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2002 DIGILAW 103 (PAT)

Ramdeo Chaudhary v. State of Bihar

2002-01-22

S.N.JHA

body2002
ORDER The dispute in these two writ petitions, in substance, is the same and as such they have been heard together and are disposed of by this common order. 2. There are 22 petitioners in CWJC No.3746/99. They seek direction upon the respondents to regularise their services on Class III/IV posts on which they claim to be working upon their selection since 1983 on daily wage basis, in the light of the direction of this Court in CWJC No.10114/92. They also seek quashing of an order, dated 7.2.97, by which their request for regularisation has been rejected. 12 of them are petitioners in CWJC No. 628/2002. They seek quashing of the orders, dated 16.11.2001 and 12.12.2001, whereby direction has been issued to remove the serving attendants (Anuchar) and !n their place, employ new ones, and keep doing this every two months so that they may not claim regularisation. 3. It may be mentioned that except one of the petitioners, namely, Ram Pyare Prasad, all others and a few more had earlier also filed writ petition, CWJC No. 10114/92 for their absorption which was disposed of on 15.2.96 with an observation that "the government should consider the case of the petitioners for regular appointment in Home Guards in respective posts where they have been working on daily wage basis, against the existing vacancies". It appears from the order that the petitioner relied on an earlier order passed in CWJC No. 8545/91 in which this Court had issued some direction for the petitioners' absorption in the Home Guards. It is relevant to state here that the claim of the petitioners herein was considered pursuant to the above said order, dated 15.2.96 in CWJC No.10114/92, and rejected vide the letter of Deputy Secretary, Home (Special) Department dated 7.2.97. It may not be our of place to mention here that by subsequent letter, dated 1.7.98, of the Joint Secretary, Home (Special) Department, pursuant to the order, dated 19.5.98, in MJC No. 337/97 which the petitioners had filed for contempt against the respondents, reasons of rejection were communicated. The distinction between the cases of the petitioners of CWJC No. 8545/91 and the present petitioners was pointed out. It was stated that whereas the 266 petitioners of CWJC No. 8545/91 were trained and duly selected, and also working for a long time, the present petitioners were neither trained nor selected by the selection Committee. The distinction between the cases of the petitioners of CWJC No. 8545/91 and the present petitioners was pointed out. It was stated that whereas the 266 petitioners of CWJC No. 8545/91 were trained and duly selected, and also working for a long time, the present petitioners were neither trained nor selected by the selection Committee. It appears that the above said decision communicated by letter dated 7.2.97 (supra) was a common decision in respect of not only present petitioners but also the petitioners of CWJC Nos. 10123/92, 12088/92 and 1806/92 and 1806/96 - numbering 172 in all. After considering the show cause of the respondents, MJC No. 334/97 was dismissed on 14.7.98 but with observation that the dismissal shall not preclude the petitioners from agitating their grievance in appropriate proceeding. CWJC No. 3746/99 was filed, inter alia, for quashing the order dated 7.2.97, as indicated at the outselt. 4. In CWJC No. 628/2002, the petitioners have referred to an order in CWJC No. 6566/98 in which one Baidyanath Sah and Chandeshwar Thakur figured as petitioners. They, it may be pointed out, were also petitioners in MJC No. 334/97 and, therefore presumably figured as petitioners in CWJC No.10114/92 as well (giving rise to the MJC) along with these petitioners. In the said order, referring to the letter dated 1.7.98 (supra), this Court observed that the claim of the petitioners had been rejected treating them as 'home guards' whereas they had prayed for appointment (regularisation) on class IV posts of Watermen, barber etc. in respect of which direction had been given in CWJC No.10114/92. The Court accordingly, set aside the impugned order contained in the said letter (wrongly mentioned as letter dated 10th July, 1998) and directed the Commandant, Home Guards Organisation to reconsider their cases for appointment against appropriate class IV posts in terms of the order dated 15.2.96 in CWJC No.10114/92, already referred to above. 5. Before adverting to the counter affidavit filed in CWJC No. 3746/99, it may be proper to notice the stand of the respondents as stated in CWJC No. 6566/98 and MJC No. 334/97. In the former it was stated that there is no categorisation as class III or class IV in the Home Guards who are volunteers. They work on daily allowance basis. Unlike other establishments of the Government, they are paid daily allowances for the training days and other duty days only. In the former it was stated that there is no categorisation as class III or class IV in the Home Guards who are volunteers. They work on daily allowance basis. Unlike other establishments of the Government, they are paid daily allowances for the training days and other duty days only. They perform their duties as and when called up. There is no continuous employment. Inevitably therefore, there are breaks in service. Their claim for regularisation of services is thus not maintainable because volunteers cannot claim any right to regular appointment. The respondents also stated that there are no class IV employees, as such, in the Home Guards rank. Some volunteers are selected to do work on daily wage basis, like Baidyanath Sah who was engaged to work as Water Carrier and Chandeshwar Thakur engaged to work as Barber but their work periods are not continuous, they too are paid wages only till they are detained for duty. Respondents further stated that in the Home Guards orgainsation there are two categories of home guards - one salaried Home guards appointed by the Government and the other volunteers who remain on the rolls for a period of three years, upon selection and after necessary training as provided in the Bihar Home Guards Rules. There are no sanctioned permanent posts of Barber etc. in the Special Batalian and the said petitioners were not working continuously, they cannot claim regularisation of their services. 