Aniruddha Bose, J.@mdashAll these writ petitions are being taken up for hearing together as common questions of law and near identical questions of facts are involved in these proceedings.
2. The writ petitioners claim to have been members of Home Guards, the constitution of which is regulated by the Andaman and Nicobar Islands Home Guards Regulation, 1964. As per the said Regulation, such organization would have the characteristics of a voluntary body, and the members of such body are to exercise such powers and such duties in relation to protection of persons'' security and property and public safety as may be assigned to them in terms of the provisions of the said Regulation and the Andaman and Nicobar Islands Home Guards Rules, 1965 (the Rules, in short). As per Clause 8 of the said Rules, the term of office of a member of the Organization is to be three years, with provisions for re-appointment.
3. All the petitioners were appointed on various dates between the year 2006 and this year, being 2010 in pursuance of different orders issued in terms of Rule 4(1) of the said Regulation. Some of them are still in service whereas some of them appear to have been discharged from their service. But having regard to the legal issues involved in these petitions, the question as to whether the petitioners are still in service or not is not of much relevance.
4. Though altogether seven writ petitions have been heard, Mr. Chakraborty, learned Counsel for the petitioners appearing with Ms. Tamali Biswas, learned Counsel primarily relied on facts pleaded in W.P. No. 801 of 2009. Affidavit-in-opposition has been filed in this proceeding only, but Mr. Mandal submitted that the respondents would rely on the said affidavit in connection with the other proceedings as well.
5. These matters were heard on 8th and 9th September, 2010, and on 9th September, 2010, Mr. Mandal, learned Government Pleader had concluded his submissions appearing for the respondents, and the matter was posted as a specially fixed matter at 1.00 p.m. on 10th September, 2010. On that date when the matter was called on at the stipulated time, none appeared on behalf of the petitioners for replying to the submissions of Mr. Mandal. Nor any accommodation was prayed for. In these circumstances, hearing of the matter was concluded. Subsequently, however, on behalf of the petitioners and respondents, written notes on submissions were filed.
6. Though several writ petitions have been heard analogously, learned Counsel for the petitioners have primarily relied on facts pleaded in W.P. No. 801 of 2009. The writ petitioners seek regularization of their service on the strength of a judgment of an Hon''ble Division Bench of this Court delivered on 22nd January, 2007 in MAT No. 025 of 2006 (Smt. Parul Debnath and Ors. v. The Union of India and Ors.). This judgment was subsequently affirmed by the Hon''ble Supreme Court in the case of Civil Appeal No.____ of 2009 (arising out of SLP (C) No. 10496 of 2007) Union of India and Ors. v. Parul Debnath and Ors. by a judgment delivered on 6th May, 2009. Prayer has also been made for quashing the order of discharge of some of the petitioners on the ground that such order was issued contrary to the direction of the Hon''ble Division Bench of this Court in MAT No. 025 of 2006.
7. For proper appreciation of the scope of these writ petitions, it would be necessary to refer to the proceedings decided earlier in relation to the question of regularization of certain members of the said organization who were engaged earlier. Two sets of applications were filed before the Central Administrative Tribunal by several members of the said organization being O.A. No. 122/AN/1999 and O.A. No. 28/AN/2002 seeking regularization on the ground that they were working in the said organization for a long period of time. These two applications were disposed of by a common order by the Tribunal delivered on 16th September, 2002 with the following directions:
(1) The respondents and in particular, Respondent No. 1 shall consider framing an appropriate Scheme in consultation with the A&N Islands Administration for absorption/regularization/appointment of persons like the applicants who have been working as Home Guards for a number of years and for connected matters. They shall also keep in view the observations made in paragraph 7 above while framing the Scheme to suit local conditions, keeping in view the particular facts and circumstances of these cases.
(2) The above action shall be taken by the respondents within six months from the date of receipt of a copy of this order.
