Research › Search › Judgment

Calcutta High Court · body

2008 DIGILAW 143 (CAL)

STATE OF WEST BENGAL v. Kinkar Karmakar

2008-01-31

ASHIM KUMAR BANERJEE, TAPAS KUMAR GIRI

body2008
Judgment ASHIM KUMAR BANERJEE, J The respondents/writ petitioners were enrolled from time to time as home guards under the West Bengal Home Guard Act, 1962 (hereinafter referred to as the “aid Act of 1962”) They approached this court for regularisation of their services by taking them in the regular pay roll of the State at par with the police personnel as also for an order of restraint as against the State from disturbing their services after attaining the age of 60 years. Pertinent to note, the respondents/writ petitioners in the above appeal did not challenge the vires of the said Act of 1962 and/or the subsequent amendments thereof. State did not file any affidavit-in-opposition before the learned Single Judge. The learned Single Judge upon hearing the respective contentions allowed the writ petition. Rule 4 of the Home Guard Rules, 1962 and its proviso, Section 5, 6(iii), 7(i), 7(ii), (8), (9) and (10) of the West Bengal Home Guards Act, 1990, the Government Order dated September 26, 1995 were struck down by His Lordship holding those as ultra vires the Constitution. His Lordship directed the respondent authorities to extend equal salary/allowance and other perquisites as also terminal benefits to the writ petitioners at par with the police personnel of Class-IV category. Being aggrieved by and dissatisfied with the judgment and order of His Lordship State preferred the above appeal. During the pendency of the appeal several writ petitions were filed on the identical issues which were referred to this Bench by the Single Bench to be heard along with the appeal. Hence, we heard not only the above appeal but also the above writ petitions. All these writ petitions are disposed of along with this appeal by this common judgment and order. To appreciate the point of controversy relevant provisions of the statute are required to be discussed. As per the said Act of 1962 the Superintendent of Police in a district or the Commissioner of Police in Calcutta is empowered for the district or Calcutta as the case may be, to set up a body to be called as Home Guard for protection of persons, security of property or public safety as may be assigned to the members of the said home guard who are enrolled under the said Act of 1962. Section 4 of the original Act of 1962 the Superintendent of Police or the Commissioner of Police as the case may be, are entitled to appoint persons who are fit and willing to serve as members of the home guards. They were entitled to have same powers privileges and protection as an officer of the police under Section 6 of the said Act of 1962. Under Section 9 the State Government is empowered to make rules consistent with the said Act, inter alia, for allowances if any, payable to the members of the home guard and to impose conditions subject to which such allowances may be paid. Under the West Bengal Home Guard (Amendment) Act, 1990 the word “member” was substituted by the word “volunteer”. Hence, since 1990 the members of the home guard are called as “volunteers” to assist the State for the job assigned to them. For all practical purposes the home guards are being used mainly to maintain traffic discipline in addition to the police personnel. The respondents were time to time engaged as home guard on their prayer. The State framed rules under the said Act of 1962 under which the members and/or volunteers working in the home guard are being paid daily allowances when they are called to discharge their duties. No service condition and/or restrictions have been imposed upon them like any other government servant. No prescribed qualification is required for being enrolled as home guard unlike the State Government servant including the police personnel. The State in their wisdom continues to engage them as and when required and whenever they are engaged they are paid daily allowances prescribed there for. It is, however, an admitted fact for all practical purposes that they are engaged on continuous basis upto the age of 60 years when they are disengaged because of their advance stage. On perusal of the judgment of the learned Single Judge it appears that the learned Single Judge was of the view that although they were called as “volunteers” they discharged continuous service at per with the police personnel. Hence, they were entitled to have equal pay for the said purpose. According to the learned Judge, by paying only daily allowances the State had shown a “step motherly discriminatory attitude” vis-à-vis other employees of the State. Hence, they were entitled to have equal pay for the said purpose. According