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2017 DIGILAW 5 (MEG)

Ardinson T. Sangma v. State of Meghalaya

2017-02-20

VED PRAKASH VAISH

body2017
JUDGMENT : V.P. Vaish, J. By way of the present petition, the petitioners seek quashing of the impugned termination order dated 25th June, 2014 whereby the services of the petitioners were dispensed with. The petitioners also prayed for direction to the respondents to reinstate them in services as Forest Guards and further to formulate a policy/scheme and reinstate the petitioners with full service benefits. 2. According to the petitioners they are trained as Home Guards Personnels who were requisitioned and appointed as Forest Guards in various forest ranges of Garo Hills area of Meghalaya at different time since 27th April, 1994 onwards. 3. It is stated that the petitioners continued with their services and posted as Forest Guards in the interior region of Garo Hills protecting the forest from timber smugglers, poachers and other anti-social elements. 4. The petitioners allege that they were shocked and surprised to know about the common order dated 25th June, 2014 issued by the respondent No. 9, Divisional Forest Officer, Garo Hills Division, Tura and addressed to the Commandant, Home Guards, West Garo Hills, Tura informing him that the services of the Home Guards volunteers deputed to Garo Hills Division for protection of forest are not dispensed with by the Department. 5. The petitioners, being aggrieved by the impugned order, filed a representation to the respondent Commandant Home Guards on 08th July, 2014 followed by another representation to the Minister of Home (Civil Defence & Home Guards), Government of Meghalaya and also by issuing notice dated 18th August, 2014 under Section-80 of the Code of Civil Procedure praying for their reinstatement. However, they received no response from the respondents. Hence, the petitioners have filed the present petition. 6. Mr. S.P. Mahanta, learned senior counsel for the petitioners vehemtly argued that no prior notice much less show cause notice or termination order has ever been issued to the petitioners and the impugned order was passed without taking into consideration the long length of services rendered by the petitioners. 7. Learned senior counsel further argued that before dispensing with or terminating the services of the petitioners they are required to be given a chance of being heard which is the very minimum requirement under the service jurisprudence to uphold the rule of natural justice. 7. Learned senior counsel further argued that before dispensing with or terminating the services of the petitioners they are required to be given a chance of being heard which is the very minimum requirement under the service jurisprudence to uphold the rule of natural justice. The action of the respondents in issuing a common impugned order is totally illegal, wholly arbitrary and liable to be set aside and quashed. 8. Learned senior counsel for the petitioners has drawn the attention of this Court by contending that the petitioners had been serving the Forest Department in most harsh condition with a meager salary and with an expectation that they would be regularized which was promised from time to time by the respondents but having served the respondents for about 4 to 20 years the petitioners were removed from service. It is also stated that the prime age of the petitioners have been used by the respondents for serving them as Forest Guards with a meager salary of Rs. 9,100/- pm and at the fag end of their careers, the respondents have most casually and unconstitutional removed the petitioners from their services. 9. Learned senior counsel for petitioners also contends that the action of the respondents being violative of principles of natural justice, right to work and also articles 14, 16, 39, 41, 46, 311 and 335 of the Constitution of India, are liable to be set aside and quashed. In support of his submissions, learned senior counsel for the petitioners relied upon the judgment in case 'Davinder Singh and Ors v. State Of Punjab and Ors.' reported as (2010) 13 SCC 88 . 10. The petition has been opposed by the respondents by filing counter affidavit. It is pleaded in the counter affidavit that Home Guards is purely a voluntary organization which acts as an empowering agency imparting basic requisite training to the volunteers. No appointment was made by the Department but the list of trained Home Guards volunteers was forwarded to the respective requisitioning agencies i.e. the Forest and Environment Department which issued the deployment order according to their requirement. 11. Per contra, the respondents have stated that the prerogative to dispense with or reinstatement of the volunteers entirely rest on the Forest and Environment Department being the requisitioning agency which also borne the pay and allowance of the Home Guards volunteers. 