8. In these applications, the applicants had claimed that they had rendered continuous service in some cases for more than a decade in various capacities without break, but they were not being regularized. The Tribunal found:
From the facts narrated above, it is seen that the respondents/A&N Administration themselves have not strictly followed the relevant Home Guard Regulations and Rules, while continuing the applicants for years together in particular jobs and not utilizing them from time to time during emergencies. This has indeed resulted in a piquant situation where it may not lie in the mouth of the respondents to turn round and strictly quote and rely on the provisions of the Home Guards Regulations and Rules. Therefore, it requires a sympathetic consideration of the issues raised by the applicants in these O.As in a situation which has been created partly by the action of the respondents themselves.
7. It is recollected by one of us (Smt. Lakshmi Swaminathan, VC(J) that the Tribunal (Principal Bench) had considered a number of cases of Home Guards who have been employed by the Govt. of NCT, Delhi, who had also claimed similar benefits under the provisions of the relevant Home Guards Rules applicable to Delhi. The same pleas that the Home Guard is a voluntary Organization, it was not meant as a full time employment, there were no sanctioned posts, etc. and, therefore, there cannot be any regularization of the members of the Home Guard were raised in those cases also. However, in furtherance to the directions of the Tribunal, writ petitions were filed by the respondents/Govt. of NCT, Delhi in which certain directions have been given by the Hon''ble Delhi High Court also to the respondents to prepare a scheme to cover the Home Guards in similar situations. We consider that in the circumstances of the case, it would be appropriate for the respondents and in particular Respondent No. 1/Union of India through Ministry of Home Affairs to contact the Govt. of NCT, Delhi, together with the relevant judgments of the Hon''ble Delhi High Court and the Tribunal (Principal Bench) on the subject, so that they can examine the issues raised in the present two applications in a similar fashion. Consequently, the Govt. of NCT/Directorate of Home Guards, Delhi, has also prepared a Scheme as per the directions of the Court to deal with similar issues which may, in the circumstances, be seen and considered and, if necessary modified to suit local conditions.
9. In the said applications, the applicants also claimed pay parity with regular employees of the Andaman and Nicobar Administration. However, that claim was not accepted by the Tribunal. This order of the Tribunal was challenged by the Administration by filing two writ petitions, being WPCT No. 073 of 2003 and WPCT No. 158 of 2003. These two writ petitions were disposed of by an Hon''ble Division Bench of this Court on 16th December, 2003 with the following direction:
Having regard to the fact that the Home Guards are being employed and are compelled to perform the duties of regular employees, we feel that the decision of the learned Tribunal is justified. We, therefore, are not inclined to interfere with the decision of the learned Tribunal. The appropriate authority shall frame a scheme as directed by the learned Tribunal. If necessary, by issuing an appropriate Notification for the purposes mentioned in the order appealed against. When the scheme is to be formulated, the appropriate authority shall take into consideration the principles laid down in the decision the Pantha Chatterjee (supra).
The time mentioned in the order of the learned Tribunal shall be the time counted from the date the copy of this order and the copy of the order of the learned Tribunal is furnished to the appropriate authority.
10. Another writ application was filed by some other members of the Organization being W.P. No. 022 of 2004 (Manoj Kumar Singh and Ors. v. Union of India and Ors.) on the question of regularization of the Home Guards and this writ petition was disposed of on 18th March, 2004 with a direction upon the respondents therein to consider the case of the writ petitioners treating the writ petition as a representation taking into account the ratio of the judgment of the Hon''ble Supreme Court in the case of Pantha Chatterjee (supra) and pass a reasoned order upon giving the petitioners opportunity of hearing.
11. On 5th April, 2005, a scheme was framed by the Administration entitled Home Guards (regularization/absorption/appointment) Scheme of the Andaman & Nicobar Administration 2005. Under the said Scheme, 20% of the vacancies occurring in any year including existing vacancies in all the posts in Group-D under the Administration and in the post of constable in Group-C under the police department were to be earmarked for the Home Guards who were enrolled and had rendered at least five years of continuous service or more and fulfilled the eligibility condition including the educational qualification prescribed in the recruitment rules/A & N Islands Police Manual, 1933.
