Case: State Of Gujarat  Vs. Akshay Amrutlal Thakkar

the Commandant General and the Commandant, any Officer of the Home Guards authorised by the Commandant in this behalf may exercise the powers conferred by section 4 on the Commandant in such circumstances as the Commandant may specify." 7. Bare regarding of Section 2(2) makes it clear that the State Government is the appointing authority. The State Government appoints a Commandant of each of the Home Guards constituted on sub-section (1). Sub-section (3) deals with appointment of a Commandant General of the Home Guards in whom the general supervision and control of the Home Guards throughout the State of Gujarat is vested. Rule 8 provides for the term of office. Rule 9-A deals with the condition subject to which powers of discharge are to be exercised. Reading of Section 5 makes the position clear as regards powers privileges and the protection of the members of the Home Guards. Therefore, the appointing authority so far as the Commandants and the Commandant General are concerned is the State Government. The Commandants have the power to appoint the Home Guards. Therefore, the State Government is the superior authority in the matter of appointment. 8. Learned counsel for the State submitted that the orders passed by the authorities were not in a sense one of termination. Therefore, the action of the Commandant/Commandant General, if any, discharging a person from duty cannot be said to be without authority of law. Principles regarding the appointment of District Commandant and Home Guards is contained in the Notification dated 17.4.1993, which are as follows: 1. The age limit for the appointment of District Commandant should be 35 to 50 years. 2. First selection shall be given to the candidate whose minimum educational qualification is up to the level of graduation. 3. Candidate should neither have permit for liquor nor should he be punished under any offence of prohibition, abolition of un-touchability Act or Indian Penal Code. 4. Candidate shall underwrite that he shall neither be a member of any political party nor shall he be led by any communal institute or political party nor shall he be led by any communal institute or political party nor shall he involve any activity of this force in political or communal activities. 5. He should have at least rendered his services for three years as Taluka Home Guards officer and five years as Home Guard. However the senior most office from among the Honorary staff officers at district level will be given first selection. 6. A person who is a recipient of any of the medals given any by the president, Home Guards or Civil defence, will be given priority. 7. The person who have got training of Home Guards/N.C.C./Military or Police and also the persons who have retired in the rank of captain/Dy.S.P. shall be given priority vis-a-vis others. 8. As the honorary post of District Commandant is equivalent to the gazetted officer, Class-I, hence the appointment shall be made by the selection committee. The Selection Committee shall comprise commandant General, Home Guards Deputy Secretary, Home Department and Deputy Superintendent of Police of the concerned range of State of Gujarat. 9. The persons who may be appointed shall have to undergo the training of administrative as well as account work as may be decided by the Government. 10. After the appointment person concerned shall have to stay at District Head Quarters. 11. The tenure of the appointment shall be of five years and therefore, if the further order of appointment is not issued, he shall be treated as suo motu relieved from his post at that time instant without any notice and he shall have to hand over the charge to the immediate senior officer working under him. 12. On the completion of his tenure for the post of District Commandant or in case he is relieved prior to that, he shall have no promptly hand over the charge to other immediate senior. He shall underwrite that he shall not file any suit in any court against the fresh orders of new appointments. 9. The guidelines 4 & 5 are relevant for the purpose of this case. Guideline 5 makes it clear that only a person who rendered services for a particular period as Taluka Home Guards Officer is eligible for appointment as District Commandant. The post of District Commandant is honorary post. However, it is equivalent to the gazetted officer, Class-I and the appointment is to be made by a Selection Committee consisting of the designated officers. It is found that in terms of guideline 4, an undertaking is given that the person selected is not to be member of the political party and shall not led by any communal institute and political party and nor shall be involve in any political or communal activities. As the authorities found that the respondents were in fact acting at variance with the undertaking given, their disengagement was felt necessary. View taken in the impugned judgments, therefore, cannot be maintained and the impugned judgments are set aside. The view expressed by the Division Bench of the High Court in special Civil Application No.3447 of 1996 dated 23.1.1998 (Lateben Ramniklal Shah and Ors. vs. State of Gujarat and Ors.) taking to contrary view is the correct one. 10. As rightly contended by learned counsel for the appellant-State, the order impugned in the writ petition was one of disengagement because the respondents did not act in terms of the undertaking given. As the services rendered by the respondents were essentially honorary no civil consequences were involved. Section 6B(1-A) empowers the Commandant to discharge any member of Home Guards at any time of the opinion of the Commandant the services of such member are no longer required. The provision does necessarily refer to the discharge of a member from the Home Guards. The respondents in the instant case were not sought to be discharged as members of the Home Guards. Under the Notification in question, the discharge was from duties as District Commandant, Home Guards.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]As rightly contended by learned counsel for the appellant-State, the order impugned in the writ petition was one of disengagement because the respondents did not act in terms of the undertaking given. As the services rendered by the respondents were essentially honorary no civil consequences were involved. Section 6B(1-A) empowers the Commandant to discharge any member of Home Guards at any time of the opinion of the Commandant the services of such member are no longer required. The provision does necessarily refer to the discharge of a member from the Home Guards. The respondents in the instant case were not sought to be discharged as members of the Home Guards. Under the Notification in question, the discharge was from duties as District Commandant, Home Guards