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Nand Lal & Others v/s Bhakra Beas Management Board & Others


Company & Directors' Information:- C. LAL LIMITED [Active] CIN = U51909HR2012PLC046499

    CWP No. 2526 of 2009-E

    Decided On, 06 August 2019

    At, High Court of Himachal Pradesh

    By, THE HONOURABLE MR. JUSTICE VIVEK SINGH THAKUR

    For the Petitioners: M/s. Subhash Sharma, Surinder Verma, Arun Kumar, Ashok K. Tyagi, Advocates. For the Respondents: R1 & R2, Naresh K. Sood, Senior Advocate, Aman Sood, Advocate, R3, Vir Bahadur Verma, Central Government Counsel, R4, Anup Rattan, Advocate.



Judgment Text

Vivek Singh Thakur, J.

1. Petitioners herein are Firemen/Leading Firemen, who have joined respondent No.1 Bhakra Beas Management Board (hereinafter referred to as ‘Respondent-Board’ in short) during 1989-1994 on different dates. Respondent-Board used to nominate its employees serving as Firemen/Leading Firemen for doing Sub Fire Officer’s Course from respondent No.3 National Fire Service College, Nagpur (hereinafter referred to as ‘Respondent No.3-College’ in short)

2. It is the case of petitioners that prior to issuance of guidelines (Annexure P-9) for sponsoring Firemen/Leading Firemen for Sub Fire Officer’s Course based upon merit-cum-seniority principle, Respondent-Board had been adopting the criteria of seniority alone for nominating candidates/employees for above referred course. The petitioners have assailed these guidelines (Annexure P-9) on the ground that these are arbitrary as the same are substituting the long lasting principle of seniority by merit-cum-seniority for sending the eligible employees for the above referred course to Respondent No.3- College, which is not mandated by Respondent No.3-College, rather requirement of Respondent No.3-College is that concerned candidate has to produce an undertaking from the sponsoring authority that his nomination has been done strictly in accordance with the seniority and therefore, persisting by Respondent-Board to adhere to the impugned guidelines is arbitrary and also that impugned guidelines are contrary to the requirement of Respondent No.3-College, whereas, it is prerogative of the said College to determine the candidates to whom training is to be imparted in the above said course and as communication Annexure P-5 and application form Annexure P- 13, clearly reflecting that the sponsored candidates have to be sent purely on seniority basis therefore it is not permissible to the Respondent-Board to frame the impugned guidelines.

3. It is further case of petitioner that Respondent-Board is favouring respondent No.4 unduly on the basis of recommendation (Annexures P-6, P-7 and P-8) of politicians and other influential persons, including his father for sending him for aforesaid Sub Fire Officer’s course. It is apprehended that Respondent-Board instead of adopting principle of seniority would be under pressure to recommend the names of juniors on the basis of political or other recommendations.

4. It is also contended on behalf of petitioners that the guidelines (Annexure P-9) have no rationale as the petitioners, who have been serving for more than 10 years with the Respondent-Board, would be pushed behind to the private respondent for promotion to the post of Sub Fire Officer on selection of private respondent and other juniors for the aforesaid course by applying the impugned guidelines and as such, criteria set up for selection in guidelines (Annexure P-9) for nomination, would also prove counter productive to the affairs of Respondent-Board as implementation thereof would deprive the senior persons from promotion to the next post i.e. Sub Fire Officer. It is further grievance of the petitioners that over long years of service, they have considerably lost the youthful virility, which they had at the time of their entry into service, whereas, private respondent is a young man and asking petitioner to compete in such like circumstances alongwith said respondent would be amounting to have a contest amongst unequals, which is not permissible under law.

5. According to the petitioners, arduous tests as referred in guidelines (Annexure P-9) would be putting them in a most disadvantageous position vis-a-vis the private respondent, who is too young to the petitioners, which will be violation of fundamental rights of the petitioners, provided under Articles 14 and 16 of the Constitution of India.

6. Therefore, a prayer has been made for quashing and setting aside the guidelines Annexure P-9 with further prayer for issuing writ in the nature of mandamus directing Respondent- Board to consider the names of the petitioners for sending them to undergo Sub Fire Officer’s Course in Respondent No.3-College, strictly on the basis of seniority.

7. Petition has been contested by the respondents. Respondents No.1 and 2 have filed reply, whereas, respondents No.3 and 4 have not preferred to file reply, but are banking upon stand taken by Respondent-Board.

8. It is contended on behalf of Respondent-Board that there are three functional Fire Stations of Respondent-Board at Sunder Nagar, District Mandi; Nangal, Punjab; and Talwara in Hoshiarpur District, Punjab and earlier Respondent-Board had not framed any policy and guidelines for sponsoring/nominating candidates for undergoing training for various courses from Respondent No.3-College and Firemen/ Leading Firemen, for Sub Fire Officer’s Course, were being recommended on the basis of seniority to the Respondent-Board from establishment of respective Chief Engineers for approval of Chairman of Respondent-Board.

