Jammu & Kashmir High Court - Srinagar Bench
Tanveer Ahmad Reshi And Others vs State Of J&K; And Others on 23 May, 2017
Author: Tashi Rabstan
Bench: Tashi Rabstan
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
......
SWP no.892/2017
MP no.01/2017
Date of Decision: 23/05/2017 Tanveer Ahmad Reshi and others Versus State of J&K and others Coram:
Hon'ble Mr Justice Tashi Rabstan, Judge Appearing counsel:
For petitioner(s): Mr J. A. Kawoosa, Advocate For respondent(s): Mr B. A. Dar, Sr. AAG Whether to be reported in Digest/Journal? Yes/No
1. Director, Fire and Emergency Services, J&K, Srinagar -
respondent no.2 herein, vide Order no.269(DF&ES) of 2017 dated May 13, 2017, made transfer of five officials. Petitioners, figuring therein and feeling aggrieved thereof, impugn it on the grounds detailed in writ petition on hand.
2. I have heard learned counsel for parties at length and considered the matter.
3. Petitioner no.1 is stated to have been appointed as Fireman in respondent department in the year 1998; petitioners 2&3 in 2009. Petitioner no.1 vide order no.430 of 2012 dated August 27, 2012 (Annexure A to writ petition), issued by respondent no.2, was adjusted as Fireman (Store) SWP no.892/2017 Page 1 of 18 2 pending clearance by Departmental Promotion Committee. Petitioners 2&3 vide order no.239 of 2013 dated June 01, 2016 (Annexure B to writ petition), issued by respondent no.2, were adjusted as Fireman (Storeman) pending clearance by Departmental Promotion Committee with immediate effect. Departmental Promotion Committee of respondent department approved and cleared adjustment of petitioners as Firemen (Store). This was followed by Order no.437 of 2013 dated October 04, 2013 (Annexure C to writ petition), issued by respondent no.2. Petitioners have been placed, amongst others, in the pay band of Rs.5200-20200+1900 GP, from the dates shown against each in the said order.
4. Deputy Director, Fire & Emergency Services, Command, Srinagar - respondent no.5, herein, vide no.DDS/Estt/ 1997-99 dated November 30, 2016 (Annexure D to writ petition), directed petitioner no.1, posted in Command Office, Srinagar, to join Regional Workshop F&ES Headquarters Batamalloo, Srinagar, for further duties.
5. Petitioners, while working as Firemen (Store), have been transferred to Fire & Emergency Service Station SWP no.892/2017 Page 2 of 18 3 Headquarters, Srinagar, by virtue of order impugned. Dissatisfied therewith, petitioners knock at portals of this Court with writ petition on hand, seeking quashment thereof with a further direction to respondents to retain services of petitioners at their current place of posting and not to disturb their status, which they are holding in terms of order no.437 of 2013 dated October 04, 2013.
6. Learned counsel for petitioners, during course of argumentation, has stated that petitioners are born on the cadre of Fireman (Store), which is having different cadre and different recruitment rules including promotions and that respondent no.2 has no authority to issue impugned order, transferring petitioners to Fire & Emergency Services Station Headquarters, Srinagar, as Fireman, inasmuch as the same is a different cadre and having different promotion rules. Learned counsel has referred to Rule 9(f) and (h) of Chapter III of J&K Fire Force Act, 1967, to contend that it is the Government, which can by special order transfer petitioners for speedy attendance of members of the Force with necessary appliances and equipment on the occasion of any alarm of fire or for SWP no.892/2017 Page 3 of 18 4 employment of members of force in any rescue, salvage or other similar work and that the Government has not passed any such general or special order and it is only the Government, competent to pass such order, like impugned order. He further avers that Fireman (Storeman) is a different cadre and seniority list of said cadre is being maintained separately. Learned counsel maintains that there are a number of fireman, selection grade fireman, leading fireman, who have been given the charge of stores and had there been acute shortage of manpower then respondents would have withdrawn charges of these stores from these employees, which clearly shows that impugned order has been issued with mala fide intention and for ulterior motive, so as to change the cadre of petitioners from Fireman (Storeman) to Fireman. Even otherwise also, there are a number of Fireman, Selection Grade Fireman, Leading Fireman, who are working in different offices of respondent department and have not been assigned the job at operational level. Petitioners, according to him, have already been adjusted in different cadre i.e. Fireman (Storeman), on recommendation of Departmental SWP no.892/2017 Page 4 of 18 5 Promotion Committee and by virtue of impugned order, they are being reverted back to Fireman Cadre just to deprive petitioners of benefits of future promotions as they are figuring at serial nos. 2,4 and 5 of tentative seniority list.
