Mohit S. Shah, Kalyan Jyoti Sengupta, JJ. - (1.) The judgment of the Court was as follows:- This writ petition has been placed before us upon a reference made by the learned Single Judge by order dated 22nd February, 2010. The question to the matter has been referred for a decision on the following point: "Whether on the facts of the case, writ application is maintainable in High Court and Central Administrative Tribunal has no jurisdiction to decide it -
(2.) Certain members of the Home Guards (Andaman & Nicobar Islands, Home Guard Organization) had filed an original application before the State-Central Administrative Tribunal constituted under the Administrative Tribunals Act,1986. In 1985 the Tribunal had directed the Administration to frame a scheme for regularisation of the members of the home guards and had also made observation that while framing the scheme, regard may be had to the local conditions and particularly facts and circumstances of the respective cases. That order dated 16th September, 2003 of the Tribunal was carried in Tribunal appeal before a Division Bench of this Court in W.P.C.T. No. 73 of 2003. After hearing the learned Counsel for the parties and after considering the provisions of Andaman & Nicobar Islands Home Guard Regulation, 1964 and Andaman & Nicobar Home Guard Rules, 1965, the Division Bench in their judgment dated 16th December, 2003 took the view that while the members of the Home Guards employed by Andaman & Nicobar Islands are employees of the Administration, they are not holders of civil post and not civil servants and gave the following finding: "The Home Guard Act does not provide for a recruitment process. The engagement as Home Guards is not an engagement in service or an engagement to a civil post under the union. Therefore, we do not find that the respondents could maintain the claim before the learned Central Administrative Tribunal for the grievances ventilated by them".
(3.) After giving the above finding, the Division Bench further held that the fact remained that when the Home Guard is engaged or called out in service, he would be entitled to regular pay from his employer and, therefore, while performing as Home Guard the person is entitled to receive his pay from his employer regularly. The Division Bench made the following observations: "In these circumstances, we treat this writ petition as an original writ petition and dispose of the same in the following manner";