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Wednesday, March 11, 2015

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 of 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.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                   CIVIL APPEAL NO.   2759         OF 2015
                    (Arising out of SLP(C) No.12858 2009)


GRAH RAKSHAK, HOME GUARDS WEL.ASSO.          APPELLANT(S)


                                   VERSUS

STATE OF H.P. & ORS.                         RESPONDENT(S)

WITH

C.A. No.   2760     of 2015 (@SLP(C) No. 16499/2013)

C.A. No.   2761     of 2015 (@SLP(C) No. 17050/2013)

C.A. Nos.  2762-2764     of 2015 (@SLP(C) No. 17639-17641/2013)

C.A. No.   2765     of 2015 (@SLP(C) No. 18161/2013)

C.A. No.   2766     of 2015 (@SLP(C) No. 18803/2013)

C.A. No.   2767     of 2015 (@SLP(C) No. 19031/2013)

C.A. No.   2768     of 2015 (@SLP(C) No. 19065/2013)

C.A. No.   2769     of 2015 (@SLP(C) No. 19096/2013)

C.A. No.   2770     of 2015 (@SLP(C) No. 19319/2013)

C.A. Nos.  2771-2772   of 2015 (@SLP(C) No. 19454-19455/2013)

C.A. No.   2773     of 2015 (@SLP(C) No. 19499/2013)

C.A. Nos.  2774-2775   of 2015 (@SLP(C) No. 19509-19510/2013)

C.A. No.   2776     of 2015 (@SLP(C) No. 19537/2013)

C.A. Nos.  2777-2780     of 2015 (@SLP(C) No. 19844-19847/2013)

C.A. No.   2781     of 2015 (@SLP(C) No. 20021/2013)

C.A. Nos.  2782-2783     of 2015 (@SLP(C) No. 20502-20503/2013)

C.A. No. 2784       of 2015 (@SLP(C) No. 20898/2013)

C.A. No. 2785       of 2015 (@SLP(C) No. 20900/2013)

C.A. No. 2786       of 2015 (@SLP(C) No. 20904/2013)

C.A. No. 2787       of 2015 (@SLP(C) No. 21031/2013)

C.A. No. 2788       of 2015 (@SLP(C) No. 21032/2013)

C.A. No. 2789       of 2015 (@SLP(C) No. 21033/2013)

C.A. No. 2790       of 2015 (@SLP(C) No. 22519/2013)

C.A. No. 2791       of 2015 (@SLP(C) No. 22678/2013)

C.A. Nos.2792-2793   of 2015 (@SLP(C) No. 24300-24301/2013)

C.A. No.  2794      of 2015 (@SLP(C) No. 25848/2013)

C.A. No.  2796      of 2015 (@SLP(C) No. 26450/2013)

C.A. No.  2797      of 2015 (@SLP(C) No. 30873/2013)

C.A. No.  2798      of 2015 (@SLP(C) No. 31132/2013)

C.A. No.  2799      of 2015 (@SLP(C) No. 34646/2013)

C.A. No.  2800      of 2015 (@SLP(C) No. 39346/2013)



                               J U D G M E N T


SUDHANSU JYOTI MUKHOPADHAYA,J


Delay  condoned.  Applications  for  deletion   of   proforma   respondents,
substitution and permission to file SLP are allowed. Leave granted.
2.    As these appeals involve a common question  of  law,  they  have  been
heard together and are being disposed of by this  common judgment.



3.    The appellants herein are individuals who are Home  Guards  of  States
of Himachal Pradesh, Punjab and  National  Capital  of  Territory  of  Delhi
('N.C.T of Delhi' for short). They and their Association moved  before  High
Courts in their respective States seeking regularization of  their  services
by filing writ petitions. The  judgments  and  orders  impugned  herein  are
those passed by the High Courts in such  writ  petitions.  By  the  impugned
judgments and orders, the High Courts dismissed the writ petitions filed  by
the appellants.

