Allowed

All Assam Trained Home Guards Association and Anr. v. the State of Assam and 4 Ors.

Gauhati HC8 May 2019WP(C)/3215/2015

Case brief

AI extract

What is this about?

The Single Judge directed the State to provide equal opportunity to all petitioner association members for police recruitment, ruling that recent regularization efforts for untrained personnel could not override the bar on regularizing voluntary forces under existing Government orders without due process.

What did the court decide?

Rule made absolute; petitioner association members must be given equal opportunity for appointment under due process.

All Assam Trained Home Guards Association… — Pension and Retirement Benefits | Gauhati HC (2019)

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GAHC010014732015

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C) 3215/2015

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1:ALL ASSAM TRAINED HOME GUARDS ASSOCIATION and ANR REP. BY ITS PRESIDENT SRI ANANTA DAS, S/O- SRI BIPIN DAS, VILL.BARTEZPUR, P.S.- PALASBARI, DIST.- KAMRUP, ASSAM.

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2: GENERAL SECRETARY SRI KAMAKHYA DAS S/O- LT. HARKANTA DAS R/O- SANTINAGAR FOREST GATE NARRENGI GHY- 26

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VERSUS

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1:THE STATE OF ASSAM AND 4 ORS

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REP. BY THE SECY. TO THE GOVT. OF ASSAM, HOME AND POLITICAL DEPTT., DISPUR, GHY- 6.

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2:THE CHIEF SECY. TO THE GOVT. OF ASSAM HOME AND POLITICAL DEPTT. DISPUR GHY- 6.

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3:THE DIRECTOR GENERAL

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CIVIL DEFENCE and COMMANDAT GENERAL OF HOME GUARDS ASSAM BELTOLA GHY- 28.

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4:THE ADDL. DIRECTOR GENERAL OF POLICE A ASSAM GUWAHATI.

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5:THE SENIOR STAFF OFFICER

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HOME GUARDS ASSAM

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Advocate for the Petitioner : MR.M R CHOUDHURY

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Advocate for the Respondent :

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BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA

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ORDER

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08.05.2019

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Heard Mr. M.H. Ahmed, learned counsel for the petitioner. Also heard Mr. G. Pegu, learned Govt. Advocate appearing for the State respondents.

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The petitioner herein is the All Assam Trained Home Guards Association, registered under the Societies Registration Act, 1860. It is projected that the petitioner association is representing the interest of the Trained Home Guards who have neither been discharged nor engaged on regular basis, yet they are serving as home guards under the State respondents.

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In this writ petition filed under Article 226 of the Constitution of India, the case projected by the petitioner is that some of the Trained Home Guards were earlier not regularized and they were thrown out of service. Accordingly, to safeguards their interest the present petitioner had moved this Court by filing a writ petition, being WP (C) 2716/2006. The said writ petition was disposed of by order dated 05.08.2013, inter alia, directing the respondents to consider the regularization of the members of the petitioner’s association. It is further projected that while the existing members of the petitioner’s association were not regularly appointed and some serving Home Guards were discharged from service, the Director General of Civil Defence and Commandant General of Home Guards, Assam by issuing advertisement dated 16.05.2014, invited fresh applications from the HSLC passed citizens between the age group of 18 to 20 years for filling up 1600 posts of Home Guards. On the ground that the said step was in violation of provisions of Section 8 of the Assam Home Guards Act, 1947 and Rule 4 (III) of the Rules framed thereunder, the petitioner had challenged the said advertisement before this Court by filing WP (C) 2649/2014. This Court had interfered with the said advertisement by an interim order, thereby staying the said advertisement and pursuant thereto, the said advertisement

