Rajasthan High Court - Jodhpur
Jitendra Kumar Sharma vs Kunji Lal Meena on 10 August, 2021
Author: Dinesh Mehta
Bench: Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR (1) S.B. Writ Misc Application No. 66/2020 Narendra Singh S/o Shri Asoo Singh Shekhawat, Aged About 30 Years, Resident Of 402, Kailashpuri, Bikaner (Raj.)
----Petitioner Versus
1. Ajitabh Sharma, I.A.S., The Principal Secretary, Department Of Animal Husbandry Government Of Rajasthan, Secretariat, Jaipur (Raj.)
2. Ramji Lal Meena, Dy. Secretary, Department Of Animal Husbandry, Government Of Rajasthan, Secretariat, Jaipur (Raj.)
3. State Of Rajasthan, Through The Principal Secretary, Department Of Animal Husbandry Government Of Rajasthan, Secretariat, Jaipur (Raj.)
----Respondents (2) S.B. Writ Misc Application No. 67/2020
1. Jitendra Kumar Sharma S/o Shri Ramniwas Sharma, Aged About 35 Years, Caste- Brahmin, Dhani Bhom Singh, Village- Bajrangpura, Tehsil- Viratnagar, District- Jaipur. (Hall Veterinary Officer, Deptt. Of Animal Husbandry, Rajasthan).
2. Pankaj Goswami S/o Shri Anna Lal Goswami, Aged About 30 Years, R/o Ward No. 18, Bus Stand Shaba, Nohar, District- Hanumangarh, Rajasthan. (Hall Veterinary Officer, Deptt. Of Animal Husbandry, Rajasthan).
----Petitioners Versus
1. Kunji Lal Meena, I.A.S. The Secretary, Department Of Animal Husbandry, Government Of Rajasthan, Jaipur.
2. Ajay Kumar Gupta, R.a.s., The Secretary, Rajasthan Public Service Commission, Ajmer, Rajasthan.
3. State Of Raj, Through Principal Sec. Dep. Animal Hus.
Jaipur
----Respondents (3) S.B. Writ Misc Application No. 68/2020 Bajrang Lal Sharma S/o Shri Gopal Lal Sharma, Aged About 30 Years, R/o 46 Triputi Nagar, Banar Road, Jodhpur. (Downloaded on 13/08/2021 at 08:29:07 PM)
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----Petitioner
Versus
1. State Of Rajasthan, Through Principal Secretary
Department Of Animal Husbandry, Government Of
Rajasthan, Secretariat, Jaipur.
2. Ajitabh Sharma, Principal Secretary, Department Of
Animal Husbandry, Government Of Rajasthan,
Secretariat, Jaipur.
3. Ajay Gupta, Director Of Department Of Animal
Husbandry, Jaipur.
----Respondents
(4) S.B. Writ Misc Application No. 69/2020
1. Dr. Mukesh Kumar Mali S/o Shri Bhagwan, Aged About 20 Years, Caste- Mali, R/o Mali Mohalla, Village- Hurda, District- Bhilwara, Rajasthan. (Hall Veterinary Officer, Govt. Veterinary Hospital-Kothiya, Bhilwara).
2. Dr. Pawan Kumar Mittal S/o Shri Mahesh Kumar, Aged About 35 Years, R/o Malarna Doongar, District- Sawai Madhopur, Rajasthan. (Hall Veterinary Officer, Deptt. Of Animal Husbandry, Rajasthan).
3. Dr. Mahesh Nehra S/o Shri Sita Ram Kumawat, Aged About 30 Years, R/o 491, Rajni Vihar, Heerapur, Jaipur, Rajasthan. (Hall Veterinary Officer, Deptt. Of Animal Husbandry, Rajasthan).
4. Dr. Lalit Kumar Gaur S/o Shri Shivlahri Gaur, Aged About 34 Years, R/o Vill. And Post-Garhi Himmat Singh, Tehsil- Mahwa, District- Dausa, Rajasthan. (Hall Veterinary Officer, Deptt. Of Animal Husbandry, Rajasthan).
