Research › Search › Judgment

Calcutta High Court · body

2010 DIGILAW 178 (CAL)

T. Kodanda Rao v. UNION OF INDIA

2010-02-22

PRATAP KUMAR RAY

body2010
JUDGMENT 1. THE writ petitioners enrolled themselves as Home Guards in terms of the Andaman and Nicobar Islands Home Guard Regulation, 1964. The petitioners, under regulation 6 of the said Regulation, completed training and they were assigned with the job in the police service of Andaman and Nicobar Islands. Under Regulation 17 as such they became the public servant within the meaning of Section 21 of the Indian Penal Code. Under Regulation 84, the Home Guards, whose services were requisitioned for assignment in the different services under Regulation 6, also are controlled by different disciplinary proceedings for misconduct in discharge of duties to suffer appropriate punishment subject to their right to prefer an appeal. The Home Guards are entitled to pay and allowances as admissible, including the other benefits as provided under Regulation. 2. THE writ petitioners have prayed for regularization of their services on the ground that they were assigned with the job in the police force long back and they are discharging their duties continuously. The writ petitioners, accordingly, have prayed for a writ of mandamus commanding the respondents to regularize their services though, in the writ petition, they have not made any prayer where their services should be regularized, but different orders and judgments have been annexed including the orders of the Apex Court in support of their claim that they should be absorbed in the police service of Andaman and Nicobar Islands as Group 'C post or in Group 'D' post in Andaman and Nicobar Administration. It is further contended that on an identical posts the respondents- administration, regularized the services of many Home Guards as per their respective qualification in the different posts of Group 'C in the Andaman and Nicobar Police Service and Group 'D" in the Andaman and Nicobar Administration as the case may be in terms of the scheme as framed. But such scheme is not existing at present, due to challenge of the scheme in the writ application which ultimately went to the Supreme Court for adjudication whereby direction to the Andaman and Nicobar Administration to frame new scheme providing identical benefits to all-Home Guards identically situated, was passed. 3. But such scheme is not existing at present, due to challenge of the scheme in the writ application which ultimately went to the Supreme Court for adjudication whereby direction to the Andaman and Nicobar Administration to frame new scheme providing identical benefits to all-Home Guards identically situated, was passed. 3. THIS writ application has been opposed by the learned Advocate appearing for the respondents taking the point of maintainability of the writ application as well as on the ground that the present writ petitioners are not entitled to be treated at par with other Home Guards whose services were regularized for the sole reason that petitioners have not as yet even completed three years service as Home Guards. It is contended that those Home Guard whose services have been regularized in posts under the Andaman and Nicobar Police Service or in the Administration worked for more than ten (10) years i.e. a considerable long period. 4. HOWEVER, considering the respective contention of the parties, the question of maintainability of the writ application is to be considered first and for an answer to that, Andaman and Nicobar Islands Home Guard Regulation 1964 is required to be considered. The relevant portion of the Regulations 4,5,6,7,8,11(1), 13,14,15 and 17 which are quoted herein below: "4. (1) Subject to the approval of the Commandant, the Area Commandant may appoint as members of the Home Guards for each area such number of persons, who are fit and willing to serve, as may from time to time be determined by the Chief Commissioner in respect of each such area and may appoint any such member to any office of command in the Home Guards. (2) Notwithstanding anything contained in sub-section(l), the Commandant may appoint any such member to any post under his immediate control. 3) Every member of the Home Guards shall receive any certificate which shall be in such form and shall be issued by such authority as may be prescribed. (4) every member of the Home Guards shall received such training during such hours and for such period as may be prescribed including training in- (a) Police duties like control of traffics and crowds ; (b) rescue operations, first-aid and fire fighting ; (c) map reading, fieldcraft, wireless operation and use of firearms. 5. (4) every member of the Home Guards shall received such training during such hours and for such period as may be prescribed including training in- (a) Police duties like control of traffics and crowds ; (b) rescue operations, first-aid and fire fighting ; (c) map reading, fieldcraft, wireless operation and use of firearms. 