to the learned Judge, by paying only daily allowances the State had shown a “step motherly discriminatory attitude” vis-à-vis other employees of the State. His Lordship observed that there was no reason why they would not get the benefit bestowed on the other workers of the State engaged as casual workers or daily rated workers where they were time to time considered for regular absorption. His Lordship quashed the relevant sections of the amended Act of 1962 and the rules framed under the said Act of 1962 so amended by the amending Act of 1990. On behalf of the State Mr. Nisith Nandan Adhikari, learned Additional Advocate General and Mr. Milan Bhattacharyee, learned senior advocate addressed us on behalf of the State. It was contended on behalf of the State that a complete recruitment process was laid down for appointing a person in the regular pay roll of the State. Such procedure was not adopted in case of engagement of home guard. The police personnel were engaged after a thorough recruitment process and after observing relevant recruitment conditions including a pre-requisite of minimum eligible qualification which was not being followed in case of engagement of home guard. Even then the State in their wisdom declared various welfare policies for the home guard volunteers. State also reserved 10% of its regular appointment for the home guard personnel. Minimum age required for the State appointment was also relaxed in case of home guard when they were considered for being absorbed as a regular employee of the State provided they had requisite qualification for the post applied for. Lastly it was contended that having not challenged the vires of the Act and the rules the writ petitioners were not entitled to question the vires and the learned Judge traveled beyond the scope of the writ petition by quashing the relevant provisions of the statute. Mr. Joyanta Kumar Mitra, learned senior counsel appearing on behalf of the respondents/ writ petitioners contended that the State did not file any affidavit before the learned Single Judge. Hence, the facts averred in the petition were deemed to have been admitted by the State. Mr. Mitra drew our attention to the relevant provisions of the said Act of 1962 as also the amending Act of 1990. Mr. Hence, the facts averred in the petition were deemed to have been admitted by the State. Mr. Mitra drew our attention to the relevant provisions of the said Act of 1962 as also the amending Act of 1990. Mr. Mitra contended that for engagement of home guard Central Government provided fund to the extent of 75% whereas State was to bear only 25%. The Central Government did not contest the proceeding. Hence, the prayer of the petitioner could not have been objected to by the State that too without filing any affidavit-in-opposition. In one of the writ petitions heard by us State filed an affidavit reiterating their stand as discussed above. Referring to the State affidavit Mr. Mitra contended that the contentions raised in paragraph 8 of the said affidavit were far from truth and in any event were contrary to the averments made in paragraph 11 thereof. In paragraph 8 of the said affidavit the State contended that the home guards were allowed to work for 120 days at a stretch, as such continuity in service could not be claimed. In reality this never happened as the home guards were discharging their duties 365 days in exchange of a paltry daily allowance paid by the State. In support of his contention Mr. Mitra relied on Apex Court decision in the case of State of West Bengal & Ors. Vs. Pantha Chatterjee & Ors. reported in 2003, Volume-VI, Supreme Court Cases, Page 469. Mr. Mitra also contended that the home guards were appointed in terms of a statute and not by adoption of any illegal procedure. Hence, the plea of the State on the basis of the decision of the Apex Court in the case of Secretary, State of Karnataka Vs. Umadevi (3) & Ors. reported in 2006, Volume – IV, Supreme Court Cases, Page 1 would not apply. Mr. Mitra contended that the fundamental rights guaranteed under the Constitution in Article 14-16 thereof were violated in denying appropriate treatment to the members of the home guard. Mr. R. G. Ram and Mr. Amit Lahiri, learned counsel appearing for the similarly circumstanced persons being the writ petitioners in various writ proceedings as above adopted the contention of Mr. Mitra. In addition Mr. R.G. Ram contended that under Section 8 of the said Act of 1962 punishment could be imposed upon any erring members of the home guard. Mr. R. G. Ram and Mr. Amit Lahiri, learned counsel appearing for the similarly circumstanced persons being the writ petitioners in various writ proceedings as above adopted the contention of Mr. Mitra. In addition Mr. R.G. Ram