Rajasthan High Court - Jodhpur
Loon Singh & Ors vs State Of Raj. & Ors on 10 April, 2018
Author: Chief Justice
Bench: Chief Justice
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
(1) D.B. Special Appeal (Writ) No. 801 / 2009
Loon Singh & Ors.
----Appellants
Versus
State of Rajasthan & Ors.
----Respondents
Connected With
(2) D.B. Special Appeal (Writ) No. 769 / 2009
Prem Singh & Ors.
----Appellants
Versus
State Of Raj. & Ors.
----Respondents
(3) D.B. Special Appeal (Writ) No. 770 / 2009
Jethmal Singh & Ors.
----Appellants
Versus
State Of Raj. & Ors.
----Respondents
(4) D.B. Special Appeal (Writ) No. 771 / 2009
Kalu Ram & Ors.
----Appellants
Versus
State Of Raj. & Ors.
----Respondents
For Appellant(s) : Mr.M.S.Singhvi, Sr.Advocate
Mr.Manish Shishodia, Mr.Hemant Dutt,
Mr.Anirudh Khatri
For Respondent(s) : Mr.Rajesh Panwar, A.A.G. assisted by
Mr.Ayush Gehlot, Mr.Utkarsh Singh
Mr.Falgun Buch on behalf of
Mr.Sangeet Purohit, A.S.G.
_____________________________________________________
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HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAMCHANDRA SINGH JHALA
Judgment
Reserved on 06.04.2018
Pronounced on 10.04.2018
Per Hon'ble the Chief Justice
1. The factual backdrop leading to filing of the present petition
is that the Home Guards organization was raised in India in the
erstwhile State of Bombay in the year 1946 for the purpose of
assisting the police in controlling civil disturbances and communal
riots. With the passage of time the service of the Home Guards
was utilized throughout India for purposes as diverse as
maintenance of law and order and providing help in natural
calamities like floods, fires, famines etc.
2. On November 29 and 30, 1966 a meeting was held in the
office of Director General, Civil Defence Ministry of Affairs to
discuss the organization of the Border Wing of the Home Guards in
Punjab and Rajasthan. The salient features of minutes of said
meeting are being noted herein under: -
"1. The DGCD welcomed the Commandants General Home
Guards of the Punjab and Rajasthan and stated that the
August-September 65 operations had brought out following in
regard to Home Guards: -
a) Rural Home Guards in close proximity to the Border
had understandably become involved in the protection
of their villages, families and properties and where
warranted, in their evacuation, and had, as such, not
responded to the call up notice. The response from
rural Home Guards living somewhat back had on the
other hand been very encouraging.
b) There was a need for a better organised, disciplined
and trained Home Guards set up in the border areas
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which could be mobilised quickly for use within its own
border district or even elsewhere when warranted. For
this purpose it should be somewhat removed from the
immediate vicinity of the border.
c) There had been a demand from the BSF organization
for assistance, which though most necessary, could not
be adequately provided from the existing Home Guards
organization.
2. As a result of considerable discussion it was agreed that
bearing in mind the need for utmost economy there was
necessity to form a Border Wing of the Home Guards in the
Punjab and Rajasthan with the following additional roles over
and above those already laid down for the urban and rural
Home Guards: -
a) In normal times and during periods of tension on the
border to assist in providing local security to border
villages and thereby boost the morale of the inhabitants
to stick on to their land and to pose as a deterrent
against pilferage from across the border.
b) To protect the lines of communication in times of
emergency and to assist the local administration in
tackling problems of internal security in the borders
areas; and
c) When required, to provide sub units as auxiliaries to the
BSF in defence of the border including patrolling along
the border and in fighting infiltrators.
3. It was agreed that there was a need for one Battalion
of the Border Wing of the Home Guard for each of the three
border districts in the Punjab and the four border districts of
Rajasthan. In view of the problem of involvement of people
living in close proximity to the border in the protection of
their villages and possessions and therefore their likely non
availability of Home Guards call up, it was further agreed
that: -
b) Along the Rajasthan border the population being more
spare and in some cases not entirely reliable, this belt
should be adjusted as under: -
i) Ganganagar District .... 5 to 25 miles.
ii) Bikaner District .... 20 to 45 miles.
iii) Jaisalmer District .... 25 to 50 "
iv) Barmer District .... 25 to 50 miles.
