Bombay High Court
Maharashtra Suraksha Rakshak Aghadi ... vs State Of Maharashtra And Anr. on 5 April, 2002
Equivalent citations: 2002(4)BOMCR497, (2002)4BOMLR382, 2002(4)MHLJ758
Author: A.P. Shah
Bench: A.P. Shah, V.K. Tahilramani
JUDGMENT A.P. Shah, J.
1. These two writ petitions under Article 226 of the Constitution seek to challenge the Notification dated 15-9-2001 issued by the State of Maharashtra amending the Maharashtra Private Security Guards (Regulation of Employment and Welfare) Scheme, 1981, hereinafter referred to as the Scheme, framed under the Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act, 1981, hereinafter referred to as the Security Guards Act.
2. The petitioners are trade unions registered under the Trade Unions Act, 1926 and have as their members security guards employed in various establishments in Mumbai and Thane. The principal challenge to the impugned notification is on the ground that the notification is ultra vires the provisions of the Security Guards Act. In order to understand the challenge in the petitions, it is necessary to briefly refer to the objects and the various provisions of the Security Guards Act and the Scheme framed under Section 4(1) of the said Act.
3. The preamble of the Act shows that the Act was placed on the statute book for regulating the employment of private security guards employed in factories and establishments in the State of Maharashtra and for making better provisions for their terms and conditions of employment and welfare, through the establishment of a Board, and for matters concerned therewith. It appears that there were serious complaints about the service conditions of about 70,000 persons working as security guards in various factories and establishments in Greater Mumbai and Thane Industrial Complex, the majority of whom were employed through about 250 security agencies operating in those areas. The complaints related not merely to insufficient remuneration paid to them by the agencies, but also to insecurity of service and other forms of exploitation. There was a sample survey conducted by the Government of Maharashtra to ascertain the extent of exploitation and to secure information regarding the service conditions of the security guards. It was recommended by the committee which made the sample survey that it was necessary to prevent exploitation of the unprotected security guards and to provide them with better service conditions. Pursuant to the report of the committee, the Government issued the Maharashtra Private Security Guards (Regulation of Employment and Welfare) Ordinance, 1981. The Ordinance was replaced by the Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act, 1981. Pursuant to the powers conferred by Section 4 of the Act Government of Maharashtra, after consulting the Advisory Committee made Maharashtra Private Security Guards (Regulation of Employment and Welfare) Scheme, 1981. The Act was amended by the Legislature by Amendment Act 28 of 1996.
4. We shall now briefly refer to the relevant provisions of the Act and the Scheme. Sub-section (3) of Section 2 defines employer in relation to a security guard in the direct employment of an agency or agent and deployed in a factory or establishment through such agency or agent, to mean such agent or agency. Sub-section (8) defines principal employer, in relation to any class or classes of security guards deployed in a factory or establishment by the agency, agent or Boards, to mean the person who has ultimate control over the affairs of the factory or establishment and includes any other person to whom the affairs of such factory or establishment are controlled whether such person is called Authorised Representative, Manager, or by any other name prevailing in the factory or establishment. Sub-section (1) defines "Security guards" or "private security guard" to mean a person who is engaged through any agency or an agent or Board to do security work or watch and ward work in any factory or establishment but does not include the members of any principal employer's family or any person who is a direct employee of the principal employer.
5. Section 3 of the Act gives powers to the State Government to make a Scheme or Schemes for ensuring an adequate supply and full and proper utilization of the security guards in factories and establishments, and generally for making better provisions for the terms and conditions of employment of the security guards, to provide for the registration of principal employers as well as of the security guards and for making a provision for the welfare of such security guards. The Scheme to be made by the State Government under the said section is in particular to provide for matters, which are mentioned in Clauses (a) to (b) of Sub-section (2) of Section 3. Sub-section (3) of Section 3 of the Scheme further provides for punishment and penalties for contravening any of the provisions of the Scheme or Schemes to be made. Sub-section (4) of Section 3 describes procedure for making, varying or revoking the scheme. Section 6 provides for constitution of a Board for any security guards in any area and permits the establishment of one or more Boards for one or more classes of security guards or for one or more areas. Section 8 prescribes powers and duties of the Boards. Then Section 15 provides for constitution of advisory committee by the State Government to advise the Government upon such matters arising out of the administration of the Act or any Scheme made under it or relating to the application of provisions of the Act to any particular class of security guards or principal employers as the advisory committee may itself consider to be necessary or the State Government may refer to it for advice. Section 19 to 21 provide for application of Workmen's Compensation Act, 1923. Payment of Wages Act, 1936 and Maternity Benefit Act to the security guards. Section 23 provides for exemption from the operation of all or any of the provisions of the said Act or any Scheme made thereunder. These provisions are relevant for the purpose of this petition, they are as under :
"23. The State Government, may, after consulting the Advisory Committee, by notification in the Official Gazette, and subject to such conditions and for such period as may be specified in the notification, exempt from the operation of all or any of the provisions of this Act or any Scheme made thereunder all or any class or classes of security guards employed by the agency of agent as may be specified in the Notification and deployed in any factory or establishment or in any class or classes of factories or establishments, if in the opinion of the State Government, all such security guards or such class or classes of security guards are in the enjoyment of benefits, which are on the whole not less favourable to such security guards than the benefits provides by or under this Act or any scheme made thereunder.
