IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8074 of 2006 RAM SAGAR ACHARYA Versus THE STATE OF BIHAR & ORS ----------- For the petitioner : Mr. Jitendra Pandey, Advocate For the respondents : Mr. S.K.Ghose, Additional Advocate General-II Mr. Rajesh Kumar Singh, Junior Counsel to Additional Advocate General-II ----- P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal ----- Dated, the 11th September, 2008 The constitutional validity of Bihar Home Guards Service Rules, 2005 has been put in issue, principally on two grounds; namely, (one) that the rules virtually create cadre within cadre, particularly rule 4, which is impermissible, and; (two) that the rules have been given retrospective effect. 2. None of the grounds appears to us to have any substance. Rule 4 provides for posts thus: “4. Salaried posts- (1) The uniformed Bihar Home Guards service cadres will consist of the following posts:- Sl.No. Name of Post Promotion/direct appointment/selection post Pay Scale 1. 2. 3. 4. Commandant Cadre - 2 - 1. Senior Divisional Commandant Promotion post 12,000-16,500 2. Divisional Commandant Promotion post 10,000-15,200 3. District Commandant 50% promotion 50% direct recruitment 6,500-10,500 Company Commander Cadre 1. Inspector Promotion post 6,500-10,500 2, Inspector (Transport) Promotion post 6,500-10,500 3. Company Commander 50% promotion 50% direct recruitment 5,500-9,000 4. Company Commander (Armourer) Promotion post for Havildar 5,500-9,000 5. Company Commander (Transport) Promotion post for Havildar (Driver) Grade I 5,500-9,000 6. Jamadar Head Clerk Selection post for Accounts pass departmental examination) personnel of the Havildar ( Clerk) Grade I, Havildar (Instructor) Grade I, Havildar (Clerk) and Havildar Instructor. 4,500-7,000 Havildar Cadre 1. Havildar ( Clerk) Grade I Promotion post for Havildar (Clerk) 4,000-6,000 2. Havildar (Instructor)Grade I Promotion post for Havildar ( Instructor) 4,000-6,000 3. Havildar (Armourer) Grade I Promotion post for Havildar (Armourer) 4,000-6,000 4. Havildar (Driver)Grade I Promotion post for Havildar (Driver) 4,000-6,000 5. Havildar (Clerk)/Havildar Instructor 75% direct recruitment 25% promotion 3,200-4,900 6. Havildar (Armourer) Promotion post for Sepoys trained for Armourer work. 3,200-4,900 7. Havildar (Driver) Promotion post for Sepoy(Driver) 3,200-4,900 Sepoy Cadre - 3 - 1. Sepoy Direct recruitment 3,050-4,490 2. Sepoy(driver) Direct recruitment 3,050-4,590 (i) The earlier sanctioned posts of Naik and Lance Naik have been amalgamatede with the posts of Sepoy. (ii) From amongst the Sepoys, personnel will be trained to do the work of armourer. Only such Sepoys who have been trained as armourer would be considered for promotion to the posts of Havildar(Armourer), according to seniority and fitness. (iii) 25% posts of the cadre strength of Havildar (Clerk) and havildar Instructor will be filled up by promotion of sepoys, whereas promotion to the post of Havildar (Instructor) will be considered on the basis of seniority and fitness. For promotion to the post of Havildar (clerk) departmental examination prescribed in the Police Manual will be taken. The Remaining cadre strength will be filled up by direct recruitment. If sufficient number of fit Sepoys are not available for promotion then with the permission of the govt. direct recruitment percentage may be increased. (iv) Selection to the post of Jamadar Head Cleark will be done as prescribed in these rules form Havildar (Clerk)/ Havildar Instructor/havildar (Clerk) Grade 1/Havildar (Instructor) Grade 1. For selection to the post of Jamadar Head Clerk a departmental account examination will be taken. In this examination only those personnel will be eligible who are at least matric pass. (v) Promotion to the post of Havildar (Armourer) Grade 1 will be done as per seniority from fit Havildar (Armourers). Promotion to the post of Havildar (Clerk) Grade 1 and havildar (Instructor) Grade 1 will be done by seniority and fitness from the gradation list of Havildar (Clerk) and Havildar (Instrcutor). Promotion to the post of Havildar (Driver) Grade 1 will be done from Havildar (Driver). (vi) Promotion to the post of Company Commander (Armourer) will be done from Havildar (armourer) Grade 1 as per seniority and fitness. 50% posts of the cadre strength of the Company Commander will be filled up by promotion on the basis of a joint seniority list of Havildar (Clerk) Grade 1, Havildar (Instructor) Grade 1 and Jamadar Head Clerk as per seniority and fitness. Promotion to the post of Company Commander (Transport) will be done from the Havildar (Driver) Grade 1 as per seniority and fitness. (vii) Promotion to the post of Inspector will be done according to seniority and fitness from a joint gradation list of Company Commander (Armourer) and Company Commander. Promotion to the post of Inspector (Transport) will be done as per seniority and fitness from Company Commander (Transport). (viii) The KALAWADHI for promotion from one post to the other shall be as prescribed by the personnel and Administrative Reforms Department from time to time. - 4 - (ix) The place of physical tests for recruitment to different posts, will be located as directed by the Bihar Staff Selection Commission. (x) The Organizational Chart, of all the above mentioned uniformed grades, is according to Schedule-1. (xi) Only confirmed personnel will be eligible for promotion to the next higher post. (xii) All the above mentioned cadres shall be State level cadres. (2) The Bihar Home Guards organization shall have the following Group- “D” posts.- Sl.No. Name of post Promotion/direct appointment/selection post 1. Record Supplier Direct Appointment 2. Daftari Direct Appointment 3. Peon Direct Appointment 4. Mali Direct Appointment 5. Watchman Direct Appointment 6. Cook Direct Appointment 7. Water Carrier Direct Appointment 8. Washer Man Direct Appointment 9. Barber Direct Appointment 10. Sweeper Direct Appointment 11. Carpenter Direct Appointment 3. Other headquarter level non-uniformed non-gazetted paid posts which are to be filled up on posting by the Personnel & administrative Reforms Department or on appointment on recommendation of the Bihar Staff Selection Commission and the post of Doctor in Central training Institute, Bihta, which is to be filled up on posting by the Health Department, find mention in Schedule-II.” 3. Having a look at the said rule, will show that there is no cadre within cadre. It further shows that Havildar Clerk and Havildar Clerk Grade I are two different posts. Similarly, Havildar Instructor and Havildar Instructor Grade-I are two different posts. Havildar Clerk is required to be filled in by promotion as well as by direct recruitment. 25% of the posts are to be filled in on the basis of departmental examination - 5 - and 75% by direct recruitment. Similarly, the post of Havildar Instructor is to be filled in by promotion as well as direct recruitment. 25% of the posts are to be filled in by promotion and 75% by direct recruitment. 4. From the counter affidavit it transpires that the Rule of 2005 came to be framed under Article 309 of the Constitution of India keeping in view the recommendations of the Fitment Committee and to cope with the present and future requirement of the organization, including disaster management of modern times. The said rules are neither violative of Article 14, nor Article 16 of the Constitution of India. 5. It is not correct to say that the Rules of 2005 are retrospective in nature. Obviously, the vacancy that has remained unfilled has to be filled in under Rules, 2005, but that does not make the rules retrospective. 6. All in all, we are satisfied that the Rules of 2005 does not suffer from any constitutional vice justifying interference by us. 7. Writ petition is dismissed in limine. R. M. Lodha, CJ Kishore K. Mandal, J. Sunil