Jammu & Kashmir High Court
Rajesh Kumar vs State & Ors on 1 May, 2025
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
55
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
SWP No. 2505/2015
Rajesh Kumar .....Appellant(s)/Petitioner(s)
q
Through: Mr. Karman Singh Johal, Advocate.
vs
State & Ors. ..... Respondent(s)
Through: Mr. S.S. Nanda, Sr. AAG for R-1 to 4
Mrs. Rozina Afzal, Advocate for R-6
None for R-5.
Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
ORDER
01.05.2025
01. In the instant petition, filed under Article 226 of the Constitution of India
the petitioner herein has prayed for the following reliefs:-
"i) to prohibit respondents from making selection among 4 candidates
from Sr. No. 2 to 5 shown in the short list contained as Annexure-C.
ii) to command/direct respondents for making fresh selection from Gram
Rozgar Shayaik for Panchayat Arnora Upper, after giving representation
among all candidates of Panchayat Upper Arnora.
iii) to command or direct respondents for making selection of petitioner as
Gram Rozgar Shayaik for Panchayat Upper Arnora in terms of
Advertisement and notification contained as Annexure-A.
iv) to issue any other appropriate writ order or direction which your
lordship deem fit in the present set of circumstances of the case."
02. The background facts under the cover of which the instant petition has been
filed and as are stated in the petition are that an Advertisement no.
ACDD/MGNREGA/ASS/2011-12/8385-8400 dated 28.11.2011, came to be
issued by respondent Assistant Commissioner Development (Chairman District
Selection Committee under MGNREGA), Doda for making selection and
engagement of the various supporting staff in MGNREGA Scheme including
Gram Rozgar Shahyak (GRS) on need basis for various Panchayats including the
Panchayat of Arnora Upper Block Ghat, Doda. The said Advertisement notice is
stated to have been followed by another Advertisement noticed dated 02.04.2012
issued for the same purpose. It is stated that the petitioner being eligible pursuant
to the eligibility provided in the said Advertisement notices, applied for selection
and engagement as Gram Rozgar Shayaik (GRS), and upon being subjected to the
process of selection, however was not selected, feeling aggrieved whereof, the
petitioner herein filed SWP No. 1356/2013 before this Court, which writ petition,
while being considered along with other similar petitions, came to be dismissed
on 09.07.2015, whereafter, aggrieved of the said dismissal, the petitioner filed
LPA No. 67/2015, which came to be disposed of on 03.09.2015 upon a statement
made by counsel for the appellant/petitioner herein that the
selections/engagements pursuant to the advertisement notices stands made,
rendering the LPAs infructuous, while providing a liberty to the appellants
including the petitioner herein to file appropriate proceedings in case of aggrieved
of the said engagements made, whereafter, the petitioner herein has maintained
the instant petition.
03. The petitioner has maintained the instant petition, while seeking the
aforesaid reliefs besides on the grounds which the petitioner herein have had
urged in the earlier petition also on the ground that the entire selection and
engagement undertaken is bad.
04. It is significant to mention here that during the pendency of the instant
petition, respondent no. 6 herein came to be impleaded as a party on 10.03.2017,
upon a motion laid on the premise that respondent no. 6 figures in the select list of
GRS drawn by the official respondents and that since the respondent no. 5 herein,
the selected candidate as well as waiting list candidate shown in the said select
list, namely, Asif Ali S/O Liyaqat Ali, did not join as GRS, he, the respondent no.
6 herein is entitled for engagement being next in order of merit.
05. Reply to the petition has been filed both by the official respondents herein
as well as respondent no. 6 herien.
