IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No.:2137/2008 Decided on:18.4.2009 Lobhi Ram Dode. …Petitioner. Versus State of Himachal Pradesh and another. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the petitioner : Mr. Rakesh Jaswal, Advocate. For the Respondents : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Vikas Rathore, Deputy Advocate General. Rajiv Sharma, J. The respondent-State had issued advertisement on the basis of which eleven posts of Assistant Public Prosecutors were to be filled in the year 1983. The petitioner has joined military services on 1.11.1965. He was discharged on 31.1.1983. He had put in 17 years and 363 days of service in the Indian Army. He submitted application for the post of Assistant Public Prosecutor. His name was recommended by the Employment Exchange, Bilaspur as Scheduled Caste/ Ex-serviceman candidate. He secured 38 marks on the basis of written examination and viva-voce. One Sh. D.P. Chauhan was appointed against the post reserved for Ex-serviceman. The respondents instead of filling up eleven posts as advertised had 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 decided to fill up ten additional posts of Assistant Public Prosecutors. The precise case of the petitioner is that he was to be considered against roster point No.12 and was to be appointed against the post of Ex- serviceman. The case set up by the respondent-State is that the petitioner was appointed against the post of Scheduled Caste since he was lower in merit vis-à-vis Mr. D.P. Chauhan. The Court had directed the respondents on 29.12.2008 to consider the case of the petitioner. The same was rejected on 25.2.2009. Mr. Rakesh Jaswal, Advocate has strenuously argued that his client was entitled to the benefits accruing under the Demobilized Forces Personnel (Reservation of Vacancies in the Himachal State non-technical Services) Rules, 1972 (hereinafter referred to as ‘the Demobilized Rules’ for brevity sake). He then contended that the respondent-State is maintaining 100 point roster and according to the roster, 12th post was to go to the category of Ex-serviceman and his client was required to be considered against the post of Ex-serviceman once the respondent-State had decided to fill up additional ten posts over and above eleven posts initially advertised. He lastly contended that the representation made by his client has been rejected on 5.10.1992 without a speaking order. Mr. R.K. Sharma, learned Senior Additional Advocate General has supported the decision of the respondent-State whereby the petitioner could not be given the benefits under the Demobilized Rules. He has further contended that the petitioner had been considered against the post reserved for Scheduled Caste category and his case could not be considered against the category of Ex-serviceman. I have heard the learned counsel for the parties and perused the record carefully. 3 The selection process was initiated by the respondents in the year 1983. Eleven posts in all were advertised in the following ratio: Scheduled Caste = 3 Ex-serviceman = 1 Backward Class = 1 General category = 6 The petitioner belongs to the category of Scheduled Caste as well as Ex-serviceman. He had put in 17 years and 363 days service in the Indian Army. His name was recommended by the Employment Exchange, Bilaspur against the category of Scheduled Caste/Ex-serviceman. It appears from the record that the petitioner had secured 38 marks and Sh. D.P. Chauhan who had secured 51 marks was appointed in the category of Ex-serviceman. He was appointed against the post reserved for the category of Scheduled Caste. It is not in dispute that the State Government has framed the Demobilized Forces Personnel (Reservation of Vacancies in the Himachal State non-technical Services) Rules, 1972. 15% reservation has been provided for filling up the posts as per the Demobilized Rules from the category of Ex-serviceman. The respondent- State has framed 100 point roster. According to this roster point, 3rd and 12th posts are reserved for Ex-serviceman. In the present case, the respondents instead of filling up eleven posts have filled up twenty one posts. In case the respondents had decided to fill up only eleven posts in that eventuality the petitioner had no case to be considered for the post reserved for the category of Ex-serviceman on the basis of his merit vis-à- vis Sh. D.P. Chauhan. However, the State in its own wisdom had decided to fill up twenty one posts. In this eventuality the case of the petitioner was required to be considered against roster point No.12 meant for Ex- serviceman. In fact, the respondents were required to prepare a panel as 4 per rule 4 (2) (e) of the Demobilized Forces Personnel (Reservation of Vacancies in the Himachal State non-technical Services) Rules, 1972 as quoted in the petition. The reason assigned by the respondents for not resorting to rule 4 (2) (e) of the Demobilized Rules is not convincing. It appears, as noticed above, that the petitioner was appointed against the post reserved for Scheduled Caste category since only eleven posts were filled up initially. The right accrued to the petitioner for being considered against the post reserved for Ex-serviceman, the moment the State decided to fill up ten more posts over and above eleven posts advertised. In view of this the panel was required to be prepared as per rule 4 (2) (e) of the Demobilized Rules and the petitioner was required to be appointed against the post reserved for Ex-serviceman at Sr. No. 12 of the roster. The petitioner has made a detailed representation. The same was rejected without a speaking order by the competent authority on 5.10.1992. It was necessary for the competent authority to assign reason which has weighed with it while rejecting the representation made by the petitioner. The order passed by the competent authority on 5.10.1992 had civil and evil consequences qua the petitioner. In case he had been considered against the post reserved for Ex-serviceman at Sr. No. 12 as per roster, he was entitled to get the benefits of the approved military service of 17 years and 363 days for fixing of his pay as per rule 5 of the Demobilized Rules. In the present case the petitioner’s pay has only been protected on the basis of subsequent instructions issued by the State of Himachal Pradesh instead of granting him the benefits to which he was legally entitled in case he was considered against point No.12 of roster point against the post reserved for Ex-serviceman towards seniority and pay fixation. 5 While reconsidering the case of the petitioner as directed by this Court, Secretary (Home) has compared the marks of the petitioner vis-à- vis Sh. D.P. Chauhan. This could only be applicable if only eleven posts were filled in. In the present case the respondents have filled in ten additional posts. The roster was to be applied necessarily to these posts as well. The petitioner had secured 38 marks. It is not disputed by the learned Senior Additional Advocate General that the minimum qualifying marks were 33. The methodology adopted by the respondents of neither preparing the panel nor considering the case of the petitioner for the post in question against the Ex-serviceman quota has rendered the very concept of reservation horizontally and vertically otiose. The net result of the procedure adopted by the respondent-State is that it had applied the roster up to eleven posts and thereafter it has not been followed for ten additional posts. This has definitely defeated the rights of the petitioner and similarly situate persons to be considered against the reserved posts. The respondents have further misconstrued rule 4 (2) (e) of the Demobilized Rules. In this case the petitioner was to be considered immediately at the time of filing up of additional posts and he had not to wait for another 18 months. His name was required to be considered forthwith the moment the decision had been taken by the State to fill up twenty one posts instead of eleven posts initially advertised. He has pressed for his claim to be considered for the post of Ex-serviceman at Sr. No.12 of the roster point after the State had decided to fill up ten additional posts. He was not aware at the time when eleven posts were filled up that the State will decide to fill up ten additional posts on the basis of same written examination and viva-voce examination. If he had been apprised of this factual situation, he would have definitely opted for the post reserved for Ex-serviceman. 6 Accordingly, the petition is allowed. Annexure A-2 dated 5.10.1992 is quashed and set aside. In view of the peculiar facts and circumstances as noticed above, the petitioner shall be deemed to have been appointed to the post of Assistant Public Prosecutor in the category of Ex- serviceman with all consequential benefits, including seniority etc. The respondents are directed to do the needful within a period of eight weeks from today. No costs 18.4.2009 (Rajiv Sharma ), J. *awasthi*