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2025 DIGILAW 608 (GAU)

Mighishe Sepoy Home Guards v. State of Nagaland

2025-04-04

DEVASHIS BARUAH

body2025
JUDGMENT & ORDER : DEVASHIS BARUAH, J. Heard Mr. Joshua Sheqi, the learned counsel appearing on behalf of the petitioner. Mr. K. Angami, learned Senior Government Advocate appears on behalf of the respondent nos. 1, 2 and 3. 2. The present petition has been filed by the petitioner invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution seeking a direction upon the State respondents to regularise the service of the petitioner to the post of Bandman or Quarter Guardman or any other Grade-IV post or to allow the petitioner to go on voluntary pension with all consequential benefits w.e.f. 2003 considering the extraordinary case of the petitioner. To decide as to whether the reliefs so sought for by the petitioner in the instant proceedings can at all be granted by this Court, it would be relevant to take note of facts that led to the filing of this instant writ petition. 3. The petitioner, admittedly, is a Home Guard who has voluntarily provided his service. He was appointed in the year 2003 as stated in the writ petition. It is the further case of the petitioner that on 01.04.2015, while discharging his duties in the Office of the District Commandant, Home Guards, Kohima his superior officer, while fiddling with the .303 Rifle shot the petitioner at the gluteal region of the pelvic bone. The petitioner was thereupon taken to the hospital wherein he received treatment. The petitioner was discharged on 04.04.2015 after an unsuccessful surgery. The petitioner thereupon continued to render his service and sought for regularisation by submitting a Representation on 15.05.2020 on the specific ground that he had sustained bullet injury on duty and under such exceptional circumstances the petitioner ought to be regularised on health grounds so that he can avail the necessary benefits. The said Representation having not been considered the petitioner approached this Court by filing the writ petition which was registered and numbered as WP(C)/74/2020. The said writ petition was disposed of vide an Order dated 24.07.2020, whereby the State respondents were directed to consider the said Representation. It is the further case of the petitioner that the said Representation was not considered in the manner in which it ought to have been done and the Representation was rejected on flimsy grounds. It is under such circumstances the petitioner has approached this Court seeking the reliefs as above mentioned. It is the further case of the petitioner that the said Representation was not considered in the manner in which it ought to have been done and the Representation was rejected on flimsy grounds. It is under such circumstances the petitioner has approached this Court seeking the reliefs as above mentioned. It is also the case of the petitioner that the respondent authorities have adopted a pick-and- choose policy in as much as on one hand the petitioner was not considered for regularisation and on the other hand there were 6 other persons who were also Voluntary Home Guards, who were appointed to different posts vide an Order dated 28.04.2010. 4. It is seen that pursuant to filing of the instant writ petition, this Court had issued Notice vide an Order dated 03.11.2020. The respondent nos. 1, 2 and 3 have filed a joint affidavit-in-opposition on 29.07.2021. In the said affidavit-in-opposition the reasons were mentioned as to why it was difficult to absorb the services of the petitioner in regular service. The reasons mentioned were: i) The Nagaland Home Guards Act, 1988 (for short, the Act of 1988) stipulates that the service of the Home Guards is voluntary in nature and their service is requisitioned on daily wages basis only. ii) As per the Service Rules, i.e., the Nagaland Home Guards (Non- Gazetted) Rules 2015 and more particularly, Rule 6 (i) direct recruitment to the cadre of Guardsman/Bandman shall be made by open competition from amongst the candidates who possess the qualification as prescribed for open competition. iii) The Supreme Court in the case of Grah Rakshak, Home Guards Welfare Association –Versus- State of Himachal Pradesh and Others reported in (2015) 6SCC 247 had categorically mentioned at paragraph- 39 that “...no relief can be granted to the appellants therein either for regularisation of service or for grant of regular appointment on the ground that the service so rendered is voluntary in nature and their requirement in service and there is no continuity of service, month to month basis or year to year basis.” 5. This Court further finds it relevant to take note of paragraph- 9 of the said affidavit wherein the State respondents have stated as to why the representation of the petitioner was rejected. This Court further finds it relevant to take note of paragraph- 9 of the said affidavit wherein the State respondents have stated as to why the representation of the petitioner was rejected. As regards the appointment given to the 6 Home Guards Volunteers to the post of Bandman/Quarter Guardsman it was mentioned that this was prior to the coming in effect of the Rules of 2015. It was also mentioned that the appointment of the 6 Home Guards Volunteers to the post of 1 Bandman/Quarter Guardsman were done as per the procedure. Detailing further in the said affidavit it was mentioned that by Order dated 19.04.2010, a five Member Board was constituted for the purpose of appointment/promotion of the Home Guard Personnel. As per the Minutes of the Meeting of the Board on 26.04.2010, the Board had examined the list submitted by the respective units which were screened to exclude over aged persons and those without full particulars. Thereafter, the six Home Guards were recommended for induction into the regular service in respect to the six clear vacancies. 