IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11765 of 1996 1. BIHAR AWAITNIK HOME GUARD Association through Awadhbihari Singh, General Secretary of the Association Bihar, Patna. 2. Sri Shiv Narain Yadav son of Shri Baijnath Pd. Yadav, District Secretary, Bihar Awaitnik Home Guard Association Bhagalpur. 3. Shambhu Kumar Mandal son of Sri Chintamani Mandal resident of Ushamanpur, P S. Kharik District Bhagalpur. 4. Ashok Sah son of Late Mahdeo Sah resident of village Bari Khanjarpur P S. Barari, District Bhagalpur. 5. Basudeo Sah @ Basudeo Prasad Sah, son of late Mahabir Pd. Sah at & P. O. Krishnadespur, P S. Kahalgaon, District Bhagalpur. …. Petitioners. Versus 1. THE STATE OF BIHAR 2. I. G. Homeguard & Civil Defence Govt. of Bihar Chhaju Bagh, Patna. 3. Commandant General, Home Guard and Civil Defence Govt. of Bihar Chhajubagh Patna. 4. Home Secretary, Govt. of Bihar, Old Secretariate, Patna. … Respondents. --------- PRESENT HON’BLE MR. JUSTICE MIHIR KUMAR JHA --------- O R D E R (13.05.2011) -------- Mihir Kumar Jha, J. No one appears. 2. In this writ application, the prayer of the petitioners association is to quash the order dated 8.3.1995 whereby it has been directed to all the Controlling Authorities in the different organization that no work should be taken from Home Guards who had attained the age of 44 years and to that extent the relevant portion of the standing order dated 8.3.1995 2 reads as follows:- ^^x`g j{kd okfguh vf/kfu;e ds v/khu vf/kd ls vf/kd 44 o"kZ dh vk;q rd x`g j{kd dks gh dkay vi fd;k tk ldrk gSA** 3. From the reading of the writ application, it is clear that the petitioner-association has assailed the aforementioned decision on the ground that when under the Bihar Home Guards Act, 1947 (hereinafter referred to as the „Act‟), there is a clear provision of period of service and discharge which also provides for a Home Guard being called out for duty at any time while being kept in reserve, the impugned standing order would be in teeth of the provisions made under Section 8 of the Act. 4. Counter affidavit has been filed wherein the respondents have taken a plea that the provision incorporated in the impugned standing order is absolutely in keeping with the provision made under the Act and the rules framed thereunder. 5. In the considered opinion of this Court, the answer to the question posed by the petitioners in this writ application, can be found from Section 4 and 8 of the Act. Section 4 reads as follows:- “4. Calling out Home Guards.- The District Magistrate 3 having jurisdiction over any area in which this Act is in force may, by an order made in such manner as may be prescribed, call out any Home Guard for the discharge of any duty assigned to the Home Guards in accordance with the provisions of this Act and the rules made thereunder.” 6. From the perusal of the aforementioned provision, it would be clear that there is no unbridled power vested in the District Magistrate to call out Home Guard rather the same has been hedged and circumscribed by the provision under the Act and the Rules. In this regard, Section 8 becomes important which provides for a period of service and discharge. Section 8 reads as follows:- “8. Period of service and discharge.-(1) Subject to any rules made in this behalf, a Home Guard shall be required to serve the State Government for a period of twelve months (including the period spent over training) which period may be extended by the State Government to such further period as it may consider necessary, and the Home Guard shall thereafter serve in the reserve force for a period of three years and, while in the reserve, shall be liable to be called out for duty at any time. (2) Every Home Guard shall be entitled to receive his discharge from the Home Guards on the expiration of the period specified in sub-section (1); but any such person may before he 4 becomes so entitled be discharged by such authority and subject to such conditions as may be prescribed. (3) A Home Guard shall, within ten days of his discharge under sub-section (2), surrender the certificate of appointment granted to him under sub-Section (3), of section 3 to such authority as may be prescribed.” 7. From the reading of Section 8 of the Act, it would be clear that a Home Guard shall be required to serve State Government for the period of 12 months including the period spent over training and which could also be further extended by the State Government for any further period as it may consider necessary, but the Home Guard has to serve even thereafter in the reserve force for the period of three years and while being in reserve he can be called out for being assigned any duty. The net impact of Section 8 would be that the Home Guard ordinarily shall have tenure of four years, 12 months plus 3 years in the reserve force. 8. In view of the fact that Rule 4(a) lays down that a person for being enrolled as a Home Guard has to be less than 40 years of age, the period of 44 years in fact is meant to cover up the requirement under 5 Section 8 of the Act. As noted above, under Section 8 of the act the maximum permissible tenure is four years 12 months in active service and three years in reserve force. It is in this regard that Rule 7 becomes important which reads as follows:- “7. Discharge- A Home Guard shall be discharged on competition of the period of his service for three years in the reserve force, provided that the State Government, the Inspector- General or any other authority to whom this power may be delegated by the State Government, may discharge a Home Guard earlier on any of the following grounds, namely_ (i) physical unfitness; (ii) attainment of 41 years of age (iii) at his own request; or (iv) for any other special reason to be recorded in writing by the discharging authority.” 9. From the reading of the Rule 7, it becomes clear that there is a mandate of the legislature for discharging a Home Guard on completion of period of three years in reserve force and therefore any Home Guard even entering on the age of 40 years after 12 months of service and further three years in reserve force can not exceed the age of 44 years. 6 10. Judged in this background, this Court would not find any error in the impugned standing order and the challenge of the petitioner Association to the same, must be held to be wholly misconceived. 11. That being so, there is no merit in this writ application and it is, accordingly, dismissed. 12. There would be, however, no order as to costs. Patna High Court Dated:- 13th of May 2011 A.F.R./kanchan ( Mihir Kumar Jha, J.)