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2003 DIGILAW 61 (JK)

Harbans Lal Bhagat v. State Of J. &K.

2003-03-29

S.K.GUPTA

body2003
Petitioner was working as Agriculture Extension Officer in the Agriculture Department vide Government Order No. 194-GR of 1986 dated 27th June, 1986. He belongs to a Scheduled Castes category. The schedule attached to the Jammu and Kashmir Community Development (Gazetted) Service Recruitment Rules, 1977, under SRO-515 of 1977, provides 30% of the posts of Block Development Officers to be filled up from Assistant Agriculture Extension Officers in the Agriculture/Horticulture Department by promotion out of 75% recruitment by selection of such Officers as are willing to be considered from the five categories indicated in the schedule and the rest of the 25% posts of Block Development Officers to be filled up by direct recruitment. The petitioner claims to be adjusted to the post of Block Development Officer against one of the four available vacancies in Jammu Division on the basis of a communication dated 15th June, 2000 addressed by Director, Rural Development, Jammu to Financial Commissioner, Agriculture and Rural Development Department. However, the petitioner was not adjusted. He filed a writ petition, SWP No. 1415/2000 seeking his appointment to the post of Block Development Officer in Rural Development Department. The writ petition was allowed and the respondents were directed to examine the case of the petitioner on the basis of the reply dated 15.6.2000 by Director, Rural Development Department, Jammu to the Financial Commissioner, Agriculture and Rural Development Department and take a final decision regarding the adjustment of the petitioner by passing a speaking order. That respondents vide Government Order No. 31 RD of 2002 dated 23.1.2002 turned down the claim of the petitioner for adjustment as Block Development Officer in Rural Development Department, which became the subject-matter of challenge by the petitioner is this writ petition. 2. Detailed counter has been filed by the respondents and submitted that this writ petition has been filed on the similar/identical grounds taken in earlier writ petition and is barred by the principle of Res judicata. The plea put across by the respondents is that the petitioner is placed at Serial No. 616 in the seniority list of Agriculture Extension Officers and there are 15 Scheduled Castes Officers figuring above the petitioner in the seniority list. Thus, the petitioners claim found not falling in the consideration zone after examining his case in compliance to the Court direction in SWP No. 1415/2000, was rejected vide Government Order dated 23.1.2002 impugned in this writ petition. Thus, the petitioners claim found not falling in the consideration zone after examining his case in compliance to the Court direction in SWP No. 1415/2000, was rejected vide Government Order dated 23.1.2002 impugned in this writ petition. Further plea raised by the respondents is that eligibility alone is not the criteria for adjustment against the post of Block Development Officer, other factors like availability of posts and the placement in consideration zone are also to be taken into account. That mere a recommendation of the petitioner by DRD, Jammu by which he accorded no objection to the adjustment of the petitioner against one of the four available vacancies would not suffice, in view of the placement of the petitioner in seniority list of the Agriculture Extension Officers. The petitioner does not even fall within the consideration zone in the Scheduled Castes category as per his seniority in the said category. It was further submitted that as and when the vacancies arise and the petitioner falls in the consideration zone, his claim for adjustment as Block Development Officer would also be considered at appropriate time on its turn. 3. I have heard the arguments put-forth by the learned counsel appearing for the respective parties and also perused the record, meticulously. 