4.    The questions involved in these appeals are  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.

5.    The learned counsel for the appellants have taken the  plea  that  the
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. They have neither been granted  regular  pay  scale,  nor
have their services regularized.

6.    Per  contra,  according  to  learned  counsels  for  the  States,  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.

7.    For determination of  the  issues,  it  is  necessary  to  notice  the
'Genesis' of Home Guards Organization and relevant provisions  of  Acts  and
Rules framed by different States with regard to Home Guards Organization.

8.    Genesis

      In  the  Compendium  of  Instructions  of  Home  Guards  published  by
Directorate General Civil Defence, Ministry of Home Affairs,  Government  of
India, New Delhi, the Genesis of Home Guard Organization is shown as below:

      "1.1. Genesis

      During World War-II, 'Home Guards'- a voluntary  citizen  organization
for local defence was raised in  the  United  Kingdom.   In  India,  in  6th
December 1946, Home Guards were raised in Bombay to  assist  the  police  in
controlling Civil  disturbances  and  communal  riots.   Subsequently,  this
concept of a voluntary citizen's  force  as  auxiliary  to  the  Police  for
maintenance of law and  order  and  for  meeting  emergencies  like  floods,
fires, famines etc. was adopted by several  other  States  such  as  Paranti
Raksha Dal, West Bengal Village block and  Civic  Guards.  In  the  wake  of
Chinese Aggression  in  1962,  the  Centre  advised  the  States  and  Union
Territories to merge their existing voluntary organizations into one  all  -
India force known as 'Home Guards' which would be voluntary both in  concept
and character.

      1.2.  Role

      The following revised roles are assigned to  the  Home  Guards.  These
instructions have been reiterated from time to time:

      (a) Serve as an auxiliary to the  police  and  assist  in  maintaining
internal security.

      (b)   Assist the community in any kind of emergency  an  air  raid,  a
fire, a flood, an epidemic and so on.

      (c)   Organise functional units to provide essential services such  as
motor transport, pioneer and engineer groups,  fire  brigades,  nursing  and
first-aid, operation of water and power supply in installations etc.

       (d)    Promote  communal  harmony  and   give   assistance   to   the
administration in protecting weaker sections of the Society.

      (e)   Participate in socio-economic and  welfare  activities  such  as
adult education, health and hygiene,  development  schemes  and  such  other
tasks as are deemed useful."



9.    Himachal Pradesh - Home Guards

      Prior to reorganization of the State  of  Himachal  Pradesh  i.e.  1st
November, 1966, the Bombay Home Guards Act, 1947 was in force in some  parts
of the State.  In other areas, the East Punjab  Volunteer  Corps  Act,  1947
was in force. The East Punjab Voluntary Corps  Act,  1947  which  came  into
effect 8th December, 1947 makes it clear that the said Act  was  enacted  to
provide for constitution of volunteer corps for the whole State  of  Punjab.
The Bombay Home Guards Act, 1947 also makes it clear that the said  Act  was
enacted to provide voluntary organization for use  in  emergencies  and  for
other purposes in the State of Bombay.

The Bombay Home Guards Act, 1947 and East Punjab Volunteer Corps  Act,  1947
to the extend they were applicable  in  the  State  were  repealed  by  "the
Himachal Pradesh Home Guards Act, 1968" extending it to the whole  State  of
Himachal Pradesh. Section  4  relates  to  constitution  of  volunteer  body
called the Home Guards and reads as follows:-


"4. (1) The Government shall, by notification, constitute for the  State  of
Himachal Pradesh 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, the public safety  and  the
maintenance of the  essential  services  as  may  be  assigned  to  them  in
accordance with the provisions of this Act and the rules made thereunder:


Provided that the Government  may,  by  notification,  divide  the State  of
Himachal Pradesh into two or more areas and appoint a  Commandant  for  each
such area.


