AUGUSTINE GEORGE MASIH, J. - (1.) PETITIONER has approached this Court praying for quashing of the impugned order dated 04.02.2013 (Annexure P -11), vide which his claim for appointment as Pharmacist against the post reserved for the freedom fighters and their children/grand children has been rejected with a further prayer that a direction may be issued to the respondents to appoint the petitioner against the available post.
(2.) IT is the contention of the counsel for the petitioner that initially an advertisement was issued by the Haryana Staff Selection Commission dated 10.01.2009 (Annexure P -2) in the newspapers for filling up posts of various categories in different departments of the State of Haryana. In the said advertisement, 41 posts of Pharmacist in the Department of Employees State Insurance Health Care Haryana were also included. Subsequently, through a corrigendum issued on 01.12.2010 (Annexure P -3), number of posts of Pharmacist were enhanced to 61. Applications were invited upto 20.12.2010. Petitioner, in pursuance thereto, applied for the post of Pharmacist under the category of grand -children of freedom fighters. As per the policy of the Government of Haryana dated 26.07.1984 (Annexure P -4) as amended from time to time, if the quota reserved for the Ex -servicemen as also the Backward Classes remained unfilled due to non -availability of suitable candidates of the said category, 2% of the posts could be filled up from the dependents of the freedom fighters, which would include the children and grand -children of the freedom fighters. As per the advertisement and the subsequent corrigendum, the total posts, which were reserved for the Ex -servicemen category, were ten and that for the Backward Class category were twelve. Out of these advertised posts, three posts under the Ex -servicemen category had remained unfilled, i.e., two posts of ESM (SC) category and one post of ESM (BCA) category due to non -availability of the candidates. Since 2% posts could be filled up for the category of dependents of freedom fighters, one post out of 61 would fall to the share of this category under which the petitioner had applied. Petitioner put forth his claim for appointment to the post of Pharmacist which had remained unfilled within the share of Ex -servicemen, but his claim was rejected by the Haryana Staff Selection Commission - respondent No.2 vide order dated 04.02.2013 (Annexure P -11) by relying upon the clarification dated 25.06.2007 (Annexure R -2/1)issued by the Chief Secretary to Government of Haryana asserting therein that the post, which had remained unfilled, would not fall to the category of dependents of the freedom fighters being horizontal reservation and not vertical. This, the counsel for the petitioner contends, is not sustainable as the claim of the petitioner would be covered by the instructions issued by the Government of Haryana from time to time and in any case the consolidated instructions prevalent dated 28.02.2013 (Annexure P -14) wherein it has clearly been laid down that there shall be 2% reservation available for the freedom fighters and their children/grand children only if quota reserved for the Ex - servicemen or Backward Classes remained unfilled to that extent due to non -availability of suitable Ex -servicemen or their dependents or non - availability of suitable candidates from Backward Classes. In any case, the posts to be filled up from the category of freedom fighters and their dependents shall not exceed 2% of the posts advertised. In accordance with the said instructions, counsel contends that the post of the ESM category which has remained vacant deserves to be filled up through the petitioner as he is the sole candidate who had applied under the dependent of freedom fighter category.
(3.) COUNSEL for the petitioner has further referred to the response which has been received from the department dated 08.10.2012 (Annexure P -8), according to which no dependent of freedom fighters -General category candidate has been selected for the post of Pharmacist in pursuance to and against the advertisement No.1/2009, Category No.10 to which the petitioner belongs. He has placed reliance upon the Division Bench judgment of this Court in Ajit Singh Versus State of Haryana and others, 2012(1) RSJ 433, where the Division Bench has laid down the principles on the basis of which vertical and horizontal reservation has to be given effect to. On the basis of those principles, counsel contends that none of the principles as has been laid down would adversely affect the claim of the petitioner as he would not be, in any manner, impacting any candidate who is meritorious and falls within the vertical or horizontal reservation. He accordingly contends that the writ petition deserves to be allowed by quashing the impugned order dated 04.02.2013 (Annexure P -11). Counsel for the respondents, on the other hand, vehemently argues that the instructions, on which the counsel for the petitioner is placing reliance, were only the initial instructions which were issued and reiterated. The instructions when are put to practice and position crystalizes that further clarifications are issued by the Government as and when required from time to time so that the purpose of the instructions can be achieved. It is under these circumstances that the instructions dated 25.06.2007 (Annexure R -2/1) were issued by the Chief Secretary to Government of Haryana in a particular case where such a situation, as in the present case, had arisen. He, on the basis of the said clarification, reiterates the stand of the Commission which was taken while rejecting the claim of the petitioner vide impugned order dated 04.02.2013 (Annexure P -11) and asserts that the petitioner's category being horizontal reservation the post which had remained vacant under the ESM(SC) category and ESM(BCA) category cannot be made available to the petitioner to be filled in from the category to which the petitioner belongs. He accordingly supports the impugned order dated 04.02.2013 (Annexure P -11) and prays that the writ petition be dismissed.;