Sanam Kumar & ANR. v. State Of Punjab & ORS
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Date of Decision: 28.05.2014 Sanam Kumar and another
Petitioners
Versus
State of Punjab and others
...Respondents
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# $ % % % Present: Mr.Gaganeshwar Singh Walia, Advocate for the petitioners.
Mr.Ajaib Singh, Additional Advocate General, Punjab for the Respondents % % & The Department of Local Bodies, Punjab issued an advertisement dated 19.01.2014 inviting applications for filling up different categories of posts in the Municipal Corporations, Municipal Councils/ Nagar Panchayats, which included four posts of Assistant Divisional Fire Officers and 18 posts of Fire Station Officers. The qualification prescribed for the posts of Assistant Divisional Fire Officer and Fire Station Officer was as under: Post Qualification Assistant Divisional Fire Officer Advance Diploma in Fire Engineering from National Fire Service College Nagpur Fire Station Officer National Fire Service College, Nagpur.
2 The advertisement specified that for the purpose of selection there would be an objective test of two hours duration consisting of 100 objective type questions with multiple choice answers. The criteria prescribed for the written test was as under: Sr. No.
Subjects Questions 1.
English 2.
General Knowledge/Awareness 3.
Mental Ability/ Aptitude/ Numerical Ability Job Related (As per the minimum qualifications) For every wrong answer 1/4th mark was to be deducted. Selection was to be made as per merit prepared on the basis of written test only. It was indicated that the candidates who qualified for selection on the basis of written test would be called by the Selection Committee for verification of original documents and thereafter list of selected candidates would be put on the department website. Petitioner No.1 has completed the 66 Station Officer and Instructor Course from the National Fire Service College, Nagpur and also passed Advanced Diploma in Fire Engineering from National Fire Service College, Nagpur. He had applied for both the posts of Assistant Divisional Fire Officer and Fire Station Officer. Petitioner No.2, who had successfully cleared the Sub Officers Course from National Fire Service College as also the 68 Station Officer and Instructor's Course from the National Fire Service College applied for the post of Fire Station Officer. Both the petitioners appeared in the
3 written test held on 29.03.2014 and were hopeful of their selection and appointment on the respective posts.
Before the result of the written examination was declared, respondent No.3 (Selection Committee) issued public notice dated 10.05.2014 (Annexure P8). As per this notice, the successful candidates would be additionally required to conform to the physique and physical fitness standards fixed for the posts as under:
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!%%(% !! #)*$ # #% % It was stated that the candidates would be required to appear before the Sub committee constituted for the physical test, the date and time whereof would be intimated separately. Aggrieved of the prescription of the physical standards and physical fitness test through the public notice (Annexure P8), the petitioners have filed the present writ petition impugning the same.
It is contended that such a test is not envisaged in the service Rules, nor was any such condition laid down in the
4 advertisement. It is also contended that the criteria for selection cannot be changed and additional qualifications prescribed, once the selection process is under way. Moreover, the selection committee cannot prescribe any additional criteria.
In the written statement filed on behalf of respondents No.1 and 3, it has been stated that the recruitment and conditions of service of the Assistant Divisional Fire Officer and Fire Station Officer are governed by the Punjab Municipal Corporation Services (Recruitment and Conditions of Service) Rules, 1978 (hereinafter referred to as the `1978 Rules`) in the Municipal Corporations and the Punjab Municipal Services (Recruitment and Conditions of Service) Rules, 1975, (hereinafter referred to as the `1975 Rules') in the Municipal Council/ Nagar Panchayat cadres respectively. The qualification prescribed for the post as per the Service Rules are as under:
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% #% , ! 1% !!4 ,% Apart from these, there are specific physical standards prescribed for all the Fire Brigade Staff in the "Standing Orders, 2004" approved by the Government of India, Ministry of Home Affairs, Directorate General Civil Defence, New Delhi (Annexure R/1).
