1. Rule. Ms. V.S. Pathak, learned Assistant Government Pleader waives service of Rule for and on behalf of respondents.
2. This petition is preferred under Article 226 of the Constitution of India inter alia praying to permit the petitioner to avail the benefits of absorption scheme framed by the State Government vide its policy decision dated 6.4.2009 as also for according the petitioner parity with the petitioners of Special Civil Application No. 21 of 2004 in terms of the oral order dated 9.4.2010 passed by the Division Bench of this Court with a further prayer to absorption of the petitioner in the State Reserve Police Force as per the said absorption scheme.
3. Briefly stating, the facts are as follows:-
3.1 The petitioner was recruited as Water Bearer in Battalion No.1 of Homeguards on 17.7.2004. On 2.2.2006, he was appointed as a Guardsman and since then he is serving this Battalion No.1, Border Wing Home Guards.
It is the say of the petitioner that he has completed more than 5 years of service in Border Wing Home Guards No.1 Battalion, Banaskantha and, therefore, his services must be treated as continuous from 17.7.2004, which would enable him to be absorbed in State Reserve Police Force as per the policy decision of the State Government dated 6.4.2009. The Border Wing Home Guards personnels are classified as full- time employees and part-time employees. Such a scheme of Border Wing Home Guards in Gujarat is floated by the Union of India. It is mentioned that there are specific features, which makes out distinction between the petitioner and the ordinary home guards appointed under the Bombay Home Guards Act, 1947. There are, in all, 4 battalions of Boarder Wing Home Guards in the State of Gujarat, which are as under :-
(1) No.1 Battalion Border- Palanpur, Wing Home Guards Banaskantha District.
Guards of the No.2 Battalion, Bhuj-Kachchh preferred Special Civil Application No. 10862 of 2003 inter alia with a prayer to direct the present respondents to declare them as permanent and full time members of the Border Wing Home Guards and to evolve fair, just and reasonable conditions of service for them.
Similarly, Border Wing Home Guards No.1 Battalion also preferred Special Civil Application No. 9434 of 2004 with similar prayers.
This Court in Special Civil Application No. 10862 of 2003 allowed partly the prayers of those petitioners on 9.2.2005 declaring them permanent members and directed the respondents to avail them all consequential benefits with effect from 30.7.2003.
Likewise in Special Civil Application No. 9434 of 2004 also, in the judgment dated 13.4.2005 similar directions were issued in favour of those petitioners.
5. The State Government challenged before the Division Bench in Letters Patent Appeal No.712 of 2005 the judgment rendered in Special Civil Application No. 10862 of 2003 and by way of Letters Patent Appeal No. 788 of 2005 rendered in Special Civil Application No. 9434 of 2004.
It is during the hearing of these Letters Patent Appeals that the State Government framed a policy to absorb all Border Wing Home Guards, who have put in 5 years of service against the vacancies existing in Army units of the State Reserve Police Force. This was decided on 6.4.2009. Relevant terms of the said policy decision requires reproduction:-
“1. On 4.3.2009, this Hon'ble Court was pleased to pass the following order in the captioned proceedings-
“While considering the controversy involved in this group of appeals/ petitions, this Court is of the view that let the Government give a fresh look to the issues involved therein for finding out an appropriate solution thereof. Under the circumstances, it is desired that the State Government may consider to take an appropriate policy decision in this behalf within a period of one month and the same may be placed before this Court in a sealed cover, on or before 8th April, 2004”.
2. Pursuant to the above order, the State Government has considered the matter and worked out the policy as mentioned hereinafter.
(iv) The State Government has decided to consider the above referred Border Wing Home Guards for the purpose of this scheme, who have put in at least 5 years service and who are desirous to get the benefit of this scheme for which they shall have to apply in a proper form to the Recruitment Board.”
6. It is the case of the petitioner that the absorption scheme is acceptable to him and he would like to get the absorption in the Army units of the State Reserve Police Force. Condition (vii) requires the selected candidate to pass physical fitness test and medical examination as may be decided by the State Government and condition No.(ix) also provides that the recruitment process would be completed as early as possible. He made a request to allow him to take the benefit of absorption scheme framed by the Government on 6.4.2009. It is the say of the petitioner that recruitment process was undertaken by the respondent from 20.6.2011 to 23.6.2011 for all the Border Wing Home Guards of Nos.3 and 4 Battalions. The process is over and the Border Wing Home Guards are awaiting their absorption order from the respondents in the State Reserve Police Force. However, the petitioner has been denied parity with the petitioners of Special Civil Application No. 21 of 2004 in terms of the the oral order dated 9.4.2010.
