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2025 Supreme(HP) 699
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Sandeep Sharma, J.
Jagdish Sharma - Petitioner
Vs.
HP Public Service Commissioner & Ors. - Respondents
CWP No.16037 of 2024
Decided On : 22-03-2025
Advocate Appeared:
For the Petitioners:Mr. J.L. Bhardwaj, Senior Advocate, with Ms. Dhanvanti Devi, Advocate.
For the Respondents:Mr. Vikrant Thakur, Mr. Anup Rattan, Advocate General, Mr. Rajan Kahol, Mr. Vishal Panwar & Mr. B.C. Verma, Additional Advocate Generals, with
Mr. Ravi Chauhan, Deputy Advocate General
A vacancy due to retirement on the last day of the year is not considered an anticipated vacancy for that year but for the following year.
Headnote:
(A) Constitution of India - Article 226 - Promotion in Himachal Pradesh Administrative Service - Issue of whether a post vacated due to retirement on 31st December is an anticipated vacancy for that year - Court held that such a vacancy is not considered anticipated for the year in which the retirement occurs, but for the following year. (Paras 1, 10, 11, 19)
(B) Departmental Promotion Committee - The DPC is a recommending body and is not bound by the proposals of the State Government; it can independently assess the availability of vacancies. (Paras 16, 19)
Facts of the case:
The petitioner challenged the decision of the Himachal Pradesh Public Service Commission regarding the promotion of three officers, arguing that a fourth anticipated vacancy due to retirement should have been considered. The Commission maintained that the vacancy would only be available from 01.01.2025.
Findings of Court:
The court found no merit in the petition, affirming that the vacancy due to retirement on 31.12.2024 is not an anticipated vacancy for the year 2024.
Issues: The main issue was whether the vacancy arising from retirement on the last day of the year qualifies as an anticipated vacancy for that year.
Ratio Decidendi: The court reasoned that an employee retiring on the last day of the year is deemed to be in service until that day, thus the vacancy arises in the following year.
Result: Petition dismissed.
JUDGMENT :
Sandeep Sharma, J.
Precisely, the question which falls for consideration by this Court in the instant case is “Whether a post that falls vacant on account of retirement of an employee on 31st December of the year can to be said to be an anticipated vacancy of that year or not?”
2. For having bird’s eye view, facts relevant for adjudication of the case at hand are that vide communication dated 12.09.2024 (Annexure P-3), Department of Personnel, Government of Himachal Pradesh made a reference to Himachal Pradesh Public Service Commission for convening DPC meeting to consider the promotion of three officers of Non-Tehsildar/Non-BDO category in HP Administrative Service cadre (in short “HPASC”) against the vacancies available in the calendar year 2024. While sending aforesaid communication, respondent-commission specifically came to be apprised that there are three clear cut vacancies and one anticipated vacancy, arising on 31.12.2024 on account of retirement of one Mr. Yog Raj, HPAS.
3. Pursuant to afore reference, respondent-commission convened meeting of Departmental Promotion Committee on 24.09.2024 and recommended the names of Mr. Ankur, Mr. Om Prakash Yadav and Ms. Kiran Gupta for their promotion in HPAS under the quota of Non-Tehsildar & Non-BDO categories (Annexure P-5). Since, name of the petitioner, who was at serial No. 4 in the inter se seniority list of Non-Tehsildar & Non-BDO categories was not considered by DPC, he made a representation to the Government of Himachal Pradesh, which subsequently took up the matter with the respondent-commission. Vide communication dated 23.12.2024 (Annexure P-9), Department of Personnel, Government of Himachal Pradesh, apprised respondent-commission that though vide communication dated 12.09.2024, proposal with regard to consideration of four eligible Non-Tehsildar/Non BDO category officers for promotion to HPAS, for the calendar year 2024, was forwarded, but recommendations has been made qua three eligible officers. It also came to be clarified in the aforesaid communication that though a request was made through communication dated 12.09.2024 to recommend the name of three eligible candidates, but proposal, if perused in its entirety shows that fourth vacancy was also to be filled up, which was to arise on 31.12.2024 on account of retirement of Mr. Yograj, HPAS.
4. Vide communication dated 09.12.2024, Secretary, HP Public Service Commission, while responding to afore communication sent by Government of Himachal Pradesh, justified its action of recommending the names of three eligible candidates, as detailed hereinabove, by stating that vacancy occupied by an incumbent till 31.12.2024 cannot be said to have become available in the previous year i.e. 2024, rather such vacancy, if any, will become available on 01.01.2025. In nutshell, respondent-commission attempted to justify its recommendations by stating that on the date of convening DPC, in terms of reference made by Government of Himachal Pradesh, only three clear-cut vacancies in the HPAS for the Non-Tehsildar and Non- BDO categories were available. Since, pursuant to aforesaid communication sent by respondent-commission, no further action was taken by the Government of Himachal Pradesh with regard to request made by the petitioner herein, he has approached this Court in the instant proceedings filed under Article 226 of the Constitution of India, praying therein for the following main reliefs:-
“(i) That a writ in the nature of certiorari may kindly be issued for quashing decision taken by respondent No. 1- Commission as conveyed vide letter dated 09.12.2024, Annexure P-10;
(ii) That a writ in the nature of mandamus may kindly be issued directing respondent No.1-Commission to review the DPC convened on 24.09.2024 and consider the 4th vacancy to be filled up from Non-Tehsildar/Non- BDO categories officers in which the petitioner is at Sr. No. 4 out of which three officers have been recommended for appointment as HPAS vide Not
