IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWPs No.720 & 721 of 2010 Date of decision : December 9, 2010 CWP No.720/2010 Reema Sharma Versus H.P.S.S.S.B. and others. CWP NO.721/2010 Virender Kumar Versus H.P.S.S.S.B. and others Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes. For the Petitioners : Mr. R.P. Singh, Advocate (In both the petitions) For the Respondents : Mr. Ramesh Thakur, Assistant Advocate General, for the State (In both the petitions). M/s Rakesh Jaswal and Raghunandan Chaudhary, Advocates, for private respondents (In both the petitions). Surjit Singh, Judge(Oral) In these two writ petitions, petitioners are General Category candidates, for the posts of Junior Engineers, for which applications were invited by respondent No.1, vide advertisement Annexure P-2, issued on 6th July, 2007. As per advertisement Annexure P-2 and subsequent increase notified, total number of vacancies was seven. Three posts were for open category candidates, two for OBC category candidates, one for SC category candidate and one for IRDP candidate. Written examination and viva- voce tests were conducted and a merit list was prepared. As per merit list, a candidate of OBC category, by the name Whether reporters of the local papers may be allowed to see the judgment? …2… of Vishal (respondent in one of the writ petitions) stood first, having scored highest marks, a candidate from General Category, by the name of Sangeeta, stood second, a candidate of OBC category, named Sumit Kumar (respondent in one of the writ petitions) stood third, next five candidates were from General Category, next candidate was from Scheduled Caste category, next from General Category, next from OBC category, next two from Scheduled Caste category and the next one from OBC category. 2. Vishal and Sumit Kumar, from OBC category, having stood first and third, respectively, in the overall merit list, were selected for appointment against General Category posts and were appointed accordingly. Against two posts reserved for OBC category, Vandana Chaudhary, one of the respondents, and Sunil Kumar also a respondent in one of the writ petitions, were selected and appointed. Petitioners, who are from General Category and whose names figure at Serial No.4 and 5 in the overall merit list, were not selected and appointed. They have filed the present petitions, seeking appointment against unreserved posts. Their contention is that appointments of respondents Vishal and Sumit Kumar are required to be treated against two posts reserved for OBC category and appointment of respondents Vandana Chaudhary and Sunil Kumar against the posts reserved for OBC category is illegal and contrary …3… to the spirit of the doctrine of equality as also the provision regarding reservation. 3. While traversing the claim of the petitioners, respondents have stated that since respondents Vishal and Sumit Kumar were placed above the petitioners in the overall merit list and their names figured among the first three selected candidates, in the overall list, based on merit, they have rightly been considered and appointed against unreserved vacancies, total number of which was three. 4. I have heard learned counsel for the parties and gone through the record. 5. While conceding that candidates of reserved category can also be considered for appointment against unreserved posts, in case their merit is higher and their names figure in the overall list of merit upto the number equivalent to the number of unreserved posts, learned counsel for the petitioner submits that where separate lists are prepared for General Category candidates and reserved category candidates, as has been done in the present case (per his submission) unreserved posts are required to be filled from the merit list of General Category candidates. In support of this submission, he places reliance upon a judgment of Hon’ble Supreme Court, in Union of India and others versus Dalbir Singh and another, (2009) 7 SCC 251. 6. I am afraid the aforesaid judgment does not come to the rescue of the petitioners. Facts of the case are …4… that one of the candidates, for the posts of Mazdoor, had applied against a post reserved for OBC category. OBC certificate submitted by him with the application was found to be defective and, therefore, his candidature against the post reserved for OBC category was rejected. He claimed that on account of rejection of his candidature against the post reserved for OBC category, his candidature be considered against the open category post or say unreserved post and his merit being high enough he be appointed against one of the unreserved posts. He filed an application before the Central Administrative Tribunal. That application was allowed. Writ Petition was filed against the verdict of the Tribunal before the High Court. That was dismissed by the High Court. Matter went to the Hon’ble Supreme Court. Hon’ble Supreme Court held that from the pleadings it appeared that two sets of lists had been prepared, one for those, who had staked their claim in the general merit and the second that contained those candidates who had opted for consideration of their cases under OBC category and the petitioner having staked his claim against the post reserved for OBC could not have been considered against the General Category. 7. In the present case, respondents Vishal and Sumit Kumar applied as OBC category candidates. They were found to belong to OBC category. They competed with other candidates, including the candidates of General Category. They scored higher merit than the petitioners, …5… who are from General Category. They were placed at number one and three, in the overall merit, list of which was prepared, on the conclusion of selection process and which (list) has been shown to the Court today from the record of respondent No.1. There were three unreserved posts and these two respondents having been placed at No.1 and 3, in the overall merit list, have rightly been selected and appointed against unreserved posts. On account of these two respondents having been appointed against unreserved posts, because of their higher merit, in overall merit list, next two candidates of OBC category, in the list of selected candidates, have also rightly been selected and appointed against reserved posts. 8. Learned counsel for the petitioners submits that as in the above referred to case, before the Hon’ble Supreme Court, in the present case also separate lists were prepared. To support his contention, he has drawn the attention of the Court to list Annexure P-6, which he has obtained, by making application under the Right to Information Act. No doubt, list Annexure P-6 shows the names of candidates of General Category only, but that does not mean that separate lists for candidates of different categories were prepared. 9. Record pertaining to proceedings of selection, which has been produced from the office of respondent No.1 today, in a sealed cover, shows that a combined merit list, marks-wise, of all the candidates, irrespective of their …6… category, was prepared and in that list respondents Vishal and Sumit are shown at No.1 and 3, respectively. Thus, their ranking in the overall merit was upto the number of unreserved posts and so they have rightly been appointed against unreserved vacancies. 10. For the foregoing reasons, both the writ petitions are dismissed. 11. Learned Assistant Advocate General shall reseal the record, produced in the Court, with the seal of Advocate General and return it to the concerned official from the Office of respondent No.1, who has brought the same. Both the petitions stand disposed of. December 9, 2010(sd) ( Surjit Singh ), J