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Judgment
Ajay Mohan Goel, Judge (Oral)
Notice. Mr. Rahul Thakur, learned Deputy Advocate General and Mr. Rajesh Prakash, learned Counsel, accept notice on behalf of respondents No. 1 and 2 and respondent No. 3, respectively.
By way of this writ petition, the petitioner has inter alia prayed for the following reliefs:-
“I) That the Writ in the nature of Certiorari may kindly be issued by quashing impugned order dated 07.07.2026 (Annexure P-9) passed by the respondents.
II. That the Writ in the nature of Mandamus may kindly be issued by directing the respondents to give employment to the petitioner on the post of Assistant Engineer (Civil) as advertised in the Advertisement dated 31.12.2012 by respondent no. 3.
III. Entire record pertaining to the present case may kindly be summoned for the kind perusal of this Hon'ble Court.
IV. Any other appropriate writ, order or direction which_this Hon'ble Court may deem fit, just and proper in the facts and circumstances of the present case may kindly be issued or passed in the interest of justice ”
The petitioner is aggrieved by Annexure P-9, in terms whereof, his representation, requesting the Authority for offering him appointment against the post of Assistant Engineer under the Zila Parishad Cadre, Kinnaur, has been rejected.
Brief facts necessary for the adjudication of this petition are that a Scheme for appointment of Assistant Engineers under the Zila Parishad Cadre was notified in the year 2012. Zila Parishad, Kinnaur, initiated selection process for filling two posts of Assistant Engineers on contract basis. The result of the said process was declared by the Selection Committee on 27.02.2013 and Shri Pramod Kumar and Shri Namgial Chhopel were selected and offered appointment against the posts in issue. The petitioner was at Sr. No. 3 in the merit list, meaning thereby that he was at Sr. No.1 as far as the waiting list is concerned.
One of the selected candidates, namely, Pramod Kumar, after joining, resigned from the post on 12.06.2013. He served for about three and half months' time. After his resignation, the petitioner approached the Competent Authority for offering him appointment, but as nothing was done, he filed CWP No. 8998 of 2013 in this Court, which subsequently was transferred to the Himachal Pradesh Administrative Tribunal and registered as TA (Transferred Application) No. 3892 of 2015, titled Kamlesh v. State of HP & Others.
The transferred application was disposed of by the erstwhile Tribunal vide Annexure P-5 dated 10th April, 2017, in terms whereof, on the request of the original applicant, the petition was allowed to be withdrawn, with liberty to approach the Competent Authority for seeking appointment against the post of Assistant Engineer on contract basis against the vacancy caused on account of resignation of one of the selected candidates. Said representation of the petitioner has been rejected by the Authority in terms of the impugned notification. A perusal of the impugned notification demonstrates that after referring to the judgments of the Hon'ble Supreme Court, the Authority has rejected the representation of the petitioner by inter alia holding that once a selected candidate joins the post and if the vacancy arises on account of such a person leaving the post, then the vacancy stands exhausted. The authority also relied upon the judgment of the Hon'ble Supreme Court, in which, it has been held that once all the advertised vacancies stand filled up, the select list stands exhausted and cannot be operated for filling future vacancies arising subsequently.
Learned Counsel for the petitioner has argued that in the present case, the petitioner was at Sr. No. 1 as far as waiting list is concerned. The waiting list was valid for a period of one year. The incumbent, who was appointed and who resigned, tendered his resignation just after serving against the post for three and a half months. He submitted that as the vacancy arose before the expiry of the waiting list, the act of the respondents of not offering appointment against the post of Assistant Engineer (Contractual) to the petitioner is bad and the rejection of his candidature as also the rejection of his representation are also not sustainable.
On the other hand, learned Deputy Advocate General as also learned Counsel appearing for respondent No. 3 have submitted that there is no infirmity in the order passed by the Authority, in terms whereof, the representation of the petitioner has been rejected. Learned Deputy Advocate General submitted that it is settled law that once an incumbent, who has been recommended for appointment, joins against the post, then if he resigns from the post or otherwise leaves the post, such a post is construed to have been exhausted and it cannot be filled up from amongst the waiting list, but has to be filled in by initiating fresh process of recruitment.
Having heard learned Counsel for the petitioner as also learned Counsel for the respondents and having perused the averments made in the writ petition as also the documents appended therewith, including the impugned order passed by the Authority, this Court is of the considered view that there is no infirmity in the impugned order. This Court, as agreed, is not dwelling on any other aspect of the matter, save and except as to whether the petitioner has any legal right of seeking appointment against the post in issue on the ground that he was at Sr. No. 1 in the waiting list, if such a vacancy arises on account of resignation of the candidate, who was selected against it.
It is a matter of record that two vacancies of Assistant Engineer were advertised by Zila Parishad, Kinnaur. It is also a matter of record that as per merit, Shri Pramod Kumar and Shri Namgial Chhopel were selected and offered appointment against the said posts. The petitioner was at Sr. No. 1 in the waiting list, as he was at Sr. No. 3 in overall merit. It is also a matter of record that Sh. Pramod Kumar resigned from the post on 12.06.2013 after serving for approximately three and a half months.
