IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 535 of 2011 Date of decision: April 18, 2011 Preeti and another Petitioners Versus State of H.P. and others Respondents Coram The Hon’ble Mr.Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice Sanjay Karol, Judge For the Petitioners: Ms.Jyotsna Rewal Dua, Advocate For the Respondents: Mr. R.K. Bawa, Advocate General, with Mr. J.K.Verma, Deputy Advocate General. ______________________________________________________ Justice Kurian Joseph, C.J. The writ petition has been filed with the following prayers:- (i) For issuing a writ of Certiorari for quashing the appointment orders, dated 28.12.2010 at Annexure P-2 for the appointment of respondents No. 4 & 5 to the post of Lady Constable in District Sirmour. (ii) For issuing a writ of mandamus to the respondents for issuing appointment orders in favour of the petitioners against the posts of Lady Constable in District Sirmour on the basis of their being at serial Nos. 1 & 2 of the waiting list of the panel at Annexure P-1. 2. In reply at paragraph 2, it is stated as follows:- “(ii) That the contents of this para are admitted to the extent that petitioners secured 52.67 and 51.33 marks respectively, whereas respondents No. 4 & 5 whose 2 names were at Sr. No. 3 & 4 of waiting list had secured 51.17 & 50.83 marks respectively. (iii) That in reply to contents of this para it is submitted that respondents No. 4 & 5 had filed CWP No. 2153/2010 titled as Kumari Neetu & another Vs. State of H.P & others. This Hon’ble Court vide judgment dated 17.6.2010 inter-alia order as under. “if there were no sufficient number of vacancies available so as to accommodate the petitioners, who are from the un- reserved category, it is the submission of the petitioners that in case there are no vacancies available in Sirmaur district, the petitioners and other similarly situated Lady Constables can be accommodated in other districts. This, the petitioners may point out before the 1st respondent in which case the 1st respondent will be in a position to take appropriate action in the matter. Therefore, the writ petition is disposed of as follows. In the event of the petitioners filing an appropriate representation before the 1st respondent with reference to the facts and figures furnished in the reply affidavit, with in a period of one month from today, the matter will be duly considered by the 1st respondent and appropriate orders in accordance with law and justice in the matter will be passed with in three months thereafter or before the expiry of panel list, whichever is earlier.” The petitioners filed a representation before the respondent No.1 and respondent No.1 disposed of the joint representation vide order dated 23-10-2010 with the directions that “ as per factual status against 53 posts 3 allotted to District Sirmour (out of the vacancies in 5th India Reserve Battalion) only 32 posts could be filled in and 21 posts remained vacant. For filling up, the recruitment process was in progress. Thus, the repesentationist cannot be adjusted against the said 21 posts in 5th India Reserve Battalion (Mahilla). However, in district Sirmour there are 53 vacant posts including posts of Lady Constables and the representationists are hereby ordered to be appointed against the aforesaid 53 vacant posts subject to the fulfillment of various codal formalities as per Punjab Police Rules 1934. As per order/direction issued by the Govt. the appointment orders have been issued in favour of respondents No. 4 & 5 by respondent No. 3 against the existing vacancies of Constables in District Sirmaur. The respondents No. 3 & 4 were appointed on the directions of this Hon’ble Court.” 3. It is unfortunate that while giving appointment to respondents No. 4 & 5, the case of the petitioners was not considered, they being admittedly above respondents No. 4 & 5 in the waiting list. The direction by this court is to take action in accordance with law and justice. In case the people lower in merit list could be accommodated and appointed against the vacancies available in Sirmour District, a similar treatment and equal opportunity should have been granted to those, who are above those respondents No. 4 & 5, who are petitioners in CWP No. 2153 of 2010. Merely because they are petitioners in the writ petition, they cannot claim any better eligibility or higher status than those who are otherwise eligible in terms of 4 selection. It is also seen from the reply that even now vacancies are available. 4. There will be a direction to respondents No. 1 & 2 to appoint the petitioners forthwith on the post of Lady Constables against vacancies available in Sirmour District. In order to avoid any future dispute with regard to seniority, it is made clear that the writ petitioners shall be treated as seniors to respondents No. 4 & 5 since, admittedly, the petitioners are above respondents No. 4 & 5 in the waiting list and without considering the petitioners, appointment could not have been offered to respondents No. 4 & 5. Needful in this regard shall be done within a period of two weeks from the date of production of the copy of this judgment by the petitioners before the first respondent. In order to avoid any future litigation, we may also make it clear that it will be open to the first respondent to offer appointment to others, who are in wait list in case the Government chooses to do so and in case vacancies are available in Sirmour District. 5. The writ petition is disposed of, so also the pending applications, if any. Copy dasti. ( Justice Kurian Joseph ), Chief Justice April 18, 2011 (K) ( Justice Sanjay Karol ), Judge