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SANJAY KUMAR & ORS. versus STATE OF HARYANA & ORS.

High Court of Punjab and Haryana, Chandigarh

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SANJAY KUMAR & Ors. v. STATE OF HARYANA & Ors. - CWP-248-2006 [2005] RD-P&H 221 (8 November 2005)

CWP No. 248 of 2006 Page numbers

In the High Court of Punjab and Haryana, Chandigarh.

CWP No. 248 of 2006

Date of decision: 09.01.2006

Sanjay Kumar and others.

....Petitioners.

Versus

State of Haryana and others.

....Respondents.

Coram:- Hon'ble Mr.Justice J.S. Khehar.

Hon'ble Mr. Justice S.N. Aggarwal

Present: Mr. S.K. Jain, Advocate

for the petitioners.

...

J.S. Khehar, J. (Oral).

It is not a matter of dispute, that the petitioners were inducted into service under the Haryana Industrial Security Force Act, 2003 (hereinafter referred to as the Act). Consequent upon the repealing of the Act, all the posts were abolished, whereupon, the services of the petitioners were dispensed with. This action at the hands of the respondents came to be impugned by the petitioners by filing Civil Writ Petition No.9687 of 2005.

The aforesaid writ petition came to be disposed of, by requiring the CWP No. 248 of 2006 Page numbers

respondents to pass a speaking order on the representation addressed by the petitioners. It is, therefore, that the impugned order dated 27.9.2005 (Annexure P-5) has been passed. A perusal of Annexure P-5 reveals, that the following reasons weighed with the authorities in taking the instant decision:-

"1. That the Haryana State Industrial Security Force Act, 2003 (hereinafter called as '2003 Act') was passed in the Assembly in the year 2003. But the '2003 Act' was never enforced by the Government as required under Section 1 (3) of the said Act. Neither the Haryana State Industrial Security Force was constituted by the State Government as required under Section 3 (1) of the '2003 Act'. Consequently, all actions taken to constitute the Haryana State Industrial Security Force Battalions have become void-ab-initio. Even the '2003 Act' has now been repealed by the Haryana Assembly on 20.6.2005 through the Haryana State Industrial Security Force (Repeal) Act, 2005. The repealing Act has been notified by the Government on 29.6.2005 and consequent thereof, all the battalions of Haryana State Industrial Security Force, which CWP No. 248 of 2006 Page numbers

were constituted illegally and irregularly, have been disbanded.

2. That though , the Haryana State Industrial Security Force was yet to be constituted under Section 3 (1) of the '2003 Act' but still the then Director General of Police got sanctioned two battalions of Industrial Security Force from the Government. Against the posts sanctioned in those two battalions, the recruitment of 1400 Constables were advertised by the then Director General of Police, vide office letter No.2218/E(II)-I dated 5.2.2004. Accordingly, 1339 Constables were selected for appointment as constables in HSISF by various Selection Boards constituted by the Director General of Police.

3. That Commandants of 1st and 2nd

Battalions, HSISF were

directed by the Director General of police, vide office T.P.M.

No.25104-28/E (II) 1 dated 10.11.2004 to offer appointments to the above selected candidates after medical examination and verification of the character and antecedents. This recruitment process was completed in November, 2004 and 621 candidates were appointed in 1st

Battalion and 666 were appointed in 2nd

CWP No. 248 of 2006 Page numbers

Battalion HSISF. Seven candidates joined after 17.12.2004 (after the ban on appointments issued by the Election Commission).

4. That the process of recruitment for two battalions earlier got sanctioned was yet to be finalised and the then Director General of Police got sanctioned three more battalions from Government on 5.3.2004. In those three battalions, total 2050 posts of constables were got sanctioned. Thereafter, a communication was given by the Director General of Police, Haryana to Director Public Relations, Haryana on 22.7.2004 for getting the advertisement published in the newspapers. For making recruitment for all those 2050 posts of constables, the advertisements were issued by the then DGP on 23.7.2004 and 24.7.2004. The Selection Boards constituted by the then DGP undertook the process of selection and selected 1891 candidates as constables. Thereafter, Commandants of the concerned battalions of Haryana State Industrial Security Force were directed by the DGP on 30.11.2004 to offer appointments to above selected candidates after completing medical CWP No. 248 of 2006 Page numbers

examination and verification of their character and antecedents.

As per reports received from field units, out of 1891 selected candidates of constables in HSISF 212 were offered appointments before 17.12.2004 and 1454 candidates were offered appointments are 17.12.2004 i.e. after imposition of Model Code of Conduct and ban on all the selections/appointments by the Election Commission of India.

5. That above said recruitments were made without framing any recruitment rules for HSISF and were in contravention of provisions of '2003 Act' which was also not notified as required under Section 1(3) of the said Act to bring it into force. According to the provisions laid down in '2003 Act', the following terms and conditions were required to be met before the force was raised and personnel were enrolled:- Section 2(e) Force means the State Industrial Security Force constituted under Section-3

Section 3 (1) The Government shall, by notification in the Official Gazette constitute the force to be called "the Haryana State Industrial Security Force".