4. After detailed discussions the following were agreed to
in regard to the organisation of these battalions: -
a) The basic section would consist of 1 Corporal, 1 Lance
Corporal and 10 Home Guards. These would be recruited
as far as possible from one village. In respect of
Rajasthan each section should also have 3 camels. All
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sections including camels would function on a part time
basis. This implies that the sections would be mobilised
only for training, during emergencies to meet special
requirements.
b) The platoon should be capable of working on a detached
basis for limited periods, but only with administrative
support from the Coy. HQ. for this purpose Pl. HQ would
consist of Pl Commander, who would be full time to
ensure effective control and training of his command. 1
Pl Sgt. and 1 Pl runner, the latter two being on a part
time basis...
e) All personnel of the Bn. are to be in uniform and trained
as Home Guardsmen, except the non-combatants. The
staff at Bn. HQ. and Coy HQ plus the Pl. Commander are
to be fulltime and paid as such. The reminder are to be on
a part time basis, receiving honoraria at the following
rates per month: -
Guardsmen Rs.5.00
Lance Corporal 7.00
Corporal 10.00
Pl. Havildar 15.00
5. Training:
a) Border Wing Bns. need to be given better training than
the prescribed plus the additional under consideration for
the rural Home Guards. The following minimum training is
thus recommended for the present, it being further
reviewed as a result of experience gained: -
i) Basic 45 working days (No change)
ii) Advanced 45 working days for 1/3rd of strength
per
year
iii) Annual to 22 working days authorized under
Refreshment consideration for the Rural Home
Guards
Both Commandants General were of the opinion that
the proposed organisation of the Border Wing Bns. Would
provide a well organised, trained and to mobilise for in the
border districts capable of fulfilling the assigned roles. They
however, felt that with the increase in the scope of such
Home Guards Bns and their greater cost, the Centre should
accept 75% of the liability of the initial cost and the annual
recurring expenditure. It was agreed that this would be
further examined in the Ministry.
These minutes have been approved by the Chairman."
(Emphasis Supplied)"
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3. Vide letter September 04, 1967 the Ministry of Home Affairs
forwarded the afore-noted Minutes of Meeting to the Home
Ministry of Govts. of Punjab and Rajasthan.
4. Vide letter dated March 26, 1968 Governor, State of
Rajasthan conveyed his sanction for raising four Battalions of
Home Guards in the Border Districts of Rajasthan viz. Barmer,
Bikaner, Jaisalmer and Ganganagar, the relevant portion whereof
reads as under: -
"I am directed to convey sanction of the Governor for raising
4 Battalions in the Border Districts of Rajasthan viz. Barmer,
Bikaner, Jaisalmer and Ganganagar and erection of Posts for
each Battalions as per Appendix 'A' attached to this Letter in
the Rajasthan pay scales noted against each.
2. The strength of a Battalion will consist of whole time
paid staff as well as part-time staff as follows: -
(a) The basic section would consist of 1 Corporal, 1
Lance Corporal and 10 Home Guards. Each section should
also have 3 camels. All section including camels would
function on a part-time basis.
(b) The platoon should be capable of working on a
detached basis for limited periods, but only with
administrative support from the Coy. Headquarter."
(Emphasis Supplied)
5. In the year 1985 Ministry of Home Affairs, Govt. of India
issued a Compendium of Instructions on Home Guards. Chapter X
of said Compendium dealt with Border Wing Home Guards, the
relevant portion whereof reads as under: -
"CHAPTER X
BORDER WING HOME GUARDS
10.1 ROLE
Border Wing Home Guards have been authorised to be
raised in the States of Punjab, Rajasthan, Gujarat, Assam,
Meghalaya, Tripura and West Bengal to perform the following
roles in addition to their normal roles:-
(a) In normal times and during periods of tension on the
border, to assist in providing local security to border
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villages and thereby boost the morale of inhabitants to
stick to their lands and to pose as a deterrent against
pilferage from across the border.