7. Per contra, learned counsel for respondents avers that in terms of Chapter 02 of Book of Financial Powers, respondent no.2 has been classified as Class-1(A) Officer, i.e. Major Head of the Department, and is a State level Head of the Department and in pursuance of Policy on Transfers / Posting of Government Employees, issued vide Government order no.851-GAD of 2010 dated July 28, 2010, the State level Head of the Department has been delegated powers for making transfers/posting of State Cadre non-gazetted employees up to the first gazetted level officers. He also refers to Section 5 of J&K Fire Force Act, 1967, to contend that superintendence and control of the force has been vested in the Director. Learned AAG states that transfers in question have been absolutely made in the interest of administration, without any mala fide intentions as the Department in view of acute shortage of manpower is at the verge of collapse. He has in support of SWP no.892/2017 Page 5 of 18 6 his submissions produced a number of inter se communications.
8. Letter no.PS/ DGF&ES/Re-org/2016/886 dated February 08, 2016, addressed by respondent no.2 to respondent no.1 is as regards rationalisation/strengthening of Fire & Emergency Services Department. Respondent no.2 gives the historical background of the department. He mentions that the department of Fire & Emergency Services was initially established in the year 1893 as "Srinagar Fire Brigade" and it had strength of 41 land and river fire stations till 1978 and 57 more fire stations, including river stations in addition to 28 rural fire stations (fire posts) were sanctioned by Government in 1978, when it was segregated from Police Department and came into being as an independent organisation and after its last reorganisation in the year 1978, the department reached to manpower strength of 3582 by creation of 422 posts at various occasions including 351 posts pursuant to the creation of 08 new districts; and the strength of fire and emergency stations as on date has reached to 175 out of which 69 stations have been established by internal SWP no.892/2017 Page 6 of 18 7 adjustment out of the available resources by withdrawing the manpower from existing stations due to which the department has spread thin. As regards staff, respondent no.2 asserts that the department has a Skelton staff both at gazetted and non-gazetted levels and in order to cope up with the present days, demands in view of population explosion followed by urbanisation, industrialisation, there is an imperative need to strengthen the department and the nominal strength needs to be supplemented. Taking into consideration acute shortage of manpower, the Government prioritized 43 already established fire and emergency stations out of 69 stations established by internal adjustment and had approved their regularisation, for which a detailed proposal was submitted and the Planning and Development Department agreed to regularisation of 43 "D" Category stations, which are functional by internal adjustment and had agreed to creation of 731 posts as against requirement of 1248 posts of various categories in a phased manner during 11th Five Year Plan. It is also mentioned therein that besides requirement of more than 1200 posts for existing stations, SWP no.892/2017 Page 7 of 18 8 the position of department has aggravated due to vacancies of 1237 posts and 43 more service personnel are retiring during 2016 which will further put stress to the existing set up. In view of rapid urbanisation of the State and in order to implement various cabinet-cum-Board decision, it is made mention of therein that there is an urgent need of establishment of more fire and emergency stations, for which department has recommended establishment of 95 more stations on the basis of norms laid down by the Standing Fire Advisory Council, Ministry of Home Affairs, Government of India. The department, as such, in view of the acute shortage of manpower is at a breaking stage and in order to provide succour, needs immediate attention of the authorities by way of strengthening of existing manpower requirements besides an urgent review of the cadre strength of the department is imperative to bring the department back on rails.