12. The validity of the said Scheme was again challenged by a set of petitioners and one of the grounds for such challenge was that the said Scheme was not framed by the Administration in conformity with the orders passed by the Division Bench of this Court in WPCT No. 73 of 2003 which was decided along with WPCT No. 158 of 2003. The learned Single Judge however was pleased to dismiss this writ petition. Against the judgment and order of the learned Single Judge, an appeal was preferred by the writ petitioners therein being MAT No. 025 of 2006. An Hon''ble Division Bench of this Court found that the impugned Scheme was not framed in conformity with the direction of the earlier Division Bench of this Court and was pleased to quash the impugned Scheme in a judgment delivered on 22nd January, 2007. The Hon''ble Division Bench was further pleased to direct the authorities to frame the Scheme strictly in conformity with the decision delivered by the Division Bench on 16th December, 2003 in WPCT No. 73 (along with WPCT No. 158 of 2003) within a period of three months. The Division Bench observed:
As such, the official respondents are required to find out the ways and means as to how the eligible petitioners and the other similarly placed persons can be absorbed on regularization of their service at a time. If however it is found that all the persons cannot be accommodated at a time in different establishments of the Administration, then the concerned respondent is required to create supernumerary posts so that the eligible petitioners can be accommodated in suitable posts at a time subject to satisfaction of the eligibility criteria. Such posts, however, may be abolished on retirement and/or termination of the service of the petitioners.
13. A petition for special leave to appeal against this judgment was filed by the authorities, which was also dismissed by the Hon''ble Supreme Court on 6th May, 2009 and I have already referred to this proceeding before the Hon''ble Supreme Court in the earlier part of this judgment.
14. Thereafter, an order was issued by the office of the Commandant (Home Guard), A & N Islands, being Order No. 298 dated 8th September, 2009 regularizing in total the service of 325 Home Guards by creating supernumerary posts in the lowest group D grade from the dates of their respective initial deployment in the Home Guard Organization. It was specified in the order that the supernumerary posts created in respect of the Home Guards would stand abolished with the retirement, dismissal or expiry of the Home Guards. It appears that two sets of Home Guards were regularized in the supernumerary posts. 123 of them were the writ petitioners in the proceedings out of which MAT No. 025 of 2006 arose and the other 202 were not writ petitioners but from the order it appears that they were found to be similarly placed along with the 123 writ petitioners.
15. In this batch of writ petitions, the petitioners in substance seek the same benefit conferred to other Home Guards by virtue of Order No. 298 dated 8th December, 2009. The petitioners have assailed the Order by which 325 Home Guards were regularized for being contrary to the direction of the Hon''ble Division Bench, and also for not covering the cases of the writ petitioners for regularization.
16. It has been contended on behalf of the petitioners that the authorities have still not complied with the order of the Hon''ble Division Bench in MAT No. 025 of 2006 as they have not framed any scheme. On the aspect of identification and selection of 325 Home Guards for being regularized in the supernumerary posts, Mr. Chakraborty appearing for the petitioners has argued that the authorities are following a pick and choose policy as they are artificially differentiating between the Home Guards who have been recruited through the same process by leaving out the petitioners from the benefit of regularization but according such benefit to two sets of persons based on undisclosed criteria. My attention was drawn in particular to the judgment of the Tribunal delivered on 16th September, 2002 in O.A. No. 122/AN/1999 and O.A. No. 28/AN/2002 in which direction was given for framing a scheme for the purpose of absorption/regularization/appointment of persons like the applicants therein who had been working as Home Guards for a number of years. This direction, according to the petitioners, survived the series of litigation filed on the subject controversy and according to the learned Counsel for the petitioners, as the direction for framing a scheme for absorption was not confined to the applicants before the Tribunal only but to persons "like the applicants" as well, the authorities committed error in excluding the petitioners from the benefit of regularization.
17. Mr. Mandal, learned Government Pleader appeared in this matter on behalf of the respondent authorities and contested the writ petitions. He argued that the process of absorption was made in terms with the direction of the Hon''ble Division Bench of this Court. As regards identifying the 325 persons, he submitted that the authorities followed the eligibility criteria of five years'' continuous service or more in the cases of those persons who were regularized. This was the eligibility criteria provided in the scheme dated 5th April, 2005 and Mr. Mandal drew my attention to the decision of the Hon''ble Division Bench in MAT No. 025 of 2006 in which the Hon''ble Division Bench observed:
Before parting with, we make it clear that we do not find any unreasonableness in the eligibility criteria which has been introduced in the said scheme for absorption of the petitioners.