Hence, he has approached this Court with the above mentioned prayers.
7. Learned Senior advocate Mr. Shalin Mehta for the petitioner has fervently made his submissions that the entire unit has been absorbed into the State Reserve Police Force and present petitioner is the only one, who has been left out. It is further urged by the learned Senior Advocate that the petitioner is a graduate with very good knowledge of computer operations and is also maintaining accounts in Tally computer programme and is also having experience as a Computer Instructor after his graduation. Only on the ground that he had been appointed on ad hoc part time basis on 12.7.2004, he has not been permitted to apply to the Recruitment Board. This stand of the department purportedly based on the conditions of the said policy is sought to be interfered by the learned counsel. He urged the Court to consider the period of ad hoc appointment by progressively interpreting the policy framework, as per the conditions of the said policy.
8. In an affidavit-in-reply filed by respondent No.3, Second- in-Command and In-charge Battalion Commandant, 1st Battalion, Border Wing Home Guards, Palanpur, it is contended that the present petitioner, though claimed absorption, he does not fulfill the present criteria as he initially was appointed from 12.7.2004 to 31.7.2006 on ad-hoc part time basis on the post of Water Bearer only and as such appointment was not in accordance with the Bombay Home Guards Rules, 1953, he had to work for six hours in a day and he had served Border Wing Home Guard, Palanpur on an honorary basis, which cannot be compared with his appointment in 2006 and his appointment from 3.2.2006 as a part time Home Guard, as per the Bombay Home Guards Rules, 1953.
9. Reliance is also placed on Rule-3 of the Bombay Home Guards Rules, 1953 and urged that Notification dated 12.10.2010 stipulates that requirement under Rule 49(1) is that those who are in honorary service and have completed not less than 5 years as Havaldar or Nayak or Guardsman or Lans Nayak in the Border Wing of Home Guards Organization on the date of publication of this notification, he would be entitled for making an application. Therefore, his appointment if calculated from 3.2.2006 till 12.10.2010 as was the requirement of the notification, he completed only 4 years 8 months and 9 days of service and therefore, on account of the deficit of 3 months and 28 days he cannot be considered as per the Notification dated 12.10.2010 and thus, his regular appointment as per Bombay Home Guards Rules, 1953 has to be calculated and not his initial appointment on ad hoc basis. It is not of course disputed that he is the only person left out from the battalion.
10. Learned Additional Public Prosecutor appearing for the State has urged this Court that there could be no concession to the present petitioner, who started his career as a water bearer eventually he was taken as a guardsman and only on account of this deficit, he could not be given benefit of the scheme of the Government.
11. Having heard learned advocates for the parties and on having considered the submissions as well as the material on record, it appears that on 17.7.2004, present petitioner has been appointed on ad-hoc basis on fixed emoluments of Rs.1350/- per month. This appointment was by the Commandant, Border Wing Home Guards No.1 Battalion, Palanpur, Banaskantha. On the post of Water Bearer that he was appointed. It can be noted that on 3.2.2006 a regular appointment of his was made. Such appointment was made carving out an exception for him considering his knowledge in computer and after due consideration this was allowed and he was also directed to fill up the form for necessary verification as is required Rule-3 and 4 if are examined, it requires filling up of form in the prescribed proforma 'Form-A' and Rule-3 requires appointment of member of Homeguards if the person has attained 18 years and is not above 50 years of age and is of 4th Standard pass in any language and is medically and physically found fit by the Commandant General. None of these requirements was missing while this petitioner was appointed on ad-hoc basis as was the case of those who have been absorbed from his battalion. And, his subsequent regularization without any order or direction from any Court on his filling up the form on dated 15.12.2005 was on his own merit. And, thus, when entire battalion is absorbed, only on technicality when he is being deprived of benefit of such scheme, this petition is being considered.
12. It was directed in the Letters Patent Appeal that the State Government may consider to take appropriate policy decision within a stipulated period and, thereafter such a scheme has been framed and Court has incorporated the same in its judgment, giving benefit to many persons serving as Havaldar, Nayak and Lans Nayak of Border Wing of Home Guards Organization for recruitment as constable Class-III in the pay-scale of of Rs.5200/- Rs.20200/- in State Reserve Police Force after necessary amendment in the Recruitment Rules of Constable Class-II of SRPF as also Cook and Water Carrier of Border Wing Home Guards for recruitment as Cook and Water Carrier in State Reserve Police Force in the pay- scale of Rs.4400=00-7440=00 after effecting necessary amendment. What all the selection committee needed to conduct is the physical fitness test and medical examination and on the basis thereof absorption was to be decided by the Government.
