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2025 DAILYLAW 3412 (HP)

Ashwani Kumar v. State of H. P.

2025-11-20

Ranjan Sharma

body2025
JUDGMENT : Ranjan Sharma, Judge Petitioner, Ashwani Kumar, initially filed CWP No.7573 of 2014 before this Court, and upon establishment of Himachal Pradesh State Administrative Tribunal, the matter was transferred as T.A. No.496 of 2015; due to abolition of Tribunal, the matter stood transferred to this Court, as CWPOA No.616 of 2019, seeking the following relief(s):— “It is therefore, humbly prayed that this Writ Petition may kindly be allowed and the respondents may very kindly be directed to consider the name of the petitioner against the aforesaid vacant post of Lecturer Political Science (OBC) college cadre from back log pertaining the year 2006 and in the alternative the respondent may be directed to advertise the post of lecturer Political Science (OBC) college cadre from back log which was advertised in the year 2006.” FACTUAL MATRIX: 2. Grievance is that the petitioner is M.Phil in Political Science and in pursuance to Advertisement issued in April 2006, he appeared in Interview for the post of Lecturer [Political Science] reserved for OBC’s in February, 2007 but the result of interview was declared on 03.04.2007, wherein the petitioner along with other OBC candidates appeared but remained unsuccessful. It is averred that a Fresh Advertisement dated 24.11.2007 [Annexure P-5, sic. Annexure P-6] was issued by Himachal Pradesh Public Service Commission for filling-up various posts of Lecturer in College Cadre under OBC Category but in March 2008, the process was dropped and these reserved posts remained unfilled. It is averred that a Fresh Advertisement was issued in August 2008 and the petitioner was selected/appointed as Lecturer Political Science against Reserved-OBC post, on contract basis vide letter dated 03.02.2010 and he joined his contractual appointment. 2(i). In this background, the claim of the petitioner is that the OBC Backlog posts, which remained unfilled since the year 2006 and the petitioner deserves to be appointed against these backlog posts by applying the Old Recruitment & Promotion Rules and the appointment given to him as Lecturer [Political Science] against OBC-reserved post on contract on 03.02.2010 may be treated as regular appointment against backlog posts of 2006 with all consequential benefits. STAND OF STATE AUTHORTIES: 3. Pursuant to issuance of notice, Respondent No.1-Principal Secretary [Education] filed the Reply- Affidavit dated 03.11.2014 of Under Secretary [Education], Government of Himachal Pradesh. 3(i). STAND OF STATE AUTHORTIES: 3. Pursuant to issuance of notice, Respondent No.1-Principal Secretary [Education] filed the Reply- Affidavit dated 03.11.2014 of Under Secretary [Education], Government of Himachal Pradesh. 3(i). Reply-affidavit states that Himachal Pradesh Public Service Commission issued an Advertisement for post of Lecturer College Cadre including reserved categories on 24.11.2007 [Annexure P-6, Annexure P-5] but due to administrative reasons the above requisition was withdrawn on 07.03.2008 [Annexure R-2/1] except in case of the vacancies reserved for physical challenged persons. The reasons for withdrawing the requisition was that a policy decision was taken by the State Authorities to fill the posts of Lecturers College Cadre and others on contract instead of on regular basis. 3(ii). Reply-Affidavit further indicates that a fresh requisition for 634 posts of Lecturer College Cadre was placed before the Himachal Pradesh Public Service Commission on 23.08.2008 on contract basis. Reply- affidavit stated that pursuant to aforesaid requisition and selection, two posts of Lecturer [Political Science] meant for OBC [General] category were duly filled-up on contract basis by appointing the petitioner as a Lecturer College Cadre, against reserved OBC post on 03.02.2010. Reply-Affidavit stated that once the petitioner stands appointed as Lecturer in 2010 on contract, therefore, he has no right to seek appointment against the unfilled OBC [UR] vacancies of 2006. In this backdrop, prayer was made for dismissing the writ petition. SEPARATE REPLY BY HIMACHAL PRADESH PUBLIC SERVICE COMMISSION: 4. Respondent No.2-Himachal Pradesh Public Service Commission filed a separate Reply-Affidavit dated 20.11.2014 of Special Secretary of Respondent- Commission. 4(i). Reply-Affidavit states that earlier Requisition-Advertisement dated 24.11.2007 was withdrawn due to administrative reasons on 07.03.2008 [Annexure R-2/1] but pursuant to the issuance of fresh Advertisement dated 23.07.2008, the Commission undertook selection, whereby, the petitioner, Ashwani Kumar was recommended for the post of Lecturer College Cadre on contract basis on 29.08.2009 [Annexure R-2/2], who stands appointed on the said post also. It is in this background, that a prayer has been made for dismissing the writ petition. NO REBUTTAL BY PETITIONER: 5. Petitioner chose not to file any rebuttal or rejoinder to controvert the stand taken by the State Authorities and the Respondent No.2-Commission in their respective reply-affidavit. 6. Heard, Ms. Sangeeta Vasudeva, Learned Counsel for the petitioner and Mr. Hemant K. Verma, Learned Deputy Advocate General and have gone through the records. ANALYSIS: 7. NO REBUTTAL BY PETITIONER: 5. Petitioner chose not to file any rebuttal or rejoinder to controvert the stand taken by the State Authorities and the Respondent No.2-Commission in their respective reply-affidavit. 