Research › Search › Judgment

Gauhati High Court · body

2022 DIGILAW 734 (GAU)

Tommo Nomuk v. State of A. P.

2022-06-30

PARTHIVJYOTI SAIKIA, SANJAY KUMAR MEDHI

body2022
JUDGMENT : SANJAY KUMAR MEDHI, J. 1. The present petition have been filed under Article 226 of the Constitution of India questioning the vires of a particular part of the Leading Fireman (Fire and Emergency Services) (Group C) Recruitment (Amendment) Rules 2013 (hereinafter called the Rules of 2013). The basic contention of the petitioners is that the impugned provision is not in line or at par with their counterpart holding the equivalent post of Head Constable in the Recruitment Rules governing such Head Constables. The petitioners contend that their scope of induction to the post of Leading Fireman has become less favourable by the Amendment and the same is starkly discernible from the Rules of equivalent employment such as Head Constables. 2. Before going to the impugned part of the Rules, the background facts of the case may be stated in the following manner. 3. The petitioners (26 in numbers) have joined together in the present writ petition. It is the case of the petitioners that they were recruited as Fireman in the year of 2007 under the Arunachal Pradesh Police Department and have been working in the said capacity without any blemish. In the meantime, all the petitioners have duly completed the Sub-Fire Officers Course in service. The Arunachal Pradesh Police has different organizational branches like APP Civil Police, APPBN, IRBN and the Fire and Emergency Services. The petitioners contend that the post in which they were initially appointed i.e. Fireman is equivalent to that of Constable and Leading Fireman which is the next promotional post from Fireman is equivalent to the post of Head Constable in the other branch of the Police Department. As per the existing Recruitment Rules namely “Leading Fireman (Group C) Recruitment (Amendment) Rules 2007” the post of Leading Fireman was to be filled up by hundred percent promotions from Fireman. However, it is the contention of the petitioners that as per the impugned Rules of 2013, promotion from Fireman to Leading Fireman has been prescribed by way of 50% by promotion and 50% by Fast Track Promotion on merit through a limited departmental examination. However, it is the contention of the petitioners that as per the impugned Rules of 2013, promotion from Fireman to Leading Fireman has been prescribed by way of 50% by promotion and 50% by Fast Track Promotion on merit through a limited departmental examination. The petitioners contend that juxtapositioned, so far as similar promotion from Constable to Head Constable, the old Recruitment Rules namely “The Head Constable (Civil), (Group C), Non-Gazetted, Non-Ministerial) Recruitment Rules of 2010” prescribed the mode of promotion as 60% by promotion and 40% by Fast Track Promotion through a limited departmental examination. However, in the new Recruitment Rules for Head Constable i.e. Head Constable (General Duty), Arunachal Pradesh Police, (Civil Police/AAPBN/IRBN), (Group C) Non-Gazette, Non-Ministerial Recruitment Rules of 2015 provides for filling up of the post of Head Constable from Constable at the ratio of 90% by promotion and 10% by limited departmental examination. 4. It is the case of the petitioners that against the alleged discrimination, they had submitted a number of representations before the concerned authorities which were not paid any heed to. On the other hand, it appeared that the authorities had taken steps to go ahead with the impugned Amended Rules of 2013. Under such situation, the petitioners had earlier approached this Court by filing W.P. (C) No. 314/2020. The said writ petition was however disposed of vide order dated 17.11.2020 directing the respondent authorities to consider and dispose of the representations of the petitioners within 19.11.2020. 5. Pursuant to the aforesaid direction of this Court, it appears that the representations were considered and disposed of vide order dated 23.11.2020 rejecting the prayer of the petitioners. The petitioners have accordingly filed the present petition questioning the vires of the impugned Amendment as well as for setting aside the order dated 23.11.2020. 6. We have heard Shri L. Perme, learned counsel for the petitioners whereas the State respondents are represented by the learned Senior Government Advocate, Shri S. Tapin. The materials placed before this Court have been duly examined. 7. Shri Perme, the learned counsel for the petitioners has submitted that the impugned Amendment is absolutely arbitrary, unreasonable and whimsical and as such violative of Article 14 of the Constitution of India. The materials placed before this Court have been duly examined. 7. Shri Perme, the learned counsel for the petitioners has submitted that the impugned Amendment is absolutely arbitrary, unreasonable and whimsical and as such violative of Article 14 of the Constitution of India. He contends that a differential class has been sought to be created qua the Fireman aspiring to be promoted to the rank of Leading Fireman and Constables in the corresponding Branches of Arunachal Pradesh Police, who are to be promoted to the post of Head Constables. It is further submitted that the scope of such promotion has been made less favourable inasmuch as, as per the un-amended Rules, recruitment to the post of Leading Fireman was by 100% promotion whereas as per the impugned Amendment, the percentage of promotion has been reduced by half which is without any basis and to the prejudice of the petitioners. 