Holding

The disengagement of the respondents was lawful because they violated the political‑neutrality undertaking prescribed in the 1993 Notification, and Section 68(1‑A) authorises such discharge of an honorary District Commandant.

Summary

The respondents, appointed as Home Guard Commandants under the Bombay Home Guards Act, 1947, were disengaged after the authorities found they had violated the political‑neutrality undertaking required by the Notification dated 17‑April‑1993. The State of Gujarat contended that the disengagement orders were lawful, relying on Section 68(1‑A) (also referred to as Section 6B(1‑A)) of the Act and the relevant Rules, which empower a Commandant to discharge a member when his services are no longer required. The respondents argued that the orders amounted to an unlawful termination of their honorary post, which they claimed required a different statutory basis. The Supreme Court examined the provisions of the Act, the Rules, and the specific guidelines (4 and 5) of the 1993 Notification, holding that the guidelines were integral to the appointment and that breach of the political‑neutrality undertaking justified disengagement. The Court further clarified that the discharge pertained to the duties of District Commandant, an honorary post, and did not involve civil consequences. Consequently, the appeals were allowed, confirming the legality of the disengagement.

Issues considered

Whether the orders of disengagement of Home Guard Commandants were without legal sanction under the Bombay Home Guards Act, 1947.
Whether Section 68(1‑A) (or Section 6B(1‑A)) empowers the Commandant to discharge an honorary District Commandant for violation of the political‑neutrality undertaking.
Whether the guidelines contained in the Notification dated 17‑April‑1993 are binding and relevant to the validity of the disengagement.

Subjects

Home Guardsdischargehonorary postpolitical neutralityBombay Home Guards ActSection 68(1-A)Section 6B(1-A)guidelinesappointmentcommandant

Judgment

' A
"· STATE OF GUJARAT AND ANR.
v.
AKSHA Y ARUTLAL THAKKAR

JANUARY 17, 2006

[ARIJIT PASAYAT AND TARUN CHATTERJEE, JJ.] B

y
Service law:

Bombay Home Guards Act, 1947-Section 2, 68(1-A); Bombay Home
Guards Rules, 1953. Rules 2(2), 2(3); Government Resolution No. HGD/10781 c
5355/F dated 3. 9.1979-Notiftcation dated 7.4.1993-Disengagement or
termination of :-ervice of Home Guards and Home Guard Commandants-
legality of-Held, legal as their activities were in violation of Guidelines
contained in Notification dated 7.4.1993.
,
D
~ The respondents were appointed as Home guards and Home Guard
Commandants. The Rules for their appointment are contained in
notification dated. 17.4.1993. In terms of said Notification, a Taluka heme
guard officer is entitled to be promoted as District Commandant, which
is an honorary post. When selected by selection committee he is required
to give an undertaking that he will not indulge in politics or communal E
activity. Respondents were found to be indulging in prohibited activities.

The question which has arisen in these appeals is whether the orders
~,
of disengagement of the respondents were without legal sanction.

Allowing the appeal, the Court F
HELD: Guidelines 4 and 5 contained in Notification dated 17.4.1993
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 G
equivalent to Gazetted Officer, Class-I and the appointment is to be made
-i' 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 be to member of the political party and shall not be led b'y
439 H
440 SUPREME COURT REPORTS [2006] I S.C.R.

A any communal institute or political party, nor shall he involve in any I
political or communal activities. As the authorities found that the
respondents were in fact acting in variance with the undertaking given,
their disengagement was felt necessary. The services rendered by the
respondents were essentially honorary, therefore, no civil consequences
B were involved. Section 68(1-A) empowers the Commandant to discharge
any member of Home Guards at any time if in 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
C question, the discharge was from duties as District Commandant, Home
Guards. (445-G-H; 446-A-C-D(

Anirudhsinhji Karansinhji Jade) a and Anr. v. Stale of Gujarat (1995) 5
sec 302, referred to.
D CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2456of1998. '
,i

From the Judgment and Order dated 30.7.1997 of the High Court of
Gujarat in Letters Patent Appeal No. 549/97 in S.C.A. No. 9512/96.

WITH
E
Civial Appeal Nos. 544-553 of 2006.

Ms. Hemantika Wahi and Ms. Pinky Behra for the Appellants.
F
Amar Dave, Mrs. Sheela Goel, Nikhil Goel, Dr. K.S. Chauhan, Chand
Kiran and V.K. Burman for the Respondent(s).
F
The Judgment of the Court was delivered by

ARIJIT PASA YAT, J. Leave granted in SLP(C) Nos. I0865-10874 of
1998.

G 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
H conferred under Section 2 of the Bombay Home Guards Act. 1947 (in short
STATE OF GUJARAT". AKSHAY AMRUTLAL THAKKAR[PASAYAT,J.l 441
\ the 'Act'). Subsequently being of the view that the respondents' activities A
were in violation of the guidelines contained in Government Re_solution No.
HGD/1078/5355/F dated 3.9.1997 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 B
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, l 953 (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 C
the impugned decision of the Government on 2nd December, 1995. Reliance
was placed on a decision of this Court in Anirudhsinhji Karansinhji Jadeja
and Anr. v. State of Gujarat, (1995] 5 SCC 302 for accepting the present
respondents' stand.

The Division bench by the impugned judgment in Civil Appeal No. D
~\ 2456of1998 followed the earlier decision of the Division bench and allowed
the Appeal, setting aside the learned single judge's order.

Learned counsel for the Appellants-State and its funcionary question
the correctness of the judgments on the ground that the High Court has not
taken note of the relevant provisions of the Act and the Rules. E
Learned counsel for the respondents on the other hand supported the
judgments of the High Court impugned in these appeals.

