Gujarat High Court
Akashbhai Mukeshbhai Parmar vs Gujarat Industrial Security Force ... on 4 July, 2023
NEUTRAL CITATION
C/SCA/20672/2022 ORDER DATED: 04/07/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 20672 of 2022
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 20672 of 2022
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AKASHBHAI MUKESHBHAI PARMAR
Versus
GUJARAT INDUSTRIAL SECURITY FORCE SOCIETY THROUGH CEO
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Appearance:
MR.BHASH H MANKAD(6258) for the Petitioner(s) No.
1,10,100,101,102,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28
,29,3,30,31,32,33,34,35,36,37,38,39,4,40,41,42,43,44,45,46,47,48,49,5,50,
51,52,53,54,55,56,57,58,59,6,60,61,62,63,64,65,66,67,68,69,7,70,71,72,73,
74,75,76,77,78,79,8,80,81,82,83,84,85,86,87,88,89,9,90,91,92,93,94,95,96,
97,98,99
MS VACHA J NANAVATI(6588) for the Respondent(s) No. 1, 2
MR SAHIL TRIVEDI ASST. GOVERNMENT PLEADER for the Respondent(s)
No.3,4
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 04/07/2023
ORAL ORDER
1. This petition is filed challenging the inaction on part of respondent No.2 - Gujarat Industrial Security Force Society (GISFS) in not completing the recruitment process in spite of lapse of considerable time after issuance of call letter to the petitioners by respondent No.1.
2. The facts in brief are that, the petitioners herein had participated in Lok Rakshak Bharti Board 2018 and had Page 1 of 13 Downloaded on : Sat Sep 16 20:54:11 IST 2023 NEUTRAL CITATION C/SCA/20672/2022 ORDER DATED: 04/07/2023 undefined successfully cleared the written examination as well as physical test. It is their case that despite their names being placed in the wait list, they could not secure final appointment pursuant to the recruitment published by State of Gujarat - respondent No.3. A call letter dated 2.3.2022, was issued by respondent Nos.1 and 2 asking for their willingness to join their services as security guards with them purely on temporary basis and on the terms and conditions as stipulated therein. It was stated that if they are willing, they have to undergo medical examination and submit the relevant documents to complete the procedure. Pursuant thereto the petitioners submitted various documents and underwent requisite medical examination. However, no communication has been received thereafter. Upon inquiry, they came to know that other writ petitions being Special Civil Application Nos.13127 of 2021 and 14281 of 2021 are pending, wherein vide order dated 27.10.2021, stay against appointment from the waiting list of Lok Rakshak Dal was granted till next date of hearing. Therefore, present petition is filed.
3. Heard Mr. Bhash Mankad, learned advocate for the petitioners. He submitted that Special Civil Application Nos. 13127 of 2021 with 14281 of 2021 have been filed by Gujarat Audhyogik Surakshadal Karmchaari Association, where the challenge is with respect to recruitment of retired employees of Page 2 of 13 Downloaded on : Sat Sep 16 20:54:11 IST 2023 NEUTRAL CITATION C/SCA/20672/2022 ORDER DATED: 04/07/2023 undefined Army, Navy, Air Force/CRPF, BSF, CISF, SSB, ITBP, SRP, Home Guard etc. Further, there the subject matter is in relation to the interpretation of Private Security Agencies (Regulation) Act, 2005 ("Act of 2005" for short). There are two orders passed in Special Civil Application No.13127 of 2021 with Special Civil Application No.14281 of 2021. The first order dated 22.10.2021, (Coram: Justice Nikhil S. Kariel) in Special Civil Application Nos.13127 of 2021 and 14281 of 2021 reads as under:
"Heard learned Advocate Shri Yogen Pandya on behalf of petitioner in Special Civil Application No. 14281 of 2021, learned Advocate Shri Gnanesh Bhatt on behalf of petitioner in Special Civil Application No. 13127 of 2021, learned Assistant Government Pleader Shri Utkarsh Sharma for respondent no.1 and 2- State, learned Advocate Ms. Vacha Nanavati on behalf of respondents no. 3 and 4 and learned Advocate Shri Harsh Raval for newly added respondent no.5.