contended that under Section 8 of the said Act of 1962 punishment could be imposed upon any erring members of the home guard. Unless and until then could be brought in regular pay roll they could not be punished. In support of his contention Mr. Ram relied on the following decisions:- (i) 1997, Labour and Industrial Cases, Page 365 (Air India Statutory Corporation Etc. Vs. United Labour Union & Anr. Etc.) (ii) 2006, Volume – IX, Supreme Court Cases, Page 337 (State of U.P. & Ors. Vs. Puttilal) (iii) 2006, Volume- XII, Supreme Court Cases, Page 634 (Nripendranath Ghose & Ors. Vs. State of Tripura & Ors.) Mr. Lahiri in addition contended that once they were asked to discharge regular duty and in reality they were discharging so, the character of “volunteer” lost for all practical purposes. He also contended that under the original Act of 1962 they were called as “members”. Hence, the appointees under the Act of 1962 were entitled to the appropriate benefit irrespective of the amendment brought in 1990 which could not be given retrospective effect. Mr. Lahiri further contended that the State was not entitled to ask any member to retire after attaining the age of 60 years without any specific guideline prescribed for payment of terminal benefit. He lastly contended that the fundamental rights guaranteed under the Constitution under Article 13, 14, 16, 21 and 23 of the Constitution were violated by the State. As rejoinder Mr. Mitra relied on the “Compendium of Instructions” published by the Central Government wherefrom he drew our attention to various guidelines to show that the home guards were auxiliary to the police personnel. He also referred to the Apex Court decision in the case of G.B. Pant University of Agriculture and Technology Patnagar Nainatal Vs. State of Uttar Pradesh reported in 2000, Volume – VII, Supreme Court Cases, Page 109. Relying on the said Apex Court decision Mr. Mitra contended that State was not entitled to deny benefit on the plea of financial burden as the same had no relevance at all. State of Uttar Pradesh reported in 2000, Volume – VII, Supreme Court Cases, Page 109. Relying on the said Apex Court decision Mr. Mitra contended that State was not entitled to deny benefit on the plea of financial burden as the same had no relevance at all. In reply to the argument made on behalf of the respondents it was contended on behalf of the State that without the vires of the said Act of 1962 being challenged the learned Judge was not right in striking down the relevant provisions of the Acts and the Rules. It was further contended that pre-condition of engagement was for voluntary service and as such the respondent/ writ petitioners were not entitled to ask for pay equal to the police personnel. On the writ petition filed by Mr. Lahiri challenging the vires of the Act Mr. Bhattacharjee appearing for the State contended that assuming there had been a challenge to the vires in absence of any pleading to support such challenge and in absence of a specific prayer on that score such contention was liable to be rejected by this Court. Mr. Bhattacharjee further contended that right to be employed or to be paid in exchange of service being discharged as home guard was not a fundamental right for which Article 226 of the Constitution could be invoked. In support of his contentions Mr. Bhattacharjee relied on the following decisions:- (i) All India Reporter, 1980, Supreme Court, Page 1547 (Travancore Tea Estates Company Ltd. Vs. State of Kerala) (ii) All India Reporter, 1984, Supreme Court, Page 1543 (Maharashtra State Board of Secondary & Higher Secondary Education; Alpana Mehata Vs. Paritosh Bhupeshkumar Sheth; Maharashtra State Board of Secondary Education) (iii) 1997, Volume-VI, Supreme Court Cases, Page 312 (Institute of Chartered Accountants of India Vs. Price Waterhouse) (iv) 1997, Volume-VIII, Supreme Court Cases, Page 683 (Union of India Vs. United India Insurance Company Ltd.) (v) 2007, Volume-VI, Supreme Court Cases, Page 207 (Hindustan Aeronautics Ltd. Vs. Dan Bahadur Singh) Distinguishing the decision in the case of Pantha Chatterjee (Supra) Mr. Bhattacharjee contended that such decision was impliedly over ruled by the subsequent decision in the case of State of Karnataka (Supra). He contended that Union of India was not a party to the writ petition filed by the writ petitioners challenging the vires. Dan Bahadur Singh) Distinguishing the decision in the case of Pantha Chatterjee (Supra) Mr. Bhattacharjee contended that such decision was impliedly over ruled by the subsequent decision in the case of State of Karnataka (Supra). He contended that Union of India was not a party to the writ petition filed by the writ petitioners challenging the vires. In this regard he referred to two