STATE OF WEST BENGAL Vs. JIBAN KRISHNA DAS
SUPREME COURT OF INDIA (FROM: CALCUTTA)
STATE OF WEST BENGAL
JIBAN KRISHNA DAS,SUBHAS CHANDRA KUNDU
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K. G. Balakrishnan, J. -
(1.)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."
(2.)As per the circular, a volunteer is to be deployed for duty 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.
(3.)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 national 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".
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