JUDGMENT : ANAND SHARMA, J. 1. Feeling aggrieved by declaration of result dated 13.08.2024, merit list dated 07.12.2024 and appointment letter dated 11.12.2024 instant writ petition has been filed by the petitioner with a further prayer to direct the respondents to appoint the petitioner on the post of Junior Legal Officer. 2. Facts in brief are that one advertisement dated 19.07.2023 was issued by the respondents for inviting application on the post of Legal Assistant (Junior Legal Officer). As per aforesaid advertisement as many as nine vacancies were advertised, out of which five vacancies were relating to general category candidates, one for general woman, one for SC, one for OBC and one vacancy was to be filled through specially abled person. 3. Petitioner in the instant writ petition has stated that he belongs to OBC category and submitted his application form accordingly in the aforesaid category. After scrutiny of application form, he was allowed to appear in the online screening examination which took place on 10.09.2023. 4. Petitioner further states that his name was albeit included in the provisional list of candidates for eligibility checking, which was issued on 01.10.2023, yet while the final select list and result was declared, name of the petitioner was not there. The petitioner further states that as per result declared, he has secured total 263 raw marks, which were increased to 272.06897 after moderation. 5. As per petitioner, minimum qualifying marks were 40% and he had secured more than 60% marks, therefore, was eligible to be considered for appointment in OBC category. 6. It was contended by the petitioner that although as per Rules, three times candidates to the vacancies advertised were required to be considered for document verification and were to be included in the provisional list for consideration, however, instead of 27 (9x3) candidates only 26 candidates were called for document verification, which is a material irregularity and in case had 27 candidates been called, the petitioner would have also been included in the provisional list for consideration. Petitioner further contended that when the provisional list for consideration was issued on 13.08.2024 and the name of the petitioner was not included, then feeling dissatisfied, he preferred S.B. Civil Writ Petition No. 13826/2024, in which initially one interim order dated 28.08.2024 was issued to the extent that in case any appointment is made pursuant to the provisional list, the same shall remain subject to the outcome of the writ petition. However, later on when the appointment order was issued, the aforesaid S.B. Civil Writ Petition No. 13826/2024 was rendered infructuous. 7. Petitioner further stated that bare perusal of appointment order dated 11.12.2024 would reveal that not a single candidate belonging to OBC category has been appointed, whereas in the initial advertisement dated 19.07.2023, one vacancy for OBC category was shown. The petitioner pointed out that although four candidates, who initially submitted their application form in OBC category, have been appointed vide order dated 11.12.2024, yet since all those candidates secured more marks than the cut off marks declared for general category, therefore, they have been considered and appointed against the vacancies of general category and not against the vacancies of OBC category. 8. The petitioner contended that thus, while not granting any appointment to OBC category candidate against the vacancy of OBC, the respondents have not only violated the policy and Rules relating to reservation, but has also deprived of the petitioner of his legitimate right for consideration and appointment on the post of Junior Legal Officer. Petitioner prayed that such arbitrary appointment to the extent to which, it did not include any appointment against OBC category may be held arbitrarily and since the petitioner belongs to OBC category and as per marks obtained by him, he is required to be considered for appointment against the vacancy of aforesaid category and the respondents may be directed to issue appointment order in his favour. 9. Per contra, by way of filing reply, the respondents have opposed the contentions made by the petitioner and it has been stated that appointments against all the vacancies advertised have been made and now no vacancy is available. The petitioner has also not impleaded the persons selected and appointed. 9. Per contra, by way of filing reply, the respondents have opposed the contentions made by the petitioner and it has been stated that appointments against all the vacancies advertised have been made and now no vacancy is available. The petitioner has also not impleaded the persons selected and appointed. It was further mentioned in the memo of reply that earlier on account of technical errors in result dated 01.10.2023 as well as 20.07.2024 by the CDAC (Agency hired by the respondent-department), the provisional list dated 01.10.2023 as well as 20.07.2024 was withdrawn and directions were given to CDAC to publish the provisional list of successful candidates after adopting the due process. 