LPA No.1929 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: 17.10. 2011 Ajay Kumar ...Petitioner VERSUS State of Haryana and others …Respondents CORAM HON'BLE MR.JUSTICE PERMOD KOHLI HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA PRESENT: Mr.J.S.Mehndiratta, Advocate for the petitioner Permod Kohli, J. (Oral) This LPA is directed against the judgment dated 16.9.2011 passed by learned Single Judge in CWP No.10960 of 2011. Briefly stated the facts giving rise to the present appeal are that 20 posts of Assistant Public Relation Officers were advertised vide advertisement dated 28.10.2008. These posts belong to the following categories:- “General 7 SC 5 BCA 3 ESM Gen. 1 ESM BCA 1 ESM BCB 1” The appellant does not belong to any of these categories, however, he is claiming the reservation under the Ex-Serviceman quota relying on LPA No.1929 of 2011 2 Government Instructions dated 26.7.1984 and 26.11.1985, respectively. Government instructions dated 26.7.1984 inter alia provides that 2% posts in Class I, II, III and IV in direct recruitment shall be reserved for the children and grand children of Freedom Fighters subject to the conditions that these 2% posts will be available for Freedom Fighters and their children and grand children only if the quota reserved for Ex-servicemen remains unfilled due to non-availability of suitable Ex-servicemen or their dependents. These instructions further lay down that 2% reservation will be available for the children/grand children of Freedom Fighters only if quota reserved for Ex-servicemen or Backward Class remains unfilled due to non-availability of suitable Ex-servicemen or their dependents or non- availability of suitable candidates from Backward Class. The benefit was also made available to grand children, sons and daughters, both paternal as well as maternal of Freedom Fighters. The appellant claims to be the descendant of Freedom Fighter and belongs to General Category. He applied for the post under the Reserved Category of ESM General. Interview for the posts was held on 9.1.2010. The appellant has been placed in the waiting list. It is alleged that there were three vacancies reserved for Ex-servicemen. One vacancy meant for ESM General stands filled up whereas two vacancies belonging to ESM BC-A and ESM BC-B have remained unfilled on account of non-availability of Ex-servicemen belonging to these categories. Relying upon government instructions dated 26.7.1984 and 26.11.1985, the appellant seeks his appointment against one of the unfilled vacancies. The appellant made a representation dated 21.4.2011 followed by a reminder dated 19.5.2011. Receiving no response, the present writ petition has been filed seeking a LPA No.1929 of 2011 3 direction to fill up available vacancies irrespective of the category. Instructions dated 26.7.1984 (Annexure P-2) relate to grant of extension of concession of reservation in direct recruitment to Freedom Fighters, their children/grand children. Circumstances where under such benefit is available to the children and grand children of Freedom Fighters have been referred to here-in-above. It is admitted position that two vacancies under the ESM Category belonging to ESM BC-A and ESM BC- B are available. The stand of the respondents before the learned Single Judge was that since there was only one General Category vacancy under the ESM General quota, the same having been filled up on the basis of merit, the appellant cannot claim the benefit against the vacancies reserved for ESM- BCA and ESM- BCB, he being from General Category. To support this contention reliance is placed upon the government instructions referred to above where under 2% quota is reserved for Freedom Fighters and judgment of the Hon'ble Supreme Court in Anil Kumar Gupta vs. State of Uttar Pradesh JT 1995 (5) SC 505. Learned Single Judge while interpreting the government instructions came to the conclusion that unfilled reserved category vacancies belonging to ESM- BCA and ESM- BCB can only be occupied by ESM BC-A and ESM- BCB candidates and not by General Category candidate. Learned Single Judge has further relied upon observations of the Hon'ble Apex Court in case of Anil Kumar Gupta (supra). In the above mentioned judgment, Hon'ble Supreme Court has held that the reservation of such a nature like physically handicapped category is in the nature of horizontal reservation under the vertical reservation and are not inter-transferable. It is further ruled that it is a case of compartmentalized reservation within the prescribed vertical reservation. LPA No.1929 of 2011 4 Learned Single Judge relying upon the aforesaid authority in Anil Kumar's case (supra) and judgment in the case of Indra Sawhny v. Union of India, 1992 Supp. (3) SCC 217, dismissed the writ petition holding that the vacancies belonging to ESM BC-A and ESM BC-B are not transferable to General Category ESM and resultantly, dismissed the writ petition. Mr. Mehndiratta, learned counsel for the appellant has sought to argue that it is not a case of compartmentalized reservation and under the instructions dated 26.7.1984, any unfilled ESM category vacancy up to extent of 2% stands transferred to Freedom Fighters quota irrespective of the category and thus, the appellant who is the sole available candidate under the Freedom Fighters Category is entitled to be considered for selection/appointment against unfilled vacancies under ESM reserved categories. It is submitted that these instructions simply provide for transferring of unfilled vacancy to the Freedom Fighters category to which a candidate belongs. We have given our thoughtful consideration to the above said arguments. From a perusal of the government instructions dated 26.11.1985, it becomes abundantly clear that 2% reservation is available for the children and grand children of Freedom Fighters out of unfilled quota of Ex-servicemen or Backward Class, due to non-availability of suitable Ex- servicemen or their dependents or non-availability of suitable Backward Class candidates. If the intention of the authority was to permit the unfilled vacancies to be occupied by the dependents of Freedom Fighters irrespective of the category, then there should not have been any mention or reference to the “suitable candidates from Backward Class”. From the LPA No.1929 of 2011 5 careful reading of the aforementioned instructions, it leaves no room to opine that the reserved category vacancy can only be filled up from the respective reserved category and is non-transferable. This is also the mandate of the judgment of the Hon'ble Supreme Court in the case of Anil Kumar Gupta (supra). We find no factual or legal infirmity in the impugned judgment. Appeal dismissed. (PERMOD KOHLI) JUDGE (TEJINDER SINGH DHINDSA) JUDGE 17.10.2011 MFK CWP No.10585 of 2010 6