Provided that the State Government may, by notification in the Official Gazette, at any time, for reasons to be specified, rescind the aforesaid notification".
6. Insofar as the Scheme as framed by the State Government under Section 4 of the Act is concerned, para 11 of the Scheme requires the Board to maintain (1) a register of employers and (2) a pool register which shall be a register of security guards. Para 14 requires every employer who has engaged private security guards on the appointed day or at any time thereafter to get himself registered with the Board by applying in the prescribed form. The employer of an establishment after the commencement of the Scheme is required to apply for registration simultaneously with the commencement of its business. Para 15 requires any security guard who was working on the appointed day or at any time thereafter in the employment in the area to which the Scheme applies to apply to the Board in the prescribed form. Para 25 provides that every registered security guard shall be deemed to have accepted the obligation of the Scheme. A registered security guard in the pool who is available for work is required not to engage himself for employment under any registered employer unless he is allotted to that employer by the Secretary of the Board. The registered security guard in the pool who is available for work is further required to carry out directions of the Board and to accept employment under any registered employer for which he is considered suitable by the Board. Para 26 provides that every registered employer shall accept the obligations of the Scheme. A registered employer is required not to employ a security guard other than a security guard who has been allotted to him by the Secretary. The registered employer is however, at liberty to employ security guards directly. Para 27 prohibits the employment by a registered employer of a security guard unless the security guard is a registered security guard or a directly employed security guard. Paras 29 and 30 pertains making of detailed provisions for wages, allowances and other conditions of service of security guards and distribution thereof. The rest of the provisions of the scheme are not material for the purpose of this petition. However, we may add that the term "employer" or a "registered employer" used in the scheme is with reference to the definition of employer under the unamended Act, which covered only principal employer and not agencies or agent.
7. The vires of the Act and the Scheme was challenged in various writ petitions filed in this court by the security guards agencies. They were dismissed by this court and a petition for special leave to appeal under Article 136 of the Constitution was dismissed by the Supreme Court on 5-1-1983. It seems that as many as 139 security guards agencies applied to the Government under Section 23 of the Act for grant of exemption from the provisions of the Act. On 28-6-1984 the Government of Maharashtra rejected all the applications for exemption filed by the various security agencies. Several security agencies thereupon filed writ petitions in the High Court which were dismissed by the learned single Judge. On appeals preferred by the security guards agencies the division bench directed the State Government to consider afresh the said applications for exemption. Objection raised on behalf of the Security Guard Board and the Government of Maharashtra that security agencies could not seek exemption under Section 23 of the Act was overruled. The division bench took a view that the applications had been rejected as a result of the policy decision not to grant exemption to any security agency and that this was wrong. The division bench held that each application for exemption had to be considered on its own merits and appeals were accordingly disposed of.