Supreme Court decisions reported in All India Reporter, 1977, Supreme Court, Page 1701 (Ranjeet Mall Vs. General Manager, Northern Railway, New Delhi & Anr.) and All India Reporter, 1990, Supreme Court, Page 1607 (Direct Recruit Class II Engineering Officers Association Vs. State of Maharashtra). On analysis of the judgment of the learned Single Judge it appears that the learned Judge proceeded on the basis that the services of the respondents/ writ petitioners were being utilised by the State on regular basis and as such they should be treated at par with the police personnel who were discharging identical duty being in regular pay roll of the State. According to the learned Judge since the respondent/writ petitioners were discharging perennial duty they should be treated as a regular employee of the State. They should not be treated as volunteer and as such their exploitation should not get protection of the said Act of 1962 and such law ultra vires the Constitution. Learned Judge proceeded on the basis that there should be equal pay for equal work. Since the home guards were discharging identical duty with the police personnel they should get equal pay which the police personnel were getting. The approach of the learned Judge was in our view erroneous. Under the said Act of 1962 any person willing to join as home guard could enroll himself as such through the Commissioner of Police or the Superintendent of Police, as the case may be. The State, after such enrolment, was empowered to avail their service and for such service the State in their wisdom may also pay allowances to them as per the rules applicable there for. To avoid ambiguity and/or misconstruction of the provisions of the statute by way of amendment they were declared as volunteers. We do not find any illegality on that score. To get berth in regular pay roll of the State one has to go through a recruitment process prescribed therefor. To avoid ambiguity and/or misconstruction of the provisions of the statute by way of amendment they were declared as volunteers. We do not find any illegality on that score. To get berth in regular pay roll of the State one has to go through a recruitment process prescribed therefor. The Constitution obligates the State to give opportunity to all eligible candidates to participate in regular recruitment process. ‘Right to be employed’ is not guaranteed under the Constitution. ‘Right to be considered for employment as per eligibility’ is, however, ensured. In deference to the mandate of the Constitution State from time to time frames its own rules by which regular recruitment process is to be carried out. Qualification as well as eligibility are prescribed in the State Rules. Police personnel being State employees are also to undergo such recruitment process after being eligible for any such service as per their respective qualifications. Such procedure is not followed in the case of engagement of home guard. It might be true that home guards are discharging duties similar to the police personal. They are voluntarily doing so after expressing their intention to do so. There is no eligibility or prescribed qualification in the said Act of 1962 or the rules framed thereunder. Anyone interested to discharge such duty may apply for his enrolment. On being enrolled he would enjoy the same power with the police personnel while discharging duty. Similarly they enjoy similar immunity as the police personnel do. This cannot, however, empower the home guards to claim equal pay. This is not an appointment but a voluntary enrolment. Learned Judge possibly overlooked this aspect. We fully appreciate the sufferance and miseries so highlighted by the respondents/writ petitioners in their writ petition and discussed by the learned Judge in His Lordship’s judgment. It is for the State to mitigate such miseries. It is for the State to frame proper welfare policy to ameliorate the hardship suffered by the members of the home guard. We, however, do not find any reason to strike down the law on that count by declaring the same ultra vires the Constitution. Initially when the matter was heard by us we adjourned the matter from time to time so that State could re-think and decide as to what best they could do to benefit the members of the home guard as and by way of welfare measure. Initially when the matter was heard by us we adjourned the matter from time to time so that State could re-think and decide as to what best they could do to benefit the members of the home guard as and by way of welfare measure. State, accordingly, revised the conditions of engagement of home guards and declared various welfare measures as would appear from the affidavit-in-opposition filed by them before us in connection with one of the writ proceedings referred to above. The respondents/writ petitioners, however, were not satisfied with such incentives and they insisted on regularisation of their job by taking them to the regular pay roll of the State. In one of the welfare measures the State already reserved 10% State appointment for the home guards. They have been given appropriate age relaxation while competing for any state cadre. We, however, are not in a position to give any direction to the State on that count as we do not find any legal right accrued in favour of the members of the home guard either under the said Act of 1962 or the rules framed thereunder or under the Constitution. Lot of argument was made on the decision of the Apex Court in the case of Pantha Chatterjee (Supra). Hence, we feel it relevant to discuss the ratio decided therein. On a bare perusal of the said decision it appears that the Boarder Wing Home Guards were are under the regular pay roll of the State with the Central Government funding whereas the other group of home guards working in the boarder area were also discharging duty as part time boarder wing home guards. Considering such aspect the Apex Court directed both the groups to be treated at per. Before arriving at such conclusion the Apex Court considered the fact that the initial expenditure of setting up of the said group was to be incurred by the State Government and thereafter the expenses were to be reimbursed by the Central Government to a large extent. They were discharging duty equivalent to the members of the Boarder Security Force of the Central Government. The Apex Court observed that the duties of the permanent Boarder Wing Home Guard and part time boarder home guard were the same and both groups worked under the same situation and circumstances and as such there should not be any disparity in their emoluments. The Apex Court observed that the duties of the permanent Boarder Wing Home Guard and part time boarder home guard were the same and both groups worked under the same situation and circumstances and as such there should not be any disparity in their emoluments. Considering such fact the Apex Court directed extension of similar benefit to the part time boarder wing home guards at par with the permanent one. While doing so the Apex Court relied upon the earlier decisions including the one in the case of Delhi Transport Corporation (Supra). The concept of regularisation of the casual employees has undergone on a sea change. The landmark judgment on the issue in the case of Air India Statutory Corporation reported in All India Reporter, 1997, Supreme Court, Page 645 was the guiding factor along with the other decisions including the one in the case of Delhi Transport Corporation (Supra). However, the Apex Court in their later decision changed their view in that regard. Reference may be had in this regard to the decision in the case of Steel Authority of India Limited reported in 2001, Volume –VII, Supreme Court Cases, Page 1 and in the case of State of Karnataka Vs. Umadevi (Three) reported in 2006, Volume – IV, Supreme Court Cases, Page – 1. In the case of State of Karnataka (Supra) 5 Judges’ Bench of the Apex Court observed, “in name of individualising justice, it is also not possible for the Supreme Court to shut its eyes to the Constitutional scheme and the rights of the numerous as against the few who are before the Apex Court. The directive principles of State policy have also to be reconciled with the rights available to the citizen under Part-III of the Constitution and the obligation of the State to one and all and not to a particular group of citizens”. Our Constitution gives equal right to all eligible candidates to compete for State employment. Directing regularisation of a body of persons or any individual who did not undergo a regular recruitment process would automatically seal the scope of others at large from being considered for the said post although they were eligible for the same. The home guards were appointed without following a regular recruitment procedure. Directing regularisation of a body of persons or any individual who did not undergo a regular recruitment process would automatically seal the scope of others at large from being considered for the said post although they were eligible for the same. The home guards were appointed without following a regular recruitment procedure. They were engaged in terms of the Act of 1962 and could not be treated at per with others in regular pay roll who had undergone a regular recruitment process. It appears that earlier decisions of the Apex Court holding a different view were overruled by implication by 5 Judges’ Bench. On a combined reading of the two decisions in the case of Steel Authority of India Limited (Supra) and