“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 in contravention of any of the provisions of the Act or rules made thereunder or orders or directions issued by his superior officers.”
From the Bombay Home Guards Act, 1947 as extended to the Union Territory of Delhi, the following fact emerges: (i) The Home Guard is a volunteer organization for use in emergency and for the purpose of State (ii) Chief Commissioner of Delhi by notification can divide the Union Territory of Delhi into two or more areas and constitute a volunteer body for each such area.
(iii) The term of office of Home Guards is three years and maximum age limit of appointment is upto the age of sixty years.
Therefore, we find that the Home Guards of N.C.T. of Delhi are volunteers and are not in any service of the State.
14.Learned counsel for the parties relied upon certain decisions of this Court, as referred below: (i) The case of State of W.B. and Others v. Pantha Chatterjee and others, (2003) 6 SCC 469 was related to part time Border Wing Home Guards recruited for patrolling the border and checking infiltration. Initially they were appointed as volunteers for three months but were retained for 14 long years. Beingdissatisfied with the pitiable conditions of service under which they had been working and the nominal emoluments paid to them, they preferred writ petitions before the Calcutta High Court complaining that they were being discriminated vis-à-vis other regular Border Wing Home Guards of West Bengal and the Border Security Force Personnel, as they were performing similar duties and discharging same responsibilities. The learned Single Judge on considering the material on the record, came to the conclusion that there is a relationship of master and servant between the Border Wing Home Guards and the State of West Bengal, who is their appointing authority. The learned Single Judge held that so far as the nature of the employment is concerned i.e. whether casual or voluntary, in view of memo dated 11th October, 1985 issued by the Government of West Bengal the writ petitioners could not be treated as volunteers engaged in casual nature of work so as to be termed as part-time staff of the Government of West Bengal. They were also held to be holders of civil posts under Article 311 of the Constitution. Referring certain case laws with regard to daily wage casual workers, the Single Judge further held that they are entitled for “equal pay for equal work” i.e. the same benefits as admissible to the permanent Border Wing Home Guards. In an appeal filed by the State against the aforesaid decision of the Single Judge, this Court upheld the same. This Court held:
“16. In the present case, we have seen that there has
not been any dispute about the nature of duties of the two sets of BWHG. Ordinarily, no doubt, they JUDGMENT could claim benefits only in accordance with the Scheme under which they were engaged. But as held earlier, the Scheme was not implemented in its terms as framed. Hence, the distinction sought to be drawn between the part-time and the permanent BWHG had obliterated and both worked together shoulder to shoulder under similar situations and circumstances and discharged same duties. Once the Scheme as framed failed to be implemented as such by those at the helm of the affairs and the part-time BWHG were continued under the authority of those vested with such power to continue them, it is not open to the State Government or the Central Government to deny them the same benefits as admissible to members of the permanent staff of BWHG. The decisions reported in Karnataka State Private College Stop-gap Lecturers Assn. v. State of Karnataka9 and Govt. of India v. Court Liquidator’s Employees Assn.10 may also be beneficially referred to.
17.On the basis of the Scheme, as promulgated by the Government of India, the State Government with the sanction of the Governor of West Bengal raised the battalion of Border Wing Home Guards, as indicated earlier and they were to be paid from a given head of expenditure of the State Government. The Scheme, however, makes it clear that the expenditure incurred would be reimbursed by the Central Government. The Central Government should not and cannot get out of this undertaking. It is no doubt true that the State of West Bengal being in the position of an employer of the respondent petitioners, owes the primary responsibility of making all the payments on account of salary, allowances and other perquisites to them as admissible to the permanent staff of the Border Wing Home Guards but this burden of expenditure must be ultimately borne by the Central Government. The petitioners have been guarding the borders of the country assisting BSF in checking the infiltration from across the border. The petitioners have been working and discharging their duties under the control of the authorities of the Border Security Force. We also find that the Central Government cannot shed its responsibility by raising a lame plea that it was because of the State Government that voluntary character of the engagement of the writ petitioners, as per the Scheme, was lost. In our view, the primary responsibility for deployment for such a long duration squarely lies upon the Central Government. The deployment was envisaged to be for a period of 3 months, to be continued, only if JUDGMENT necessary as may be assessed by the authorities of the Border Security Force. The authority to continue the deployment beyond the period of 3 months was entrusted to the responsible authorities of the Border Security Force by the Central Government itself. There is no dispute that the writ petitioners were continued accordingly. In such a situation the State Government hardly had any choice in the matter to cease or withdraw the deployment engaged in the job of patrolling of borders under operational control of BSF.
18.In the circumstances indicated above, the High Court has rightly come to the conclusion that the socalled part-time Border Wing Home Guards could not be treated differently from the permanent staff of BWHG. They have been rightly accorded parity with them.”
15.Learned counsel appearing on behalf of the appellants had taken plea that the appellants have been working as Home Guards for period ranging from 10 to 30 years and therefore in view of the decision in State of W.B. and Others v. Pantha Chatterjee and others, (2003) 6 SCC 469 they are also entitled for regularization of their services.
However, such contention has been opposed by the learned counsel for the State(s). They relied upon another decision of this Court in State of Manipur and another v. Ksh. Moirangninthou Singh and others, (2007) 10 SCC 544. In the said case, the members of the Manipur Home Guards filed different writ petitions in the Gauhati High Court inter alia praying that their services be regularized in the Home Guards and that they be given regular pay scales. In the said case, the Court noticed that Home Guards have been constituted as a voluntary organization for service in emergencies. Their initial appointment was for three years after which it is at the discretion of the Commandant, subject to approval of the Commandant General to reappoint a member of the Home Guards. The Court further noticed that there was a age limit of 50 years. In the said case, the Court held:
“7. We are of the opinion that in view of the
Constitution Bench judgment of this Court in Secy., State of Karnataka v. Umadevi (3)1 this Court cannot direct regularisation in service. Since the court has no power to direct regularisation, it also follows that it has no power to direct grant of benefits payable to the regular employees.”
