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2000 DIGILAW 182 (JK)

Sham Devi v. State Of J. &K.

2000-09-05

G.D.SHARMA

body2000
1. The petitioners numbering 39 are Guards-men appointed under the Jammu and Kashmir Home Guards Act, 2006 (Home Guards Act hereinafter). They filed this writ petition on the apprehension that they were likely to be discharged from services to make way for new recruits. The basis for this apprehension was the announcement made by a local Dy. Suptd. of Police that new incumbents will be appointed with effect from 21-08-1995. It was also rumored that a list of Home Guards who were to be discharged and those to be recruited had already been prepared. Further case of the petitioners is that about 90 Guardsmen are likely to be affected by the arbitrary action of the respondents. The plea raised by the petitioners is that having been enrolled as Guardsmen under the Home Guards Act and the Rules framed thereunder they cannot be discharged without following the provisions of the Home Guards Act and the rules. That respondents be restrained from recruiting Guardsmen to replace the petitioners. 2. The stand of the respondents is that under Home Guards Act a Guardman is appointed only for a period of three years and can be discharged any time even before this period. The Act further provides that a Guardsman does not hold a Civil post and is not as such, entitled to any protection under the Constitution as is available to a person holding civil post. The respondents have thus challenged the maintainability of the writ petition because a Guardman has no right to continue after three years. 3. Section 2 of the Home Guards Act provides for Constitution of Home Guards and appointment of Commandant General and Commandant. Section 3 of the Home Guards Act provides that Commandant General or the Commandant as the case may be, shall be the appointing authority of any member of the Home Guards. This section is relevant not only for the purpose to appoint member of the Home Guards, but also with regard to the tenure of the Home Guards or Guardsmen and power of the appointing authority to discharge any Home Guard at any time. This section reads as under: 3. This section is relevant not only for the purpose to appoint member of the Home Guards, but also with regard to the tenure of the Home Guards or Guardsmen and power of the appointing authority to discharge any Home Guard at any time. This section reads as under: 3. Appointment of members (1) subject to the approval of the Commandant General, the Commandant General, the Commandant may appointment as member of the Home Guards such member or persons who are fit and willing to serve, as may from time to time be determined by the Government and may appoint any person to any office or command in the Home Guard. (2) Notwithstanding anything contained in sub-section (1) the Commandant General may subject to the approval of the Government appoint any such member to any post under his immediate control. (3) Subject to any rule made in this behalf, a Home Guard shall be required to serve as such for a period of three years including the period spent in training which period may be extended by the Government to such further period as it may consider necessary and a Home Guard shall there-after serve in the Reserve Force of Home Guard constituted under section 3-A of the Act for a period of three years; (4) notwithstanding anything contains in sub-section (3) the Commandant General or Commandant shall have the authority to discharge any Home Guard at all time subject to such conditions as may be prescribed if in his opinion the services of such Home Guard are no longer required.� 4. So the maximum period of enrolment of a Home Guard is three years sub-section (3) but the appointing authority can discharge him at any time if his services are no longer required This order can be passed in accordance with rules. Section 6-B of the Act is very important as it relates to the condition of service of number of the Home Guard. This sub-section (i) of section 6 and the explanation reads as under: 6-B. Home Guards to be servants but not be Civil servants- (1) Any member of the Home Guards acting in the discharge of his functions in accordance with the provisions of this Act and the Rules made there under shall be deemed to be public servant within the meaning of section 21 of the Ranbir Penal Code, 1989. Explanation- a member of the Home Guards shall not be deemed to be a holder of a civil post merely by reasons of his enrolment as such member.� 5. It is thus clear that a member of the Home Guard does not hold a civil post and his is a disability from which he suffers because he cannot invoke section 126 of the Constitution in case of his discharge or dismissal. However, in the Rules framed under section 8 of the Home Guards Act, the Government has laid down the procedure for appointment and conditions of service Rule 7 dealing with the conditions of service reads as under: 7. Conditions of service (1) The members of the Home Guard shall ordinarily serve in purely honorary capacity. Provided that the Government may pay to any member of the Home Guard such sum of money as honorarium for the period of training or duty as it may deem fit. (2) Notwithstanding anything contained in sub-rule (1), the Government may declare any appointment or class of appointments as paid appointments. A person appointed on the basis of payment shall be entitled to such conditions of service as regards pay, leave and other benefits as the Government may, by order, prescribe.� So a member of Home Guard is paid only honorarium but the Government can declare his appointment as paid appointment also. It is admitted case of the petitioners that none of them is a paid appointee. So sub-rule (2) is not attracted. Rule 11 deals with discharge of a member of Home Guard. It reads as follows: 11. Discharge (1) A member of the Home Guard shall be liable to be removed from the service- (a) on medical grounds; (b) on conviction for any offence involving moral turpitude; or (c) on any other ground considered sufficient for his removal from the Home Guard by the Commandant General or the joint Commandant General. (2) A member of the Home Guard shall be liable to be discharged when his services are no longer required. 6. So while the Act fixes the tenure of a member of the Home Guard to three years, he can be discharge at any time before this period under Rule-11. But after completing three years he has no right to be retained. 6. So while the Act fixes the tenure of a member of the Home Guard to three years, he can be discharge at any time before this period under Rule-11. But after completing three years he has no right to be retained. These rules are in consonance with section 2 & 3 of the Home Guards Act which provide for constitution and appointment of its members. Since it is purely a voluntary body and its members do not hold civil post, there is no security of tenure for them. 7. The petitioners having admitted that they were appointed under the Home Guards Act and the J&K Home Guards Rules, 1982, have no right to maintain this petition because they are not holding civil post and the competent authority has under the Act and the rules power to discharge them any time in accordance with Rule 11 and also under section 3 of the Act, if their services are no longer required, without assigning any reason. This petition is therefore, without any merit and is dismissed accordingly.