1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP(T) No.12554 of 2008 along with CWP No. 12551 of 2008. Date of decision: 18.3.2011 ________________________________________________________________ CWP No. 12554 of 2008 Anek Ram and others .....Petitioners. Versus State of H.P. & Others. .....Respondents. CWP No. 12551 of 2008. Vikram Singh and another ......Petitioner. Versus State of H. P. and others. ......Respondents Coram The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? No. ________________________________________________________________ For the petitioners: Mr. Ranjan Sharma, Advocate. For the respondents : Mr. Anil Jaswal, Dy. Advocate General. Justice V.K. Sharma, J. (Oral). Both these petitions being interconnected are taken up for disposal by a common judgment. 2. The petitions have been filed on the following identical prayers vide para(s) 7 (i) to (vii): “i) That the provisions and the procedure 1 Whether reporters of Local Papers may be allowed to see the judgment? No. 2 prescribed in the letter containing norms of recruitment dated 28.7.2005 vide Annexure A-1 and identical norms in A-2 & A-7, may kindly be quashed and set aside. ii) That the action of the Respondents in under taking selection of Constables, by making the Reserved-Home Guards Category Personnel, including the applicants to compete with General/other Reserved categories in Physical Tests, Written Tests and interview, may kindly be declared unconstitutional. iii) That the action of the Respondents in making selection “Employment Exchangewise” for all categories i.e. General, Reserved SC/ST/OBC and the Reserved Home Guards Category, on one/same dates Exchangewise, amounts to discrimination on the basis of “Residence”, and thus A-A, A-2 & A-7 may be declared violative of Article 16(2) forthwith. iv) That the action of the Respondents in giving 15% Reservation, both for Home Guards and Ex-Servicemen but in adopting different criteria of selection for these equal categories, maybe declared violative of Articles 14 and 16 forthwith. v) That the respondents may be directed to hold the selection of constables, for which the result is declared on 30.10.2005 vide A-8 afresh forthwith. vi) Or in the alternative, The Respondents may be directed to hold fresh selection as per 15% Reservation for Home guards Personnel for 23 posts as prescribed in clause 16(a) & 17 of A-1, separately, when 17 3 posts are still vacant of constables as in ground(o), by considering and appointing the applicants forthwith, with all consequential benefits. vii) That the respondents may6 be directed to consider the case of the applicant or recruitment/ appointment as Constables in 3rd IRB/1st IRB, on the basis of Reservation as given for Home Guards Personnel with all consequential benefits like seniority and arrears of salary from the date the selected candidates dated 30.10.2005 vide A-8 are appointed, forthwith. ” 3. In replies on behalf of the respondents the following identical stand(s) has been taken vide para(s) 6(ix), (xv), (xvii) and (xx)(h) :- “ ix) The contents of this para are admitted being a matter of record. With regard to recruitment process in Kangra district, it is submitted that in all 202 posts of constables were to be filled in Kangra District on population basis as per the details given below: 3rd IRB 1st IRB 1. By Open Recruitment 126 39 2. Ex Servicemen 23 05 3. Sportsman 5 2 Total 154 48 In fact 165 posts for 3rd and 1st IRB were to be filled up in Kangra District through direct recruitment on population basis. The posts of Ex-servicemen and sportsmen are to be filled in through nominations by Ex-Servicemen Cell and Director Youth Services and Sports. Out of 165 4 posts, 30 posts i.e. 23 in 3rd IRB and 7 in 1st IRB were reserved for Home Guard personnel as horizontal reservation as per the details given below: Home Guards General 17 SC 7 ST 1 OBC 5 Total 30 It is submitted that as per the existing instructions there will be no carry of the vacancies if eligible and suitable candidates (Home guards) are not available for recruitment. In such case vacancies will be filled in from candidates of respective main categories. xv) In reply to this para it is submitted that keeping in view the large number of candidates appearing for the test it was decided that the recruitment tests of the Home Guards would be conducted Employment Exchange wise in order to ensure orderly conduct of tests. However, the Home Guards candidates were to be compete with themselves and not with the candidates of other category. xvii) The annexure A-1, A-2 and A-7 are legal and constitutional and need to be upheld. The norms have legally and rightly been fixed and 15% horizontal reservation is being given to the Home guards personnel. They have been provided two years age relaxation, as upper age limit for Home Guard personnel has been fixed as 25 years. It has been provided in the 5 recruitment norms that other conditions of eligibility i.e. educational qualifications and physical measurements have to be fuilfilled by the Home Guard candidates. They are required to qualify the Physical Efficiency Test and written examination as prescribed for other candidates as minimum standards. There will no carryover of the vacancies if eligible and suitable candidate (Home Guards) are not available for recruitment. In such a case vacancies were to be filled up from candidates of respective main categories. Therefore, the Home Guards were rightly put to recruitment test alongwith other candidates. The applicants could not qualify the Physical Efficiency Test and thus they were disqualified. It is pertinent to re-iterate here that it has been provided in the recruitment instructions that there will no carryover of the vacancies if eligible and suitable candidate ( Home Guards are not available for recruitment. In such a case vacancies were to be filled up from candidates of respective main categories. In Kangra District only 5 Home Guards i.e. 3 of general category and 2 belonging to SC category could qualify the recruitment test. Therefore, the remaining posts reserved for Home Guards were to be filled in from the other categories. Since they could not qualify the test and thus they have no cause of action to file and maintain the instant O.A. due to their own act and conduct. xx)(h). The averments made int his para are not tenable. The combined recruitment test has been conducted rightly keeping in view the large 6 number of candidates. Though the recruitment test of the Home Guards was conducted alongwith other yet their merit list was prepared separately.” 4. In the facts and circumstances of the case, the petitions are disposed of with a direction to respondent No.2 that subject to the petitioners making separate representations along with copy of this judgment within one month from today, the same shall be considered and decided by the said respondent within further three months in accordance with law by exploring the feasibility of considering the case of the petitioner for recruitment to the post of constable against the existing vacancies, if any, meant for Home Guard incumbents against 15 % quota, after affording an opportunity of being heard to them, if so desired. 5. The petitions stand disposed of, so also pending CMP(s), if any. (V.K. Sharma) Judge 18th March, 2011. (jai)