5 AnnexureD of the Standing Orders stipulates the physical standard for these posts which have been indicated in the impugned public notice. The Selection Committee in its meeting held on 09.05.2014 decided to issue a clarification through a public notice that the candidates would have to fulfil the physical standards as per the Standing Order. Consequently the impugned public notice was issued.
Learned counsel for the petitioners has raised the following contentions:
(i) No physique or physical fitness standards have been prescribed in the Service Rules nor were any such standards prescribed in the original advertisement. No additional qualification can be prescribed once the selection process is under way.
(iii) The Selection Committee cannot lay down any additional qualification.
Ld. Counsel for the respondents to the contrary justified the imposition of the conditions of the physique and the physical fitness standards as having been prescribed for the Fire Brigade Staff in terms of the Standing Orders.
I have heard Ld. Counsel for the parties and perused the record.
The primary question that arises for consideration is whether the Standing Orders relied on by the respondents are applicable to the posts in question.
6 To answer this question the relevant provisions of the Punjab Municipal Act, 1911, (for short "1911 Act"), The Punjab Municipal Corporation Act, 1976 (for short "1976 Act") under which the services in question have been constituted and the Rules governing them have to be noticed.
Section 38 of the 1911 Act, deals with the Constitution of Municipal Services. As per this section, the State Government may, by notification, constitute various classes of Municipal Services and make rules for the recruitment and conditions of service of the members of such service.
Section 38 in so far as relevant is reproduced below: ")
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# %?% As per the provisions of Section 38, the 1975 Rules have been framed by the State Government. These Rules apply to all services specified in Appendix `A'. The posts of Assistant Divisional Fire Officer and Fire Station Officer are mentioned at Sr. No.13 and 15 in Appendix A. Thus, these services are governed by the 1975 Rules.
As per Rule 4, the qualifications necessary for direct
8 recruitment and for promotion to the posts in a service shall be as detailed in Appendix 'B' against that Service. The relevant part of Appendix B is reproduced below:
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% As per these Rules the appointing authority for these posts is the authority specified in Appendix `C'. The relevant part of Appendix C is reproduced below: +%, 0 #
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% %( A perusal of the above Rules makes it clear that the appointing authority for these posts is the Director, Local Government Punjab. The qualification for direct recruitment to the post of Assistant Divisional Fire Officer is Advance Diploma in Fire Engineering from National Fire Service College, Nagpur and for the post of Fire Station Officers the qualification is Diploma in Fire Engineering from the National Fire Service College, Nagpur.
11 Rule 6 prescribes the age on entry and the physical fitness required. The said Rule is reproduced below:
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! #!! %% ( #E! % Apart from the above requirement of producing a physical fitness certificate in the specified form, there is no provision in these Rules for any specific physique or passing of a physical fitness test. There are similar provisions in the 1976 Act and the Rules framed thereunder Besides the Punjab Municipal Services constituted under Section 38, Section 39 enables the Committees to employ other
12 officers and servants. It may assign them such remuneration as it may deem fit and may suspend, remove or dismiss such employees. As distinct from the officers appointed to the Services constituted under Section 38 who are appointed either by the State Government or the Director Local Government, the officers and employees referred to in Section 39 are employed by the Municipal Committee itself.
Section 39 is reproduced below:
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13 that for the prevention and extinction of fire a Committee may establish and maintain a firebrigade, and provide implements, machinery or means of communicating intelligence for the efficient discharge of their duties by the brigade.
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%G Section 240(i) empowers the State Government to make rules prescribing the qualifications required in the case of persons appointed by the Committee to the offices requiring professional skill. As per Section 240 (m) the State Government has the power to make rules for the formation and working of municipal firebrigades; and the provision of implements, machinery or means of communicating intelligence for the efficient discharge of their duties by such brigades.