(b) To assist the local administration in protecting the lines
of communications including Vas and VPs in times of
emergency and in tackling problems of internal security
in the border areas.
(c) When required, commensurate with their capabilities, to
provide assistance to the security forces including
protection to their Vas/VPs patrolling along the border
and in checking and preventing infiltration.
10.2 ORGANISATION
Each organisation of Border Wing Home Guard consists of 4
to 8 companies together with nucleus of full-time paid staff at
various levels. There are 4 platoons in a company in Punjab
battalion as against 3 in the remaining 6 States. There are 4
Sections in a platoon in Punjab as against 3 in platoon in
other States. The strength of Border Wring Home Guards
sanctioned for each State and composition of each battalion
and strength of full-time personnel per battalion is appended
below: -
(a) SANCTIONED STRENGTH
State No. of No. of No. of No. of Strength of
Bns. Coys. Platoons Sections Combatant
per Battalion
Rajasthan 4 24 72 216 751
(b) STRENGTH OF FULL TIME STAFF PER BATTALION
State Platoon Combatant Bn. Non-
Coy Combatant/Sweeper/Chowkidar
RAjasthan 1 11 85 13
10.6 RECRUITMENT
Members of Border Wing Home Guards may be enrolled both
from both Rural and Urban Home Guards belonging to specific
zones where Border Wing Home Guards have been raised.
The strength of each sanctioned battalion will be found from
within the overall existing allocated targets of Home Guards
of each state.
10.7 CALL-UP OF BORDER WING HOME GUARDS BY THE
ARMY AND ADMINISTRATIVE ARRANGEMENT THEREOF
Call-up of Border Wing Home Guards by the Army and
their administrative arrangement while employed by the Army
will be governed as per instructions contained in MHA letter
No.1-36012/1/80-DGCD (HG) dated 19th March 1983.
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10.8 CALL-UP OF BORDER WING HOME GUARDS BY THE
BORDER SECURITY FORCE
The procedure for call-up of Border Wing Home Guards
by the Border Security Force and sharing of expenditure for
such-call up will be governed as per instructions contained in
MHA letter No.111-14011/6/79-DGCD (HG) dated 5th August
1980."
6. Before we proceed further, it is apposite to note that
procedure for engagement of Border Wing Home Guards is
prescribed under Rajasthan Home Guards Act, 1963 and
Rajasthan Home Guards Rules, 1962, the salient features of which
Act are as under-
"The Rajasthan Home Guards Act, 1963
2. Constitution of Home Guards and appointment of
Commandant General, Deputy Commandant General
and Commandant - (1) The State Government shall, by
notification for such areas of the State as it may consider
expedient, a volunteer body called the Home Guards the
members of which shall discharge such functions and duties
in relation to the protection of persons, the security of
property and public safety as may be assigned to them in
accordance with the provisions of this Act and the rules made
thereunder.
(2) The State Government shall appoint a Commandant of
each of the Home Guards constituted under sub-section (1).
(3) The State Government shall also appoint a
Commandant General of Home Guards in whom shall vest the
general supervision and control of Home Guards throughout
the State of Rajasthan.
(4) The State Government may also appoint a Deputy
Commandant General of Home Guards, who shall, subject to
the supervision and control of the Commandant General,
exercise the powers conferred on the Commandant General in
such circumstances as the Commandant General may specify.
3. Appointment of Members -
(1) Subject to the approval of the Commandant General, the
Commandant may appoint as members of the Home Guards
such number of persons, who are fit and willing to serve, as
may from time to time be determined by the State
Government, and may appoint any such member to any office
of command in the Home Guards.
(2) Notwithstanding anything contained in sub-section (1) the
Commandant General may, subject to the approval of State
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Government, appoint any such member to any post under his
immediate control.
Rajasthan Home Guards Rules, 1962
"3. Appointment of member of Home Guards - No person
shall be appointed as a member of the Home Guards unless-
(a) he has attained the age of 18 years and has not
completed the age of 45 years;
(b) he has passed at least the fourth standard
examination in any language;
(c) he has been medically examined in accordance with
the directions of the Commandant General and is in
the opinion of the Commandant physically fit.