5. Dr. Maninder Singh S/o Shri Laxman Prasad, Aged About 29 Years, R/o Village-Doonwas, Post-Karoda, Tehsil- Mundawar, District-Alwar, Rajasthan. (Hall Veterinary Officer, Govt. Veterinary Unit, Pachpahar, Jhalawar, Rajasthan).
6. Dr. Mohd. Abdul Khalik Khan S/o Abdul Rauf Khan, Aged About 29 Years, R/oc C-100 Waqf Nagar, Kota, Rajasthan. (Hall Veterinary Officer, Govt. Veterinary Hospital-Kothiya, Bhilwara).
7. Dr. Rajesh Kasera S/o Shri Balmukund Kasera, Aged About 30 Years, R/o E-4, Jawahar Nagar, Kokta, Rajasthan. (Hall Veterinary Officer, Govt. Mobile (Downloaded on 13/08/2021 at 08:29:07 PM) (3 of 14) [WMAP-66/2020] Veterinary Unit-Peepalda, Kota Rajasthan).
8. Dr. Suresh Chand Yadav S/o Shri Babu Lal Yadav, Aged About 31 Years, R/o Vill. And Post-Achrol, Tehsil-Amer, District-Jaipur, Rajasthan. (Hall Veterinary Officer, Govt. Mobile Veterinary Hospital-Kotri, Bhilwara).
9. Dr. Kailash Chand Dagar S/o Shri Gopal Lal Jat, Aged About 30 Years, R/o Village And Post-Chitwari Vial Morija, Tehsil-Chomu, District-Jaipur. (Hall Veterinary Officer, Deptt. Of Animal Husbandry, Rajasthan).
10. Dr. Arvind Singh S/o Shri Samandar Singh, Aged About 31 Years, R/o H.no. 31, Vidhe Kaur Colony, Killa Bharatpur. (Hall Veterinary Officer, Deptt. Of Animal Husbandry, Rajasthan).
11. Dr. Jyoti Prakash Sharma S/o Shri Rajendra Prasad Sharma, Aged About 30 Years, R/o Near Khadi Bhandar Sodiya Mohalla, Baswa, District-Dausa. (Hall Veterinary Officer, Govt. Veterinary Hospital, Lalsot, Dausa, Rajasthan).
12. Dr. Yogesh Kumar Gupta S/o Shri Babu Lal Yadav, Aged About 31 Years, R/o C/o Rajeev Machine Store, Near Indira Circle Nagar, Bharatpur. (Hall Veterinary Officer, Deptt. Of Animal Husbandry, Rajasthan).
----Petitioners Versus
1. Shri Kunji Lal Meena, I.A.S., The Secretary, Department Of Animal Husbandry, Government Of Rajasthan, Jaipur.
2. Shri Giriraj Singh Kushwaha, The Secretary, Rajasthan Public Service Commission, Ajmer, Rajasthan.
----Respondents (5) S.B. Writ Misc Application No. 70/2020
1. Chandra Prakash Saini S/o Shri Matadin Saini, Aged About 32 Years, R/o Village - Ganj, Tehsil Kishangarh Bas, District Alwar, Rajasthan.
2. Mohit Gupta S/o Shri Nanak Chand Gupta, Aged About 31 Years, R/o Bas Kripalnagar, Tehsil - Kishangarh Bas, District Alwar, Rajasthan.
3. Jitendra Yadav S/o Shri Ratan Lal Yadav, Aged About 32 Years, R/o Vill. Devri, Post Shekhupura, Tehsil Shikraj, District Dausa, Rajasthan.
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4. Rakesh Kumar S/o Shri Mohar Singh, Aged About 29 Years, R./o Jhunjhunu, Rajasthan.
