Allowed

Vijender Kumar v. Union of India and Ors.

Punjab & Haryana HC25 Jul 2014CWP/21726/2010

Case brief

AI extract

What is this about?

The High Court allowed a writ petition against the non-mustering of a Constable who successfully completed a Driver & Maintenance course. The court held that eligibility is determined at the time of course completion and unit vacancy availability, rejecting the respondent's claim that sector-level vacancies were required. The invalid action was set aside.

What did the court decide?

Impugned order dated 28.2.2010 set aside; petitioner directed to be remustered as Constable/Driver against first available vacancy in Unit 84 CRPF with batchmates.

Vijender Kumar Vs Union of India… — Pension and Retirement Benefits | Punjab & Haryana HC (2014)

¶1

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

¶2

CWP NO.21726 OF 2010 Date of decision:25.07.2014

¶3

Vijender Kumar

¶4

...............Petitioner

¶5

¶6

Union of India and others

¶7

...............Respondents

¶8

CORAM: HON'BLE MR.JUSTICE JASWANT SINGH

¶9

Present:Mr.Rajeev Anand,Advocate for the petitioner. Ms.Jaspal Kaur Gurna,Advocate for the respondents.

¶10

. Jaswant Singh,J

¶11

Petitioner, a Matriculate was enlisted in the Central Reserve Police Force (CRPF) as Constable (GD) on 18.3.2002. After completing his basic training he was posted to 122 Battalion CRPF and thereafter w.e.f. September 2003 was assigned to 84^th Battalion CRPF under the command of respondent no.4. Since the petitioner was a Matriculate and possessed a Heavy Vehicle Driving Licence and being otherwise eligible, on his willingness for remusteration to Driver trade was sent for Driving and Maintenance (D&M) Course, Serial No.23 conducted from 14.7.2008 to 3.1.2009 alongwith three other Constable (including one Rajbir Singh) by respondent no.4 at C.T.C. Neemuch. The petitioner successfully passed the course alongwith the said three officers as per result dated 20.2.2009 issued by the Principal, C.T.C. Neemuch and forwarded to the Commandant 84^th Battalion vide endorsement dated 25.4.2009 (Annexure P-2). It is stated that the petitioner and the other three fellow Constables who had qualified the

¶12

RAJINDER PRASHAD JOSHI 2015.02.27 09:36 I attest to the accuracy and authenticity of this document High Court, Chandigarh.

¶13

CWP NO.21726 OF 2010 -2-

¶14

D&M Course on their return to the Unit were immediately attached to the MT Wing and given vehicle driving duties. However, no musteration orders were passed. It is stated that similar Constables who had undertaken the D&M Course with the petitioner were issued formal orders of musteration by their respective Units in March 2009 itself and were given seniority from the date of declaration of their result i.e. 20.2.2009 in consonance with the instructions adopted by the department. However, similar treatment was not accorded by the Commandant of their Unit-respondent no.4 to either the petitioner or the said fellow Constable Rajbir Singh on the ground that they had completed 30 years of age and therefore, were not eligible for remusteration. However, subsequently the fellow Constable Rajbir Singh was remustered as Constable(Driver) w.e.f. 3.2.2010 but no such orders have been passed in the case of the petitioner inspite of demand notice dated 27.5.2010 (P-5). Hence the present petition has been filed seeking recruitment/remusteration as Constable (Driver) under the standing order No.11 of 1999 (P-6) with all consequential benefits.

¶15

Upon notice respondents 1 to 4 have filed a joint reply and stated that the petitioner is not entitled for remusteration as per instructions contained in the CRPF standing order NO.11 of 1999 (P6=R1) in view of the fact that he has become above 30 years of age w.e.f. 19.10.2009 as his date of birth is 7.9.1979. It is further stated that the said fellow Constable Rajbir Singh belonged to Scheduled Caste

¶16

RAJINDER PRASHAD JOSHI 2015.02.27 09:36 I attest to the accuracy and authenticity of this document High Court, Chandigarh.