Provided that the Commandant General may relax the
conditions regarding the age or educational qualification,
prescribed in clause (a) and (b) above in suitable cases.
Provided further that the State Government may direct
that in respect of any area the educational qualification for
appointment as a member of the Home Guards shall be such
as it deems fit.
4. Application for appointment - A person desiring to be
appointed as member of the Home Guards shall make an
application in form "A".
8. Term of Office - The term of office of a member of the
Home Guards shall be five years.
Provided that-
(i) if any such member is found to be medically unfit to
continue as a member of Home Guards his appointment
may be terminated before the expiry of the term of office;
(ii) a person appointed shall be eligible for reappointment;
(iii) the services of a member of the Home Guards may be
terminated at any time by the Commandant or the
Commandant General, as the case may be, after giving
one months' notice.
9. Limit of age for a member of the Home Guards - A member
of the Home Guards may continue to be such member until
he attains the age of 55 years.
Provided that the Commandant General or Commandant may
relax the age in reasonable cases."
7. In the light of above backdrop, we now proceed to deal with
the controversy in the present case.
8. The appellants are the members of Border Wing Home
Guards of State of Rajasthan. Admittedly, the appellants were
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initially appointed for a term of five years which has been
extended from time to time.
9. In the year 2006, appellants filed four writ petitions before a
Single Judge of this Court inter-alia praying for following reliefs: -
"(i) Respondents be directed to grant parity to appellants
in all respects in terms and conditions of their employment
with that of permanent whole time Border Wing of Home
Guards in Rajasthan.
(ii) Respondents be directed to grant all benefits of the
Government servants including fixation of pay, benefits of
provident fund, gratuity and all retirement benefits as well
as all sorts of government allowances, leave incentives and
usual increments etc, arrears of pay and all other benefits
from the respective date of joining.
(iii) Respondents be directed to absorb all the appellants as
permanent Border Wing Home Guards with all consequential
benefits."
10. In support of relief (s) claimed in the writ petition, following
submissions were advanced by the appellants before the Single
Judge: -
(i) Border Wing Home Guards is essentially an auxiliary force to
the Army and Border Security Force and members thereof have
participated in many operations such as 1971 Indo-Pak War,
Operation Vijay, Operation Parakram etc.
(ii) Appellants have been rendering services at the Indo-Pak
Border and are on call throughout the year and have to be on duty
for days and months as and when called.
(iii) Even though appellants have been rendering similar services
as rendered by para military forces since last 40 years there has
been a serious discrimination between the employees of para
military forces and Border Wing Home Guards as well as
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permanent members of Border Wing Home Guards which is clearly
violative of Articles 14 and 16 of Constitution of India.
(iv) Appellants have rendered services and remained on call
uninterruptedly for a very long duration at par with their
counterparts in BSF, Army and other organizations of Govt. of
Rajasthan. (In the present appeal (s), a chart in respect of Prem
Singh, appellant No.1 in SAW No.769/2009 has been pressed into
service by the appellants to highlight that on an average Prem
Singh has worked 208 days a year in his service career spanning
32 years implying thereby members of Border Wing Home Guards
at par with a regular cadre employee in State of Rajasthan.
(v) Appellants being members of Border Wing Home Guards are
holders of civil posts within the meaning of Article 311 of
Constitution of India and therefore they are entitled to receive all
facilities and benefits of service which are available to other
holders of the civil posts.
(vi) The services of similarly situated members of Border Wing of
Home Guards of various states viz. Assam, Meghalaya, Tripura,
West Bengal and Gujarat.
(vii) Denial of relief of regularization of service and consequential
benefits to appellants is not only in violation of their fundamental
rights guaranteed under Constitution of India but also ratio of law
laid down by the Hon'ble Supreme Court in the decision reported
as (2003) 6 SCC 469 State of West Bengal & Ors vs. Pantha
Chatterjee & Ors.
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11. Vide judgment dated December 08, 2008 the Single Judge
dismissed the writ petitions essentially on the following grounds: -
(i) Appellants were not appointed under any service rules
framed under proviso to Article 309 of Constitution of India.
