Delhi High Court
Man Sukh Lal Rawal & Others vs Union Of India & Others on 26 May, 1999
Equivalent citations: 1999IVAD(DELHI)469, 1999(50)DRJ474
Author: Madan B. Lokur
Bench: Madan B. Lokur
ORDER Madan B. Lokur, J.
1. This writ petition under Article 226 of the Constitution challenges the order dated 21st March, 1997 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as the Tribunal). By the impugned order, the Tribunal decided seven petitions being O.A.Nos.2423/95, 2549/96, 1271/95, 146/96, 1963/96, 1018/95 and 1578/95. Before the Tribunal, there were 77 applicants but before us there are only 25 Petitioners.
2. The case made out by the Petitioners is that they were (and in some cases, they are) working as members of the Home Guards. It is stated that they were appointed on various dates from 1978 onwards and all of a sudden, they have been told that their services are no longer required. No reasons have been given for terminating their services nor has any written order been given to this effect.
3. At the outset, it is first necessary to understand who, or what are "Home Guards". The Government of India, Ministry of Home Affairs has printed a booklet called "Home Guards - Compendium of Instructions, 1993". A perusal of Para 1.1 thereof shows that the Home Guards is a voluntary citizens organization raised for local defense in the United Kingdom during World War-II. The Home Guards was raised in India in December, 1946 in Bombay to assist the police in controlling civil disturbances and communal riots. This concept of a voluntary citizens force which was to be auxiliary to the police force was extended to purposes as diverse as maintenance of law and order, for meeting emergencies like floods, fires, famines, etc. It appears that the Home Guards is spread all over India and it continues to maintain its voluntary concept and character. The role of the Home Guards is now revised and the services of a member of the Home Guards can now be utilised in a variety of other ways.
4. Any person meeting the eligibility requirements can be a member of the Home Guards. Central Government Servants are permitted to join the Home Guards organization (para 1.15 on page 9 of the booklet) and the period spent by them on training/duty would be treated as special casual leave. If an unemployed person undergoes training and volunteers his services to the Home Guards for three years, he is given weightage for employment in Government service in Group 'C' and 'D' posts (para 1.23 on page 14 of the booklet). A member of the Home Guards offers to receive training during peace time and places his services "at the disposal of the nation during the country's hour of need in peace or war time. A nucleus of paid staff for command and control is, however, authorised at various levels (para 2.1 on page 16 of the booklet).
5. Bombay Home Guards Act, 1947 (hereinafter referred as the Act) was extended to Delhi and some of its salient features affirms the above position, namely, that the Home Guards is a voluntary organization or a voluntary body of persons who are fit and willing to serve (Section 3) for the protection of persons and security of property and the public safety (Section 2). A member of the Home Guards is given training and is required to discharge any of the functions and duties assigned to him (Section 4) and is liable for punishment for neglecting or refusing to obey orders or discharging his functions and duties as a member of the Home Guards (Section 6-B and Section 7).
6. The Delhi Home Guards Rules, 1959 (hereinafter referred to as the Rules) were notified through a notification dated 20th July, 1959 and a perusal thereof shows that a person may be appointed as a member of the Home Guards only if he has attained the age of twenty years but has not completed the age of sixty years and has passed at least the fourth primary examination and is otherwise physically fit (Rule 3). The term of office of a member of the Home Guards is three years but this period may be curtailed by giving one month's notice or if the member is found to be medically unfit (Rule 8).
7. The said Compendium of Instructions mentions in Para 1.10 (page 7 of the booklet) that after completion of his tenure, a member of the Home Guards is eligible for re-enrolment but since some States retain these members over a long period, there has been an erosion in the voluntary character of the organization and it is suggested that unemployed persons should not be retained as Home Guards over a long period so as to preserve the voluntary character of the organization.
8. In Para 7.1 (e) (page 51 of the booklet) it is stated as follows:
"When Home Guards are called-up for duty and have to be paid, the cost will be borne by the agency at whose instance the Home Guards are called up. The expenditure is not shareable by the Centre unless they are called up at the instance of the Centre."
9. In other words, it is not the Home Guards "organisation" which pays a member of the Home Guards but the user agency which pays the emoluments/honoraria that is given to each member of the Home Guards. Consequently, when a member of the Home Guards perform duties as a Traffic Policeman (for example) on behalf of the Delhi Police (a very normal occurrence which can be observed by almost everybody in Delhi) it is the Delhi Police which has to bear the financial burden of using his services.
10. The upshot of the above discussion is that it is quite clear that the Home Guards is a volunteer organization and the intention is that its members should serve a tenure of three years, which may be curtailed or extended. In practise, however, it appears that a member of the Home Guards continues as such for a considerable period of time and while this is discouraged, it appears (at least from the contents of the writ petition) that this practise is followed more in the breach than in its observance. A member of the Home Guards, even though he is a volunteer, is paid some emoluments/honoraria by the user agency for the services rendered by him for the benefit of to the user agency.
