Md.Nazirul Haque v. The State of Bihar through the Chief Secretary & Ors.

2. Initially, this writ petition was filed by the petitioner for the following reliefs:- (i) For issuance of an order, direction or writ including a writ in the nature of mandamus commanding the respondents to consider the case of the petitioner for promotion to the post of District Commandant, Bihar Home Guards as per the provisions of Bihar Home Guards Rules 1953 without any further delay. (ii) For issuance of an appropriate declaration holding that Bihar Home Guards Service Rules 2005 (Bihar Grih Raksha Bahini Seva Niyamawali 2005) is not applicable in the case of petitioner. (iii) For any other relief(s) to which the petitioners may be found entitled in the facts and circumstances of the present case.

3. However subsequently when the case of the petitioner was rejected vide the minutes dated 10.10.2007 of the Patna High Court CWJC No.11874 of 2006 (11) dt.02-04-201 Proceeding Committee headed by the Commandant General Home Guards, petitioner filed I.A.No.3902 of 2008 challenging the said order dated 10.10.2007 (Annexure-7), which was allowed vide order dated 10.01.2013 and the relief claimed therein was directed to be added to the reliefs claimed in the writ petition.

4. Now the claim of the petitioner has become very short as in the year 2007 when the question of promotion of Inspectors to the posts of District Commandants was being considered there were only 42 Inspectors, out of whom three had already retired and for their promotion recommendations were made on 09.08.2007 (Annexure-6) by the Deputy Inspector General of Police-cum- Deputy Commandant, Bihar Home Guards in which 7 persons being Graduates were recommended for direct promotion, whereas 18 persons including the petitioner were recommended for conditional promotion as they were only Matriculates, whereas other Inspectors in three different groups were found not eligible for promotion. On the basis of the aforesaid recommendation, the impugned order dated 10.10.2007 was passed in the minutes of the aforesaid meeting promoting 7 persons who were found fully fit being Graduates.

5. From the facts and circumstances of the case as well Patna High Court CWJC No.11874 of 2006 (11) dt.02-04-201 as from the materials on record it is quite apparent that prior to coming into force of the Bihar Home Guards Service Rules, 2005 vide Notification of Home (Special) Department, Govt. of Bihar dated 02.09.2005, the relevant Rule was Bihar Home Guard Rules, 1953 in which no educational qualification was fixed for such promotions and Rule 21 thereof only provided that Bihar Police Manual will be followed.

6. In this connection, the relevant provision is Clause 724 A of the Bihar Police Manual and in respect thereof the authority concerned in its order dated 09.08.2007 had specifically stated that in Police Department required qualification for promotion from Inspector to Dy, S.P, was Matriculate and the same was followed in the Home Guard also with respect to promotion from Inspector to District Commandant. Thus, it is quite apparent that before coming into force of 2005 Rules, Matriculation was the minimum required qualification for promotion of Inspectors to the District Commandant in the Home Guards.

7. Now the only dispute which remains to be decided in this writ petition is the claim of the petitioner that requirement of qualification would be governed by the Rule in force on the date on which the vacancy had accrued and not on the date when it Patna High Court CWJC No.11874 of 2006 (11) dt.02-04-201 was filled up or it was considered for being fulfilled. In this connection, he has relied upon three decisions of the Supreme Court in case of Y. V. Rangaiah & Ors. Vs. J. Sreenivasa Rao & Ors., reported in AIR 1983 SC 852; in case of State of Rajasthan Vs. R. Dayal & Ors. reported in (1997) 10 SCC 419 and in case of Arjun Singh Rathore & Ors Vs. B. N. Chaturvedi & Ors. reported in 2007 AIR SCW 6745.

8. On the other hand learned counsel for respondent-State of Bihar and its authorities vehemently opposes the contentions of learned counsel for the petitioner and states that no doubt some posts were vacant prior to coming into force of Bihar Home Guards Service Rules, 2005, but since the petitioner did not possess the required qualification as per 2005 Rules, promotion was not granted to him when it was considered in the year 2007.