10. The respondents also contended that the candidates were required to obtain minimum 40% marks for being included in the document verification subject to further condition that after arranging their names in accordance with merit to be prepared on the basis of total marks secured, he/she should fall in the merit list of three times of the number of vacancies advertised. It was stated in the reply that as only one vacancy was there of OBC category, therefore, against the aforesaid vacancy of OBC category, as many as three candidates eligible on the basis of marks obtained by them were called for document verification. While preparing the final list for the candidates eligible for document verification, it was found that only 26 candidates, against the total number of 27 candidates permissible under the Rules for document verification, were found eligible. Hence, the petitioner was not called. It was mentioned that the persons whose names are appearing at Serial No. 11 and 25 in the merit list, were called against the category of OBC. The person who was appearing at Serial no. 25(Shri Dinesh Kumar) in the merit list was also a Physically Handicapped Person as well as OBC, therefore, he was given priority over the petitioner and appointment was given to him. Hence, contention of the petitioner that no candidate from OBC category has been appointed is totally misconceived and therefore, the writ petition filed by the petitioner is liable to be rejected. 11. Considered the material available on record and heard the learned counsel for both the parties. 12. Hence, contention of the petitioner that no candidate from OBC category has been appointed is totally misconceived and therefore, the writ petition filed by the petitioner is liable to be rejected. 11. Considered the material available on record and heard the learned counsel for both the parties. 12. It is an admitted fact that while issuing advertisement two different vacancies of Junior Legal Officer in different categories of OBC and physically handicapped persons were shown, therefore, the respondents were required to consider and appoint the candidates separately against the aforesaid two vacancies of OBC and physically handicapped person. 13. The merit list prepared by the respondents would reveal that candidates appearing at Serial No. 2, 3, 4 and 5 belong to OBC category and they also filled their application form in OBC category, yet since admittedly they acquired more marks than the cut off marks declared for general category, therefore, as per Rules, they were considered as general category candidates and their appointment against the vacancies of general category would not curtail the rights of other OBC candidates for being considered against the vacancy advertised for OBC category. 14. In this regard, it would be relevant to refer the judgment delivered by the Hon’ble Supreme Court in the case of Bharat Sanchar Nigam Limited and Anr. Vs. Sandeep Choudhary & Ors.: [Civil Appeal No. 8717/2015], decided on 28.04.2022 in which, in para 7, the Hon’ble Apex Court was pleased to frame question for consideration in the following manner:- “Whether in a case where the reserved category candidates secured more marks than the general category candidates, such reserved category candidates will have to be first adjusted in the general category pool and they shall be considered for appointment in the general category pool or against the vacancies meant for reserved category candidates?” 15. After considering the earlier judgments of Hon’ble Supreme Court in the case of Indra Sawhney Vs. Union of India [1992 Supp (3) SCC 217], R.K. Sabharwal V. State of Punjab [ (2007) 8 SCC 785 ], and Rajesh Kumar Daria Vs. Rajasthan Public Service Commission (2007) 8 SCC 785 as well as in the case of Uttaranchal Public Service Commission Vs. Mamta Bisht, (2010) 12 SCC 204 , Saurav Yadav Vs. State of U.P, (2021) 4 SCC 542 , Sadhana Singh Dangi Vs. Rajasthan Public Service Commission (2007) 8 SCC 785 as well as in the case of Uttaranchal Public Service Commission Vs. Mamta Bisht, (2010) 12 SCC 204 , Saurav Yadav Vs. State of U.P, (2021) 4 SCC 542 , Sadhana Singh Dangi Vs. Pinki Asati, (2022) 1 SCALE 534 , the Hon’ble Apex Court has given following findings: “8.5 In a more recent decision this Court in the case of Saurav Yadav Vs. State of U.P., (2021) 4 SCC 542 after referring to all the earlier judgments on vertical reservation has observed and held that it is well settled that candidates belonging to any of the vertical reservation categories are entitled to be selected in “open or general” category and it is also further observed that if such candidates belonging to reserved categories are entitled to be selected on the basis of their own merit, their selection cannot be counted against the quota reserved for the categories that they belong. 8.6 Similar view has been expressed by this Court in another recent decision of this Court in the case of Sadhana Singh Dangi Vs. Pinki Asati, (2022) 1 SCALE 534 . By the said decision, it is reiterated that the reserved category candidates securing higher marks than the last of the general category candidates are entitled to get seat/post in unreserved categories. It is further observed and held that even while applying horizontal reservation, merit must be given precedence and if the candidates, who belong to SCs, STs and OBCs have secured higher marks or are more meritorious, they must be considered against the seats meant for unreserved candidates. It is further observed that the candidates belonging to reserved categories can as well stake claim to seats in unreserved categories if their merit and position in the merit list entitles them to do so. 11. In view of the above and for the reasons stated above, the present appeal fails and the same deserves to be dismissed and is accordingly dismissed. The High Court has rightly observed and held that two reserved category candidates, namely, Mr. Alok Kumar Yadav and Mr. Dinesh Kumar having more marks than the general category candidates appointed, were entitled to the appointment in the general category and the seats reserved for OBC category were required to be filled in from and amongst the remaining candidates belonging to the OBC category. Alok Kumar Yadav and Mr. Dinesh Kumar having more marks than the general category candidates appointed, were entitled to the appointment in the general category and the seats reserved for OBC category were required to be filled in from and amongst the remaining candidates belonging to the OBC category. Consequently, respondent No.1 – original applicant was entitled to the appointment on such post. However, at the same time in exercise of the powers under Article 142 of the Constitution of India, it is observed and directed that on reshuffling, the two candidates belonging to general category shall not be removed from service as they are working since long. However, at the same time, the respondent No.1 shall be entitled to the seniority from the date, the general category candidates having lesser marks than the aforesaid two reserved category candidates were appointed. With this, the present appeal stands dismissed. However, in the facts and circumstances, there shall be no order as to costs.” 