D.N. Patel, J.

Much has been argued by the learned counsel for the petitioners that under Article 19(1)(c) there is fundamental right vested in these petitioners to form an association and such fundamental right cannot be taken away by the respondents, much less, by Rule 8(iii) of Jharkhand Home Guard Public Servant Rules, 2014 which are at Annexure-2 to the memo of this writ petition.

2. It is submitted by the learned counsel for the petitioners that the fundamental rights are so much fundamental that they have never been surrendered by the citizens to the State and hence such rights have already been retained by the citizens. Moreover, such rights cannot be waived by the citizens as decided by the Hon'ble the Supreme Court in the case of Basheshwar Nath vs. The Commissioner of Income Tax, Delhi & Rajasthan & Another reported in AIR 1959 SC 149.

3. It has been further submitted by the learned counsel Mr. Kumar Harsh that the fundamental right guaranteed by the Constitution of India under Article 19(1)(c) cannot be taken away by any Act or legislation much less by rules enacted by the State of Jharkhand namely Jharkhand Home Guard Public Servant Rules, 2014 enacted under Section 12 of Jharkhand Home Guard Act, 2005.

4. Learned counsel appearing for the petitioners has further submitted that an application for registration of recognition of homeguard which was preferred on 23.1.2017 and looking to the circular dated 6.1.2017 (Annexure-3), forming of such association is not permissible and hence, this petition has been preferred.

5. Learned counsel appearing for the respondents has submitted that as per rule enacted by the State of Jharkhand under the Home Guards Act, the homeguards cannot form their association especially under Rule 8(iii) and hence, circular has been issued dated 6.1.2017, Annexure-3 to the memo of this writ petition not to form an association by the homeguards because they are creating nuisance.

Reasons:

6. Having heard the counsels of both the sides and looking to the facts and circumstances of the case it appears that there is a fundamental right vested in these petitioners guaranteed under Article 19(1)(c) of the Constitution of India. For ready reference Article 19(1)(c) of the Constitution of India reads as under:

"19. Protection of certain rights regarding freedom of speech, etc.- (1) All citizens shall have the right:-

(a) ....... ........ ............. ...... ........

(b) ....... ........ ......... ....... ...... .....

(c) to form association or unions;

(d) ...........................................

(e) ........................ ................."

7. It appears that there are varieties of associations of the Government employees in the State of Jharkhand. Learned counsel for the petitioners and learned counsel for the State have jointly submitted that there is association of IAS Officers. There is also an association of police personnel, whereas for homeguards, it is submitted by the counsel for the State that such type of association is creating nuisance. This argument of the State is not accepted by this Court. Rule 8(iii) of Jharkhand Home Guard Public Servant Rules, 2014 reads as under:-

"Rule 8: Discipline

(iii) The Homeguards are volunteers and therefore, there is no need to form any organization or association."

8. The aforesaid rule is a gross violation of Article 19(1)(c) of the Constitution of India. To form an association is a fundamental right. The reasonable restrictions imposed by the Constitution under Articles 19(3) and (4) read as under:-

"(3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of [the sovereignty and integrity of India or] public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause.

(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prev