IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 6429 of 2010 Reserved on: 22.3.2011 Date of Decision: 18.4.2011 Suman Kumar …Petitioner. Versus. State of H.P. and others …Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? Yes For the petitioner: Mr. Sanjeev Kuthiala, Advocate. For the Respondents: Mr.Vivek Thakur, Addl. Advocate General. Deepak Gupta, J. 1. The petitioner by means of this petition has prayed that one post of Constable in the 6th India Reserve Battalion (IRB) should be reserved for wards of ex-servicemen. 2. The undisputed facts are that the petitioner is a bona fide Himachali. He is the ward of an ex- serviceman and is qualified to hold the post of Constable. The Director General of Police vide recruitment notice Ext.P-6 invited applications for filling up 104 posts in 6th IRB from amongst male candidates. The advertisement notice provided that the reservation of vacancies for various 2 categories i.e. SC, ST, OBC, Sportsmen, Ex- servicemen, Wards of Ex-servicemen in case of recruitment to 5th IRBn (Mahilla) Home Guards, Wards of freedom fighters, etc. will be as per instructions of the Government. The petitioner appeared in the physical efficiency test and was issued a call letter for written examination. He also passed the written examination and therefore, expected that he would be called for the interviews. His case was rejected on the ground that no seats were reserved for wards of ex- servicemen. 3. According to the petitioner as per the information supplied by the respondent-State itself the following was the break-up of 104 posts to be filled up in Mandi District:- “Table-D-VIII Break-up of 104 posts for (Male) candidates against 6th IRBn as per vertical and horizontal reservation (Roster point 352 to 455 Break up of post as per Horizontal Reservation Category Breakup of posts as per vertical reservation Wards of Ex- servicemen Antodaya/ IRDP Outstanding Sports man Wards of freedom fighter Home Guards Others General 58 10 8 3 1 8 28 SC 23 3 3 - - 4 13 ST 5 1 1 - - 1 2 OBC 18 2 3 - 1 3 9 Total 104 16 15 3 2 16 52 3 4. The petitioner also relies upon the call letter wherein under the heading of sub-category he has been shown to be a ward of an ex-serviceman and was also asked to produce certificate of the competent authority in this behalf. Shri Sanjeev Kuthiala, learned counsel for the petitioner submits that the aforesaid documents clearly show that a seat was reserved for wards of ex-servicemen and now the State cannot be permitted to turn around and state that no seat was reserved for wards of ex-servicemen. In support of his contention Shri Sanjeev Kuthiala, Advocate, has relied upon the judgement of the Apex Court in A.P.Public Service Commission vs. P.Chandra Mouleesware Reddy and others (2006) 8 SCC 330, and Amlan Jyoti Borooah vs. State of Assam and others, (2009) 3 SCC 227. 5. As far as the first authority is concerned, in my view, this authority does not at all help the petitioner. In this case the Apex Court clearly held that if the State commits a mistake it cannot be directed to perpetrate the mistake. As far as Amlan Jyoti Borooah’s case is concerned all that has been held in that case is that once the 4 selection process starts the employer cannot change the process mentioned in the advertisement. 6. The facts of this case are totally different. On 4.1.2011 this Court passed the following order:- “The respondents are directed to file an affidavit and specifically state therein what was the cut off marks for OBC candidates, ex- servicemen and other categories for calling them for interview. The stand of the State appears to be that there was no roster point for wards of ex- servicemen. However, there are documents, Annexure P-7 and P-8 which reflect that there was a category of wards of ex-servicemen. The affidavit shall be filed by the Principal Secretary (Home) to the Government of Himachal Pradesh, who in his affidavit shall clearly state whether there was any reservation for wards of ex-servicemen in any of the categories i.e. open, scheduled castes, scheduled tribes, OBC, etc. or not. This affidavit be filed within three weeks from today. List on 21st March, 2011.” 7. In response to the aforesaid directions, the Principal Secretary (Home) to the Govt. of H.P. filed his affidavit. In this affidavit it is stated that out of 104 posts created for Mandi district the posts reserved for ex-servicemen were required to be 5 filled in from ex-servicemen only. It is further submitted that it is the Ex-Servicemen Employment Cell, Hamirpur, which sponsors the name(s) of the eligible candidates. In this affidavit it has been clearly stated that no posts were reserved for the wards of ex-servicemen in the male category. According to the affidavit filed by the Principal Secretary (Home) to the Government of Himachal Pradesh only female wards of ex-servicemen were eligible for recruitment in the Mahila Battalion as an exception to the general rules of reservation for ex- servicemen since no female ex-servicemen are available for recruitment for the Mahila Battalion. In this affidavit it has also been stated that in the category to be filled in from male candidates no decision was ever taken to fill up the posts reserved for ex-servicemen from the wards of ex- servicemen. According to the averments made in this affidavit when the recruitment notice was issued by the police official of Mandi district no post was reserved for wards of ex-servicemen. However, it appears that at the local level somebody made a mistake and later even in this 6 category some posts were shown as reserved for wards of ex-servicemen. 8. From this affidavit it is evident that no posts were ever reserved for wards of ex-servicemen in the male category. Even if by mistake this was wrongly mentioned unless there is a provision in the rules for reserving the posts to ex-servicemen no writ or direction can be issued directing the State to fill up the posts reserved for male ex-servicemen from wards of ex-servicemen. It is for the State to decide whether posts meant for ex-servicemen can be filled in from wards of ex-servicemen or not. When ex-servicemen are available there is no reason why wards of ex-servicemen should get preference over them. The ex-servicemen are those who actually served in the army and they fall in a different category from the wards of ex- servicemen. The case of posts to be filled in from the female candidates is totally different. As pointed out in the affidavit of the Principal Secretary (Home) no female ex-servicemen are available and therefore, the State took a conscious decision to fill up these posts from the female wards of ex-servicemen. There is no 7 discrimination as male wards of ex-servicemen form a totally different class. 9. In view of the above discussion, I find no merit in the petition, which is accordingly rejected. No order as to costs. 18th April, 2011. ( Deepak Gupta ) ™ Judge.