6. In MJC No. 334/97, the respondents stated that the petitioners were never selected and appointed against any vacancy in class IV posts rather they were engaged on daily wage basis their claim was rejected by the State Government after due consideration. In CWJC No. 3746/99 the respondents have reiterated that petitioners were never appointed against any sanctioned class IV posts nor selected by the Selection Committee as prescribed by the State Government, unlike the petitioners of CWJC No. 8545/91 who were trained and also selected. 7. The recruitment etc. In the Home Guards organisation are governed by the Bihar Home Guards Act, 1947 and the rules framed thereunder called Bihar Home Guards Rules 1953. There being statutory provisions holding the field, the claim for regularization cannot be considered on general principle - ignoring the statutory provisions unless the provisions themselves are found to be violative of some provisions of the Constitution i.e. ultra vires. There being statutory provisions holding the field, the claim for regularization cannot be considered on general principle - ignoring the statutory provisions unless the provisions themselves are found to be violative of some provisions of the Constitution i.e. ultra vires. It would therefore be appropriate to briefly notice the relevant provisions of the said Act and the Rules. 8. The Bihar Home Guards Act has been enacted to provide a Volunteer organisation to assist in the maintenance of peace and tranquility in the State and to inculcate habit of self-reliance and discipline among the volunteers and the public in general and to develop in them a sense of civic responsibility. Section 3 of the Act provides for constitution of Home Guards to discharge such functions in relation to protection of persons, the security of property or public safety nary area, as may be assigned to them in accordance with the provisions of the Act and the Rules. Sub-Section (2) contemplates that the Home Guards in the State of Bihar shall, for the purpose of the Act, be deemed to be a single force and the members thereof shall be formally enrolled, such force shall consist of such member of officers and men as may be prescribed (by the rules). Rule 5 of the Rule 5 lays down the procedure for appointment of Officers and men of the Home Guards force. The provisions relating to enrolment of Home Guards are contained in Sub-rule (4) of Rule 5. It provides that Home Guards shall be enrolled by the District Magistrate on the recommendation of the District Committee or the State Committee after holding test of the general knowledge, alertness, intelligence, physical test followed by interview and verification of character and antecedent. Upon enrolment, under Section 8 of the Act, a Home Guard is required to serve the State Government for a period of 12 months (including the period spent over training) which period may be extended by the Government to such further period as may be considered necessary, and the Home Guard shall thereafter serve in the Reserve force for a period of three years. While in the reserve he is liable to be called out for duty at any time. While in the reserve he is liable to be called out for duty at any time. Rule 4 of the Rules lays down the qualification and Rule 7 provides for discharge of a Home Guard on completion of a period of three years service in the Reserve force. He may be discharged earlier also on the ground of physical unfitness, attainment of 41 years of age etc. He may also be re-enrolled on the same conditions as in the case of original enrolment. Rule 12 of the Rules provides for period of duty of the Home Guards. It lays down that after the training prescribed under Rule 11 and during the period in which a Home Guard is required to serve the Government under Section 8(1) of the Act, he shall be required to be on duty for three days a months or six days every alternate month, provided that the ex-home Guards including members of the technical corps who are re-enrolled for a second term of service may be exempted form attending the monthly duty other than attendance at the refresher course at the discretion of the Commandant General or the Commandant. Ordinarily, a Home Guard is supposed to serve only in his own district, but in an emergency he may be required to serve at any time any where in the State. Rule 14 provides for the allowances payable to the Home Guards. While he remains in the Reserve force in the reserve under Section 4 of the Act, he may be called up by the District Magistrate to discharge any duty assigned to the Home Guards in accordance with the provisions of the Act and the Rules. 9. From the above provisions it would appear that the Home Guards are recruited for a fixed period - initially for a period of 12 months (including the training period), whereafter they are kept in the Reserve Force for a period of three years during which they are liable to be called up for duty at any time, and at the end of the said period they may be discharged or re-enrolled for a fresh term of service subject to upper age limit of 40 years. Further, the duties of the Home Guards are similar to those of the police force, as stated in the Introduction to the Home Guards Handbook published by the Government of Bihar, Home (Special) Department, they serve as an auxiliary to the police force. However, though performing duties akin to the police force - as and when called up - it is basically a volunteer force to assist the police in the maintenance of peace and tranquility in the State. The concept of regularisation is thus alien to Scheme of the Home Guards Act and the Rules. 