(ii) The decision of Supreme Court in Pantha Chatterjee's case
(supra) relied upon by appellants is of no avail to the appellants as
facts of said case and present case are altogether different and
distinguishable in view of the fact that appointment of appellants
was not under any service rules and they were engaged as
volunteers.
(iii) In view of dictum of law laid down by Supreme Court in the
decision reported as (2006) 4 SCC 1 Secretary, State of
Karnataka vs. Uma Devi & Ors. there is no question of issuing any
direction to the respondents for granting benefit of regularization
or absorption who are admittedly appointed as volunteers by the
Govt. under Rajasthan Home Guards Act, 1963 and Rajasthan
Home Guards Rules, 1962.
(iv) Voluntary service of Home Guards cannot be termed as an
employment under the State and thus the appellants cannot claim
parity in employment as permanent employees.
(v) In view of dictum of law laid down by Supreme Court in Uma
Devi's case (supra) that appellants who are admittedly not
appointed under any service rules against sanctioned posts cannot
be given any parity for the purpose of permanent status of an
employee of the State.
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(vi) Having accepted their voluntary engagement as Border Wing
Home Guards with open eyes the appellants cannot claim
regularization of their services even after rendering long service.
12. Aggrieved by the aforesaid, the appellants have filed the
present appeals.
13. From the aforesaid factual narration, it is clear that the
central issue involved in the present case revolves around the
character and status of appellants, namely, whether appellants i.e.
members of Border Wing of Home Guards of State Rajasthan are
to be treated as 'volunteers' or they are to be treated as
permanent employees (like other employees) under the State of
Rajasthan. Secondly, whether there can be any direction by this
Court for regularization of services of the appellants.
14. Learned Senior Counsel for the appellants urged that in view
of the chart submitted in SAW No.769/2009 it is apparent that the
appellants have worked continuously for periods ranging between
25 to 32 years and in different years have worked for about 200
days. Learned counsel urged that Border Wing Home Guards were
raised in 7 States and in 5 States by judicial orders their services
have been directed to be regularized and thus, learned counsel
urged that there is no reason to deny benefit to the appellants
especially keeping in view the decision of the Supreme Court
reported as 2009(14) SCC 173 UOI & Ors. vs. Parul Debnath &
Ors.
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15. The controversy regarding character and status of members
of Home Guards has been considered by courts in various judicial
pronouncements rendered.
16. The first decision rendered by Supreme Court relating to
Home Guards is decision dated July 30, 1991 passed in SLP (Civil)
No.12465/1990 titled as Rameshwar Dass Sharma vs. State of
Punjab. The facts of said case are that various persons working as
Home Guards in State of Punjab had filed a writ in Punjab and
Haryana High Court praying for regularization of their service and
grant of regular pay scales. The State of Punjab had taken
preliminary objections that Home Guards Volunteers are paid daily
allowances for the period they are called; they cannot be equated
with regular salary/wages paid employees; they are not regular
employees of State of Punjab and their appointments are on
voluntary basis and they are paid only daily allowance for the
called duty period. The High Court dismissed the petition in view
of preliminary objections taken by the State of Punjab. The matter
went to the Supreme Court which dismissed the Special Leave
Petition filed by the Home Guards of State of Punjab in the
following terms: -
"Heard petitioner in person and learned counsel for the
respondent. The counter affidavit indicates that the Home
Guards who are ordinarily demobilized Army Personnel are
employed on the basis of temporary need from time to time
and in case they are called back to do work with arms in
hands, they are paid at the rate of ` 30/- per day on the
basis of eight hours working during the day, or otherwise they
are paid at the rate of ` 25/- per day. Petitioner, according to
the respondent, being an employee under the system cannot
ask for regularization. In such circumstances, we do not think
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that the petitioner is entitled to any relief. We have impressed
upon learned counsel, however, to find out from the Home
Guard Organization if in any manner, the petitioner can be
accommodated in a limited way. The Special Leave Petition
and the interlocutory application are disposed of accordingly."