18. Further submission of Mr. Mandal was that the decision on the basis of which the writ petitioners were claiming regularization did not direct regularization of all the Home Guards engaged by the Administration. On this count, his case is that the Home Guards are being appointed as per the said Regulation framed in exercise of powers conferred under Article 240(1) of the Constitution of India. The service of the writ petitioners is guided by the said Regulation, which provides for a specified period of service with provisions for discharge. His case is that since the validity of the said Regulations is not under challenge, any appointment made under the said Regulation cannot be found to be irregular for not according an element of permanency to the service of the Home Guards. His further case on this point is that in cases where service of the petitioners has been discharged has been done in accordance with the said Regulation and Rules made thereunder and there was no irregularity committed by the authorities in that regard.
19. The question I shall examine first, is as to whether there has been any violation of the direction of the Hon''ble Division Bench passed in MAT No. 025 of 2006 by not framing a specific scheme. By this judgment, the Hon''ble Division Bench was pleased to direct the authorities to frame a scheme strictly in conformity with the decision passed by the Division Bench on 16th December, 2003. The case of the writ petitioners is that regularization was made under Order No. 298 dated 8th December, 2009 without framing any scheme and to that extent exclusion of the petitioners could not be sustained as there was no scheme framed specifying the manner in which regularization was to be effected. In my view, while the order being No. 298 of 8th December, 2009 has not been framed as a scheme, in substance, the same can be construed as a scheme for regularization as the terms and condition for appointment of such persons have been specified in the Order itself. The argument of the petitioners on this count is more on form than on substance. A scheme implies specifying the manner in which certain acts are to be carried on. In this case, since all the persons who the authorities considered eligible for being regularized were being regularized simultaneously, the names of such persons were included in the order. Moreover, the discrimination alleged by the petitioners in selecting the Home Guards has been explained by Mr. Mandal as he submitted that the selection was made on the basis of five years'' continuous service. On this issue he stressed on the fact that this eligibility criteria which was originally contained in the scheme of 2005 had been found to be reasonable by the Hon''ble Division Bench and in the present case the authorities applied the same eligibility criteria.
20. Mr. Mandal also sought to distinguish the cases of those who had been regularized from the cases of the writ petitioners. According to him, the authorities in some cases had continued with the service of the individual Home Guards for a long period of time without any break and this was de hors the provisions of the Regulation and the Rules and as such the Hon''ble Court directed their regularization. In the case of the petitioners, however, he submitted that in many cases they have not yet completed even their initial service of three years and since their service is guided by the Regulation of 1964, the said Regulation being still valid and operative, regularization ought not to be directed in their cases.
21. In the light of this factual distinction being made in the cases of those who have been regularized and those who have approached this Court for regularization in the present batch of writ petitions, I accept the submission of Mr. Mandal and reject the contention of the petitioners that the authorities are following a pick and choose policy. In the judgments on the strength of which the petitioners seek to build their case, no direction was issued for regularization of all the persons appointed as Home Guards. What was directed was regularization of persons like the applicants therein who had been working for a number of years. The authorities applied a reasonable criterion to select the persons who were like the applicants. The authorities have wide latitude in framing cut off point and in this case the eligibility criteria of five years'' continuous service has already been found to be reasonable by an Hon''ble Division Bench of this Court. No case has been made out by the petitioners that in any case there has been deviation from this criterion of five years of continuous service.
22. Thus, I reject the contention of the petitioners that there has been violation of the provisions of Articles 14 and 16 of the Constitution as their service has not been regularized in the manner which the regularization of 325 Home Guards have been directed. In the cases of discharge of the service of the petitioners, only point urged was that their discharge was made contrary to the direction of the Hon''ble Division Bench. But the direction of the Hon''ble Division Bench was for regularization of the appellants/petitioners therein along with similarly situated persons. As I have found the criterion on the basis of which selection of the 325 Home Guards was made for regularization to be valid, I am unable to accept the argument of the petitioners that their discharge was illegal.
23. All these writ petitions accordingly stand dismissed. Interim orders, if any, shall stand vacated.
24. There shall however be no order as to costs.