CWP No. 248 of 2006 Page numbers

Section 4 (i) The Government may appoint a person to be the Director General of the Force and may appoint other persons to be Inspectors General, Deputy Inspectors General, Commandants, Deputy

Commandants and Assistant Commandants of the Force as the Supervisory Officers.

(ii) The Director General and every other supervisory officer so appointed under sub-section (1) shall have and may exercise, such powers and perform such duties as may be prescribed.

Section 5 The Director General or such supervisory officer as may be authorised by the Government shall enroll members of the force in the manner prescribed.

Section 6 Every enrolled member under Section 5 shall be granted, on his appointment, a certificate in the form prescribed under the seal of the Director General or such other supervisory officer as the Director General may specify in this behalf, and the person holding such certificate shall exercise the powers of an CWP No. 248 of 2006 Page numbers

enrolled member of the force and perform such duties as may be prescribed.

Section 7 (1) The Director General shall be the Principal Administrative Officer of the Force subject to over all control of the Government. He shall exercise such powers and perform such duties as may be prescribed.

6. That it is further submitted that the State Government did not appoint any Director General of HSISF as envisaged in Section 4(1), neither duties and powers were prescribed as envisaged in Section 4 (2) of the '2003 Act'. The selections for recruitment were made by Boards consisting of District Superintendent of Police and Deputy Superintendent of Police authorised by Shri M.S. Malik, IPS, the then Director General of Police. However, the State Government has neither appointed Shri M.S. Malik, IPS, as the Director General of Haryana State Industrial Security Force nor authorised him to constitute the Selection Boards for making appointments of the constables in the force. Though Commandants and an CWP No. 248 of 2006 Page numbers

Inspector General were appointed by the State Government, their powers and duties were not prescribed as per Section 6 of the '2003 Act'.

7. That additionally, no enrollment certificate was prescribed as provided for in Section 6 of the Act, and an enrollment certificates otherwise issued are patently illegal and void-abinitio. The selections for recruitment were made by Selection Boards authorised by the Director General of Police who himself was not authorised by the State Government to do so. The appointments were offered by the HSISF Commandants to the selected candidates under the direction of the Director General of Police, Haryana. This was the recruitments were carried our under '2003 Act' which was never enforced by the Government.

8. That it is pertinent to mention here that while sanctioning raising of live Battalions of HSISF vide letter No.16/22/2002-4 HGI dated 4.2.2004 and No.16/22/2002-HGI dated 5.3.2004, the Government had laid down the following conditions:- (i) Department may ensure that there will be no burden CWP No. 248 of 2006 Page numbers

on the State Exchequer and the expenditure incurred will be recovered by way of user charges from the indenting agencies by the department vide its letter No.12229/Acts- 2 dated 8.8.2003 and Finance Department Advice U.O.

No.1/75/2003-3 FGI dated 6.9.2003.

(ii) The department will chalk out a plan for proper deployment of force so that there is no net expenditure on the State Exchequer.

9. That the expenditure incurred on HSISF was to be recovered by way of user charges from the indenting agencies.

However, there has been no significant demand or requisition for deployment of HSISF from any State/Central or Private Undertaking nor there is any possibility of any such demand arising, in future because of the prohibitive cost of deployment of HSISF security vis-a-vis services of private security agencies available. The average monthly expenditure on HSISF Constables which is to be recovered from the indenting agency has been worked out nearly Rs.8,000/- approximately, whereas, security guards are available in the market for about CWP No. 248 of 2006 Page numbers

Rs.3,000/- - Rs.4,000/- PM. Additionally, no plan for deployment of force on the basis of actual demand has been prepared by the department. In case of Central Industrial Security Force of Government of India, before any force is raised and new personnel are inducted, agreements are executed with clients like public sector undertakings etc.

regarding their deployment CISF also conducts security survey of the establishment alongwith the representatives of the managements before working out the personnel requirements.

In case of HSISF, no such exercise was undertaken before the recruitments were made. The demand projections were made in an arbitrary manner without consulting any potential of actual users.

10. That in view of the aforesaid factual background of the case, the entire matter was considered by the Government and the same was also got examined from the Legal Remembrancer.

The Legal Remembrancer advised in the matter as under:- (ii) As per Section 2 (e), force means the State Industrial Security Force constituted under Section 3 sub CWP No. 248 of 2006 Page numbers

section (1) of Section 3 provides that Govern shall, by notification in the official gazette, constitute the force to be called the Haryana State Industrial Security Force.

Such a notification, having not been issued, the force itself has not come in to being or, in other words the force has not been constituted.

