M. Srinivasan, C.J.@mdashThe Petitioner applied for the post of Additional District and Sessions Judge in response to advertisement issued on 14-1-1993 by the Registrar of this Court. The advertisement stated that it was on the basis of few anticipated temporary posts likely to occur. According to the Petitioner he belongs to Backward Class and the post which fell vacant should have been given to a backward class man as in the roster point it was at point No 7. How exactly he could assert that it was point No. 7 and it was a vacancy to be filled by Backward Class candidate, it is not clear as the advertisement was issued calling for applications only for anticipated vacancies.
2. It is stated in the reply that when backward class candidates who were interviewed by the Committee were found to be not suitable, the post was filled up by appointing Respondent No. 3 who belonged to the general category. It is also stated in the reply that it was in exchange of the post for the post of general category.
3. Learned Counsel for the Petitioner stated that such a procedure could not have been adopted by the Respondents.
4. There is no merit in this contention for two reasons :
(i) the Petitioner appeared for the interview and was found to be not suitable. It is not for him to challenge the exchange of the post with the post in general category. He has no locus standi to do so ;
(ii) the rules in this State provide for the post being treated as unreserved and being filled up with the candidate belonging to the general category and in such an event the reservation of post must be carried forward for subsequent three years. The relevant rules are found in Himachal Pradesh Higher Judicial Service Rules, 1973. Rule 8 provides for recruitment to the service. Third proviso reads that direct appointments to the service shall be subject to the orders regarding reservation in the service for Scheduled Castes/Scheduled Tribes/Backward Classes, issued by the H.P. Government from time to time and made applicable to such appointments in consultation with the High Court. In Annexure C. to the notification issued by the Government on 4-4-1987 a note is found at the bottom of the Model Roster for posts filled by direct recruitment. The note reads as follows :
Note-If there are only two vacancies to be filled in a particular year, not more than one may be treated as reserved and if there be only one vacancy, it should be treated as unreserved. If on this account, a reserved point is treated as unreserved the reservation may be carried forward to the subsequent three recruitment years, if necessary.
5. Learned Counsel has been repeatedly contending that a specific procedure has been prescribed by an office memorandum issued by the Ministry of Home to the Central Government and that procedure should have been followed in the State. There is no substance in this contention. When there is a specific rule framed under Article 309 of the Constitution which is applicable in this State, the office memorandum of the Central Government cannot prevail over that. The contention of the learned Counsel is that there is no procedure in the State for de-reservation of the vacancy and in the absence of such procedure, the office memorandum issued by the Central Government will be valid. There is no merit in this contention as we have already pointed out that there is a specific rule in the note of Annexure C, in which provision has been made for filling up such vacancies. It is also seen from the brochure on reservation instructions for members of Scheduled Castes/Scheduled Tribes/Backward Classes etc., in services, issued by the State Government in 1986 that de-reservation is not required for the categories other than Scheduled Castes and Scheduled Tribes vide para 9.3 Chapter IX of the Brochure. In Chapter X, the procedure for carry forward of reservation for Scheduled Castes etc. has been provided. Thus, there are rules clearly pointing out that there is no, need for de-reservation in the case of backward class candidate and if vacancy could not be filled up suitably, it may be treated as unreserved and should be filled up from other categories.
6. Learned Counsel for the Petitioner has placed reliance on the judgment of the Supreme Court in
7. In the circumstances, we do not find any merit in the contention of the Petitioner. Hence the writ petition is dismissed.