12. 11. Per contra, the respondents have stated that the prerogative to dispense with or reinstatement of the volunteers entirely rest on the Forest and Environment Department being the requisitioning agency which also borne the pay and allowance of the Home Guards volunteers. 12. It is further stated that Home Guards is basically a voluntary organization both in concept and nature and their deployment is purely on a voluntary basis. The deployment over a long period of time does not entitle the Home Guards volunteers to hold lien on a post neither does it create any right towards temporary or permanent service with the requisitioning agency. 13. I have heard the counsel for both the parties and carefully perused the documents placed on record. 14. The petitioners were appointed as unarmed Home Guards volunteers and deployed for forest duty on allowance basis. There is nothing on record to show that they are being paid salary like other employees. Only allowances were being paid to the petitioners. 15. At this juncture, it is pertinent to mention that the petitioners have filed a copy of order dated 2nd February, 1995 (Annexure-5) which shows that the deployment was purely temporary and may be terminated without assigning any reason thereof. Similarly order dated 9th October, 1998 (Annexure-10) and order dated 4th March, 2002 (Annexure-11) clearly show that the petitioners will have no claim over the regular service of deployment and their deployment will cease whenever not required by the requisitioning agency. 16. Assam Home Guard Act and Rules, 1947 was adapted in Meghalaya vide Meghalaya adaptation of Laws Order (No. 4) 1947 published in the Gazette of Meghalaya dated 30th November, 1971. Section-6 of the Act deals with appointment of Home Guards and reads as under: "6.(1) Subject to the provisions of this Act and to the rules made there under any person willing to serve as a Home Guard and possessing such qualifications as may be prescribed may be appointed a Home Guard. (2) The Appointment of Home Guards shall be made in such manner and by such authority as may be prescribed. (2) The Appointment of Home Guards shall be made in such manner and by such authority as may be prescribed. (3) (a) Every Officer and every man of the Home Guard shall receive on his appointment a certificate in the form annexed to this Act under the seal of the Commandant General in the case of officers and of the Commandant in the case of men, by virtue of which the person holding such certificate shall be vested with the powers and privileges of a Home Guard. (b) Such certificate shall cease to have effect whenever the person named in it ceases to be a Home Guard and on his so ceasing shall within ten days be surrendered by him to the Commandant General if he is an Officer and to the Commandant in all other cases." Section-8 of the Act deals with discharge and reads as under: "8. (1) Every Officer and man of the Home Guards shall be entitled to receive his discharge from the Home Guards on the expiration of his period of service in the reserve; but any such person may before he become so entitled be discharged by such authority and subject to such conditions as may be prescribed. (2) The prescribed authority may, subject to such conditions as may be prescribed, dismiss any officer or man from the Home Guards." 17. In terms of Part 1.10 of the Home Guards Compendium of Instructions, 2007, Home Guards is a voluntary organization. Part 7.1 (d) of the said Instructions provides that when the Home Guards are called up for duty and have to be paid; the cost will be borne by the agency at whose instant they are called up. The said Paras 1.10 and 7.1 (d) are reproduced herein below: "1.10 Home Guards- Enrolment Policy Home Guards is a voluntary organisation and almost all ranks up to company level are volunteers. A small number of full time paid staff for training, command and control is authorised at city/town, district and state levels. The Home Guards Acts/Rules of State Governments stipulate varying lengths of tenure for members of Home Guards. After completion of their tenures, they are eligible for re-enrolment. However, it is observed that in some states by retaining those members over long period, erosion in the voluntary character of the organisation is taking place. The Home Guards Acts/Rules of State Governments stipulate varying lengths of tenure for members of Home Guards. After completion of their tenures, they are eligible for re-enrolment. However, it is observed that in some states by retaining those members over long period, erosion in the voluntary character of the organisation is taking place. It is suggested that as far as possible, unemployed persons should not be retained as Home Guards over a long period so as to preserve the voluntary character of the organisation. 