CWP No.14627 of 1990 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.14627 of 1990 Date of decision: December 10, 2008. Roop Chand Chopra ...Petitioner(s) v. State of Haryana & Anr. ...Respondent(s) CORAM:HON'BLE MR. JUSTICE SURYA KANT 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? Present: Shri Amit Jain, Advocate for the petitioner. Shri R.D. Sharma, Deputy Advocate General, Haryana. ORDER Surya Kant, J. - (Oral): The petitioner seeks a mandamus for his appointment to the post of Assistant District Industries Officer/Development Officer on the recommendations made by the Haryana Public Service Commissioner (in short the Commission). On 31.3.1985, 19 posts of Assistant District Industries Officers/Development Officers were advertised by the Commission. Out of these 19 posts, 4 were reserved for the Scheduled Castes and 2 for the backward classes and 3 for the ex-servicemen. However, on reconsideration of the quota for direct recruitment, the State Government decided to fill up CWP No.14627 of 1990 -: 2 :- only 8 posts of Assistant District Industries Officer/Development Officers and sent a communication to this effect to the Commission. Out of these 8 posts, one post was reserved for Scheduled Castes and one for backward classes. The petitioner applied and competed. He was selected and his name appeared at Sr.No.9 in the merit list, as conveyed to him by the Commission vide its memo dated 24.9.1985 (Annexure P-3). The petitioner belongs to the reserved category of backward classes. It further appears that one more candidate, Ram Kumar (Roll No.68), also belonged to the backward class and he was placed above the petitioner in order of merit, i.e., at Sr. No.6. Since the petitioner did not get appointment, he has approached this Court for a mandamus to direct the respondents to offer him appointment. The respondents have filed their counter affidavit, contesting the petitioner's claim primarily on the ground that as per his merit position, he is not entitled to be appointed. During the course of hearing, Learned Counsel for the Petitioner has urged that Satpal, roll No.94, who belonged to General Category and was placed at Sr.No.3 in the order of merit, did not join the offered post. Similarly, Ram Kumar (Roll No.68), who like the petitioner was a backward class candidate and was placed at Sr.No.6 in the order of merit, though joined but vacated the post during the period when the selection list was valid and operative. On this premise, learned counsel contends that the petitioner was entitled to be appointed on the basis of his overall merit against the open category posts and in any case against the CWP No.14627 of 1990 -: 3 :- post reserved post for backward classes which was initially came to be occupied by Ram Kumar. The stand of the respondents appears to be that in fact no post was reserved for the backward classes and inadvertently it was shown to have been reserved though it ought to have been reserved for Scheduled Castes only and was accordingly offered to a candidate (Narender Kumar) belonging to the Scheduled Castes reserved category. Having heard Learned Counsel for the parties for some time and keeping in view of the scant material on record , it appears that no definite opinion in relation to the rival contentions can be formed. Ordinarily, if a selected candidate has not incurred any disqualification against appointment and if his selection falls within the advertised posts which the competent authority has decided to fill up, denial of appointment to him would be contrary to the mandate of Articles 14 and 16 of the Constitution. If the claim of the petitioner, as putforth during the course of hearing, is factually correct, it appears that he would be amongst those open category candidates who are entitled to be appointed against the advertised posts. At the same time, if one or the other advertised posts were actually meant for some other reserved category and have been offered to the candidate(s) of those categories as per the reservation policy, no direction to divert those posts from one reserved category to another can be issued by this Court. Consequently, and without expressing any opinion on the merits of the petitioner's claim, this writ petition is disposed of with a direction to the respondents to re-consider the whole matter and firstly determine as to out of total 8 posts, how many posts were meant for general category or for the reserved categories, like Scheduled Castes and backward CWP No.14627 of 1990 -: 4 :- classes. Thereafter, the respondents shall determine the petitioner's claim for appointment and in case it is found that as per his merit, the petitioner was entitled to be appointed either against a post meant for the open category or reserved for backward classes, necessary action shall be taken. The needful shall be done within a period of 3 months from the date of receipt of a certified copy of this order. It is, however, further directed that in case the respondents find that the petitioner is entitled to be appointed, in that event, he shall not be entitled to be paid the arrears of pay though he shall be entitled to other consequential benefits like seniority and notional pay fixation. No costs. December 10, 2008. [ Surya Kant ] kadyan Judge