-1- Civil Writ Petition No.9977 of 2007. IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Date of Decision: April 08,2008. Balraj Singh ... Petitioner VERSUS State of Haryana and others ... Respondents CORAM : HON'BLE MR.JUSTICE HEMANT GUPTA. HON'BLE MR.JUSTICE MOHINDER PAL. 1. Whether Reporters of Local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? Present: Mr. R.N. Sharma, Advocate, for the petitioner. Mr. O.P. Sharma, Additional Advocate General, Haryana, for the respondents. -.- MOHINDER PAL, J. The brief facts of the case are that the petitioner is an Ex-serviceman as he joined the Indian Military on March 15, 1977 and was boarded out on August 28, 1983 being Low Medical Category ( 20% Disabled). Secretary, Staff Selection Commission, -2- Civil Writ Petition No.9977 of 2007. Haryana -respondent No.3 (for short `S.S.C') advertised 18 posts of Assistant Secretary for appointment in Haryana State Agricultural Marketing Board- respondent No.2 (for short `the Board'), out of which 2 posts were reserved for Ex-servicemen General Category. The petitioner being eligible applied for the said post under Ex-servicemen General Category. The S.S.C adopted the process of short listing by holding written test. The petitioner was declared to be not successful in the short-listing process. In this petition filed under Articles 226/227 of the Constitution of India, the claim of the petitioner is that the process of short-listing of candidates could not be adopted by the S.S.C in respect of the category of the petitioner because number of candidates of his category were less than the advertised posts. Rather, the petitioner was the only ex- serviceman candidate with 20% disability. The petitioner relies upon the instructions (Annexures P-5 and P-6) and seeks a direction to the respondents to make recruitment of Ex- servicemen as per these instructions. Separate written statements have been filed by the Board and the S.S.C. The Board has pleaded that the petitioner participated in the process of selection without raising any objection. If he had any objection, he could have raised the same earlier, but he did not challenge it at any stage prior to the selection. The S.S.C, in its written statement, pleaded that -3- Civil Writ Petition No.9977 of 2007. suitable criteria was evolved by it for selecting eligible and meritorious candidates. It is stated that in the written test held for short-listing of candidates, the petitioner, who belongs to Ex-servicemen category, was required to obtain a minimum of 160 marks out of 400 marks i.e 40%, but he actually obtained 138 marks and as such he could not come in the list of short listed candidates. We have heard Mr. R.N. Sharma, Advocate, appearing for the petitioner and Mr. O.P. Sharma, Additional Advocate General, Haryana, appearing for the respondents and have perused the records. Circular/instructions dated March 06, 1972 (Annexure P-5) issued by the Chief Secretary to Government, Haryana, prescribes that the existing reservation in respect of civil posts for Ex-servicemen should be utilized in the following manner:- “(i) disabled ex-servicemen with disability between 20% to 50%. (ii) up to two dependants of Service personnel killed/disabled beyond 50%. (iii) other ex-servicemen. Note: Disabled ex-servicemen will mean ex-servicemen who, while serving in the Armed Forces of the Union, were disabled in operations against the enemy or in -4- Civil Writ Petition No.9977 of 2007. disturbed areas. Similar provisions regarding reservation in respect of Ex-servicemen are contained in Annexure P-6. A perusal of the above provisions reveals that the posts reserved for Ex-servicemen are to be filled up on preferential basis. The Ex-servicemen have been placed in three categories. The first category is disabled ex-serviceman with disability between 20% to 50%. First preference is to be given to disabled Ex-serviceman with disability 20% to 50%, as is the case of the petitioner. No provision has been produced before us by the learned counsel for the respondents to show that short-listing of the category to which the petitioner belongs could be done or the petitioner could be asked to take written examination for such short-listing. The S.S.C, without taking into consideration the strength of applicants qua the category of Ex-servicemen (20% to 50% disabled), who are to be given first preference, held the test for all the Ex-servicemen. The appointment to the post in question was to be made on preferential basis and disabled ex-serviceman could not be equated with the ex-serviceman. The selection should have been made by the S.S.C on the basis of availability of disabled ex- servicemen. It is well-settled that if candidates of special category/first preference are not available, only then the claim of others i.e second preference candidates is to be considered. The S.S.C did not abide by the instructions (Annexures P-5 and P- 6) while adopting the process of short-listing in respect of the -5- Civil Writ Petition No.9977 of 2007. petitioner. For the aforesaid reasons, the writ petition succeeds. The petitioner being Ex-serviceman with 20% disability is entitled for appointment on preferential basis. The respondents are, therefore, directed to consider him for appointment as Assistant Secretary in the Board. He will be entitled to seniority and fixation of pay from the date the appointments of Assistant Secretaries in the Board were made. However, he will not be entitled to arrears of salary. Counsel for the petitioner has also stated at the Bar that the petitioner will not claim arrears of salary. ( HEMANT GUPTA ) ( MOHINDER PAL ) JUDGE JUDGE April 08, 2008. ak