----Petitioners Versus
1. Kunji Lal Meena I.A.S., The Secretary, Department Of Animal Husbandry, Government Of Rajasthan, Jaipur.
2. Ajay Kumar Gupta R.A.S., The Director Animal Husbandry Department Pashudhan Bhawan, Tonk Road, Jaipur.
3. State Of Rajasthan, Through Principal Secretary, Dept. Of Animal Husbandry, Raj. Jaipur.
----Respondents
For Petitioner(s) : Mr. S.P. Sharma
Mr. Manoj Bhandari
Mr. Nitin Trivedi
For Respondent(s) : Mr. A.K. Gaur, AAG with Mr. Salman
Agha
Mr. G.R. Punia, Senior Advocate,
assisted by Mr. Mahaveer Bhanwari
JUSTICE DINESH MEHTA
Order
10/08/2021
1. Pursuant to order dated 21.01.2020, passed by Hon'ble the Supreme Court in Civil Appeal No.495/2020: Kunji Lal Meena IAS & Anr. Vs. Dr. Mukesh Kumar Mali & Ors. these cases which were earlier registered as Contempt Petitions, have been converted to Civil Misc. Applications. The same are being decided conjointly as they emanate from common judgment and involve common facts.
2. The facts relevant for the present purposes are that various persons working on urgent temporary basis, appointed in terms of Rule 26 of the Rajasthan Animal Husbandry Service Rules, 1963 (hereinafter referred to as "the Rules of 1963"), approached this Court with the grievance that in spite of the fact that after (Downloaded on 13/08/2021 at 08:29:07 PM) (5 of 14) [WMAP-66/2020] completion of the process of recruitment of Veterinary Officer 150 posts still remained unfilled, the respondents were going to dispense with their services.
3. Those writ petitions (S.B. Civil Writ Petition No.7694/2016 along with connected matters) filed by the petitioners came to be disposed of by this Court, vide order dated 19.01.2017 with the following observations:
"In view of the admitted facts and undisputed legal position, the present petitions are disposed of with the following directions:-
1) The remaining 150 posts of Veterinary Officer shall be filled from the remaining candidates of the said select/waiting list in accordance with merit.
The needful shall be done within one month from receipt of the copy of this order, in case, no stay is operating in any other writ petitions with respect to the said selection list.
2) All other persons like the petitioners, who were working on contract basis and are still working on the said post shall be allowed to continue on the remaining posts beyond 525, if the posts are still lying vacant. They shall be allowed to continue till regularly selected candidates are made available.
3) The petitioners shall be paid the salary for the period for which it has been withheld.
At this stage, learned counsel for the petitioners stated that the petitioners working on contractual basis should be given the same pay-scale as is being given to other similarly situated candidates working on the said post since 1998. However, no such prayer has been made in the present writ petitions. Accordingly, the petitioners (Downloaded on 13/08/2021 at 08:29:07 PM) (6 of 14) [WMAP-66/2020] are at liberty to seek the relief vide separate proceedings, if so advised, in accordance with law.
Disposed of in the above terms."
4. Mr. S.P. Sharma, learned counsel for the petitioners invited Court's attention towards the consent given by the State's Counsel, duly recorded in the order dated 19.01.2017 and contended that the State is bound by the consent/assurance given by its counsel.
5. The relevant part recording State's consent reads thus:
"It is agreed that about 150 posts are still lying vacant. Learned counsel for the respondents has very fairly stated that remaining posts will also be filled from the list of selected candidates/waiting list prepared, as the case may be, in pursuance to the result."
6. As the State did not fill up those 150 posts, the petitioners herein preferred contempt petitions before this Court.
7. In S.B. Writ Contempt Petition No.804/2017 along with connected matters, a Coordinate Bench of this Court, vide order dated 29.01.2018, took a serious view of the matter and observed that the order dated 19.01.2017 was not complied with and the respondents have been trying to circumvent said order.
8. Feeling aggrieved with the order dated 29.01.2018, the State approached Hon'ble the Supreme Court by filing an SLP being SLP(C) No.5341/2018.
9. An argument was advanced before Hon'ble the Supreme Court that all these 150 posts, which were ordered to be filled in by the writ petitioners and others candidates, could not have been (Downloaded on 13/08/2021 at 08:29:07 PM) (7 of 14) [WMAP-66/2020] filled, as they belonged to SC/ST category candidates and were required to be carried forward as backlog of SC/ST (SC-68, ST-82) candidates.
10. After hearing rival contentions, Hon'ble the Supreme Court ordered to convert these contempt petitions to Writ Misc. Applications and required this Court to decide as to how many seats are/were required to be kept in backlog in accordance with the various judgments and Rules of 1963.
11. Operative portion of the judgment dated 21.01.2021 of Hon'ble the Supreme Court reads thus:-
"Dr. Singhvi, learned Senior Counsel for the appellants submits before us that the High Court lost sight of the fact that the State Government is required to fill up 150 posts of Veterinary Officer from the backlog that has arisen due to not filling up of reserved category posts. According to him, these posts cannot be filled up from the General category candidates divesting and converting the reserved category posts.
Mr. P.S. Patwalia, learned Senior counsel appearing for the respondents, submits that the duration of the backlog posts being longer than three years in view of the observation of this Court in paragraph 100 of M Nagraj & Ors. Vs. Union of India & Ors. - 2006 (8) SCC 212, and the Rule in Force, the State Government is not entitled to carry forward the reserved vacancies over a period longer than three years.
The aforesaid, contention of Mr. Patwalia, learned Senior counsel, raises an entirely different matter and issue. This contention was not raised before the High Court in the writ petition and therefore, the same has not been gone into by the High Court.(Downloaded on 13/08/2021 at 08:29:07 PM)
(8 of 14) [WMAP-66/2020] To decide the contention, it would be necessary to see the number of posts of Veterinary Officer that were carried forward, the duration for which they were carried forward, and whether they had been carried forward for three years before the advertisement was issued. These facts would have to be examined and considered in the light of the Rule position. These aspects of the matter will have to be gone into the High Court.
We accordingly consider it appropriate to direct the High Court to treat the aforesaid contempt petition as a miscellaneous application preferred by the respondents and decide the contentions of both sides on its own merits and in accordance with law.
We dispose of these appeals, set aside the impugned judgment and order passed by the High Court and direct the High Court to dispose of the matter as expeditiously as possible preferably within a period of four weeks from the date the parties appear before it. The parties are directed to appear before the High Court on 03.02.2020.
The respondents shall be at liberty to file a fresh affidavit. The State Government is also given liberty to file a specific reply to the said affidavit.
It is also open to the State Government to consider appointing certain candidates if they are qualified for the post. This remand order shall not prevent the government from doing so.
Ordered accordingly."
12. Mr. S.P. Sharma, learned counsel appearing for the petitioners, invited Court's attention towards the advertisement dated 02.05.2013 and pointed out that initially the respondents had showed 56 backlog posts (32-SC and 24-ST), whereafter a corrigendum notification was issued on 31.07.2014, in which the (Downloaded on 13/08/2021 at 08:29:07 PM) (9 of 14) [WMAP-66/2020] backlog posts were increased to the extent of 150 posts (68-SC and 82-ST). It was argued by Mr. Sharma that initially when 350 posts were notified vide notification dated 02.05.2013, only 56 posts were shown as backlog posts, whereafter simultaneous with increase in number of post to 525, surprisingly backlog seats have also been increased to 150.
13. Mr. Sharma zealously argued that independent of increase/decrease of total seats advertised, the backlog seats are bound to remain fixed, as had been indicated in the first recruitment notification dated 02.05.2013 (i.e. 56).
