Punjab-Haryana High Court
Shiv Karan Mehla And Others vs The Commandant General Home Guards & ... on 5 July, 2011
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
CWP No. 10231 of 1990
Date of Decision: July 5, 2011
Shiv Karan Mehla and others
...Petitioners
Versus
The Commandant General Home Guards & Director General, Civil
Defence, Haryana and others
...Respondents
CORAM: HON'BLE MR
MR. JUSTICE M.M. KUMAR
HON'BLE MR
MR. JUSTICE GURDEV SINGH
Present: Mr. Nitin Rathee, Advocate,
for the petitioners.
Mr. Aman Chaudhary, Addl. AG, Haryana,
for the respondents.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
M.M. KUMAR,
KUMAR, J.
1. This petition under Article 226 of the Constitution has been filed against orders dated 30.6.1979 (P-2), 11/15.1.1985 (P-4), 17.5.1989 (P-5), 12.2.1990 (P-7) and 15.5.1990 (P-8), passed by respondent Nos. 1 and 2, promoting the private respondents as Platoon Commander in the Haryana Home Guards. They have also challenged the Haryana Home Guards Rules, 1980 (for brevity, 'the 1980 Rules' as ultra vires of the Constitution. Still further a mandamus has been sought commanding the official respondents not to promote any person from the cadre of ministerial staff CWP No. 10231 of 1990 2 against the posts meant for executive cadre i.e. Platoon Commander and Company Commander.
2. Brief facts of the case are that at the time of filing of the writ petition the petitioners were working as Company Commanders, Platoon Commanders and Havaldar Instructors in the Department of Home Guards, Haryana. On the basis of seniority- list of Havaldar Clerks as it stood on 1.1.1978, respondent Nos. 8 to 11, who were working as Havaldar Clerks, were promoted as Platoon Commanders in the year 1979. In the said seniority-list their names figured at Sr. Nos. 2, 6, 10 and 4 respectively (P-1).
3. The State of Haryana framed the rules, known as the Haryana Home Guards Rules, 1980 (for brevity, 'the 1980 Rules'), under the provisions of the Haryana Home Guards Act, 1974. The petitioners have contended that Rule 32 of the 1980 repealed the Punjab Home Guards Rules, 1963 (for brevity, 'the 1963 Rules') so far as their application to the State of Haryana is concerned. According to them, the 1980 Rules would apply only to part-time employees. It has further been submitted that respondent Nos. 8 to 11 belongs to the Ministerial cadre whereas the post of Platoon Commander belongs to the Executive cadre. According to them both these cadres are separate in all respects such as nature of duties, functions, source of recruitment, training etc. etc. The petitioners have further stated that under the 1963 Rules there was no provision to appoint Havaldar Clerks or Clerks as Platoon Commander and Company Commander. There are separate avenues of promotion for Ministerial cadre and Executive cadre. For example, an incumbent working as a Clerk could be promoted CWP No. 10231 of 1990 3 to the next higher posts of Assistant, Havaldar Clerk, Store-Clerk, Junior Auditor, Accountant, Head Assistant, Office Superintendent and Accounts Officer. However, no person from the Executive cadre could be promoted to the aforementioned posts. Even the minimum qualification for the post of Clerk is only Matriculation and no physical standards for them have been prescribed. Thus, the precise grievance of the petitioners is that persons working on a post under Ministerial cadre could not have been promoted as Platoon Commander and Company Commander.
4. In the written statement filed on behalf of respondent Nos. 1 and 2 one of the preliminary objection raised is that the instant petition is suffered from inordinate delay and laches because the petitioners have challenged the promotion of the private respondents made in the year 1979. On merits, it has been asserted that there is no provision either in the 1963 Rules or 1980 Rules which prohibits promotion of Havaldar Clerks to the posts of Platoon Commander and Company Commander. It has been pointed out that the posts of Accountant, Head Assistant, Office Superintendent, Accounts Officer and Senior Staff Officer exist in the Headquarter Establishment whereas the posts of Havaldar Instructor, Havaldar Clerk, Store Clerk, Assistant to District Commandant, Platoon Commander, Company Commander and District Commandant exist in the Field Establishment. Both of these establishments are maintained separately in accordance with separate seniority lists. Thus, a Havaldar Clerk working in the Field Establishment could only be promoted to the post of Platoon Commander but not to the post of Accountant and Head Assistant. CWP No. 10231 of 1990 4 On the other hand, a Clerk working in the Headquarter Establishment could only be promoted to the higher posts of Assistant or Junior Auditor, Accountant, Head Assistant, Office Superintendent and Accounts Officer. It has been denied that any policy of pick and choose has been adopted in the matter of promotions and there is no violation of the provisions of Articles 14 and 16 of the Constitution.
5. We have heard learned counsel for the parties at length and perused the paper book with their able assistance. The petitioners have not been able to point out any provision either under the 1969 Rules or the 1980 Rules which prescribes the alleged Ministerial cadre and Executive cadre or which debars the official respondents from promoting Havaldar Clerks or Clerks as Platoon Commander and Company Commander. A glance of the said rules shows that neither there is any rule prescribing channel of promotions from one post to another nor any specific qualifications have been mentioned. Therefore, we find no substance in the contention made by the petitioners. In this view of the matter we also do not feel the necessity of examining the vires of the 1980 Rules. There is, thus, no merit in the instant petition and the same is accordingly dismissed.
(M.M. KUMAR) JUDGE (GURDEV SINGH) SINGH) July 5, 5, 2011 JUDGE PKapoor