Ashish Vs State of Hp

Coram *Hon’ble Mr.Justice Jiya* *Whether approved for r*	*Lal Bhardwaj, Judge.* *eporting?*¹
For the petitioner:	Petitioner present in person.
For the respondents:	Mr.Amandeep Sharma,
	Additional Advocate General
	for respondents No.1 to 4.
	Mr.Dilip Sharma, Senior
	Advocate with Mr.Virender
	Verma, Mr.Om Pal and
	Ms.Ridhima Karol, Advocates for respondent No.5.
	Mr.Dharemder Verma, Junior
	Office Assistant, office of
	Pr.CCF (HoFF), H.P. Talland,
	Shimla, H.P. and Mr.Manish
	Kumar, Forest Guard, Gehru
	Beat, Kangoo Forest Range,
	Suket Forest Division are also
	present in person along-with record.

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Jiya Lal Bhardwaj, Judge (Oral)

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The petitioner, by way of present petition, has

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prayed for the following substantive reliefs:-

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1 Whether the reporters of Local Papers may be allowed to see the judgment?

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“(i). that this Hon'ble Tribunal may be kindly pleased quash office order dated 31.3.2017 (Annexure A-8) and 06.04.2017 (Annexure A-9).

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(ii). That the Respondents may be directed to consider the present Applicant for appointment to the post of Forest Guard.”

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The undisputed facts, which emerge from the pleadings, are that the petitioner who had applied for the post of Forest Guard was put in the waiting list at Serial No.1. Respondent No.5 was selected for the post of Forest Guard on contract basis and offered appointment vide office order dated 17.12.2016 (Annexure A-2). In sequel to the said appointment order, he joined his duties as Forest Guard on 22.12.2016. However, later on, he resigned from the post of Forest Guard, since he was selected in Central Reserve Police Force on 08.03.2017 (Annexure A-3). Consequent upon the resignation of respondent No.5, the petitioner, who was in the waiting list, moved an application on 20.03.2017 (Annexure A-4) to offer him appointment in his place. Vide communication dated 22.03.2017 (Annexure A-5) written by respondent No.4 to respondent No.3, a request was made to fill-up two posts, which had fallen vacant on account of leaving job by respondent No.5 and one Shri Jitender. The petitioner has placed on record application submitted by respondent No.5 dated 24.03.2017 (Annexure A-6), for withdrawal of his

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resignation. On the basis of application submitted by respondent No.5, respondent No.3 had forwarded the same to respondent No.4, who had written back to respondent No.3, vide communication dated 29.03.2017 (Annexure A-7), stating therein that the resignation of respondent No.5 has been accepted and thereafter the case for appointing next candidate from the waiting list prepared for recruitment of Forest Guard during 12/2016 was submitted to the office vide office memo dated 22.03.2017 and since as per terms and conditions laid down in the Recruitment and Promotion Rules and Service Rules for contractual appointees, there is no instructions/provision for contractual appointee, who has resigned to be given opportunity to rejoin and requested to guide his office as to whether the contract employee who has resigned from the post of Forest Guard, can be reappointed again by giving an opportunity. The resignation submitted by respondent No.5 was examined by the State Government and decided to allow him to re-join his service back in the Department as Forest Guard, as is evident from communication dated 31.03.2017 (Annexure A-8). Thereafter, respondent No.5 has been allowed to join his service back in the Department as Forest Guard provisionally and

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simultaneously, the matter was decided to be taken up with the Personnel Department for confirmation/advice.

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The plea of the petitioner who appeared in person is that once respondent No.5 had submitted his resignation, which was accepted, as is evident from the perusal of communication dated 29.03.2017, the post fell vacant, ought to have been offered to him, since he was at Serial No.1 in the waiting list. He further contended that the action on the part of the respondents to accept the rejoining of respondent No.5 is illegal for the reason that once it was clearly mentioned in the communication dated 29.03.2017 that the R&P Rules don’t provide to give an opportunity to rejoin, the action on the part of the respondents-State to allow respondent No.5 to rejoin, is illegal inasmuch as it has marred his prospects of appointment. He further contended that appointment of respondent No.5 is not of rejoining, but it tantamounts to offering him fresh appointment and once his resignation was accepted, respondents-State could not have offered him the fresh appointment.

