State
of West Bengal & Ors Vs. Jiban Krishna Das
& Ors [2002] Insc 228 (29 April 2002)
S. Rajendra
Babu, K.G. Balakrishnan & P. Venkatarama Reddi K.G. Balakrishnan, J.
Appeal (civil) 1469-78 of 1995
For
the protection of the boundaries of the border districts and also to give
training to some citizens in the use of fire-arms so that their services could
be used during the period of an emergency, a National Volunteer Force was
constituted in West
Bengal. For that
purpose, the West Bengal National Volunteer Act, 1949 (for short, "the
Act") was enacted in 1949. The Volunteer Force was known as "West
Bengal National Volunteer Force". Section 4 of the Act says that a
volunteer, when called upon for duty, shall discharge such functions in relation
to the protection of persons, the security of property and the preservation of
the public peace in any area within West Bengal and such other functions as may
be assigned to him. Every volunteer has to undergo a preliminary and periodical
training. The West Bengal National Volunteer Force Rules, 1949, have also been
framed under the Act. The conditions of recruitment are prescribed under Rule
3. Initially, the period of enrolment in the Force was for three years from the
date on which the recruit received the certificate of enrolment. Later, this
period was increased to ten years in 1987.
Still
later, the time limit was removed, but upper age limit of 45 years was
prescribed. Now, by subsequent amendment, the upper age limit is fixed at 60
years. It seems that the total number of the volunteers had increased to
thirteen thousand and odd and the services of all of these recruits were not
required by the State. In order to regularise their services and to give
opportunity to more and more persons in an equitable manner, a Notification was
issued by the State Govt. in the year 1969. The circular issued is to the
following effect :
"Undersigned
is directed to say that with a view to giving opportunity to all the Trained
Volunteer of the West Bengal National Volunteer Force on the standing list to
gain practical experience in discharging the duties assigned to them a batch of
National Volunteer Force. Volunteers called up under section 10(1) or under
Section 10A(1) of the West Bengal National
Volunteers Force Act, 1949, and deployed for duty should not be retained for
more than 3 months at a stretch. If the services of such volunteers are
required beyond the period of 3 months, a fresh batch of volunteers should be
called up and deployed on duty, there should thus, in such cases, be a regular
rotation of National Volunteers Force personnel called up for duty for every
three (3) months." As per the circular, a volunteer is to be deployed for
duty for a period of 3 months at a stretch and if the services of such
volunteer are required beyond the period of three months, a fresh batch of
volunteers should be called up and deployed on duty and in such a way the
rotational system was to be implemented.
The
above Notification was challenged by a group of volunteers by filing a writ
petition before the High Court of Calcutta. These volunteers contended that the
Notification issued by the State Govt. was an arbitrary and illegal exercise of
power and the volunteers were denied employment. It was contended that though
it is called a Volunteer Force, they were discharging duties of Police
Constables and therefore, they were entitled to the same service conditions
that are applicable to the police force and that once a volunteer was enrolled
in the Force and received a certificate, he shall not be denied employment and
that the rotational system denied opportunity of employment to these
volunteers. It was argued that the petitioners had joined the National
Volunteers Force and when they had been continuing in the Force for several
years, it was too late in the day to say that they were not entitled to get
'permanent' status. The learned Single Judge rejected this contention and held
that this was only a Volunteer Force and the rotation system was intended to
give opportunities to more and more members of the Force. The decision of the
learned Single Judge was challenged before the Division Bench and the Division
Bench of the Calcutta High Court held that even though the Force is termed as
"Volunteer Force", the same was not voluntary at all and once a
volunteer accepts a certificate under the Rules, he becomes a permanent member
of the Force and he is bound to carry out any order of the higher authorities.
It was held that the petitioners in the writ petition had rendered more than
240 days and they are entitled to get permanency.
The
Division Bench held :
We are
of the view that the appellants were entitled to be regularized and are
entitled to regular work and not on rotational basis. Accordingly, we hold that
the members of the National Volunteers Force are held to be under the
employment of the Government and that they are entitled to get that status and
other benefits as an employee of the State Government are getting and are
entitled to get regular work and not work on rotational system which had been
introduced. The circular in question by which the rotational system has been
introduced is declared arbitrary and illegal and not binding upon the members
of the Force." The above decision of the Division Bench is challenged
before us in these appeals by the State of West Bengal. We heard learned counsel on both sides.
The
counsel for the appellants contended that the Statute, namely, West Bengal
National Volunteer Force Act, 1949 envisaged only the creation of a Volunteer
Force and the members of the Force are not to be treated as on par with the
members of the Police Force or any other para military service. The preamble of
the Act reads as follows :
"WHEREAS
it is expedient and necessary to provide for the constitution of a National
Volunteer Force in West Bengal by enrolment therein of the citizens of India or
persons having permanent domicile in West Bengal who may offer themselves for
such enrolment for service during a period of emergency and for such other
purposes as the State Government may think fit." Section 3 of the Act says
that West Bengal National Volunteer Force shall be under the control and
superintendence of the Inspector General.
