Himachal Pradesh High Court
Parkash Chand vs Principal Secretary And Others on 3 May, 2023
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWPOA No. 4453/2020 Decided on: 03.05.2023 .
Parkash Chand ...Applicant.
Versus
Principal Secretary and others ....Respondents.
..........................................................................................
Coram Hon'ble Ms. Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1 For the petitioner : Mr. Ramesh Sharma, Advocate.
For the respondents
Jyotsna Rewal Dua , J
r :
to Mr. Y.P.S. Dhaulta, Additional
Advocate General.
An offer of appointment was given to the petitioner, for the post of Fireman on contract basis in the Pay Band-II, Rs.5910- 20200 + Grade Pay Rs.1900/- on fixed contractual emoluments of Rs.9875/- per month, vide order dated 16.04.2018. Petitioner, who was serving in the Home Guard Department, felt aggrieved as the emoluments being offered to him as per the offered appointment dated 16.04.2018, were less than being enjoyed by him in the Home Guards Organization, hence, he has instituted this original application for the grant of following substantive reliefs:-
" (i) That the Recruitment and Promotion Rules Annexure A-3 for the post of Fireman in the Department of Fire Services Himachal Pradesh, to the extent of recruitments of Home Guard personnels on contract basis and paying them fixed less salary than the salary they are getting in Home Guard Department may kindly be 1 Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 06/05/2023 20:33:45 :::CIS 2 declared as ultra-virus to the Constitution of India and may kindly be quashed and set aside.
(ii) That the respondent may kindly be directed to amend the rules .
thereby recruit the Home Guard personnels on regular basis and they may kindly be paid salary like regular employee in their Department.
(iii) That during the pendency of this original application the appointment letter may kindly be directed to be considered in continuation till final decision of this original application.
(iv) The record of the case may kindly be called for and after perusal of the same the appropriate direction may kindly be passed to the respondent for amending the rules. Thereby recruiting the Home Guard personnel on regular basis and they may also be paid salary like regular employees."
2. Petitioner was a member of Home Guard Organization.
It is not in dispute that in Home Guard Department, home guard volunteers are enrolled, till they attain the age of 58 years. The home guard volunteers are liable to be called out for duty at any time depending upon their suitability and requirement of the Home Guard Organization. Services of home guards are purely on volunteer basis. A home guard volunteer is paid remuneration as and when he is deployed for duty.
3. The department of Fire Services Himachal Pradesh, is a separate department. Present case revolves around the post of Fireman in the Department of Fire Services. The Recruitment and Promotion Rules for the post of Fireman Class-III (Non-Gazetted) Technical Services, have been placed on record as Annexure A-3.
Clauses 1 to 6 of these Rules read as under:-
::: Downloaded on - 06/05/2023 20:33:45 :::CIS 31 Name of the post Fireman 2 Number of post(s) 384 (Three Hundred Eighty Four) 3 Classification Class-III (Non-Gazetted) Technical Services .
4 Scale of pay i) Pay scale for regular incumbents:
Pay Band Rs.5910-
20200+Rs.1900/- Grade Pay
(ii) Emoluments for contract
employees
Rs.7810/- P.M. as per details given in col. No.15-A 5 Whether "Selection" Non selection post or "Non-
Selection" post 6 Age for direct Between 18 and 45 years:
recruitment Clause-7 of the said Rules, pertaining to minimum educational and other qualifications required for direct recruit(s), reads as under:-
7. Minimum Educational and (a) Essential qualification(s):
other qualifications required for i) Should be a member of Himachal direct recruit(s). Home Guards or
ii) Should have passed at least a Plus Two standard examination of a recognized board or its equivalent.
Or Should have possessed Army 1st Class Certificate.
iii) Should have qualified the basic training course of Himachal Home Guards and the Elementary Fire Course conducted by the H.P. Fire Services Department. The Ex-
Servicemen so sponsored by the Ex-Servicemen Employment Cell, H.P. and appointed to the post of Fireman shall have to qualify the Elementary Fire Fighting Course conducted by the H.P. Fire Services Department within one year from ::: Downloaded on - 06/05/2023 20:33:45 :::CIS 4 the date of appointment failing which he shall not be granted annual increment and shall not be eligible for promotion."