14. Mr. Anil Kumar Gaur, learned Additional Advocate General, at the outset, submitted that the corrigendum notification dated 31.07.2014 was issued only in order to correct the inadvertent error, which had been crept in while issuing the first recruitment notification dated 02.05.2013. He reiterated that as a matter of fact, total 150 posts were of backlog, which due to inadvertence, had been shown as '56' in the first advertisement.
15. He highlighted that total number of posts were the same i.e. 350, when the corrigendum notification dated 31.07.2014 was issued and backlog seats were shown as 150. He added that the seats were increased to 525, by the second corrigendum notification dated 30.04.2015 and thus, argument of Mr. Sharma that the backlog seats have been increased on increasing the advertised vacancy is misconceived and factually incorrect.
16. Mr. Nitin Trivedi, learned counsel appearing for the petitioners, submitted that as per Rule 7(4) of the Rules of 1963, which was inserted vide notification dated 10.02.1975; in case of non-availability of suitable candidates amongst SC and ST in a (Downloaded on 13/08/2021 at 08:29:07 PM) (10 of 14) [WMAP-66/2020] particular year, the posts were required to be filled in accordance with the normal procedure, however, subject to condition that equal number of posts were required to be kept reserved for SC/ST candidates in three future recruitment years.
17. He fairly conceded that the posts (150), which were shown as backlog posts, could not have been filled by appointing candidates from the General Category. He, however, argued that nevertheless, there was a calculation error in showing 150 posts as backlog posts (68-SC and 82-ST). He submitted that as a matter of fact, these posts ought to have been 102.
18. He invited Court's attention towards the judgment dated 18.01.2012 (Annex.11), passed in Dr. Abhishek Goyal Vs. State of Raj. & Ors. (S.B. Civil Writ Petition No.9015/2019 and 11701/2019) and submitted that 14 backlog posts of year 1998- 99, ought to have been treated lapsed, as has been held by this Court. He relied upon another judgment dated 09.02.2015, rendered in the case of Dr. Arun Kumar & Ors. Vs. State of Rajasthan & Ors. (S.B. Civil Writ Petition 8934/2012) and pointed out that 34 posts ought to have been treated lapsed, as per the adjudication made in this case.
19. The relevant paras of the judgment of Dr. Abhishek Goyal (supra) reads thus:
"In the present case, reservation of 14 reserve posts of the year 1998-99 vide advertisement dated 26.5.2008 cannot be held to be legal thereby to that extent reservation in favour of SC/ST candidates is found to be illegal as backlog vacancies of the year 1998-99 should have been lapsed by giving treatment as per the (Downloaded on 13/08/2021 at 08:29:07 PM) (11 of 14) [WMAP-66/2020] Rules then existing and as clarified by the respondents themselves vide their circular dated 22.6.2004.
In view of the discussion made above, these writ petitions are disposed of with direction to the respondents that by treating 14 posts to be for general category pursuant to the advertisement dated 26.5.2008, it should be filled up from and amongst meritorious candidates by normal procedure. This is more so when as per the reply given by the respondents themselves, 141 posts remained unfilled out of 450 posts so advertised. Thus, there remains no justification not to fill up 14 posts from and amongst the meritorious candidates. The direction aforesaid may be carried out within a period of two months from the date of receipt of certified copy of this order.
