of retirement of aforesaid officer could not have been considered to be vacancy of 2024 for the reason that employee retiring on 31.12.2024 shall be deemed to be in service till the mid night of that day. If it is so, vacancy caused on account of retirement of a person on 31.12.2024 shall be treated as a vacancy of the next year, and certainly not of the previous year. Similarly, this Court is not persuaded to accept the submission of Mr. Bhardwaj that in the past, respondent-commission had been treating vacancy occurring on 31 st December to be vacancy of that year because perusal of (Annexure P-11) issued by the Chief Secretary to the Government of Himachal Pradesh on the recommendation of State Public Service Commission, suggests that in that case, promotion to the post of Tehsildar or induction of a Tehsildar in the HPAS cadre was done on officiating basis. Other notifications placed on record by the petitioner clearly reveal that same were not issued in consultation with the respondent-commission, rather State Government itself proceeded to issue the promotion orders treating the vacancy occurring on 31 st December to be vacancy of that particular year. However, since, in the instant case, request was made to the respondent-commission to convene DPC, it rightly proceeded to convene meeting taking note of clearcut vacancies of that particular year. 19. Consequently, in view of detailed discussion made hereinabove, this Court finds no merit in the present petition and accordingly, the same is disposed of. Pending applications, if any, stand disposed of.