.
Clause 10 of the R&P Rules provides the method of recruitment to the post of Fireman in the following manner:-
10. Method(s) of recruitment, i) 50% by direct recruitment, whether by direct recruitment regular basis or on contract or by promotion, basis, as the case may be .
secondment, transfer and ii) 50% by batch wise from the percentage of post(s) to amongst the candidates be filled in by various possessing essential methods. qualification as prescribed under Col. No.07 above.
Following rule 15-A of the R&P Rules provides for selection for appointment to the post by contract appointment:-
15-A Selection for Notwithstanding anything appointment to the post by contained in these rules, contract appointment contract appointments to the post will be made subject to the terms and conditions given below:-
(1) CONCEPT
(a) Under this policy the Fireman in the Department of Fire Services, H.P. will be engaged on contract basis initially for one year; which may be extendable on year to year basis:
Provided that for extension /renewal of contract period on year to year basis the concerned HOD shall issue a ::: Downloaded on - 06/05/2023 20:33:45 :::CIS 5 certificate that the service and conduct of the contract appointee is satisfactory during the year and only then his/her .
period of contract is to be renewed/ extended.
4. The grievance of the petitioner as submitted by learned counsel for the petitioner is that on 16.04.2018, he was given offer of appointment to the post of Fireman on contract basis on fixed contractual emoluments of Rs.9875/- per month. The emoluments being offered to him, against the post of Fireman, were less than drawn by him as Home Guard. It has been pleaded by the petitioner that he was getting Rs. 19,440/- as wages in Home Guard Department. Post of Fireman being higher than the post on which he was deployed in the Home Guard Department, should have carried higher emoluments. Hence, this petition has been preferred seeking the reliefs drawn above.
5. I have heard learned counsel on both sides.
It appears from the case record that the foundation of the petition is incorrect. The petitioner has assumed that post of Fireman is kind of promotional post for Home Guard volunteers and therefore should carry higher emoluments. However, R&P Rules tell a different tale. Home Guard and Fire Services Department are two separate organizations. In terms of Recruitment and Promotion ::: Downloaded on - 06/05/2023 20:33:45 :::CIS 6 Rules framed for the post of Fireman, a member for Himachal Pradesh Home Guard is eligible to be considered for the post of .
Fireman depending upon his satisfying other eligibility conditions.
The post of Fireman can be filled up 50% by direct recruitment either on regular or contract basis. The other 50% is to be filled up on batch wise basis from amongst the candidates possessing essential qualification as prescribed in Column No.7 extracted above. The post of Fireman is not a promotional post for a Home Guard volunteer. In case, the petitioner is enjoying higher wages in the Home Guard Department, it is for him to take a call as to whether or not he should accept offer of appointment made to him for the post of Fireman, which according to him is to carry lesser emoluments than enjoyed by him in the Home Guard Department. Not every home guard volunteer is enjoying continuous monthly wages. The services of home guard volunteers are all purely on volunteer basis. They can be deployed on duty as per the call of the employer and are paid accordingly. The R&P Rules cannot be held bad simply because they are not advantageous to the petitioner. In case, the terms and conditions of the Recruitment and Promotion Rules for the post of Fireman in the Fire Services Department or the terms of offer of appointment made to the petitioner for post of Fireman are not acceptable to the petitioner then it is for him to not accept the offer of appointment, the Rules cannot be quashed merely on that basis.
::: Downloaded on - 06/05/2023 20:33:45 :::CIS 7For the foregoing reasons, there is no merit in the present petition and the same is dismissed. It is ,however, clarified .
that this order shall not come in the way of petitioner's accepting the offer of appointment made to him by the respondents vide order dated 16.04.2018 (Annexure A-4), if otherwise, permissible in accordance with law. Pending miscellaneous application(s), if any, shall stand disposed of.
Jyotsna Rewal Dua Judge 03rd May 2023 (rohit) ::: Downloaded on - 06/05/2023 20:33:45 :::CIS