5. (1) A member of the Home Guards shall be required to serve the Government for such period as may be prescribed but any such member may be discharged from the Home Guards at any time by such authority on such grounds and subject to such conditions as may be prescribed; Provided that it shall not be necessary for such authority to disclose to grounds if such authority considers that such disclosure will be against the public interest. (2) An order of discharge under sub-section (1) shall be final. 6. The Area Commandant may, by order at any time call out a member of the Home Guards for training or for exercising the powers and discharging the duties, whether within or outside the Islands, that may be assigned to the Home Guards by or under this Regulation. 7. (1) A member of the Home Guards, when called out by an order under Section 6, shall have the same powers, privileges and protection as an officer of police appointed under any law for the time being in force. (2) No prosecution shall be instituted against the member of the Home Guards in respect of anything done of purported to be done by him in the exercise of his powers or the discharge of his duties as such member except with the previous sanction of the Commandant. 8. A member of the Home Guards, when called out by an order under Section 6, in aid of the police force, shall be under the control of the Officers of the Police force in such manner and to such extent as may be prescribed. 11. (1) Every member of the Home Guards shall, during the period of training or service in the Home Guards, receive from the Government such allowances as may be prescribed. 13. 11. (1) Every member of the Home Guards shall, during the period of training or service in the Home Guards, receive from the Government such allowances as may be prescribed. 13. (1) The Area Commandant may, by order in writing, suspend or remove from the Home Guards any member of the Home Guards under his control- (a) Who on being called out by an order under Section 6, without reasonable cause neglects or refuses- (i) to obey such order, or (ii) to exercise the powers and discharge the duties as a member of the Home Guards, or (iii) to obey any lawful order or direction given to him as a member of the Home Guards; or (b) who is guilty of any breach of discipline or any misconduct. The Commandant shall have the like authority in respect of any member of the Home Guards appointed to a post under his immediate control and may also dismiss any member of the Home Guards on the ground of conduct which has led to his conviction on a criminal charge. (2) No order under sub-section(1) shall be passed unless the member of the Home Guards affected by such order is given an opportunity to be heard in his defence: Provided that this sub-section shall not apply where a member of the Home Guards is dismissed on the ground of conduct which has led to his conviction on a criminal charge. (3) The suspension or removal of a member of the Home Guards under this section shall be in addition to any penalty to which such member may be liable under Section 14 or any other law for the time being in force. 14. (1) If any member of the Home Guards, on being called out by an order under section 6, without reasonable cause neglects or refuses- (a) to obey such order, or (b) to exercise the powers and discharge the duties as a member of the Home Guards, or (c) to obey any lawful order or direction given to him as a member of the Home Guards, He shall, on conviction be punishable with simple imprisonment for a term which may extend to three months, or with fine which may extend to two hundred and fifty rupees, or with both. 15. 15. (1) Any member of the Home Guards aggrieved by an order of the Area Commandant may appeal against such order to the Commandant and any member aggrieved by an order of the Commandant (not being an order passed in appeal) may appeal against such order to the Chief Commissioner within thirty days of the date on which he was served with notice of such order. The Commandant or the Chief Commissioner, as the case may be may pass such order as he thinks fit confirming modifying or annulling the order appealed against. (2) The Chief Commissioner may of his own motion or on application call for and examine the record of any order passed by the Area Commandant or a Commandant and revise, after such inquiry as he may deem necessary, any such order: Provided that no order prejudicial to a person shall be passed under this sub-section without giving him a reasonable opportunity of being heard; Provided further that the Chief Commissioner shall not issue any order under this sub-section in any case- (a) Where an appeal against the order lies and the time within which such appeal can be made has not expired or the person has not waived his right to appeal; (b) Where the order is the subject of an appeal; (c) Where the application is made by an aggrieved person for such revision unless the application is made within ninety days from the date on which the order was served on the appellant. 