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2008 DIGILAW 493 (ORI)

Ananta Kishore Pandit v. State of Orissa

2008-07-01

B.P.DAS, R.N.BISWAL

body2008
ORDER 01.07.2008 — Heard Mr. Ramakanta Mohapatra, learned counsel for the petitioners and learned counsel appearing for the State. The petitioners, ten in number, are ex-Home Guards employed in Jajpur district, challenging the order of termination of their services issued vide Annexure-2 dated 29.4.2006 with effect from 30.4.2006 on the ground that they have served for more than 6 years, have filed this writ application. The aforesaid termina¬tion was made as indicated in the counter affidavit by following the instructions issued as per the Home Guards Compendium of Instruction, 1985 issued by Government of India in their Ministry of Home Affairs, New Delhi. Rule 1.10 i.e., Home Guards Enroll¬ment Policy envisages that unemployed persons should not be retained as Home Guards over the stipulated period so as to preserve the voluntary character of the organization. By retain¬ing Home Guards for longer period, erosion in the voluntary character of the organization is taking place. In this regard, it is worthwhile to quote the provision of law i.e., Section 3 of Orissa Home Guards Act, 1961, which runs as follows :- “3. Appointment of Members - (1) Subject to the approval of the Commandant-General, the Commandant may appoint as members of the Home Guards within his jurisdiction such number of persons, who are fit and willing to serve, as may from time to time be determined by the State Government and may appoint any such member to any office of command in the Home Guards. (2) Notwithstanding anything contained in Sub-sec. (1) the Commandant General may appoint any such member to any such office as aforesaid under his control. Similarly, Rule 3 of Orissa Home Guard Rule, 1962 reads as follows : 3. Appointment of members of Home Guards- No person shall be appointed as a member of the Home Guards; (a) unless he has attained the age of twenty and has completed the age of sixty years, (b) unless he has passed at least the lower primary examination in any languages; and (c) unless he has been medically examined and is in the opinion of the Commandant physically fit : Provided that the Commandant-General or the Deputy Commandant-General, if so authorized by the Commandant-General, may in suitable cases relax the condition prescribed in Clauses (a) and (b). Rules 8 & 9 of the said Rules read as follows :- 8. Rules 8 & 9 of the said Rules read as follows :- 8. Term of office- The term of office of a member of the Home Guards shall be three years : Provided that if any such member is found to be medically unfit to continue as a member of Home Guards his appointment may be terminated before the expiry of the aforesaid term of office: Provided further that a person appointed as a member of the Home Guards shall be eligible for re-appointment. 9. Limit of age for a member of the Home Guards - No member of the Home Guards shall continue to be such member after comple¬tion of the age of 60 years: Provided that the Commandant-General, or the Commandant may relax the age-limit in suitable cases.” Learned counsel for the petitioners submits that as per Section 3 of the Act, the appointment was made as per the approv¬al of the Commandant-General, who are fit and willing to serve as Home Guards. Rule 3 provides the minimum age/maximum age limit, educational qualification and physical fitness. Rule-8 which is most important provides that the term of office of member of Home Guards is 3 year. The said Rule further provides that if any such member is found medically unfit to continue as a member of Home Guards his appointment may be termi¬nated before the expiry of the aforesaid term of 3 years and they are also eligible for reappointment and there is a bar for conti¬nuance of member of Home Guards beyond 60 years of age. The legislative intention of bringing the aforesaid Statute as indicated in the Statute is as follows :- “Whereas it is expedient to provide a Volunteer Organization for use in emergencies and other purposes in the State of Orissa. It is hereby enacted by the Legislature of the State of Orissa in the Twelfth Year as indicated in the aforesaid Act.’ It is not disputed by the parties that large number of Home Guards were deployed in the State of Orissa. According to the petitioner they are serving in the Organization for more than 6 years and it is not disputed by the learned counsel for the State that the action pursuant to Annexure-2 has only been taken in Jajpur District. This is the instruction issued by the Government of India, in their Home Affairs Department in the year 1985. According to the petitioner they are serving in the Organization for more than 6 years and it is not disputed by the learned counsel for the State that the action pursuant to Annexure-2 has only been taken in Jajpur District. This is the instruction issued by the Government of India, in their Home Affairs Department in the year 1985. There is nothing in the Statute or in the Rules not to allow the Home Guards to continue beyond the period of 6 years to preserve the voluntary character of the Organization. The law enacted by the lawmakers did not make any provision in the Statute for re¬stricting the period of service to six years. The executive instruction cannot take the place of Statutory provision. Law is well settled that the Statutory/Executive Instructions, can only fill in gaps not covered by Rules, cannot be in derogation of Statutory Rules. In this regard, we may refer to the case of Union of India and another v. Central Electrical & Mechanical Engineering Service Group A (Direct Recruits) Association, CPWD and others. AIR 2008 Supreme Court, P-3. In Para 10 it is held that an executive order must be passed in conformity with the Rules. Power of the State Government to issue executive instructions is confined to filling up of the gaps or covering the area which otherwise has not been covered by the existing Rules. There is no provision under the Act to discharge a person from service of Home Guard, save and except, the Rules 8 & 9. The executive instructions, as relied upon by the opposite parties, in order to remove the petitioner from service is contrary to the statutory provisions. This being the position the order passed in Annexure-2 basing upon the executive instruction cannot withstand judicial scrutiny. Hence, the order of termination of the serv¬ices of the petitioners in Annexure-2 is set aside. The writ application is accordingly, allowed. Application allowed.