IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.W.P.No. 9271 of 2011-H Decided on: 8th December, 2011. 1. Dr. Ruchit Punn, s/o Dr. Prem Punn, R/o Poonam House near Gurdawara, Sanjauli Chowk, Shimla-171006. 2. Dr. Tilak Raj, S/o Shri Gopal Singh, R/o Kathalag, Tehsil Sadar, District Mandi, H.P. …..Petitioners. -Versus- 1. State of Himachal Pradesh through the Secretary (Ayurveda) to the Government of H.P., Shimla-171002. 2. The Director, Department of Ayurveda, Himachal Pradesh, Shimla, H.P. 3. Himachal Pradesh Public Service Commission, Nigam Vihar, Shimla, H.P., through its Secretary. 4. Dr. Vaishali Sood, Ayurvedic Medical Officer. 5. Dr. Mannat Marwaha, Ayurvedic Medical Officer. 6. Dr. Durgesh Senthiya, Ayurvedic Medical Officer. 7. Dr. Nitu Panta, Ayurvedic Medical Officer. 8. Dr. Ashta Marwaha, Ayurvedic Medical Officer. Srl. Nos. 5 to 8 through the Director of Ayurveda, Himachal Pradesh, Shimla-171002. …… Respondents. Civil Writ Petition Under Article 226 of the Constitution of India for a writ of mandamus or any other appropriate writ order or direction directing the respondents to issue appointment to the petitioners to the post of AMO against the SC category after treating the SC candidates appearing at Srl. Nos. 36 and 39 of the common merit as General category candidates. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice. The Hon’ble Mr. Justice Rajiv Sharma, Judge. For the petitioner(s):Mr.M.L. Sharma,Advocate. For respondents 2 No. 1 and 2. : Mr. R.K. Bawa, A.G. with Mr. J.K. Verma, Dy. A.G.. For respondent No. 3. : Mr. D.K. Khanna, Advocate. None for respondents No. 4 ----------------------------------------------------------- Justice Rajiv Sharma, J. (Oral): Respondent-State issued an advertisement dated 17.11.2010, whereby applications were invited for filling up 101 posts of Ayurvedic Medical Officers on contract basis. 40 posts were meant for general category, 10 posts were meant for SC category and 9 posts were meant for OBC category. Remaining 42 posts were reserved for various other categories, as per the details given in the advertisement. Petitioners sat in the screening test and they were called for interview in the month of July, 2011. Respondent No.3 has issued merit list vide Annexure P-2. Respondent No.3 has made recommendations for appointment to the posts of Ayurvedic Medical Officers vide Annexure P-3. Petitioners belong to Scheduled Caste category. Their names are at Sr. Nos. 11 and 12 in their category. 2. It is evident from the recommendations made that two candidates belonging to scheduled caste category at Sr. Nos. 36 and 39 have been shown in general category but correspondingly two posts have 3 not been filled up from the scheduled caste category as per the merit list. 3. Mr. M.L. Sharma has vehemently argued that once the candidate belonging to scheduled caste category finds place in the common merit list on account of his own merit, he has to be treated as a general category candidate and the number of posts reserved for the said category have to be filled up after excluding the candidates selected on account of their own merit. In other words, his submission is that the candidates at Sr. Nos. 36 and 39, namely, Dr. Sanjeev Kumar Dhiman and Dr. Poonam Jambla are to be treated as general category candidates. 4. It is no more res integra that in case of vertical reservation, reserved candidates may compete for non-reserved posts and if they are appointed to the non-reserved posts on their own merit, their number will not be counted against the quota. (see: (1995) 2 SCC 745, (1995) 6 SCC 684 and (1996) 3 SCC 253. 5. Their Lordships of the Hon’ble Supreme Court in Rajesh Kumar Daria versus Rajasthan Public Service Commission and others, (2007) 8 SCC 785 have held that if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said the 4 reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under Open Competition category, though their Lordships have put a rider that this principle applies to vertical (social) reservations and not to horizontal (special) reservations. 6. Respondent No.3 has filed a reply and in view of the settled law discussed hereinabove, has undertaken to revise the result by excluding the names of respondents No.4 to 8 from the list of selected candidates. 7. Accordingly, the writ petition is disposed of with a direction to responder No. 3 to revise the result and to make recommendations, within a period of four weeks from today. The pending application(s), if any, also stands disposed of. (Justice Kurian Joseph), Chief Justice. (Justice Rajiv Sharma), Judge. December 08, 2011. *awasthi*