7.1 Central Finance Assistance (d) When Home Guards are called-up for duty and have to be paid; the cost will be borne by the agency at whose instance the Home Guards are called up. The expenditure is not shareable by the Centre unless they are called up at the instance of the Centre." 18. It is the requisitioning agency, which bear the burden of pay and allowances of Home Guard volunteers. Thus, the prerogative to dispense with and reinstatement of volunteers rests with the requisitioning agency. It is so clearly mentioned in the Terms and Conditions for Deployment of Home Guards Volunteers with Requisitioning Agency filed with the affidavit-in-opposition as Annexure-III. The relevant Terms and Conditions are reproduced herein below: "1. Home Guards is a voluntary organisation and deployment of Home Guard volunteers is purely on a voluntary basis and no Home Guard volunteers can claim for regularisation or permanent retention of service. The deployment duration will be for a period not exceeding 1 (one) year and mere deployment over a long period of time would not entitle the Home Guards volunteers to hold a lien on the post and neither would it create any rights towards temporary or permanent service with the Nominating or Requisitioning Agencies. 2. The deployment of Home Guard volunteers shall be completely at the cost of the Requisitioning Agencies, that is, Pay and Allowances, shall be drawn and disbursed by the Requisitioning Authority @ 7,700/- (Rupees seven thousand seven hundred) only per month plus other allowances as admissible at the time of deployment, for deployment with Arms. For deployment without Arms Duty Allowances is 300/- per day and Washing Allowance is 100/- per month for each Home Guards volunteers. The wages and allowances shall be as per the rates fixed by the Government from time to time." 19. For deployment without Arms Duty Allowances is 300/- per day and Washing Allowance is 100/- per month for each Home Guards volunteers. The wages and allowances shall be as per the rates fixed by the Government from time to time." 19. The Hon'ble Supreme Court in the case of 'Grah Rakshak, Home Guards Welfare Association v. State of Himachal Pradesh and Ors.' reported as (2015) 6 SCC 247 considered the question whether Home Guards of States of Himachal Pradesh, Punjab and NCT of Delhi are regular appointees in the cadre/services of Home Guards and if not whether they are entitled for regularization of their services. The Hon'ble Supreme Court came to the conclusion that no relief can be granted to the appellants either regularization of services or grant of regular appointments. 20. In a batch of appeals before the Hon'ble Supreme Court in 'Grah Rakshak, Home Guards Welfare Association's case (Supra), the appellants had taken a plea that they are working as Home Guards without any break for about 10 to 30 years and in-spite of the same they were not given any benefits available to regular employees. The Hon'ble Supreme Court determined the issue by noticing the genesis of Home Guards Organization and relevant provisions of the Acts and Rules framed by different States with regard to Home Guards Organization and after discussing the judgments relied upon by the parties, came to the following conclusion: "39. In view of the discussion made above, no relief can be granted to the appellants either for regularisation of service or for grant of regular appointments, hence no interference is called for against the Judgments passed by the Himachal Pradesh, Punjab and Delhi High Courts. However, taking into consideration the fact that Home Guards are used during the emergency and for other purposes and at the time of their duty they are empowered with the power of police personnel, we are of the view that the State Government should pay them the duty allowance at such rates, total of which 30 days (a month) comes to minimum of the pay to which the police personnel of the State are entitled. It is expected that the State Governments shall pass appropriate orders in terms of aforesaid observation on an early date preferably within three months." 21. Further, in the case of 'Jiban Krishna Mondal and Ors. It is expected that the State Governments shall pass appropriate orders in terms of aforesaid observation on an early date preferably within three months." 