Baby Rani vs State Of Himachal Pradesh And Another

Ajay Mohan Goel, J

By way of this writ petition, the petitioner has inter alia prayed for the following reliefs:-

"i) That a writ of mandamus directing the respondents to recommend the name of the petitioner for appointment in pursuance to Annexure P-4 and as per rules per rule ix of respondent No.2, may be issued.

ii) That a time-bound direction may be given to respondent No. 2 to send the sponsor the name of the petitioners forthwith."

The issue involved in this case is in a very narrow compass. Process was initiated by the Himachal Pradesh Public Service Commission to fill up certain posts of Assistant District Attorneys. In terms of the said process, 24 posts of Assistant District Attorneys were to be filled in, including one post reserved for Scheduled Caste category. The petitioner applied for the post under the said category.

In terms of the final result declared by the Authorities, one Ms. Babita Dhiman was selected against the Scheduled Caste category candidate. According to the petitioner, she was next in merit as far as Scheduled Caste category candidates were concerned.

Her grievance is that after the name of Ms. Babita Dhiman was recommended by the Public Service Commission to the employer and appointment was offered to her, Ms. Babita Dhiman joined the post and thereafter tendered her resignation. Thereafter, the petitioner staked her claim to be appointed against the said post, but appointment has not been offered to her.

Learned Senior Counsel appearing for the petitioner argued that it is not in dispute that petitioner was No. 2 in the order of merit after Ms. Babita Dhiman as far as Scheduled Caste candidates are concerned. He submitted that it is a matter of record that Ms. Babita Dhiman, after joining the post, tendered her resignation and vacated the post. He submitted that therefore the act of the respondents of not offering the post to the candidate who is next in line of merit is not sustainable in the eyes of law. Accordingly, learned Senior Counsel submitted that a mandamus be issued to the respondents, directing them to offer the unfilled post to the present petitioner.

Learned Counsel for the Public Service Commission referred to the reply filed by the Commission and submitted that in the present case, it is not as if the selected candidate did not join the post in issue and the post remained unfilled. He submitted that after the name of the Ms. Babita Dhiman was recommended by the Public Service Commission, she was offered appointment. She joined the post on the basis of said appointment letter but later tendered her resignation. Learned Counsel submitted that above facts demonstrate that it is not as if the seat remained unfilled. It was occupied by the selected candidate and thus the post stood exhausted. He submitted that the subsequent resignation tendered by the selected candidate is of no help to the petitioner because once the seat stood exhausted, as per rule, it could not be offered to the next candidate in merit as per the earlier process. Learned Counsel also referred to Rule-7(D) (iv) of Chapter V of the Himachal Pradesh Public Service Commission (Procedure and Transaction of Business and Procedure for Conduct of the Screening Tests/Examinations and Personality Tests Etc.) Rules, 2021, to substantiate his stand.

Learned Additional Advocate General adopted the arguments advanced by learned Counsel for the Public Service Commission and in addition, he submitted that in the present case, it is not as if the seat in issue remained unfilled on account of the non-joining of Ms. Babita Dhiman. He submitted that Ms. Babita Dhiman joined the post in issue and after serving for some time, she tendered her resignation, which was accepted by the Competent Authority on 01.08.2023. He also informed the Court that Ms. Babit Dhiman had joined pursuant to notification dated 23.02.2023 and had submitted her joining on 01.03.2023 and thus, she served the post up to 01.08.2023 when her resignation was accepted by the Authority.

In rebuttal, learned Senior Counsel for the petitioner drew the attention of the Court to Annexure P-7, dated 03.10.2013, appended with the petition and submitted that in similar circumstances, a post vacated by an incumbent of the Scheduled Caste category of the Himachal Pradesh Police Service upon his reversion to his parent Department, was offered to the next in line and that too after two years. Therefore, the contention of the respondents that the post once exhausted on the joining of the selected candidate, cannot be offered to the candidate next in merit, is not sustainable in the eyes of law.

I have heard leaned Senior Counsel for the petitioner and also learned Additional Advocate General as well as learned Counsel for the Public Service Commission and have also carefully gone through the pleadings as well as documents appended therewith.