9. Learned counsel for the respondents submits that subsequently the petitioner got the required qualification of Hindi Sahityalankar from Deoghar Vidyapith in the year 2009, which was a valid certificate and hence in the year 2009 itself the question of petitioner’s promotion was considered and due recommendation was made, on the basis of which the petitioner was promoted and posted as District Commandant in 2010, from Patna High Court CWJC No.11874 of 2006 (11) dt.02-04-201 which post he retired on 30.08.2011.

10. Hence learned counsel for the respondents argues that the authorities concerned were not against the petitioner and his promotion was considered on several occasions, but since he was not qualified, promotion could not be granted to him and as soon as he obtained the required qualification, he was immediately promoted and on the promotional post he has superannuated in the year 2011. Hence he submits that there is no merit in this writ petition, which is fit to be dismissed.

11. After considering the arguments of learned counsel for the parties and the materials on record, it is quite apparent that the only question, which remains to be decided now, is as to whether the requirement of qualification for promotion would be governed by the Rules in force on the date on which the vacancy had occurred, which in this case is, admittedly, prior to coming into force of 2005 Rules, or it would be governed by the Rules in force on the date when it was considered for being filled up by promotion i.e. 2009.

12. It is not in dispute that prior to coming into force of 2005 Rules, the rule applicable was Bihar Home Guard Rules, 1953, according to which the qualification for promotion to the post of District Commandant was Matriculation, which the Patna High Court CWJC No.11874 of 2006 (11) dt.02-04-201 petitioner possessed and hence he was entitled for promotion on its basis before 2005. It is also not in dispute that the qualification was amended by 2005 Rules, according to which the required qualification for promotion was made Graduate, which the petitioner did not possess before 2009.

13. In the instant case, it is also not in dispute that for the first time the petitioner was considered for promotion in the year 2007 for the said post of District Commandant, which was vacant from much before coming into force of 2005 Rules.

14. The Apex Court in case of Y.V. Rangaiah & Ors. (supra) has specifically held that “vacancies, which occurred prior to the amended Rules, would be governed by the old Rules and not by the amended Rules”.

15. The Apex Court again in case of State of Rajasthan (supra) laid down as follows :- “The vacancies, which occurred prior amendment of the Rules would be governed by the original Rules and not by the amended Rules. Accordingly, this Court had held that the posts, which fell vacant prior to the amendment of the Rules would be governed by the original Rules and not by the amended Rules. As a necessary corollary, the vacancies amendment of the Rules are required to be filled-in in accordance with the law existing as on the date the vacancies arose. ……..…….Even a carried-forward vacancy to be considered in accordance with the law existing unless suitable relaxation that arose subsequent is made by required Patna High Court CWJC No.11874 of 2006 (11) dt.02-04-201 Government”.

16. The Apex Court also considered the matter in case of Arjun Singh Rathore & Ors. (supra), which held as follows :- “We are, therefore, of the opinion that the vacancies which had occurred prior to the enforcement of the Rules of 1998 had to be filled-in under the Rules of 1988 and as per the procedure laid down therein. We are, therefore, of the opinion that the judgment of the learned Single Judge needs to be restored. We order accordingly”.

17. The Apex Court in case of Union of India & Ors. vrs. Tusar Ranjan Mohanti & ors., reported in 1995 AIR SCW 1758, has specifically held that retrospective amendment of Rules takes away the vested rights of candidates and hence the amended Rule impugned in that case to the extent it had been made operative retrospectively is unreasonable, arbitrary and as such violative of Articles 14 and 16 of the Constitution of India.

18. In the said circumstances, this writ petition is allowed and respondent-authorities are directed to consider the case of promotion of the petitioner to the post of District Commandant in Bihar Home Guards as per the provisions of Bihar Home Guards Rules, 1953 from the date he became entitled for promotion on the post, which had been vacant since before

2005. In such case, 2005 Rules will not be applicable to the case of the petitioner and since he has already retired, the authorities Patna High Court CWJC No.11874 of 2006 (11) dt.02-04-201 must calculate the financial benefits, which are admissible to the petitioner on the basis of such promotion. Such financial benefits should be calculated and paid to the petitioner within four months from the date of receipt/production of a copy of this order. (S. N. Hussain, J) MPS/-