{"id":238033,"date":"2002-02-21T00:00:00","date_gmt":"2002-02-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/chander-bhushan-rai-and-ors-dev-vs-govt-of-nct-of-delhi-and-anr-on-21-february-2002"},"modified":"2017-03-03T05:27:01","modified_gmt":"2017-03-02T23:57:01","slug":"chander-bhushan-rai-and-ors-dev-vs-govt-of-nct-of-delhi-and-anr-on-21-february-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/chander-bhushan-rai-and-ors-dev-vs-govt-of-nct-of-delhi-and-anr-on-21-february-2002","title":{"rendered":"Chander Bhushan Rai And Ors., Dev … vs Govt. Of Nct Of Delhi And Anr. on 21 February, 2002"},"content":{"rendered":"
Delhi High Court<\/div>\n
Chander Bhushan Rai And Ors., Dev … vs Govt. Of Nct Of Delhi And Anr. on 21 February, 2002<\/div>\n
Equivalent citations: 2002 (6) SLJ 614 Delhi<\/div>\n
Author: S Sinha<\/div>\n
Bench: S Sinha, A Sikri<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 S.B. Sinha, C.J.  <\/p>\n
 1. Whether the home guards appointed under the Bombay Home
\nGuards Act are holders of civil services and whether their services can be directed
\nto regularized, are the questions involved in these proceedings filed by the writ
\npetitioners.\n<\/p>\n
 2. The petitioners were enrolled as home guards for a period of three
\nyears. On completion of the said period, they were discharged from service.
\nAccording to them, they had served as home guards for a long period and as such,
\nthey having become civil servants are entitled to regularization with effect from
\nthe date of their respective enrolment.\n<\/p>\n
 3. The petitioners filed Original Applications claiming regularization
\nof their services as also for their reinstatement upon setting aside the orders of
\ndischarge.\n<\/p>\n
 4. The respondents’ contention, however, is that the relationship of
\nmaster and servant by and between then and the petitioners never existed. The
\nwrit petitioners are volunteers who are called upon during emergency to assist the
\nenforcement agency and are paid subsistence allowance and parade allowance out
\nof the contingent funds.\n<\/p>\n
 5. Home Guards, according to the respondents, is a voluntary
\norganization with motto of ‘Niskam Sewa’ having no statutory rights and
\nobligations.\n<\/p>\n
 6. The learned Tribunal, having regard to its various decisions as also
\nthe High Court and the Supreme Court, as noticed in para 7 of the impugned
\njudgment, held:\n<\/p>\n
 “8. In the afore-stated cases cited by the
\nlearned counsel of the respondents, it was held that
\nthe petitioner-Home Guards could not be given any
\nrelief and the Home-Guards being volunteers were
\nnot entitled to regularization. In the case of Raj
\nKamal (supra) the Hon’ble Supreme Court
\ndismissing the SLP held that the representation must
\nbe made to the Government and not to the Court.
\nThe mere fact that after the expiry of the term of
\nthree years some Home Guards personnel were
\nallowed to continue in the service could not by itself
\nentitle them to additional benefits than what they
\nwould have been otherwise entitled to had they been
\ndischarged on the expiry of the initial period of three
\nyears. In the case of Rameshwar Dass Sharma
\n(supra) their Lordships have held as follows:\n<\/p>\n
 “…..the Home Guards who are ordinarily
\ndemobed Army personnel are employed on the
\nbasis of temporary need from time to time and in
\ncase they are called back to do work with arms in
\nhands, they are paid at the rate of Rs. 30\/- per day
\non the basis of eight hours’ working during the
\nday, or otherwise they are paid at the rate of Rs.
