Gopal Krishan Vyas, J. - (1.) HEARD learned counsel for the parties. In this writ petition, the petitioner is claiming her right of appointment on the post of Forest Guard on the ground that she is belonging to OBC category but unfortunately OBC certificate was not annexed with the application form because in the first advertisement, it was not disclosed that reservation will be provided to the OBC candidates but in the subsequent advertisement (Annex.4), it was specifically provided that reservation will be provided to the candidates of OBC category. Upon above information, the petitioner submitted her all documents including the certificate of OBC at the time of interview after passing the written examination conducted by the respondents. Learned counsel for the petitioner submitted that although certificate of OBC was submitted at the time of interview but respondents did not consider the case of the petitioner under the category of OBC for providing appointment on the ground that no such certificate was submitted by her before the last date of submitting the application form. Learned counsel for the petitioner further submitted that that even though the petitioner is not entitled to be considered under the category of OBC then also against the vacant post of General Category, petitioner is entitled for appointment because her name was included in the waiting list at S. No. 3. As per petitioner, the candidate Hari Singh, who was at Sl. No. 1 did not join duties and Ashok Ratnu who is at Sl. No. 2 in the waiting list has already been provided appointment against the post of OBC, therefore, now the petitioner is entitled for appointment against the available vacant post.
(2.) FOR the purpose of aforesaid claim in para No. 17 of the writ petition, it is specifically pleaded by the petitioner that the one candidate Dhansukh was provided appointment against the vacancy of ex -servicemen quota of General category but his services were terminated for the reason that he was not belonging to reserved category and appointment was made by mistake. In reply to para No. 17, it is submitted by the respondents that the services of candidate Dhansukh were terminated due to the reason that he was not belonging to General ex -servicemen category and obtained appointment while submitting wrong facts. Meaning thereby, the post upon which Dhansukh was appointed is still in existence and respondents are not disputing above position that after appointment of Dhansukh, he was terminated from service because he obtained appointment in ex -servicemen category of general category while submitting wrong facts.
(3.) IN view of above, learned counsel for the petitioner submits that as per settled law petitioner is entitled to be considered for appointment against the post which is available due to termination of the services of Dhansukh but respondents did not operate the waiting list for providing appointment to the petitioner against the post which is fallen vacant due to termination of the services of Dhansukh. In support of his contention, learned counsel for the petitioner has invited attention of this Court towards the judgment of Hon'ble Supreme Court in case of State of Jammu and Kashmir v. Sat Pal, : AIR 2013 SC 1258 : LNIND 2013 SC 90, in which following adjudication has been made by Hon'ble Supreme Court in para No. 11, 12 and 18 which reads as under: 11. In view of the factual position noticed hereinabove, the reason indicated by the appellants in declining the claim of the respondent Sat Pal for appointment out of the waiting list is clearly unjustified. A waiting list would start to operate only after the posts for which the recruitment is conducted, have been completed. A waiting list would commence to operate, when offers of appointment have been issued to those emerging on the top of the merit list. The existence of a waiting list, allows room to the appointing authority to fill up vacancies which arise during the subsistence of the waiting list. A waiting list commences to operate, after the vacancies for which the recruitment process has been conducted have been filled up. In the instant controversy the aforesaid situation for operating the waiting list had not arisen, because one of the posts of Junior Engineer (Civil) Grade -II for which the recruitment process was conducted was actually never filled up. For the reason that Trilok Nath had not assumed charge, one of the posts for which the process of recruitment was conducted, had remained vacant. That apart, even if it is assumed for arguments sake, that all the posts for which the process of selection was conducted were duly filled up, it cannot be disputed that Trilok Nath who had participated in the same selection process as the respondent herein, was offered appointment against the post of Junior Engineer (Civil) Grade -II on 22.4.2008. The aforesaid offer was made, consequent upon his selection in the said process of recruitment. The validity of the wailing list, in the facts of this case, has to be determined with reference to 22.4.2008, because the vacancy was offered to Trilok Nath on 22.4.2008. It is the said vacancy, for which the respondent had approached the High Court. As against the aforesaid, it is the acknowledged position recorded by the appellants in the impugned order dated 23.8.2011 (extracted above), that the waiting list was valid till May, 2008. If Trilok Nath was found eligible for appointment against the vacancy in question out of the same waiting list, the respondent herein would be equally eligible for appointment against the said vacancy. This would be the unquestionable legal position, in so far as the present controversy is concerned. 12. The date of filing of the representation by the parties concerned and/or the date on which the competent authority chooses to fill up the vacancy in question, is of no consequence whatsoever. The only relevant date is the date of arising of the vacancy. It would be a different legal proposition, if the appointing authority decides not to fill up an available vacancy, despite the availability of candidates on the waiting list. The offer made to Trilok Nath on 22.4.2008 by itself, leads to the inference that the vacancy under reference arose within the period of one year, i.e., during the period of validity of the waiting list postulated by the rules. The offer of the vacancy to Trilok Nath, negates the proposition posed above, i.e., the desire of the employer not to fill up the vacancy. Herein, the appellants wished to fill up the vacancy under reference. Moreover, this is not a case where the respondent was seeking appointment against a vacancy, over and above the posts for which the process of selection/recruitment was conducted. Based on the aforesaid inference, we have no hesitation in concluding that the appellants ought to have appointed the respondent Sat Pal, against the vacancy which was offered to Trilok Nath. 18. In view of the factual and legal position discussed by us hereinabove, we are of the view, that in the facts and circumstances of this case, it would be just and appropriate to direct the appellants to appoint the respondent Sat Pal against the post of Junior Engineer (Civil) Grade -II. The aforesaid offer of appointment will relate back to the permissible date contemplated under the rules laying down conditions of service of the cadre to which the respondent Sat Pal will be appointed. Naturally, the respondent will be entitled to seniority immediately below those who were appointed from the same process of selection. Since Sat Pal has not discharged his duties, he would be entitled to wages only with effect from the date of the instant order.;