SHAM DEVI Vs. STATE OF J&K

JUDGEMENT

(1.) THE petitioners numbering 39 are Guards -men appointed under the Jammu and Kashmir Home Guards Act, 2006 (Home Guards Act hereinafter). They filed this writ petition on the apprehension that they were likely to be discharged from services to make way for new recruits. The basis for this apprehension was the announcement made by a local Dy. Suptd. of Police that new incumbents will be appointed with effect from 21 -08 -1995. It was also rumored that a list of Home Guards who were to be discharged and those to be recruited had already been prepared. Further case of the petitioners is that about 90 Guardsmen are likely to be affected by the arbitrary action of the respondents. The plea raised by the petitioners is that having been enrolled as Guardsmen under the Home Guards Act and the Rules framed thereunder they cannot be discharged without following the provisions of the Home Guards Act and the rules. That respondents be restrained from recruiting Guardsmen to replace the petitioners.

(2.) THE stand of the respondents is that under Home Guards Act a Guardman is appointed only for a period of three years and can be discharged any time even before this period. The Act further provides that a Guardsman does not hold a Civil post and is not as such, entitled to any protection under the Constitution as is available to a person holding civil post. The respondents have thus challenged the maintainability of the writ petition because a Guardman has no right to continue after three years.

(3.) SECTION 2 of the Home Guards Act provides for Constitution of Home Guards and appointment of Commandant General and Commandant. Section 3 of the Home Guards Act provides that Commandant General or the Commandant as the case may be, shall be the appointing authority of any member of the Home Guards. This section is relevant not only for the purpose to appoint member of the Home Guards, but also with regard to the tenure of the Home Guards or Guardsmen and power of the appointing authority to discharge any Home Guard at any time. This section reads as under: 3. Appointment of members (1) subject to the approval of the Commandant General, the Commandant General, the Commandant may appointment as member of the Home Guards such member or persons who are fit and willing to serve, as may from time to time be determined by the Government and may appoint any person to any office or command in the Home Guard.