“Candidate Can’t Claim a ‘Negative Parity’”: Himachal Pradesh HC Says One Can’t Challenge a Post as Illegal and Seek Appointment on It
Isabella Mariam
The High Court of Himachal Pradesh Single Bench of Justice Satyen Vaidya dismissed a petition challenging the appointment of an Associate Professor in a central university. The Court held that the petitioner could not claim rights over a post that was created on a supernumerary basis and had since been abolished following the appointee’s departure. Noting the lapse of over a decade since the initiation of proceedings and the absence of continuing grievance, the Court found no merit in the petition and disposed of it accordingly.
The petitioner filed the writ petition seeking multiple reliefs, including the quashing of the appointment of a private respondent as Associate Professor in the Department of Environmental Sciences at a central university. The reliefs prayed for included a writ of mandamus directing the university to produce the appointment letter of the private respondent, a writ of certiorari to quash the said appointment, and a direction to appoint the petitioner to the same post.
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The matter originated from an advertisement dated 13 June 2011, whereby the university invited applications for various posts of Associate Professors. Among these, two vacancies pertained to the Department of Environmental Sciences. The petitioner, having applied, was shortlisted and interviewed. Two individuals from the general category were appointed to the advertised posts. The petitioner was placed first on the waiting list, followed by the private respondent.
The petitioner later discovered that the private respondent had been appointed as an Associate Professor in the same department. He challenged this appointment on the ground that it was made against a non-advertised and thus non-existent post. The petitioner asserted that if any additional post had been created in the department, he, being first on the waiting list, should have been offered the position.
In response, the university explained that 36 posts of Associate Professors had been advertised across various disciplines via advertisements dated 15 December 2010 and 13 June 2011. Two of these were for the Department of Environmental Sciences. The university followed the Government of India's reservation policy on a cadre-wise basis, taking the institution as a whole unit rather than calculating reservation discipline-wise. This approach was in line with University Grants Commission (UGC) guidelines dated 25 August 2006, aimed at ensuring effective implementation of reservations.
According to the university, the two advertised posts in the Department of Environmental Sciences were filled by general category candidates. Subsequently, the private respondent submitted representations dated 18 April 2012 and 25 April 2012, asserting that, under proper implementation of the reservation policy, one of the two posts should have been allocated to the Scheduled Tribe category. Being a member of that category, he claimed entitlement to appointment.
The representations were considered by the university's Executive Council. It was then decided to create a supernumerary post in the Department of Environmental Sciences by transferring a post from another department. In exchange, a post of Assistant Professor was transferred out from the Department of Environmental Sciences to maintain structural balance. The decision was also influenced by directions from the National Commission for Scheduled Tribes. The private respondent was thereafter appointed against the supernumerary post.
During the pendency of the petition, an order dated 28 April 2022 recorded the statement of counsel for the private respondent, confirming that the appointee had since left the service of the university. Counsel for the petitioner requested time to seek further instructions, and later confirmed on 13 July 2023 that the petitioner intended to contest the matter. On 20 September 2024, the Court directed the university to clarify the availability of the post. The university responded that while one post remained in the department, it was reserved for the Scheduled Caste category.
Justice Satyen Vaidya recorded that by the time of hearing, the private respondent had left the university, and the supernumerary post had ceased to exist. The Court observed: “The post he had occupied stood abolished as the same was only supernumerary.”
The Court addressed the central contradiction in the petitioner’s claims, stating:
“On the one hand [the petitioner] has challenged the appointment of private respondent on the ground that he was appointed against non-existent post as there was no vacancy, on the other, petitioner is seeking claim to the same post.”
The Court further noted:
“Once, according to the petitioner, the appointment of private respondent was illegally made on non-existent post, the petitioner cannot be allowed to claim any right on such post. He cannot claim a negative parity.”
Justice Vaidya also commented on the delay and inaction during the pendency of the proceedings:
“Even otherwise, about twelve years have elapsed since the filing of the petition by the petitioner. There must be lots of change in the cadre of Associate Professors in the University in general and in the department of Environmental Sciences in particular.”
Finally, the Court observed that no additional material had been produced by the petitioner to justify intervention, concluding: “Nothing has been adduced on record by the petitioner during the pendency of the petition.”
Having considered the contentions of both parties and the circumstances of the case, the Court dismissed the petition in full. The order reads:
“In result, I find no merit in this petition and the same is dismissed.”
The Court further directed: “Accordingly, the instant petition is disposed of, so also the pending application(s), if any.”
Advocates Representing the Parties
For the Petitioners: Mr. Nitin Thakur, Advocate
For the Respondents: Mr. Balram Sharma, Deputy Solicitor General of India, for Respondent No.1; Mr. Lalit K. Sharma, Advocate,
Case Title: Deepak Pathania v. Central University of Himachal Pradesh and Another
Neutral Citation: 2025:HHC:9579-DB
Case Number: CWP No. 5254 of 2013
Bench: Justice Satyen Vaidya
[Read/Download order]