17. Member of the Home Guards noting under this Regulation shall be deemed to be public servants within the meaning of Section 21 of the Indian Penal Code. 5. RULE 1965 was framed in terms of Section 16, of the Andaman and Nicobar Islands Home Guards Regulation, 1964, The Rule as framed is named as Andaman and Nicobar Home Guard Rules, 1965. (hereinafter for the brevity referred to as the 'concerned Rules'). The relevant portion of the Rules 8, 9, 15,16 and 20 read such- "8. 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 the Home Guards, his appointment may be terminated before the expiry of three years. Provided further that a person appointed shall be eligible for reappointment. 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 the Home Guards, his appointment may be terminated before the expiry of three years. Provided further that a person appointed shall be eligible for reappointment. Provided also that the services of a member of the Home Guards may be terminated at any time by the Area, Commandant or the Commandant after giving him one month's notice. 9. A member of the Home Guards may continue to be such member until he attains the age of 50 years. Provided that the Commandant or the Area Commandant may relax the age limit in suitable cases. 15. A member of he Home Guards shall, as far as possible be supplied with the uniform according to the scale pacified in Schedule. He shall, while on duty, wear the uniform supplied to him. He may also carry a riffle or a revolver or any other weapon, sanctioned by the Chief Commissioner from time to time. 16. (1) The member of the Home Guards shall undergo basic training in such subjects and of such nature are specified in Schedule B. (2) The member of the Home Guards shall ordinarily be required to undergo training only between the hours of 5.30 and 8.00 in the morning and 4.00 and 6.00 in the evening. The period of training shall be for a minimum of thirty days and shall not exceed forty days. (3) The total duration of the training of urban Home Guards on any day shall not be less than two hours and not more than three hours. (4) The training of rural Home Guards may be organized in camps. 20. (1) The Home Guards will:- (a) serve as an auxiliary to the Police and generally help in maintaining internal security. (b) Half the community in any kind of emergency like air raid, fire, flood epidemic, earthquake, cyclone etc. (c) Promote communal harmony and assistance to the govt in protecting weaker section of society and (d) Participate in social economic and welfare activities as such as adult education, health hygiene, and development schemes and such other tasks as are .deemed useful. (2). (c) Promote communal harmony and assistance to the govt in protecting weaker section of society and (d) Participate in social economic and welfare activities as such as adult education, health hygiene, and development schemes and such other tasks as are .deemed useful. (2). The home guards will also have functional activities to provide essential services such as motor transport pioneer, and engineer groups, fire brigade nursing and first aid operation of water and power supply in installation etc. (3) Members of Home Guards may be called out for duties- (a) Assist the police force in the maintenance of law and order (b) To work in close association with civil defence organization, and (c) to perform such other duties, in connection with the protection of persons, the security of property or public safety or for any work in connection with matters mentioned in sub-section(l) and (2). (4) A member of the Home Guards constituted for any area shall be liable to serve in any other area where the Regulation is enforced." 6. HAVING regard to the aforesaid Regulation and the concerned Rules, it appears that enrolment of the Home Guards though is voluntary action, but once they are enrolled, their service could be requisitioned under Regulation 6 for assignment to any job in the police force and other jobs as stipulated therein in the Rules and when they will discharge services, they will be treated as public servant. It further appears that they are entitled to get pay and allowances as well as uniform. They are also controlled by the disciplinary proceeding where from an appeal and revision is maintainable against the adverse order in any disciplinary proceeding. Now, I have to consider the concerned Rules and Regulation to test whether under such Regulation and Rules, they are holding the office or post under the concerned government, at the time when they are discharging their duties alike to the police personnel and alike to the other personnel of the Andaman and Nicobar Administration when their services are requisitioned and assigned under Regulation 6 aforesaid. 