2025:HHC:23651 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.5986 of 2024 Decided on: 22nd July, 2025 ------------------------------------------------------------------------------------- Neris Gill …..Petitioner Versus State of H.P. and others .....Respondents ------------------------------------------------------------------------------------- Coram Ms. Justice Jyotsna Rewal Dua Whether approved for reporting?1 Yes. For the Petitioner: Mr. Rishi Tandon, Advocate. For the Respondents: Ms. Menka Raj Chauhan, Deputy Advocate General, for respondents No.1 and 2. Ms. Suchitra Sen, Advocate, for respondent No.3. ------------------------------------------------------------------------------------ Jyotsna Rewal Dua, Judge Petitioner’s name appeared at Sr. No.1 in the waiting panel prepared by the respondents in the year 2022. The last selected candidate was offered appointment by the respondents on 24.01.2024. He did not join. Petitioner stakes his claim to the aforesaid post, which is still lying vacant and has not been made part of any subsequent selection process. 1Whether reporters of print and electronic media may be allowed to see the order? Yes. 2 2025:HHC:23651 2. Heard learned counsel for the parties and considered the case file. 3. The case 3(i). Advertisement was issued by the respondents on 05.07.2018, inter alia, inviting applications for 18 posts of Dental Hygienist, Post Code 655, to be filled up on contract basis. Out of total 18 posts, 09 were meant for General (UR) category. Petitioner participated in the selection process as candidate belonging to General (UR) category. 3(ii). Final result for recruitment to 18 posts of Dental Hygienist was declared on 30.09.2022. On 07.10.2022, recommendations were made for appointment of selected candidates. The offer of appointment, however, was restricted to 17 candidates. One Sh. Abhishek Singh Yadav selected under General (UR) category was not offered appointment. Waiting list panel was also prepared, wherein, name of the petitioner appeared at Sr. No.1 in General (UR) category. Out of 18 selected candidates, appointment orders were issued to only 17 candidates and they joined their respective posts. Appointment order for 18th selected candidate-Sh. Abhishek Singh Yadav was issued on 24.01.2024. The said candidate did not join. Petitioner 3 2025:HHC:23651 instituted this writ petition on 24.06.2024 seeking appointment against the vacant post of Dental Hygienist. 3(iii). Respondents in terms of their office instructions dated 19.06.2025 placed on record have clarified that one post of Dental Hygienist, General (UR) category is lying vacant. Neither any fresh advertisement has been issued for the said post nor any requisition has been sent for a fresh name from the waiting list panel till date, as the waiting panel had been initially prepared by the recruiting agency during the year 2022 while recommending the names of 18 eligible candidates. Validity of the waiting panel has been prescribed as one year in para 16.17 (iii) of the Handbook on Personnel Matters, Volume-I, issued by the Department of Personnel, Government of Himachal Pradesh. Validity of the panel came to an end in the year 2023. Respondents’ reply to the writ petition is also on the similar lines that validity of the waiting panel prepared by the recruiting agency has elapsed in the year 2023. 4. Consideration:- 4(i). By now, it is well settled that a waiting panel is not to be treated as a reservoir for eternity. A candidate from the waiting panel is recommended only in the eventuality of a selected candidate not joining the post. This 4 2025:HHC:23651 is the object of preparing waiting list. In terms of the reply filed by the respondents, as per Rule 16.8 of the Himachal Pradesh Staff Selection Commission Hamirpur (Rules of Business and Procedure) Second Amendment Rules, 2016, the recommendations of the Commission will be valid till the appointments are offered to the candidates by the appointing authority or for a period of one year from the dates of recommendations, whichever is earliest. The recommendations shall be made by the Commission from the existing panel as and when the requisitions in respect of the additional vacancies are received from different departments for similar posts with common Recruitment & Promotion Rules till the waiting panel in operation is exhausted or six months, whichever is earlier. The said Rule reads as under:- “16.8 The recommendations of the commission will be valid till the appointments are offered to the candidates by the appointing authority or for a period of one year from the dates of recommendations, which-ever is earliest. Further, the recommendations shall be made by the commission from the existing panel as and when the requisitions in respect of the additional vacancies are received from different departments for similar posts with common recruitment and Promotion Rules till the waiting panel is (sic in) operation is exhausted or six months.” Further, according to the respondents, the wait list panel lost its validity in the year 2023. 