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In exercise of the powers conferred by Section 240(i) and (m) the State Government has framed The Punjab Municipal Fire Brigade Rules, 1977 (hereinafter referred to as the "1977 Rules"). Rule 3 of these Rules requires every Committee establishing a Fire Brigade to frame standing orders to regulate the formation and working of the Fire Brigade constituted under Section 93. The relevant Rule 3(a) is reproduced below:
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15 By referring to the provisions of Section 240(i) and (m) of the 1911 Act, Ld. Counsel for the petitioners contends that Standing Orders, that are relied upon by the respondents to justify the condition of physique and physical standards do not and cannot apply to the posts of the petitioners. It is his case that the Standing Orders have been framed as required under Rule 3(a) of the 1977 Rules. The 1977 Rules, in turn, have been framed in exercise of the powers under Section 240(i) and (m) which are restricted to prescribing the qualification for persons appointed by a committee to offices requiring professional skill and for formation and working of municipal firebrigades; and the provision of implements, machinery or means of communicating intelligence for the efficient discharge of their duties by such brigades.
It is his case that the post of Assistant Divisional Fire Officer and Sub Fire Officer are Municipal Services constituted by the State Government under Section 38 and the Rules governing these services namely the 1975 Rules have been framed in exercise of powers conferred under Section 38 (2) and Section 240 (nn) of the 1911 Act. The Standing Orders on the other hand having been framed under the 1977 Rules which being referable to Section 240(i) and (m), can and, in fact, only prescribe qualification for the persons appointed by the Committee to posts requiring professional skill or for organizing the fire brigade cannot apply to the posts which are covered by the 1975 Rules.
16 of the 1911 Act and not to the services constituted under Section 38 of the 1911 Act. The above argument of the Ld. Counsel for the petitioner necessarily merits acceptance as it flows from a reading of the provisions of 1911 Act and Rules framed there under. A perusal of Annexure R1 reveals that the Standing Orders have been framed for the formation and working of Fire Brigades in the State as required under Rule 3(a) of the 1977 Rules. They were circulated to all the Municipal Corporations and Municipal Committees for adoption vide communication dated 9.7.2004 after having been duly vetted by the Directorate General of Civil Defence, Government of India, Ministry of Home Affairs. These contain general orders dealing with the formation and working of the Fire Brigades in the State.
As per these orders, the Assistant Divisional Fire Officer, the Fire Station Officer or the SubFire Officer shall be the officers in charge of the Fire Brigade and responsible to the Committee for the strict compliance of these orders, the maintenance of discipline, upkeep of appliances, welfare of staff etc. It contains separate Annexures detailing the powers of members of the Fire Brigade on occasion of Fire/ Emergency call, list of items of uniform of various ranks, the general duties and responsibilities of the various categories of officers namely the Assistant Divisional Fire Officer, the Fire Station Officer or the SubFire Officer etc.
17 or the SubFire Officer, leading fireman, driver/ operators and fireman etc. shall for the purposes of fitness, alertness and suppleness of action, undergo squad, physical and fire drills daily according to the programme as per Annexure E.
Clause 28 states that all appointments and promotions in the fire brigade staff should be made with the prior approval of the Director Local Govt. Punjab in the case of Municipal Council and the Joint Secretary, Local Government Punjab in the case of Municipal Corporations, subject to the qualifications as per Annexure D. Annexure D is reproduced as under:
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!%%(% ! #)*$ # #% <% Thus, apart from what follows on a reading of the relevant provisions of the 1911 Act and the Rules framed thereunder, even on its own terms, the qualification as prescribed in Annexure D and the requirement of physique and physical fitness standard prescribed therein are only for the posts which find mention in Annexure D.
19 These posts are Sub Fire Officer, Leading Fireman, Driver Operators and Fireman. Neither the post of Assistant Divisional Fire Officer nor the post of Fire Station Officer is mentioned therein. Thus, there is no statutory or legal provision, whereby, the physique and physical fitness standards which are a part of the Standing Orders can be prescribed as essential qualification for recruitment to the post of Assistant Divisional Fire Officer or Fire Station Officer. Resultantly, there is no merit in the stand of the respondents that the qualifications in Annexure D of the Standing Orders can be insisted upon for the post of Assistant Divisional Fire Officer or Fire Station Officer .