In Bihar State Electricity Board Versus Suresh Prasad and Others, (2004) 2 Supreme Court Cases 681, Hon’ble Supreme Court has been pleased to hold as under:
“6.We find merit in this appeal preferred by the Board. In the case of Shankarsan Dash v. Union Of India. (1991) 3 SCC 47, (1991) 17 ATC 95 it has been held by this Court that even if number of vacancies are notified for appointment and even if adequate number of candidates are found fit, the successful candidates do not acquire any indefeasible right to be appointed against existing vacancies. That ordinarily such notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. It was further held that the State is under no legal duty to fill up all or any of the vacancies unless the relevant recruitment rules indicate. In the present case we are not shown any such relevant recruitment rules. Moreover, there is no merit in the contention advanced on behalf of Respondents 1 to 7 that the appellant had violated the order of the High Court dated 23-3-1994 by preparing a list of only 22 candidates instead of filling up 50% of the alleged 161 vacancies. In this connection, the impugned judgment of the High Court has recorded a finding of fact that the Board has rightly reduced the number of vacancies to 50 and to that extent claim of the writ petitioners was rejected. In the impugned judgment, the High Court found that 50 vacancies were required to be filled up, 25 against the advertisement dated 15-12-1986 and 25 against advertisement dated 15-11-1992. However, according to the impugned judgment, the appellant ought to have made appointments by preparing a further panel for 18 vacant posts which became vacant when the earlier 18 selected candidates opted out. It is this part of the reasoning of the High Court, which is fallacious.
7.In the present case pursuant to the direction of the High Court dated 23-3-1994, the appellant took steps for filling up 25 vacancies in the post of Operators from Advertisement No. 3/86 and the remaining 25 vacancies from Advertisement No. 6/92. The results were notified on 29-4-1994 on the notice-board. The Board recommended names of successful candidates under Advertisement No. 3/86 and Advertisement No. 6/92. Out of 22 candidates selected by the Board for appointment under Advertisement No. 3/86, 18 candidates did not turn up. At this stage it is important to note that Respondents 1 to 7 had applied for appointment under Advertisement No. 3/86 dated 1512-1986 and they had qualified but they were placed at Serial No. 23 onwards in the descending order. As stated above, a panel of 22 candidates was prepared for appointment under Advertisement No. 3/86 and Respondents 1 to 7 fell beyond the cut-off number. We are not shown any statutory recruitment rules which require the appellant Board to prepare a waiting list in addition to the panel. The argument advanced on behalf of Respondents 1 to 7 was in effect that when 18 candidates failed to turn up the appellant was bound to offer posts to candidates in the waiting list. No such rule has been shown to us in this regard. In our view, the judgment of this Court in the case of Shankarsan Dash v. Union Of India. (1991) 3 SCC 47, (1991) 17 ATC 95 squarely applies to the facts of this case. Further there was no infirmity in the judgment of this Court delivered on 4-12-1998 and in our view with respect there was no need to recall the said judgment.”
Thereafter, in Vallampati Sathish Babu Versus State of Andhra Pradesh and others, (2022) 13 Supreme Court Cases 193, Hon’ble Supreme Court has been pleased to reiterate the law earlier laid down in Bihar SEB Versus Suresh Prashad (2004) 2 Supreme Court Cases 681, that even in case candidates selected for appointment have not joined, in the absence of any statutory rule to the contrary, the employer is not bound to offer the unfilled vacancy to the candidates below, the said candidates in the merit list. Hon’ble Supreme Court also reiterated that in the absence of any provision, the employer is not bound to prepare a Waiting List in addition to the Panel of selected candidates and to appoint the candidates from the Waiting List in case the candidates from the Panel do not join.
In State of Uttar Pradesh Versus Karunesh Kumar, (2022) SCC Online, SC 1706, Hon’ble Supreme Court has been pleased to hold in Paras 29 and 30 thereof that it is settled law that there is no vested right of unsuccessful candidates to insist upon their consideration, in the absence of any rule requiring the preparation of a Waiting List.
Thereafter, in a recent judgment, Hon’ble Supreme Court in SLP(C) 35896 of 2025, titled State of Karnataka & Ors. Versus Santosh Kumar C (2026 INSC 276), decided on 23.03.2026, Hon’ble Supreme Court has been pleased to hold as under:
“19.The principal reason for the impugned order of the High Court is that, since the selected candidate did not undergo the mandatory medical examination, the post continued to remain unfilled and, therefore, the respondent, being the candidate immediately next below, ought to have been considered against that post. In our view, this approach conflates the factual existence of an unfilled post with the legal question as to the permissible mode of filling it. Even if it were assumed that the post continued to remain vacant in fact, the further question still remained whether the 1997 Rules permitted the same select list to be operated for filling such post. It is precisely on that question that the High Court, with respect, fell into error. The High Court was also not justified in holding that Rule 11(3) of the 1997 Rules had no application to the case at hand. On the contrary, Rule 11(3), read with Rule 11(1) and sub-rule (3) of Rule 4, lies at the heart of the controversy. It is these provisions which delineate the scope of the select list, the manner in which service-wise consideration is to take place, and the limits within which appointments may be made against the vacancies notified in that recruitment. Once the Rules themselves define the contours of the list and do not provide for any reserve or additional list, the absence of a selected candidate from the field cannot enlarge the statutory operation of the list.
20.In our considered view, therefore, the impugned judgment cannot be sustained. The Tribunal was right in holding that the 1997 Rules do not contemplate preparation or operation of any additional or waiting list, and that a post left unfilled on account of non-completion of pre-appointment formalities or non-joining by a selected candidate could not be claimed by the1respondent as of right from the same selection process. The High Court erred in quashing the communication dated 27.06.2022 issued by DPAR and the order dated 13.10.2023 passed by the Tribunal.”
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, by 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 of the incumbent, who was appointed against the said post. 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 light of the said settled legal position, obviously, the relief being prayed for by the petitioner cannot be granted.
Accordingly, 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.