5 2025:HHC:23651 4(ii). In the present case, 18 candidates were declared successful. Their names appeared in the merit list prepared by the respondents on 30.09.2022. On 07.10.2022, recommendations were made for giving appointment to all 18 candidates, however, appointments were offered by the respondents only to 17 candidates. The 18th candidate selected by the name of Sh. Abhishek Singh Yadav was not offered appointment. He was offered appointment only on 24.01.2024. In case respondents’ reasoning is to be accepted stricto sensu, even they could not have offered appointment to the selected candidate as one year validity period had elapsed by the said date. Be that as it may. The cause of action accrued to the petitioner only thereafter as Sh. Abhishek Singh Yadav did not join the post. Petitioner’s name figured at Sr. No.1 in the waiting panel. The fault, if any, in delaying issuing appointment order to Sh. Abhishek Singh Yadav lay with the respondents. Had the respondents acted with promptness, in accordance with law and at the appropriate time, the appointment letter would have been issued to Sh. Abhishek Singh Yadav alongwith other selected candidates, i.e. on 07.10.2022 and upon his non-joining the post at that time, 6 2025:HHC:23651 name of the petitioner would have been recommended for appointment from the waiting list. 4(iii). Somewhat similar factual position arose in Shalini Thakur Versus State of H.P. and another2. Name of the petitioner therein figured in the waiting list. The selected candidates had been given extensions three times to join the duties, which they failed to do. In the process, waiting list panel elapsed. It was held as under:- “3. On 05.01.2019, the respondents granted extension in joining time to all such five candidates till 17.6.2019. Extension was granted in favour of Dr. Sunil Kumar and Dr. Ashish Sharma on 9.1.2019. The father of the petitioner applied for information under Right to Information Act, 2005 and he was supplied the copy of instructions dated 9.9.2016. On 10.7.2019 Dr. Nipuna Thakur and Dr. Apoorva Shekhar were granted second time extension by respondent No.1 to join duties till 16.12.2019. In August 2019 Dr. Deepika Sharma, who was as at serial No.1 in the waiting list was given appointment as Dr. Sunil Kumar did not join within the extended period. 15. In the instant case, as noticed above, the respondents-State illegally granted repeated extension, that too, beyond the permissible limits to the two doctors namely Dr. Apoorva Shekhar and Dr. Nipuna Thakur thereby depriving the rights, that too, for no fault of the candidates including the petitioner whose names were appearing in the waiting list from joining before the panel expired. These candidates had a right of consideration when the appointed candidates did not join and the extension given to these appointed candidates to join was otherwise illegal and contrary to instructions issued by the Government.” 2 CWP No.2865 of 2020, decided on 05.01.2021 7 2025:HHC:23651 In State of Jammu and Kashmir and others Versus Sat Pal3, one of the posts for which recruitment process was conducted was not filled up. The authorities did not revert to waiting panel on the ground of its validity period having lapsed. It was held that wait list starts to operate only after the posts for which recruitment process was conducted, have been completed. A waiting list would commence to operate when offers of appointment have been issued to those emerging on the top of the merit list. The validity of waiting list has to be determined with reference to the date when vacancy was offered to the selected candidate. Relevant paras of the judgment are as under:- “11. In view of the factual position noticed hereinabove, the reason indicated by the appellants in declining the claim of the respondent Sat Pal for appointment out of the waiting list is clearly unjustified. A waiting list would start to operate only after the posts for which the recruitment is conducted, have been completed. A waiting list would commence to operate, when offers of appointment have been issued to those emerging on the top of the merit list. The existence of a waiting list, allows room to the appointing authority to fill up vacancies which arise during the subsistence of the waiting list. A waiting list commences to operate, after the vacancies for which the recruitment process has been conducted have been filled up. In the instant controversy the aforesaid situation for operating the waiting list had not arisen, because one of the posts of Junior Engineer (Civil) Grade-II for which the recruitment process was conducted was actually never filled up. For the reason that Trilok Nath had not assumed charge, one of the posts for which the process of recruitment was conducted, had remained vacant. 