IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 5803 of 2008 Decided on: 24.12.2010 Suresh Kumar ..…Petitioner. Versus State of Himachal Pradesh and others …… Respondents. _____________________________________________________ Coram The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 No. For the Petitioner : Mr. Subhash Sharma, Advocate. For respondents : Mr. Anil Jaswal, Dy. Advocate General, for respondents No. 1 to 3. V.K. Sharma, Judge (Oral) The facts of this case are somewhat queer. In the year 1999, the petitioner, who was a young man of 19 years of age at that time, had participated in the process for recruitment to the post of Constable. Admittedly, he is a Hindu Gujjar, which is a Scheduled Tribe. Annexure A-1, dated 18.1.1999, is the application submitted by the petitioner, in which he had mentioned that he belongs to Hindu Gujjar Scheduled Tribe. However, while making verification, the concerned Patwari, though testified that the petitioner belongs to Gujjar caste, yet he failed to either score of word ‘Caste’ or tick word ‘Tribe’, as is apparent from the portion of application Annexure A-1, meant for verification by Patwari. Consequently, in certificate Annexure A-2, dated 20.1.1999, issued 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 by the Tehsildar Sadar, District Bilaspur, H.P., it was wrongly mentioned that the petitioner belongs to Gujjar caste, which is recognized as a Scheduled Caste. On the basis of certificate Annexure A-2, the petitioner was treated to be a candidate belonging to a Scheduled Caste. However, since at the relevant time he could not produce a certificate to the effect that he belongs to a Scheduled Caste, he was not selected. 2. Against the above backdrop, the petition has been filed on the following prayers, vide para 7(a) and (b): “(a) That the respondent-department may kindly be directed to treat the applicant under the category of Scheduled Tribe and appoint him against the post of Constable. (b) That the respondent-department may kindly be directed to undo the selection of the private respondent against the post of Constable.” 3. In reply on behalf of respondents No. 1 to 3, the following stand has been taken, vide paras 6(ii), (iii) (v) and (viii) “(ii) That in reply to this para it is submitted that there existed some vacancies of Constables for which selection was to be made in accordance with the vacancy roster. It is correct that the applicant appeared in the test and submitted a certificate that he belongs to Scheduled Caste Category. Copy of the same has been annexed as Annexure A-2 by the applicant in which the applicant has been certified to belong to Scheduled Caste. It was on the basis of said certificate that the applicant was declared successfully against the vacancies meant for persons belonging to Scheduled Caste. Copy of result sheet is 3 annexed as Annexure R-1. It is clear from the result sheet that the applicant was selected against the Scheduled Caste vacancy as his number figures at Sr. No.2 of the candidates selected against Scheduled Caste of the Annexure A-2. (iii) In reply to sub-para iii, it is submitted that no doubt form “A”, (Annexure A-1) was submitted by the applicant for obtaining relevant certificate showing the applicant as a member of Scheduled Caste(Annexure A-2), which is material. It was for the applicant to have produced correct certificate in case he was not satisfied with Annexure A-2. So now he cannot claim that he has wrongly denied appointment. (v) In reply to sub-para v it is submitted that the applicant could not claim any relief for his own mistakes. It is evident from Annexure A-2, dated 20.1.1999 that the applicant was selected against the post reserved for scheduled caste and when he failed to produce such certificate, no appointment was offered to him. (viii) That in reply to contents of sub para viii it is submitted that the applicant has again procured on 1.4.99 certificate Annexure A-5, which showed that he belongs to Scheduled Tribe, but this certificate was procured after a long time when the recruitment process was over. Therefore, the respondents No. 1 to 3 maintain that the averments made in sub paras a to f of this sub para(viii) are without any substance. The applicant is estopped to raise such a plea by his own act and conduct. It is because of his own folly that he had submitted certificate Annexure A-2 in which he was shown to belong to Scheduled Caste against which he was provisionally selected but as he could not produce the relevant certificate within the stipulated period he was not given appointment.” 4 4. The record reveals that lateron a valid Scheduled Tribe certificate, Annexure A-5, dated 1.4.1999, was issued in favour of the petitioner. However, the fact remains that the petitioner neither belongs to a Scheduled Caste nor could have a valid Scheduled Caste certificate issued in his favour, at the relevant time, when the process for recruitment to the post of constable was going on. It would have been a different matter in case the petitioner had been treated as a candidate belonging to Scheduled Tribe, but it was not so and rather it was otherwise. 5. Admittedly, the petitioner was lateron selected and appointed as a Police Constable on 6.4.2001 in a subsequent recruitment process. 6. Though the petition has been filed with the prayers that respondents No. 1 to 3 may be directed to treat the petitioner under the category of Scheduled Tribe and appoint him against the post of constable in place of private respondent No.4, yet the petition which was filed in the year 1999, has since become infructuous as the petitioner had already been appointed as Police Constable in the year 2001, however, the learned counsel for the petitioner submits that taking into consideration the admitted factual position that he belongs to Scheduled Tribe category and was lateron selected as a Constable, he may be granted the benefit of seniority from the year 1999 and may be permitted to represent his case in this regard to respondent No.2 5 7. In view of the above, the petition is disposed of with a direction that subject to the petitioner making a representation to respondent No.2 alongwith supporting materials, if any, and copy of this judgment within one month from today, the said respondent shall consider the same and take a final decision in the matter within the next three months in accordance with law and justice, after affording the petitioner an opportunity of being heard, if so desired. 8. The petition stands disposed of, so also pending CMP(s), if any. (V.K. Sharma) Judge. 24th December, 2010 (vt)