¶17

CWP NO.21726 OF 2010 -3-

¶18

category and therefore, was entitled to relaxation in age and as per amendment made to the standing order (P-6) vide instructions dated 23.12.2005 (R-2) he was eligible for remusteration even after crossing 30 years of age whereas petitioner belongs to General Category and was not entitled to such relaxation. It is further stated that respondent no.4 had passed an order dated 28.2.2010 wherein by noticing that the date of birth of the petitioner as 7.9.1979 and belonging to General Category he has been held to be not eligible for remusteration as Constable (Driver) in terms of instructions (P-6=R-1). Said order (R-3), as is apparent, has not been communicated to the petitioner.

¶19

This Court vide order dated 10.1.2013 had directed the filing of a specific affidavit by the respondents explaining the position regarding the other Constables having been granted benefit of remusteration w.e.f. the date of qualifying the course i.e. 20.2.2009 while denying such benefit to petitioner on the ground that he completed 30 years of age as on 19.10.2009.

¶20

In compliance an affidavit dated 17.5.2013 was filed by Ravinder Singh, Joint Assistant Director(Legal) North West Sector, CRPF, Chandigarh alongwith copy of signal dated 10.7.2008 (R-4) and copy of Order dated 26.3.2013(R-5).

¶21

This Court while hearing the matter on 12.5.2004 had sought information regarding availability of posts of Constable (Driver) in the Unit of respondent no.4 available for remusteration in

¶22

RAJINDER PRASHAD JOSHI 2015.02.27 09:36 I attest to the accuracy and authenticity of this document High Court, Chandigarh.

¶23

CWP NO.21726 OF 2010 -4-

¶24

terms of the policy(P-6).

¶25

Learned counsel for the respondents had sought time to seek instructions in that regard.

¶26

At the time of hearing today a copy of the signal dated 22.5.2014, duly attested, has been produced by the counsel for respondents and the same has been taken on record as Mark-A. A perusal of the same reveals that w.e.f. 20.2.2009 there were vacancies available of Constable (Drivers) in the Unit of petitioner. The relevant position reads as under:-

¶27

CT/DVR in this unit w.e.f. 20.2.2009 till 06/09/2009 is

¶28

furnished as under:-

¶29

	*AUTH*	*POSTED*	*VACANCY*	*SURPLUS*
Feb-2009	34	30	4	NIL
Mar-2009	34	30	4	NIL
Apr-2009	34	37	NIL	3
May-2009	34	35	NIL	1
June-2009	34	34	NIL	NIL
July-2009	34	29	5	NIL
Aug-209	34	26	8	NIL
Sep-2009	34	26	8	NIL

¶30

It is undeniable that for the remusteration of General duty personnel in Tradesmen/Technical cadre the eligibility conditions are

¶31

laid in Standing Order No.11/99(P-6). The relevant excerpts of Standing Order NO.11/1999(P-6) are reproduced as under:-

¶32

“STANDING ORDER NO.11/99

¶33

RAJINDER PRASHAD JOSHI 2015.02.27 09:36 I attest to the accuracy and authenticity of this document High Court, Chandigarh.

¶34

CWP NO.21726 OF 2010 -5-

¶35

Subject:RECRUITMENT/REMUSTERATION POLICY FOR 'NG (TRADE/TECH PERSONNEL)

¶36

In supersession of all earlier orders on the subject these orders are issued for compliance.

¶37

TRADESMEN/TECHNICAL PERSONNEL

¶38

Recruitment of Tradesmen and Technical staff has been decentralized. The vacancies of these categories will be filled up under the arrangement of Sector IsGP after observing all due formalities. This should be done as per requirement.

¶39

Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

¶40

The following members of the force come under the categories of technical/tradesmen.

A. Technical

i) Driver

ii)xxxxxxxxxxxxxxxxx

iii)xxxxxxxxxxxxxxxx iv)xxxxxxxxxxxxxxxx

¶45

B. Tradesmen i)xxxx ii)xxx iii)xxx

¶46

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

¶47

GENERAL INSTRUCTIONS FOR DIRECT RECRUITMENT

¶48

1 xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

¶49

¶50

8 xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

¶51

FILLING UP OF VACANCIES BY WAY OF REMUSTERATION

¶52

Eligibility for remustering as Ct/ Dvr

¶53

Must have completed 3 years of service from date of attestation and should be willing for remusteration.

