STATE OF HIMACHAL PRADESH Vs. RAJ KUMAR

JUDGEMENT

(1.) The issue raised in all these cases pertains to recruitment of 393 posts of Forest Guards. As per the existing rules, it is not in dispute that 90% of the cadre strength is to be filled-up by the direct recruits and 10% by the in-service candidates. It appears that the Government has taken a policy decision during 2002 that out of the 90% direct recruits, 15% should be reserved for Home Guards. The writ Petitioners in all these cases are Home Guards. It is their claim that 15% of 393 vacancies should be given to the Home Guards on the basis of the government's decision dated 23.12.2002. It is seen that pursuant to the government's decision, steps have been taken for filling-up 393 posts by the Principal Chief Conservator of Forests as per communication, dated 23.12.2002. Quite strangely, though none of the writ Petitioners is in-service candidate, yet they have also been permitted to participate in the selection process. There cannot be any dispute from any corner that direct recruitment can only be through Service Selection Board. The limited direct recruitment is permissible only by the Department for selection of 10% quota, reserved for the in-service candidates. The selection process, that has been initiated and conducted by the Department, is only for 10% quota. If that be so, being a limited direct recruitment, pursuant to government's decision dated 23.12.202, the writ Petitioners being Home Guards, cannot stake any claim against 10% quota for in-service candidates. Their claim can be considered only when the direct recruitment for 90% of the cadre strength is conducted. The Petitioners could not have been permitted to participate in the limited direct recruitment conducted by the Conservator of Forests, since they are not in-service candidates and since the recruitment, that has been conducted, is only a limited direct recruitment for 10% quota.

(2.) But we find that there are two judgments of the single bench with divergent views. In CWP(T) No. 9730 of 2008 ( O.A. No. 2981 of 2003), decided on 8.3.2010, titled as Rajeev Kumar and Ors. v. State of H.P. and Ors., it has been held that the writ Petitioners, who are Home Guards, cannot stake any claim against 10% quota, since what is conducted is only a limited direct recruitment for the 10% quota. It has also been held, inter alia, that the claim of the writ Petitioners for 15% reservation out of 90% posts in the cadre strength can be considered only subject to the statutory rules.

(3.) In the facts and circumstances, as discussed above, we do not think it necessary to go into that moot question as to whether in the absence of rules, the Government policy for reservation of 15% can be resorted to. That question would arise for consideration only as and when the steps are taken for direct recruitment by the Service Selection Board for 90% of the cadre strength. However, it is brought to our notice that despite there being no amendment in the rules also, the Government has so far made direct recruitment of 76 Home Guards in the years 2007 and 2010. As we have already held above, those appointments can only be treated as direct recruitment and to be adjusted against the 90%. The learned Additional Advocate General points out that those 76 appointments were made in the year 2007-2010 through direct recruitment. Whether the direct recruitment has been conducted properly or not is not an issue before us and it cannot be gone into at the back of the affected candidates. Be that as it may. The writ Petitioners in the above circumstances are certainly entitled to stake their claim against 90% direct recruitment quota and as and when the proper selection for direct recruitment against 90% posts is conducted, it will also be open to the writ Petitioners to point out that the policy of the Government is being implemented despite amendment in the rules.