21. Further, in the case of 'Jiban Krishna Mondal and Ors. v. State Of West Bengal and Ors.' reported as (2015) 12 SCC 74 , the Hon'ble Supreme Court considered the question involved in that case whether the appellants and other members of West Bengal Home Guards are in services of the State and whether they are entitled for regularization of their services or any other relief. The Hon'ble Supreme Court gone through the Genesis of Home Guards and observed as under: "28 A careful perusal of the genesis of Home Guards and its role will show that the organisation was always meant to be voluntary and it consisted of people from all walks of life. In fact government servants were also enrolled in the Home Guards to be called as when the need arises. A large number of State enactments i.e. the Andhra Pradesh Home Guards Act, 1948, the Bombay Home Guards Act, 1947, the Assam Home Guards Act, 1947, the Manipur Home Guards Act, 1966, the Madhya Pradesh Home Guards Act, 1947, the Punjab Home Guards Act, 1947, the Rajasthan Home Guards Act, 1963, etc placed before this Court in compilation by the learned Attorney General during the hearing makes it clear that the provisions of all these enactments are more or less similar. The voluntary nature is a basic feature of the Home Guards." The Supreme Court thus came to the following conclusion:- "30. In that view of the matter, we hold that the appellants are not entitled for regularization of service. Further, in absence of any comparison of duties, responsibilities, accountability and status, they may not be equated with the police constables or personnel to claim parity with the pay or scale of pay as provided to the police personnel. The High Court by the impugned judgment and orders rightly refused to grant regularisation of their services. We find no merit in these appeals and they are accordingly dismissed." 22. Further, in the case of 'Rajesh Mishra and Ors. v. Govt. of NCT of Delhi and Ors.' reported as 98 (2002) DLT 624, the Delhi High Court also held that the Home Guards is a voluntary organization and there is no Master-Servant relationship between the Government and Home Guards. Further, in the case of 'Rajesh Mishra and Ors. v. Govt. of NCT of Delhi and Ors.' reported as 98 (2002) DLT 624, the Delhi High Court also held that the Home Guards is a voluntary organization and there is no Master-Servant relationship between the Government and Home Guards. It was further held that they are not civil servants and they cannot move before the Tribunal under Section-19 of Administrative Tribunal Act. 23. In the case of 'State of Manipur and Anr. v. Ksh. Moirangninthou Singh and Ors.' reported as (2007) 10 SCC 544 , the Hon'ble Supreme Court reiterate the voluntary nature of service of members of Home Guards and held as under: "8. It may be noted that Home Guards have been constituted as a voluntary organisation for service in emergencies and hence it cannot be treated on a par with other organisation like the army, paramilitary organisations or the civil police. 11. A perusal of the provisions of the Home Guards Act and the Rules show that the Home Guards was meant to be a reserve force which was to be utilized in emergencies, but it was not a service like the police, paramilitary force or army, and there is no right in a member to continue till the age of 55 years. We approve the view taken by the Delhi High Court in Rajesh Mishra v. Govt of NCT of Delhi. 13. The concept of Home Guards was of a voluntary citizen force as auxiliary to the police for maintaining law and order and for meeting emergencies like floods, fires, famine, etc. and for civil defence." 24. The judgment in case 'Davinder Singh's case (Supra) relied upon on behalf of the petitioners is of no help to the petitioners. In the said case, the appellants were volunteers of the Punjab Home Guards and they were recruited and appointed sometime in the year 1989 under the Punjab Home Guards Act, 1987 and the rules framed thereunder and their services were terminated on the allegation that the appellants were involved in an act of indiscipline. In view the facts of said case, Hon'ble Supreme Court directed for their reinstatement without back wages. In the present case, the petitioners were temporary and were paid duty allowance only. 25. It is thus clear that Home Guards is a voluntary organization and deployment therein is purely on a voluntary basis. In view the facts of said case, Hon'ble Supreme Court directed for their reinstatement without back wages. In the present case, the petitioners were temporary and were paid duty allowance only. 25. It is thus clear that Home Guards is a voluntary organization and deployment therein is purely on a voluntary basis. A perusal of the Terms and Conditions also provides that no Home Guard volunteer can claim for regularization or permanent retention of service and mere deployment over a long period of time would not entitle the Home Guards Volunteer to hold lien on the post and neither would it create any rights towards temporary or permanent service with the nominating or requisitioning agency. 26. In the light aforesaid discussion, the present petition is devoid of any merit, the same deserves to be dismissed and the same is hereby dismissed. 27. There shall be no order as to cost.