IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA C.W.P. No.3474 of 2009. Decided on 15.3.2010 Sandeep Singh Sihag ….Petitioner Versus State of H.P. and others …Respondents Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice R.B. Misra, Judge. For the Petitioner: Mr.Rajiv Narain Raina, Mr.Puneet Gupta and Mr.Gaurav Sharma, Advocates. For Respondents Mr.R.K.Sharma, Sr.Addl.Advocate General, with Mr.J.K.Verma, Deputy Advocate General, for respondents No.1 and 2. Mr.Ajay Goel, Advocate for respondent No.4. Justice Kurian Joseph, C.J. (Oral) Writ petition has been filed mainly with the following prayers: (i) “Issue a writ, order or direction in the nature of certiorari quashing the action of the respondents in not de- reserving the three vacant posts of other backward classes and of other reserved categories and seeking to fill them up from the reserved categories and, if necessary, also quashing the Advertisement No.11/2009 (Annexure P-5) and the corrigendum dated 13.3.2009 (Annexure P-6) to the extent that it has advertised three clear cut vacancies of the Other Backward Classes and one clear cut Scheduled Tribe Vacancy, as these vacancies have been carried forward for the last more than six recruitment years; 2 (ii) Issue a writ, order or direction in the nature of mandamus directing the respondents to de-reserve the three clear cut backlog vacancies of the Other Backward Classes category and one clear cut backlog vacancy of the Scheduled Tribes category and one backlog vacancy belonging to the Scheduled Caste category as General Category vacancies, in view of the law laid down by this Hon’ble Court and the Hon’ble Supreme Court of India; (iii) Issue a writ, order or direction in the nature of mandamus directing the respondents to appoint the petitioner as a Civil Judge (Junior Division) in the Himachal Pradesh Judicial Service as he has been duly selected for the said post in pursuance to the advertisement No.XII/2007 dated 2.2.2008 (Annexure P-1).” The issue pertains to the appointment against OBC vacancy for the post of Civil Judge (Jr.Division) under the Himachal Pradesh Judicial Service Rules, 2004. The only contention raised by the petitioner is that since the OBC vacancy could not be filled up despite three consecutive attempts made in three recruitment years, that benefit should go to the general category. On principle, the same is not in dispute and that matter has been settled by two Division Bench judgments of this Court in CWP No.333 of 2003 (Annexure P-9) and CWP No.1624 of 2008 (Annexure R-1). We also find the former has become final by the decision of the Apex Court in the order dated 19th May, 2009 in Civil Appeal No.4691 of 2007. We are informed that the latter has been implemented and thus the judgment dated 17.9.2009 has also attained finality. In both these decisions, as mentioned above, 3 principle has been well settled that in case the recruitment agency is not in a position to find an OBC candidate for three consecutive recruitment years, then that vacancy should go to the general category. In view of the settled provisions under the rules of the 49 point roster, the point that remains to be filled up is 42. We are also informed by the learned counsel appearing for the High Court that point No.42 has not been filled up and despite attempts made for more than three recruitment years, no candidate from OBC was available. Therefore, writ petitioner is entitled to succeed in terms of the principle settled by the judgments referred to above. In the 49 point roster, Shri Jia Lal Azad was appointed against the first available turn for OBC at point No.9. Then the next available turn at No.17 Shri Harmesh Sharma was appointed, against 25 Shri Kapil Sharma was to be accommodated, and against the next available turn at number 33 Shri Amardeep Singh Thakur was to be accommodated (Petitioners in the two Writ Petitions referred to above). The next slot available to OBC and remaining unfilled is 42. We direct the respondents to appoint the petitioner, who is next in the general category in 2008 list against slot No.42 in 49 point roster which is reserved for OBC category, but available now to the general category since there was no candidate available despite attempts made in three consecutive recruitment years. On the question of seniority, in view of the principle that has been settled in the judgment of this court CWP No.1624 of 2008 dated 17.9.2009, we make it clear that the petitioner will take seniority below Amarjeet Singh and above all other recruits of the year 2009. We make it clear that in case any mistake has been committed by the H.P. Public Service Commission in not following the principle laid down by this Court in the judgments, referred to above, it will be open to them to issue necessary corrigendum in the matter of 4 reservation to the OBC. The needful shall be done within a period of one month from the date of production of the copy of this judgment along with the copy of the writ petition. ( Justice Kurian Joseph ), Chief Justice March 15, 2010(sl/p) ( Justice R.B. Misra ), Judge