11. The writ petition was taken up for final disposal on 20th May, 199 when learned counsel for the parties were heard and judgment reserved.
12. The two questions that have been raised by the Petitioners before us are whether they are entitled to be regularised as members of the Home Guards, and whether their services can be terminated without following the procedure laid down by Rule 8 of the Rules.
13. In so far as the first question is concerned, the genesis, history and concept of the Home Guards clearly shows that it is not an "employment" or a "source of employment". It is a volunteer body where citizens voluntarily offer their services for the benefit of society. There are no hard and fast rules for recruitment or the nature of duties and functions that are to be performed by a member of the Home Guards. It is also not as if a member of the Home Guards cannot have employment elsewhere. A member of the Home Guards can be a professional or a government servant or a person carrying on any trade or occupation, industrial worker, university student, etc.; it can be anyone who can give some spare time for the benefit of the community. In fact, of the applicants who were before the Tribunal, admittedly some of them were employed in the government and some in the private sector. This being the position, there cannot be any question of regularising any person as a volunteer or for carrying on any voluntary activity. A contrary view will destroy the very ethos and character of the Home Guards.
14. The question of regularisation of a member of the Home Guards had come up before the Supreme Court in Special Leave Petition (Civil) o.12465/1990, decided on 30th July, 1991 in the case of Rameshwar Dass Sharma & Others versus State of Punjab & Others. In that case, the Supreme Court considered the question whether demobilised army personnel can be regularised in the Home Guards. On the basis of the counter affidavit that was filed in that case, the Supreme Court came to the conclusion that the Petitioners therein are not entitled to any relief of egularisation. Learned counsel for the Petitioners contended that the case before the Supreme Court was totally different from the present case inasmuch as the Supreme Court was considering the case of regularisation of demobilised army personnel while the Petitioners before this Court are unemployed civilians. We do not think that such a distinction is real or material. The fact remains that the issue which was before the Supreme Court was about regularisation of a member of the Home Guards and the Supreme Court was of the view that a member of the Home Guards is not entitled to regularisation.
15. In this view of the matter, we have no doubt in our minds that the Petitioners are not entitled to be regularised as members of the Home Guards. In fact, such a concept does not exist except in the case of personnel involved in training, command or control.
16. The second question raised by the Petitioners is with regard to their abrupt termination. According to the Petitioners, their services can be terminated only in accordance with the provisions of Rule 8 of the Rules, that is, by giving them one month's notice or they can be discharged in the event of their being found medically unfit. In the present case, there is no allegation that any of the Petitioners is medically unfit. The question is whether they are entitled to one month's notice before their services are terminated.
Rule 8 of the Rules reads as follows:
"8. Term of Office - The term of office of a member of the Home Guards shall be three years.
Provided that the appointment of any such member may, at any time, be terminated by the Commandant General or the Commandant, as the case may be, before the expiry of the term of office -
(a) by giving one month's notice, or
(b) without such notice, if such member is found to be medically unfit to continue as a member of Home Guards."
17. We find from a perusal of the record that what Respondents No.2 and 3 are seeking to do is to terminate the membership of the Petitioners on their completing the present tenure of three years. In other words, Respondents No.2 and 3 are not inclined to re-enrol the Petitioners after they have completed their existing tenure of three years (even though it may be thefifth or sixth such tenure). It is not as if the said Respondents are curtailing the tenure of three years. If the said Respondents were curtailing the tenure of the Petitioners then, of course, it would have to be done in accordance with Rule 8 of the Rules, but that is not the position in the case before us. The so-called termination in the case before us is one by efflux of time. There is no reason why Rule 8 should (or can) be invoked when the "termination" of the services of the Petitioners is as a result of the efflux of time. Therefore, on this question also, we are of the view that the Petitioners have not made out any case in their support.
18. What does, however, disturb us a little bit is the fact that many of the Petitioners have been rendering services as Home Guards for several years, in some cases for almost about twenty years. It does appear a little unfair to them to be suddenly told that when their existing tenure comes to an end, they will not be re-enroled. In such a situation, it will be extremely difficult for them to look for a job in the open market.
19. The saving grace, however, is that the Government does give weightage to a member of the Home Guards for appointment to a Group 'C' or a Group 'D' post with the Government. Moreover, Para 1.23 on page 15 of the booklet says that Respondent No.1 has requested State Governments "to provide assistance to unemployed Home Guards in seeking gainful employment on the completion of their term of employment". We hope the Respondents are aware of both these responsibilities. We have also been informed by learned counsel for Respondents No. 2 and 3 that in view of the directions given by the Tribunal, some policy is being framed to ensure that there is no pick and choose with regard to the persons who have to be enroled or re-enroled and those whose tenures are not to be extended. Given the fact that many of the duties performed by the members of the Home Guards are of a permanent nature and the fact that there is such severe unemployment in the country, we do expect the Respondents to be alive to this situation and to frame a transparent and workable policy in this regard. We hope that the Respondents will frame the policy within a period of six months.
20. In view of the above, the writ petition is dismissed. There will, however, be no orders as to costs.