IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. : 483 of 2002 Date of decision : 26.3.2008 Rangila Ram …Petitioner. Versus State of H.P. …Respondents Coram The Hon’ble Mr. Deepak Gupta, J. The Hon’ble Mr. Rajiv Sharma, J. Whether approved for reporting ?1 No For the petitioner : Mr. K.D.Shreedhar, Advocate. For the respondent : Mr. Rajesh Mandhotra, Deputy Advocate General Deepak Gupta, J. This petition is directed against the order of the learned Himachal Pradesh State Administrative Tribunal dated 8th January, 2001 passed in T.A.No. 870 of 1986, whereby the application filed by the petitioner has been rejected. The facts of the case are that the petitioner served in the Indian Navy and was discharged therefrom on 28th February, 1982. He thereafter appeared in an examination for the post of Assistant Public Prosecutor in the department of the Prosecution, Govt. of H.P. He was selected and was appointed as Assistant Public Prosecutor w.e.f. 25.10.1982. The claim of the petitioner is that he is entitled for fixation of pay and seniority by giving him the benefit of the Demobilised Armed 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. Forces Personnel (Reservation of Vacancies) Himachal Pradesh (Non- technical) Rules, 1983. The petitioner claimed that he in fact had been selected against the post of Ex-serviceman and in the alternative submitted that he should be given the benefit of the rules in view of the instructions of the Government dated 23.5.1975. The stand of the respondent is that the petitioner was not appointed against a vacancy meant for an Ex-serviceman but was in fact appointed against a vacancy meant for the Scheduled Caste category and therefore the benefit of the aforesaid rules cannot be given to him. The learned Tribunal has considered the matter in detail. The Tribunal called for the record and after verifying the record found that initially there were 13 posts of Assistant Public Prosecutor which were to be filled up. There was already backlog of three posts belonging to the reserved category of Scheduled Caste, Ex-serviceman and Handicapped and therefore, the 13 posts were to be filled up as follows:- i) Scheduled Caste - 4 posts. ii) Scheduled Tribe - 1 Post iii) Backward Class - 1 Post iv) Ex.Serviceman - 2 Posts v) Handicapped - 1 Post vi) General. - 4 Posts. However, the department could not fill up the posts in the manner aforesaid since that would have meant that more than 50% vacancies would have gone to the reserved category. Therefore, it was decided to fill up 7 vacancies from the general category and six from the reserved category. Out of the six posts meant for the reserved category, three posts was ear-marked for scheduled castes, one post for scheduled tribe and one for handicapped persons. It is thus obvious that there was only one post falling to the category of ex-servicemen. It is undisputed that two ex-servicemen cleared the examination. One was Shri Keshav Dutt Sharma and the other was the petitioner. Shri Keshav Dutt Sharma had higher marks than the petitioner and was not a scheduled caste or scheduled tribe candidate. He was appointed against the vacancy reserved for ex-serviceman. The learned Tribunal after verifying the records of the Department Promotion Committee come to the conclusion that the petitioner was in fact specifically appointed against the post meant for scheduled castes. In this behalf, it would be pertinent to mention that in the year 1982 when the petitioner was appointed he did not even possesses the minimum requisite experience of two years as a lawyer. The Government decided to relax this requirement in favour of the petitioner and he was appointed against the vacancy meant for the scheduled castes. Therefore, the learned Tribunal was right in holding that he was not entitled to the benefit of the rules. We shall now take up the alternative submissions made on behalf of the petitioner. The relevant portion of the instructions dated 23.5.1975 reads thus:- “Subject:- Demobilised Army Personnel- Concession when recruit against un-reserved vacancies. I am directed to address you on the subject noted above and to say that the various concessions granted under the Demobilised Armed Forces Personnel (Reservation of Vacancies in the Himachal State Non-Technical Services) Rules, 1972, notified vide this Department notification of even number, dated the 28th March, 1972 are admissible only when the persons concerned are selected against the reserved vacancies. In this connection it is clarified that in order to remain within the scope of the relevant Rules, referred to above, the concessions in question cannot be extended against unreserved vacancies. But where a Released Army Personnel has qualified against a non-reserved vacancy and has been appointed against a general un-reserved vacancy in the first instance he should be given an option (only at the time of first appointment) to accept a reserved vacancy even if it occurs subsequent to his appointment. This will automatically give the benefit of concessions like seniority etc., in the manner specified in the Rules ibid.” It is obvious that these instructions will only apply in case of an ex- serviceman appointed against the post meant for general category on merit. When a person takes benefit of reservation and is appointed against a reserved category post, even if he is an ex-serviceman he cannot claim the second benefit of getting the benefit of the Demobilised Armed Forces Personnel Rules. We, therefore, find no infirmity in the order of the learned Tribunal. The petition is accordingly rejected. No order as to costs. ( Deepak Gupta), J. 26th March, 2008 ( Rajiv Sharma), J. ™