9. Respondent no.2 vide Letter no.PS/DF&ES/Re-org/2016/ 29 dated March 13, 2017, addressed to respondent no.1, again disclosed that the department reached to a stage where there would be no other option but to merge SWP no.892/2017 Page 8 of 18 9 different stations for want of drivers or otherwise keep few fire tenders off road and besides 69 fire and emergency stations have been established, thus, further depleting manpower. Another letter dated April 19, 2017, learned AAG refers to, is addressed by respondent no.2 to respondent no.1, intimating that most of fire and emergency stations have single driver and retirement of drivers will result in inability of department to run these stations and that the department has reached to a stage where drivers are not even spared to avail shift off and casual/earned leaves as most of the stations require standby arrangements to remain functional and the issue of dearth/shortage of manpower has reach to an alarming stage and if not attended to fill up the shortages, the department may crumble any time during any operation. The shortage of manpower, as pointed out in the letter, has created a situation where posting of officers is done to simply fill gaps, besides, at times do not allow use of machinery and equipments to its optimum utilisation and the supervisory officers including Station Officers and Sub Officers (Station Incharge), besides Divisional Fire Officers SWP no.892/2017 Page 9 of 18 10 are very near to the age of retirement so the swiftness and agility at the times has been found missing in them during operations and the situation can lead to break of our operational capabilities as the first responders in case of emergencies especially due to impending retirement of 127 employees, including drivers during current year and 1328 vacancies could not be filled up till date. He again refers to order no.264-DF&ES of 2017 dated May 08, 2017, issued by respondent no.2, whereby officers/officials, posted in Direction Office, have been transferred and directed to report to Deputy Director Fire & Emergency Services Command Srinagar, for further posting. It has been enjoined in the said order upon all Range officers/ Command officers that in order to augment manpower of station level for operational duties, they shall disengage most of members of executive staff posted in the offices and any unavoidable arrangement required shall necessarily have prior approval of competent authority and all those executive members posted in offices under the orders of competent authority shall also remain available on call to attend operational duties.
SWP no.892/2017 Page 10 of 18 11
10. From the above references and communications produced by learned AAG, it becomes unequivocally clear that it is not first time or for that matter it is not only present petitioners, who have been transferred and/or kept available in Fire and Emergency Service Stations for attending operational duties, but having regard to paucity of staff, the officers/officials of respondent department have been transferred and kept available in Fire & Emergency Service Stations. Therefore, the contention of petitioners that their transfer is mala fide, is specious. All what has been done by respondent department from the above discussion, is in a bona fide and particularly for attending the emergent operational duties. Thus, impugned order needs no interference.
11. Order impugned, as is discernible from its bare perusal, has been passed in order to cope with predicament faced by it due to paucity of staff. Impugned order is not an exception but a general order that has been passed in continuation to earlier orders, as such, cannot be called to be either mala fide or arbitrarily and it is for the employer to decide as to how services of a particular employee can be better utilized SWP no.892/2017 Page 11 of 18 12 and the Courts cannot substitute their opinion in this regard. In these circumstance, the plea of wrong transfer and posting would also not be available to the petitioners.
12. It is well settled in law that executive instructions and government orders are subject to Statutory Rules and the Legislature, who framed the Rules, cannot delegate its power to the authorized officer or executive and the executive can issue Government orders only within the bounds of the Rules. The Full Bench of this Court in Syed HIlal Ahmad & ors vs. State of J&K & ors reported in SLJ 2015 (I) 01, has held that a government servant has no enforceable right to insist that he/she shall be permitted to serve for definite/specific period in a particular station or a post.
13. Apart from the above, it is very sad state of affairs that petitioners, like persons, are trying to elude responsibilities that are cast upon them the moment they join government service. It cannot be said that it is unknown to anyone that today's youth, particularly in J&K State, which has limited resources, are facing alarming unemployment and they are ready to serve and work not only in any part of the Country SWP no.892/2017 Page 12 of 18 13 but outside the Country as well. Such unemployed youth leave their families here and work 1000 kilometres away from their families, whether their families are in distress or ease. Then how come petitioners, like persons/ employees, be permitted to make lame excuses of not working or serving the State and its people even at a distance of, say, 10 or 20 kilometres, within a District. In the present case, petitioners are not ready and willing to work within the same office. They have been, in view of necessity that has generated due to shortage of staff, asked to work in the same office but in attending operational duties.