(2) The Administration and command of the Home Guards constituted under sub-
section (1) for any area shall, under the overall  command  and  control  of
the Commandant General, be vested in the Commandant who shall  be  appointed
by the Government:


Provided that the Commandant  may,  with  the  approval  of  the  Commandant
General, delegate such administrative and disciplinary functions as  may  be
necessary for the efficient functioning of the organization, to any  officer
subordinate to him.


(3) The general supervision  and  control  of  the  Home  Guards  throughout
Himachal Pradesh shall  vest  in  the  Commandant  General  which  shall  be
appointed by the Government.


(4) Until a Commandant is appointed in an area  under  sub-section  (1)  the
Commandant General may also exercise the powers and  perform  the  functions
assigned to the Commandant by or under this Act."



Section 5(1) deals with appointment of members of the Home Guards and  reads
as follows:-

"5.(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
Government, and may appoint any such member to any office of command in  the
Home Guards under him."



From Section 5(1) we find that only persons  who  are  fit  and  willing  to
serve are eligible to be appointed as Home Guards. As  per  Section  5(4)  a
member  of  the  Home  Guards  are  required  to  serve  the   Home   Guards
organization for a period of three years which may be extended  for  further
period.

10.   Himachal Pradesh Home Guards Rules, 1971

In exercise of the powers conferred by section 14 of  the  Himachal  Pradesh
Home Guard Act, 1968, the Himachal  Pradesh  Home  Guards  Rules,  1971  was
enacted.  Rule 2(4) defines  "Home  Guards  Organization"  as  the  Himachal
Pradesh  Home  Guards  constituted  under  Section  4(1)  of  the  Act  i.e.
Volunteer body. Section  2(5)  and  Section  2(6)  define  "Member  of  Home
Guards" and "Honorary Home Guards" respectively as under:

"2.(5) "Member of Home Guards" means  a member appointed under section  5(1)
of the Act, whether a part-time or a whole time volunteer or a rank holder.

(6) "Honorary Home Guards" means a Home Guards volunteer  called  under  the
Act."


      The age limit prescribed under Rule 3(a) is between 18  years  and  50
years.  Rule 6 stipulates Home Guards constituted under Section 4 will be  a
Battalion, comprising of a group of companies under the command and  control
of a Commandant. Rule 6(i)(b)stipulates that unless otherwise sanctioned  by
the State Government, the officers of the  Company  will  be  Honorary  Rank
holders and the Company can have only such additional paid staff as  may  be
sanctioned by the State Government.  The relevant portion  of  Rule  6(i)(b)
reads as under:
      "6.(i)    The Home Guards constituted under  Section  4  of  the  Act,
will be a Battalion, comprising of a group of Companies  under  the  command
and control of a  Commandant  who  shall  be  assisted  by  such  executive,
instructional  and  clerical  paid  staff  as  may  be  senctioned  by   the
Government:-
(a)   *     *    *     *

(b) The overall strength of  a  company  shall  be  110.   Unless  otherwise
sanctioned by the State Government, the officers  of  the  Company  will  be
Honorary Rank holders.  The Company can have such additional paid  staff  as
may be sanctioned by the State Government from time to time.

(ii)  The honorary officers of the Company shall be paid such  honoraria and
allowances as laid-down in the succeeding paragraphs of these rules.

(iii) The Commandant General will have powers to create the required  number
of the honorary posts.

(iv) The Commandant General or any authority prescribed by  him  shall  have
powers to appoint any member of the Home Guards to post referred to in

(iii) above under his command."

Rule 13 makes it clear that the Home Guards rendering service as  volunteers
are entitled to such allowances  and  honoraria  as  specified  therein  and
reads as follows:
"13.Conditions of service- (i) The Home  Guards  shall  be  liable to  serve
anywhere within Himachal Pradesh.  Those who volunteer  for  duties  outside
Himachal Pradesh may be drafted for the purpose  as and when required.

(ii) The Home Guards employed for whole time duty, other than  the  Honorary
Home  Guards,  will  receive  pay  and  allowances   equivalent   to   their
counterparts in the Police Department of equal  rank.   The  equivalency  of
rank is given in Appendix 'B'.