Apart from the above, Ld. Counsel for the petitioners has argued that additional qualifications cannot be prescribed after the selection process has been initiated and the process is underway. In this regard, he has pointed out that the advertisement was issued on 19.01.2014; the written test for the post was held on 29.3.2014; the result of the examination was declared on 4.7.2014, and the impugned public notice was issued on 10.5.2014 after the written test had been conducted. Ld. Counsel has relied on various decisions of the Hon'ble Supreme Court in ' ()*+,-.. /,
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20 decision of this court in ;
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& 2 The decision in the aforesaid case can be of no help to the respondents. In that case applications had been invited for 530 posts of clerks in the Punjab Civil Secretariat vide advertisement dated 27.7.2011. While laying down the educational qualifications, it was also mentioned that the applicant would be required to pass the type test conducted by the Punjab Government from time to time. The last date for submission of applications was 24.8.2011. Before that, vide notification dated 17.8.2011 the State Government amended Rule 15 of the Punjab Civil Services (General and Common Conditions of Service) Rules, 1994 and requiring the passing of Punjabi Type test prior to appointment to the post, instead of the earlier provision, as per which the type test could be passed within one year of appointment.
The candidates were duly informed by public notice dated 13.9.2011 about the requirement to pass the Punjabi Type test. The written test for selection was held on 1.10.2011. It was in this context that the Hon'ble Court upheld the change in the criteria based on an amendment of the relevant Rules before the last date of submission of the applications, which had been duly intimated to the candidates before the date of exam. The present case is wholly different. Here, the additional qualifications have been specified without any amendment in the applicable Service Rules.
21 written test had already been conducted. Hence, the action is illegal and impermissible.
It was next argued by the Ld. Counsel for the petitioners that the public notice dated 10.05.2014 requiring the candidates to appear before a Subcommittee for the physical test regarding their conformity with the physical standards referred to in the notice has been issued by the Selection Committee. In this regard, it is contended that such action of the Selection Committee is illegal because as per settled law, unless the Rules provide otherwise, the Selection Committee has no jurisdiction to prescribe additional qualifications over and above those laid down in the Rules and the advertisement.
The Ld. State Counsel was asked to produce the records to know on whose authority the public notice has been issued. Photocopies of the original record were produced, which reveal that a meeting of the Departmental Selection Committee was held on 9.5.2015 under the Chairmanship of Sh. Prem Chand, P.C.S., Chairman of the Selection Committee. At this meeting, it was decided that apart from the qualifications prescribed in the Service Rules, the candidates for the posts of Assistant Divisional Fire Officer and Fire Station Officer be required to possess the physical standards as prescribed in the Standing Orders approved by the Directorate General Civil Defence, Ministry of Home Affairs and that a public notice in this regard be got published.
It is thus clear that this public notice was issued only on
22 the authority of the Selection Committee. No provision of any Rule or Statute has been pointed out as per which the Selection Committee could prescribe any additional qualification. So quite apart from the earlier reasons, the public notice is liable to be quashed also on the ground that the action of the Selection Committee in prescribing the additional condition is without jurisdiction. In this regard, reference may be made to ' (3(@6()9-( ?.- /, )4 ) !
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;; % As the public notice cannot be upheld for the above reasons, there is no need to go into the other contentions of the Ld. Counsel for the petitioners that this action is mala fide and discriminatory as such condition has not been insisted upon while making promotions to these posts.
For the aforementioned reasons, this writ petition is allowed. The public notice dated 10.5.2014 (Annexure P8) is quashed. It is directed that the appointments be made as per the procedure of selection, prescribed in the advertisement dated 19.1.2014 (Annexure P1).
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