17. Another significant decision on the aspect is decision
rendered by Division Bench of High Court of Delhi reported as 98
(2002) DLT 624 Rajesh Mishra & Ors vs. Govt of NCT of Delhi. In
the said case, the issue regarding status of the home guards
appointed in terms of the Bombay Home Guard Act, 1947 as
extended to Delhi was involved. (Be it noted here that provisions
of Bombay Home Guard Act, 1947 is in pari materia to the
provisions of Rajasthan Home Guards Act, 1963).
18. After a detailed analysis of provisions of Bombay Home
Guards Act, 1947 and the Rules framed thereunder the Division
Bench held as follows: -
"The said Act postulates that the Home Guards would be a
voluntary organization and the services of the members
thereof can be requisitioned as and when required by the
Commandant in the interest of the country. The said Act and
the Rules further postulate that the members of the Force
would be volunteers.
21. The petitioners having not questioned the vires of Section
2 of the said Act and the relevant Rules before the Tribunal
cannot be permitted to raise the said contentions for the first
time before this Court.
22. In Man Sukh Lal Rawal and Ors. v. Union of India and
Ors., Civil Writ Petition No. 4286 of 1997 decided on
26.05.1999 a Division Bench of this Court having regard to
the provisions of the said Act, inter alia, held:-
"The two questions that have been raised by the petitioners
before us are whether they are entitled to be regularized 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.
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In so far as the first question is concerned, the genesis,
history and concept of the Home Guards clearly show 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 regularizing 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."
23. Referring to the decision of the Apex Court in SLP (Civil)
No. 12465/90 in the case of Rameshwar Dass Sharma and
Ors. v. State of Punjab and Ors., it was held:-
"In this view of the matter, we have no doubt in our minds
that the petitioners are not entitled to be regularized 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."
24. The ratio of the said decision, therefore, runs contrary to
the submissions made by the learned counsel for the
petitioners.
xxxxx
28. It is not in dispute that having regard to the provisions of
the said Act and the Rules framed there under and keeping in
view the several decisions of this Court as also the Supreme
Court of India, the organization of the Home Guards is a
voluntary organization.
29. If authorities for their own benefit had been mis-utilizing
the same, action can be taken against them, but thereby no
legal right can be said to have been acquired by the
petitioners to which they are not entitled to there under.
30. If the submission of Mr. Sabharwal having regard to the
fact that the petitioners had been continuously working with
various Departments including Police, Railways, etc. between
12 to 13 years and thus in truth and substance, they are not
a part of the volunteer work force is accepted, such
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appointments must be held to be contrary to the purpose and
object which the provisions of the Act seek to achieve.
xxxxx
50. In view of the aforementioned binding precedents of this
Court, we are of the opinion that the petitioners cannot be
said to be the civil servants and as such the Tribunal has
rightly held that they have no jurisdiction to entertain the
application under Section 19 of the Administrative Tribunal
Act."
19. Thereafter came the decision of Supreme Court reported as
(2007) 10 SCC 544 State of Manipur & Anr. Vs Ksh.
Moirangninthou Singh. The factual backdrop of the case has been
noted in the decision in following terms: -
"3. It appears that the respondents had filed several writ
petitions in the Guwahati High Court inter alia praying that
their services be regularized in the Home Guards and that
they be given regular pay scales.
4. The learned Single Judge by his Judgment directed the
state Government to regularize the services of the writ
petitioners and to grant them all service benefits, including
pensionary benefits, as are payable to government employees
holding civil posts. The learned Single Judge also directed that
the serices of the employees who have put in 10 years' of
service in the Home Guards should be regularized. The
learned Single Judge further directed amendment of the Rules
and the Act.
5. Against the said judgment of the learned Single Judge
an appeal was filed before the Division Bench.
6. The Division Bench held that the learned Single Judge
had no power to direct amendment of the Act and the Rules,
and we fully agree with this view since the Act can be
amended only by the Legislature and the Rules can only be
amended by the State Government, or the empowered under
the Manipur Home Guards Act, 1947. However, the Division
Bench upheld the other directions given in the Judgment of
the learned Single Judge."
