Point of Law: It was not case of unfilled vacancies for want of suitable candidate as respondent No. 2 had prepared a combined merit list of Ex-servicemen candidates and since candidature stood rejected, merit of candidates placed below him would have been upgraded.

JUDGMENT :

SATYEN VAIDYA, J.

Heard.

1. Both these petitions have been heard together and are being disposed of by a common judgment as identical questions of facts and law are involved.

2. Undisputed facts of the case are that respondent No. 2 held selection process for Himachal Pradesh Administrative Services through Himachal Pradesh Administrative Services etc. combined competitive examination. The advertisement was issued in December, 2000. Four posts of H.P. Administrative Services were advertised besides other posts in Allied categories. One out of the four posts of H.P. Administrative Services was reserved for Ex-servicemen (General) category.

3. On completion of selection process the merit list was drawn. One Shri Giri Raj Sharma was placed on top of the merit list under Ex-servicemen category. Respondent No. 2 recommended his name for the post of H.P. Administrative Services. On scrutiny of the documents of Shri Giri Raj Sharma, respondent No. 1 found that he was not Ex-serviceman of State of Himachal Pradesh, which was in violation of the rules, as such he was denied appointment by rejection of his candidature. Shri Giri Raj Sharma assailed his rejection by respondent No. 1 before this Court in CWPT No. 2168 of 2008, but remained unsuccessful and his petition was dismissed by a coordinate bench of this Court vide judgment dated 28th September, 2011. The Letters Patent Appeal filed by Shri Giri Raj Sharma also came to be disposed of by a Division Bench of this Court on 09.04.2018, without success for him.

4. It is pertinent to notice that Shri Giri Raj Sharma had attained the age of 62 years, when his LPA came to decided.

5. Petitioners in the instant petitions were also Ex-servicemen candidates in the aforesaid selection process. Petitioner Dev Raj Sharma (in CWPOA No. 3743 of 2019) and petitioner Robin George (in CWPOA No. 969 of 2019), were placed at serial No. 2 and 3 respectively of the merit list of Ex-servicemen candidates.

6. Petitioner Dev Raj Sharma was given appointment as Excise and Taxation Officer, whereas petitioner Robin George was given appointment as Block Development Officer.

7. After rejection of candidature of the first candidate in the merit i.e. Giri Raj Sharma, petitioners made claim for the post of Himachal Pradesh Administrative Services on the ground that their merit would be upgraded after deletion of Shri Giri Raj Sharma from the merit list. Having remained unsuccessful to persuade the respondents in respect of their claim, petitioners approached the erstwhile Tribunal and after abolition of Tribunal their original applications were transferred to this Court and were registered as CWPOA No. 3743 of 2019 and CWPOA No. 969 of 2019 i.e. the instant petitions.

8. Respondent No. 1 has defended its action by making averments in its reply to the following effect:

“21. That as per provision of Rule 3 of the Indian Armed Forces Personnel (Reservation of Vacancies in HPAS) Rules, 1974 which may be read as under, in the event of non filing of vacancies reserved for Indian Armed Forces Personnel it can be filled in after re-advertising the same:

“Where in any year any vacancies reserved for the released Indian Armed Forces Personnel remain unfilled for want of suitable released India Armed Forces Personnel, such vacancies may be filled up temporarily from any other source in accordance with Himachal Pradesh Administrative Service Rules, 1973. The number of such vacancies shall be carried forward to the next succeeding year.”

Since, the matter is sub-judice before the Hon'ble HPAT and the unfilled vacancy can be filled in after re-advertising the same as per provisions of rules ibid. the OA in the present form of pleadings is not maintainable which may be dismissed in favour of the replying respondent.”

9. The stand taken by respondent No. 1 is unsustainable being result of misreading of import and meaning of Rule 3 of Indian Armed Forces Personnel (Reservation of vacancies in HPAS) Rules, 11974. The plain reading of