Himachal Pradesh High Court

Yash Pal vs "In This Case The Facts Were on 18 November, 2022

Bench: Tarlok Singh Chauhan, Virender Singh

     IN THE     HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
                 ON THE 18th DAY OF NOVEMBER, 2022
                                     BEFORE
          HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN,




                                                            .
                                       &





                HON'BLE MR. JUSTICE VIRENDER SINGH
                 CIVIL WRIT PETITION No.7618 of 2022





    Between:-

    YASH PAL
                                                               ...PETITIONER
    (BY MR. JIYA LAL BHARDWAJ, ADVOCATE)

    AND

    STATE OF H.P. & ORS.
                   r           to                          ...RESPONDENTS

    (BY MR. ASHOK SHARMA, ADVOCATE GENERAL, WITH MR.
    RAJINDER   DOGRA,   SENIOR ADDITIONAL   ADVOCATE
    GENERAL, MR. SHIV PAL MANHANS, MR. VINOD THAKUR,


    ADDITIONAL ADVOCATE GENERALS AND MR. RAJAT
    CHAUHAN, LAW OFFICER).

    WHETHER APPROVED FOR REPORTING?




                 This petition coming on for admission this day,





    Hon'ble Mr. Justice Virender Singh, passed the following:





                                     ORDER

By virtue of the present writ petition, the petitioner

Sh. Yash Pal, has invoked the extra ordinary writ jurisdiction of

this Court under Article 226 of the Constitution of India, for the

following substantive relief:-

"That a writ in the nature of mandamus may kindly be issued directing the respondents to offer the appointment to the petitioner on the post of Gram Rojgar Sewak w.e.f. 15.11.2021 alongwith interest @ 9% per annum from the due date till its realization and justice be done."

2. According to the petitioner, he has passed the

matriculation examination in the year 2014 and thereafter, passed

10+2 in the year 2016. In the year 2019, he has obtained the

Bachelor of Arts Degree from Himachal Pradesh University.

3. The respondent No.3 had advertised six posts of Gram

Rojgar Sewak on 25.07.2020, vide Annexure P-4.

4. In response to the advertisement, the petitioner, who

belongs to Schedule Caste category, has applied for the said posts

by annexing all the relevant documents. After the last date,

respondent No.3 called all the eligible candidates for verification of

the testimonials and consequently, the result was declared on

15.11.2021, recommending only five candidates for the posts of

Gram Rojgar Sewak against six posts advertised. The respondent

No.3 has also prepared a waiting list, in which, the name of the

petitioner figures at serial No.2.

5. It is the further case of the petitioner that out of the

five selected candidates, one candidate, unfortunately figuring at

serial No.4, had died on 09.05.2021 and one candidate namely Ms.

Gurpreet Kaur has not joined. Asserting his right to be considered

for appointment, it is the case of the petitioner that the

respondents have not offered the appointment to him without any

reason or rhyme.

6. In this regard, the petitioner has also served a legal

notice, through his counsel, upon respondent No.3, but, despite of

the notice, no relief has been given to him, by the respondents, for

which, he is otherwise entitled for.

7. On all these submissions, a prayer has been made for

allowing the writ with consequential relief, as referred above.

8. The respondents have filed the instructions dated 17th

November, 2022, in which, the factual position, as pleaded in the

writ petition, has not been disputed by admitting that five eligible

candidates were selected as per select list and the name of the

petitioner was figuring at serial No.2 in the waiting list. One

selected candidate Sh. Pankaj Kumar has died and another

candidate Ms. Gurpreet Kaur has not to accepted the offer of

appointment.

9. However, a futile attempt has been made by the

respondents to justify their acts of not offering the letter of

appointment to the petitioner on the ground that one Ms. Anu

Devi, W/o Sh. Shayam Lal has challenged the selection list by way

of filing CWP No. 7358 of 2021, in which, the Division Bench of

this Court has passed the following order:-

"The appointment, if any, shall be subject to the final outcome of the writ petition."

10. It is no longer res integra that although the selected

candidates, in the waiting list, has no vested right to get

appointment against the posts advertised, yet the State cannot

withdraw the list arbitrarily without there being any bona fide or

appropriate reasons.

11. While holding so, reliance can be placed upon the

decision of this Court in 2021(3) Him L.R. (DB) 1801, titled as

Varun Dhiman versus State of Himachal Pradesh and others.

The relevant paragraphs of the judgment are reproduced as

under:-

"In this case the facts were-respondent No.1, South East Central Railway (for short the SECR) issued an advertisement on 15.12.2010 inviting

applications for filling up 5798 posts in the pay scale of Rs.5200- Rs. 20,200 + Grade Pay of Rs.1800/ in Raipur, Bilaspur and Nagpur divisions and workshops. The claim of the original writ petitioners who filed applications before the Central Administrative

Tribunal (for short CAT) was that as per the existing instructions the select list was prepared with 20%

extra candidates. Therefore, the result of 6995 candidates was declared who were successful. The appellants fell in the category of extra 20%. The SECR did not make the appointments from these 20% extra

candidates though 624 posts remained unfilled in the general category itself. The appellants who fell in the 20% category of extra candidates filed applications before the CAT praying that the SECR be directed to fill in the unfilled vacancies from this list of 20% candidates. This application was rejected by the Tribunal. Allowing the appeal, the Hon'ble Supreme Court observed as under:-