By way of these petitions, the petitioners have challenged the recruitment process initiated by respondents no. 3 and 4 vide an advertisement dated 26.08.2021. Prima facie grievance of the petitioners against such recruitment process being that while the respondents no.3 and 4 are holding the recruitment process only for retired employees who have worked either in Page 3 of 13 Downloaded on : Sat Sep 16 20:54:11 IST 2023 NEUTRAL CITATION C/SCA/20672/2022 ORDER DATED: 04/07/2023 undefined the Army, Navy, Air Force/ CRPF, BSF, CISF, SSB, ITBP SRP, Home Guard etc., according to the petitioner Section 10(3) of the Private Security Agencies (Regulation) Act, 2005 inter alia envisages preference to a person who has served in the forces referred to hereinabove. Learned Advocate for the petitioners would submit that giving preference would not amount to exclusion of persons who have not worked in the said forces.
As against the same learned Advocate Ms.Vacha Nanavati would submit that while this selection process is only for persons who have retired or who are about to retire from the forces referred to hereinabove, a general recruitment process is being initiated by the respondents no. 3 and 4 for the categories other than persons who have worked in the forces. Thus, the dispute which prima facie requires adjudication is whether the respondents no. 3 and 4 are entitled to hold a selection process exclusively for members who have retired from the forces referred to hereinabove or not.
Having regard to the said controversy issue Rule in these petitions, returnable on 07.02.2022. Learned AGP Shri Sharma, learned Advocate Ms. Nanavati and learned Advocate Shri Raval waive service of rule on behalf of the respective respondents. By way of interim relief, it is directed that all appointments Page 4 of 13 Downloaded on : Sat Sep 16 20:54:11 IST 2023 NEUTRAL CITATION C/SCA/20672/2022 ORDER DATED: 04/07/2023 undefined pursuant to selection process initiated vide advertisement dated 26.08.2021 shall be subject to final result of the present petitions."
4. The second order dated 27.10.2021, reads as under:
"Heard learned Advocate Mr. Gnanesh G. Bhatt on behalf of the applicant in Civil Application No. 2 of 2021. Learned Advocate Mr. Bhatt raises a grievance that the respondents are again contemplating a recruitment drive whereby they are going to recruit people from the waiting list of Lok Rakshak Dal.
Learned Advocate would submit that regulation 10(1) of the Private Security Agency Regulation Act, 2005 is not at all being adhered to by the respondent authorities more particularly learned Advocate would submit that if the entire vacancies available with the respondents is to be filled in by certain category of persons, then a normal citizen of the country who is not selected to any of the forces would not get any chance to even compete for appointment. Learned Advocate Mr. Bhatt would further submit that such recruitment from a specific category of persons would defeat the very purpose of regulation 10(1).
At this stage without going into the merits of the matter to ensure that equities are protected on both the sides this Court is of the opinion that the respondent nos. 3 and 4 are required Page 5 of 13 Downloaded on : Sat Sep 16 20:54:11 IST 2023 NEUTRAL CITATION C/SCA/20672/2022 ORDER DATED: 04/07/2023 undefined to be directed that while it would be open for them to conduct recruitment process from the waiting list of Lok Rakshak Dal they may not give any appointment to such persons till the next date of hearing i.e. on the 24 th November, 2021."
5. Mr. Mankad, learned advocate for the petitioners submitted that by the order dated 27.10.2021, the interim relief was granted till next date of hearing i.e 24.11.2021, and not extended thereafter. Further hearing could not take place till date. He, therefore, submitted that it would be in interest of justice to modify the order dated 27.10.2021 of Civil Application No.2 of 2021 in Special Civil Application No.13127 of 2021 in line of order dated 22.10.2021 in Special Civil Application No.13127 of 2021. Further, he does not have any objection if the appointments are directed to be made subject to outcome of Special Civil Application Nos.13127 of 2021 with 14281 of 2021.