\n25\/- per day. Petitioner, according to the
\nrespondent, being an employee under this system
\ncannot ask for regularization. In such
\ncircumstances, we do not think that the petitioner
\nis entitled to any relief. We have impressed upon
\nlearned counsel, however, to find out from the
\nHome Guard Organisation if in any manner, the
\npetitioner can be accommodated in a limited way.\n<\/p>\n
 The special leave petition and the
\ninterlocutory application are disposed of
\naccordingly.”\n<\/p>\n
 In the case of Man Sukh Lal Rawal (supra),
\nthe Hon’ble High Court while dismissing the writ
\npetition expected of the respondents to be alive to
\nthis situation and to frame a transparent and
\nworkable policy within a period of six months. In
\nthe case of Raj Kumar (supra) the Hon’ble High
\nCourt did not find any reason to interfere with the
\ndecision of this Tribunal and dismissed the
\npetition.”\n<\/p>\n
 7. On the afore-mentioned findings, the Original Applications filed
\nby the petitioners herein were dismissed.\n<\/p>\n
 8. Dr. J.C. Madan, the learned counsel appearing on behalf of the
\npetitioner, would contend that having regard to the provisions of the Bombay
\nHome Guards Act and the Rules framed there under, it must be held that there
\nexisted a relationship of master and servant by and between the respondents and
\nthe petitioners herein inasmuch as the respondents had the power of
\nsuperintendence and control over the petitioners. The learned counsel would also
\ncontend that the Home Guards are civil servants, as has been held in  Sher Singh,
\nMalhan v. State of Madhya Pradesh,  AIR 1955 Nagpur 175.\n<\/p>\n
 9. The learned counsel would submit that the services rendered by
\nthe petitioners are not on voluntary basis and to that extent, the provisions of
\nSection 2 of the Bombay Home Guards Act and the relevant provisions of the
\nDelhi Home Guards Rules must be held to be ultra vires.\n<\/p>\n
 10. Our attention has also been drawn to a judgment of this court dated
\n25th May 1999 passed in CWP No. 4286\/97 (Mansukh Lal and Ors. v. UOI and Ors.).
\nThe learned counsel has also drawn our attention to a Circular letter dated 10th
\nSeptember 1999 whereby and whereunder all departments had been called upon
\nto give preference to home guards for appointment to Group ‘G’ and Group ‘D’
\nposts.\n<\/p>\n
 11. To consider the contentions of the learned counsel for the
\npetitioners, it is necessary to notice the following relevant provisions of the
\nBombay Home Guards Act, 1947 as extended to the Union Territory of Delhi.\n<\/p>\n
 “2. Constitution of Home Guard and
\nappointment of Commandant General and
\nCommandant: (1) The Chief Commissioner of
\nDelhi shall constitute for the Union Territory of
\nDelhi a volunteer body called the Home Guards,
\nthe members of which shall discharge such
\nfunctions and duties in relation to the protection of
\npersons the security of property and the public
\nsafety as may be assigned to them in accordance
\nwith the provision of this Act and the rules made
\nthere under.\n<\/p>\n
 Provided that the Chief Commissioner of
\nDelhi may, by notification in the official Gazette
\ndivide the Union Territory of Delhi into two or
\nmore areas and constitute such a volunteer body
\nfor each such area.\n<\/p>\n
 (2) The Chief Commissioner of Delhi
\nmay appoint a Commandant of each of Home
\nGuards constituted under Sub-section (1).\n<\/p>\n
 (3) The Chief Commissioner of Delhi
\nshall appoint a Commandant General of the Home
\nGuards in whom shall vest the general supervision
\nand control of the Home Guards throughout the
\nUnion Territory of Delhi and until a Commandant
\nis appointed under Sub-section (2), the
\nCommandant General may also exercise the
\npowers and perform the functions assigned to the
\nCommandant by or under this Act.\n<\/p>\n
 3. Appointment of members–(1)
\nSubject to the approval of the Commandant
\nGeneral, the Commandant may appoint as
\nmembers of the Home Guards such numbers of
\npersons, who are fit and willing to serve, as may
\nfrom time to time be determined by the Chief
\nCommissioner of Delhi, and may appoint any such
\nmember to any office of Commandant the Home
\nGuards.\n<\/p>\n
 (2) Notwithstanding anything contained in
\nSub-section (1) the Commandant General, may
\nsubject to the approval of the Chief Commissioner
\nof Delhi, appoint any such member to any post
\nunder his immediate control.\n<\/p>\n
 4. Functions and duties of members–\n<\/p>\n
(1) The Commandant may at any time call out a
\nmember of the Home Guards for training or to
\ndischarge any of the functions or duties assigned
\nto the Home Guards in accordance with the
\nprovision of this Act and the rules there under.\n<\/p>\n
 (2) The Commandant General  may in an
\nemergency call out a member of the Home Guards
\nfor training or to discharge any of the said functions
\nor duties in any part of the Union Territory of Delhi.\n<\/p>\n
 5. Powers, protection and control–(1)
\nA member of the Home Guards when called out
\nunder Section 4 shall have the same powers and
\nprotection as an officer of police appointed under
\nany Act for the time being in force.\n<\/p>\n
 (2) No prosecution shall be instituted against
\nmember of the Home Guards in respect of anything
\ndone or purporting to the done by him in the
\ndischarge of his functions or duties as such member
\nexcept with the previous sanction of the District
\nMagistrate.”\n<\/p>\n
 12. Section 6 provides for control of police force over the Home
\nGuards.\n<\/p>\n
 13. Section 6-A postulates that every member of the Home Guards,
\nupon cessation, would forthwith deliver up to the Commandant his certificate of
\nappointment or of office and the arms, accountrements, clothing and other
\nnecessary items which had been furnished to him. Section 6-B provides for
\npunishment of the members. Sub-section (1-A) of Section 6-B reads thus:\n<\/p>\n
  “Notwithstanding anything contained in this
\nAct, the Commandant shall have the authority to
\ndischarge any member of the Home Guards at any
\ntime subject to such conditions as may be
\nprescribed, if, in the opinion of the Commandant, the
\nservices of such members are no longer required.
