The court upheld the discharge of Home Guards as valid due to the expiration of their Command Certificates, affirming that temporary employees can be replaced under specific statutory provisions.

JUDGMENT :

Manish Choudhury, J.

Heard Mr. B.U. Laskar, learned counsel for the petitioners; Ms. S. Sarma, learned counsel representing Mr. B. Sarma, learned Central Government Counsel [CGC] for the respondent no. 1; and Mr. J. K. Goswami, learned Additional Senior Government Advocate, Assam for the respondent nos. 2 to 8.

2. The two petitioners have joined together to institute this writ petition to assail an Order dated 05.01.2018 [Annexure – I] whereby the respondent no. 7 had released the two petitioners along with three others from the duties of Home Guards in Government Railway Police Force [GRPS], Assam on the premise that they had completed their deployment tenure of 6 [six] months. The discharge order had indicated that the petitioner no. 1 was to be released on 26.01.2018 and the petitioner no. 2 was to be released on 19.01.2018.

3. The case of the petitioners is that they came to be engaged as Home Guards and were thereafter, deployed in such capacity under the Badarpur GRPS, on the basis of a communication dated 28.08.2010 issued by the Officer In-Charge, Badarpur GRPS. However, by the impugned order of discharge dated 05.01.2018, the two petitioners had been released from the duties of Home Guards under the Badarpur GRPS.

4. The learned counsel for the petitioners has submitted that the petitioners could not have been released from their duties in such manner. He has contended that the petitioners had been released only for the reason that they would be replaced by other Home Guards. To augment his submission, the learned counsel for the petitioners has submitted that it is a settled proposition that one set of ad hoc / temporary employees cannot be replaced by another set of ad hoc / temporary employees till the post are filled up through regular recruitment process by following the constitutional mandate.

5. The above submission advanced by the learned counsel for the petitioner is strenuously opposed by the learned State Counsel appearing for the official respondents on the ground that the matters of engagement and deployment of Home Guards are governed and regulated by the Assam Home Guards Act, 1947 [‘the AHG Act’, for short] and the Assam Home Guards Rules, 1947 [‘the AHG Rules’, for short], as amended from time to time. It has been contended that the proposition that a set of ad hoc / temporary employees is not to be replaced by another set of ad hoc / temporary employees is not applicable in a case of Home Guards as the Organization of the Home Guards is a voluntary organization and their engagements and deployments are made as per the AHG Act and the AHG Rules.

6. I have considered the submissions of the learned counsel for the parties and perused the materials on records.

7. The preamble of the Home Guards Act, 1947 itself has mentioned that the Act has been enacted to provide a volunteer organization for use in emergencies and other purposes in the State of Assam. As per Section 6[3][a] of the AHG Act, every officer and every men of the Home Guard shall receive on his appointment a Certificate in the form annexed to the AHG Act under the seal of the Commandant General in 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. Clause [b] of Section 6[3] has stipulated that such Command Certificate would cease to have effect whenever the person named in it ceases to be a Home Guard and on his so ceasing, the Command Certificate issued to him shall have to be surrendered by him to the Commandant in case he is a Home Guard within ten days. Sub-section [2] of Section 7 has provided for the duties and training of Home Guards. As per sub-section [2] of Section 7, subject to any rules made in that behalf, a Home Guard may be required to undergo a training for a prescribed period and thereafter, he can serve as a Home Guard for a period of six months, which period can be extended by the State Governme