Punjab-Haryana High Court
Rakesh Kumar And Others vs State Of Haryana And Others on 10 December, 2009
C.W.P. No. 19024 of 2009
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.W.P. No. 19024 of 2009
Date of decision: 10.12.2009
Rakesh Kumar and others
....Petitioners
Versus
State of Haryana and others
....Respondents
CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA
Present: - Mr. N.S. Bhinder, Advocate,
for the petitioners.
*****
VINOD K. SHARMA, J (ORAL)
This writ petition under Articles 226/227 of the Constitution of India is directed against the order dated 30.9.2009 (Annexure P-8), vide which the representation made by the petitioners, in pursuance to the directions issued by this Court, stands rejected.
The petitioners are working as Assistant Fire Station Officers, Leading Firemen, Drivers, Operators and Firemen in different Market Committees in the State of Haryana. The petitioners after having rendered 25 to 30 years of service sought change of cadre to that of Auction Recorder and Clerk etc. by invoking Rule 21 of the Haryana State Agricultural Marketing Board Service Rules, 2008, governing their service conditions.
Rule 21 of the Service Rules, 2008 reads as under: -
"21. Appointing authority shall have the discretionary powers to change the cadre of a member of service provided that the option to the cadre can be exercised C.W.P. No. 19024 of 2009 -2- only once in the whole service by a member."
The prayer made by the petitioners was not accepted, and the representation made against non-consideration of their prayer stands declined by way of impugned order, which is attached as Annexure P-8.
The competent authority recorded a detailed order for rejection of claim of the petitioners, which reads as under: -
"After hearing both the parties, I find force in the contention of the Assistant District Attorney of the Board that no justification or reason whatsoever has been put forth by the petitioners for the change of their cadre of service. A provision in service rules with regard to change of cadre does not create any right in favour of the petitioner unless there is some justification for the same. The petitioners were appointed in the fire services where the nature of duty requires specific skills and an ordinary person without the said skills is not supposed to perform the said duties.
In the Marketing Services of the Board there are different cadres of services and the provision of change of cadres has been made in Rules, 2008 in order to meet out the difficulties faced by the Member of the Services due t specific reasons and such change of cadre can be allowed subject to consideration of the nature of the duties of the cadres. Thus an employee of the cadre of the Board posted as Clerk/Assistant etc. may be allowed to change his cadre of service in the cadre of Market Committees having similar nature of duties, if such employee has genuine problem of maintaining Headquarter in the Board due to specific reasons i.e. illness or other family circumstances. But the case of the petitioners is entirely different as neither any specific reason has been put forth nor the nature of duties of the C.W.P. No. 19024 of 2009 -3- posts has any similarity.
It is also pertinent to mention here that the State Government has enacted the Act of 2009 with the objective to provide for the establishment and maintenance of Fire Service in the State of Haryana and for matters connected therewith or incidental thereto. The aforesaid Act has been enacted with the objective of strengthening the Fire Services in the State of Haryana by way of transfer of service of employees of all the local authorities i.e. Municipal Corporations, Municipal Committees, HSAM Board, HAFED, HSIDC, HUDA, HVPN and all the Authorities where the Fire Stations are established. For the said purpose, a provision has been made in the Act of 2009 under Section 53(1) which is reproduced as under:
"53(1) every whole time employee of a local authority who was employed by such local authority wholly or mainly in connection with the Fire Services of such local authority immediately before the appointed day, shall, on and from the appointed date, become an employee of the Government and shall hold his office under the Government on the same tenure, at the same remuneration and upon the same terms & conditions and with the same rights and privileges as to pension and gratuity and other matters as he would have held the same under the local authority as if its assets and liabilities relating to the Fire Services had not been transferred too the Government and shall continue to do so unless and until his remuneration, terms & conditions are duly altered by the Government."
Besides the provisions of transfer and assets of liabilities of Fire Services of local authority, provident fund and superannuation and delivery of possession of property C.W.P. No. 19024 of 2009 -4- and documents have also been made under Section 50, 51 and 54 of the Act of 2009. Since the services of the petitioners are to be transferred as per provisions of the Act of 2009, the petitioners filed the present representation for change of their cadre for the reason that they are not willing for transfer of their service under the Act of 2009.
