JUDGMENT
S.B. Sinha, C.J.
1. Whether the home guards appointed under the Bombay Home
Guards Act are holders of civil services and whether their services can be directed
to regularized, are the questions involved in these proceedings filed by the writ
petitioners.
2. The petitioners were enrolled as home guards for a period of three
years. On completion of the said period, they were discharged from service.
According to them, they had served as home guards for a long period and as such,
they having become civil servants are entitled to regularization with effect from
the date of their respective enrolment.
3. The petitioners filed Original Applications claiming regularization
of their services as also for their reinstatement upon setting aside the orders of
discharge.
4. The respondents’ contention, however, is that the relationship of
master and servant by and between then and the petitioners never existed. The
writ petitioners are volunteers who are called upon during emergency to assist the
enforcement agency and are paid subsistence allowance and parade allowance out
of the contingent funds.
5. Home Guards, according to the respondents, is a voluntary
organization with motto of ‘Niskam Sewa’ having no statutory rights and
obligations.
6. The learned Tribunal, having regard to its various decisions as also
the High Court and the Supreme Court, as noticed in para 7 of the impugned
judgment, held:
“8. In the afore-stated cases cited by the
learned counsel of the respondents, it was held that
the petitioner-Home Guards could not be given any
relief and the Home-Guards being volunteers were
not entitled to regularization. In the case of Raj
Kamal (supra) the Hon’ble Supreme Court
dismissing the SLP held that the representation must
be made to the Government and not to the Court.
The mere fact that after the expiry of the term of
three years some Home Guards personnel were
allowed to continue in the service could not by itself
entitle them to additional benefits than what they
would have been otherwise entitled to had they been
discharged on the expiry of the initial period of three
years. In the case of Rameshwar Dass Sharma
(supra) their Lordships have held as follows:
“…..the Home Guards who are ordinarily
demobed 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 Rs. 30/- per day
on the basis of eight hours’ working during the
day, or otherwise they are paid at the rate of Rs.
25/- per day. Petitioner, according to the
respondent, being an employee under this system
cannot ask for regularization. In such
circumstances, we do not think that the petitioner
is entitled to any relief. We have impressed upon
learned counsel, however, to find out from the
Home Guard Organisation 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.”
In the case of Man Sukh Lal Rawal (supra),
the Hon’ble High Court while dismissing the writ
petition expected of the respondents to be alive to
this situation and to frame a transparent and
workable policy within a period of six months. In
the case of Raj Kumar (supra) the Hon’ble High
Court did not find any reason to interfere with the
decision of this Tribunal and dismissed the
petition.”
7. On the afore-mentioned findings, the Original Applications filed
by the petitioners herein were dismissed.
8. Dr. J.C. Madan, the learned counsel appearing on behalf of the
petitioner, would contend that having regard to the provisions of the Bombay
Home Guards Act and the Rules framed there under, it must be held that there
existed a relationship of master and servant by and between the respondents and
the petitioners herein inasmuch as the respondents had the power of
superintendence and control over the petitioners. The learned counsel would also
contend that the Home Guards are civil servants, as has been held in Sher Singh,
Malhan v. State of Madhya Pradesh, AIR 1955 Nagpur 175.
9. The learned counsel would submit that the services rendered by
the petitioners are not on voluntary basis and to that extent, the provisions of
Section 2 of the Bombay Home Guards Act and the relevant provisions of the
Delhi Home Guards Rules must be held to be ultra vires.
10. Our attention has also been drawn to a judgment of this court dated
25th May 1999 passed in CWP No. 4286/97 (Mansukh Lal and Ors. v. UOI and Ors.).
The learned counsel has also drawn our attention to a Circular letter dated 10th
September 1999 whereby and whereunder all departments had been called upon
to give preference to home guards for appointment to Group ‘G’ and Group ‘D’
posts.
11. To consider the contentions of the learned counsel for the
petitioners, it is necessary to notice the following relevant provisions of the
Bombay Home Guards Act, 1947 as extended to the Union Territory of Delhi.
“2. Constitution of Home Guard and
appointment of Commandant General and
Commandant: (1) The Chief Commissioner of
Delhi shall constitute for the Union Territory of
Delhi 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 the public
safety as may be assigned to them in accordance
with the provision of this Act and the rules made
there under.
Provided that the Chief Commissioner of
Delhi may, by notification in the official Gazette
divide the Union Territory of Delhi into two or
more areas and constitute such a volunteer body
for each such area.
(2) The Chief Commissioner of Delhi
may appoint a Commandant of each of Home
Guards constituted under Sub-section (1).
(3) The Chief Commissioner of Delhi
shall appoint a Commandant General of the Home
Guards in whom shall vest the general supervision
and control of the Home Guards throughout the
Union Territory of Delhi and until a Commandant
is appointed under Sub-section (2), the
Commandant General may also exercise the
powers and perform the functions assigned to the
Commandant by or under this Act.
