U. BINU Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS writ petition has a chequered history.

(2.) THE writ petitioner has approached this court on three previous occasions where in substance the petitioner has prayed for regularization and/or absorption of the writ petitioner as Home Guard. The petitioner was initially appointed as Home Guard Volunteer in terms of section 4 sub -section 1 of the Andaman & Nicobar Islands Home Guard Regulation 1964 for a period of three years from 24th March, 1993. Since the service of the petitioner was not regularized even after putting more than five years of service continuously, the petitioner made a departmental representation and ultimately filed an application along with other applicant being OA No. 122/AN/99 for regularization. In the said proceeding, an order was passed on 13th October, 1999 directing the respondent authorities not to pass any order detrimental to the interest of the said applicants including the petitioner in respect of their status of Home Guard as being enjoyed and performance of duty being performed by them till the disposal of the case. In spite of the aforesaid, the petitioner was discharged from service on 22nd January, 2002 by the Area Commandant, Home Guard Andaman and Nicobar Islands prior to the disposal of the OA 122/AN/99 the reason for the discharge of the petitioner was that the petitioner was not in proper uniform. In 2008, the petitioner filed a writ application being WP No. 048 of 2008 challenging the said order of discharge and disciplinary proceeding in which Justice Pinaki Chandra Ghosh as His Lordship then was before His Lordship 's elevation to the Hon 'ble Supreme Court held that the said dress code violation is not that fatal which would visit the petitioner with an order of discharge and the writ petition was disposed of by directing the respondent No. 3 to treat the writ petition as representation and consider the same sympathetically and on humanitarian ground.

(3.) THE learned Single Judge by a judgement and order dated 07th February, 2011 in WP No. 994 of 2010 disposed of the said writ application by directing the authorities concerned to consider the case of the petitioner in accordance with the scheme to be framed as directed by the Hon 'ble Division Bench in judgement and order passed on 04th February, 2011 in MAT MAT No.064 of 2010, MAT No.065 of 2010 and MAT No.066 of 2010. The Hon 'ble Division Bench by which direction was issued upon the respondents to frame a scheme by issuing appropriate notification within six months for regularization of the service of the Home Guard in accordance with the judgement of the High Court in MAT No. 25 of 2006 and decision of the Apex Court in SLP (C) 10496 of 2007 (Union of India and other -vs - Parul Debnath and others). Thereafter the petitioner was discharged from service on 13th May 2011 which gave rise to another writ petition being WP No. 946 of 2011. In the said proceeding the petitioner has challenged the order of discharge passed by the said respondent authorities by which the petitioner was discharged from service on and from 13th May 2011. The learned single judge disposed of the said writ application on February 07, 2012 by observing that the petitioner had earlier served the organization between the years 1993 to 2002. He was discharged from service on disciplinary ground in the year 2002. Subsequently he was given a fresh appointment after consideration of his case in pursuance of the direction of this court passed on 08th April, 2008 in WP. No. 048 of 2008. On completion of three years, after he was given a fresh appointment, he was discharged from service. At various point of time, different scheme is framed by the administration for absorption of Home Guard in Police Force as well as other department of the administration. Since the scheme is in operation with regard to regularization of Home Guard being Regularization of Home Guard - Scheme of Andaman & Nicobar Administration 2011 and having regard to the fact that the representation of petitioner for absorption was still under consideration, the authority was directed to take a decision for regularization of the petitioner considering the applicable scheme and the fact that he had served the organization in the past. The authority concerned in purported compliance of the said order passed an order dated 24th February, 2012 rejecting the request for regularization in supernumerary post. The reasons for rejecting the said application is that the petitioner did not fulfill the eligibility criteria as stipulated in the scheme for regularization. He was appointed afresh in terms of Andaman & Nicobar Island Home Guard Regulation, 1964 and Rules 1965 for specific period of three years with effect from 23rd June, 2008 and did not possess the five years of continuous service without any break. Furthermore the scheme of 2011 does not envisage continuing of past service rendered by the petitioner since he was discharged on disciplinary ground.