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Respondents No.1 to 4 filed reply to the petition and admitted the fact that respondent No.5 had tendered his resignation on 08.03.2017. However, respondent No.4 had

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submitted the case regarding acceptance of resignation, but in the meantime, respondent No.3 had forwarded the application of respondent No.5 to respondent No.4. Respondent No.4 had conveyed to respondent No.3 on 29.03.2017 that as per the R&P Rules/Service Rules, there is no instruction/ provision for contractual appointee, who resigned to be given opportunity to rejoin on the post and sought guidance as to whether respondent No.5 could be appointed by giving him opportunity. Vide communication dated 31.03.2017, the State Government had conveyed to accept the rejoining of respondent No.5 back in the Department and in compliance with the said directions, respondent No.5 has been allowed to rejoin vide letter dated 06.04.2017. Once respondent No.5 has been re-appointed, the petitioner cannot be considered for appointment from the waiting list, which is not vacant now. 5. Respondent No.5 filed his reply and averred that the resignation submitted by him was not accepted as contended by the petitioner and once he has resumed his duties under the proper and legal order of the competent authority, when he was not allowed to join in the CRPF on

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certain grounds, the petitioner who was in the waiting list, had no right to claim appointment against respondent No.5. 6. I have heard the petitioner as well as learned counsel for the respondents and also perused the record.

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The facts have been mentioned in detail and to avoid repetition, the same are not being repeated. The issue which requires consideration is whether after resignation of an employee, a person in the waiting list can claim appointment to the post which fell vacant. The petitioner submitted that once the resignation of respondent No.5 was accepted, he could not have been permitted to rejoin his duties and the petitioner being the next candidate in the waiting list, ought to have been offered appointment, more especially, when the competent authority had taken the steps and had sought the advice from the superior authorities to offer him appointment. He further submitted that the plea taken by the respondents-State that resignation submitted by respondent No.5 was not accepted, cannot be countenanced for the simple reason that as per communication dated 29.03.2017 (Annexure A-7), it was noted in unequivocal terms that after accepting his resignation, the case for appointment from the waiting list was prepared and submitted before

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respondent No.3 to whom respondent No.5 had submitted his application dated 24.03.2017 for withdrawal of resignation. 8. The petitioner has placed reliance upon the judgments of the Hon’ble Supreme Court to contend that once the resignation was accepted, the post fell vacant and he ought to have been offered the appointment. He placed reliance upon the judgment of the Hon’ble Supreme Court in Raj Kumar vs. Union of India, AIR 1969 SC 180 to contend that once the resignation became effective, when it is accepted, the officer who wishes to withdraw, it is not open to the authority, which accepted the resignation and further, the officer is no longer in Government service. However, in the present case, though it has been noticed in the communication dated 29.03.2017 written by respondent No.4 to respondent No.3 that the resignation of respondent No.5 was accepted, but there is no formal proof regarding the same. Even if it is assumed that the resignation was accepted, once the competent authority had taken a re-look on the entire matter, keeping in view the fact that respondent No.5 had submitted the application for withdrawal of resignation before offering the appointment to the petitioner, the said action cannot be questioned by the petitioner, who

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has no locus-standi , especially, in view of the judgment rendered by a Constitution Bench of the Hon’ble Supreme Court in Shankarsan Dash vs. Union of India (1991) 3 SCC 47 , wherein it has been held that even if a person is in the select list, he does not have an indefeasible right to be offered appointment. The relevant para of the judgment is reproduced hereunder:-

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“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 and Others, [1974] 1 SCR 165; Neelima Shangla v. State of

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Haryana and Others, [1986] 4 SCC 268 or Jatendra Kumar and Others v. State of Punjab .”

