Jammu and Kashmir and Ladakh High Court: While deliberating over a bunch of petitions challenging the Village Defence Guard Scheme, 2022 (VDGS-2022) issued by the respondents, the Bench of Sanjeev Kumar*, J., set aside and the VDGS insofar as it has the effect of stripping the petitioners (heads of the Village Defence Groups) of their status as Special Police Officers (SPOs) and the power and privileges conferred on them by the Village Defence Group Scheme-1995 issued by the Government.
Background: The petitioners claim to have been working as SPOs and heading different Village Defence Groups constituted by the respondents vide Government Order 30-09-1995 (1995 Scheme). As per 1995 Scheme, it was clearly provided that each of the Village Defence Group would be headed by a retired officer of the Army/CPMF/State Police, and he would be issued and equipped with the higher category of weapon. The Scheme further provided that such head of the group would also be appointed and given the powers of SPO, and he would be entitled to be paid the honorarium of Rs. 1500/- per month.
While the petitioners were working as head of their VDC Groups and performing the functions of SPOs, pressure came to be applied on them to share their honorarium with other members of the Group. After a legal tussle surrounding the honorarium, where two cases were filed namely – Arjun Singh v. State of J&K, [OWP No.236/2005] and Kewal Kumar v. State of J&K, [WP(C) No.3262/2019]. The matter seemed to have been resolved at the time.
However, the respondents revisited the 1995 Scheme and promulgated a new Scheme on 14-08-2022. The Scheme inter alia splits the Village Defence Group into two categories. The persons who shall be heading/leading/ coordinating the Village Defence Groups in the more vulnerable areas are categorized as V-1 category and must be paid a monthly honorarium of Rs. 4500; whereas the other members of the VDG are put in V-II category and would be paid an honorarium at uniform rate of Rs. 4,000/- per month.
The petitioners claimed that the new scheme deprives them of their status as SPOs and reduces their wages/honorarium. They were also essentially aggrieved by the categorization made in VDG Scheme-2022, which has not only deprived the petitioners of their acquired status of SPOs but has also adversely affected their right to livelihood by bringing down their wages.
Per contra, the respondents argued that the VDGS-2022 has superseded the 1995 Scheme and the new scheme envisages a totally new set up of the Village Defence Groups. It was further argued that VDGS-2022 is a policy decision of the Government which cannot be looked into or interfered with by the Court in exercise of power of judicial review vested under Art 226 of the Constitution.
Court’s Assessment:
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Perusing the facts and arguments, the Court observed that Union Territory of Jammu and Kashmir, has been facing onslaught of militancy since the year 1989. It was pointed out that creation of Village Defence Group was the result of deep introspection and thinking by the Government of India, utilising their past experiences when with active participation of the local population living along with the borders of Jammu Division, cross border movement was effectively checked. Village Defence Groups were created to supplement the efforts of the Security agencies in protecting the life and liberty of the citizens from the violent attacks by the militants and nefarious activities of the anti-national elements.
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It was noted that VDGS-1995 identified the vulnerable villages of the identified Districts and a group of 15 armed civilians of each identified village constituted the Village Defence Group. The members of this group were to work on voluntary basis, and they were not entitled to any remuneration/honorarium.
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Upon thorough reading of the 1995 Scheme, the Court observed that the head of the Village Defence Group, under the Scheme, was to be appointed and given the powers of Special Police Officer (SPO); was to perform certain onerous duties and was conferred with powers which the other members of the Group were not. It was pointed out that apart from appointing the SPOs to head the VDGs in each of the identified village, the Government also made recruitment of thousands of SPOs to supplement the efforts of the police in maintaining law and order. These SPOs, who were primarily deployed in the Police Stations and to assist counter insurgency operations, were also receiving honorarium of Rs. 1500/- per month.
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The Court noted that 1995 Scheme treated the SPOs heading VDGs on a par with the SPOs working in the Police Stations and other special operation groups engaged in anti-insurgency operations. The Court further noted that scheme was only by way of a short-term measure to meet a particular situation of the time. However, the law and order situation and the circumstance which led to the framing of the scheme have not undergone such change as would require scrapping of the scheme altogether. There has been considerable change in the security scenario prevailing in the UT of J&K but the need for Village Defence Groups, which was felt in the year 1995, has not yet waned.
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The Court observed that owing to the afore-mentioned legal tussles vis-à-vis the honorarium, the matter was examined by the respondents in consultation with the Ministry of Home Affairs, Government of India. Upon such consultation, the respondents came up with Village Defence Group Scheme-2022.