06. In the reply filed by the official respondents, it is being contended that
petitioner sought his consideration for selection and engagement as GRS pursuant
to the advertisement notice dated 20.11.2012, however, was not selected owing to
his low merit and that, as such, upon his failure to make the grade, the petitioner
initially filed SWP No. 1856/2013 before this Court, which came to be dismissed
on 09.07.2015 against which dismissal, the petitioner filed an LPA but withdrew
the same with liberty to file appropriate proceedings after stating before the LPA
bench that pursuant to the advertisement notification under challenge
engagements stand made. It is being next stated in the said reply that since the
petitioner has participated in the process of selection undertaken by the official
respondents and failed to make the grade, the petitioner could not have initially
filed the earlier petition or else maintained the instant petition on any grounds.
07. Respondent no. 6 in the reply filed to the petition has reiterated the pleas
which have been taken in the application for impleadment while seeking
impleadment as party respondent in the instant petition and is opposing the
petition on the premise that he has participated in the selection process and figures
in the selection list after the selected and waiting list candidate did not join, and
that as such, the respondent no. 6 has right to be offered the engagement in order
of merit by the official respondents.
Heard learned counsel for the parties and perused the record.
08. Perusal of the record in general and the judgment in particular passed
earlier by this Court on 09.07.2015 in the writ petition filed in the matter by the
petitioners including the petitioner herein would reveal that a finding therein has
been rendered in the said judgment that petitioner has participated in the process
of selection having been provided a fair opportunity thereof, could not challenge
either the advertisement notice on any grounds a process of selection initiating
thereunder having taking into consideration the case set up by the petitioner
herein in the said petition as also the stand taken by the official respondents in
opposition thereto.
09. As has been noticed in the preceding paras, the petitioner yet again in the
instant petition has urged the same and similar grounds which the petitioner have
had urged in the earlier petition, be it that the petitioner is clothed with a right for
having worked with the respondents as GRS prior to the process of selection
undertaken by them for a considerable period of time as well as , the entitlement
to the grant of experience in the selection process points inasmuch as, the right of
regularisation claimed for having worked as such. The petitioner in the instant
petition seemingly under the guise of the liberty provided to the petitioner by the
LPA bench in terms of order dated 03.09.2015, has while throwing challenge to
the engagement of respondent no. 5 herein has yet again urged the earlier grounds
which the petitioner have had urged in the earlier petition, which stand considered
and adverted to in the earlier round of litigation by this Court in judgment dated
09.07.2015, which judgment has assumed finality even though having been
thrown challenge to by the petitioner herein in the aforesaid LPA. The petitioner
herein, thus, in law, is precluded and estopped from raising all such pleas which
the petitioner have had raised in the earlier petition, now in the instant petition, in
that, the said pleas can neither be reopened nor adverted to in the instant petition
by this Court on any grounds whatsoever including on the ground of the aforesaid
liberty granted to the petitioner by the LPA Bench in its order dated 03.09.2015
more so, when no fresh ground of challenge has been urged against the selection
of respondent no. 5 herein. Thus, the case set up by the petitioner in the instant
petition is grossly misconceived and has no merit.
10. Insofar as the claim of respondent no. 6 herein that since the respondent no.
5 herein and the above-named candidate in the waiting list did not join, and as
such, the respondent no. 6, is to be engaged is concerned, the said claim of the
respondent no. 6 cannot be entertained in law in view of the law laid down by the
Apex Court in this regard in case titled as "Vallampati Sathish Babu v. State of
Andhra Pradesh reported in (2022) SCC Online SC 471.
11. Be that as it may, since the claim of the petitioner in the instant petition has
been held to be grossly misconceived as also that of the respondent no. 6 herein,
the official respondents, herein, shall be at liberty to re-advertise the position of
GRS in question and undertake a fresh selection process thereof. In the event any
such fresh process is initiated, the petitioner herein as well as the respondent no. 6
herein shall be at liberty to seek consideration thereof, subject to their eligibility
along with other eligible candidates who may apply thereto.
12. Disposed of and interim direction, if any, shall stand vacated.
(Javed Iqbal Wani)
Judge
Jammu
01.05.2025
Abinash