9. It is submitted by learned Counsel for the Respondent-Board that Fire Fighting Service is an essential service of emergent nature and of vital importance, meant to deal with unforeseen immediate emergent exigencies on account of Fire Hazards, accidents or other natural calamities involving fire fighting and rescue operations to save life and property and also prevent and save loss or damages to vital installations, Power Houses, Dams, Generating Units, Equipments, vital Machineries, Buildings and other components of the projects at Sunder Nagar, Nangal and Talwara and to achieve above objective, fire staff is required to be well trained, physically fit, equipped with adequate knowledge and skills for safety measures, Fire Fighting Operations and to deal with other natural calamities and therefore, Respondent-Board has framed guidelines to sponsor the best available candidates for the training of Sub Fire Officer.

10. It is also submitted by learned counsel for the Respondent-Board that though for filling up the post of Sub Fire Officer by promotion amongst Leading Firemen, a person qualified in Sub Fire Officer’s Course from Respondent No.3- College, with two years experience in Fire Service, is eligible to the post of Sub Fire Officer. However, it is not the only mode of promotion to the said post rather as in Bhakra Beas Management Board Class III and Class IV Employees’ (Recruitment and Conditions of Service) Regulations, 1994 (hereinafter referred to as the ‘Service Regulations’ in short), it is also provided that a Leading Fireman shall also be entitled for promotion, who is matric with Fire Course from Ministry of Defence or Home Affairs with four years experience in Fire Service and who is matric without any Fire Course with five years experience in Fire Service and thus it is canvassed that undergoing of Sub Fire Officer’s Course from Respondent No.3-College is not the only criteria for promotion as Sub Fire Officer and therefore, plea of petitioners of marring their chance of promotion by supersession by juniors, after completing Course from Respondent No.3-College, is not tenable.

11. It is further the case of Respondent-Board that no Fireman has been sponsored for training of Sub Fire Officer’s Course in the past, but only Leading Firemen were sponsored and sent to said training and since April, 1995, no one has been sent to undergo training of Sub Fire Officer’s Course from the establishment of Respondent-Board at Sunder Nagar, as no eligible employee came forward for such training and further that seniority was never a criteria approved by competent authority, but during past, senior most eligible employees were being recommended for the training to the aforesaid Course and now keeping in view the requirement of the job, Respondent-Board has fixed a criteria by issuing guidelines to adopt uniform policy for sponsoring/nominating candidates for training to Respondent No.3-College, which is within the domain of Respondent-Board and the letter issued by Respondent No.3-College is not restrictive in nature and does not debar Respondent-Board from considering the employees for sponsoring on the basis of meritcum- seniority, particularly keeping in view the nature and requirement of the post for which training is to be imparted.

12. It is further submitted that apprehension of petitioners, regarding extension of special treatment to respondent No.4, is not based on the true facts as Respondent- Board has never extended any out of way benefit to respondent No.4 nor anybody else has been sponsored for the training in issue. It is also stated that Respondent-Board has devised guidelines to be followed as a matter of policy so as to adopt systematic, transparent sponsorship based on universally accepted principle of merit-cum-seniority so as to impart training to the best available employees.

13. Learned counsel for the Respondent-Board has also placed on record instructions received by him from Additional Superintending Engineer, Sunder Nagar of Respondent-Board vide communication dated 01.08.2019, wherein it is stated that no Leading Firemen/Firemen have been sent to Respondent No.3- College by Respondent-Board from Sunder Nagar for training since the year, 2009. Under further instructions received by him, it is also submitted that like others respondent No.4 has also not been sponsored for the training.

14. It is also argued on behalf of Respondent-Board that as per instructions issued by Respondent No.3-College relied upon and placed on record by petitioners as Annexures P-3 and P-4, maximum age for sending Firemen/Leading Firemen to the training is 35 years and relaxation to such candidate up to 45 years was allowed only for 67th Sub Fire Officer’s Course, which had commenced from 12.07.1993 and none of the petitioners was below the age of 35 years at the time of filing the petition and even if hypothetically it is considered that they would have been entitled for age relaxation, then also only four petitioners, namely Nand Lal (petitioner No.1), Praveen Kumar (petitioner No.5), Prem Singh (petitioner No.10) and Kartar Singh (petitioner No.12) would have been eligible being below 45 years of age at the time of filing the petition, but it is a fact that since 1995 especially after filing of petition in the year 2009, no candidate with or without relaxation of age has been sponsored for the training in question and as of now all of them are not even entitled for relaxation of age. Therefore, they have no right to assail the guidelines and claim sponsorship for training on the basis of seniority.

15. Learned counsel for respondents No.3 and 4 have adopted the arguments addressed on behalf of Respondent- Board.

16. Considering the rival contentions of the parties and going through the record, I am of the considered opinion that petitioners have no case in their favour for issuing writ or direction as prayed for.