¶54

RAJINDER PRASHAD JOSHI 2015.02.27 09:36 I attest to the accuracy and authenticity of this document High Court, Chandigarh.

¶55

CWP NO.21726 OF 2010 -6-

¶56

Minimum educational qualification is Matric.

¶57

Maximum age for remusteration is 30 years.

¶58

All such personnel who are in possession of valid light/ medium/ heavy driving licence could be selected for remusteration.

¶59

Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

¶60

6. After successfully undergoing the D&M Course of six months duration or as prescribed from time to time the Ct/GD mentioned at para 4 & 5 above shall be remustered as Ct/Dvr.

¶61

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

¶62

8. The remusteration of such candidates will be ordered by respective Commandant/ADIGP.

¶63

(emphasis supplied)

¶64

ELIGIBILITY FOR REMUSTERING AS CT(ARMR)

¶65

(a) to (f) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

¶66

ELIGIBILITY FOR REMUSTERING AS HC(RO)

¶67

(a) to (e) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

¶68

ELIGIBILITY FOR REMUSTERING AS CT(FTR)

¶69

(a) to (e) xxxxxxxxxxxxxxxxxxxxxxxxxxxxx

¶70

1)xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

¶71

GENERAL

¶72

1 to 3xxxxxxxxxxxxxxxxxxxxxxxxxxxx”

¶73

Relevant excerpts of affidavit dated 17.5.2013 filed by

¶74

Ravinder Singh, Joint Assistant Director (Legal) North West Sector,

¶75

CRPF,Chandigarh are reproduced as under:-

¶76

“(1) to (3) xxxxxxxxxxxxxxxxxxxxxxxxxx

¶77

(4)That the Director, General,CRPF, New Delhi vide signal No.R-2-15/2008-Pers-II dated 8/7/2008 received through Southern Sector Hqr signal No.R.2-Inst/2008-Adm-3 dated 10/7/2008 clarified

¶78

RAJINDER PRASHAD JOSHI 2015.02.27 09:36 I attest to the accuracy and authenticity of this document High Court, Chandigarh.

¶79

CWP NO.21726 OF 2010 -7-

¶80

that;

¶81

“Soon after completing of D&M course, Constable/GD who declared pass and fulfilled other eligibility conditions/criteria mentioned in the above standing order shall be remustered as Constable/Driver subject to availability of vacancies to the post of Constable/Driver of respective sector and seniority in the trade of Constable/Driver is to be reckoned from the date of remusteration order”. (emphasis supplied)

¶82

(5)to (8) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

¶83

Learned counsel for the petitioner has argued that the eligibility for the remusteration(selection) is to be seen at the time of initiation of the selection process and reliance has been placed upon AP Public Service Commission v B.Sarat Chandra (1990)2 SCC 669 as also Division Bench judgment of this Court in Dr.Neelam Pathak v State of Punjab,1997(2)SCT 346 to support his contentions. It has been contended that the petitioner was fully eligible at the time of his willingness and when he was put through the process of training to complete the process of remusteration upon his successfully qualifying the requisite course on which public money and nation's resources were spent. He has further, in the alternative, argued that the petitioner having successfully passed D&M Course on 20.2.2009 and clear cut vacancies of Constable (Drivers) in his Unit/respondent no.4 available in March, July, August and September 2009, before he attained the age of 30 years in October 2009 was entitled to be remustered as Constable

¶84

(Driver) against first available vacancy.

¶85

RAJINDER PRASHAD JOSHI 2015.02.27 09:36 I attest to the accuracy and authenticity of this document High Court, Chandigarh.

¶86

CWP NO.21726 OF 2010 -8-

¶87

On the other hand, learned counsel for the respondents has argued that at the time of consideration of the case of the petitioner for remusteration as Constable (Driver), he had concededly become overage, in terms of the eligibility conditions as per standing Policy P- 6, having attained 30 years of age in October 2009. She further submitted that the vacancy position has to be seen at the “Sector” level and not at the level of “Unit”, as indicated in the affidavit dated 17.5.2013 filed on behalf of the respondents. Therefore, the contentions of the petitioner are liable to be rejected.

¶88

Having given anxious thoughts to the rival submissions of the parties, this Court is persuaded to accept the pleas raised on behalf of the petitioner.

