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2018 DIGILAW 4 (GAU)

Mridul Pathak v. State of Assam

2018-01-02

HRISHIKESH ROY

body2018
JUDGMENT : Hrishikesh Roy, J. Heard the learned Counsel Mr. A. Hussain in the WP(C) No.2887/2009. In the 2nd case i.e. WP(C) No.3983/2012 filed by the same group of litigants, extensive argument is advanced by the learned Counsel Mr. A.K. Purkayastha. The State authorities are represented by Mr. D. Nath, the learned Addl. Sr. Government Advocate. The finance Department is represented by Mr. P. Nayak, the learned Standing Counsel. 2. The petitioners are enrolled as Home Guard Volunteers and seek direction for regularization of their service in the Grade-IV vacancies in the State Secretariat Administration Department or alternately, claim preference in the process of recruitment, in pursuant to the advertisement dated 8.6.2012. In the WP(C) No.2887/2009, the petitioners who were deployed on 15.2.2006 for 6 months in the State Secretariat, challenge the order dated 16.7.2009, whereby the deployed group in the Assam Secretariat are to be replaced by a fresh batch from the reserve Home Guards. 3. The petitioners contend that by virtue of their exposure to work of Grade-IV employees in the Assam Secretariat, they are entitled to be regularized in the vacancies in the Secretariat Administration Department. If absorption in the vacant post is not possible, alternately, they claim preference in the process of recruitment of Grade-IV staff, in the State Secretariat. The learned Counsel argue that the deployed Home Guards rendered their service without blemish and on that premises they question the logic of their replacement by a fresh group of Home Guards, as is proposed by the impugned communication of 16.7.2009. 4. On the other hand the respondents contend that when able-bodied persons are enrolled as Home Guards, they are deployed for active duties on rotation basis and there is no permanency in deployment since the reserve Home Guards are also entitled to have their turn of active duty. 5. As regards the prayer for absorption/service regularization, the learned Government Advocate contends that the concerned Grade-IV vacancies are under the Secretariat Administration Department and by virtue of their temporary deployment in the Secretariat, the petitioners do not have any legal right to the vacancies of the State Secretariat, as those posts will have to be filled up in accordance with the regular norms of recruitment. 6. The Assam Home Guards Act, 1947 was enacted to provide a volunteer reserve group called the Home Guards, to supplement the ordinary police force. 6. The Assam Home Guards Act, 1947 was enacted to provide a volunteer reserve group called the Home Guards, to supplement the ordinary police force. The government can raise Home Guard reserve to discharge security related duties and to deploy them, as per exigencies. The enrolled Home Guards are to undergo training and are to be kept ready for deployment to duty. The manner of deployment from the reserve category is prescribed by the Assam Home Guards Rules, 1947 and their disengagement from deployment, is also prescribed by the Rules. But the key feature is that Home Guards are enrolled on voluntary basis and their deployment is not permanent and every enrolled personnel who are kept on reserve, are entitled to be deployed for active duty and rotational policy is envisaged in the organization. 7. In an earlier proceeding in the Civil Rule No.2439/1990 the Single Judge on 8.9.1993 had ordered for regularization of the Home Guards. But in the resultant Writ Appeal No.380/1994 filed by the State, the Division Bench on 12.6.1997 had negated the claim and had categorically held that regularization of the Home Guards, ordered by the Writ Court, is not implementable. Considering the voluntary nature of service of the Home Guards, their rotational deployment on short term basis, it would be inappropriate in my view to confer a permanent status on the Home Guard Volunteers. On the same logic, they cannot claim regularization. Therefore the Division Bench verdict in the W.A. No.380/1994, in my perception makes better sense and for this reason I am disinclined to allow the petitioners claim for regularization of service. 8. In so far the preference claim made in this case, when vacancies arise within the Home Guards Directorate/Organization, the Home Guards with good track record during their temporary deployment may claim preference in the process of regular recruitment. But by virtue of their deployment in other organization they cannot claim preferential recruitment, in the vacancies of those Departments. 9. That apart, the petitioners were not deployed against any specific posts vacancies and therefore it will be irrational to entertain their claim for absorption against regular vacancies, in the Secretariat Administration Department. 10. Nevertheless by virtue of the status quo order passed on 20.7.2009 in the WP(C) No. 2887/2009, the deployed personnel could not be replaced. 9. That apart, the petitioners were not deployed against any specific posts vacancies and therefore it will be irrational to entertain their claim for absorption against regular vacancies, in the Secretariat Administration Department. 10. Nevertheless by virtue of the status quo order passed on 20.7.2009 in the WP(C) No. 2887/2009, the deployed personnel could not be replaced. Moreover, on account of the interim order passed on 22.8.2012 in the 2nd case i.e. the WP(C) No.2883/2012, the same group continued to render duties in the Assam Secretariat. But the key question is whether any legal right would accrue to the petitioners by virtue of continuance of duties, in the State Secretariat, on the strength of Court's interim order. 11. In the above context, the Court must consider that the petitioners had enrolled themselves as volunteers in the Home Guards Organization and were paid wages and not any salary relatable to government posts. The on reserve volunteers were deployed on requisition and a rotational policy is envisaged in the Home Guards organization. The creation of Grade-IV posts in the State Secretariat has no connection with the deployed Home Guards in the same establishment. Therefore the temporarily deployed group do not have any legal basis to seek absorption in the Grade-IV vacancies in the Secretariat Administration Department. 12. Moreover the State is obliged to adhere to the constitutional norms of recruitment for the vacancies under the Government. That apart, the petitioners were deployed in the Secretariat only for 6 months and their continuation of service is on account of the High Court's order. Hence special right would not accrue for such litigants and if they wish to apply for Government jobs, they must compete with all other interested aspirants. To allow otherwise will undermine the requirement of Article 14 and 16 of the Constitution. 13. Having concluded thus, the respondents are at liberty to fill up available vacancies in the State Secretariat, through a transparent and competitive process. If any of the deployed Home Guards apply for regular recruitment, their case should be considered on merit along with other applicants. However if any of them crosses the upper age limit, they may apply for age relaxation and the same is ordered to be considered, as per the applicable norms. But by virtue of their temporary deployment, the petitioners are disentitled to claim regularization or preference, in the process of regular recruitment. 14. However if any of them crosses the upper age limit, they may apply for age relaxation and the same is ordered to be considered, as per the applicable norms. But by virtue of their temporary deployment, the petitioners are disentitled to claim regularization or preference, in the process of regular recruitment. 14. That apart since Home Guards are enrolled for voluntary service and deployment is temporary and is to be made on rotational basis, it is further declared that the petitioners claim for continued deployment in the State Secretariat has no legal basis. Hence their replacement from the reserve volunteers cannot be a matter of interference by the Court. With this conclusion the interim order in both cases are recalled accordingly. With these orders the cases are disposed of without any order on cost.