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dated 16.05.2014 was withdrawn by the authorities. In the meanwhile, the proceedings of WP (C) 2649/2014 was closed by order dated 05.09.2014, and the writ petition was disposed of. It is further projected that thereafter by a W.T. message dated 19.02.2015, the Additional Director of Police (A), Assam had issued a direction to all concerned that no fresh Home Guards, whether trained or untrained, shall be engaged or utilized in their respective districts and organizations against existing vacancy of Home Guards without prior approval from the Assam Police Headquarters. However, in the meanwhile, the Office of the Director General of Civil Defence and Commandant General of Home Guards, Assam by a communication No. CG. 39/2015/7 dated 20.02.2015 informed the Additional Director General of Police that a training has been organized to regularize the services of untrained Home Guards personnel for regularization in the police department. The said proposal was accepted by the Additional Director of Police (A), Assam vide letter under Memo No. FB/XIV/38/2011/7 dated 02.03.2015. These two communications dated 20.02.2015 and 02.03.2015 are assailed in the present writ petition.

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The learned counsel for the petitioner has submitted that by order dated 05.08.2013 passed by this Court in WP (C) 2716/2006, this Court had disposed of the writ petition by directing the respondents to consider the directions as contained in the judgment and order dated 08.09.1993 passed by the learned Single Judge read with judgment and order dated 12.06.1997 of the Division Bench (WA No. 380/1994), in respect of all Home Guards in accordance with law subject to availability of funds, in case a list of members as well as their dates of engagement and the period for which they had served is submitted to the respondents. It is submitted that while a large numbers of members of the petitioner’s association are still stagnating as a Home Guards without any regular appointment, by the impugned communication dated 20.02.2015 and 02.03.2015, the respondents are making an attempt to appoint freshly inducted Home Guards into the police service without considering the non regularization of the large number of the members of the petitioner’s association. It is submitted that the respondent authorities had tried to appoint their favourable persons on pick and choose basis without considering the regularization of the trained Home Guards for which the petitioners have reasons to assume that those trainee who would be trained pursuant to the aforesaid two communications are kins of favourable persons of different Police Officers and for political leaders.

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Submitting in support of the orders impugned herein, the learned Govt. Advocate has referred to the affidavit-in-opposition filed by the respondent Nos. 1 and 3 i.e. the Joint Secretary to the

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Government of Assam, Home (B) Department and by Senior Staff Officer (HG), O/o the Director General of Civil Defence and Commandant General of Home Guards, and it is submitted that in view of the decision of the Supreme Court of India in Civil Appeal No. 6373/2010 and Civil Appeal No. 2759/2015 wherein it was directed that no relief can be granted to the appellants/Home Guards either for regularization of services or grant of regular appointments, the said authorities had taken a decision that the Home Guards could not be regularized in service. Hence, it is submitted that in view of the minutes of the meeting held on 06.03.2014 in the conference hall of DGCD & CGHG in connection with various demands of the petitioner association, the respondents had clarified that the Home Guards could not be regularized. However, the following proposals were suggested in the said meeting:

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(a) A proposal is sent to Govt. for enchancing the Training Allowance to Rs. 70/- + 20/= 90/- per day per head during the training period.

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(b) A proposal to conduct Refresher Training to Ex-Home Guards is also sent to the Govt. for immediate sanction.

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(c) 10 marks will be given as weightage at the time of enrolment in police to those Home Guards who have requisite training and certificates.

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(d) Proposal has been sent for enhancement of daily wages to Rs. 350/- and Rs.400/per day for Basic and Advance Trained Volunteers for approval of the Government.

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It is further submitted that the Govt. of Assam, Home (B) Department by order No. HMB.158/2014/Pt./13 dated 21.07.2014, has directed as follows:-

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“The Hon’ble Gauhati High Court in Misc. Case No. MC.597/2012 have also directed that no more regularization of service of Work-Charged, Muster Roll or similarly placed workers can be undertaken by the State Government. These orders have decisively settled the matter of regularization of the services of casual/ad hoc employees and have sealed the question of regularization of services of employees. Following the above orders of the Hon’ble Supreme Court & the Hon’ble High Court, the State Government has also ordered that no regularization of such workers can be done by the Government departments/agencies even if such workers were engaged prior to 1.4.1993 and rendered continuous service without break. Hence, regularization of service of the petitioners cannot be done.

