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2022 DIGILAW 260 (MEG)

Pawan Rai v. Union of India

2022-09-29

H.S.THANGKHIEW

body2022
JUDGMENT 1. The petitioner No. 1 who is working as a Mazdoor and the petitioner No. 2 who is working as Mali, in the Office of the respondents No. 2 and 3, are before this Court with a prayer, amongst others, for setting aside and quashing the impugned Employment Notice dated 01.10.2018, as far as it relates to the filling up of one post of Fitter (Water Supply) and also for being considered for promotion to the vacancies in the said post. 2. The basis of the claim of the petitioners for promotion to the post of Fitter (Water Supply) is founded on their contention that the same is a promotional post and as such, the Employment Notice dated 01.10.2018, calling for direct recruitment to the said post is without jurisdiction and against the stated policy of the respondents. 3. The petitioners it appears from the records had approached this Court on an earlier occasion, against the same impugned Employment Notice vide WP(C) No. 93 of 2019, and on an affidavit being filed by the respondents, placing reliance on Rule 5(B) (3) and Rule 5(B) (5) of the Cantonment Fund Servants Rules, 1937, had then filed another writ petition being WP(C) No. 383 of 2019, for quashing the aforesaid Rules. These two writ petitions were then subsequently withdrawn by the petitioners with liberty to file afresh. Accordingly, the present writ petition has been filed challenging the validity of the decisions of the Cantonment Board, Shillong. 4. I have heard learned counsels for the parties. 5. Mr. M. Chanda, learned counsel for the petitioners has strenuously argued the case of the petitioners on the premise, that the post that has been advertised is not a direct recruitment post, by referring to the affidavit filed by the respondents filed in WP(C) No. 93 of 2019, where he submits, the respondents have admitted that on earlier occasions, the said post of Fitter was filled up by way of promotion. It is further submitted that except for the Cantonment Board in Shillong, the other Cantonment Boards have promotional avenues for lower grade employees such as Mali, Mazdoor, etc., and also that the post of Fitter is not a direct recruitment post. It is further submitted that except for the Cantonment Board in Shillong, the other Cantonment Boards have promotional avenues for lower grade employees such as Mali, Mazdoor, etc., and also that the post of Fitter is not a direct recruitment post. He submits that the decision of the Cantonment Board to change the promotional post of Fitter into a direct recruitment post is arbitrary and illegal, especially in the absence of any valid notification under the relevant Rules of the Cantonment Board. 6. The learned counsel then submits that the petitioners have also been deprived of any promotion in their careers, which goes against the grain of entitlements of an employee in his service career. In support of this contention, learned counsel has cited the following decisions: i) A. Satyanarayana and Others vs. S. Purushotam and Others reported in (2008) 5 SCC 416 . ii) Food Corporation of India and Ors. vs. Parashotam Das Bansal & Ors. reported in (2008) 5 SCC 100 . iii) Dr. Ms O.Z. Hussain vs. UOI reported in 1990 (Supp) SCC 688. iv) CSIR & Another vs. K.G.S. Bhatt & Another reported in (1989) SCC 635. v) K.K. Roy vs. State of Tripura reported in (2004) 9 SCC 65 . 7. Mr. S.P. Mahanta, learned Senior counsel assisted by Mr. D. Dkhar, learned counsel for the respondents in reply, has referred to the affidavit-in-opposition filed on behalf of the respondents No. 2 and 3, and submits that the post of Fitter (Water Supply) has been declared as a direct recruitment post under the provision of Rule 5(B) (5) of the Cantonment Fund Servants Rules, 1937. He submits that, the claim of the writ petitioners that the said post is a promotional post, is without any basis whatsoever, and a mere perusal of the Memorandum of Settlement, entered into between the Cantonment Boards and the workmen on 13.05.1969, will make it clear that it nowhere says, provides or means that the post of Fitter is to be filled by indirect recruitment, nor does it say it has to be filled up by promotion. He asserts that the submissions of the writ petitioners to the contrary on this aspect is misleading, as in fact, the said Memorandum of Settlement dated 13.05.1969 was entered into, for fixation of the schedule of pay scale and for revision of pay and allowances of the Cantonment employees, and the term 'direct' and 'indirect' was with regard to the equation of the post with the post of State Government employees. 8. The learned Senior counsel then submits that the only source of power for prescribing the qualifications and for classification of posts is under Rule 5(B) (3) and Rule 5(B) (5) of the Cantonment Fund Servants Rules, 1937. In this context, the learned Senior counsel has referred to the 'Statement of Posts under the Cantonment Board within Eastern Command' in respect of which, the GOC-in-Chief is to prescribe minimum qualifications under Rule 5(B) (3) of the Cantonment Fund Servants Rules, 1937, which is annexed at Annexure - 4 to the affidavitin- opposition. He draws the attention of this Court to the said Statement of Posts, wherein at Serial No. 3, the post of Fitter (Water Supply) is shown as a direct recruitment post, with the minimum qualifications prescribed of Primary School Standard Pass and Recruitment Trade Test Pass as Fitter (Water Supply). He submits that the recruitment to the post, is as per the roster maintained, and the employment notice issued specifically calling for applications only from Scheduled Tribe candidates was as per this roster. The learned Senior counsel has also referred to the Reservation Roster Register which is annexed to the writ petition itself, to substantiate this point. 