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2007 DIGILAW 596 (PAT)

Bhuwaneshwar Yadav v. Union Of India

2007-03-23

AFTAB ALAM

body2007
Judgment 1. The service of the petitioner, who at the material time was posted as a Routine Clerk in the Revenue & Land Reforms Department, Govt. of Bihar, is allocated to the State of Jharkhand, following the division of cadre as a result of bifurcation of the State. It is an admitted position that the State Advisory Committee made recommendation for allocation of his service to Jharkhand on the basis that he belonged to the backward category for reservation of posts. On behalf of the petitioner it is contended that it was wrong to allocate his service to Jharkhand on that basis because his appointment was made against a post in the unreserved category. 2. The facts of the case are brief and simple. The petitioner was appointed on 4.11.1981 as Orderly Peon in the Revenue & Land Reforms Department. On 28.6.1989 he was appointed as Rountine Clerk on the basis of a limited competitive examination against the quota reserved to be filled up from eligible Class IV employees. Following the selection, he was posted as Routine Clerk in the Water Resources Department by allocation notice issued by the Department of Personnel & Administrative Reforms under memo no. 8437, dated 28.6.1989 (Annexure 2). In the allocation notice the name of the petitioner is at serial no. 2 and it is evident that though he belonged to reserved category 5, his appointment was made on an unreserved post. Later, in modification of the earlier allocation notice, by memo, dated 10.8.1989 (Annexure 3) the petitioner was posted as Routine Clerk in the Revenue & Land Reforms Department. He was working there till his services were allocated to the newly created State of Jharkhand. 3. In the counter affidavit filed on behalf of the State Advisory Committee this position is not denied. Dealing with the principles of allocation it is stated that the working strength of the personnel in a cadre was apportioned between the two States in the same ratio (2:1) as the sanctioned strength of the posts. The working strength was then broken up in five categories according to reservation status, namely, SC, ST, MBC, BC and General. The information furnished by the department in the prescribed proforma for bio-data regarding the reservation category formed the basis for such classification by the Committee. The working strength was then broken up in five categories according to reservation status, namely, SC, ST, MBC, BC and General. The information furnished by the department in the prescribed proforma for bio-data regarding the reservation category formed the basis for such classification by the Committee. The working strength of un-divided Bihar in each category was then split up and apportioned between Bihar and Jharkhand in the same ratio as the composite working strength of the cadre being apportioned between the successor States. 4. Coming then to the case of the petitioner it was stated that the total sanctioned strength and working strength of Routine Clerk, as reported by the Administrative Department, was eighteen (18) which was apportioned as 12:6 between Bihar and Jharkhand, following the ratio 2:1. The total working strength in BC was five which was apportioned as three to Bihar and two to Jharkhand, following the same principle. All the five employees had opted for Bihar and their home districts were also in Bihar. So, the three seniors were allocated to Bihar as per their option while the two juniors were allocated to Jharkhand against their option, in accordance with the principles of allocation. The cut off point for Bihar allocation was at serial no. 8 in the gradation list. The petitioner who was at serial no. 11, thus, fell into the second category and was allocated to Jharkhand against his option. It was further stated that on receipt of the petitioners representation against the tentative final alllocation list, the Committee called for the comments from the Administive Department that confirmed that he was a member of backward category. In light of the report of the Administrative Department the Committee in its meeting of 12.9.2005 found and held that there was no case for change in the petitioners allocation of service. 5. It was, thus, the admitted position that allocation of the petitioners service was made on the basis that he belonged to the backward reservation category. On the other hand on the basis of Annexure-2, the petitioner contended that though he might belong to a reserved category, his appointment was made against an unreserved post. 6. 5. It was, thus, the admitted position that allocation of the petitioners service was made on the basis that he belonged to the backward reservation category. On the other hand on the basis of Annexure-2, the petitioner contended that though he might belong to a reserved category, his appointment was made against an unreserved post. 6. In the aforesaid facts and circumstances the case in hand prima facie appeared to be the converse of an earlier case of Mithilesh Narain vs. Union of India and Others the decision which is reported in 2006(3) PLJR 548, in the earlier case the petitioner Mithilesh Narain objected to his being sent to Jharkhand on the plea that two other employees junior to him, though belonging to the reserved category, were wrongly treated as general category candidates. In that case it was found that the other two employees though as a matter of fact belonged to reserved categories, they were appointed long ago in 1975 whenthere was no reservation in service for the category which they belonged; in the service records they were not shown as belonging to any reserved category. In that context the court rejected the plea of the petitioner Mithilesh Narain observing as follows: "Allocation of service to this State or the newly created State of Jharkhand is matter directly related to Government employment. It must, therefore, be decided on the basis of service record and not in light of facts of personal life. I am clearly of the view that for the purpose of allocation of service what is determining is the description of the employee in the service record and not his actual caste." 7. In this case though the petitioner belonged to a reserved category, his appointment was made on an unreserved post. It was, therefore, required to be seen whether the case of the petitioner would be covered by the observations quoted above. In that view the State was asked to file further affidavit and a supplementary counter affidavit was filed on behalf of the State Government. 8. In the supplementary counter affidavit it is stated that though the petitioner belonged to a reserved category, by virtue of his position in the merit list he was appointed on an unreserved post. Nevertheless in his service book it was recorded that he belonged to the backward class. 8. In the supplementary counter affidavit it is stated that though the petitioner belonged to a reserved category, by virtue of his position in the merit list he was appointed on an unreserved post. Nevertheless in his service book it was recorded that he belonged to the backward class. Moreover, in the option submitted by him before the State Advisory Committee he described himself as belonging to the backward class. It is made clear that on the basis of his service record the petitioner is a reserved category employee and he would be entitled to the benefits available to that reserved category in service in future. Hence, it cannot be contended that the petitioner does not belong to the reserved category simply because his appointment was made against an unreserved post. 9. It is, thus, clear that the case of the petitioner is not covered by the observations made in Mithilesh Narain (supra). 10. On a careful consideration of all aspects of the matter I am of the view that there is no infirmity in the recommendation made by the State Advisory Committee and the allocation of the petitioners service to Jharkhand. I find no merit in the writ petition. It is accordingly dismissed.