3. Appointment of members–(1)
Subject to the approval of the Commandant
General, the Commandant may appoint as
members of the Home Guards such numbers of
persons, who are fit and willing to serve, as may
from time to time be determined by the Chief
Commissioner of Delhi, and may appoint any such
member to any office of Commandant the Home
Guards.
(2) Notwithstanding anything contained in
Sub-section (1) the Commandant General, may
subject to the approval of the Chief Commissioner
of Delhi, appoint any such member to any post
under his immediate control.
4. Functions and duties of members–
(1) The Commandant may at any time call out a
member of the Home Guards for training or to
discharge any of the functions or duties assigned
to the Home Guards in accordance with the
provision of this Act and the rules there under.
(2) The Commandant General may in an
emergency call out a member of the Home Guards
for training or to discharge any of the said functions
or duties in any part of the Union Territory of Delhi.
5. Powers, protection and control–(1)
A member of the Home Guards when called out
under Section 4 shall have the same powers and
protection as an officer of police appointed under
any Act for the time being in force.
(2) No prosecution shall be instituted against
member of the Home Guards in respect of anything
done or purporting to the done by him in the
discharge of his functions or duties as such member
except with the previous sanction of the District
Magistrate.”
12. Section 6 provides for control of police force over the Home
Guards.
13. Section 6-A postulates that every member of the Home Guards,
upon cessation, would forthwith deliver up to the Commandant his certificate of
appointment or of office and the arms, accountrements, clothing and other
necessary items which had been furnished to him. Section 6-B provides for
punishment of the members. Sub-section (1-A) of Section 6-B reads thus:
“Notwithstanding anything contained in this
Act, the Commandant shall have the authority to
discharge any member of the Home Guards at any
time subject to such conditions as may be
prescribed, if, in the opinion of the Commandant, the
services of such members are no longer required.
The Commandant General shall have the like
authority in respect of any member of the Home
Guards appointed to a post under his immediate
control.”
14. The said Act also provides for an appeal against an order of
punishment. Section 9-A reads thus:
“Home Guards not disqualified from
contesting elections to the State Legislature or
local bodies.”
15. Pursuant to or in furtherance of the powers conferred upon the
Chief Commissioner of Delhi under the Bombay Home Guards Act 1947, Rules
have been made known as Delhi Home Guards Rules 1959. Rule 6 of the Rules
provides that a pledge shall be made by every person on his appointment as a
member of the Home Guards in Form ‘B’. Rule 8 of the Rules is in following
terms:
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
member of Home Guards.”
Rules 17 and 18 of the rules read thus:
“17. Functions and duties – (1) The functions
and duties of the Home Guards shall be such as may
be assigned by the Chief Commissioner or the
Commandant General from time to time.
(2) A member of the Home Guards
constituted or any area shall be liable to serve in any
other area in which the Act is in force.”
“18. Compensation– If a member of the
Home Guards suffers any damage to his person or
property while under training or on duty, he shall be
paid such compensation as may be determined by
the Chief Commissioner; provided that such damage
is not caused by his own negligence or willful act,
omission is contravention of any of the provisions of
the Act or rules made there under or orders or
directions issued by his superior officers.”
16. 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 Act and the Rules postulate that the members of the Force would be
volunteers.
17. Before the learned Tribunal, the petitioners having not questioned
the vires of Section 2 of the Act and the relevant rules, they cannot be permitted
to raise the said contentions for the first time before this court.
18. In Mansukh Lal Rawal v. UOI, CWP 4286/97, 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.
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
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.”
19. 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.”
20. As regards termination of their services, it was held that Rule 8 of
the Rules can be invoked. Having held so, the Division Bench observed:
“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-enrolled. In such a situation, it
will be extremely difficult for them to look for a job
in the open market.
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.”
21. The ratio of the said decision, therefore, run contrary to the
submissions made by the learned counsel for the petitioners. The observations
made by the Division Bench do not constitute the ratio of the decision. The fact
remains that in a similar situation, a Division Bench of this court has held that
termination of service of the Home Guards in terms of Rule 8 would be valid and
they cannot be directed to be regularized.
22. The decisions of the apex court cited above have been rendered
under the Industrial Disputes Act and they cannot be said to have any application
in the facts and circumstances of the instant case.
23. It is true that in Sher Singh, Malhan v. State of Madhya Pradesh,
AIR 1955 Nagpur 175, a Division Bench of the Nagpur High Court has held that
the members of the Home Guards appointed under the Central Provinces of the
Berar Home Guards Act, 1947 would be holding civil posts under the State.
Unfortunately, therein the provisions of the Act and in particular the provisions of
Section 2 had not been correctly interpreted. Therein the learned Judge of the
Nagpur High Court failed to take into consideration that the character of service is
a voluntary one which is volunteered by the members of the force for the safety
and security of the nation. With utmost respect we are not in a position to
persuades ourselves to subscribe to the views that Home Guards are holders of
civil posts.
24. Keeping in view the afore-mentioned Division Bench decision of
this court, we are of the opinion that no case has been made out for interference
with the impugned judgment. There is thus no merit and the writ petition is
accordingly dismissed. In the facts and circumstances of this case, however, there
shall be no orders as to costs.