Sh. Kishan Singh vs Mechanic At Local Unit In Shimla. ...
2021 Latest Caselaw 4990 HP

         IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                 ON THE 19th DAY OF OCTOBER, 2021
                              BEFORE




                                                          .
             HON'BLE MRS. JUSTICE JYOTSNA REWAL DUA





             CIVIL WRIT PETITION (ORIGINAL APPLICATION)
                          No.6376 of 2019





          Between:-

          SH. KISHAN SINGH
          S/O SH. PARAS RAM,
          C/O BANSAL TRUNK HOUSE,





          LOWER TOTU, TEHSIL AND
          DISTRICT SHIMLA, H.P.

                                                        .....PETITIONER

          (BY SH. RAVINDER SINGH JASWAL, ADVOCATE)

           AND

    1.    REGIONAL MANAGER,
          HIMACHAL ROAD TRANSPORT


          CORPORATION SHIMLA DIVISION,
          LOCAL UNIT, SHIMLA 12,
          HIMACHAL PRADESH.




    2.    SH. CHAMAN PARKASH
          SON OF SHRI RAM KRISHAN,





          VILLAGE GHARYANA,
          TEHSIL SUNI, DISTRICT SHIMLA, H.P.





    3.    SH. ROHIT KUMAR,
          SON OF SHRI KAMAL SINGH,
          VILLAGE NAKTARA,
          P.O DEEM, TEHSIL JUBBAL,
          DISTRICT SHIMLA, HP

    4.    SH. SUNIL KUMAR
          SON OF SHRI PREM LAL,
          VILLAGE BALAG, TEHSIL THEOG,
          DISTRICT SHIMLA, H.P.

                                            .....RESPONDENTS




                                         ::: Downloaded on - 31/01/2022 23:12:15 :::CIS
                                              2


           (SH. RAMAN JAMALTA, ADVOCATE, FOR RESPONDENT
           NO.1.
           RESPONDENTS NO. 2 TO 4 ALREADY EX-PARTE.)
     _________________________________________________________________




                                                                     .

                    This petition coming on for hearing this day, the Court

    passed the following:





                                     JUDGMENT

The petitioner contends that the vacancies, which

were not notified in the advertisement/notification dated

25.07.2014 and which accrued subsequent to the issuance of

advertisement/ notification dated 25.07.2014, are also required to

be filled in from the waiting list/panel, alleged to have been drawn

by the respondent-Corporation pursuant to the selection process

undertaken in terms of notification dated 25.07.2014.

2. The case of the petitioner is that:-

2(i) The respondent-Corporation had published

advertisement/notification for recruitment of 147 posts of piecemeal

workers in HRTC's various workshops. In terms of this notification,

two posts of Motor Mechanic were advertised for Local Unit in

Shimla Division.

2(ii) Minimum educational qualification required for the

posts as laid down in the notification were as under:-

"iii) Minimum Educational Qualification.

-Matric with ITI in the concerned trade.

-ITI from the Government Institutions/Government recognized Institutions.

-Age limit 18 to 45 years.

-Himachali bonafide only."

2(iii) Petitioner being eligible in terms of the notification,

participated in the selection process. He was at Sr. No.4 in the merit

.

list drawn by the respondent-Corporation. The petitioner, therefore,

was not selected for the two posts of Motor Mechanic at the Local

Unit in Shimla Division.

2(iv) Subsequent to the completion of the selection process,

three more vacancies of Motor Mechanics became available at Local

Unit in Shimla Division. Petitioner was at Sr. No.2 of the waiting

list, therefore, was required to be appointed as Motor Mechanic

against one of these three vacancies. Instead of acting on the

waiting list, the respondent-Corporation invited fresh applications

from the eligible persons for these three vacancies. The action of the

respondent in not appointing the petitioner to the vacancies

subsequently becoming available in the Local Unit in Shimla

Division was illegal.

With the above assertions, this petition was filed for the following

substantive reliefs:-

"(a) That the appointments made after 30.06.2015 against the vacant post of the trade of Motor Mechanic in the respondent department may kindly be quashed and set aside being illegal and contrary to the law.

(b) That the respondent department may kindly be directed to fill the post of Motor Mechanic from the waiting/panel list as prepared by the respondent department after the selection proceedings initiated on 11.08.2014."