¶89

Firstly, regarding the argument raised by the respondents based on the clarification issued in Signal Annexure R-4 dated 10.7.2008 attached and incorporated in para 4 of the affidavit dated 17.5.2013 of Sh.Ravinder Singh, Joint Assistant Director (Legal) North-West Sector, CRPF submitted on behalf of the respondents, wherein it is clarified that the remusteration of Drivers will be carried out as per the vacancy position in the “Sector” does not fall in consonance with the scheme and intent of the process of remusteration as given in the Standing Order No.11/99 (P-6) laying down the eligibility conditions for remusteration of Constables(Drivers). The General Duty personnel are taken from their respective units for

¶90

RAJINDER PRASHAD JOSHI 2015.02.27 09:36 I attest to the accuracy and authenticity of this document High Court, Chandigarh.

¶91

CWP NO.21726 OF 2010 -9-

¶92

remusteration as Driver and put through the process of training. The conjoint reading of the Point 6 and 8 of the “Eligibility for remustering as Ct/Dvr” in the Standing Order 11/99 (P-6) as reproduced above provides that after successfully undergoing the Driving and Maintenance Course of six months duration or as prescribed from time to time the concerned Constable General Duty shall be re-mustered as Constable/Driver on the Orders issued by respective Commandant of the unit where such Constable GD is serving. The Commandant being appointing authority for 'Constables” issues such orders in respect of the Constable/GD who is serving under him in the 'Unit' in respect of the vacancies in his 'Unit'. This fact is also evident in the case of other Constable/GD personnel from 137 Battalion CRPF who did training of Driver and Maintenance Course with petitioner in which the respective Commandant 137 Bn CRPF passed order dated 21.3.2010 (P-4) in respect of his unit personnel by appointing them as Constable/Driver in the unit itself and the said Order is stated to have been subsequently modified only to the extent of date of seniority of such personnel. Similarly it has also not been disputed that the Commandant 84 Bn CRPF i.e. the Unit of the petitioner has passed the Orders of remusteration of the other Unit Constable/GD who did training of Driver and Maintenance Course with the petitioner. It is also not in dispute from perusal of Mark”A” that in the intervening period i.e. from the date of declaration of the result of

¶93

RAJINDER PRASHAD JOSHI 2015.02.27 09:36 I attest to the accuracy and authenticity of this document High Court, Chandigarh.

¶94

CWP NO.21726 OF 2010 -10-

¶95

the Driving and Maintenance Course Serial 23 on 20.2.2009 wherein the petitioner qualified the said Course upto October 2009 when the petitioner is stated to have become overage, there were sufficient vacancies available in the unit of the petitioner as detailed in para 4 hereinabove. Therefore, it is declared that the interpretation of the respondents that for remusteration of Constables(Drivers), the vacancy position in the “Sector” has to be seen is totally misplaced and ultra vires the eligibility conditions of the Policy (P-6) and thus illegal. It is also declared that the action of the respondents in not timely considering the case of the petitioner for remusteration as Constable (Driver) inspite of no impediments till he attained 30 years of age and thus became ineligible as suffering from legal mala fide and illegal. It is further held that the petitioner is entitled to be remustered as Constable (Driver) against the first available vacancy in his Unit/respondent no.4, after he had successfully passed the D&M Course on 20.2.2009.

¶96

To be fair to the learned counsel for the petitioner, the cited judgments relate to cases of direct recruitment where the prospective candidates had become overage due to withdrawal and subsequent readvertisement or protracted selection process and therefore, it was held that the eligibility of the candidates is required to be judged with reference to the date fixed in the advertisement since the date has to be definite and determinative otherwise there would be a serious anomaly

¶97

RAJINDER PRASHAD JOSHI 2015.02.27 09:36 I attest to the accuracy and authenticity of this document High Court, Chandigarh.

¶98

CWP NO.21726 OF 2010 -11-

¶99

and uncertainty. Strictly speaking the facts involved in the cited case do not apply in the instant case, however, taking a cue from the judgments of the principle of law involved, the date of passing of the examinations should be the determining factor for consideration for remusteration and it is for the authorities to accordingly provide for by amending the conditions of the policy.