6. Heard, Ms. Sangeeta Vasudeva, Learned Counsel for the petitioner and Mr. Hemant K. Verma, Learned Deputy Advocate General and have gone through the records. ANALYSIS: 7. Taking into account the entirety of the facts and circumstances, this Court is of the considered view that the claim of the petitioner for appointing him as Lecturer in Political Science against the unfilled reserved OBC backlog vacancies instead of having the appointment made as such on 03.02.2010 [on contract basis] is not tenable, for the following reasons: 7(i). Admittedly, an Advertisement was issued for backlog post of Lecturer College Cadre on 24.11.2007 [Annexure P-5, sic. Annexure R-6], [at Page 16 of Paper- Book] whereby, out of total 16 posts of Lecturer [Political Science], 03 posts were meant for OBC Category candidates. Reply-Affidavit states that the aforesaid requisition dated 24.11.2007 [Annexure P-5 sic. Annexure P-6] was withdrawn by the State Government, on 07.03.2008 [Annexure R-2/I]. State Authorities in Reply-Affidavit stated that this Advertisement was withdrawn, in view of the policy decision taken by the State Authorities to fill up the posts on contract, instead of on regular basis. Petitioner has chosen not to assail the policy decision of the State Government to fil the posts on contract basis. Even, the decision dated 07.03.2008 [Annexure R-2/I] to withdraw the Advertisement dated 24.11.2007 [Annexure P-5] has not been assailed by the petitioner. Further, the petitioner who belongs to a reserved category [including OBC category] has no vested and enforceable right to claim filling-up of backlog vacancies. A person has a right of consideration, as and when, the State Authorities decide to fill up the posts, including backlog reserved [OBC] posts. Such a right against backlog vacancies, cannot accrue unless the Statutory Rules expressly provide for filling backlog posts at regular interval i.e. in next year and subsequent year(s) and the petitioner has not placed on record any Rules or Instructions to assert his claim. Such a right against backlog vacancies, cannot accrue unless the Statutory Rules expressly provide for filling backlog posts at regular interval i.e. in next year and subsequent year(s) and the petitioner has not placed on record any Rules or Instructions to assert his claim. Accordingly, the claim of the petitioner for appointing him as Lecturer on regular basis against reserved OBC [UR] vacancies of 2006, despite having been appointed as Lecturer [Political Science] against the reserved OBC post on 03.02.1010 cannot be acceded to as the appointment has to accrue prospectively and there is no vested right for retrospective appointment against unfilled/backlog vacancies of 2006. Permitting the prayer of the petitioner for appointment against vacancies of 2006 shall amount to appointing the petitioner as Lecturer [College Cadre] from the date on which, he was never borne in the cadre. Moreover, it is the own case of petitioner that he had appeared for selection in 2006 against unreserved OBC-UR posts but was not found suitable. In these circumstances, the claim for retrospective appointment from 2006/2007, though given in 2010, is disallowed. 7(ii). Pursuant to Fresh Advertisement issued by Himachal Pradesh Public Service Commission on 23.07.2008, the Reply-Affidavit indicates that the petitioner was selected/appointed as Lecturer [Political Science] against reserved OBC-UR post on contract on 29.08.2009 [Annexure R-2/2] and he joined as such on 03.02.2010. Petitioner has not laid any challenge to the Advertisement dated 23.07.2008 for filling posts on contract basis. Having accepted appointment as Lecturer [College Cadre] on contract, the petitioner cannot turn around and claim change in status from contractual to regular appointment and such a claim is barred by estoppel. Even as per the Recruitment and Promotion Rules for post of Lecturer College Cadre dated 20.09.2007 [Placed on Record by Learned State Counsel], which is not disputed by Learned Counsel for petitioner, the contractual mode of recruitment stood incorporated in Service Rules prior to the issuance of Fresh Advertisement on 23.07.2008. It was on the basis of the Rules and the Advertisement that the petitioner was selected by the Repsondent-Commission on 29.08.2009 [Annexure R-2/2] and was appointed as Lecturer [College Cadre] on contract basis and joined on 03.02.2010. Thus, the selection, and appointment and joining as Lecturer [College Cadre] on contract is in conformity with Recruitment Rules as well as Advertisement and therefore, the instant petition being devoid of merit. DIRECTIONS: 8. Thus, the selection, and appointment and joining as Lecturer [College Cadre] on contract is in conformity with Recruitment Rules as well as Advertisement and therefore, the instant petition being devoid of merit. DIRECTIONS: 8. In view of above discussion and for the reasons recorded hereinabove, the instant petition is dismissed in the following terms: (i). The claim of the petitioner for appointment as Lecturer in Political Science against an OBC backlog post pursuant to the first Advertisement dated 24.11.2007 [Annexure P- 5; sic Annexure P-6 in reply] which stood withdrawn on 07.03.2008, suffers from no infirmity; (ii). Claim for appointment against backlog posts automatically cannot sustain as no vested right of appointment against backlog post exists; (iii). Parties to bear respective costs. In the aforesaid terms, the instant petition and all pending miscellaneous application(s), if any, shall stand disposed of.