KANAKLATA SAHA Vs. STATE OF TRIPURA

JUDGEMENT

(1.) THE petitioner Smt. Kanak Lata Saha who was enrolled as a Rural Homeguard Volunteer in the Tripura Homeguards Organization by calling-up letter dated 02. 02. 90 (Annexure-A) has filed the present petition seeking direction to provide the petitioner the regular post of Group -D General duty Attendant (GDA) (Class IV post) with effect from 01. 04. 90 and treating her to be regularly serving in the said post for all purposes. The petitioner was issued with the calling-up letter dated 02. 02. 90 in order to give her a source of earning as her husband who was serving in the Tripura Homeguard Organisation, was suffering from insanity during his service career. Following the call-up order dated 02. 02. 90, the writ petitioner was engaged with effect from 01. 04. 90, to discharge duties as a GDA in the Police hospital, Agartala and on the basis of such engagement, the petitioner is now putting forward the claim for treating her in the regular post of GDA with effect from 01. 04. 90.

(2.) IT has been argued by Mr. B. Das, learned Sr. Counsel assisted by Mr. D. Chakraborty, learned counsel for the petitioner that the writ petitioner by virtue of being posted as a Homeguard is entitled to be considered to hold a civil post and also as a regular employee of the Government and accordingly her case should be considered for a direction to treat her as a regular GDA with effect from 01. 04. 90. In support of the aforesaid contention, the learned counsel has pressed home the following decisions:-The judgment of this Court dated 22. 07. 88 in Civil Rule No. 119 of 1981 (Ratan Lal Dutta Vs. State of Tripura) and the judgment dated 12. 11. 02 in Writ Appeal ;no. 46 of 1997 (Dilip Kumar Deb Vs. State of Tripura) as well as the judgment of the Supreme Court reported in (2003) 6 SCC 469 (State of West Bengal Vs. Pantha Chatterjee) have been cited in support of the submission that the service rendered by the petitioner is to be treated as service in a civil post under the Government of Tripura and consequently, the petitioner is entitled to the benefits of the services rendered by her as a GDA, for treating her to be a regularly posted as GDA with all consequential benefits.

(3.) MS. Lodh, learned counsel for the State respondents, on the other hand, has argued that the claim made in the writ petition is not liable to be entertained by this Court since the writ petitioner was engaged as a Homeguard volunteer on account of sympathetic consideration shown by the Government and the nature of services of the Homeguard, does not entitled the petitioner to be treated as a regular employee in the post of GDA. In support of her contention, Ms. Lodh has drawn attention to the provisions of the Bombay Homeguards Act, 1947 (hereinafter referred to as 'the Act') which has been made applicable to the State of Tripura and has drawn attention to Section 16 of the Act to indicate the functions and duties of the members of the Homeguard. It has been submitted with reference to the provisions of section 16 (1) (c) of the Act that the Homeguards are to perform such other duties as may be assigned to them from time to time and accordingly it has been argued that engagement of the petitioner as a GDA in the hospital is with reference to the assignment envisaged under Section 16 (1) (c) of the Act and by virtue of such engagement, the petitioner is not entitled to be treated as a regular GDA. Learned counsel has also drawn attention of this Court to the Judgement dated 06. 01. 97 in Civil Rule No. 302 of 1989 (Nirmal Dey Vs. State of Tripura) to put forward the argument that the writ petitioner who is a Homeguard volunteer is not entitled to be treated to hold a civil post under the Tripura Government. Learned State counsel has also drawn attention of this Court to the decision reported in (2006) 4 SCC 1 (Secretary, State of Karnataka Vs. Uma Devi) in support of her submission that the petitioner is not entitled to be treated as a regular employed GDA as her engagement is de hors the Rules and the petitioner has not been appointed or engaged in the post of GDA by following the prescribed process for recruitment to the post of GDA.