(iii)The Honorary Home Guards shall be voluntary workers  entitled  to  such
allowances and  honoraria  as  specified  hereunder.   They  shall  also  be
provided  free  accommodation  wherever  available  when  called  for  duty.
         


Notwithstanding anything contained in Himachal Pradesh  Home  Guards  Rules,
1962, if any, free accommodation was provided to  them  before  coming  into
force of these Rules, no recovery will be made from them on this account.

(a)  Duty allowance: All honorary officers and members of Home Guards  shall
be paid a duty allowance of Rs. 3/- per  day  when   called  under  Section
 8(1) of the Home Guards Act-for Operational duty for six hours or more.

(b)  Camp allowance: If the place of duty is more than  8  K.m.  beyond  the
Company or Independent  Platoon  headquarter  as  fixed  by  the  Commandant
General,  a sum of  Rs. 1/- per day will be given in addition  to  the  duty
allowances to the honorary Officers and members of the Home Guards.

(c)  Out of Pocket  allowance:- When  honorary  Officers  and  men  of  Home
Guards are called for training or duty for less than six hours,  they  shall
be paid an out of pocket allowance of Rs. 1/- per day instead  of  the  duty
allowance of Rs. 3/-.

(d) Traveling allowance: (i) Honorary Officers and the members of  the  Home
Guards shall be entitled to traveling and duty allowances on the  scales  as
may be sanctioned by the State Government from time to time.

(e) Any Other allowance as may be sanctioned by the Government from time  to
time.

(f) Honoraria: The Honorary Home Guards Officers will be given an  honoraria
for performing short-time instructional and  administrative  duties  at  the
following rates per mensem provided they  perform  such  duties  during  the
month.      

         |Rs.40      |
         |Rs.30      |
                                       |
              |
|Major Quarter Master Havildars|Rs.15      |
|Clerk and Platoon Havildar    |           |
                             |           |
|4. Section Leader             |Rs.10      |



-
(g) All members of the reserve force when called out under Section 8 of  the
Act will be treated as Home Guards on duty and all  provisions  of  the  Act
and these rules will apply to them.

(iv) No prosecution shall be instituted against  any Home Guard  in  respect
of any thing done or purporting to be done by him in the  discharge  of  his
duties as a Home  Guard  except   with  the  prior  sanction  of  the  State
Government or such other Officer as empowered by the  State  Government   in
this behalf."

There are other benefits which are granted under Rule 15.  In  case  if  any
member of the Home Guards suffers any injury while  undergoing  training  or
on duty, he is entitled to disability allowance  or  compensation  depending
upon the nature of injury. In case of death of Home Guard, as  a  result  of
injuries sustained  while  on  duty  or  on  training,  family  pension  and
children allowances are also payable. Relevant portion of Rule 15  reads  as
under:

"15. If any member of the Home Guards suffer any damage  to  his  person  or
property while undergoing training or on duty, and he does not cause  it  by
his own negligence or willful act or omission of  the   provisions  of  this
Act and Rules or directions issued by superior Officer,  he  shall  be  paid
compensation in  the  form  of  temporary  allowance,   disability  pension,
family pension and children allowances as the case may be, on the  following
terms and conditions:-
Temporary Allowance- If any Home Guards is  incapacitated  for  work  for  a
period of 3 days or more he shall be  paid  temporary  disability  allowance
for the period of disablement at the rate of Rs. 30 per  month  payable   at
half monthly intervals  as Rs. 15.
Where an injury sustained by a Home Guard causes him serious  and  prolonged
or permanent disablement, he shall be  awarded  compensation  at  the  rates
mentioned below;  The amount depending on the percentage of disablement:-


