Rai Singh And Others vs State Of Haryana And Others ... on 29 July, 2010

[Cites 4, Cited by 3]

Punjab-Haryana High Court

Rai Singh And Others vs State Of Haryana And Others ... on 29 July, 2010

Bench: Permod Kohli

IN THE HIGH COURT OF PUNJAB & HARYANA AT
              CHANDIGARH

                                              CWP. No. 5165 of 2008
                                              Date of Decision: 29.7.2010.

Rai Singh and others                                       --Petitioners

                           Versus

State of Haryana and others                                --Respondents

CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI.

Present:-   Mr. Namit Kumar, Advocate for the petitioners.

            Mr. R.S. Kundu, Addl. A.G., Haryana for respondent no.1.

            Mr. Anurag Goyal, Advocate for respondents no.2 and 3.

            ***

PERMOD KOHLI.J (ORAL) None has appeared on behalf of respondents no.4 to 6 despite service. These respondents are, accordingly, set ex-parte.

Petitioners no.1 and 2 are ex-service man, whereas petitioners no. 3 to 5 are non-ex-service man. However, all the petitioners are working as Security Guards with the respondent no.3-society. The society has framed the service rules for its employees. Rule 6 of the rules framed by the society deals with the method of recruitment and reads as under:-

" 6. Method of Recruitment:- The method of recruitment will be as under:-

            (a)      By promotion

            (b)      On Deputation

            (c)      Direct Recruitment

            (a)      By Promotion:- By promotion from the

permanent/temporary employees of the societies fulfilling the qualification and experience of the post and having good work and conduct.

CWP. No. 5165 of 2008 -2-

(b) On Deputation:- By taking on deputation from the Govt. or Coop. Sugar Mills in the State of Haryana.

(c) Direct Recruitment:- Direct recruitment through advertisement/Employment Exchange as per instructions of Govt. issued from time to time."

The qualification prescribed for recruitment to various posts under Security Section are as under:-

"Qualifications Security Section.

Sr. No. Category of Post By Direct Appointment By promotion

1. Security Officer (Sup. C) Retired Commissioned -do-

Officer from Army not below the rank of Capt. (Min.) 5 years experience.

2. Clerk (Clerical Grade- Graduate -do-

IV)

3. Jamadar (Semi-skilled) Ex-serviceman with good -do-

health.

4. Watchman (un-skilled) Literate with good health, ex- -do-

serviceman with good health and character classified as exemplary in the discharge certificate.

It is stated that the post of Security Inspector was earlier known as Jamadar and the post of Security Guard was known as Watchman. The next promotion from the post of Security Guard is to the post of Security Inspector. The petitioners claim to be eligible for promotion to the post of Security Inspector in accordance with the rules. Respondent no.3-society, however, appointed respondents no.4 to 6 as Security Inspectors vide order dated 29.12.2007. The petitioners have challenged this order in the present petition. Apart from claiming their right of promotion against the aforesaid post, it is stated that the appointment of the private respondents is de hors the Rule 6 aforesaid.

CWP. No. 5165 of 2008 -3-

In so far the direct recruitment is concerned, it is specifically provided under Rule 6 (c) that the direct recruitment shall be made through advertisement/Employment Exchange as per instructions of Govt. issued from time to time.

From the reply filed by the respondents, it is admitted position on record that no advertisement was ever issued and the names of the private respondents were requisitioned from the Zila Sainik Board. Respondents have attempted to justify the appointment on the ground that since the post is meant only for ex-service man, Zila Sainik Board was the most appropriate organization from where names could be requisitioned. The petitioners have placed on record proceedings of the minutes of meeting of the Board of Administrators of the respondent-society held on 1.11.2008. From the Agenda Item No. 18 it appears that the Board decided to fill up the post of Security Officer by giving an advertisement in the newspapers. It is, thus, contended on behalf of the petitioners that even according to the Board decision and Rule 6 (c) the post could only be filled by inviting applications through advertisement which is otherwise in consonance with Articles 14 and 16 of the Constitution.

The Hon'ble Supreme Court in case of Excise Superintendent Malkapatna, Krishna District A.P. Vs. K.B.N. Visweswara Rao and others reported as 1996 (6) SCC 21 has held that selection of the candidates sponsored by Employment Exchange offends the equality clause of Articles 14 and 16 of the Constitution of India. A similar view has been expressed by Hon'ble Supeme Court in case of The Excise Commissioner, Karnataka & another Vs. V. Sreekanta reported as 1993 (2) SLR 339. CWP. No. 5165 of 2008 -4-

In view of the above legal position, the appointment of respondents no.4 to 6 is violative of Articles 14 and 16 of the Constitution and is liable to be quashed.

This petition is, accordingly, allowed. Appointment of respondents no.4 to 6 is quashed. Consequently, resultant posts shall be filled up strictly in accordance with Rule 6(c) of the service rules concerned. The petitioners are at liberty to apply as and when the process for selection is initiated subject to their eligibility.

Learned counsel for the petitioners submits that the petitioners may be permitted to challenge the rules. Suffice it to say that the petitioners are at liberty to challenge the rules.

(PERMOD KOHLI) JUDGE 29.7.2010.

lucky

Unlock Advanced Research with PRISMAI

Punjab-Haryana High Court