20. After noting the provisions of Sections 4(4) and 8 of Manipur
Home Guards Act, 1996 which lay down that Home Guards of
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Manipur shall be an auxiliary force and assist Manipur Police as
and when they are called, the Supreme Court observed as follows:
"7. We are of the opinion that in view of the Constitution
Bench Judgment of this Court in Secretary, State of
Karnataka and Ors. v. Uma Devi and Ors., [2006] 4 SCC 1,
this Court cannot direct regularization in service. Since the
Court has no power to direct regularization, it also follows
that it has no power to direct grant of benefits payable to the
regular employees.
8. It may be noted that home Guards Act has been
constituted as a voluntary organization for service in
emergencies and hence it cannot be treated at par with other
organizations like the army, para military organizations or the
civil police.
xxxxx
12. A perusal of the provisions of the Home Guards Act and
Rules show that the Home Guards was meant to be a reserve
force which was to be utilized in emergencies, but it was not a
service like the police, para military force, or army, and there
is no right in a member to continue till the age of 55 years.
We approve the view taken by the Delhi High Court in Rajesh
Mishra v. Govt. of NCT of Delhi 98 (2002) DLT 624 (DB).
xxxxx
14. The concept of Home Guards was of a voluntary citizen
force as auxiliary to the police for maintaining law and order
and for meeting emergencies like floods, fires, famine etc.
and for civil defence.
15. For the reasons given above these appeals are allowed
and the impugned judgment of the Division Bench as well as
of the learned Single Judge are set aside and the writ
petitions filed in the Guwahati High Court are dismissed.
There shall be no order as to costs." (Emphasis Supplied)
21. The next decision on the point is decision of Supreme Court
reported as 2015(12) SCC 74 Jiben Krishna Mondal vs. State of
West Bengal & Ors. The question involved in the said case was:
'Whether members of West Bengal Home Guards are in services of
(18 of 21)
[SAW-801/2009]
the State and whether they are entitled for regularization of their
services or any other relief.'
22. After a detailed analysis of provisions of West Bengal Home
Guards Act, 1962 and West Bengal Home Guard Rules, 1963
(which are pari-materia to provisions of Rajasthan Home Guards
Act, 1963 and Rajasthan Home Guards Rules, 1962), the Supreme
Court held as follows: -
"4. From plain reading of the aforesaid Rules, the following
facts emerge:
(i) West Bengal Home Guards are enrolled as member of the
Home Guard in the form set out in Schedule A of the Rules.
(ii) The Home Guards shall ordinarily be volunteers and
unpaid. But the State Government may determine the
allowances to be paid to the members of the Home Guard
when they are called out for duty.
(iii)There is no fixed duty for members of the Home Guard.
When they are called out for duty, they shall assist the police
force in the protection of civil population against the forces of
crime and disorder. They have to work in close touch with
Civil Defence Organization and have to perform such duties in
connection /with the protection of persons, the security of
property or the public safety as the State Government may,
from time to time, determine.
xxxx
17. In Rajesh Mishra v. Govt. of NCT of Delhi, 98 (2002) DLT
624, the High Court speaking through S.B. Sinha,J held that
that the Home Guards is a voluntary organization and there is
no Master-Servant relationship between Government and
Home Guards. It was held that they are not civil servants and
they cannot move before the Tribunal u/s 19 of the
Administrative Tribunal Act.
18. In State of Manipur and another v. Ksh. Moirangninthou
Singh and others, (2007) 10 SCC 544, this Court reiterated
the voluntary nature of service of members of Home Guard
and held:
....
(19 of 21) [SAW-801/2009]
19. A Careful perusal of genesis of Home Guards and its role will show that the Organization was always meant to be voluntary and it consisted of people from all walks of life. In fact Government servants were also enrolled in the Home Guards to be called as and when the need arises. A large number of State enactments i.e. Andhra Pradesh Home Guards Act, 1948, Bombay Home Guards Act, 1947, Assam Home Guards Act, 1947, Manipur Home Guards Act, 1966, Madhya Pradesh Home Guards Act, 1947, Punjab Home Guard Act, 1947, Rajasthan Home Guards Act, 1963 etc. placed before this Court in compilation by learned Attorney General during the hearing makes it clear that the provisions of all these enactments are more or less similar. The voluntary nature is a basic feature of the Home Guards.