3. In support of the prayers, learned counsel for the

petitioner contended that in terms of advertisement/notification,

dated 25.07.2014, it was incumbent upon the respondent-

.

Corporation to prepare a waiting list of piecemeal workers in all the

advertised trades to meet its future requirement. It was submitted

that all future vacancies were required to be filled in from the

waiting list panel prepared in the selection process undertaken by

the respondent in terms of the notification dated 25.07.2014.

"(vi) r to Reliance was placed upon the following Clauses of notification dated

25.07.2014:-

The committee will engage the piece meal workers

strictly as per vacancies indicated in the Annexure-"A" attached. The selection will be made strictly on basis of merits & displayed prominently on the notice board.

However, they will prepare the waiting list of piecemeal workers in all trades to meet the future requirement in

HRTC.

(viii) Final list along with waiting list will be provided

to the Head Office for displaying it on website & final list will also be displayed on the notice board."

4. Per contra, learned counsel for the respondent-

Corporation submitted that as per notification dated 25.07.2014,

only two posts of Motor Mechanic on piecemeal basis were to be

filed in the Local Unit in Shimla Division. The petitioner stood

fourth in the merit list, therefore, could not be appointed as such.

That the waiting list of piecemeal workers was not prepared by the

respondent-Corporation. The Motor Mechanics, who were selected

as per their merit obtained in the selection process, were eventually

appointed and posted as Motor Mechanics. They had joined as

such. For the vacancies of Motor Mechanics, which arose

.

subsequently at Local Unit in Shimla Division, fresh applications

were invited from the eligible candidates. Learned counsel for the

respondent-Corporation also submitted that though the petitioner

had applied afresh for the new vacancies, but he did not appear in

the fresh selection process.

5.

It is settled law that vacancies over and above notified

in the advertisement, cannot be filled in. Reference in this regard

can be made to the judgment of the Hon'ble Apex Court in Rakhi

Ray and others Versus High Court of Delhi and others and

connected matter reported in (2010) 2 Supreme Court Cases 637

wherein it was held that 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 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, not

permissible in law. The Hon'ble Apex Court summarized the law to

the effect that any appointment made beyond the number of

vacancies advertised is without jurisdiction, being violative of

Articles 14 and 16(1) of the Constitution of India, thus, a nullity,

inexecutable and unenforceable in law. In case the vacancies

notified stand filled up, process of selection comes to an end.

Waiting list etc. cannot be used as a reservoir, to fill up the vacancy

which comes into existence after the issuance of

notification/advertisement. The unexhausted select list/waiting list

becomes meaningless and cannot be pressed in service any more.

The judgment in Rakhi Ray's case supra was followed in (2021) 3

SCC 755, titled High Court of Kerala Versus Reshma A. And

others.

In the instant case, it is not in dispute that

notification dated 25.07.2014 was interalia in respect to two posts

of Motor Mechanic at Local Unit in Shimla Division. The petitioner

had participated in the selection process for the two posts of Motor

Mechanic at Local Unit in Shimla. He remained fourth in the merit

list drawn in this selection process. It is not in dispute that two

persons, on the basis of their higher merit in the selection process,

were selected and appointed as Motor Mechanics on piecemeal

basis at Local Unit in Shimla. They had joined as such. Though, the

respondent-Corporation has not prepared the waiting list as per its

.

reply, however, preparation of waiting list even otherwise would not

have given any advantage to the petitioner in the facts of the case

as both the incumbents selected on the basis of their merit had

joined as Motor Mechanics on piecemeal basis. Subsequent

vacancies, which arose in the respondent-Corporation, therefore,

could not be filled on the basis of merit/waiting list drawn in the

selection process undertaken in terms of notification dated

25.07.2014. It is not the case of the petitioner that any other person

from the merit/waiting list of selection process undertaken in terms

of notification dated 25.07.2014 was appointed against vacancy,

which arose subsequent to the notification dated 25.07.2014. The

respondent-Corporation was within its right to call for fresh

applications for the vacancies, which arose subsequent to the

issuance of the notification dated 25.07.2014.

No other point was urged.

Consequently, I find no merit in the instant petition

and the same is accordingly dismissed. Pending applications, if

any, also stand disposed of.

Jyotsna Rewal Dua Judge October 19, 2021 R.Atal