    Provided  that  where  the  disablement  is  not  more  than   50%   and
the injured Home Guard is not debarred from the  means  of  his  livelihood,
the  amount  of  disablement  pension  shall  be  substituted  by   a   lump
sum payment calculated at 70 times of the monthly payments specified in  the
foregoing schedule.
(iii) In case of death of a Home Guard, as a result  of  injuries  sustained
while on duty or training, a family pension and  children  allowances  shall
be payable in accordance with the following:-
(a) A family pension of Rs.20 per month to his legally wedded  wife  and  in
case the incumbent may have more than one legally  wedded  wife,  then  this
rate of provision of Rs.20 will be distributed equally and an  allowance  of
Rs.5 per month to each of his legitimate child in case no family pension  is
being paid each child will get an allowance of Rs.7.50 per month:
(i)  x      x    x
(ii) x      x    x
(b)  For calculating the amount of injury, the  opinion  of  the  authorized
Medical Officer shall be legal and final. The  authorized  Medical  Officer,
in this case means any Civil Doctor in the service  of  the  Government  not
below the rank of Class-I."

11.   Himachal Pradesh Home Guards (Amendment) Act, 2002

      Himachal Pradesh Home Guards Act, 1968 was  amended  by  the  Himachal
Pradesh Home Guard (Amendment) Act, 2002.  In  Section  4  of  the  Himachal
Pradesh Home Guards Act, 1968 in place  of  the  word  'members',  the  word
'volunteers' was substituted and in Section 5 for the words "appointment  of
members" the words "enrollment of volunteers" were  substituted.   Similarly
for  the  words  "appoint"  and  "appointment"  the   words   "enroll"   and
"enrollment" were substituted respectively.  Even if we  do  not  take  into
consideration the Amendment Act, 2002, from  the  aforesaid  background  the
following fact emerges:
In India on 6th December, 1956 Home  Guards  were  raised  in  Bombay  as  a
volunteer organization by the Bombay Home Guards  Act,  1947  to  provide  a
volunteer  organization  for  use  in  emergencies.  The  Bombay   Act   was
applicable in the part of the State of Himachal Pradesh.
The East Punjab Corps Act, 1947 came into force since 8th December, 1947  to
provide for constitution of volunteer corps. This Act was applicable in  the
remaining part of the Himachal Pradesh.
The Bombay Home Guards Act, 1947 and East Punjab  Corps  Act,  1947  to  the
extend they were applicable in the State of Himachal Pradesh  were  repealed
by Himachal Pradesh Home Guards Act, 1968.
Under Section 4(1) of Himachal Pradesh Home Guards  Act,  1968  a  volunteer
body was constituted 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, the public safety and the maintenance  of
essential services as may be assigned to them.
Rule 2 of Himachal Pradesh Home Guard Rules, 1971 deals with Member of  Home
Guards and Honorary Home Guards.
Rule 6(ii) of the said Rules deals with honorary  officers  of  the  Company
were to be paid honoraria and allowances.
Rule 13 of the said Rules stipulates that the volunteers duties outside  the
State are entitled for certain allowances mentioned therein.
Thus we find that the Home Guard in Himachal Pradesh  is  a  volunteer  body
and its members  are  volunteers  entitled  for  allowances,  they  are  not
entitled to any salary.

12.   State of Punjab - Home Guards:

      The East Punjab Volunteers Corps. Act, 1947 was enacted and  published
in the East Punjab Gazette,  Extra-ordinary  on  8th  December,  1947  (East
Punjab Act No.VIII of 1947) to provide for the  constitution  of  volunteers
Corps. It was amended vide Punjab Act 42 of 1960 and was titled  as  "Punjab
Home Guards) Act,  1947.  Under  Section  9  of  the  said  Act,  the  State
Government is empowered to frame rules, which reads as follows:

"9.The State Government may make rules consistent with this act.

Providing for the exercise of control by officers of the Police  force  over
members of the Punjab (Home Guards), when acting  directly  in  aid  of  the
Police force.