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The petitioner has also placed reliance upon the judgment of the Hon’ble Supreme Court in Civil Appeal No. 273 of 2026, titled, Rajasthan Public Service Commission, Ajmer vs. Yati Jain and others along-with connected matters , to contend that once the resignation of respondent No.5 was accepted, the post had fallen vacant, thereafter he ought to have been offered appointment. However, keeping in view the judgment of Constitution Bench of the Hon’ble Supreme Court, referred above, once the resignation of respondent No.5 was not accepted by the competent authority, except the mere assertion in the communication dated 29.03.2017, it cannot be said that the resignation of respondent No.5 was accepted. Even otherwise, as already discussed above, even if the resignation of respondent No.5 was accepted, once the competent authority had given the direction to allow him to rejoin the duties, no right had crystallized in favour of the petitioner, since he was not offered the appointment to the post of Forest Guard and only the process was initiated and that does not give any right to the petitioner to claim the appointment against the said post.

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The Hon’ble Supreme Court in Sudesh Kumar Goyal vs. State of Haryana and others (2023) 10 SCC 54 has succinctly dealt with the issue that even if a selected candidate joins and then resigns, it gives rise to a fresh vacancy, which could not have been filled-up without issuing a proper advertisement. In the present case, before accepting the resignation of respondent No.5 formally by the competent authority, the State Government had taken the decision on 31.03.2017 to permit respondent No.5 to rejoin, which was conveyed to the competent authority. Therefore, even if the resignation was accepted, the petitioner does not have any right to be offered the appointment. The relevant paras 19 and 20 of the judgment are reproduced as under:-

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“19. This takes us to the second argument that the appellant could have been easily adjusted against the vacancy caused due to resignation of one of the selected candidates. The argument per se is bereft of merit inasmuch as all the vacancies notified stood filled up initially. However, if one of the selected candidates joins and then resigns, it gives rise to a fresh vacancy which could not have been filled up without issuing a proper advertisement and following the fresh selection process. The Division Bench has rightly dealt with the above contention in the light of the precedent of the various decisions of this Court and we do not feel that any error has been committed in this context.

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20. This apart, as may be noticed that the procedure for selection of superior/higher judicial service officers by direct recruitment from the Bar was initiated by the Punjab and Haryana High Court way back in the year 2007 and now we are in the year 2023 meaning thereby that 16 years have passed by in between. It would be a

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travesty of justice to keep open the selection process for such a long time and to direct at this stage to make any appointment on the basis of a selection process initiated so far back. For this additional reason also, we do not deem it proper to interfere with the impugned judgment and order of the High Court.”

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The contention raised by the petitioner that respondent No.5 was not permitted to rejoin his duties, but he was offered appointment afresh is also not acceptable, in view of letter dated 06.04.2017 (Annexure A-9), wherein it was clearly mentioned that respondent No.5 is given an opportunity to join back as Forest Guard provisionally, on contract basis with immediate effect and thus it cannot be construed that he was offered appointment afresh. Even for the sake of argument as also noticed earlier, the resignation was accepted, it does not give any indefeasible right to the petitioner to be appointed as Forest Guard, since the post which was fallen vacant on account of resignation had to be re-advertised and thus, no fault can be found with the action on the part of the respondents to allow respondent No.5 to rejoin the duties.

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Learned Senior Counsel representing respondent No.5 has argued that in the similar facts, a Division Bench of this Court has already held in Dharmender Kumar vs. State of H.P. and others, 2020 SCC Online H.P. 1059 that once

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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 post, which subsequently become available. It has also been held that the selected candidate even if resigns, thenalso, thevacancy arising due to resignation after joining is to be treated as a new vacancy and as a general rule, no new vacancy can be filled-up without advertisement of the post. Once the law is clear on the point that even if the person after joining the post resigns, the said post cannot be filled-up from the waiting list, no relief can be granted to the petitioner.

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Resultantly, there is no merit in the petition and the same is accordingly dismissed. Pending applications, if any, also stand disposed of.

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( Jiya Lal Bhardwaj ) 7^th May, 2026 Judge (naveen)

Ashish v. State of Hp

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Ashish v. State of Hp

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