The limited availability of unreserved posts and the absence of pleading and rejoinder regarding non-joining candidates influenced the court's decision.

K.M. JOSEPH, J.

We heard the learned counsel for the parties.

2. There is delay of 174 days in filing the appeal. After considering the grounds taken in the delay condonation application, delay will stand condoned. Accordingly, the delay condonation application stands allowed.

3. The Appeal is lodged by the respondents in the Writ Petition. The case of the writ petitioner in brief is as follows:

i. Writ petitioner was appointed as a daily wage labour in 1990 in the Corbet Tiger Reserve, Ramnagar, District Nainital and since then he is continuously working as such. The service of the writ petitioner was not regularized, despite representation with reference to the judgment in State of U.P and others vs. Putti Lal rendered by the Hon’ble Apex Court.

ii. On 31.10.2011, the third respondent (Director Corbett Tiger Reserve, Ramnagar District Nainital) in the writ petition issued advertisement, inviting applications from seasonal workers for appointment on 39 posts of Forest Guards. Being qualified, he applied. Physical test was conducted. A writ petition was filed being WPSS No. 306/2012. There was an interim order passed on 16.3.2012, directing that the result of the recruitment of forest guard shall abide by decision of the writ petition. However the appointment was stopped. Though the advertisement was for 39 posts, but in compliance of the interim order, the respondents filled up only 29 posts. As far as appointments of 10 candidates are concerned, it was directed that appointment may be made according to the merit position and that the same will abide by the result of the application filed in Writ Petition No. 306/2012. But despite that, respondents granted appointment only on 29 posts. It is alleged in paragraph 13 of the writ petition as under:

“13. That as per the result declared by the respondent the petitioner was at serial no. 29 and he obtained total 49.75 marks, if in the total 39 post would have been granted appointment as per the merit, the petitioner must have been appointed on the post of forest guard. For the kind perusal of this Hon’ble court a true copy of the merit list of the written examination dated 02.5.2013 is being filed herewith and marked as Annexure no. 5 to this affidavit.”

iii. 10 posts were not filled up only because of the interim order passed by the Court on 16.3.2012 though it was vacated later on 15.04.2013 by the Court. All the writ petitioners in Writ Petition No. 306/2016 (S/S) were granted appointments in the subsequent selection process in the respondent department, their claim in Writ Petition No. 306/2012 (S/S) became infructuous. Paragraph-18 of the Writ Petition reads as under:

“18. That at present 10 post of the forest guard are still vacant in pursuant to the aforesaid advertisement dated 31.10.2011 and the petitioner had successful passed all the tiers of the examination held by the respondent and if the respondent had not been stopped the appointment in pursuant to the interim order passed by this Hon’ble court to the petitioner would have been appointed on the post of forest guard in pursuant to the advertisement dated 31.10.2011 along with other selected candidate.”

4. There is no litigation now pending. The Writ Petition 306/2016 (S/S) has been dismissed by this Court on 21.10.2016, as withdrawn and as such the respondents are bound to grant appointments on rest of the 10 posts of the Forest Guard, which was stopped due to the pendency of the writ petition.

5. Writ petitioner thereafter moved (Annexure-7) representation and approached this Court seeking a direction by way of mandamus to grant appointment on the post of Forest Guard pursuant to the advertisement dated 31.10.2011.

6. A counter affidavit was filed by respondent no. 3. Therein, it is inter alia stated that as against total 39 vacancies, 18 were unreserved, 10 were reserved for Scheduled Caste & 4 vacancies were reserved for Scheduled Tribe and 7 vacancies were reserved for OBC. Thereafter, inter alia, it is stated tha