4. As regards the applicability of the principle of res judicata vouched by the respondents Advocate in his debate, it is pertinent to point out that the petitioner has fortified his claim for adjustment to the post of Block Development Officer in the Agriculture Department on the basis of a recommendation made by DRD, Jammu in reply to the letter dated 25.4.2000 from Under Secretary to Government, Rural Development Department seeking his remarks on the application of the petitioner, Harbans Lal Bhagat, Agriculture Development Assistant. In earlier writ petition, which was heard without a counter by the respondent and, in such event, taking the pleadings of the petitioner to be correct disposed of the writ petition with the direction to the respondents to examine his case on the strength of the recommendation of DRD, Jammu and pass a speaking order. In earlier writ petition, which was heard without a counter by the respondent and, in such event, taking the pleadings of the petitioner to be correct disposed of the writ petition with the direction to the respondents to examine his case on the strength of the recommendation of DRD, Jammu and pass a speaking order. Whereas in this writ petition, Order dated 23.1.2002 stated to have been passed by the respondents in compliance to the directions of the Court in the earlier writ petition and turned down the claim of the petitioner for adjustment to the post of Block Development Officer not only on the ground of the recommendation of the DRD, Jammu, but also on the grounds of seniority, entitlement to a benefit of reservation category and the relevant Rules governing the service of the petitioner, enumerated therein. In such circumstances, as a matter of fact, the grounds taken in earlier writ petition, therefore, cannot be said to be the similar grounds in this writ petition so as to attract the principle of Res judicata. There, is, in my opinion, no substance in the plea put across by the respondents. 5. The sole grievance of the petitioner projected is that the case of the petitioner has not been fairly considered in terms of the Court directions dated 15.12.2000 and rejected, as such, the order impugned in this writ petition issued by the Government on 23.1.2002 is mala-fide, without any substance and in infraction of the clear directions of the Court made in SWP No. 1415/2000. For facility of reference, Order dated 23rd January, 2002 is reproduced below: "Government of Jammu and Kashmir Rural Development Department Subject: Honble High Court Orders in SWP No. 1415/2000 dated 15.12.2000 and in COA No. 120-E of 2001 titled Harbans Lal Bhagat V/S Shri I.S. Malhi and others Govt. Order No. 31 RD of 2002 Dated: 23.1.2002 Whereas Shri Harbans Lal Bhagat was appointed as a VLW in the Rural Development Department in 1973. In 1981 he proceeded on study leave sanctioned vide Govt. Order No. 1587 GAD of 1981 and after completing his B.SC. Agriculture he was adjusted as AEO in the Agriculture Department vide Govt. Order No. 31 RD of 2002 Dated: 23.1.2002 Whereas Shri Harbans Lal Bhagat was appointed as a VLW in the Rural Development Department in 1973. In 1981 he proceeded on study leave sanctioned vide Govt. Order No. 1587 GAD of 1981 and after completing his B.SC. Agriculture he was adjusted as AEO in the Agriculture Department vide Govt. Order No. 194 GR of 1986 dated 27.6.1986, Whereas the said Officer had earlier filed SWP No. 327/92 for adjustment as BDO and this SWP was dismissed by the Single Bench of the High Court, vide its order dated 17.7.1991, where after he filed an LPA which too was dismissed vide order dated 29.3.2000. Whereas the said Sh. Bhagat again approached the Honble Court vide SWP No. 1415/2000 for the same relief and the Court ordered as under:- "In view of the aforesaid discussion this writ petition is allowed and the respondents are directed to examine the case of the petitioner on the basis of Annexure-G attached with the writ petition and take a final decision regarding his adjustment by passing a speaking order in that behalf on or before 31th March 2001." Whereas the matter required consideration at length, extension of time was sought which was granted. In the mean while the said Sh. Bhagat filed COA No. 120 E of 2001 and the Honble Court on 3.10.2001 ordered as under:- "The learned Counsel for the respondents has given an assurance that the needful would be done within the period of two months disposed of accordingly." Whereas the matter was examined in the Department and it was found that the petitioner has based his claim for adjustment as BDO on the following grounds:- 1. That vide Govt. Order No. 33-Agri of 2000, 24 BDOs were appointed and none of them belongs to the SC Category. 2. That as per J&K CD&NES (Gazetted) Recruitment Rules, he is eligible for appointment as BDO. 3. That being a member of the SC Category, he is entitled to the benefit of reservation in promotion. 4. That the Director Rural Development Jammu has conveyed No objection for the petitioners adjustment as BDO. Whereas the appointment to the post of BDO is made in terms of CD&NES Gazetted Recruitment Rules and vide the said Rules 30% of posts of BDOs are to be filled up by promotion from AEOs of the Horticulture/Agriculture Department. 