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Upon reading of VDGS- 2022, the Court observed that is in supersession of the VDGS scheme of 1995 and is prospective in nature. VDGS-2022 has been cleverly framed to give the impression that the scheme does not envisage or confer any special powers upon the head of the Village Defence Group. VDGS- 2022 does not envisage any change or alteration in the policy of the Government. The policy of the Government continues to remain the same as was envisaged under the VDG Scheme of 1995.
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Upon detailed scrutiny of the VDGS-2022, the Court pointed out that the Scheme has twofold objects (i) To grant the benefit of remuneration to the other members of the VDG; (ii) To clip the wings of the petitioners, who, by being heads of the Village Defence Groups, have been enjoying the status of SPOs and powers and privileges attached with such office.
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Taking note of Para 4 of the VDGS- 2022, the Court pointed out that new Scheme instead of designating the heads of the Groups as SPOs and conferring on them powers under Section 19 of the Police Act, authorises the District Magistrate of the concerned District, who has been authorised to invoke necessary legal provisions to facilitate the discharge of the duties. “Undoubtedly, the necessary legal provisions, to which reference is made in Paragraph 4 (III) of the VDGS-2022, are the provisions of Section 18, 19 and 20 of the Police Act. The entire effort seems to have been made by the respondents to somehow denude the petitioners of their status as SPOs and bring down their remuneration from Rs. 18000/- to a fixed amount of Rs. 4500”.
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The Court stated that it is difficult to countenance the action of the respondents in bringing down the status of the petitioners only with an aim to denude them of their legitimate dues.
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The Court stated that the respondents may also be well within their right to alter the terms and conditions of appointment of the petitioners even if such alteration or modification of the terms and conditions adversely affects the petitioners. However, the respondents cannot be permitted in law to act arbitrarily and vary the terms and conditions of appointment of the petitioners to their detriment in the colourable exercise of their powers. The policy decisions of the Government are not to be readily interfered with unless such decisions are found to be mala fide, arbitrary and violative of Art. 14 of the Constitution. “The respondents, being a model employer, are expected to act in a fair, just and transparent manner when it deals with the rights and privileges of its citizens guaranteed by Constitution”.
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The Court also expressed that it was not convinced with the petitioner’s argument that under the VDGS-1995 the petitioners have a vested right either to continue as SPOs indefinitely or to have unaltered terms and conditions of their engagement.
Findings:
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With the afore-stated assessment, the Court found that VDGS- 2022 insofar as it denudes the petitioners of their status as SPOs and consequently reduces their remuneration/honorarium is not only an arbitrary and colourable exercise of power but is actuated by mala fide considerations.
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The Court further stated that the VDGS- 2022’s objective of providing some remuneration to each of the members of the Village Defence Group is well appreciable; however, the second object i.e., to denude the petitioners, who are heading these Village Defence Groups, of their status of SPO and deprive them of honorarium payable to their counterparts working in the Police Department is bad and violative of the constitutional principles.
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The Court however did not delve into the rival contentions of the parties as to whether the petitioners had a vested and accrued right to continue with their appointment as SPOs and power and privileges attached with such appointment.
Directions:
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The Court upon agreeing to issue the writ of mandamus, directed the respondents to treat the petitioners as SPOs having been so appointed under the Village Defence Group Scheme of 1995 with all powers and privileges in respect to payment of wages/honorarium.
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The right of the members of the Village Defence Group, who have been held entitled to a monthly honorarium of Rs. 4000/- under the Village Defence Group Scheme-2022, shall remain unaffected.
[Madan Lal v. UT of J&K, 2023 SCC OnLine J&K 203, decided on 06-04-2023]
*Judgment was authored by Justice Sanjeev Kumar
Advocates who appeared in this case :
Petitioners-
P.N.Raina, Sr. Advocate with J.A. Hamal, Advocate.;
Gagan Basotra, Sr. Advocate with Rishab Kumar Sharma, Advocate.;
M.A. Bhat, Advocate.;
Ravinder Sharma, Advocate.;
D.S. Saini, Advocate.;
Mohinder Kumar, Advocate.;
N.D. Qazi, Advocate;
Respondents-
Monika Kohli, Sr. AAG. Mr.;
Vishal Sharma, Deputy Solicitor General of India with Eishan Dadhichi, CGSC.