The facts in the present case are not in much dispute. Against one post reserved for Scheduled Caste category of Assistant District Attorney, Ms. Babita Dhiman was recommended for appointment by the Public Service Commission on merit. The petitioner was second in merit but because there was only one post, obviously, her name was not recommended by the Public Service Commission. It is also a matter of record that on the basis of recommendations of the Public Service Commission, in terms of notification dated 23.02.2023, Ms. Babita Dhiman alongwith other candidates was offered appointment and she joined the post on 01.03.2023. Immediately upon joining of Ms. Babita Dhiman, the post in issue stood exhausted and it no more remained unfilled. It is also a matter of record that thereafter Ms. Babita Dhiman was selected in the Himachal Pradesh Administrative Service and she tendered resignation, which was accepted by the Authority on 01.08.2023. All these facts are evident from the reply filed by the State. Thus, when Ms. Babita Dhiman tendered her resignation and the same was accepted by the Authority, this resulted in the occurrence of a fresh vacancy on account of resignation from the same by Ms. Babita Dhiman and it is not as if the post initially advertised by the Public Service Commission, for which the petitioner alongwith other candidates, including Ms. Babita Dhiman, applied, could have been construed to have remained unfilled.

Now, the moot issue is as to whether the respondents were under any obligation under these circumstances to offer the post to the petitioner being next in line of merit?

Respondent- Public Service Commission has appended with its reply as Annexure R-2/1, the Himachal Pradesh Public Service Commission (Procedure and Transaction of Business and Procedure for Conduct of the Screening Tests/Examinations and Personality Tests Etc.) Rules, 2021. Rule 7(D)(ix) of the same reads as under:-

"7(D) (ix):- If a candidate fails to join the post on the basis of the recommendation(s) of the Commission, on demand from the concerned appointing authority after cancellation of the offer of appointment of such candidate, the replacement will be given by the Commission at its discretion if the demand is received within a period of one year from the date of sending recommendation(s) by the Commission to the concerned appointing authority provided that no fresh requisition has been processed and advertisement has been issued / published for filling up of the said post in the intervening period. However, in the case of appointments to the posts of Civil Judge, the posts / services to be filled up on the basis of the Himachal Pradesh Administrative Service Combined Competitive Examination and for the posts to be filled up on the basis of the combined competitive examination for recruitment to the posts covered under the Himachal Pradesh Subordinate Allied Services / Posts (Class-III, Non-Gazetted) Examination Rules, 2017, no replacement will be given by the Commission against non-joining of the candidate.

Thus, in terms of the these Rules, if a candidate fails to join the post on the recommendation(s) of the Commission, on demand from the concerned appointing authority after cancellation of the offer of appointment of such candidate, the replacement will be given by the Commission at its discretion if the demand is received within a period of one year from the date of sending recommendation(s) by the Commission to the concerned appointing authority provided that no fresh requisition has been processed in the interregnum.

In terms of this Rule, the condition precedent for recommending a replacement is "if a candidate fails to join". Herein, the candidate had not fail to join. The candidate did join but after some time as the candidate was selected in Himachal Pradesh Administrative Service, she tendered her resignation, which was accepted by the Authority.

Hon'ble Supreme Court of India in Sudesh Kumar Goyal vs. State of Haryana and others, (2023) 10 Supreme Court Cases 54, in similar circumstances, has been pleased to hold that if one selected candidate joins and then resigns, it gives rise to a fresh vacancy, which cannot be filled up without issuing a proper advertisement and following the fresh selection process.

Hon'ble Division Bench of this Court in Dharmender Kumar vs. State of H.P. and others, 2020 SCC OnLine HP 1059, relying upon the judgments of Hon'ble Supreme Court referred to therein, has been pleased to hold 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 do not join, then the person from the waiting list may be pushed up and be appointed in the vacancy so caused. Hon'ble Division Bench also 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.

Herein the petitioner is claiming a post which subsequently became available on account of resignation. Hon'ble Supreme Court in Sudesh Kumar Goyal's case (supra), has held that the vacancy which arises on account of the resignation is to be construed a fresh vacancy and the same cannot be filled without issuing a proper advertisement and following a fresh selection process.

Therefore, in the light of the said settled legal position, obviously, the relief being prayed for by the petitioner cannot be granted.

As far as the contention of learned Senior Counsel for the petitioner that previously in terms Annexure P-7, a person similarly situated as the present petitioner, was accommodated is concerned, all that this Court can observe is that Annexure P-7 relates to the year 2013 and whereas now the Himachal Pradesh Public Service Commission is governed by the Rules which have come into force in the year 2021. Besides this, otherwise also, it appears that what was done in the year 2013 was done in ignorance of the law settled by Hon'ble Supreme Court of India in this regard and obviously, no mandamus can be issued by this Court in favour of the petitioner contrary to the law declared by Hon'ble Supreme Court of India on the subject.

Therefore, in the light of above discussion, as this Court finds no merit in this petition, the same is accordingly dismissed. Pending miscellaneous application(s), if any, also stand disposed of accordingly.