Shweta Dhingra vs State of H.P. and Others

Kurian Joseph, C.J.—The issues raised in all these writ petitions pertain to the appointment to the post of Civil Judge (Junior Division) in the State of Himachal Pradesh. It is the case of the Petitioners that had the select list been properly prepared with sufficient number of candidates in the waiting list, in view of the vacancies which have arisen during the currency of the list, they would have been appointed. In order to appreciate the contentions of the Petitioners, it is necessary also to refer to certain undisputed factual position. The cadre strength of Junior Civil Division Judges in Himachal Pradesh as on today is 53+1= 54 ( one vacancy was created by notification dated 2.6.2011 while establishing the Court of Civil Judge (Junior Division) at Sarkaghat). The vacancies for the year 2010 and the anticipated were notified by the Public Service Commission as per the advertisement No. XI of 2009, published on 1.2.2010. The vacancies existed as on 15.1.2010 were 8 (General-4, OBC-2, SC-1 and ST-1). Anticipated vacancies were 5 (General-3, SC-2). of the four general, only three joined the duties and Sh. Vinay Sharma has not opted to join the State Judicial Service. According to the Petitioner Sh. Niranjan Singh, had there been a proper select list, he being the next in the merit in the general category should have been appointed, in the absence of the candidates in the general merit otherwise not willing to join the duties.

The Apex Court in Malik Mazhar Sultan (3) and Anr. v. Utter Pradesh Service Commission and Ors. has issued the guidelines with regard to the filling up of the vacancies to the post of Civil Judge (Junior Division) by direct recruitment. The vacancies have to be notified by 15th January every year. The vacancies include existing vacancies on account of retirement and future vacancies and which may arise on account of promotion, death or otherwise. It is also held in the judgment that the select list will operate till the select list for the subsequent year comes into operation. Still further, it is directed that the select list should be published in the order of merit and should be double of the vacancies notified. This direction was subsequently modified by the Apex Court by the order dated 24th March, 2009 to the effect that the select list should contain the existing number of vacancies and the anticipated vacancies for the succeeding year and should include some candidates in the waiting list. Unfortunately, the select list published by the Public Service Commission was only for the clear cut vacancies of five and three anticipated. No doubt, the said list is in the order of merit. As far as the facts of the instant cases are concerned, there is no dispute with regard to the select list on the aspect of communal rotation, so that we need not go into that aspect at this stage, we may refer the same for future guidelines later in this judgment.

In the writ petition filed by Sh. Niranjan Singh, Annexure P-6 is the select list. In the select list for the clear cut vacancies, No. 4 Vinay Sharma is the one who has not opted to join duties. Be that as it may. In the place of Sh. Vinay Sharma, Sh. Aman Inder Singh was offered the appointment and he has declined to accept the same. Next in the merit are Sh. Danish Gupta, Ms. Savita Kumari and Ms. Dipti Goyal. The Petitioner has produced the affidavits of those candidates as Annexures P-16, P-17 and P-18. It is stated in those affidavits that Sh. Danish Gupta and Ms. Savita Kumari have opted for Haryana Judicial Service and already joined duties there and Ms. Dipti Goyal has joined the Punjab Judicial Service. The next in the general merit is Niranjan Singh. Therefore, the vacancy arising on account of non- joining duty of Sh. Vinay Sharma, who had been put in roster point No. 12 in the general merit list has to be offered to Sh. Niranjan Singh. The steps in that regard shall be taken by the Public Service Commission within ten days from today and orders of appointment shall be issued by the Government within one week thereafter.

Steps for recruitment for the year 2011 have already been initiated. We find that six clear cut vacancies have been notified (2-SC, 2-ST and 2-OBC). Six are anticipated (2-General, 1-ST and 3-OBC). The Public Service Commission, it is expected would be publishing the select list by the end of October, 2011. Therefore, the select list already prepared /to be duly prepared is to operate till the select list of 2011 is published. There will be a direction to the High Court to intimate all the available vacancies as on 15th October,2011 to the Commission and the Government on or before 17th October, 2011. Steps for filling up for those vacancies shall be taken by the Commission and the Government from the select list of 2010 and the appointments shall be made before 29th October, 2011.

It is informed that the select list happened to be limited to the clear cut vacancies and actual number of anticipated vacancies in view of the directions already issued by the Government in 2008-09. We find that the Government had issued such instructions in order to avoid unnecessarily litigation. But apparently, the Government has not taken note of directions issued by the Apex Court, which is already referred to above. Therefore, there will be a direction to the Public Service Commission to publish a revised select list of the candidates from the year 2010 merit list by including 2/3 of the actual and anticipated vacancies.

The select list and the merit list are two concepts. The merit list is the list of candidates ranked according to their score in the examination-cum-interview. The select list is one which is prepared according to the communal roster.

Pursuant to the judgment of this Court in CWP No. 3828 of 2009, titled Hakikat v. State of H.P. and Ors., the roster is now to be maintained by the High Court; earlier it was maintained by the Government. Since the select list is to be published by the Public Service Commission, there will be direction to the High Court, Government and the Public Service Commission to jointly take up this exercise of preparation of select list immediately after the publication of the merit list and this exercise shall be completed within two weeks of the publication of the merit list, every year. Thereafter, the Public Service Commission shall publish the select list. Once the select list is published, the appointment shall be strictly made according to the said list prepared on the basis of merit-cum-communal rotation.

With the above observations, these writ petitions are disposed so also the pending application(s), if any.

Authenticated copy to the parties.