8. Against the decision of the division bench the Security Guards Board, and the unions of the security guards filed appeals before the Supreme Court and those appeals were allowed by the Supreme Court on 20-2-1986, S.C. Security Guards Board Bombay and Thane v. S. and P. Service Pvt. Ltd . The observations made by the Supreme Court are extremely material for deciding the controversy involved in this petition which are reproduced below:
"....The basic condition to be satisfied is that the State Government should be of the opinion that "all such security guards or such class or classes of security guards are in the enjoyment of benefits, which are on the whole not less favourable to such security guards than the benefits provided by or under this Act or any Scheme made thereunder". A close scrutiny of Section 23, particularly in the light of Section 1(4) read with the definition of Security Guard, makes it clear that the exemption is not in respect of an agency or an agent or even a factory or establishment but in respect of all or any class or classes of security guards employed in any factory or establishment or in any class or classes of factories or establishments. In other words, the exemption is in regard to Security Guards, employed in any factory or establishment or in any class or classes of factories or establishments. The exemption may be in respect of all the security guards employed in a factory or establishment or in a class or classes of factories or establishments or in respect of a class or classes of security guards so employed. For example, all security guards employed in factory may be exempted or security guard of a particular grade or doing a particular type of work in factory may be exempted. Again all security guards employed in a class of factories, say textile mills may be exempted. All security guards in all textile mills doing a particular type of work or drawing a particular scale of pay may be exempted. The co-relationship of the security guards or classes of security guards who may be exempted from the operation of the Act is to the factory or establishment or class or classes of factories or establishments in which they work and not with the agency or agent through and by whom they are employed. This analysis has however no bearing on the question of locus standi of the persons who may seek the intervention of the State Government by the issue of notifications for exemption. Obviously the security guards or classes of security guards employed in a factory or establishment may apply to the Government to exempt them from the operation of the Act. Similarly security guards or classes of security guards employed in classes of factories or establishments may apply to the Government to exempt them from the operation of the Act. Again a factory or an establishment or a class or classes of factories or establishments may apply to the Government to exempt security guards employed in their factories or establishments from the operation of the Act. Though agencies or agents do not enter the picture directly, since the very definition of security guards means persons engaged or to be engaged through an agency or agent, it must follow that where security guards have been engaged or are to be engaged through them in any factory or establishment or a class of factories or establishments, such agency or agent may also apply to the Government, not to exempt all security guards engaged or to be engaged through them but to exempt security guards engage or to be engaged in a factory or establishment or a class of factory or establishments. The question is not one of locus standi at all but which or what class of security guards are to be exempted from the operation of the Act and the Scheme. Therefore, we are of the view that even an agency or agent may apply to the Government to grant exemption, but the exemption to be granted by the Government is not to be of any agency or agent but only of security guards employed in a factory or establishment or a class or classes of factory or establishments".
9. On 28-8-1990 the State Government issued a notification thereby granting exemption to 29 security guard agencies under Section 23 of the Act. This Notification came to be challenged in a Writ Petition No 4165 of 1990 filed by the Unions of security guards. The Division Bench following the decision of the Supreme Court in the case of The Security Guards Board for Gr. Bombay and Thane v. Security and Personnel Service Pvt. Ltd. (supra) quashed the said notification vide its order dated 23-11-1990 on the ground that the exemption is virtually in favour of security guard agencies or agents which is not permitted by the provisions of Section 23 of the said Act. The division bench observed :
"Now, if we look to the Notification impugned in this petition, it is clear that the State Government has exempted the classes of security guards mentioned in column 2 of the schedule appended to the notification supplied by private security guard agencies mentioned in column 3 thereof on the establishment of principal employer in the areas of Municipal Corporation of Greater Bombay and Thane District registered or to be got registered within the time stipulated in condition No. II therein. Thus, it is clear that the impugned notification grants exemption from the operation of the Act to the security guards mentioned in column 2 only and only if they are in the employment of the private security agencies mentioned in column 3 of the Schedule. In other words, the class of security guards exempted from the operation of the Act under the notification is a class of security guards who are in the employment of the security agencies or who may in future join the employment of the security agencies mentioned in column 3. If any security guard leaves the employment of any of the agency mentioned in column 3 he ceases to be exempted. On the other hand, if any security guard joins the employment of the agency he is covered by the exemption. The notification has no reference at all to any establishment or factory in which ultimately the security guards employed through the private agencies will be working. Read in any manner, the notification leaves no doubt that it is clearly in favour and in respect of private security agencies mentioned in column 3 of the Schedule appended to the notification".
10. Against the said decision the matter was carried to the Supreme Court in Civil Appeal Nos. 2033, 2034 and 2035 of 1992. By order dated 11-3-1996 the Supreme Court disposed of the appeals as the parties agreed that by efflux of time the matters have become academic particularly on account of the promulgation of the Maharashtra Private Security Guards (Regulation of Employment and Welfare) (Amendment) Ordinance 1996. The learned counsel for the State of Maharashtra made a statement that the applications at the instance of the principal employers and the agencies for exemption from the purview of the Act as amended by the Ordinance, are pending consideration of an advisory committee appointed by the State Government for advice and for final decision by the State Government. On that basis, the parties agreed that neither the principal employers nor the agencies will be prosecuted for offences committed under the Act for the period till the date of order and for a subsequent period of two months.
