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Himachal Pradesh High Court

Himachal Pradesh Public Service ... vs Sh. Vijender Singh And Others on 23 October, 2018

Bench: Surya Kant, Ajay Mohan Goel

    IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                  CWP No. :            2494 of 2018.




                                                           .
                                  Decided on:          23.10.2018.





    Himachal Pradesh Public Service Commission
                                             ....Petitioner.





         Versus

    Sh. Vijender Singh and others
                                                       ...Respondents.





    Coram
    The Hon'ble Mr. Justice Surya Kant, Chief Justice.
    The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.

    Whether approved for reporting?1

    For the petitioner     :      M/s. D.K. Khanna and Deven
                                  Krishan Khanna, Advocates.

    For the respondents    :      Mr. Ashok Sharma, Advocate


                                  General with M/s. J.K. Verma,
                                  Ranjan Sharma, Adarsh Sharma,
                                  Ashwani Sharma and Nand Lal
                                  Thakur, Additional Advocate




                                  Generals.





    Surya Kant, Chief Justice (Oral)

The Himachal Pradesh Public Service Commission is aggrieved by the order dated 19th September, 2018 (Annexure A-2), passed by learned Himachal Pradesh Administrative Tribunal, whereby the claim of the 1st respondent for appointment to the post of Assistant Professor ::: Downloaded on - 26/10/2018 22:55:47 :::HCHP (Political Science) has been accepted and a follow up direction for appointment has been issued.

.

2. The facts are not in dispute. The Commission advertised 18 posts of Assistant Professor (Political Science) on 15th June, 2016. The names were recommended on 23rd March, 2017 and in the selection list, the 1st respondent was placed at Sr. No. 19 and at Sr. No. 1 in the waiting list. It is an admitted case that two candidates, higher in merit, refused to join. It was in this backdrop that the State Government asked to recommend the name of 1st respondent for appointment against one of the resultant unfilled post. The Commission appears to have withheld the name of the 1st respondent and declined to recommend the same by invoking Sub Rule (C) (ix) of Rule 7 of the Himachal Pradesh Public Service Commission (Procedure & Transaction of Business and Procedure for the conduct of Examinations, Screening Tests & Interviews Etc.) Rules, 2007 (as amended upto 20th February, 2014).

3. The aggrieved 1st respondent approached the learned Tribunal and vide order under challenge, his claim has been accepted, as noticed above. It may be relevant to mention that State Government has no objection against the ::: Downloaded on - 26/10/2018 22:55:47 :::HCHP appointment of 1st respondent and it also goes without saying that as there were 18 advertised posts and in the event of .

appointment of 1st respondent, the appointments do not exceed the advertised posts.

4. In these circumstances, the only issue which falls for consideration, is the scope and import of Sub Rule (C) (ix) of Rule 7 of the Rules (supra), relied upon by the Commission, which reads as follows:-

r "7(C) (ix): If a candidate fails to join the post on the basis of recommendation 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 direction if the demand is received within a period of one year from the date of sending recommendation of the Commission to the concerned appointing authority provided that no fresh requisition has been received for the said post in the intervening period. However, in the case of appointment for the posts/services to be filled up on the basis of H.P. Administrative Services Combined Competitive Examination no replacement will be given by the Commission against non-joining of the candidate recommended for the post/service."

5. In our considered view, the scope of proviso of the Rule (supra), cannot be enlarged so as to overpower the .

principal Rule, whereunder the replacement of a candidate, whose name stands recommended but who has not accepted the offer of appointment, can be sought.

6. The petitioner-Commission has erred in not appreciating that it is only a recommendatory and not the appointing authority. It has further erred in not appreciating that in the present case, a request from the Government to recommend the name of the 1st respondent was made within a period of one year, as is envisaged in Rule 7 and as on the date when such request was made by the State, no advertisement for the post in issue stood issued by the Commission.

7. In the instant case, the State Government sent the request to forward the name of 1st respondent in June 2017, whereas the fresh advertisement was issued by the Commission in July, 2017. The proviso so relied upon by the Commission was neither applicable nor attracted to the facts and circumstances of the case in hand. Therefore, we see no reason to interfere with the order passed by the learned Tribunal.

With the aforesaid observations, the petition is dismissed. Pending miscellaneous application(s), if any, also .

stand disposed of.

(Surya Kant) Chief Justice (Ajay Mohan Goel) Judge October 23, 2018 (narender/YSC) ::: Downloaded on - 26/10/2018 22:55:47 :::HCHP