7. TO identify whether such post is a civil post or not while discharging duties, the issue was considered in the case of State of Assam and Ors. v. Kanak Chandra Dutta reported in 1967 SC 884 a judgment of the Constitutional Bench. 7. TO identify whether such post is a civil post or not while discharging duties, the issue was considered in the case of State of Assam and Ors. v. Kanak Chandra Dutta reported in 1967 SC 884 a judgment of the Constitutional Bench. The paragraph 9,10, and 11 of the said judgment are quoted herein below for effective adjudication of this case. "9. The question is whether a Mauzadar is a person holding a civil post under the State within Art. 311 of the Constitution. There is no formal definition of "post" and "civil post". The sense in which they are used in the Services Chapter of Part XIV of the Constitution is indicated by their context and setting. A civil post is distinguished in Art. 310 from a post connected with defence. It is a post on the civil as distinguished from the defence side of the administration, an employment in a civil capacity under the Union or a State, see marginal note to Art. 311. In Art. 311, a member of a civil service of the Union or all-India service or a civil service of a State is mentioned separately and a civil post means a post not connected with defence outside the regular civil services. A post is a service or employment. A person holding a post under a State is a person serving or employed under the State, see the marginal notes to Arts. 309, 310 and 311. The heading and the sub-heading of Part XIV and Chapter-I emphasis the element of service. There is a relationship of master and servant between the State and a person said to be holding a post under it. The existence of this relationship is indicated by the State's tight to select and appoint the holder of the post, its right to spend and dismiss him its right to control the manner and method of his doing the work and the payment by it of his wages or remuneration. A relationship of master and servant may be established by the presence of all or some of these indicia, in conjunction with other circumstances and it is question of fact in each case whether there is such a relation between the State and the alleged holder of a post. 10. In the context of Arts. 309,310 and 311, a post denotes an office. 10. In the context of Arts. 309,310 and 311, a post denotes an office. A person who holds a civil post under a State holds "office" during the pleasure of the Governor of the State, except as expressly provided by the Constitution, see Article 310. A post under the State is an office or a position to which duties in connection with the affairs of the State are attached an office or a position to which a person I appointed and which may exist apart from and independently of the holder of the post. Article 310(2) contemplates that a post may be abolished and a person holding a post may be required to vacate the post, and it emphasizes the idea of a post existing apart from the holder of the post. A post may be created before the appointment or simultaneously with it. A post is an employment, but every employment is not a post. A casual labourer is not the holder of a post. A post under the State means a post under the administrative control of the State. The State may create or abolish the post and may regulate the conditions of service of persons appointed to the post. 11. Judged in this light, a Mauzadar in the Assam Valley is the holder of a civil post under the State. The State has the power and the right to select and appoint a Mauzadar and the power to suspend and dismiss him. He is a subordinate public servant working under the supervision and control of the Deputy Commissioner. He receives by way of remuneration a commission on his collections and sometimes a salary. There is a relationship of master and servant between the State and him. He holds an office on the revenue side of the administration to which specific and onerous duties in connection with the affairs of the State are attached an office which falls vacant on the death or removal of the incumbent and which is filled up by successive appointments. He is a responsible officer exercising delegated powers of Government. Mauzadars in the Assam Valley are appointed Renevue Officers and ex officio Assistant Settlement Officers. Originally, a Mauzadar may have been a revenue farmer and an independent contractor. He is a responsible officer exercising delegated powers of Government. Mauzadars in the Assam Valley are appointed Renevue Officers and ex officio Assistant Settlement Officers. Originally, a Mauzadar may have been a revenue farmer and an independent contractor. But having regard to the existing system of his recruitment, employment and function, he is a servant and a holder of a civil post under the State." 