11. The State Government thereafter issued Notifications dated 22-1-1997 and 1-3-1999 thereby granting exemption from the operation of the Act to 29 agencies and 78 agencies respectively. The constitutional validity of the Amendment Act 28 of 1996 as also Notifications dated 22-1-1997 and 1-3-1999 was challenged by the Union in Writ Petition Nos. 5231 of 1999, 5223 of 1999, 5046 of 2000 in this court inter alia on the ground that the said amendments have been brought about with a view to undo the judgment of the Supreme Court in S. C. Security Guards Board Bombay and Thane v. S and P Services Pvt. Ltd. It was contended that the Amendment Act was mala fide and that the effect of the said amendment is so drastic that it would totally change the texture of the Act. It was contended that even assuming that the Amendment Act is valid and intra vires, the manner in which exemptions have been granted in favour of the agencies by the State Government in purported exercise of Section 23 of the Act is illegal and improper. It was contended that although some of the provisions of the Act of 1981 have been amended but the corresponding amendments have not been made to the relevant provisions of the Scheme and consequently the Act has become unworkable. Those writ petitions and certain other petitions filed by the security guard agencies were heard by the division bench, to which one of us (Shah J) was a party. At the hearing of the petition the learned Advocate General made a categorical statement before the division bench that the Amendment Act of 1996 is wholly clarificatory in nature and has been brought only to remove the anomalies in the Act and to bring the Act in line with the decision of the Supreme Court in S. C. Security Guards Bombay and Thane v. S and P Service Pvt. Ltd. The learned Advocate General also conceded that the manner in which exemptions have been granted by the Government to 73 agencies cannot be sustained in the light of the purport of Section 23 of the Act and assured the court that the State Government shall take adequate precaution while considering the applications for exemption of the agencies in future which would be strictly in conformity with the requirement of Section 23 of the Act. With regard to the question whether the Act has become unworkable, as the corresponding amendments have not been carried out to the scheme the division bench in its order dated 17-11-2000 made following observations :
"The next question therefore that would deserve examination is whether the scheme of Act of 1981 has become unworkable, as corresponding amendments have not been carried out to the said scheme. The learned Advocate General fairly points out that the State Government is actively considering to revise the scheme which is in vogue, by carrying out necessary amendments, very shortly. In view of the said statement it is unnecessary to examine the question raised on behalf of the security guards and instead we prefer to leave this matter entirely open so that the State Government can formulate a comprehensive scheme and once such a scheme is framed it would be open to the security guards to challenge the scheme if the same is not in accordance with law. We would, therefore, as an interim measure, direct the State Government to frame the necessary scheme and submit the same before this court within a period of two months from today. Needless to observe that the State Government shall take into consideration suggestions and objections from all concerned before formulating the proposed comprehensive scheme.
Since the State Government is in the process of finalising the scheme we would impress upon the State Government to consider whether the principal employer and the agencies in respect of the exempted security guards should be directed to additionally register under the provisions of Contract Labour (Regulation and Abolition) Act 1970. If such a condition is imposed in the scheme that would go a long way to allay the apprehension entertained by the security guards. We are inclined to make these observations having regard to the wide purport of Sub-section (4) of Section 1 of the said Act of 1970. As per the said provisions the Act of 1970 the said Act would apply to - every establishment in which 20 or more workmen are employed or were employed on any day of the preceding 12 months as contract labour; to every contractor who employs or who employed on any day of the preceding 12 months 20 or more workmen.
Under the Act of 1981, as amended, even though the security guards engaged by the agency can be exempted under Section 23 of the Act of 1981, still by requiring the said agency to register itself under the Act of 1970 provided the agency fulfils the requirements of Sub-section (4) of that Act, it would only enhance the object of regulating the employment and service conditions of private security guards employed in factories and establishments in the State of Maharashtra and for making better provisions for the terms and conditions of enjoyment".
The division bench further observed as under:
''Having regard to the various methods of exploitation of the security guards employed by the private agencies it would be appropriate that while granting exemption the State Government shall take an undertaking from the concerned agency that it will register its name with the security board. We are of the view that Section 23 of the Act clearly postulate the State Government while granting exemption can confine the exemption from the operation of all or any of the provisions of the Act and or scheme made thereunder. In other words, while granting exemption the State Government can surely insist upon the principal employer as well as the agency to register itself under the scheme framed under Section 5 of the Act. What we mean is that when the agency makes an application to the State Government, purported to be under Section 23 of the Act, the said application should be accompanied also by the consent of the principal employer to which the security guards would be assigned by the agency. "
12. We shall now proceed to examine the provisions of the Amendment Scheme which is impugned in the present petitions. The Amendment Scheme defines "employer agency" as under:
"Employer agency" means an employer agency within the meaning of the term employer as defined in Section 2(3) of the Act, which directly employs security guards and supplies them to principal employer for deploying in his factory or establishment".