Regulating the organization, appointment,  conditions  of  service,  duties,
discipline, arms, accoutrement and  clothing  of  members  of  Punjab  (Home
Guards) and the manner in which they may be called out for service;

Conferring of member of Punjab (Home Guards) according to their  office  any
power, other than magisterial or judicial power exercisable  by  any  person
under any law for the time being in force; and

Generally for giving effect to the provision of this Act."

The Punjab Home Guard Rules, 1963
In exercise of the power conferred by Section 9 of the  Punjab  Home  Guards
Act, 1947, the Punjab Home Guards Rules, 1963 was  enacted  by  notification
dated 4th September, 1963. Under Rule 2(c) of the said Rules the  designated
post of officers notified as  Gazetted  by  Government  has  been  shown  as
follows:
"2. Definitions.-In these rules, unless the context otherwise requires,-
(c) 'Gazetted Officer' means an officer of the status  specified  in  column
(1) below in the case of Home Guards Unit I and in column (2)  in  the  case
of Home Guards Unit II, and includes an officer of the  status  notified  as
Gazetted by the Government:-










Rule 2(h) deals with Member of Home Guards including NCO  and  Non  Gazetted
Officer as follows:
"(h) 'member' means a person appointed as member of the  Home  Guards  under
section 3 of the Act;

(i) 'N.C.Os' means Non Commissioned  Officers  from  Sub-Section  Leader  to
Havildar;

(j) 'Non Gazetted Officer' means an  officer  of  the  status  specified  in
column (1) below in the case of Home Guards Unit I and in column (2) in  the
case of Home Guards Unit II and includes an officer of the  status  declared
as non-gazetted by an order of the Government:-










No fixed strength of Unit of Home Guards has  been  given  therein  and  the
same has to be fixed by the Government from time  to  time.  Rule  10  deals
with preference to ex-soldiers and ex-policemen while enlisting members.  We
find that even an employee of the State Government  can  be  member  of  the
Home Guard under Rule 11. Rule 10 and Rule 11 read as follows:

"10.  Preference  to  ex-soldiers  and  ex-policemen.  [Section  9(b)]-   In
enlisting members preference shall be  given  to  trained  ex-soldiers,  ex-
I.N.A. personnel, ex-policemen and National Cadet Corps trained personnel.

11. Employee Members.[Section 9(b)]-  Such  Government  employees  or  other
employees as could be made available by their respective  employers  in  the
case of emergency may be enrolled as supernumerary or regular  members  with
the permission of  the  Head  of  the  Office  in  the  case  of  Government
employees and the employer in the case of other employees."



Under Rule 14, Pay and allowance if any admissible to the members  including
gazetted and non-gazetted Officers shall be  determined  by  the  Government
from time to time. Rule 6 directs that the declaration of Enrolment  has  to
be given by a member. The form of declaration is given in Appendix  A  which
is as follows:
                                APPENDIX 'A'
                                (See rule  6)
                             (a) Enrolment Form
1. Name:
2. Father's Name:
3. Home Address:
a) Village
b) Post Office
c) Police Station
d) Railway Station
e) District
4. Age:
5. Profession:
6. Academic qualifications:
7. Present occupation and where employed with complete address;
8. Whether convicted by any criminal court?
9. Are you willing to be enrolled in the Home Guards Unit I or  Home  Guards
Unit II?
10. Are you prepared to serve when called for duty in case of emergency?
11. Have you ever served in I.A., I.N.A., I.T.F. Police, etc
12. Are you a member of the Army reserve force?
13. What is your hobby?
14. Any other information you would like to give.

 (b)Declaration of Acceptance for Enrolment

I, _____________________________________, solemnly declare that the  answers
I have given to the questions in this form are true  and  I  am  willing  to
fulfill the engagements made.

                                                                   Signature

Certified that the applicant understands and agrees  to  the  conditions  of
enrolment.