8. IT appears that relationship of master and servant may be established by the presence of all or some of these indicia, in conjunction with other circumstances which has been discussed in paragraph 9 of the said report. The same indicia as referred to are right to select and appoint the holder of the post, right to suspend and dismiss him, right to control the manner and method of his doing the work and the payment of his wages or remuneration. In the instant case it appears that under Regulation 6, the Home Guards are placed in training course and are assigned for discharging their duties either in the police service and other organization under Andaman and Nicobar Administration to discharge their duties as stipulated in the Rule. During their service period, they are under the control of the superior officer who is disciplinary authority, and they may be suspended from service or may be removed following departmental proceeding. They are also entitled to assail the order of departmental proceeding in an appeal to the Appellate Authority prescribed including further challenge to revisional authority under the said Regulation. It further appears that they are entitled to get pay and allowances and they have a specific dress code/uniform which is required to be followed/ used at the time of rendering service. As such, it appears that the Andaman and Nicobar Administration has a direct control over Home Guards whose services are assigned considering the test prescribed in case Kanak Chandra Dutta (supra) wherein Maujadars who were getting only commission, were considered as holder of post under the State, I am of the view that these Home Guards during the period when they would discharge their duties either in Andaman and Nicobar Police service or in the Andaman and Nicobar Administration in terms of Rules and Regulation as referred to, surely, would be considered as holder of the office of the post. 9. 9. THE writ petitioners has prayed for a writ of mandamus commanding the respondents to consider their regularization in service posts where they are assigned and rendered continuous services as alleged for appointment in Police Service or in the service of Andaman and Nicobar Administration by way of regularization of their service. Hence, it appears that the writ petitioners made prayer for appointment in the police service of Andaman and Nicobar Islands in Group 'C or in Group 'D" post in the Andaman and Nicobar Administration as the case may be as per eligibility criteria and their qualification. 10. LEARNED Advocate for the petitioner, however, submits that in an earlier writ application being WPCT No. 058 of 2003, a Division Bench of the Hon'ble High Court held otherwise that no application was maintainable before the Central Administrative Tribunal assailing the grievances of the Home Guards praying inaction to regularize service, which was registered as WPCT No. 073 of 2003 and which was heard along with WPCT No. 158 of 2003 and order passed therein is binding before this Court. An order was passed on 16.12.2003 by the Division Bench of this Court in the said matter. Observation and finding of the Court in answer to the submission made by the learned Advocate appearing for the Administration, is to this effect:- "He secondly, contends that Home Guards appointed under the 1964 Rules and performing the duties under the 1965 Regulation are not civil servants and therefore are not entitled to apply and obtain the relief under the Administrative Tribunal Act. Mr. Saroop had relied on an unreported decision in Rajesh Mishra v. Govt, of NCT of Delhi in CWP No. 4388 of 2001 by the Delhi High Court disposed of on 29th April, 2002 by the Division Bench. He drew our attention to paragraph 50 of the said decision to contend that the petitioners therein not being civil servants could not maintain an application under Section 19 of the Administrative Tribunal Act. Therefore, the decision of the learned Tribunal is without jurisdiction. We may refer to this last contention of Mr. Saroop first. He drew our attention to paragraph 50 of the said decision to contend that the petitioners therein not being civil servants could not maintain an application under Section 19 of the Administrative Tribunal Act. Therefore, the decision of the learned Tribunal is without jurisdiction. We may refer to this last contention of Mr. Saroop first. In the said decision though it was so held in paragraph 50, but the Delhi High Court did not ultimately dismiss the application but in paragraph 56 directed the appropriate Government to evolve an appropriate scheme in relation to Home Guards, who have been rendering services for a number of years. Under Section 14, the Central Administrative Tribunal has jurisdiction in relation to the recruitment matter concerning recruitment to any civil service or a civil post under the Union and all service matters pertaining to service in connection with the affairs of the Union, concerning a person appointed to any civil service or post or a person whose service has been placed at the disposal of the