16. Thus, it is no more res-integra that the candidates belonging to any of the vertical reservation categories are entitled to be selected in “open or general” category and if such candidates belonging to reserved categories are entitled to be selected on the basis of their own merit, their selection cannot be counted against the quota reserved for the categories to which they belong. 17. Thus, it is clear that in the appointment order, the candidates who although belonged to OBC category, yet on account of acquiring more marks than the cut off marks declared for general candidates, shall be treated as having been appointed against the vacancies meant for general category and their appointment would not prejudice right of other reserved category candidates belonging to OBC. 18. Defence taken by the respondents that since, one of the candidates namely Shri Dinesh Kumar was visually impaired candidate also belongs to OBC category, therefore, he has been considered against the OBC category and appointment has been given to him. Such contention raised by the respondents is devoid of any merit, for the reason that admittedly petitioner has secured more marks than Shri Dinesh Kumar, therefore, in case, consideration is made against the vacancy advertised for OBC, then in that case certainly, petitioner would have more preferential right than Shri Dinesh Kumar for appointment against OBC category. 19. Such contention raised by the respondents is devoid of any merit, for the reason that admittedly petitioner has secured more marks than Shri Dinesh Kumar, therefore, in case, consideration is made against the vacancy advertised for OBC, then in that case certainly, petitioner would have more preferential right than Shri Dinesh Kumar for appointment against OBC category. 19. As stated hereinabove, two separate vacancies for OBC and physically handicapped persons were advertised in the initial notification by the respondents, therefore, under such circumstances, the respondents were under an obligation to give appointment to two different candidates against above referred two different reserved categories, therefore, Shri Dinesh Kumar although belonged to OBC category as well as physically handicapped category, but since he acquired much lesser marks than the petitioner, he could not have been considered against OBC category and his appointment under these circumstances can be treated against the vacancy advertised for physically handicapped persons and not against the vacancy meant for OBC category. 20. The respondents while giving appointment cannot be allowed to merge two different reservation categories, which is otherwise liable to be filled in separately. Thus, the action of the respondents is totally against the prevailing Rules and cannot be allowed to sustain. 21. The petitioner during the argument has stated that since no person from OBC category was given appointment by the respondents, therefore, they were not required to implead any of the selected/appointed person as party to the writ petition and since Shri Dinesh Kumar is a physically handicapped person and his appointment in view of the facts above can be considered only against the category of physically handicapped person and not against OBC category, therefore, he was also not required to be considered to implead as party respondent in the instant writ petition. 22. In the light of above, the writ petition filed by the petitioner deserves to be allowed. The appointment order dated 11.12.2024 as well as merit list dated 07.12.2024 to the extent to which appointment has not been given to the petitioner on the post of Junior Legal Officer against OBC category, is quashed and set aside. 23. 22. In the light of above, the writ petition filed by the petitioner deserves to be allowed. The appointment order dated 11.12.2024 as well as merit list dated 07.12.2024 to the extent to which appointment has not been given to the petitioner on the post of Junior Legal Officer against OBC category, is quashed and set aside. 23. The respondents are further directed to consider the petitioner for appointment against the post of Junior Legal Officer in OBC category and if he is otherwise eligible, appointment shall be given to him with all consequential benefits from the date on which other persons have been given appointment prusuant to advertisement in question. 24. Since, as per the contentions raised by the respondents, all the vacancies have already been filled in, therefore, it would be in the interest of justice that due opportunity of hearing is given by the respondents to the candidate who is likely to be excluded from the appointment order dated 11.12.2024 on account of appointment to be given to the petitioner against the OBC category on the post of Junior Legal Officer. 25. In view of the above, the present writ petition is allowed. 26. Pending application(s), if any, shall stand disposed of.