4. That the Director Rural Development Jammu has conveyed No objection for the petitioners adjustment as BDO. Whereas the appointment to the post of BDO is made in terms of CD&NES Gazetted Recruitment Rules and vide the said Rules 30% of posts of BDOs are to be filled up by promotion from AEOs of the Horticulture/Agriculture Department. Whereas as per the seniority of AEOs circulated vide Annexure G to Govt. Order No. 472-Agri of 2000 dated 18.12.2000, the petitioner figures at S. No. 616 and among the SC Candidates (on the strength of the which he is claiming the post of BDO) he figures at the bottom and there are 15 AEOs belonging to the SC Category who figure above him in the said seniority list.; Whereas even if adjustment as BDO were to be made on the basis of reservation, there are 15 SC officers figuring above the petitioner in the seniority of AEOs and as such he does not fall within the consideration zone. Whereas it is admitted that vide Govt. Order No. 33-Agri of 2000 dated 17.2.2000, 24 directly recruited BDOs were appointed. However they were appointed on the basis of competitive examination conducted by PSC and regarding reservation for SCs the GAD maintains the roster for direct recruitment and this Department has no role to play; Whereas it is true that the DRDJ has issued an NOC in favour of the petitioner, but this NOC does not confer any superior right in the petitioner for consideration of his case outside the purview of Rules, ignoring the merit/claims of other eligible persons from the same category, who are senior to him; Now, therefore the claim of the petitioner for being adjusted as BDO in the Rural Development Department, having been duly considered, is hereby rejected. By Order of the Government of Jammu and Kashmir. Sd/- Principal Secretary to Govt. Rural Development Department No: CD/PF/54-VLW/79 Copy to the: 1. Director Rural Development, Jammu. 2. Sh. Sanjay Kakkar for information and necessary action. By Govt. Order the, Sd/- Under Secretary to Govt. Rural Dev. Department" 6. The claim of the petitioner is that he is found eligible for appointment falling in feeding cadre and should be adjusted to the post of Block Development Officer in the available vacancies. Director Rural Development, Jammu. 2. Sh. Sanjay Kakkar for information and necessary action. By Govt. Order the, Sd/- Under Secretary to Govt. Rural Dev. Department" 6. The claim of the petitioner is that he is found eligible for appointment falling in feeding cadre and should be adjusted to the post of Block Development Officer in the available vacancies. It is apt to point out that the respondents in their counter have taken a specific plea that the case of the petitioner was examined in compliance to the directions of the Court issued in earlier writ petition and found him not falling in the consideration zone, and rejected. In Para No. 5 of the counter, the respondents have specifically stated that the petitioner figured at Serial No. 616 in the seniority list of the Agriculture Extension Officers and there are 15 Scheduled Castes category Officers figuring above the petitioner in the said category and he did not fall within the consideration zone and his claim for adjustment turned down by the impugned order. This factual position has not been refuted or contradicted by the petitioner in his rejoinder. The petitioner, however, had raised a plea that till date the respondents have not made the list of Scheduled Castes category Officers, who are senior to the petitioner, and whether they are eligible and appointed to the said posts. This is a matter, which could be taken up by the petitioner with the Department by making a representation and not in the Court in exercising its extra-ordinary writ jurisdiction under Article 226 of the Constitution. The petitioner, however, has neither disputed his placement in seniority at Serial No. 616 in the list of Agriculture Extension Officers nor below 15 Scheduled Castes category Officers. In such circumstances, the decision taken by the Government by the Order impugned that the petitioner does not fall within the consideration zone and turned down the claim for his adjustment to the post of Block Development Officer, cannot be faulted. The claim of the petitioner for his adjustment as Block Development Officer in ignoring the claims of other senior/eligible Officers cannot be considered de-hors the Rules merely on the availability of the vacancies and the no objection accorded in the form of recommendation of DRDJ. 7. In view of the facts and circumstances discussed above, I do not find any merit in this petition, which is accordingly dismissed.