The Court further held:
“11. A perusal of the provisions of the Home Guards
Act and the Rules show that the Home Guards was meant to be a reserve force which was to be utilised in emergencies, but it was not a service like the police, paramilitary 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.”
16.In Union of India v. Parul Debnath, (2009) 14 SCC 173, the Court considered the Andaman and Nicobar Islands Home Guard Regulations, 1964. In terms of Regulation 16 of the said Regulations, the then Chief Commissioner (now Lieutenant Governor), Andaman and Nicobar Islands, framed “the Andaman and Nicobar Home Guard Rules, 1965” for providing a voluntary organization named as “Andaman and Nicobar Islands Home Guard Organization” for use in emergency and for other purposes in the Union Territory of Andaman and Nicobar Islands. The respondents JUDGMENT therein claimed to be continuously performing the duties of a regular nature. They moved before the Central Administrative Tribunal, Calcutta Bench, Circuit Bench at Port Blair seeking equal pay for equal work with regular Home Guards or for regularization of their service. The said original application was disposed of by the Tribunal by common order dated 16th September, 2002 inter alia, with a direction to the State authorities to consider the framing of an appropriate scheme. Writ petitions filed against the said order of Tribunal was disposed of by the learned Single Judge directing the appropriate authority to frame a scheme as directed by the Tribunal and while doing so to take into consideration the principles laid down in Pantha Chatterjee case. The scheme framed by the state authorities providing reservation of 20% of the vacant posts to accommodate the respondents in a phased manner, while setting apart 80% of the vacancies for other parties, was later challenged before learned Single Judge by filing a writ petition. The learned Single Judge dismissed the same and on appeal, Division Bench reversed the judgment of learned Single Judge and set aside the scheme framed. In an appeal challenging the said decision of the Division Bench, this Court upheld the same and held as follows:
“42. In our view, the Division Bench has very
correctly observed that the intention of the Tribunal and the courts was that the benefits to be given to the writ petitioners (the respondents herein) should be extended to all of them uniformly and without making any discrimination. The very fact that some of the respondents would be regularised, while the JUDGMENT others would have to wait till the next vacancies arose or the possibility that some of the candidates who were otherwise eligible, might not even be absorbed, was never the intention when the directions were given to frame a scheme for absorption of the respondents. In our view, such a course of action appears to have been adopted to negate the effect of the earlier orders so that the respondents as a whole were deprived of the benefit of absorption and the further benefit of “equal pay for equal work”, as was indicated in Pantha Chatterjee case1.
43.As a direct consequence of the disparity in the pay structure of the respondents, who were to be absorbed in stages, their post-retiral benefits would be affected and would not be uniform, which was also not intended when directions were given for framing of a scheme to absorb the said respondents.
44.Clause (h) of the scheme, which has been commented upon by the Division Bench of the High Court, denies to the respondents any other benefit other than those specified in the scheme, thereby creating a class within a class, which is not only contrary to Article 16 of the Constitution but is also contrary to the directions given by the High Court regarding absorption of the existing Home Guards. Even Clause (i) is arbitrary and discriminatory in nature as it contemplates a situation where some of the respondents who were otherwise eligible, may not at all be absorbed in the regular administration which would disentitle them to the benefits of the directions given by the Central Administrative Tribunal and the High Court.
45.On the question of creation of supernumerary posts, it may be indicated that while it is no doubt true that creation of posts is the prerogative of the executive, in order to meet certain special exigencies such a course of action has been resorted to by this Court and in our view this is one such case where such a direction does not need any intervention.”
17.In the cases before us though some of the Home Guards (Grah Rakshak) produced their appointment letters to show that they are serving as Platoon Havaldar for 10 to 28 years, we find that they have been enrolled and there is no appointment on regular basis. They have never been paid salary/wages and there is no provision JUDGMENT to make any payment of salary/wages other than the duty allowance and other allowances.
18.In the Form filled up by the Home Guards volunteers of each State, the Home Guards have specifically mentioned that they undertake to serve as a member of the Home Guards at any time and place in India if they are called out for training or duty. This is evident from Form I of Himachal Pradesh Home Guards Act, 1968 which shows that they are entitled for temporary allowance and in case of injury sustained or disability occurred during the duty they are entitled for disability pension.
19.Similar is the case of Bombay Home Guards, who have been appointed as volunteers Home Guards under the Act. They also have given declaration that they have volunteered as a member of the Home Guard.
20.The Home Guards of N.C.T. of Delhi also have been appointed to the organization which is volunteer body under the Act. Provision discussed above makes it clear that Chief Commissioner of Delhi only engage volunteers in the Home Guards. The Home Guards being volunteer body in the N.C.T. of Delhi, the appellants-Home Guards of Delhi cannot be claimed to be regular appointees.
21.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. 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.
22.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 for against the judgments passed by the Himachal Pradesh, Punjab and Delhi High Courts. However, taking into consideration the fact that Home Guards are used during the emergency and for other purposes and at the time of their duty they are empowered with the power of police personnel, we are of the view that the State Government should pay them the duty allowance at such rates, total of which 30 days (a month) comes to minimum of the pay to which the police personnel JUDGMENTof State are entitled. It is expected that the State Governments shall pass appropriate orders in terms of aforesaid observation on an early date preferably within three months.
23.The appeals are disposed of with the aforesaid observation. No costs.