State of H.P. and Another vs Sh. Lobhi Ram

Kurian Joseph, C.J.—The State is aggrieved by the judgment dated 18.4.2009 in CWP (T) No. 2137 of 2008. Short facts. The Petitioner has submitted an application for appointment as Assistant Public Prosecutor against the quota reserved for Ex-servicemen. Initially, the Notification contained 11 posts. However, it is not in dispute that in view of the requirement of incumbents 21 posts were filled up. It is also not in dispute that in case 21 posts are filled up, there are two roster points available to the Ex-servicemen i.e. roster points No. 3 and 12. The Petitioner though is an Ex-serviceman, he belongs to the Scheduled Caste community. It is seen that out of the two candidates available from the Ex-servicemen, more meritorious was accommodated against the roster point No. 3 of Ex-servicemen and the Petitioner was accommodated against the turn for a Scheduled Caste candidate.

It is the contention of the Petitioner that he had not applied for or requested for accommodation against the turn of Scheduled Caste since he was otherwise entitled to be accommodated against roster point No. 12 of Ex-servicemen. The advantage of such accommodation is that since he is otherwise entitled, he would be in a position to get the advantage of the Demobilized Armed Forces Personnel (Reservation of vacancies in Himachal State Non Technical) Service Rules, 1972. The facts to the extent not in dispute are:

The Petitioner is an Ex-serviceman.

He applied for the post as an Ex-serviceman as sponsored by the Ex-servicemen Cell.

He belongs to the Scheduled Caste community.

21 posts were to be filled up.

There were two roster points for Ex-servicemen.

There were only two Ex-servicemen.

The Petitioner is less meritorious candidate of the two.

Nobody else from the Ex-servicemen category has been accommodated in 21 posts.

Since the Petitioner has been sponsored by the Ex-servicemen Cell, he can be considered only against that category. The contention of the State is that the Petitioner having been offered appointment as a Scheduled Caste candidate and the Petitioner having been accepted the appointment, he cannot turn down and contend for the benefits under the Demobilized Armed Forces Personnel (Reservation of vacancies in Himachal State Non Technical) Service Rules, 1972. When an offer of appointment is made, a candidate normally does not bother as to the category in which he is appointed. But as a matter of fact, the Petitioner has been sponsored only as an Ex-serviceman and could have been considered only as an Ex-serviceman, as otherwise, the turn which would have gone to a member of the Scheduled Caste will be lost also and that will be in violation of the principle of reservation in favour of the Scheduled Caste candidate. Therefore, we do not find any infirmity in the judgment. If any irregularity is to be corrected, it is only appropriate that the State takes steps to correct the same by accommodating the Petitioner against the quota of Ex-servicemen and by filling up the quota from Scheduled Caste candidates.

Subject to the above liberty, LPA is dismissed, so also the pending applications, if any.