13. In light of the these details, the policy decision of the State Government, pursuant to the order passed by this Court, if is examined, it can be noticed particularly that those serving Border Wing Home Guards have to be at least 5 years in service and, those who are desirous of getting benefit of this scheme, would be required to apply for permission to the Recruitment Board. Of course, there are requisite tests that they needed to undergo, once such a form has been filled. This was as mentioned above essentially in response to the Court's direction to the Government to have a fresh look at the issues involved for finding out the appropriate solution.
14. The entire thrust of arguments on the part of the Government is of not considering the period of initial appointment, when according to them petitioner was on the ad hoc basis and, therefore, on excluding such a period from 12th July, 2004 to 31.7.2006 consequently, the petitioner lacks completion of the total period of 5 years by 3 months and 21 days only.
During the course of hearing, that it has been admitted on the part of the Government that this person continues as a guardsman considering his proficiency in the field of computers and still he continues his duty as a computer instructor and there is nothing adverse to his service career that could be brought on the record. On the contrary, his service record reflects his rendering services proficiently.
15. In the opinion of this Court, the petitioner appears to have missed the opportunity of being absorbed in the SRP by a little margin. Although it is argued by the learned Assistant Government Pleader that whenever a policy is framed it can so happen that some people may miss even by one day also as this framework was made in response to the direction given by this Court that the policy had been decided. However, on technical ground when the present petitioner has not been permitted to make application to the Recruitment Board, as mentioned hereinabove, the Court deems it fit to intervene and acced to the request of the petitioner, who has been appointed on ad hoc basis initially. However, his such service cannot, therefore, be not disregarded for the purpose of interpreting the condition No.5, which necessitates completion of 5 years of period. The Court also needs to regard the fact that by his exceptional performance, petitioner had been absorbed in regular cadre and, therefore his inclusion in the State Reserve Police Force will on the contrary enrich the institution and he will not be in any manner adding to the financial burden of exchequer and that also appears to be one of the vital reasons also, in setting aside denial of non-consideration of 2 years of his ad-hoc service. Even when his educational qualifications are considered keeping in mind bare minimum qualification needed to be appointed as a Home guard under Rule 49(1) and to be in honorary service, this further vindicate such stand of setting aside the decision of non-consideration essentially on technicality rather than on substance.
16. As has been pointed out to this Court pursuant to the said policy declared by the Government, there was recruitment board temporarily created for the purpose of only Border Wing Home Guards and it was only one time exercise that had been undertaken. And, as per the requirement of this policy there will be a need for this person to apply in an appropriate form to the Recruitment Board and as also envisaged in the said policy his medical test as well as physical test also will have to be conducted.
On inquiry, it could be made out that regular recruitment board for the purpose of recruitment of the Constable Class-III in State Reserve Police Force continues and the examination are also periodically being conducted and, therefore, it will not be required of the respondents also to separately conduct, for one person, the examination for the purpose of recruitment. It is, of course, culling out that as far as those persons, who have also been absorbed as a one time measure, their physical test and medical test had been confirmed.
17. Thus, it is not going to be any cumbersome process nor any requirement of setting up entirely a new board for one person. And, even if that is to be done if petitioner is found left out on untenable grounds then also, it can be directed. However, for now, that not being the case, the Court presently is concerned with the petitioner herein since he has succeeded in establishing his case for this Court to intervene in the writ jurisdiction.
This petition succeeds. The respondents are directed, therefore, to permit the petitioner to avail the benefit of the absorption scheme framed by the Government on 6.4.2009 and accord parity to the petitioner with petitioners of Special Civil Application No.21 of 2009.
The petitioner shall in view of this order be permitted to apply to the recruitment board in proper format within six weeks of receipt of this order. His physical and medical examination shall also be conducted by the Board meant for recruitment of constable Class-III in SRP and subject to his passing the physical fitness Test and his medical examination his absorption shall be directed by the Government as per the Absorption Scheme dated 6.4.2009. This petition is allowed. Accordingly rule is made absolute.
(Ms.Sonia Gokani, J.) sudhir