\nThe Commandant General shall have the like
\nauthority in respect of any member of the Home
\nGuards appointed to a post under his immediate
\ncontrol.”\n<\/p>\n
 14. The said Act also provides for an appeal against an order of
\npunishment. Section 9-A reads thus:\n<\/p>\n
  “Home Guards not disqualified from
\ncontesting elections to the State Legislature or
\nlocal bodies.”\n<\/p>\n
15. Pursuant to or in furtherance of the powers conferred upon the
\nChief Commissioner of Delhi under the Bombay Home Guards Act 1947, Rules
\nhave been made known as Delhi Home Guards Rules 1959. Rule 6 of the Rules
\nprovides that a pledge shall be made by every person on his appointment as a
\nmember of the Home Guards in Form ‘B’. Rule 8 of the Rules is in following
\nterms:\n<\/p>\n
 8. Term of Office-The term of office of a
\nmember of the Home Guards shall be three years.\n<\/p>\n
 Provided that the appointment of any such
\nmember may at any time be terminated by the
\nCommandant General or the Commandant, as the
\ncase may be before the expiry of the term of office–\n<\/p>\n
 (a) by giving one month’s notice, or  <\/p>\n
(b) without such notice, if such member is
\nfound to be medically unfit to continue as
\nmember of Home Guards.”\n<\/p>\n
 Rules 17 and 18 of the rules read thus:\n<\/p>\n
 “17. Functions and duties – (1) The functions
\nand duties of the Home Guards shall be such as may
\nbe assigned by the Chief Commissioner or the
\nCommandant General from time to time.\n<\/p>\n
 (2) A member of the Home Guards
\nconstituted or any area shall be liable to serve in any
\nother area in which the Act is in force.”\n<\/p>\n
 “18. Compensation– If a member of the
\nHome Guards suffers any damage to his person or
\nproperty while under training or on duty, he shall be
\npaid such compensation as may be determined by
\nthe Chief Commissioner; provided that such damage
\nis not caused by his own negligence or willful act,
\nomission is contravention of any of the provisions of
\nthe Act or rules made there under or orders or
\ndirections issued by his superior officers.”\n<\/p>\n
 16. The said Act postulates that the Home Guards would be a
\nvoluntary organization and the services of the members thereof can be
\nrequisitioned as and when required by the Commandant in the interest of the
\ncountry. The Act and the Rules postulate that the members of the Force would be
\nvolunteers.\n<\/p>\n
 17. Before the learned Tribunal, the petitioners having not questioned
\nthe vires of Section 2 of the Act and the relevant rules, they cannot be permitted
\nto raise the said contentions for the first time before this court.\n<\/p>\n
 18. In  Mansukh Lal Rawal v. UOI,  CWP 4286\/97, a Division Bench of
\nthis court having regard to the provisions of the said Act, inter alia, held:\n<\/p>\n