6. Ms. Vacha Nanavati, learned advocate for Respondent No.1 and 2 - GISFS (Recruiting agency) submitted that one more Special Civil Application No.12712 of 2013, has been filed by Gujarat Audhygik Surkshadal Mazdoor Sangh. As they were in need of the candidates to be appointed for the post in question, an application being Civil Application No.2 of 2021, in Special Civil Application No.12712 of 2013, was filed Page 6 of 13 Downloaded on : Sat Sep 16 20:54:11 IST 2023 NEUTRAL CITATION C/SCA/20672/2022 ORDER DATED: 04/07/2023 undefined seeking permission of this Court to undertake the recruitment process and their appointments. In the said application, this Court (Coram: Justice A.S.Supehia) on 09.01.2023, has passed following order:
"2. At the outset, learned advocate Mr.Patel has submitted that so far as Civil Application No.2 of 2021 is concerned, the applicants will confine the prayers to prayer clause 26(c) since the substantive writ petitions are already filed challenging the other action of the respondents in issuing the advertisement and also undertaking recruitment process confining the categories mentioned in sub-section (3) of Section 10 of the Private Security Agency (Regulation) Act, 2005 (for short "the Act"). It is submitted that after the directions were issued by this Court in the order dated 27.07.2021 passed in Civil Application No.1 of 2021, an advertisement dated 26.08.2018 was published by the respondent-Agency inviting the applications from the categories mentioned in sub-section (3) of Section 10 of the Act. It is submitted that all the members of the applicant-Union have undertaken the necessary course in security and also some of them are rendering their duties as Security Guards, however, they are debarred from applying the recruitment process as per the advertisement since it is only confined to the categories mentioned in sub-section (3) of Section 10 of Page 7 of 13 Downloaded on : Sat Sep 16 20:54:11 IST 2023 NEUTRAL CITATION C/SCA/20672/2022 ORDER DATED: 04/07/2023 undefined the Act. It is submitted that in fact the advertisement should have invited the applications even from the general public so that they can also apply for the post in question.
3. Per contra, learned advocate Ms.Vacha Nanavati appearing for the respondent-Agency has submitted that the entire recruitment process is undertaken in view of the directions issued by this Court vide order dated 27.07.2021 passed in Civil Application No.1 of 2021 and after the advertisement was issued inviting the applications for filling up the posts in question, various writ petitions are filed by other persons as well as the petitioners-Union challenging such recruitment process and by various interim orders, the respondent-Agency has been though allowed to conduct the recruitment process, the appointments are restricted.
4. This Court in the captioned writ petition, which is pending since the year 2013, had issued the following directions vide order dated 27.07.2021 passed in Civil Application No.1 of 2021: -
"[3] The Court has considered rival submissions made by the learned advocates. The applicant is seeking to fill up the vacancies by making appointment as per provision of Section 10(3) of the Private Security Agencies (Regulation) Page 8 of 13 Downloaded on : Sat Sep 16 20:54:11 IST 2023 NEUTRAL CITATION C/SCA/20672/2022 ORDER DATED: 04/07/2023 undefined Act, 2005, which reads as under:-
"Section 10(3) : Eligibility to be a private security guard: "Every private security agency may, while employing a person as a private security guard, give preference to a person who has served as a member in one or more of the following, (i) Army; (ii) Navy; (iii) Air Force;
(iv) any other armed forces of the Union; (v) Police, including armed constabularies of States;
and (vi) Home Guards"
[4] It is undisputed fact that the aforesaid regulation is not challenged before any court and is in force. Under the circumstances, it is open for the applicant to recruit / appoint Security Guard, as per the provision of Section 10 (3) of the Private Security Agencies (Regulation) Act, 2005. If any grievance with regard to appointment / promotion is noticed by the opponent, it is always open for him to challenge the said action before the appropriate forum. There cannot be total stall on the recruitment process if the such process is sought to be undertaken as per provision of law. In the present case, the applicant is empowered to appoint Security Guard, as per provision of Section 10(3) of the Private Security Agencies (Regulation) Act, 2005."