20. Majority of the appellants has attained the maximum age and are no more members of the Home Guards. The appointment letters enclosed by the remaining category of appellants, do not suggest that they are performing duty all over the year like any Government servant. There is nothing on the record to suggest the master-servant relationship. They were appointed pursuant to Home Guard Rules, 1962 and it is made clear that their services are voluntary and will not get any pay but the duty allowance as may be fixed by the State Government from time to time.
21. In that view of the matter, we hold that the appellants are not entitled for regularization of service. Further, in absence of any comparison of duties, responsibilities, accountability and status, they may not be equated with the Police Constables or personnel to claim parity with the pay or scale of pay as provided to the Police personnel. The High Court by the impugned judgment and orders rightly refused to grant regularization of their services. We find no merit in these appeals and they are accordingly dismissed." (Emphasis Supplied)
23. The last decision on the aspect is decision of Supreme Court reported as (2015) 6 SCC 247 Grah Rakshak, Home Guards Welfare Association vs. State of Himachal Pradesh & Others. The question involved in the said case was that whether Home Guards of States of Himachal Pradesh, Punjab and N.C.T of Delhi are regular appointees in the cadre/services of Home Guards and if not whether they are entitled for regularization of their services. Most significantly, the plea taken by the appellants was that they (20 of 21) [SAW-801/2009] i.e. appellants are working as Home Guards without any break for about 10 to 30 years. Inspite of the same, they were not given any benefits available to regular employees. It was contended that they have neither been granted regular pay scale, nor have their services regularized. On the other hand, it was argued by the State Govts. that the appellants were appointed as Home Guards volunteers, working on honorary basis and hence are entitled only for duty allowance as per the schemes i.e. Acts and Rules framed for the said purpose.
24. After a detailed analysis of Genesis' of Home Guards Organization and relevant provisions of Acts and Rules framed by different States with regard to Home Guards Organization, the Court held as follows: -
"37. It is not the case of the State Government that enrollment/appointments of the Home Guards were backdoor engagement and illegal made in violation of Articles 14 and 16 of the Constitution of India. Therefore, the decision of this Court in Umadevi(3) is not applicable in the case of the appellants-Home Guards. Admittedly, there is no concept of wages. These volunteers are paid duty allowance and other allowances to which they are entitled. There is nothing on the record to suggest that they performed duties through out the year.
38. On the other hand, it is the specific case of the State that as and when there is requirement they were called for duty and otherwise they remained in their homes. Therefore, in absence of any details about continuity of service, month to month basis or year to year basis, the duties and responsibilities performed by them through out the year can neither be equated with that of police personnel.
xxxx
42. In view of the discussion made above, no relief can be granted to the appellants either regularization of services or grant of regular appointments hence no interference is called (21 of 21) [SAW-801/2009] for against the judgments passed by the Himachal Pradesh, Punjab and Delhi High Courts." (Emphasis Supplied)
25. Whilst it may be true that in Parul Debnath's case (supra) the Supreme Court granted relief to the Home Guards in Andaman and Nicobar islands keeping in view the Home Guard Regulations, 1964 but it be noted here that in coming to aforesaid conclusion in Grah Rakshak's case (supra), the Supreme Court had noted its earlier decision in Pantha Chatterjee's case (supra) and Parul Debnath's case relied upon by the appellants and distinguished the same in view of the provisions of the different Home Guard Act and Rules.
26. In view of ratio of law laid down in afore-noted judicial pronouncements wherein pari-materia provisions came to the Rajasthan Home Guards Acts and Rules were considered and it was specifically held that no relief for regularization can be granted we have no hesitation in holding that: 'The appellants are not entitled for regularization of service in view of voluntary nature of their service. Further, in absence of any comparison of duties, responsibilities, accountability and status, they shall not be equated with permanent employees of State of Rajasthan to claim parity of pay with such employees.'
27. The appeals are dismissed.
28. No costs.
(RAMCHANDRA SINGH JHALA)J. (PRADEEP NANDRAJOG)C.J. Mohit Tak