5. The main issue which arises before us is whether the SECR could have ignored the 20% extra panel despite the letter dated 02.07.2008 without giving any

cogent reason for the same. No doubt, it is true, that mere selection does not give any vested right to the selected candidate to be appointed. At the same time when a large number of posts are lying vacant and selection process has been followed then the employer must satisfy the court as to why it did not resort to and

.

appoint the selected candidates, even if they are from the replacement panel. Just because discretion is

vested in the authority, it does not mean that this discretion can be exercised arbitrarily. No doubt, it is not incumbent upon the employer to fill all the posts but

it must give reasons and satisfy the court that it had some grounds for not appointing the candidates who found place in the replacement panel. In this behalf we may make reference to the judgment of this Court in R.S. Mittal vs. Union of India (UOI)1, wherein it was held as follows: 1 (1995) Suppl.2 SCC 230

10. .....It is no doubt correct that a person on the select- panel has no vested right to be appointed to the post for which he has been selected. He has a right to be considered for appointment. But at the same

time, the appointing authority cannot ignore the select- panel or decline to make the appointment on its whims.

When a person has been selected by the Selection Board and there is a vacancy which can be offered to him, keeping in view his merit position, then, ordinarily, there is no justification to ignore him for appointment. There has to be a justifiable

reason to decline to appoint a person who is on the selectpanel. In the present case, there has been a mere inaction on the part of the Government. No reason 10 whatsoever, not to talk of a justifiable reason, was

given as to why the appointments were not offered to the candidates expeditiously and in accordance with

law. The appointment should have been offered to Mr. Murgod within a reasonable time of availability of the vacancy and thereafter to the next candidate. The Central Government's approach in this case

was wholly unjustified. 6. Our country is governed by the rule of law. Arbitrariness is an anathema to the rule of law. When an employer invites applications for filling up a large number of posts, a large number of unemployed youth apply for the same. They spend time in filling the form and pay the application fees. Thereafter, they spend time to prepare for the examination. They spend time and money to travel to the place where written test is held. If they qualify the written test they have to again travel to appear for the interview and medical

examination etc. Those who are successful and declared to be passed have a reasonable expectation that they will be appointed. No doubt, as pointed out above, this is not a vested right. However, the State must give some justifiable, non-arbitrary reason for not filling up the post. When the employer is

.

the State it is bound to act according to Article 14 of the Constitution. It cannot without any rhyme or reason

decide not to fill up the post. It must give some plausible reason for not filling up the posts. The courts would normally not question the justification but the

justification must be reasonable and should not be an arbitrary, capricious or whimsical exercise of discretion vested in the State. It is in the light of these principles that we need to examine the contentions of the SECR.

Judged in light of the aforesaid exposition of law,

the respondent-State has failed to spell out any cogent and convincing reasons as to why no steps were taken to fill up 3 posts from the waiting list.

It is not in dispute that even after

offering appointment to 22 candidates from the waiting list, 3 posts were still lying vacant on account of non-

joining of the candidates, which were required to be filled up from the next in the waiting list, when the panel was still live unless there was a decision to the contrary. Since there is no such decision, therefore, the petitioner cannot be made to suffer for no

fault on his part or on account of the fault of respondent No.2 and its officials/officers.

Accordingly, while allowing this writ petition, we direct respondent No.3 to sponsor names

of three candidates including the petitioner within a period of one week from today and on such

sponsorship, respondent No.2 shall issue appointment order(s) to the petitioner and two others as Laboratory Assistant (Allopathy) on contract basis, OBC (UR) Post Code 654.

12. This decision has been again reiterated by the Division

Bench of this Court in CWP No. 2865 of 2020, decided on

15.01.2021, titled as Shalini Thakur versus State of Himachal

Pradesh and another. The relevant paragraphs, whereof, are

reproduced as under:-

"Now adverting to the claim of the petitioner, it is not in dispute that her name appeared in the waiting list, which is prepared in service matters by the competent authority of eligible and qualified persons who in order of merit are placed below the last selected candidate. How waiting list should operate and what is

.

its nature may be governed by the rules. Usually, it is linked with the selection or examination for which it is

prepared. Such lists are prepared either under the rules or even otherwise mainly to ensure that the working in the office does not suffer if the selected candidate does

not join for one or the other reasons or the next selection or examination is not held soon. Therefore, once the selected candidates join and no vacancy arises due to resignation etc. or for any other reason within the period the list is to operate under the rules or within reasonable period where no specific period is provided

then candidate from the waiting list has no right to claim appointment to any future vacancy which may arise unless the selection was held for it.

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. This is so held by a Bench of three Judges of the Hon'ble Supreme Court in Gujarat State Dy. Executive Engineers' Association v. State of Gujarat, 1994 Supp (2) SCC 591.

Similar reiteration of law can be found in the two recent judgments of this Bench rendered in CWP No.

3554 of 2019 titled Dharmender Kumar v. State of H.P., decided on 22.07.2020 and CWP No. 3371 of 2019 titled Robin Singh Mehta v. State of H.P., alongwith connected matters, decided on 12.11.2020."

13. Considering the admitted position of the present case,

in the light of the decision, as referred above, this Court is not in

agreement with the justification, which has been given by the

respondents, as, when the two candidates, due to the reasons, as

assigned in the writ petition, could not join the services, although,

their names were figured in the selected list, as such, the

candidates at serial No.1 and 2 (petitioner) in the waiting list are

entitled to be appointed as Gram Rojgar Sewak, consequently,

respondent No.3 is directed to issue the offer of appointment to the

above mentioned two persons, whose names have been figured at

serial No.1 and 2, within a period of twenty days from today.

14. In view of the above, the petition stands disposed of