10. Adverting to the instant cases, as indicated above, while according to the respondents, the petitioners are not trained and also not selected, according to the petitioners they do not claim to be Home Guards, as such, they claim to be working on posts like barber in the Home Guards establishment. It is relevant to mention here that under Rule 3(3) of the Home Guards Rules, the Home Guards Force consists of such gazetted and non-gazetted posts as are specified in the First Schedule. The First Schedule contains list of all the Gazetted and the non-gazetter posts, it does not mention the posts of Barber, Water carrier etc. The report of the 'Group Training of Home Guards' incorporated in the aforesaid Home Guards hand Book, refers to the Class IV posts such as Water Carrier, Dhobi, Barber etc. amongst others, which in the opinion of the Group (Committee) should be part of the establishment of the Regional Training Centre vide paragraph 35 of the report (on page 75 of the Hand Book), but it was a mere recommendation. No document has been brought on record or brought to the notice of the Court to show that the State Government has created posts of Water carriers, Barbers etc. It is clear that if there is no such post available in the Home Guards organisation, this Court cannot issue direction to regularize the services, of the petitioners. It may be recalled that in CWJC No.10114/92 this Court had directed the respondents to consider the cases of the petitioners for regular appointment in respective posts on which they have been working "against existing vacancies". It may be recalled that in CWJC No.10114/92 this Court had directed the respondents to consider the cases of the petitioners for regular appointment in respective posts on which they have been working "against existing vacancies". It would not be out of place to mention here that the Home Guards are allowed preference in recruitment in some Government Departments, particularly, in the regular police force where 1/3rd of the vacancies are to be filled from amongst the ex-Home Guards. However, the petitioners do not claim to be Home Guards as such, the question of considering their cases for appointment against suitable posts in other Departments does not arise. 11. From the order impugned in CWJC No. 628/2002 however, it appears that the petitioners have been working in the Home Guard establishment. While for want of sanctioned post their services may not be regularized on the post on which they are working, at the same time, they cannot be removed from the post on the ground that it may give rise to claim for regularisation and, thus, the direction to remove the petitioners and in their place to employ fresh hands and continue the practice every two months as communicated by the Commandant, Bihar Home Guards organisation, Patna vide his letters dated 16.11.2001 and 12.12.2001 contained in Annexures 1 and 2 to the writ petition, cannot be said to be correct. That would be exploitative and not expected of a model employer which the State is expected to be. In Karnataka State Private College Stop Gap Lecturers Association Vs. State of Karnataka, AIR 1992 SC 677 , the Supreme Court deprecated the practice of temporary appointment with breaks of a day or two every three months in privately managed degree college to avoid claim for regularisation of their services, and struck down the relevant part of the order as ultra vires. In the case of State of Haryana Vs. Pyara Singh, AIR 1992 SC 2130 , the Supreme Court further disapproved replacing temporary employees by another set of temporary employees. Thus, while the petitioners herein may not have any right to regularisation of their services, they should be replaced by new hands except in individual cases for good reasons in the interest of administration. The direction contained in the aforesaid letters, dated 16.11.2001 and 12.12.2001, impugned in CWJC No. 628/2002 must therefore, be held to be illegal. 12. Thus, while the petitioners herein may not have any right to regularisation of their services, they should be replaced by new hands except in individual cases for good reasons in the interest of administration. The direction contained in the aforesaid letters, dated 16.11.2001 and 12.12.2001, impugned in CWJC No. 628/2002 must therefore, be held to be illegal. 12. Before I conclude, I must mention that in course of hearing counsel for the petitioners in support of the petitioner's claim for regularisation, placed reliance on various decisions, such as, AIR 1991 SC 295 , AIR 1994 SC 216 , AIR 1995 SC 1617 , AIR 1998 SC 1477 , 1992(1) PLJR 438 and 2000(3) PLJR 206 , but since as observed above, the recruitment in the Home Guard organisation is governed by statutory provisions, the claim of the petitioners has to be considered in accordance with the provisions of the Home Guard Act and the Rules, and as the rules do not provide for sanctioned posts of Barber, etc. on general principles, this Court would find it difficult to give any direction as prayed for. However, the Court would observe that long working generates hope of a regular employment, the government should therefore frame a scheme consistent with Articles 14 and 16 of the Constitution of India and consider the cases of the persons concerned accordingly. 13. In the result, the writ petitions are disposed of with the observations and directions mentioned above.