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2010 Supreme(Cal) 178
High Court Of Calcutta
Pratap Kumar Ray, J.
Shri T. Kodanda Rao : Appellant
Versus
Union Of India : Respondent
W.P. No. 871 of 2010
Decided On : Feb 22,2010
Tamali Biswas, S.K. Mandal
The relationship of master and servant between the Andaman and Nicobar Administration and the Home Guards, while discharging their duties, established their status as holders of an office or post under the Andaman and Nicobar Islands Home Guard Regulation, 1964, and the Andaman and Nicobar Home Guard Rules, 1965.
Headnote:
ANDAMAN AND NICOBAR ISLANDS HOME GUARD REGULATION, 1964 - REGULATION 4, 5, 6, 7, 8, 11(1), 13, 14, 15, 17 - ANDAMAN AND NICOBAR HOME GUARD RULES, 1965 - RULE 8, 9, 15, 16, 20 - CONSTITUTION OF INDIA, 1950 - ARTICLE 310, 311 - CENTRAL ADMINISTRATIVE TRIBUNAL ACT, 1985 - SECTION 14 - CIVIL SERVICE - MAINTAINABILITY OF WRIT APPLICATION - HOME GUARDS - REGULARIZATION OF SERVICES - HOLDER OF POST - RELATIONSHIP OF MASTER AND SERVANT - JURISDICTION OF CENTRAL ADMINISTRATIVE TRIBUNAL.
Fact of the Case:
Home Guards enrolled under the Andaman and Nicobar Islands Home Guard Regulation, 1964, and assigned to the police service or other organizations under the Andaman and Nicobar Administration, filed a writ petition seeking regularization of their services. They contended that they were performing duties similar to police personnel and other Andaman and Nicobar Administration employees and were entitled to regularization under a scheme framed for regularizing the services of other Home Guards.
Finding of the Court:
The Court held that the Home Guards, while discharging their duties, were under the control of superior officers and were subject to disciplinary proceedings. They were entitled to pay and allowances, had a specific dress code, and were assigned specific duties. Based on the test laid down in the case of State of Assam v. Kanak Chandra Dutta, the Court held that the Home Guards, during the period of their service, could be considered as holders of an office or post.
Issues: 1. Whether the writ application filed by the Home Guards was maintainable. 2. Whether the Home Guards were holders of a civil post or office during the period of their service. 3. Whether the Central Administrative Tribunal had jurisdiction to decide the matter.
Ratio Decidendi: 1. The Court held that the writ application was not maintainable as such cases were required to be adjudicated by the Central Administrative Tribunal under the Administrative Tribunal Act, 1985. 2. The Court relied on the test laid down in State of Assam v. Kanak Chandra Dutta to determine whether the Home Guards were holders of a civil post or office. The Court held that the Home Guards, while discharging their duties, were under the control of superior officers, were subject to disciplinary proceedings, received pay and allowances, had a specific dress code, and were assigned specific duties. Based on these factors, the Court held that the Home Guards could be considered as holders of an office or post during the period of their service. 3. The Court held that the Central Administrative Tribunal had jurisdiction to decide the matter as such cases fell within the ambit of Section 14 of the Administrative Tribunal Act, 1985.
Final Decision: The Court held that the writ application was not maintainable and dismissed it on the ground of maintainability. However, following the judicial discipline, the Court referred the matter to a larger Bench for a decision on the point of whether, on the facts of the case, the writ application was maintainable in the High Court and the Central Administrative Tribunal had no jurisdiction to decide it.
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. 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