State of Karnataka (Supra) we would find that the concept of regularisation had undergone a sea change. Such concept had been totally deprecated by the Apex Court in the said decisions. In the case of Steel Authority of India Limited the Apex Court rejected the prayer of casual workers employed through contractors for regularisation whereas in the case of State of Karnataka the casual workers were not granted regularisation being appointed without a regular recruitment process. Mr. Mitra, however, contended before us that the respondents/ writ petitioners were not asking for regularisation of their service. They in fact were praying for equal status with the Group-IV cadre of the police personnel as they were discharging similar functions. In our view, in view of the changed legal position as discussed (Supra) such prayer, in our view, can not be acceded to. If we direct their regularisation at per with police personnel it would be an additional burden on the State, be it provincial or be it Central. If we direct up-gradation of their status by giving them a stature of state cadre as a body it would involve huge financial implication which is completely within the domain of the legislature and executives. Legislature in their wisdom enacted the Act of 1962. We do not find any of the provisions of the said statute being contrary to the Constitutional mandate. Hence, we are not competent to give any relief on that score. It was rightly argued by the State that ‘right to be employed’ was not guaranteed under the Constitution. Legislature in their wisdom enacted the Act of 1962. We do not find any of the provisions of the said statute being contrary to the Constitutional mandate. Hence, we are not competent to give any relief on that score. It was rightly argued by the State that ‘right to be employed’ was not guaranteed under the Constitution. If that be not the situation giving them a status of State cadre would ultimately amount to deprivation of larger section who would not be entitled to compete for the said post. Hence, granting relief to the respondents/writ petitioners would rather be contrary to the mandate of the Constitution. We cannot accord our approval to such act which would be illegal and unconstitutional. In this regard we may refer to the latest decision of the Apex Court in the case of Hindustan Aeronautics Limited Vs. Dan Bahadur Singh & Ors. reported in 2007 Volume – VI, Supreme Court Cases, Page 207 wherein the Apex Court negated the prayer of regularisation on completion of 240 days in a year by observing that question as to whether completion of 240 days in a year confers any right of an employee or workman to claim regularisation in service has been answered in the negative in a number of cases. Hence, based only on the plea that they were being engaged continuously for 365 days they are not entitled to claim regularisation. Hence, the decision of the learned Judge impugned in the appeal, in our view, cannot be sustained. We, however, express our desire that the legislature as well as executives should rethink on the issue as to what best they can do within the framework of the Constitution for welfare of the members of the home guard. They have given some benefits in deference to the desire of this court as discussed above. We hope and trust in future they would try to give something more. We, however, cannot issue any direction on that score. It would be open for the legislature to re-enact the law on the subject. It would be open to the executives to extend further benefits if permissible within the scope of the said Act of 1962 as amended uptill date. We, however, cannot issue any direction on that score. It would be open for the legislature to re-enact the law on the subject. It would be open to the executives to extend further benefits if permissible within the scope of the said Act of 1962 as amended uptill date. We, abundantly make it clear that our desire should not be construed as any special right accrued in favour of the members of the home guard to claim as a matter of right any further benefit from the State. The State would be free to act in accordance with law. While doing so they should keep in mind the plight of the members of the home guard so highlighted by us as above and should consider their case sympathetically in the light of the observation made by us hereinbefore. The judgment and order of the learned Single Judge in C.O.No. 21365(W) of 1995 dated May 21, 1999 is set aside. FMA No. 588 of 2002 and FMA No. 27 of 2004 are disposed of accordingly along with W.P.No. 8967 (W) of 2007 ; W.P.No. 8926 (W) of 2007; W.P.No. 8915 (W) of 2007; W.P.No. 13139 (W) of 2005; W.P.No. 18237 (W) of 2005 and W.P.No. 14503 (W) of 2006. There would be no order as to costs.