Central Government. The Home Guards Act does not provide for a recruitment process. The engagement as Home Guards is not an engagement in service or an engagement to a civil post under the Union. Therefore, we do not find that the respondents could maintain the claim before the learned Central Administrative Tribunal for the grievances ventilated by them. But the fact remains that when the Home Guard is engaged or called out in service, he would be entitled to regular pay from his employer and reinstatement after discharge. Therefore, a person, while performing as Home Guard is entitled to receive his pay from his employer regularly. In these circumstances, we treat this writ petition as an original writ petition and dispose of the same in the following manner." After considering the writ application as original writ application, though, it was filed assailing the order of the Central Administrative Tribunal, however, the said Division Bench affirmed the order of the Tribunal in the concluding portion of the judgment which reads as follows :- "Having regard to the fact that the Home Guards are being employed and are compelled to perform the duties of regular employees, we feel that the decision of the learned Tribunal is justified. We, therefore, are not inclined to interfere with the decision of the learned Tribunal. We, therefore, are not inclined to interfere with the decision of the learned Tribunal. The appropriate authority shall frame a scheme as directed by the learned Tribunal. If necessary, by issuing an appropriate Notification for the purposes mentioned in the order appealed against. When the scheme is to be formulated, the appropriate authority shall take into consideration the principles laid down in the decision the Pantha Chatterjee (supra)" 11. LEARNED Advocate for the writ petitioner submits that the Division Bench accordingly modified the writ application as the original writ application. However, having regard to order as referred to which is annexed as Annexure P-61 of the writ application, it appears that though the Court considered the same as Original application but in terms of the Rules framed under Article 226 of the Constitution of India read with Appellate Side Rule of the High Court at Calcutta, there was no scope to the said Division Bench to hear any writ application as original writ application unless and until such writ application was assigned by the Administrative order of the Hon'ble Chief Justice as per the Appellate Side Rules read with rules framed under Article 226 of the Constitution of India by the High Court. The writ application is only maintainable as original application before the learned Single Bench of the High Court and thereafter mandamus appeal is maintainable which is registered as MAT before the Division Bench of High Court and under no circumstances the Original writ Application is maintainable in the Division Bench of High Court at Calcutta, except the Writ application filed under Public Interest Litigation or praying Habeas Corpus writ. The Public Interest Litigation and the Habeas Corpus matters are covered by rule which provides the original application to be heard by the Division Bench except that no other matters could be heard by the Division Bench unless there is a specific assignment by order of the Hon'ble Chief Justice in the event of reference of the Original Writ Application by the learned Single Bench to the larger Bench. In the order of said Division Bench dated 16.12.2003 passed in WPCT No. 073 read with WPCT No. 158 of 2003, it appears that there was no recording that the matter was assigned by the Hon'ble the Chief Justice for hearing it as Original Application. 12. In the order of said Division Bench dated 16.12.2003 passed in WPCT No. 073 read with WPCT No. 158 of 2003, it appears that there was no recording that the matter was assigned by the Hon'ble the Chief Justice for hearing it as Original Application. 12. IT appears that said Division Bench got the jurisdiction to entertain and hear the matter as the order of the Central Administrative Tribunal was under challenge in that writ application and accordingly it was registered as WPCT No. 073 of 2003 read with WPCT No. 158 of 2003. IT appears that in the said order dated 16,12.2003, the finding of the Division Bench that under Section 14 of the Central Administrative Tribunal, the Tribunal had no jurisdiction to interfere with the matter was not a finding on considering the Regulation of 1964 and the Rules, 1965 as referred to relating to the Home Guards of the Andaman and Nicobar Islands. There is no whisper also about the identification of relationship of master and servant on the reflection of the said Regulation 1964 and Rules 1965. The Division Bench accordingly expressed views wherein there was no argument advanced by referring to Andaman and Nicobar Islands Home Guard Regulation, 1964 and Andaman and Nicobar Home Guard Rules, 1965 as well as no argument