3 (2013) 11 SCC 737 8 2025:HHC:23651 That apart, even if it is assumed for arguments sake, that all the posts for which the process of selection was conducted were duly filled up, it cannot be disputed that Trilok Nath who had participated in the same selection process as the respondent herein, was offered appointment against the post of Junior Engineer (Civil) Grade-II on 22.4.2008. The aforesaid offer was made, consequent upon his selection in the said process of recruitment. The validity of the waiting list, in the facts of this case, has to be determined with reference to 22.4.2008, because the vacancy was offered to Trilok Nath on 22.4.2008. It is the said vacancy, for which the respondent had approached the High Court. As against the aforesaid, it is the acknowledged position recorded by the appellants in the impugned order dated 23.8.2011 (extracted above), that the waiting list was valid till May, 2008. If Trilok Nath was found eligible for appointment against the vacancy in question out of the same waiting list, the respondent herein would be equally eligible for appointment against the said vacancy. This would be the unquestionable legal position, in so far as the present controversy is concerned. 12. The date of filing of the representation by the parties concerned and/or the date on which the competent authority chooses to fill up the vacancy in question, is of no consequence whatsoever. The only relevant date is the date of arising of the vacancy. It would be a different legal proposition, if the appointing authority decides not to fill up an available vacancy, despite the availability of candidates on the waiting list. The offer made to Trilok Nath on 22.4.2008 by itself, leads to the inference that the vacancy under reference arose within the period of one year, i.e., during the period of validity of the waiting list postulated by the rules. The offer of the vacancy to Trilok Nath, negates the proposition posed above, i.e., the desire of the employer not to fill up the vacancy. Herein, the appellants wished to fill up the vacancy under reference. Moreover, this is not a case where the respondent was seeking appointment against a vacancy, over and above the posts for which the process of selection/ recruitment was conducted. Based on the aforesaid inference, we have no hesitation in concluding that the appellants ought to have appointed the respondent Sat Pal, against the vacancy which was offered to Trilok Nath.” 9 2025:HHC:23651 It would also be pertinent to refer at this stage to refer to Varun Dhiman Versus State of H.P. & ors.4 In the said case, three selected candidates did not join their duties and respondent No.3 therein (H.P. Staff Selection Commission) was requested to sponsor names of next three candidates from the waiting list. Respondent No.3 declined the request by invoking its Rules of Business & Procedure, wherein validity of waiting panel was upto one year from the date of recommendations in case of non-joining of earlier recommended candidates. Hon’ble Division Bench found from the records that respondent No.2-Department had not even bothered to deal with files during considerable period. Settled legal position was reiterated that: A candidate in the waiting list has no indefeasible right to be appointed; State is under no legal duty to fill up all or any of the vacancies, however, that does not mean that the State has the license to act in an arbitrary manner; There has to be a conscious decision even not to fill up vacancies, which also has to be taken bona fide for appropriate reasons. In the facts of the case, deprecating the negligence on part of respondent No.2-Department therein in taking 4 CWP No.3366/2020, decided on 20.7.2021 10 2025:HHC:23651 cogent and timely steps in seeking recommendations, it was held as under:- “15 Judged in light of the aforesaid exposition of law, the respondent-State has failed to spell out any cogent and convincing reasons as to why no steps were taken to fill up 3 posts from the waiting list. 16 The officials of respondent No.2 being the government officials are not free to act like an ordinary individual, in dealing with the public appointment, as they cannot act arbitrarily at their own sweet will, rather their action must be in conformity with some standard or norm which are not arbitrary, irrational or irrelevant. 17 The action of the respondents must not be arbitrary or capricious, but must be based on some principle which meets the test of reason and relevance. After all, it is the principle of reasonableness and non-arbitrariness in governmental action that lies on the core of entire constitutional scheme and structure. 18 The concept of reasonableness and non-arbitrariness pervades the entire constitutional spectrum and is a golden thread which runs through the whole fabric of the Constitution. Thus, Article 14 read with Article 16(1) of the Constitution accords right to an equality or an equal treatment consistent with principles of natural justice. Therefore, any law made or action taken by the employer, corporate statutory or instrumentality under Article 12 must act fairly and reasonably. Right to fair treatment is an essential inbuilt of natural justice. 