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Ishfaq Ahmad Chopan Vs. State and Others - Court Judgment

LegalCrystal Citation
CourtJammu and Kashmir High Court
Decided On
Case NumberSWP No. 903 of 2014
Judge
AppellantIshfaq Ahmad Chopan
RespondentState and Others
Excerpt:
.....bandipora to fill up five number of posts, comprising of two posts of gardner and three posts of night chowkidar. the respondent no.4 issued advertisement notice dated 21st august, 2013. in the said advertisement notice, two posts of gardner and night chowkidar were advertised in the open merit category and one post of night chowkidar was advertised under rba category. the petitioner who belong to rba category applied for the post of night chowkidar under rba category and on the basis of his merit figured at serial no.1 of the selection list. the selection list was published in the newspaper and was submitted to director agriculture for his approval. the director agriculture accorded approval to the selection of two candidates in respect of two posts of gardner and two posts of night.....
Judgment:

Director Agriculture vide his communication dated 18th July, 2013 directed Chief Agriculture Officer, Bandipora to fill up five number of posts, comprising of two posts of Gardner and three posts of Night Chowkidar.

The respondent No.4 issued advertisement notice dated 21st August, 2013. In the said advertisement notice, two posts of Gardner and Night Chowkidar were advertised in the Open Merit Category and one post of Night Chowkidar was advertised under RBA Category.

The petitioner who belong to RBA category applied for the post of Night Chowkidar under RBA category and on the basis of his merit figured at Serial No.1 of the selection list. The selection list was published in the newspaper and was submitted to Director Agriculture for his approval. The Director Agriculture accorded approval to the selection of two candidates in respect of two posts of Gardner and two posts of Night Chowkidar. The respondent No.4 was directed to re-advertise one post of Night Chowkidar for which the petitioner stood selected. The petitioner being aggrieved of the said action of the respondents has filed this petition.

In the reply affidavit, the respondents have stated that all the three posts of Night Chowkidar fall under General Category.

Learned counsel for the parties argued in tune with their respective pleadings.

It is admitted at bar that, if, the posts of Maali and Chowkidar are taken to be comprising one class, then in terms of Reservation Rules, one post was to be filled up from amongst the candidates belonging to RBA Category.

Learned counsel for the respondents submitted that Maali and Night Chowkidar are two different posts belonging to different categories/Class of service.

This submission of the learned for the respondents falls to ground lock, stock and barrel, in view of the categorization of posts of Maali and Chowkidar in terms of Schedule II (Executive) appended to the Jammu and Kashmir Agriculture (Sub-ordinate) Service Recruitment Rules, 2004.

The Class VIII of the schedule II (Executive) has grouped the posts of Maali/Chowkidar etc as one class.

When the rules have treated the posts of Maali and Chowkidar comprising of one Class, then from out of the advertised posts of Maali and Chowkidar, one post had to be earmarked for Reserved Category.

The respondent No.4 had rightly advertised post of Night Chowkidar under RBA Category.

The stand taken in the objections in the aforesaid legal and factual situation cannot be accepted.

Learned counsel for the respondents further submitted that in terms of SRO 144 dated 28th May, 2008, 10 % posts have been earmarked for RBA Category and in terms of Rule (iii) whereunder in Rule 9, Clauses 1,2 and 3 have been substituted, and only 10 posts have been earmarked for RBA Category.

This submission also needs to be rejected, inasmuch as, Rule 9 of the Rules of Jammu and Kashmir Reservation Rules, 2004 refers to the Reservations in appointments by promotions and not to the direct recruitment and this amendment made in SRO 144 dated 28th May, 2008 will not thus be applicable to the facts of the case. The petitioner has been selected for being appointed as Night Chowkidar under RBA Category. His selection is held to be valid in law.

For the stated reasons, this petition is disposed of in the following manner:

(i) By issuance of writ of mandamus, the respondent more particularly respondent No.2 and 4 are directed to issue the order of appointment in favour of the petitioner within week s time.

(ii) Petitioner would be entitled to all the service benefits, excepting the monitory benefits, which benefits have been extended to other persons who participated in the same selection process and stand already appointed.

Disposed of alongwith connected CMPs.


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