17. Document Annexure P-4 relied upon by the petitioners is a memo for imparting inservice training of Fire Services at Respondent No.3-College (National Fire Service College, Nagpur), wherein at Sl. No. 3 qualification/experience requirement for eligibility to undergo Sub Fire Officer’s Course is provided, according to which a person with matriculation educational qualification, below the age of 35 years has been notified to be eligible for sponsorship to the training course. Communication Annexure P-3 relied upon by the petitioners does not create right in favour of an employee for relaxation in age up to 45 years, rather it discloses that relaxation in age up to 45 years was allowed only for 67th Sub Officer’s Course commencing from 12.07.1993. Therefore, as contended on behalf of Respondent-Board all petitioners were over aged at the time of filing present petition and only four of them were below 35 years, whose names would have been recommended only after relaxation. But relaxation was available up to 67th Course only. Relaxation of age cannot be claimed as a matter of right. However, it is also matter of fact that since 2009 no one has been sponsored for training and as of now all petitioners have crossed age of 45 years beyond which relaxation is not available.

18. No doubt, document Annexure P-2 speaks about sponsorship of employee on the basis of seniority-cum-merit and Annexure P-3 indicates sponsorship of Firemen/Leading Firemen on the basis of seniority and also memo Annexure P-4 and communication Annexure P-5 call for sponsorship of employees on seniority basis, however, it does not create any right in favour of the petitioners to insist to adhere to the same practice nor it debars Respondent-Board from framing/issuing guidelines for sponsoring candidates, which are otherwise neither arbitrary nor irrational or unreasonable, but have been framed for sponsoring the best available candidates, who are suitable for training keeping in view the nature and requirement of the job.

19. The Apex Court in Maharashtra Public Service Commission Through its Secretary vs. Sandeep Shriram Warade and others, (2019) 6 SCC 362, has reiterated the well established law as under:-

“9. The essential qualifications for appointment to a post are for th employer to decide. The employer may prescribe additional or desirable qualifications, including any grant of preference. It is the employer who is bet suited to decide the requirements a candidate must possess according to the needs of the employer and the nature of work. The court cannot lay down the conditions of eligibility, much less can it delve into the issue with regard to desirable qualifications being on a par with the essential eligibility by an interpretive re-writing of the advertisement. Questions of equivalence will also fall outside the domain of judicial review. If the language of the advertisement and the rules are clear, the court cannot sit in judgment over the same. If there is an ambiguity in the advertisement or it is contrary to any rules or law the mater has to go back to the appointing authority after appropriate orders, to proceed in accordance with law. In no case can the court, in the garb of judicial review, sit in the chair of the appointing authority to decide what is best for the employer and interpret the conditions of the advertisement contrary to the plain language of the same.”

20. It is also settled that arbitrary, irrational, unreasonable or unconstitutional criteria can be quashed and set aside by the Courts, but where the criteria prescribed by the employer is rationale and having the nexus with the nature and requirement of the job courts are not supposed to interfere with.

21. In present case, nature and requirement of the job, as referred supra in the contention raised on behalf of Respondent-Board, definitely demands young and physically fit officials i.e. Firemen and Leading Firemen, to be promoted to the post of Sub Fire Officers and for the said purpose, Respondent- Board has issued guidelines to select the candidates for sponsoring on merit-cum-seniority basis. As per guidelines, for sponsoring, candidates have to undergo physical Fitness-cum- Trade Proficiency Test. 60% weightage has been provided for Physical fitness standards, which may include endurance test to check the fitness of the employee to undergo rigors of the duty of Fire Brigade Personnel and 40% weightage has been provided to the trade proficiency to be assessed on the basis of suitable written test/viva-voce. Further it is categorically provided in the guidelines that participation for selection process shall be voluntary and this specialized training is not to be treated as ‘Right to All’, but only most proficient in trade, physically fit and agile out of the lot shall be entitled for recommendation for training. There is nothing on record to indicate that any of the clause of the guidelines is arbitrary, irrational, unreasonable or unconstitutional. The plea of petitioners that it would mar the chance of their

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promotion is also not tenable as the promotion is not provided only to the candidates undergone Sub Fire Officer’s Course with Respondent No.3-College, but also to others. There are three modes of promotion. For first mode, providing promotion to candidate with Training from Respondent No.3- College, only difference is candidate with course shall be considered for promotion with two years experience in Fire Service, whereas, in other two modes candidate shall be considered with experience of four years and five years respectively. Eligible petitioners will definitely be considered for promotion after completing the requisite years of service and in fact all the petitioners, as it is their case that they are serving for more than ten years, are eligible to be considered for promotion subject to availability of the posts and fulfilling the other condition/ requirement for promotion. 22. From the information placed on record, it is also evident that respondent No.4 or anybody else has not been sent or sponsored for training from Respondent No.3-College since the year, 2009 i.e. after filing of present petition. Therefore, apprehension of petitioners that Respondent-Board is in preparation to sponsor the name for training on the basis of political recommendations, is misconceived, rather it has come on record that by issuing guidelines, Respondent-Board is trying to evolve fair selection process for sponsoring candidates for training in Respondent No.3-College. 23. In view of the above discussion, I find no merit in the contentions raised by the petitioners, rather find force in contentions put forth by the Respondent-Board and therefore, writ petition is dismissed being devoid of merits. Pending application(s), if any, also stand disposed of.
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