Clause 14(2) provides as under :
"Registration of employer agency - Every employer agency which has directly employed private security guards shall get itself registered with the Board by applying in the form prescribed by the Board within 15 days from the date of coming into force of the Private Security Guards (Regulation of Employment and Welfare) (Amendment) Scheme 2001".
Clause 27(1) provides as under :
"Every registered principal employer may either engage for employment security guards registered with the Board or the security guards of the registered employer agency registered with the Board or may employ any person who is a direct employee of such employer".
The Amendment Scheme makes various other provisions incidental to the provisions of registration of employer agencies and for deployment of security guards by the employer agencies to the principal employers.
13. We have heard Mr. Singhvi and Mr. Pakale appearing for the petitioners and learned Advocate General appearing for State and Ms Desai appearing for the Security Guard Board.
14. Having heard the submissions of the learned counsel appearing for parties, in our opinion, it is impossible to sustain the impugned notification dated 15-9-2001. The provisions or the Act and Scheme show that the Act and the Scheme are together intended to regulate the employment of security guards employed in factories and establishments through the middlemen such as the agents and agencies and to make better provisions for their terms and conditions of employment and to provide for their welfare. For this purpose, such security guards are pooled together and a Board is constituted for classifying them into different categories, for assigning them to different employers, for prescribing the rates of their wages, allowances and other service conditions, for making the other benefits and amenities available to them, for ensuring that the wages and other service conditions are promptly secured to them, for recovering the costs of operating the Scheme and for defraying the expenses of the Scheme and for taking action against the security guards and employers in case of non compliance with the provisions of the Act and the Scheme. For this purpose, all security guards who are not the direct employees of any employer, are required to register themselves with the Board and they are prohibited from taking employment with any employer other than as direct recruits. The security guards are further forbidden from refusing the assignment offered to them. Likewise, all employers who want to engage security guards otherwise than as their direct employees are required to register themselves with the Board and they are prohibited from engaging any security guard otherwise than as their direct employee. It is further enjoined upon the employers to take security guards (other than those engaged as direct employees) only from the pool of security guards registered with the Board. The registered employers are further required to pay such rates of wages and allowances and to give to the security guards such other service conditions as are decided upon and directed by the Board. The payment is made either by the Board after recovering the amount from the employers or is made directly by the employer as per the directions of the Board. The disciplinary action against the security guard including the dismissal and the termination of his employment is not left to employer, but is made the direct responsibility of the Board. The order passed by the Board in such matters is made appealable by providing that an appeal against such order will He to the State Government. Thus the legislation is intended to eliminate the contract labour system in the field of the watch and ward and the security work. It also aims at stopping exploitation of security guards by the middlemen and ensuring them regular employment and better service conditions.
15. Section 23 undoubtedly provides for exemption from the operation of all or any of the provisions of the Act or any Scheme made thereunder. However, such exemption has to be in favour of "all or any class or classes of security guards employed in any factory or establishment in any class or classes of factories or establishments". As held by the Supreme Court the basic condition to be satisfied is that the State Government should be of the option that "all such security guards or such class or classes of security guards are in the enjoyment of benefits, which are on the whole not less favourable to such security guards, than the benefits provided by or under the Act or any Scheme made thereunder". The provisions of Section 23 make it clear that exemption is not in respect of agency or agent but is in respect of security guards or class or classes of security guards or any class or classes of factories or establishments. The co-relationship of the security guards or classes of security guards who may be exempted from the operation of the Act is to the factory or establishment or class or classes of factories or establishment in which they work and not with the agency or agent through and by whom they are employed. The effect of the Amendment Scheme is that any employer, security agency or agent can undertake security work by engaging security guards even when the said security guards are not exempt from the provisions of the Act or the Scheme. There is no provision in the Amendment Scheme to ensure that the security guards are in the enjoyment of benefits, which are not less favourable to such security guards than the benefits provided under the Act and the Scheme. By providing for registration of security guards agencies and by permitting such agencies to engage the security guards even when the said security guards are not exempt from the provisions of the Act and without ensuring any protection to the conditions of service of the security guards the Amendment Scheme makes the entire Act nugatory. It may be recalled that the division bench had directed to make provision for registration of only those agencies or agents which are granted exemption in respect of any security guards or class or classes of security guards or class or classes of factories or establishments. It was felt that registration would be necessary as it would enhance the object of regulating employers and service conditions of private security guards employed in the factories or establishments and to obviate possibility of exploitation of security guards employed by private agencies. However, the Amendment Scheme provides for registration of the employer agencies irrespective of whether any exemption is granted under Section 23 of the Act. The Amendment Scheme thus defeats the very purpose of the Act which is to protect the security guards from exploitation and other mal-practices by the middlemen. We are constrained to observe that the said Scheme seems to has been introduced to favour the security guard agencies by disregarding the welfare of the security guards. The learned Advocate General fairly conceded that the provisions made in the Amendment Scheme for registration of the employer agencies, without obtaining exemption under Section 23 of the Act tends to defeat the object of the Act. He stated that the State Government will reconsider the matter and issue a fresh notification consistent with the law laid down by the Supreme Court in S.C. Security Guards Board Bombay and Thane v. S and P Service Pvt. Ltd.
