SAMIR BHATTACHARYA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) All the four writ petitions were heard analogously and are disposed of by this Judgment.

(2.) The writ petitioners joined the West Bengal Home Guard, Border Wing Home Guard, from time to time since 1978 and thereafter. The petitioners are divided into four categories of the Border Wing Home Guard, namely, Constable, Havildar, Nayek and Lance Nayek and after undergoing a training of 75 days or so they were given Certificates. Some of the petitioners are rendering services for more than 10 years, some 12-13 years, 8 and 7 years and the like, uninterruptedly or without any break. They were appointed under West Bengal Ordinance No. XI of 1962 which subsequently merged into the West Bengal Home Guards Act, 1962 with effect from 14th December, 1962. In the appointment/enrolment certificate the following is noted: "While on duty will have the same powers, functions and privileges as a Police officer appointed under Act V of 1861." This Act V of 1861 is the Police Act, 1861 and section 8 thereof says : "Every police officer appointed to the police force than an officer mentioned in section 4 shall receive on his appointment a certificate in the form annexed to this Act under the seal of the Inspector-General or such other officer as Inspector-General shall appoint, by virtue of which the person holding such certificate shall be vested with the powers, functions and privileges of a police officer."

(3.) The case of the petitioners is that they were given the duty and responsibility under the Police Act but no privileges and powers were given to them at all. Their contention is that the petitioners have been rendering services at the Indo-Bangladesh Border 24-hour a day because they have no duty hours. They are in uniform for 12 out of 24 hours, they have got no casual or medical leave nor Puja or other festival leaves. They have no resting day on Sunday or have any holiday as well as no scale of pay, no travelling allowances, no Provident Fund or gratuity; and above all no fixed length of service nor pension or retiring benefits. There is no messing system and they take meals at the Border Security Force messes on individual payment. Though the Border Security Forces got border allowances but the petitioners are deprived of the same and only get the house rent allowance. Their further grievance is that as members of the Border Wing Home Guard they get only two trousers and two pairs of shoes in a year but no woollen clothing during winter and had to pass sleepless nights during winter season whereas the Border Security Forces get woollen clothing, woollen bags, woollen shirts, mosquito nets, etc. The petitioners are to render the same services as the Border Security Forces and Constables are required to work in the face of this mental torture and discrimination. If any Border Wing Home Guard dies in harness there is no role of compensation, to his wife or legal heirs as well as, no Provident Fund, no gratuity, no pension or the like. The service is terminable at the sweet will of the Superior Authority and there is no guideline which governs the conditions of service of the petitioners. It is stated that the petitioners have already spent a valuable portion of their life in the service but they may be removed at any moment as they have no security. The contention of the petitioners is that the Border Wing Home Guard is a part and parcel of the Government of West Bengal and should be subject to the conditions of public law limitation as any governmental organisation. They are entitled to get the protection of Article 14 of the Constitution and must be protected from arbitrary and discriminatory action. The petitioners made representations one after another to all the high-ups in the administration but none of the authorities looked to their grievances. The petitioners claim to have the protection of the Notification dated 25th June, 1979 issued by the Finance Department, Audit Branch, Government of West Bengal. It is contended that under Article 42 of the constitution it is a duty of the State to make provisions of its employees of just and human condition but this is denied to them; even the provision of Article 39 providing men and women equal right to an adequate means of livelihood is denied. Most pathetically the petitioners have submitted that unequal treatment has got no parallel in democratic country such as meted out to the petitioners and they have become victims of utter negligence on the part of the Government of West Bengal. It is further contended that the Home Guards are holders of civil posts within the meaning of Article 311 of the Constitution and cannot be excluded from the enjoyment of service benefits by discrimination based on no rational principles. The petitioners have come out with a very modest prayer of relief commanding the respondents to provide the petitioners with all benefits of Government servants including fixation of pay, benefits of Provident Fund, gratuity and retirement benefits as well as the privileges of leave and all sorts of Government allowances and further granting the usual increment etc. and also to allow them different allowances as well as usual clothings as given to the Constables of Border Security Force during the continuance of their services and the permanency of their services,