Section
4 says that a volunteer of the Force when called upon for duty, shall discharge
such functions in relation to the protection of persons, the security of
property and the preservation of the public peace in any area within West
Bengal and such other functions as may be assigned to him under the Act.
The
Act further provides that every volunteer shall undergo preliminary training
and every person enrolled as volunteer under the Act is entitled to receive a
certificate of discharge in the prescribed form on the expiration of the period
for which he was enrolled. Section 8 (5) (a) says that the prescribed authority
can suspend, discharge, dismiss or remove any volunteer from his office and the
prescribed authority can also disband any unit constituted under the Act.
Section 10 prescribes the mode in which the prescribed authority may at any
time call upon any volunteer for discharging any function assigned to him
anywhere in West Bengal and the Commissioner of Police in Calcutta or the
District Magistrate elsewhere, at any time, call upon the District or Unit
Commandant to mobilize any unit or a detachment of a unit for the purpose of
maintenance of law and order.
Rules
have also been framed prescribing the mode of recruitment, the nature of
enrolment and training under the Act.
On a
close perusal of the provisions of the Act and Rules, it is clear that the members
of the West Bengal National Volunteer Force were recruited to create a
volunteers force and the provisions of the Act never intended to give
permanency to the members of the Force. Their services were in fact required to
meet emergent situations. Merely because the members of the Force have to be
treated as public servants and their duties are to be regulated by some
prescribed code of conduct, it cannot be said that they will have to be treated
as Constables of the Police Force. Therefore, the direction of the Division
Bench to give status and other benefits as employees of the State Govt. was not
legal. It is also not correct to say that the members of the West Bengal
National Volunteer Force are entitled to get permanency. As per the provisions
of the Act, the members of the Force can continue upto the age of 60 years,
provided their services are required by the authorities.
The
counsel for the appellants pointed out that the respondents are not regularly
recruited Govt. employees and they are not entitled to get equal pay or other
service benefits, which are available to Govt. employees. It was also pointed
out that the conditions for recruitment to the Volunteer Force are also totally
different and no educational qualification as such is prescribed for enrolment
in the Volunteer Force and that even students can get themselves enrolled in
the Force. Whether the members of the Volunteer Force are entitled to get equal
pay and other benefits which are available to the Constables under the West
Bengal Police Force was considered by this Court in State of West Bengal &
Ors. vs. Hari Narayan Bhowal & Ors. (1994) 4 SCC 78. This Court held that
the West Bengal National Volunteer Force is a Force of volunteer and when
called upon for duty, a volunteer has to discharge such functions in relation
to protection of persons, the security of property and preservation of the
public peace in any area within West Bengal and such other functions as may be assigned to him. The whole concept
of the National Volunteer Force is different from that of Police Force and in
respect of the Volunteers it can be said that it is a standby Force, not only
for law and order but for different emergencies, to aid and help the regular
Police Force or members of other Services. It was held in paragraph 13 as under
:
"On
the material on record, it is difficult to hold that the respondents who had
been enrolled as volunteers under the West Bengal National Volunteer Force Act,
belong to the class of Constables, under the West Bengal Police Force and to
treat them separately in matters of fixation of scale of pay, amounts to
violating Article 14 of the Constitution. According to us, they form two
different classes in public service. In this background, the High Court was in
error in treating them at par with the Constables of the West Bengal State
Police Force." Therefore, the direction of the Division Bench that the
members of the National Volunteer Force are entitled to get status and other benefits
as employees of the State Govt. is not correct and the members of the National
Volunteer Force are not entitled to get the service benefits which are
available to the employees of the State Govt.
The
counsel for the respondents pointed out that after the issuance of the circular
dated 3.6.1969, several members of the Force had attained the age of 60 years
and the total number of members in the Force has decreased and that the total
number of posts available being about eleven thousand and odd, no rotation
system as such is required and all the members can be given service for the
entire year. It is submitted that from the year 1984 enrolment to the Force
itself was stopped and only few hands were recruited and therefore job
opportunities are available to the existing members.
All
these are matters to be looked into by the authorities. However, we are of the
view that circular dated 3.6.1969 was intended to give job opportunities to
more and more people in an equitable manner. We do not think that it is an
illegal or arbitrary exercise of power. The Division Bench was not justified in
setting aside the circular dated 3.6.1969. Therefore, these appeals are allowed
and the directions of the Division Bench are set aside. The appellants are at
liberty to enforce the circular dated 3.6.1969.
There
will be no order as to costs.
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