Ram Chand & Others vs State Of H.P. & Others

Vivek Singh Thakur, J

Petitioners have approached the Court seeking directions to the respondents to upgrade their posts from Beldar to Shot Firer-cum-Blastman or re-designate the petitioners as Short Firer-cum-Blastman with all consequential benefits including backwages, seniority etc. with effect from the date of issuance of certificate/License of Shot Firer-cum-Blastman to them.

Relevant facts of pleadings are that petitioners were engaged as daily waged Beldars on different dates and their services were regularized w.e.f. 27.11.2008, 26.7.2007, 1.12.2008, 26.7.2007 and 27.11.2008, respectively (Annexures A-1 to A-5). In the year 2007, vide communication dated 12.4.2017 (Annexure A-6) sent from the Executive Engineer, Sundernagar Division to Controller of Explosives, Government of India, names of petitioners were proposed for grant of Shot Firer License, after undergoing training of Short Firer, as required for issuance of License/Certificate of Shot Firer-cum-Blastman.

After completion of requisite codal and procedural formalities as well as compliances, petitioners were granted Shot Firer Licenses (Annexure A-7 to A-11) on 11.5.2017.

It is case of the petitioners that after issuing Licenses, work of Shot Firer-cum-Blastman was extracted from them, but their post was neither upgraded nor they were appointed/posted as Shot Firer-cum-Blastman, despite the fact that their services as such were essential for carrying out road construction work as required, under the provisions of the Explosives Act, 1984 and Explosive Rules, 2008 made thereunder. It has been contended on behalf of petitioners that in absence of petitioners, no road construction work could have been carried out.

According to the petitioners, they fulfill requisite qualification and criteria as prescribed in the Recruitment and Promotion Rules (Annexure A-14), applicable to the post of Shot Firer-Blastman. It has been further submitted that despite having enabling provisions in the Recruitment and Promotion Rules, regarding relaxation clause to ensure compliance of the laws made by the Union of India, respondents neither upgraded the post of petitioners from Beldars to Shot Firers or re-designated the petitioners as Shot-Firers from Beldars.

Claim of the petitioners was refuted by respondents by filing reply, stating therein that petitioners were engaged daily waged Beldars in the year 1996 in HPPWD Department Sundernagar and their services were regularized during the year 2008 and 2013 but w.e.f. respective dates in the years 2007 and 2008 as per Government Policy. Further that for undergoing training of Shot Firers-cum-Blastman and performing job as such, does not entitle Beldars for promotion or placement to the post of Shot Firers-cum-Blastman.

It is further case of the respondents that there is post of Rock Driller cum-Blastman in the Department, but the same is to be filled as per Recruitment and Promotion Rules framed for the said post. The said post is to be filled 100% by appointment from amongst daily waged Rock Driller-cum-Blastman who have completed at least 10 years of continuous service with minimum of 240 days in a calendar year and failing which by direct recruitment. It has been submitted that there is no provision for placement or promotion of a Beldar to the post of Shot-Firer-cum-Blastman or to the post of Rock Driller-cum-Blastman. Notification dated 5th May, 1995 notifying the Recruitment and Promotion Rules for the post of Rock Driller cum Blastman has been placed on record as Annexure R-1.

It has been further submitted that vide communication dated 20.8.2015, Engineer-in-Chief, HPPWD had proposed amendment in Recruitment and Promotion Rules of Rock Driller-cum-Blastman for providing 30% posts to the Beldars by promotion to the post of Rock Driller-cum-Blastman, who were Matric having 5 years regular service or regular combined with continuous adhoc service and having passed the Shot Firer’s examination form the authorized agency of the Government of India.

As per record made available, in response to the aforesaid communication, Additional Chief Secretary vide communication dated 10.8.2016 had communicated rejection of the proposal to amend Recruitment and Promotion Rules on the ground that cadre of Rock Driller-cum-Blastman was fixed at 36 in numbers and out of that 20 posts were created after 23.11.2006 as personal measure to the incumbents promoted as such, and these posts shall seize automatically on the retirement of such incumbents being a dying cadre and the post of Rock Driller is a Class-III State cadre post. Further that in Public Works Department, total 23579 regular Beldars were working, out of them more than 15% were matriculate and to consider them for promotion to the aforesaid category Seniority List of entire State was required to be prepared and promotions were required to be made in accordance with Recruitment and Promotion Rules and Recruitment and Promotion Rules cannot be amended to accommodate a single or few persons. The claim was also rejected on the ground that now construction of road activity is being performed through contract management system and there was and is hardly any necessity for Department for creation of posts of Blastman etc. Majority of Class-III technical posts so created were and are already surplus because now, even maintenance work is being carried out through Contractors. Therefore, it was communicated that neither there was any necessity for creation of these posts nor Class-IV Beldar category can be made a feeder category to the said post by making amendment in the Recruitment and Promotion Rules.

Plea of the petitioners is that in Rule 11(ii) of the Recruitment and Promotion Rules, there is relaxation clause for daily waged workers already working as Rock Driller-cum-Blastman before coming into operation of these Recruitment and Promotion Rules, declaring them eligible for appointment as Rock Driller-cum-Blastman irrespective of the fact whether their names were recommended by the Employment Exchange or not and notwithstanding anything contained in Rules 7 and 8 of Recruitment and Promotion Rules. Rules 7 and 8 prescribes educational qualification, desirable qualifications and age for eligibility to be promoted as Rock Drillers-cum-Blastman.

Perusal of Recruitment and Promotion Rules depicts that these Rules were framed in the year 1995. Petitioners were engaged as daily waged Beldars after 1996 and their services were regularized during 2008 and 2013 but w.e.f. respective dates in 2007-2008.

Petitioners were engaged after notifying the Recruitment and Promotion Rules, whereas this clause is applicable to the persons working before coming into operation of these Recruitment and Promotion Rules. Therefore, relevant clause is of no help to the petitioners.

Recruitment and Promotion Rules provides 100% appointment from amongst daily waged Rock Driller-cum-Blastman who have completed 10 years of continuous service and failing which by direct recruitment. The petitioners are not serving as daily waged Rock Driller-cum-Blastman. They have not claimed appointment by way of direct recruitment. It is also apt to record that averments made in the reply that licenses granted to the petitioners were having currency of 5 years, is also not disputed. Therefore, after expiry of currency of license(s), petitioners would have been rendered without qualification, i.e. without licenses, whereas license essentially required for appointing and serving as Shot Firer-cum-Blasman.

It is settled that it is for the employer to decide which post is required to be created, abolished and continued, depending upon the requirement of work to be carried out by the Employer/Department. In the light of observations made and reasons assigned for rejecting proposal for amendment in the Recruitment and Promotion Rules, in communication dated 10.8.2016, by Additional Chief Secretary (Public Works Department), it is apparent that after 2003 the work of blasting is being executed through contractors and material in this regard is also being procured by the contractor itself and as such there is no necessity of continuation or creating the posts of Rock Driller cum Blastman/Shot Firer-cum-Blastman. It is also domain of the employer to determine the feeder category for promotion to a particular post. No doubt, decision of the State being employer, is subject to judicial review by this Court by exercising jurisdiction and power under Article 226 of the Constitution of India, but on certain parameters within the four-corners of the Constitution and service law jurisprudence.

We are of the considered opinion that in the given facts and circumstances of the present case, no case is made out for interference by the Court much less to issue directions to the respondents, as prayed in the petition, by invoking Article 226 of the Constitution of India .

Accordingly petition is dismissed alongwith pending application, if any.