advanced regarding the test relating to 'holder of post' identifying the relationship of master and servant on reflection of the case State of Assam v. K. C. Dutta (supra). Since there was no argument advanced, and the Court also did not address any point on considering those judgments and relevant regulation which are the subject matter of consideration by this Court in the present application in view of the argument advanced by the learned Advocates appearing for the respective parties, I am of the view that the order and judgement dated 16.12.2003 so far as its finding that the original application under Section 14 of the Administrative Tribunal Act was not maintainable before the Central Administrative Tribunal could not be said as a binding precedent, having regard to the legal position settled as discussed hereinafter. That in the case of M/s. Goodyar India Ltd. v. State of Haryana, reported in AIR 1990 SCC 781 this point has been dealt with elaborately to this effect that when any point on the basis of rules and the regulations are not argued, discussed and there is no answer given by addressing the issue by the Court, the finding could not be binding precedent. The same view expressed in the case of Mittal Engineering Works [P] Ltd. v. Collector of Central Central Excise, Meerut, reported in (1997)1 SCC 203 . 13. IN the case of Municipal Corporation of Delhi v. Gurnam Kaur, reported in (1989)1 SCC 101 , the Court held that "a decision should be treated as given per incuriam when it is given in ignorance of a statute or of a rule having the force of a statute'. IN the constitutional bench judgment passed in the case of State of Punjabi. Baldev Singh" reported in (1999)6 SCC 172 , the Court held "that a decision of the Court takes its colour from the question involved in the case in which it was rendered". In the case of Regional Manager and Ors. v. Pawan Kumar Dubey, reported in AIR 1976 SC1766, a judgment of three judges Bench the Court held "one additional or different fact may make a world of difference between conclusions in two cases even when the same principles are applied in each case to a similar facts." 14. THE principles of "circumstantial flexibility" to this effect that one additional or different fact may make a world of difference between conclusions in two cases also has been reflected in the judgment passed in the case of Bharat Petroleum Corporation Ltd. India v. N. R. Vairmani, (2004)8 SCC page 579. The same principle reiterated to discuss rule of binding precedent in the case Sarva Shramik Sanghatana (KV) Mumbai v. State of Maharashtra and Ors., reported in (2008)1 SCC 494 in the case of Dr. Rajbir Singh Dalai v. Chaudhuri Devilal University, Sirsa and Anr., reported in (2008)9 SCC 284 wherein views expressed in the case of Quinn v. Leatham reported in 1901 AC 495, Ambika Quarry Works v. State of Gujarat, reported in (1987)1 SCC 213 were considered. The same principle reiterated by the Court in the case of Bank of India and Another v. K. Mohandas and Ors., reported in (2009)5 SCC 313 . The same principle reiterated by the Court in the case of Bank of India and Another v. K. Mohandas and Ors., reported in (2009)5 SCC 313 . Having regard to the aforesaid judgment in the field, the finding of the said Division Bench wherein the relevant provisions of Andaman and Nicobar Home Guards Regulation, 1964 and Andaman and Nicobar Islands Home Guards Rules, 1965 were not addressed to answer the point with due regard, cannot be a binding decision before this Court. 15. THE writ petitioners have prayed for appointment by way of regularization in those posts which are in the Andaman and Nicobar Police Service as well as in Andaman and Nicobar Administration by referring the judgment of the different Courts. This Court is of the view that the writ application is not maintainable herein as under the Administrative Tribunal Act, 1985 such type of cases are required to be adjudicated by the learned Tribunal constituted in terms of provision of Article 323 (A) of the Constitution of India. 16. CONSIDERING my finding and observation above, I am of the view that the writ is not maintainable and the writ application is liable to be dismissed on the ground of maintainability. But following the judicial discipline in terms of path discussed by the Apex Court in the case Dr. Vijay Laxmi Sadho v. Jagdish reported in (2001)2 SCC 247 , a judgment of three Judges Bench and the case Pradip Chandra Parija and Ors. v/s. Pramod Chandra PatnaikA Ors., reported in (2002)1 SCC page 1,1 should refer the matter for a decision by larger Bench, on the point as follows :- "Whether on the facts of this case, writ application is maintainable in High Court and Central Administrative Tribunal has no jurisdiction to decide it". 17. REGISTRY is directed to place this file before the Hon'ble the Chief Justice for His Lordship's decision to constitute a larger Bench, as to be considered as fit and proper.