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It is relevant to mention here that Government of Assam selects from amongst the trained Home Guards those who are found fit for other duties to getting regular employment and has made relevant rules to regulate the process. Two Assam Special Reserve Force (ASRF) battalions have been raised in which Home Guards Training or NCC ‘A’ certificate has been prescribed as a necessary qualification for recruitment to the cadre of Guardsman and NCC ‘B’ certificate and Home Guard training is necessary for the post of Platoon Commander. In addition, two Assam Industrial Security Force (AISF) battalions have also been raised in which special preference is given to the serving & discharged advance trained Home Guards of the State, as are found fit for the job, for recruitment against the cadre of constable/guarsdman.

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Further a new Transparent Recruitment Policy for “Recruitment of Constables & Equivalent Ranks in Assam Police, 2014”, has been notified where provision of bonus marks have been made for trained Home Guards as following:

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“1. Home Guards who have completed the advance training and are deployed continuously as

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armed Home Guard for a minimum for 4(four) years- 10 Marks.

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Home Guards who had completed the advance training and are deployed as armed Home Guard continuously for a minimum period of 3 (three) years -6 Marks.

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Home Guards who have completed the basic course with a refresher training and continuously on duty for a minimum period of 4(four) years- 6 Marks.

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Home Guards who have completed the advance training and are deployed continuously as armed Home Guard for a minimum period of 1(one) year-4 Marks

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Home Guards who have completed the basic course with refresher training and continuously on duty for a minimum period of 3(three) years-4 Marks.

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From above it transpires that Government of Assam have provided opportunity of participation to get regular public employment based on the experience gained by Home Guards during their deployment as voluntary force and fitness for other occupation. It is, therefore, clear that keeping in view the nature of the duties performed, their role, the needs of modern policing for civil society, participation of an auxiliary force in disaster management etc. regularization against the posts of public employment is neither feasible nor permissible in law.

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In view of the above, it is decided that services of Home Guards volunteers cannot be regularized as constables in Assam Police except when they get selected and appointed in due process of law.

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Hence, it is submitted that selections can only be made after due process of law in terms of the aforesaid order dated 21.07.2014.

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Having considered the submissions made by the learned counsel for both sides and having perused the materials available on record, it is seen that by hereinbefore order dated 21.07.2014, the State Government had decided that the services of Home Guards volunteers cannot be regularized as constables in Assam Police except when they are selected and appointed with due process of law.

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Under such circumstances, notwithstanding the issuance of letter under No. CG.39/2015/7 dated 20.02.2015 by the Senior Staff Officer (HG), Office of the Director General of Civil Defence and Commandant General of Home Guards as well as letter under No. FB/XIV-38/2011/7 dated 02.03.2015 by the Additional Director General of Police (A), Assam, a mere direction that the untrained personnels would be engaged as Home Guards cannot be a ground to override the order No. HMB.158/2014/Pt./13 dated 21.07.2014. Hence, before regularization of any Home Guards in the Assam Police Service, all the persons serving as Home Guards volunteers and the members of the

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petitioner association be offered equal opportunity to offer their candidature for appointment with due process of law. In other words, the regularization of Trained Home Guards into Assam Police Service cannot be restricted only for those Trained Home Guards only who were trained pursuant to the hereinbefore referred letter dated 20.02.2015 and 02.03.2015 without giving equal opportunity to the Home Guard Members of the petitioner association.

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The Rule is made absolute in terms of the aforesaid directions and ordered accordingly.

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The writ petition stands disposed of.

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There shall be no order as to costs.

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JUDGE

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Comparing Assistant

All Assam Trained Home Guards Association and Anr. v. the State of Assam and 4 Ors.

Case brief

What is this about?

What did the court decide?

All Assam Trained Home Guards Association and Anr. v. the State of Assam and 4 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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