8. To demonstrate the alleged disparity, Shri Perme has drawn the attention of this Court to the Service Rules of 2010 pertaining to the Head Constables (Civil). As per the said Rules, the quota for promotion from the feeder cadre of Constable which is said to be equivalent to Fireman is prescribed as 60%. The contention of the petitioners is that the impugned Amendment being unreasonable and arbitrary is liable to be struck down. 9. Per contra, Shri S. Tapin, learned Senior Government Advocate, Arunachal Pradesh has submitted that the entire basis of the challenge is erroneous both on facts as well as in structuring the challenge. 10. Firstly, the learned State Counsel has submitted that though the pay scales of Fireman and Constables which are the feeder cadre of Leading Fireman and Head Constables may be similar, that by itself would not lead to an inevitable conclusion that the posts are at par. It is submitted that there are number of other posts in the ministerial cadres having the same pay scales and that by itself would not make the posts as par with that of Fireman. It is specifically contended by the learned State Counsel that the functions of the Fireman are wholly different than that of the Constables in the segment of Arunachal Pradesh Police (Civil). It is specifically contended by the learned State Counsel that the functions of the Fireman are wholly different than that of the Constables in the segment of Arunachal Pradesh Police (Civil). The duties in the segment of Fire Service is only connected with fire fighting and it is for this reason that while there is one Recruitment Rules for the other three segments of the Arunachal Pradesh Police namely, Civil, Battalion and Indian Reserve Battalion, the Recruitment Rules for Fire Service is separate and a distinct one. It is therefore argued that the contention regarding any differential treatment or classification is factually unsustainable in law. 11. It is additionally submitted that the Amendment in the Recruitment Rules being a policy decision, unless the same can be demonstrated to be absolutely unreasonable and arbitrary, this Court may not interfere with such policy decision in a routine manner as the same might amount to transgressing into the domain of the legislature. The learned State Counsel further submits that the petitioners have miserably failed to demonstrate such unreasonableness and therefore, no case for interference has been made out. 12. In support of his submissions, Shri Tapin, the learned Senior Government places reliance upon the following case laws: (i) State of Kerala and Others vs. N.M. Thomas, (1976) 2 SCC 310 (ii) Dwarka Prasad vs. Union of India and Others, (2003) 6 SCC 535 13. In the case of N.M. Thomas (supra), the Hon'ble Supreme Court has laid down that reasonable classification is not hit by Article 14 of the Constitution of India. For ready reference, the relevant paragraphs are extracted herein-below: “27. There is no denial of equality of opportunity unless the person who complains of discrimination is equally situated with the person or persons who are alleged to have been favoured. Article 16 (1) does not bar a reasonable classification of employees or reasonable tests for their selection [State of Mysore vs. V.P. Narasinga Rao, (1968) 1 SCR 407 : AIR 1968 SC 349 ]. 28. This equality of opportunity need not be confused with absolute equality. Article 16 (1) does not prohibit the prescription of reasonable rules for selection to any employment or appointment to any office. 28. This equality of opportunity need not be confused with absolute equality. Article 16 (1) does not prohibit the prescription of reasonable rules for selection to any employment or appointment to any office. In regard to employment, like other terms and conditions associated with and incidental to it, the promotion to a selection post is also included in the matters relating to employment and even in regard to such a promotion to a selection post all that Article 16 (1) guarantees is equality of opportunity to all citizens. Article 16 (1) and (2) gives effect to equality before law guaranteed by Article 14 and to the prohibition of discrimination guaranteed by Article 15 (1). Promotion to selection post is covered by Article 16 (1) and (2). .................. 34. The equality of opportunity takes within its fold all stages of service from initial appointment to its termination including promotion but it does not prohibit the prescription of reasonable rules for selection and promotion, applicable to all members of a classified group. [Ganga Ram vs. Union of India, (1970) 1 SCC 377 : AIR 1970 SC 2178 ].” 14. In the case of Dwarka Prasad (supra), the Hon'ble Supreme Court has laid down that a policy decision taken on the Recruitment Rules of a particular service is not liable to be interfered in a routine manner. The relevant paragraphs are extracted herein-below: “16. Normally, where officers are to be drawn for promotion from different posts in the feeder cadre, quota for each post in the feeder cadre is maintained proportionately to the sanctioned strength in that post. This, however, cannot be an inviolable rule of strict application in every case, with any absolute equality of arithmetical exactitude but may vary case to case depending upon the pattern, structure and hierarchies in the Departmental set up as well as exigencies and balancing needs of Administration. There are other relevant considerations, some of which have been mentioned above, which may require departure from the practice of fixation of quota for each post in the feeder cadre, solely proportionate to its strength. 