¶100

The argument and objection on behalf of the respondents that remains is that at the time of consideration for remusteration the petitioner was overage in February-March 2010. From the perusal of the Standing Order 11/99 (P-6), it shows that in Para 3 of the Standing Order wherein the categories of Tradesmen/Technical Personnel is given, provides that:-

¶101

The vacancies of technical/tradesmen as defined in Para-3A(iv) (in case sufficient number not available on remustering) and 3B above are to be filled up from open market by respective Zone/Sector as per their vacancy position.

¶102

Para3A(iv) refers to the Technical personnel 'Auto Fitter' and Para 3B refers to the Tradesmen viz. Bugler, Mochi, Carpenter, Tailor, Painter, Mali and Bandsmen. During arguments it has not been disputed that except the above categories, the other Technical Personnel including 'Driver' are primarily taken from re-mustering only. The said procedure apparently is with the objective that the

¶103

Department gets the trained personnel as Technical Personnel who

¶104

RAJINDER PRASHAD JOSHI 2015.02.27 09:36 I attest to the accuracy and authenticity of this document High Court, Chandigarh.

¶105

CWP NO.21726 OF 2010 -12-

¶106

already have the exposure to the combatised role of the Force Personnel and while working as a Technician can assist and supplement in the combat duties in case of emergencies as also for their self defence rather than the General Duty combatised staff defending them in time of need.

¶107

Putting the General Duty personnel through the process of re-musteration as a 'Driver' is primarily and solely based on the suitability, eligibility and aptitude of such personnel as given in relevant portion of the Standing Order. The General Duty Personnel for re-mustering as 'Driver' are imparted Driving and Maintenance Course of 6 months tenure and are trained at the cost of public exchequer as also involving the resources and infrastructure of the Department in addition to diverting the man hours which such General Duty personnel would otherwise have put in performing his combatised duties. After such personnel has been duly trained for remusteration it is the process which is put forth to take action of remusteration on the fulfilling of the training in trade of driving and maintenance of vehicles that the serving candidates are selected and money and resources spent on them. It is equally binding on the authorities that once such personnel complete their training then the process is not delayed in the administrative channels so as to allow the technicalities to crop up and render such personnel ineligible. In the case in hand, the petitioner completed his training in January 2009, the result was declared in

¶108

RAJINDER PRASHAD JOSHI 2015.02.27 09:36 I attest to the accuracy and authenticity of this document High Court, Chandigarh.

¶109

CWP NO.21726 OF 2010 -13-

¶110

February 2009 and it was in October 2009 that the petitioner crossed his age rendering him ineligible. In the given circumstances from the facts on record, the actions and omissions on the part of the respondents are to be deprecated. It also calls for the directions to the respondents that in such utilization of manpower on whom resources are spent and public exchequer is involved should not be allowed to lapse, moreso when vacancies in the Unit are available as also become de-motivational for the manpower who are put through rigors to develop skill for performing duties guarding the sovereignty and integrity of the country. It is hoped that the authorities concerned would issue general directions in that regard for strict compliance so as to safeguard against bureaucratic apathy and delays and further subserve the interest of all the concerned.

¶111

In view of the foregoing discussion, the writ petition is allowed. The impugned action contained in the order dated 28.2.2010 (Annexure R-3) and the order itself is set aside and the petitioner is directed to be remustered as 'Constable/Driver' alongwith his batchmates of Driving and Maintenance Course Batch 23 alongwith all consequential benefits.

¶112

25.07.2014 (Jaswant Singh) joshi Judge

¶113

RAJINDER PRASHAD JOSHI 2015.02.27 09:36 I attest to the accuracy and authenticity of this document High Court, Chandigarh.

Vijender Kumar v. Union of India and Ors.

Case brief

What is this about?

What did the court decide?

Vijender Kumar v. Union of India and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Rajnish Kumar Mehta Vs Pspcl and Ors.

Sonu Kumar and Ors. Vs State of Haryana and Ors.

Sube Singh Vs State of Haryana &Ors

Rajeshwar Dhame Vs Haryana Vidyut Parsaran Nigam Ltd. and Anr.

Pawan Kumar Vs C.B.S.E.& Anr.

Salender Kumar & Ors. Vs State of Haryana & Ors.