19 As observed earlier, it is highly regrettable that the officials/officers of respondent No.2 have been completely oblivious to the fact that the office entrusted to them is sacred and was meant for use and not for abuse. 20 The officials/officers of respondent No. 2 cannot act as despots or monarchs and are obliged to act in accordance with the principles of democracy, equity, equality and solidarity. 21 The entire scenario shocks the conscious of this Court to come across such inaction committed by those who are at the helm of affairs of respondent No.2. 22. To say the least, respondent No.2 which is a ‘State’ within the meaning of Article 12 of the Constitution of India has conducted in itself of untrustworthiness and like a belligerent litigant has dragged the petitioner to an un-necessary and otherwise avoidable litigation. 11 2025:HHC:23651 Instead of gracefully accepting its mistake, respondent No.2 could not resist the temptation of litigation and has fought this legal battle as if it was a war. The battle otherwise is “uneven” as on one side is a public institution whereas on the other side is a private individual. 23. As such, this Court has no hesitation to conclude that public money has been wasted because of adamant behaviour of officers of respondent No.2 due to litigious attitude adopted by these officers in pursuing the instant litigation before this Court and trying to justify the inaction, which otherwise is not at all justifiable. 24. It must be remembered that the State defined within the ambit of State under Article 12 of the Constitution of India, is not an ordinary party trying to win a case against one of its own citizens by hook or by crook. The State’s interest is to meet honest claims, vindicate a substantial defence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity. 30 It needs to be noticed that respondent No.2, who very well knew that there had been inaction on his part or his officials part, if not earlier, then at least at the time of filing of reply in the instant petition, instead of candidly admitting such lapses, still chose to claim that everything in his department was hunky-dory. The State is expected to contest the litigation in a fair and square manner and not to conceal anything from the Court. 31 As held by the Hon'ble Supreme Court, the respondents could have been well within their right not to fill up the posts, but that could have only been for some valid and cogent reasons. However, here, there is no reason forthcoming from the side of respondent No.2 and rightly so, because the entire fault lies upon respondent No.2 and its officials/officers, who dumped the file. 35 It is not in dispute that even after offering appointment to 22 candidates from the waiting list, 3 posts were still lying vacant on account of non-joining of the candidates, which were required to be filled up from the next in the waiting list, when the panel was still live unless there was a decision to the contrary. Since there is no such decision, therefore, the petitioner cannot be made to suffer for no fault on his part or on account of the fault of respondent No.2 and its officials/officers. 12 2025:HHC:23651 36 Accordingly, while allowing this writ petition, we direct respondent No.3 to sponsor names of three candidates including the petitioner within a period of one week from today and on such sponsorship, respondent No.2 shall issue appointment order(s) to the petitioner and two others as Laboratory Assistant (Allopathy) on contract basis, OBC (UR) Post Code 654.” The ratio of above judgments applies to the facts of present case. Respondents had themselves unduly delayed offering appointment to Sh. Abhishek Singh Yadav. All others selected were offered appointment on 07.10.2022, whereas, he was issued appointment order only on 24.01.2024. Cause of action arose in favour of petitioner upon Abhishek Singh Yadav’s non-joining the post. Had respondents timely offered appointment to Sh. Abhishek Singh Yadav, the wait list panel would still be alive even as per their interpretation. The wait list panel in the given facts cannot be said to have expired before 24.01.2024. Respondents cannot be permitted to draw advantage out of their inaction in not issuing appointment order to the selected candidates for over a year and then deny appointing the petitioner-the first wait list candidate on the ground of wait list panel having lost its validity with passage of time. 5. In view of above discussion, there is merit in the instant petition. The same is accordingly allowed. 13 2025:HHC:23651 Respondent No.3 is directed to make recommendations to respondent No.2 for the vacant post of Dental Hygienist, Post Code 655, against General (UR) category from the waiting/merit list drawn for the selection process initiated pursuant to the advertisement at Annexure P-2, within a period of two weeks from today. Respondent No.2 is directed to take further consequential action thereupon within next two weeks. The writ petition stands disposed of in the above terms, so also the pending miscellaneous application(s), if any. Jyotsna Rewal Dua July 22, 2025 Judge Mukesh