IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 1608 of 2010 Decided on: 22.09.2011 Rajesh Kumar …Petitioner. Versus State of H.P. & others …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioner: Mr. Ajay Kumar Dhiman, Advocate. For the respondents: Mr. Vivek Singh Thakur, Additional Advocate General, for respondents No. 1 and 2. Mr. Rakesh Kumar Dogra, Advocate, for respondent No. 3. Deepak Gupta, J. (Oral) By means of this petition, the petitioner has challenged the appointment of respondent No. 3 as peon on contract basis in the Department of Social Justice and Empowerment, Himachal Pradesh. The case of the petitioner is that respondent No. 3 was less meritorious than him and, therefore, could not be appointed. 2. The respondent-State has filed reply, relevant portion of which reads as follows: “That the petitioner had also applied for the post of peon under Scheduled Caste (IRDP) category and 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. -: 2 :- appeared in the written test held on 21.12.2008 and was declared qualified in the written test. In personal interview, the petitioner was not selected by the selection committee. It is proved on record that the petitioner had scored 59 marks out of 75 marks in the written test and 5 marks out of 15 marks had been awarded in viva-voca by the selection committee. But, the selection committee had calculated the marks of educational qualification of the petitioner only 3.94 in place of 4.6 marks in default as the petitioner had obtained 276 marks out of 600 in Middle Standard Examination which becomes 46 percent and as per R & P Rules for the post of Peon, Class-IV (Non- Gazetted) notified by the State Government vide notification dated 19th April, 2007, only 10 marks were kept for educational qualification and thus, the petitioner was entitled for 4.6 marks for educational qualification but inadvertently Selection Committee gave 3.98 marks. There is no doubt that if the selection committee had awarded the correct marks to the petitioner as per his qualification the petitioner would have been more meritorious than the respondent No. 3 who had scored only total 68.41 marks. It is worthwhile to submit here that the respondent No. 3 had succeeded to get selected as a peon in the department being more meritorious due to wrong calculation of marks of educational qualification of the petitioner by the selection committee. Hence, in view of the facts and circumstances of the case, the present CWP may kindly be decided on merit in the interest of justice.” 3. A bare perusal of the reply filed by the State shows that the petitioner was awarded 67.94 marks by calculating less marks for his educational qualification and if his marks were correctly calculated, he would have scored 68.60 marks as against 68.41 marks awarded to respondent No.3. Therefore, the petitioner was higher in merit and should have been appointed. The State has admitted that it has made a mistake while making the calculations. 4. Mr. Rakesh Kumar Dogra, learned counsel appearing for respondent No. 3 has made an impassioned plea that the difference is only 0.19 marks and that respondent No. 3 is working for the last more than two years and it would be very harsh to -: 3 :- throw him out of job. He submits that respondent No. 3 had no role in calculation of marks and he should not suffer for the mistake of the respondent-State. 5. It is true that respondent No. 3 was appointed not because of any misrepresentation on his part, but at the same time, this Court cannot be oblivious to the fact that if the marks were properly awarded, it was the petitioner alone, who should have been appointed for the said post. Both of them belong to the lowest strata of society and they both deserve to be treated equally. 6. In view of the above discussion, it is held that respondent No. 3 was wrongly appointed and his appointment is quashed and the respondent-State is directed to appoint the petitioner as peon within one month from today. However, keeping in view the special circumstances of this case, it is directed that if there is any other vacant post available in the department or some post is likely to arise in near future, the same should be offered to respondent No. 3 without fresh selection, since he has already worked for two years. 7. The petition is disposed of accordingly. No costs. (Deepak Gupta) Judge September 22, 2011 (rajni)