Desai, J. -
(1.) Appellant Ramanand Singh who claimed that he was Company Commander in the Bihar Home Guards Organisation, has questioned the order of termination of his service on May 1, 1952 by Commandant General. Appellant was enrolled according to him, as voluntary Home Guard by the District Magistrate on Feb, 2, 1948. He was promoted and posted as Hony. Company Commander in Bihar Home Guards Organisation on Feb. 16, 1949. He was recruited as Company Commander on regular pay roll according to him on a permanent post on March 1, 1949. He proceeded on leave for 2 months on March 18, 1950. It appears he was arrested on the allegation that he was involved in an offence of dacoity on April 12, 1950, and he remained in jail till 1964 during which period he was once acquitted by the Sessions Judge but the acquittal was set aside by the High Court of Bihar at Patna but on a further appeal to this Court he was acquitted. After being released from jail he filed M. J. C. 781/64 in the Patna High Court impleading the State of Bihar and Inspector General of Home Guards as respondents. In the petition the appellant contended that his induction into the Home Guards Organisation as volunteer Home Guard on February 2, 1948, was by the District Magistrate and that his subsequent promotion and posting as Hony. Company Commander and regular Company Commander was by the Provincial Government and, therefore, his dismissal from service by the Commandant General, Horne Guards is violative of Art. 311 of the Constitution and was void ab initio. This was the only contention which the High Court was invited to examine. A Division Bench of the High Court held that no order of the Government of Bihar appointing the appellant as Company Commander, Home Guards, has been produced. The High Court further observed that the appellant relied upon what are known as Bihar Home Guards Rules, 1948 ('1948 Rules' for short) under which the appointing authority for the Company Commander was the Provincial Government but it was conceded before the High Court that rule 5 on which the appellant relied, was subsequently amended on Dec. 27, 1949, conferring power on the Commandant General to appoint Comany Commanders and when the Rules were overhauled in 1953 this amendedment was continued and, therefore, the High Court found no merit in the contention of the appellant. Accordingly the High Court dismissed the petition with no order as to costs. Hence this appeal under the unamended Art. 133 (1) (a).
(2.) The appellant appeared in person and canvassed the same contention before us. We must frankly confess that this case suffers from a total lack of information. The respondents also have not placed on record various documents which they could and ought to have easily produced before the Court and the only explanation Mr. Bhagat, learned counsel who appeared for the respondents, offered to us was that the appellant was prosecuted in a number of courts and the record pertaining to him was called for by various courts and, therefore, it has become impossible for the respondents to trace the relevant records and to place the same before this Court. May be, the respondents may be handicapped in this behalf but thereby the situation does not improve and the case is being disposed of on utterly insufficient data. Even the appellant who argued with vehemence, has not produced the relevant records but wanted us to draw adverse inference against the respondents because his grievance was that on number of occasions his house was searched and his papers were taken away by the search parties, and therefore, he was unable to produce the primary documentary evidence which would have helped this Court in judging the issues in their proper perspective, but the respondents had the original documents and they are being withheld with an ulterior motive.
(3.) Appellant says that his dismissal as Company Commander on May 1, 1952, by the order of the Commandant General is void ab initio because it is ordered by an authority lower than the appointing authority and, therefore, Article 311 is violated. In support of this contention appellant drew our attention to R. 5 of the 1948 Rules enacted in exercise of the power conferred by S. 13 of the Bihar Home Guards Act, 1947, ('Act' for short). The Act is a bare skeleton statute and no provision of it would be helpful in deciding the contention raised before us. Appellant relied upon R. 5 which reads as under:
"5. Procedure for appointment of officers and men of the Home Guards Force:- (1) The Commandant General, Battalion Commandants and Company Commanders shall be appointed by the Provincial Government on the recommendations of a Committee, the constitution of which shall be announced in the Official Gazette by general or special orders of the Provincial Government.
(2) The Commissioner of the Division shall appoint Platoon Commanders on the recommendation of the Commandant General.
(3) The Battalion Commandants shall appoint Section Leaders, ordinarily from amongst the Home Guards, on the recommendations of Platoon and Company Commanders. (4) (i) Application for enrolment as a Home Guard shall be made in Form A (in Hindi) to the District Magistrate of the district in which the appellant ordinarly resides.
(ii) Home Guards shall be enrolled by the District Magistrate on the recommendation of a Committee in each district consisting of the Commandant General or in his absence Battalion Commandant, the District Magistrate and the Superintendent of Police of the District, and a non-official member nominated by the Provincial Government. The Chairman of the Committee shall be nominated from among its members by the Provincial Government.
(iii) After holding tests of the general knowledge, alertness, intelligence and physical fitness of the candidates under its supervision, the committee shall interview all or such of the candidates as it thinks fit and recommend, in order of preference, to the District Magistrate, a number of candidates 50 per cent more than the number of vacancies.
(iv) After such verification of character and antecedents of the candidates recommended by the Committee as may be necessary, the District Magistrate shall enrol the required number of Home Guards.
(5) Seniority shall be determined by rank, and as between persons of the same rank by the date of promotion or appointment to the rank.";