The waiting list does not provide a source of recruitment, and candidates below the last appointee cannot claim appointment against posts which subsequently become available.

JUDGMENT

Tarlok Singh Chauhan, J. - Whether a candidate whose name has been included in the waiting list is entitled for appointment against the unfilled post arising out of the joining and thereafter resignation of the selected candidate is the question that is poised for consideration in this petition.

2. Respondent No. 3 i.e. Himachal Pradesh Staf Selection Commission, Hamirpur, vide advertisement dated 16.09.2017 issued an advertisement for recruitment of Ophthalmic Officer. The petitioner being eligible, appeared for the said post, and was placed at Serial No. 2 of the waiting list.

3. The grievance of the petitioner is that despite there being vacancy on account of the selected candidate having resigned after joining, the respondents are not ofering him the said post, therefore, they be directed by issuing a writ of mandamus to ofer the post in question to the petitioner.

4. The appointments to be made by respondent No. 3 are governed by Rules of Business & Procedure of Himachal Pradesh Subordinate Services Selection Board that have been framed under Article 162 of the Constitution of India.

5. Rule 16.6 thereof provides that "The candidates placed in the waiting list/panel shall have no right to be appointed except when a selected/recommended candidate does not join and the waiting list is still in operation".

6. Admittedly, the petitioner was placed at Serial No. 2 of the waiting list because out of two selected candidates, one candidate Kuldeep Mohan did not join whereas the other candidate Sumit Kumar joined but thereafter left the job. The candidate who was placed at Serial No. 1 of the waiting list was appointed against the vacancy created by the non-joining of the selected candidate i.e. Kuldeep Mohan. However, the petitioner despite being at Serial No. 2 was not ofered the job by invoking the provisions of Rule 16.6 (supra).

7. It is vehemently contended by the learned counsel for the petitioner that since one vacant post of Ophthalmic Officer is still vacant, therefore, respondents should be directed to appoint the petitioner. Whereas the stand of the respondents is categoric to the efect that the selection process had already come to an end by declaring of the final result and joining of the selected candidates. In case, selected candidates resigns, then the vacancy arising due to resignation after joining is treated as a new vacancy and as a general rule, no new vacancy can be filled up without advertisement of the post.

We have heard learned counsel for the parties and have gone through the records of the case.

8. The law pertaining to the candidates, whose names are included in the waiting list viz-a-viz, the right of appointment against unfilled post because of selected candidate having not joined or after joining having resigned or left the job, has been settled beyond doubt by Hon'ble Supreme Court.

9. In this regard, Court may refer to the judgment of the Hon'ble Supreme Court in case of Raj Rishi Mehra and others versus State of Punjab and another, (2013) 12 SCC 243 , wherein it was observed as under:-

15. The question whether the candidates whose names are included in the waiting list are entitled to be appointed against the unfilled posts as of right is no longer res integra and must be answered in negative in view of the judgments of this Court in Union of India v. Ishwar Singh Khatri, (1992) Supp3 SCC 84 , Gujarat State Dy. Executive Engineers Association v. State of Gujarat and others, (1994) Supp2 SCC 591 , State of Bihar v. Secretariat Assistant Successful Examinees Union 1986 and others, (1994) 1 SCC 126 , Prem Singh and others v. Haryana SEB and others, (1996) 4 SCC 319 , Ashok Kumar and others v. Chairman, Banking Service Recruitment Board and others, (1996) 1 SCC 283 , Surinder Singh and others v. State of Punjab and another, (1997) 8 SCC 488 , Madan Lal and others v. State of J&K and others, (1995) 3 SCC 486 , Kamlesh Kumar Sharma v. Yogesh Kumar Gupta and others, (1998) 3 SCC 45 , State of