5. It is the case of the applicants that the respondent-Agency has restricted the recruitment process for appointment to the Page 9 of 13 Downloaded on : Sat Sep 16 20:54:11 IST 2023 NEUTRAL CITATION C/SCA/20672/2022 ORDER DATED: 04/07/2023 undefined persons from the category mentioned in sub- section (3) of Section 10 of the Act by issuing an advertisement dated 26.08.2018.
6. This Court has perused the relevant provisions of the Act, which would be Section 10 (1) (2)(3) of the Act, which are incorporated as under: -
"10. Eligibility to be a private security guard.
-- (1) A private security agency shall not employ or engage any person as a private security guard unless he--
(a) is a citizen of India or a citizen of such other country as the Central Government may, by notification in the Official Gazette, specify;
(b) has completed eighteen years of age but has not attained the age of sixty-five years;
(c) satisfies the agency about his character and antecedents in such manner as may be prescribed;
(d) has completed the prescribed security training successfully;
(e) fulfills such physical standards as may be prescribed; and
(f) satisfies such other conditions as may be prescribed.
(2) No person who has been convicted by a competent court or who has been dismissed or removed on grounds of misconduct or moral turpitude while serving in any of the armed forces of the Union, State Police Organisations, Central or State Governments or in any private Page 10 of 13 Downloaded on : Sat Sep 16 20:54:11 IST 2023 NEUTRAL CITATION C/SCA/20672/2022 ORDER DATED: 04/07/2023 undefined security agency shall be employed or engaged as a private security guard or a supervisor. (3) Every private security agency may, while employing a person as a private security guard, give preference to a person who has served as a member in one or more of the following, namely:--
(i) Army;
(ii) Navy;
(iii) Air Force;
(iv) any other armed forces of the Union;
(v) Police, including armed constabularies of States; and
(vi) Home Guards."
7. A bare reading of sub-section (3) of Section 10 of the Act reveals that the Agency has to give "preference to a person", who has served as member in one or more of the categories as mentioned in sub-section (3) of Section 10 of the Act i.e. Army, Navy, Air Force, any other armed forces of the Union, Police, including armed constabularies of States and Home Guards.
8. The aforesaid rules nowhere restrict any other person to apply for getting employment as Security Guard under the provisions of the Act. However, it is always open for the Agency to give the preference to a person, who belongs or a member of the categories mentioned in subsection (3) of Section 10 of the Act.
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9. Under the circumstances, since various writ petitions are pending and the captioned writ petition is also pending, it is clarified that the observations made in the order dated 27.07.2021 in Civil Application No.1 of 2021 shall not come in the way of the applicants- Union in pursuing their case as mentioned hereinabove in other writ petitions and also in the captioned writ petition.
10. With this clarification, the present applications stand disposed of."
7. Considering the above submissions, particularly, the order dated 9.1.2023 wherein it has been observed that it is always open for the Agency to give preference to persons who belong to or a member of the categories mentioned in Sub-Section (3) of Section 10 of the Act 2005, in my opinion the prayer made in the present petition, that appointments may be issued subject to outcome of Special Civil Application Nos.13127 of 2021 and 14281 of 2021 and Civil Application No. 2 of 2022 in Special Civil Application No.13127 of 2021, can be considered. Therefore, it is open for the recruiting agency (Respondent Nos.1 and 2), to issue appointment orders in favour of the petitioners, if they are otherwise found eligible subject to outcome of the pending petitions as referred in the prayer clause.
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8. It is made clear that the Petitioners shall not claim any equity in respect of the appointments made.
9. In view of above observations and directions present petition is disposed of. No cost.
10. Consequentially, Civil Application No. 1 of 2023 also stands disposed of.
(MAUNA M. BHATT,J) NAIR SMITA V. Page 13 of 13 Downloaded on : Sat Sep 16 20:54:11 IST 2023