16. Before parting with the matter we may also indicate that two other provisions of the Amendment Scheme were challenged before us. First the proposed amendment to Clause 16 by including following Sub-clause (2):
"A registered security guard of the Board who is deployed with the registered principal employer of the Board may be transferred at regular intervals of three years and 1/3rd of the registered security guards of the Board deployed with the registered principal employer shall be transferred every year."
The second provision is contained in Amendment Scheme - Para 12 whereby the following explanation is added in Clause 14 :
"Explanation. -- For the purpose of this sub-clause, registration of a principal employer means registration of a specific establishment of the principal employer with respect to a specific area, specified in the registration form, and shall not include any other branches or ancillary establishments of the principal employer unless, they are specifically mentioned by the principal employer at the time of registration with the Board"
17. Insofar as the provision relating to the rotation of the security guards every 3 years Mr. Singhvi strenuously contended that such provision would be contrary to the decision of this Court in Krantikari Surakshaseva Rakshak Sanghatana Thane v. Security Guards Board for Gr. Bombay and Thane and Ors., 1997 II CLR 81. In that case following the earlier decision of the learned single Judge, the division bench rejected the argument that under the scheme once a security guard is allotted by the Board to a registered employer, the security guard becomes permanent allottee and the Board has no power to withdraw the allotment or give fresh allotment with another or any other security guard and held that there is nothing in the Act indicating that the allotment once made is irrevocable or cannot be changed. Thus the power of the Board to transfer a security guard from one establishment to other is clearly recognized in the case of Krantikari Surakseva Rakshak Sanghatana Thane (supra) as also in another decision of the division bench in Writ Petition No. 5321 of 2000 decided on 17-11-2000. In the case of Krantikari Surakshseva Rakshak Sanghatana Thane the division bench further held that if the Board intends to withdraw a security guard on complaint indicating indiscipline or misconduct such withdrawal should be only in consonance with the procedure as laid down in Clause 31 of the Scheme. The division bench observed that an opportunity of hearing should be given to the concerned security guard before transferring him on the ground of misconduct. It is nowhere laid down by the division bench that the security guards cannot be rotated after a fixed period of time. Ms. Desai, learned counsel appearing for the Board submitted, and in our opinion rightly, that the continuation of a security guard in the same establishment sometimes creates vested interest and, therefore, it is necessary to rotate the security guards periodically. She stated that the Board will lay down appropriate guidelines for the purpose of implementing the policy of transfer of security guards. Insofar as the provision contained in the Amendment Scheme whereby the explanation is inserted in Clause 14 the learned Advocate General agreed with the objection raised by the learned advocate for the petitioners and stated that the said provision would be deleted while issuing the fresh notification.
18. In the result, the Notification dated 15-9-2001 is quashed and set aside. The State Government is directed to issue a fresh notification in the light of the observations made in this judgment within a period of 12 weeks. Applications for exemption received by the State Government shall be processed strictly in accordance with the law laid down by the Supreme Court in S. C. Security Guards Board Bombay and Thane v. S and P Service Pvt. Ltd. It is further directed that the security guards agencies which were already registered under the Amendment Scheme will not be entitled to claim any benefit on the basis of such registration. It is needless to say that deployment of the security guards made pursuant to such registrations shall be treated as cancelled and shall be without any effect.
Certified copy expedited.