6. To the affidavit-in-opposition, the petitioner had submitted an affidavit-in-reply wherein the petitioner reiterated his stand made in the writ petition. In addition to that it is the further case of the petitioner that the Rules of 2015 would not apply taking into account that the said Rules were notified only on July 2015 where as the petitioner was injured in the month of April 2015. 7. I have heard the learned counsels appearing on behalf of the parties and have given my anxious consideration to the respective submissions so made. From the materials on record and the submissions, it transpires that the petitioner, by way of the present proceedings, is seeking a direction that the respondents should regularise the services of the petitioner taking into account the exceptional circumstances. This Court finds it relevant to observe that regularisation is neither a source of recruitment nor is it intended to confer permanency upon appointments which have been made without following the due process envisaged by Article 14 and 16 of the Constitution. Essentially, a scheme for regularisation, in order to be legally valid must be one which must be aimed at validating certain irregular appointments which may have come to be made in genuine and legitimate admistrative exigencies. Essentially, a scheme for regularisation, in order to be legally valid must be one which must be aimed at validating certain irregular appointments which may have come to be made in genuine and legitimate admistrative exigencies. The Constitution Bench of the Supreme Court in the case of State of Karnataka Versus Uma Devi , reported in (2006) 4 SCC 1 , dealt with two issues primarily. i) First, whether the employees had a right to seek regularisation on the strength of long and continuous work, and ii) Secondly, whether the directions issued by the Courts for regularisation of the employees under Article 226 of the Constitution were permissible. 8. The Constitution Bench of the Supreme Court in the case of Uma Devi (Supra) held that the claim by the temporary employees to be regularised in service on the basis of long continuance, legitimate expectations, employment under the State and the directive principles cannot be sustained. In respect to the correctness of the directions issued by the Courts for regularisation of the employees under Article 226 of the Constitution, the Constitution Bench answered the same holding inter alia that the courts cannot direct regularisation of employees under Article 226 of the Constitution. 9. This Court further finds it relevant to take note of another judgment of the Supreme Court rendered by 3 judges in the case of State of Jammu and Kashmir and Others –Versus- District Bar Association Bandipora reported in (2017) 3 SCC 410 wherein the Supreme Court observed that the judgment of the Constitution Bench in the case of Uma Devi (Supra) was not an authority for the proposition, that the executive or the legislative cannot frame a scheme for regularisation. It was further observed that the State or its instrumentalities had the power for framing a scheme for regularisation. This Court further finds it relevant to take note of another judgment of the Supreme Court in the case of Union of India –Versus- Ilmo Devi and Another reported in (2021) 20 SCC 290 where the Supreme Court had in unambiguous terms observed that the High Court under Article 226 of the Constitution cannot direct the State to frame a scheme for regularisation. Taking into account the above principles as have been well settled by the Supreme Court, the question therefore arises as to whether this Court would be in a position to direct the State to regularize the services of the petitioner. The answer to the said question has to be in the negative taking into account that any direction so passed for directing the petitioner to be regularised would go contrary to the directions issued by the Constitution Bench of the Supreme Court in the case of Uma Devi (Supra). 10. This Court also has heard Mr. K. Angami, learned Senior Government Advocate appearing on behalf of the respondents, who submits that at present the respondent State does not have a scheme of regularisation in the Nagaland Home Guards and Civil Defence (Non-Gazetted) Service. Taking into account that there is no scheme for regularisation, in view of the judgment in the case of Ilmo Devi (Supra), this Court cannot also direct the respondent authorities to regularise the case of the petitioner. 11. Under such circumstances, the reliefs which have been sought for by the petitioner in the present writ petition cannot be granted. 12. This Court, however, finds it relevant to take note of the submission made by Mr. Joshua Sheqi, the learned counsel appearing on behalf of the petitioner to the effect that the petitioner having been injured on duty, the State Authorities ought to have taken a sympathetic stand towards the well being of the petitioner by providing some form of permanency to his job. It is the opinion of this Court that if the petitioner has been injured on duty, the respondent authorities being a Welfare State is required to take a sympathetic approach to the case of the petitioner. This Court hopes and expects that the respondent authorities being a Welfare State shall take due steps so to sympathetically consider the petitioner’s grievances, that still remains unaddressed. 13. With the above observations and directions, the writ petition stands disposed off.