As far as the cases of the employees of Municipal Committees which were adjusted in the Board as cited by the petitioners are concerned, the services of those persons became surplus due to abolition of octroi in the State of Haryana. I do not find any merit in the contentions of the petitioners for the reason that the case of the petitioners for the reason that the case of the petitioner is entirely different as there is n abolition of Fire Services and the services of the petitioners have not become surplus for which their cadre should be changed. Rather the services of the petitioner, as per Section 53 of the Act of 2009 are to be transferred on the same service conditions, remuneration and the same rights and privileges as to pension and gratuity and other matters. Moreover many petitioners do not fulfill the requisite eligibility criteria for which they have sought relaxation in Rules 2008, which in my view is not permissible without any justification or reason.
It is also pertinent to mention here that 'safety of public from fire incidents' is the prime objective of the State Government and the interest of the public at large is attached with the said objective. Keeping in view the interest of the public at large it has been decided to strengthen the fire services in the State of Haryana. For this purpose specific provisions has been made for transfer of service f employees of the local authorities who are well qualified, skilled and competent to face the C.W.P. No. 19024 of 2009 -5- happenings of fire incidents due to their nature of duties. It will not be out of place to mention here that as per the Act of 2009 the services of employees of other local authorities is to be transferred and in case the request of the petitioners is allowed for change of their cadre, the possibility of setting up of a precedent for the employees of the other local authorities cannot be ruled out. Be that so, it will frustrate the basic objective of the Act of 2009 i.e. strengthening of fire service in the State of Haryana. The Legislature of the State of Haryana has enacted the Act of 2009 to provide for establishment and maintenance and fire services with the objective of strengthening of fire services and the request of the petitioners is against the spirit of the said Act. Under the garb of change of cadre, the petitioners want to avoid the performance of their duties for which they were appointed. Therefore, I am not inclined to accept the request of the petitioners as it will be against the spirit of the Act of 2009. In view of the facts and circumstances of this case and for the reasons recorded above, I do not find any merit in the representation dated 22.5.2009 (Annexure P-3) of the petitioners and the same is hereby rejected."
The learned counsel for the petitioners has challenged the impugned order, on the plea that by absorbing the services of the employees in the cadre of fire services, their service conditions would be affected, as they would not be entitled to bonus and one month's extra salary, which is being paid to the petitioners, while being employees of the market committees.
This plea of the learned counsel for the petitioners cannot be accepted for the reason that under Rule 21 it is discretion with the employer to allow an employee to change the cadre, depending upon the C.W.P. No. 19024 of 2009 -6- facts and circumstances of each case. Services being rendered by the petitioners are specialized services, therefore, no fault can be found with the decision of the employer in not accepting their request made under Rule 21 of the Service Rules.
Learned counsel for the petitioners contends that the rules can apply only prospectively and not retrospectively. In support of this contention, the learned counsel for the petitioners placed reliance on the judgment of the Hon'ble Supreme Court in Y.V. Rangaiah and others Vs. J. Sreenivasa Rao and others, AIR 1983 Supreme Court 852.
In the judgment, the Hon'ble Supreme Court had merely held that vacancies which occurred prior to the amendment of the rules are government by the old rules and not by new rules, and new rules would not apply retrospectively.
In the present case, there is no such situation, rather whole of the cadre of the petitioners has been taken over by the Government. The advantages, which were available to them would be protected by the Government or they can seek such a relief, but certainly cannot claim that they are entitled to change of cadre by invoking Rule 21 of the Service Rules.
Learned counsel for the petitioners also contends, that vide Annexures P-9 and P-10 one Fireman Sh. Om Parkash and one Driver Operator, Sh. Rajinder Singh, were allowed to change the cadre, therefore, the petitioners cannot be discriminated.
This plea is also not a ground to seek change of cadre, as under
Rule 21 it is the discretion of the employer to allow or not the change of cadre.C.W.P. No. 19024 of 2009 -7-
As observed above, the petitioners being in specialized cadre of fire fighting could not, as a matter, ask for change of cadre to that of Auction Recorder and Clerk etc. in the market committees.
No merit.
Dismissed.
(Vinod K. Sharma) Judge December 10, 2009 R.S.