Before parting with the judgment, it would be necessary to observe that the State Government should have followed the direction of the Hon'ble Apex Court given in the case of M.Nagraj & Ors. (supra), a portion of which has been quoted in the preceding para. They are accordingly directed to suitably amend the Rules so notified on 10.10.2002 so as to make it in conformity with the direction given by the Hon'ble Apex Court in the aforesaid case. The respondents are expected to take up the issue with the Department of Personnel for carrying out direction given aforesaid within a period of six months from the date of receipt of certified copy of this order. To find out the compliance of the direction aforesaid, the registry is directed to list this case after six months before this Court."(Downloaded on 13/08/2021 at 08:29:07 PM)
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20. The relevant para of the judgment of Dr. Arun Kumar (supra) reads thus:
"In view of the discussion made above, the instant writ petitions deserve to be and are hereby allowed. The decision dated 15.8.2012 taken by the respondent Commission rejecting the candidature of the petitioners is hereby quashed. The respondent Commission is directed to invite the petitioners for exclusive interviews to be held for selection process of 2011 in furtherance and in terms of the advertisement dated 8.3.2011 and such of the petitioners who are declared successful in interview, shall be offered appointment on the post of Veterinary Officers. As conceded by the counsel for the petitioners, the petitioners so appointed in pursuance of the above directions shall be placed in the order of seniority below the last candidate who has already been given appointment in pursuance of the advertisement dated 8.3.2011. In the event of being appointed, the petitioners shall be entitled to notional monetary benefits from the date the last candidate was appointed in pursuance to the aforesaid selection process.
No order as to cost."
21. Learned counsel further invited Court's attention towards the information supplied to the petitioners on 16.12.2019, under the Right to Information Act and pointed out that while giving such information, the State has given adjustment of 34 posts, whereas deduction of 14 posts, as directed by this Court in the case of Dr. Abhishek Goyal (supra), was not made. According to Mr. Nitin Trivedi, these 14 posts ought to have been reduced from the (Downloaded on 13/08/2021 at 08:29:07 PM) (13 of 14) [WMAP-66/2020] backlog of 150 posts shown by the respondent-State in its corrigendum notifications dated 31.07.2014 and 30.04.2015.
22. He, thus, argued that the petitioners and all other candidates from General Category have right to claim their appointments qua these 14 posts, which have been carried forward in excess of what could have been done in terms of Rules of 1963.
23. Mr. Gaur, learned Additional Advocate General, was however, not in a position to show from the record as to whether adjustment of these 14 posts, as was directed by this Court in Dr. Abhishek Goyal's case (supra), has been given or not. However, submitted that appointments on 34 posts have been made from unreserved category candidates.
24. This being the position, the uncontroverted position, which has emerged out of the pleadings and record, is, that the respondents have shown 14 posts more as backlog posts. It was also pointed out that as a matter of fact only 149 posts were taken as backlog posts and not 150 and even RPSC had taken the backlog posts to be 149. The backlog posts, thus ought to have been 101 (149-34-14).
25. An argument was advanced on behalf of the present petitioners before Hon'ble the Supreme Court that all these posts have lapsed on account of passing of three years. It is to be noted that this argument was advanced before Hon'ble the Supreme Court, on the basis of the amendment in the Rules, which was brought in force in 2013, vide notification dated 17.01.2013.
26. In the opinion of this Court, as the backlog of 149 posts related to period prior to 2012-13, it cannot be said that the backlog posts have lapsed, as the amendment in Rules of 1963 (Downloaded on 13/08/2021 at 08:29:07 PM) (14 of 14) [WMAP-66/2020] has been brought into effect on 17.01.2013. Petitioners' contention that these posts have lapsed on completion of three years is thus, untenable, as amendment in the rule cannot obliterate already existing rights of SC/ST candidates else it would amount to retrospectively applying a subordinate legislation.
27. In view of the discussion aforesaid, the present applications are allowed and the order dated 19.01.2017 passed by this Court stands modified accordingly.
28. The respondent - State is hereby directed to fill 14 posts (as indicated above) by operating reserve list/waiting list from General Category candidates instead of filling 150(149) seats, as had been directed vide order dated 19.01.2017.
29. Needless to observe that if any other vacancy arises on account of non-joining of the candidates or candidates turning out to be ineligible, or on account of the fact that the candidate has already joined in pursuance to any earlier or subsequent order/advertisement, the remaining posts shall be filled in accordance with law.
30. Since the recruitment is of the year 2013, the State is directed to do the needful as early as possible, preferably within a period of 60 days from today.
(DINESH MEHTA),J 44-48-Ramesh/-
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