 “The two questions that have been raised by
\nthe petitioners before us are whether they are entitled
\nto be regularized as members of the Home Guards,
\nand whether their services can be terminated without
\nfollowing the procedure laid down by Rule 8 of the
\nRules.\n<\/p>\n
 In so far as the first question is concerned,
\nthe genesis, history and concept of the Home Guards
\nclearly shows that it is not an “employment” or a
\n“source of employment”. It is a volunteer body
\nwhere citizens voluntarily offer their services for the
\nbenefit of society. There are no hard and fast rules
\nfor recruitment or the nature of duties and functions
\nthat are to be performed by a member of the Home
\nGuards. It is also not as if a member of the Home
\nGuards cannot have employment elsewhere. A
\nmember of the Home Guards can be a professional
\nor a government servant or a person carrying on any
\ntrade or occupation, industrial worker, university
\nstudent, etc., it can be anyone who can give some
\nspare time for the benefit of the community. In fact,
\nof the applicants who were before the Tribunal,
\nadmittedly some of them were employed in the
\ngovernment and some in the private sector. This
\nbeing the position, there cannot be any question of
\nregularizing any person as a volunteer or for
\ncarrying on any voluntary activity. A contrary view
\nwill destroy the very ethos and character of the
\nHome Guards.”\n<\/p>\n
 19. Referring to the decision of the apex court in SLP (Civil) No.
\n12465\/90 in the case of  Rameshwar Dass Sharma and Ors.   v. State of Punjab and
\nOrs., it was held:\n<\/p>\n
  “In this view of the matter, we have no doubt
\nin our minds that the petitioners are not entitled to be
\nregularized as members of the Home Guards. In
\nfact, such a concept does not exist except in the case
\nof personnel involved in training, command or
\ncontrol.”\n<\/p>\n
20. As regards termination of their services, it was held that Rule 8 of
\nthe Rules can be invoked. Having held so, the Division Bench observed:\n<\/p>\n
 “What does, however, disturb us a little bit is
\nthe fact that many of the Petitioners have been
\nrendering services as Home Guards for several
\nyears, in some cases for almost about twenty years.
\nIt does appear a little unfair to them to be suddenly
\ntold that when their existing tenure comes to an end,
\nthey will not be re-enrolled. In such a situation, it
\nwill be extremely difficult for them to look for a job
\nin the open market.\n<\/p>\n
 The saving grace, however, is that the
\nGovernment does give weightage to a member of the
\nHome Guards for appointment to a Group ‘C’ or a
\nGroup ‘D’ post with the Government. Moreover,
\npara 1.23 on page 15 of the booklet says that
\nRespondent No. 1 has requested State Governments
\n“to provide assistance to unemployed Home Guards
\nin seeking gainful employment on the completion of
\ntheir term of employment”. We hope the
\nRespondents are aware of both these
\nresponsibilities.”\n<\/p>\n
 21. The ratio of the said decision, therefore, run contrary to the
\nsubmissions made by the learned counsel for the petitioners. The observations
\nmade by the Division Bench do not constitute the ratio of the decision. The fact
\nremains that in a similar situation, a Division Bench of this court has held that
\ntermination of service of the Home Guards in terms of Rule 8 would be valid and
\nthey cannot be directed to be regularized.\n<\/p>\n
 22. The decisions of the apex court cited above have been rendered
\nunder the Industrial Disputes Act and they cannot be said to have any application
\nin the facts and circumstances of the instant case.\n<\/p>\n
 23. It is true that in  Sher Singh, Malhan v. State of Madhya Pradesh,
\nAIR 1955 Nagpur 175, a Division Bench of the Nagpur High Court has held that
\nthe members of the Home Guards appointed under the Central Provinces of the
\nBerar Home Guards Act, 1947 would be holding civil posts under the State.
\nUnfortunately, therein the provisions of the Act and in particular the provisions of
\nSection 2 had not been correctly interpreted. Therein the learned Judge of the
\nNagpur High Court failed to take into consideration that the character of service is
\na voluntary one which is volunteered by the members of the force for the safety
\nand security of the nation. With utmost respect we are not in a position to
\npersuades ourselves to subscribe to the views that Home Guards are holders of
\ncivil posts.\n<\/p>\n
 24. Keeping in view the afore-mentioned Division Bench decision of
\nthis court, we are of the opinion that no case has been made out for interference
\nwith the impugned judgment. There is thus no merit and the writ petition is
\naccordingly dismissed. In the facts and circumstances of this case, however, there
\nshall be no orders as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Chander Bhushan Rai And Ors., Dev … vs Govt. Of Nct Of Delhi And Anr. on 21 February, 2002 Equivalent citations: 2002 (6) SLJ 614 Delhi Author: S Sinha Bench: S Sinha, A Sikri JUDGMENT S.B. Sinha, C.J. 1. Whether the home guards appointed under the Bombay Home Guards Act are holders […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-238033","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nChander Bhushan Rai And Ors., Dev ... vs Govt. 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