In other to appreciate rival submission a few provisions of the Act and
Rules need to be noted: they are Sections 2, 6B(l-A) of the Act, and rules F
2(2). 2(3). 2(6). 9(a). 11 & 12 of the Rules .

.. 2( I) The State Government shall constitute for each of the areas
specified in sub-section (3) of section I and for each of the areas
notified under the said sub-section (3) a volunteer body called the G
Home Guards. the members of which shall discharge such functions
and duties in relation to protection of persons. the security of the
property and the public safety as may be assigned to them in
accordance with the provisions of this Act and the rules made
thereuoder.
H
442 SUPREME COURT REPORTS (2006) I S.C.R.
i
A (I A). In respect of the Saurashtra area and the Vidarbha region, the
Home Guards raised or constituted, immediately before the
commencement of the Bombay Home Guards (Extension and
Amendment) Act, I958, shall be deemed to be constituted under sub-
section (I).

B (2) The State Government shall appoint a commandant of each of the
Home Guards constituted under sub-section (I).

(3) The State Government shall also appoint a commandant General
of the Home Guards in whom shall vest the general supervision and
control of the Home Guards throughout the State of Gujarat.
c 68. (I) The Commandant shall have the authority to suspend, reduce
or dismiss or fine, to an amount not exceeding fifty rupees, any
member of the Home Guards, under his control, if such member,
without reasonable cause, on being called out under section 4 neglects
or refuses to obey such order or to discharge his functions and duties
D as a member of Home Guards or to obey any lawful order or direction
given to him for the performance of his functions and duties or is
guilty of any breach of discipline or misconduct. The Commandant
shall also have the authority to dismiss any member of the Home
Guards on ground of conduct which has led to his conviction on a
E criminal charge. The Commandant General shall have the like authority
in respect of any member of the Home Guards appointed to post
under his immediate contro I.

(IA): Notwithstanding anything contained in this Act, the Commandant
shall have the authority to discharge any member of the Home Guards
F at any time subject to such conditions as may be prescribed if, in the
opinion of the Commandant, the services of such members are no
longer required. The Commandant General shall have the like authority
in respect of any member of the Home (Juards appointed to a post
under his immediate control.

G Rules

"2(2) "Commandant" means a Commandant of Home Guards ,.
appointed under Section 2.

2(3) "Commandant General .. means the Commandant General
appointed under Section 2.
H
-f

STATEOFGUJARATv. AKSHAY AMRUTLAL THAKKAR fPASAYAT.J.] 443
'\ 2(6) "member of Home Guards" means a member appointed under A
Section 3.

9--A. Conditions subject to which powers of discharge may be
exercised. No member ofthe· Home Guards shall be discharged under
sub-section (I-A) of section 6--B unless the Commandant or the
Commandant General, as the case may be, is satisfied that such B
member has committed an act detrimental to the good order, welfare
y or discipline of the Home Guards Organization.

11. Organization-in addition to the Commandant General, the Home
Guards constituted for each area shall consist of a Commandant, a
Second-in-Command, an Adjutant, Senior Divisional Commanders, c
such staff Officers as the Commandant may consider necessary,
Divisional Commanders, Company Commanders, Senior Platoon
Commanders, Platoon Commanders, Sergeant Majors, Quarter Master
a.l ~
Sergeants, Platoon Sergeants, Section Leaders, Assistant Sections
Leaders and Sections consisting of twelve Home Guards. Three
).\ D
sections shall form a Platoon, three Platoons a Company and three
Companies a Division.

12. Power of the Commandant General and Commandants - (I) The
Commandant-General shall exercise general supervision and control
over the working of all Commandants in the State and Co-ordinate
E
the work of the Home Guards all over the State. He shall be directly
responsible to the State Government for the efficient working,
~~ discipline, administration and training of the organization.

(2) Subject to the supervision and control of the Commandant General,
each Commandant shall exercise supervision and control over the F
..;,
working of the Home Guards under his command. He shall be
res~onsible to the Commandant General and the State Government
for the deficient working, discipline, administration and training of
_.,. the Home Guards under his command.

(3) Subject to the supervision and control of the Commandant General G
( and the Commandant, any Officer of the Home Guards authorized by
1 the Commandant in this behalf may exercise the powers conferred by
section 4 of the Commandant in such circumstances· as the
Commandant may specify."

H
444 SUPREME COURT REPORTS [2006] I S.C.R.
i
A Bare reading 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 (I). 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-
B 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
C power to appoint the Home Guards. Therefore, the State Government is the
superior authority in the matter of appointment.

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
D 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.
E
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 untouchability
F 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
G 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.
H
-f

STATEOFGUJARATv. AKSHAY AMRUTLAL THAKK'AR[PASAYAT,J.] 445

6, A Person who is a recipient of any of the medals given any by the A
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.vis others.
B
8. As the honorary post of District Commandant is equivalent to the
gazetted officer, Class-I, hence the appointment shall be made by the
y 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. C
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.

I0: After the appointment person concerned shall have to stay at D
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 E
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 to
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 F
orders of new appointments,

The guidelines 4 and 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 G
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
H
446 S'UPREM1; COURT REPORTS [2006] I S.C.R.
I
A communal institute and political party and nor shall he 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 asicle. The view expressed by
the Division Bench of the High Court in special Civil Application No. 3447
B of 1996 dated 23.1.1998 lateben Ramniklal Shah and Ors. v. State of Gujarat
and Ors.. taking the contrary view is the correct one.
.
As rightly contended by learned counsel for the appellant-State, the
order impugned in the writ petition was one of disengagement because the
c 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 if the opinion of the Comman~ant 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
D '·
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.

The appeals are allowed. There will be no order as to costs.

D.G. Appeals allowed.

t'