1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.5677/1994 Rameshwar Dayal vs. State Date of order : 14/10/2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Pradeep Singh for the petitioner. Shri B.L. Avasthi, Addl. Govt. Counsel for the State. ****** This writ petition has been filed by the petitioner with the prayer that the respondents be directed to consider his case for absorption on the post of Gram Sevak in the Panchayati Raj Department. Shri Pradeep Singh, learned counsel for the petitioner has argued that the respondent no.6 Ramesh Chand Sain who was junior to him as Beldar was declared surplus and was absorbed on the post of Gram Sevak by order of the respondents dated 18.10.1989. He was in that condition given more salary in the pay scale of Rs.820-1520 and after completing training course, the scale of Rs.875-1720 whereas the petitioner has been absorbed in the Education Department as Class IV employee in the lower scale of pay. Learned counsel for the petitioner has 2 argued that the post of Gram Sevak was still available with the respondents as is evident from the advertisement dated 16.4.1994 issued by them. The case of the petitioner should therefore be considered for being absorbed on the post of Gram Sevak, rather than absorbing him as Class IV employee. Learned counsel referred to the order dated 18.10.1989 whereby the Panchayati Raj Department agreed as per the decision taken in the meeting chaired by the Commissioner and Secretary, Finance Department on 3.10.1989 to absorb all the surplus employees having qualification of higher secondary as Gram Sevak. It was contended that as against 224 vacancies of Gram Sevak in district Alwar, case of the petitioner ought to be considered for absorption. Shri B.L. Avasthi, learned Additional Government Counsel opposed the writ petition and argued that the absorption of the petitioner was already made in the Education Department. The petitioner was working as Beldar in the Irrigation Department and upon his being declared surplus, since there was no post of Beldar in the Education 3 Department, he was absorbed on equivalent post of Class IV employee. The right of absorption is one time right and the same got executed the moment the petitioner was absorbed. Ramesh Chand Sain, even if he is junior to the petitioner, he was declared surplus at earlier point of time on the principle of first come first go. Since at that time the post of Gram Sevak was available, he was absorbed as Gram Sevak and therefore he could get the opportunity to be absorbed on that post. Subsequently, the petitioner was declared surplus and he was absorbed on the equivalent post of Class IV. No prejudice is caused to the petitioner because already he was granted the pay protection. In the facts and circumstances of the case, the argument of discrimination would not be available. It was argued that the absorption of the respondent no.5 was made in 1989 and this is sought to be questioned belatedly by the petitioner in writ petition filed in 1994. Upon consideration of the arguments aforesaid and perusal of the material on record, I find substance in the submission 4 made by the learned Additional Government Counsel that as per law applicable to the cases of surplus employees, the one who is junior is required to be declared surplus first in point of time and in that process Ramesh Chand Sain was declared surplus earlier and was absorbed against the vacancies of Gram Sevak. The petitioner could have no grievance qua him. Subsequently, the petitioner was also declared surplus and was absorbed on the post of Class IV. It cannot be said that the petitioner was absorbed on a lower post than the post held by him. His absorption was made on equivalent post with pay protection. The argument of discrimination in view of the peculiarities aforesaid would not be available to the petitioner inasmuch as such argument could not be raised four years after the absorption of respondent no.6. Even otherwise, now that a substantial time period has gone by since the absorption of respondent no.6 as also the absorption of the petitioner, the settled position cannot be allowed to be unsettled by directing consideration of the case of the petitioner 5 afresh for absorption in Panchayati Raj Department. So far as the advertisement issued by the respondents in 1994 is concerned, that action was initiated by the respondents in 1994 and a substantial time has gone by since then also. In the circumstances, the kind of mandamus that has been prayed for cannot be granted. The writ petition is accordingly dismissed. (MOHAMMAD RAFIQ), J. RS/