17. In the instant case, on behalf of the UOI, full and overall justification has been shown for fixing only 20% quota for POs as against 75% quota for EOs. 17. In the instant case, on behalf of the UOI, full and overall justification has been shown for fixing only 20% quota for POs as against 75% quota for EOs. It has been stated in the counter-affidavit by the UOI that regular channel of promotion for POs in their own line is to the post of Superintendent (Customs) (Group B) and in that they have 100% promotion quota. EOs and Superintendents (Group C) can claim no consideration for promotion on those posts which are exclusively earmarked for POs. It is submitted that keeping in view the availability of large number of POs with severe competition for them for limited number of posts of promotion in their own line, additional avenue of promotion to the extent 20% has been provided for them outside their own channel and to which otherwise they would not be entitled to. Thus, the amended rules which provide them dual chances of promotion i.e. 100% in their own channel and 20% for the ex-cadre post of Appraisers along with EOs who have 75% quota more than sufficiently takes care of their interests as well and cannot be said to be so arbitrary, discriminatory, unreasonable as to call for interference in these proceedings.” 15. The rival contentions have been duly considered and the materials placed before this Court have been carefully examined. 16. To bring home the contention regarding differential treatment, the initial burden which is required to be discharged by an incumbent is that there is one homogeneous class in which a differential treatment is sought to be given. The onus would than shift on the other side to establish that the said classification is a reasonable one as there is an intelligible differentia and that the same has been done in pursuance of an object to be achieved. 17. Let us now test the present case with the parameters mentioned above to meet a challenge with regard to violation of Article 14 of the Constitution of India. 18. The case of the petitioners, who are Fireman, is that they are at par with the post of Constables in the other three segments of Arunachal Pradesh Police and to substantiate the said point, the parity in the scale of pay has been highlighted. However, what is required to be seen is as to whether only parity in the scales would make the services equivalent and at par. However, what is required to be seen is as to whether only parity in the scales would make the services equivalent and at par. The contention of the State may be referred to answer this query. The State has contended that the functions and duties of Fireman is only related to fire fighting and are wholly different from that of Constables in the other three segments of the Arunachal Pradesh Police. It also transpires that while there is one Recruitment Rule for Fire Service, there are another Recruitment Rules for the rest of the three segments. This Court also finds force in the argument of the State that similar pay scales are also given to certain ministerial posts like LDC/UDC which will not mean that the services are similar. There is no manner of doubt that while a Constable is required to discharge of his duties on a day to day basis, juxtapositioned, the duties of the Fireman are to be performed only in emergency. Of course, the Fireman are required to stay alert at other points of time also but the same is definitely a case which is different from discharge of actual duties. 19. Though in view of the above discussion wherein this Court has arrived at a finding that there is no classification as such in a homogeneous group and therefore the challenge is a misconceived one, this Court has noticed that even on factual aspect the challenge has been erroneously structured. 20. Though a comparison has been sought to be made with the Rules of 2007 and the impugned notification of 2013 with the contention that the scope of promotion has been made less favourable, a careful examination would establish that the said contention apart from being erroneous is also counterproductive for the petitioners. Though in the Recruitment Rules of 2007, in column 11 it was stated that the post of Leading Fireman would be filled up by 100% promotion failing which by deputation, in the procedure prescribed stated in column 12, the percentage of promotion from the Fireman having minimum eight years of service is 25% whereas for Fireman having five years of service in the Grade and have passed the Sub-Fire Officer's Course from NFSC is 75%. On the other hand, in the impugned Recruitment (Amended) Rules of 2013 the percentage of promotion is 50% and rest 50% by Fast Track Promotion on the basis of merit to be adjudged through limited departmental examination. Therefore, it is clear that instead of the scope for promotion as Leading Fireman being less favourable by the impugned notification, the same has become more favourable for such promotion as the percentage has been increased from 25% to 50%. Further, for the rest 50% there is no restriction on the part of the petitioner, who has claimed to have passed Sub-Fire Officer's Course to take part in the limited departmental examination. 21. The learned State Counsel has rightly cited the decision of the Hon'ble Supreme Court in NM Thomas (supra) and Dwarka Prasad (supra) and this Court is in humble obeisance to the proposition of law laid down that in a given case, reasonable classification is permitted and so far as policy decision is concerned, the same is not liable to be interfered with in a routine manner. However, as seen from the above, we do not see that any case of classification itself have been made out. 22. In view of the above, this Court is of the considered opinion that no case of classification, not to talk about unreasonable classification has been made out qua the procedure for promotion to the post of Leading Fireman under the Leading Fireman (Fire and Emergency Services) (Group C) Recruitment (Amendment) Rules 2013. Accordingly, the writ petition is dismissed. 23. No order as to cost.