9. With regard to the contention of the petitioners that they have in the entire service career not been afforded any promotion, the learned Senior counsel submits that the petitioners have however, been given the benefit of ACP and MACP, and to substantiate this point has referred to a Paybill for payment of ACP arrears dated 30.04.2018, wherein the petitioners have drawn the arrears as due, and appended their signatures therein. He concludes by submitting that the petitioners have no case as there has been no irregularity in the entire process, and even if the posts could be filled up by way of promotion, he submits, the petitioners were not eligible for lack of qualifications. He therefore prays that the writ petition be dismissed. 10. Mr. He concludes by submitting that the petitioners have no case as there has been no irregularity in the entire process, and even if the posts could be filled up by way of promotion, he submits, the petitioners were not eligible for lack of qualifications. He therefore prays that the writ petition be dismissed. 10. Mr. R. Debnath, learned CGC for the respondent No. 1, has not forwarded any submissions, in view of the fact that the main answering respondent is the Cantonment Board. 11. Having heard learned counsels for the parties, and on perusing the materials on record, the only issue that is to be considered is whether the said post of Fitter (Water Supply) is a promotional post for which the petitioners could have been considered against. The petitioners have tried to make out a case that, the post is promotional, by relying upon the Memorandum of Settlement that had been arrived at on 13.05.1969, for the equation of post between the employees of the Cantonment Board and the State Government. It is seen that under the heading/caption 'whether equated directly or indirectly', the post of Fitter (Water Supply) at Serial No. 16, is shown indirectly equated to Fitter II Class PWD. A plain reading, shows that this does not denote the manner of recruitment but only that there has been an indirect equation of similar posts. As such, the submissions of the petitioners on this point is rejected. On another aspect, it is seen that under the Cantonment Fund Servants Rules, 1937, with regard to classification of post under Cantonment Board, Rule 5-B (5)(ii) has provided as follows: 'Classification of Posts Under Cantonment Boards Under Rule 5-B (5) of Cantonment Fund Servants Rules, 1937 (a) The following principles shall be adopted for classification of posts in different cantonments : - (i) .................... (ii) For technical and skilled posts, the higher post will be declared as a promotion post subject to the condition that wherever there is an indirect equation with corresponding State Govt. post under Memorandum of Settlement, the General Officer-Commanding-in-Chief, the Command will lay down the minimum qualification under rule 5-B (3) of the Cantonment Fund Servants Rules, 1937. In the absence of prescribed educational/ professional qualifications, posts will be filled by direct recruitment.' 12. post under Memorandum of Settlement, the General Officer-Commanding-in-Chief, the Command will lay down the minimum qualification under rule 5-B (3) of the Cantonment Fund Servants Rules, 1937. In the absence of prescribed educational/ professional qualifications, posts will be filled by direct recruitment.' 12. As can be seen from above, this rule vests the power on the General Officer Commanding in Chief, to prescribe the minimum qualifications under Rule 5-B (3), whenever there is an indirect equation with the corresponding State Government post under the Memorandum of Settlement and that in the absence of prescribed educational/professional qualifications, the post was to be filled up by direct recruitment. The respondents therefore by adhering to and implementing this rule, had in the Statement of Post under the Cantonment Board within Eastern Command, accordingly stipulated the qualification apart from indicating that the post was to be filled up by direct recruitment. 13. In this view of the matter, the subsequent action of the respondents in issuing the impugned Employment Notice prescribing the qualifications and reserving the post for a Scheduled Tribe candidate as per roster cannot be faulted with. In the totality of the circumstances therefore, no case has been made out by the petitioners calling for any interference by this Court. As far as, the claim for promotion of the petitioners, this question need not be gone into, inasmuch as, the same falls under a different subject matter altogether apart from the fact that, there is no possibility in law or otherwise, of the petitioners being considered against the post of Fitter (Water Supply) by way of promotion. 14. In view of the foregoing reasons, therefore, there being no merit in the instant writ petition, the same is accordingly dismissed, however, leaving the parties to bear their own costs.