M.N.Bhandari, J. - (1.) THE petitioners are aggrieved by denial of appointment though they stood in merit at No. 1 and 8 in OBC category. It is alleged by learned counsel for petitioners that persons with less merit in their own category have already been given appointment thus a direction may be issued to the respondents to give appointment to the petitioners and if less meritorious candidates have been appointed, then room may be made for the petitioners.
(2.) LEARNED counsel for respondents, on the other hand, submits that petitioners stood in higher merit thus migrated to the general/open category. The controversy regarding migration was considered and decided by this Court on 27.4.2012 in bunch of writ petitions led by "Madan Lal vs. State of Rajasthan & Ors.", SB Civil Writ Petition No. 15152/2011. In view of the judgment aforesaid, petitioners could not be given appointment, however, if they stand in merit in OBC category itself, then their case for appointment would be considered. I have considered rival submissions of learned counsel for parties and perused the record and find that petitioners are those who stand in higher merit for selection for the post of Constable. They are in merit at No. 1 and 8 in OBC category and candidates with less merit in their own category have already been given appointment. The only reason for denial of appointment is due to migration of the petitioners from OBC category to general/open category. The judgment in the case of Madan Lal (supra), even if applied denying migration of OBC category to open/general category in certain circumstances, then also petitioners are eligible for appointment in their own category as they are in merit and less meritorious candidates have already been appointed. The action of the respondents to deny appointment to the petitioners is not legal. In view of aforesaid, writ petition is allowed with a direction to the respondents to give appointment to the petitioners on the post of Constable General. The petitioners would be entitled to the benefit of notional fixation and seniority vis   -vis less meritorious persons who were appointed ignoring candidature of the petitioners. Compliance of the directions aforesaid may be made within a period of six weeks from the date of receipt of copy of this order.;