Case: State Of Gujarat  Vs. Akshay Amrutlal Thakkar

These appeals are directed against judgments rendered by different Division Benches of the Gujarat High Court holding that the orders of disengagement of the respondents who were working as Home Guards and Home Guards Commandants were without legal sanction. The orders of engagement of the respondents were passed in purported exercise of powers conferred under Section 2 of the Bombay Home Guards Act, 1947 (in short the `Act). Subsequently being of the view that the respondents activities were in violation of the guidelines contained in Government Resolution No. HGD/1078/5355/F dated 3.9.1979 of the Home Department; the orders of disengagement were passed. Akshay Amruttal Thakkar-the respondent in Civil Appeal No.2456 of 1998 filed a writ application challenging the order of disengagement, which was dismissed by learned Single Judge. The Letters Patent Appeal filed by him was allowed. The respondents in the connected Civil Appeals had filed writ applications which were allowed by a Division Bench of the Gujarat High Court. It was held that the act of the Bombay Home Guards Rules, 1953 (in short the `Rules) did not empower the Government to direct termination of the services of any member of the Home Guard or all the members of the Home Guards as was sought to be done by the impugned decision of the Government on 2nd December, 1995.

Reasoning: 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