(iii) The Government was to appoint the persons to be the Director General, Inspector General, Deputy Inspector General, Commandant, Deputy Commandant, Assistant Commandant of the force as supervisor offices within the meaning of Section 4 (1) of the Act. The members of the force were to be recruitment/enrolled by the Director General or such supervisory officer as authorised by the Government, but in the instant case, neither the Director General was appointed nor any supervisory officer was authorised to enroll members of the force.

(iv) The enrollment was required to be made in the manner prescribed. As per Section 2 (m), the word CWP No. 248 of 2006 Page numbers

'prescribed' means prescribed by rules made under the Act. However, no rules were framed. No method of recruitment/enrollment was stipulated.

(v) As per Section 6 of the Act, every enrolled member was to be granted on his appointment a certificate in the form prescribed under the seal of the Director General or such supervisory officer as Director General may specify in this behalf. Only a person holding such certificate could exercise the powers of an enrolled member of the force but in the instant case, the force itself was never constituted. Director General was not appointed and the manner of recruitment and, the form of certificate was never prescribed by rules.

11. The State Legislature has repealed 2003 Act through the haryana State Industrial Security Force (Repeal) Act, 2005.

The said Repealing Act has been notified on 29.6.2005. In view of the Repealing Act, the Government decided to disband the Haryana State Industrial Security Force Battalions forthwith which were illegally raised in view of the above factual CWP No. 248 of 2006 Page numbers

position.

12. That on 17.12.2004 the Election Commissioner of India announced the schedule of General Elections of State Assemblies of Haryana, Bihar and Jharkhand and informed the State Governments about the election schedule and pointed out that Model Code on conduct had come in to force w.e.f.

17.12.2004 still the selection Boards constituted by Shri M.S.

Malik, IPS, the then Director of Police, continued with the process of making recruitments of constables in Haryana State Industrial Security Force. However, keeping in view the spirit of Model Code of Conduct enforced by the Election Commission of India, the Selection Boards ought not to have continued with the process of recruitment but still 1461 candidates were recruited as constables in Haryana state Industrial Security Force after the imposition of the Model Code of Conduct. Since various other agencies of the State Government including the Selection Boards constituted by the then Director General of Police continued with the process of selections/recruitments of candidates, a communication vide CWP No. 248 of 2006 Page numbers

letter dated 23.12.2004 that the declaration of results of various examinations and interviews is violation of Model Code of Conduct. On the very next date i.e. 24.12.2004 the Election Commission of India addressed another letter to State Government pointing out that while clause VII (vi)(d) of the Model Code Of Conduct prohibited making ad-hoc appointments in Governments, public undertakings etc. the making of appointments on regular basis was even bigger favour and was against the Model Code of Conduct.

13. That since Shri M.S. Malik, IPS, the then Director General of Police has committed various irregularities and was instrumental in making recruitments of constables in Haryana State Industrial Security Force and the State Exchequer has been put to a loss of Rs.19,01,56,876/- therefore, the Government decided to initiate the disciplinary proceedings against him. Accordingly, he was placed under suspension on 14.6.2005. Since the matter is of great public importance, where the State Exchequer has been put to a great loss, therefore, it has also been decided by the government to CWP No. 248 of 2006 Page numbers

appoint a Commission of Inquiry under the Commissions of Inquiry Act, 1952."

We asked learned counsel for the petitioners, whether there was any factual error in the determination at the hands of the respondents, which has been extracted hereinabove, to which, learned counsel for the petitioners states, that there is no factual error in the facts depicted in the extracted portion.

Finding himself in the aforesaid predicament, learned counsel for the petitioners states, that the action of the authorities in repealing the Act, referred to above, is violative of the fundamental rights vested in the petitioners under Article 21 of the Constitution of India, and in violation of the Directive Principles of State Policy, contained in Articles 38 and 41 of the Constitution of India, inasmuch as, the petitioners have been deprived of their right to life through the employment which they had gained under the provisions of the Act. It is not possible for us to accept the aforesaid contention of the learned counsel for the petitioners. Employment will be available only when there is a requirement or need. In the absence of any requirement or need, it is not possible for any citizen to claim or demand any employment. Since the Act under reference was never enforced, the very appointments of the petitioners were not in consonance with law, and CWP No. 248 of 2006 Page numbers

as such, by the repealing of the provisions of the Act, we find that no illegality has been committed by the respondents by terminating the services of the petitioners as the posts against which they were appointed, came to be abolished.

Dismissed.

After the order had been passed, learned counsel for the petitioners pointed out, that despite the fact, that the petitioners had rendered service for a period of 29 days in the month of June, 2005, they have not been paid salary for the aforesaid period. It would be inappropriate for us to take up the instant issue for adjudication. Rather than doing that, we grant liberty to the petitioners to move an appropriate representation(s), claiming wages for the period during which they had discharged their duties, but had not been paid emoluments. If the petitioners make any such representation(s), the same shall be considered and disposed of expeditiously, in accordance with law.

( J.S. Khehar )

Judge.

(S.N. Aggarwal)

Judge.

09.012006

sk.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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