14. Respondent department is Fire and Emergency Services Department. Respondent department is governed by the Jammu and Kashmir Fire Force Act, 1967. Superintendence and control of respondent department, as is envisaged in Section 5 of the Act, vests in the Director. Appointment of members in respondent department, as Section 6 of the Act provides, is to be made by the Director or such other officer of the Force as the Government may authorise him in this behalf. Section 9 of the Act provides that the Government may make such orders for providing force SWP no.892/2017 Page 13 of 18 14 with appliance and equipment and for speedy attendance of members of the force with necessary appliances and equipment on the occasion of any alarm or fire or for the employment of the members of the force in any rescue, salvage or other similar work. Not only this Section 27 envisions that the Director may on the occasion of a fire or other emergency in any neighbouring area in which the Act is not in force, order despatch of member of the force with necessary appliances and equipments to carry on fire- fighting operations in such neighbouring area and thereupon all the provisions of this Act and the rules made thereunder shall apply to such area, during the period of fire or emergency or during such period as the Director may specify. Even in terms of Section 28 it is lawful for the Government or any officer authorised by the Government to employ the force in any rescue, salvage or other work for which it is suitable.
15. Respondent department is regulated by the Jammu and Kashmir Fire Force Regulations and Recruitment Rules, 1990. Function of the Fire Force, as broadly defined under Rule 2(d) of the Rules, shall be extinction of fire and SWP no.892/2017 Page 14 of 18 15 protection of life/property in case of fires the statutory duties placed on the Fire Force under the act and fire duties and special service which covers the wide variety accidents and/or other emergency situations in which assistance is sought from the Fire Force. Rule 2 (g) says that 'member' means a person appointed to a post in the Force under the provisions of the said Rules. The appointment in respondent department is made like Police Department and not like one that is made in other administrative services. Rule 5 provides qualification and method of recruitment. It provides that the candidates appointed in the force shall have to satisfy the Departmental Recruitment Board of his ability to carry a person weighing between 63.5 and 75.5 kilograms to a distance of 91.44 metres in a time not exceeding 60 seconds; is to run two and half kilometres within 12 minutes; is to perform twenty-five bent knee sit ups within 90 seconds; shall, from a completely extended arm position, pull the body upward so as to chin the horizontal bar being grasped by the hand, palm away, a total of five consecutive times; shall, when given a beam secured to the level floor and masonry seven SWP no.892/2017 Page 15 of 18 16 metres long by seven to ten cm. wide and given a length of firehose weighing at least 17 kilograms, shall walk the length of beam, carrying the length of the hose, without falling off or stepping off the beam; and is also to executed a Bond after his selection to serve at least for seven years in the service after completion of required training course. While having glance of Schedule I to the Rules, it puts at rest the contention of learned counsel for petitioners that by impugned order petitioners have been lowered in grade. Schedule I of the Rules furnishes strength and composition of the service. It provides that posts of Selection Grade Fireman/Fireman, and Storeman carry same scale of pay/grade. Thus, petitioners' anxiety is looked after and they need not to be fretful of assignment of work in terms of impugned order. Worth to be seen is Schedule II-B (Technical/Lower Subordinate) to the Rules. The said Schedule reflects the mode and manner for filling up the posts either by direct recruitment or by promotion. It unequivocally reflects and shows that for appointment to the post of Barbra/Washer man/Cook/Water Carrier, the candidates, apart from having academic qualification, is to SWP no.892/2017 Page 16 of 18 17 qualify the departmental written and practical examination and is also to qualify prescribed physical standards, medical examination and other entry tests as are required for a Fireman. Same is true about the posts of Plumber, Junior Electrician, Vulcanizer, Painter, Tailor/Upholster, Blacksmith, Carpenter, Fitter, Welder, Senior Electrician, therefore, Fireman or Fireman (Store) or for that matter Fireman (Storeman) is not exception. Appendix II to the Rules furnishes requirement for medical examination for candidates for enlistment against executive ranks in respondent department. Appendix V to the Rules provide duties of upper/lower subordinates. It depicts that any other duty, apart from the duties, that relate and are attached to the post the member of the respondent department holds, in ordinary course of service is required to be done by the member, shall be assigned to member of the Force. So petitioners' submission that they are immune from attending the operational duties is tenuous. Impugned order, therefore, need not be interfered with.
16. That being the situation and in view of the above discussion, I do not find any merit in the petition and the SWP no.892/2017 Page 17 of 18 18 same is accordingly, dismissed along with connected MP(s). However, it is made clear that the petitioners' seniority and promotional avenues attached to the posts of Fireman (Store)/Fireman (Storeman) shall not be disturbed. Dismissed.
( Tashi Rabstan ) Judge Srinagar 23rd May 2017 Ajaz Ahmad SWP no.892/2017 Page 18 of 18