IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No.:2675/2008 Decided on: 19.3.2009 M.D. Sharma. …Petitioner. Versus State of Himachal Pradesh and another. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1.yes For the petitioner : Mr. Dilip Sharma, Advocate. For the Respondents : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. A.G. and Mr. Vikas Rathore, Dy. A.G. Rajiv Sharma, J. (Oral) The Himachal Pradesh Public Service Commission invited applications for the post of Lecturer in Commercial and Secretarial Practice vide Annexure A-4. The name of the petitioner was recommended for the post in question i.e. Lecturer in Commercial and Secretarial Practice on 13.10.1992. The petitioner was not offered appointment despite several representations placed on record by the petitioner. The petitioner filed original application No. 2355 of 1993 for redressal of his grievance. 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes 2 The precise case of the petitioner was that once the recommendations have been made by the Himachal Pradesh Public Service Commission, he was required to be appointed to join duties pursuant to recommendations dated 13.10.1992. The learned Tribunal treated the original application as representation to be decided by the Commissioner-cum-Secretary (Technical Education), Government of Himachal Pradesh. The same was considered and rejected by the Commissioner-cum-Secretary (Technical Education), Government of Himachal Pradesh on 18.3.1995. The text of order dated 18.3.1995 reads thus: “Shri Mohinder Dutt Sharma, whose name has been recommended by the H.P. Public Service Commission for the post of Lecturer in Commercial and Secretarial Practice (now Modern Office Practice) had filed an O.A. No. 2355/93 in the Hon’ble Administrative Tribunal that he should be appointed as Lecturer Commercial and Secretarial Practice on the recommendation of the H.P. Public Service Commission. The Hon’ble Administrative Tribunal has ordered that the O.A. be treated as representation to the Secretary, Technical Education and decided within a period of one month. Accordingly, I have gone through the history of the case and the record maintained by the Department as well as information supplied by the Director, Technical Education. The cases have been only commended by the H.P. Public Service Commission and do not have to be appointed. As such the applicant cannot claim for appointment. Therefore, the said representation of Shri Mohinder Dutt Sharma is hereby rejected.” Mr. Dilip Sharma, Advocate has strenuously argued that once the petitioner has been recommended for appointment vide Annexure A-6 dated 13.10.1992, he was required to be appointed to the post in question 3 by the respondents. The case of the respondent-State is that the petitioner could not be offered appointment since one of the incumbents was holding this post that too on ad hoc basis. The case of the respondent-State is also that a writ petition was pending in this Court bearing CWP No. 880/1992. I have heard the learned counsel for the parties and perused the record carefully. The advertisement was issued by the Himachal Pradesh Public Service Commission vide Annexure A-4. The petitioner made himself available for interview and was selected. His name was recommended on 13.10.1992. In normal circumstances, the petitioner ought to have been offered appointment in sequel to order Annexure A-6 dated 13.10.1992. It is evident that the petitioner has been denied the appointment only on flimsy grounds. The ground that one of the incumbents was holding the post on ad hoc basis was not sufficient and legal to deny the appointment to the petitioner. The writ petition which was pending in this court bearing CWP No. 880/1992 was dismissed on 3.2.1995. The Tribunal had directed the Commissioner-cum-Secretary (Technical Education), Government of Himachal Pradesh to take a decision in OA No. 2355/1993. The decision was taken by him on 18.3.1995. It is evident from the language employed in the order as reproduced hereinabove that the only ground for denying the appointment to the petitioner was that only recommendation has been made by the Himachal Pradesh Service Commission. It is true that incumbent has no right to be appointed, however, once a person has been selected, a decision to appoint or not to appoint the person has to be taken in a just, fair and reasonable manner. In the present case, the action not to appoint the person is per se violative of Articles 14 and 16 of the Constitution of India. The only reason 4 assigned that some ad hoc teacher was teaching and a case was pending before this Court which already stood decided cannot be termed as a valid ground to deny appointment to the petitioner. The ad hoc appointee has to give way to regularly appointed person. The writ petition pending in this Court already stood decided before the decision was taken by the Commissioner-cum-Secretary (Technical Education) on 18.3.1995. Their Lordships of the Hon’ble Supreme Court in Asha Kaul (Mrs) and another versus State of Jammu and Kashmir and others, (1993) 2 SCC 573 have held that the decision not to appoint or to appoint a person has to be taken on the touchstone of Articles 14 and 16 of the Constitution of India. Their Lordships have held as under: “8. It is true that mere inclusion in the select list does not confer upon the candidates included therein an indefeasible right to appointment (State of Haryana v. Subhash Chander Marwaha Mani Subrat Jain v. State of Haryana, State of Kerala v. A. Lakshmikutty) but that is only one aspect of the matter. The other aspect is the obligation of the government to act fairly. The whole exercise cannot be reduced to a farce. Having sent a requisition/request to the Commission to select a particular number of candidates for a particular category, - in pursuance of which the Commission issues a notification, holds a written test, conducts interviews, prepares a select list and then communicates to the government the government cannot quietly and without good and valid reasons nullify the whole exercise and tell the candidates when they complain that they have no legal right to appointment. We do not think that any government can adopt such a stand with any justification today. This aspect has been dealt with by a Constitution bench of this court in Shankarsan Dash v. Union of India where the earlier decisions of this court are also noted. The 5 following observations of the court are apposite: (SCC pp.50-51, para 7) "It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the 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. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha, Neelima Shangla v. State of Haryana or Jatendra Kumar v. State of Punjab." Similarly, their Lordships of the Hon’ble Supreme Court in A.P. Aggarwal versus Government of National Capital Territory of Delhi and another, (2000) 1 SCC 600 have held that the decision not to offer appointment has to be determined after considering the principles of Articles 14 and 16 of the Constitution of India. Their Lordships have held as under: 6 “11. In our opinion, this is a case of conferment of power together with a discretion which goes with it to enable proper exercise of the power and therefore it is coupled with a duty to shun arbitrariness in its exercise and to promote the object for which the power is conferred which undoubtedly is public interest and not individual or private gain, whim or caprice of any individual. Even if it is to be said, that the instructions contained in the Office Memorandum dated 14-5-87 are discretionary and not mandatory, such discretion is coupled with the duty to act in a manner which will promote the object for which the power is conferred and also satisfy the mandatory requirement of the Statute. It is not therefore open to the Government to ignore the penal which was already approved and accepted by it and resort to a fresh selection process without giving any proper reason for resorting to the same. It is not the case of the Government at any stage that the appellant is not fit to occupy the post. No attempt was made before the Tribunal or before this Court to place any valid reason for ignoring the appellant and launching a fresh process of selection. It is not disputed by the learned Senior Additional Advocate General that out of four incumbents, one incumbent has left the job during the pendency of the original application before the learned Himachal Pradesh Administrative Tribunal. The petitioner was to be considered against this vacancy. It is no more res integra that the persons whose names figure in the panel are required to be offered appointment if the vacancy becomes available within a reasonable period. Accordingly, the petition is allowed. The impugned order Annexure A-10 dated 18.3.1995 is quashed and set aside. In the present case the petitioner was always ready and willing to be appointed as Lecturer in Commercial and Secretarial Practice, but it was only due to arbitrary 7 decision of the respondents that he has been prevented from doing so. Mr. Dilip Sharma, Advocate has brought to the notice of the Court that similarly situate persons were offered appointment on 25.5.1995 and as such the petitioner cannot be discriminated. Accordingly, the respondents are directed to offer appointment to the petitioner on regular basis with effect from 25.5.1995 with all the consequential benefits. No costs. 19.3.2009 (Rajiv Sharma ), J. *awasthi*