                                            (Signature of Enrolling Officer)

                           (c) Form of Declaration

I,________,son of________,resident of__________, do herby solemnly  declare,
and affirm that as a member of the  Punjab  Home  Guards  to  which  I  have
volunteered after dully understanding the responsibilities and duties  which
its membership imposes upon me, I will honestly and faithfully discharge  my
duty without fear or favour irrespective of caste and creed.

                                                                   Signature
                                           Address__________________________

Enrolment _______ as___________is approved.


                                         (Signature of  Enrollment Officer)"


In exercise of the power conferred by Section 9 of the  Punjab  Home  Guards
Act, 1947 "the Punjab Home Guards  and  Civil  Defence  (Class  II)  Service
Rules, 1988" "The Punjab Home Guard and  Civil  Defence  (Class  I)  Service
Rules, 1988" were framed. Though the aforesaid rules are not  applicable  to
the present cases it is necessary  to  notice  the  difference  between  the
Punjab Home Guard Rules, 1963 and 1988 Rules.
      In Appendix 'A' of Class II Service Rules, the  total  strength  posts
both permanent and temporary and the Regular  scale  of  pay  to  which  the
officers are entitled have also been shown therein.  Similarly, an  Appendix
to Class I Service Rules also total no. of  permanent  and  temporary  posts
has been shown along with the scale of pay. No such  strength  of  post  and
scale of pay have been shown for members of Home Guards who were  guided  by
the Punjab Home Guard Rules, 1963.
      From the Punjab Home Guards Act,1947 we find that  the  Act  has  been
enacted to provide for the constitution of volunteers  Corps  and  therefore
we hold that the members of the Home Guards of Punjab under the Punjab  Home
Guards Rules are volunteers and are not regular employees of the State.

13.   N.C.T. of Delhi - Home Guards:

      The Bombay Home Guards Act, 1947 was enacted to  provide  a  volunteer
organization for use in emergencies and for other purposes in the  State  of
Bombay.  It was extended to the Union Territory of Delhi.  Relevant  portion
of Bombay Home Guards Act, 1947 as extended to the Union Territory of  Delhi
reads as follows:

"The Bombay Home Guards Act, 1947 (Bombay Act No.III of 1947)As Extended  to
the Union Territory of Delhi Bombay Act No.III of 1947.

(The Bombay Home Guards Act, 1947)
An Act to provide for the constitution of Home Guards

Whereas it is expedient to provide  a  volunteer  organization  for  use  in
emergencies and for the purposes in  the  State  of  Bombay.  It  is  hereby
enacted as follows:-

1. Short title, extent and commencement-

(1) This Act may be called the Bombay Home Guards Act, 1947.


(2) It extends to the whole of the Union Territory of Delhi.


(3) It shall come into force at once.


2. Constitution of Home Guards 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 provisions of this  Act  and  the
rules made thereunder.


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."





      Section 3 of the said Act deals with appointment of  members  of  Home
Guards. Under Section 8 the Chief Commissioner  of  Delhi  is  empowered  to
make rules consistent with the Act regarding the organization,  appointment,
conditions of service, etc. of members of Home Guards.


      Delhi Home Guards Rules, 1959

      In exercise of the powers conferred by Section 8 of  the  Bombay  Home
Guards Act, 1947, as extended to the Union Territory  of  Delhi,  the  Chief
Commissioner of Delhi made Delhi Home Guard Rules, 1959.  Minimum age of  20
years and maximum age of 60 years has  been  prescribed  therein  for  being
members of Home Guards. Rule 8 prescribes term of office which  is  3  years
and Rule 9 defines limit of age for a member of the Home  Guards.  The  said
Rules read 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.


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  sixty
years.


Provided that the Commandant General or the Commandant  may  relax  the  age
limit in suitable cases."


A member of the Home  Guards  who  suffers  any  damage  to  his  person  or
property while under training or on duty  is  not  entitled  for  any  other
benefits except compensation under Rule 18, which reads as follows:
"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:
The Home Guard is a volunteer organization for use in emergency and for  the
purpose of State
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.
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. Being dissatisfied 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--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 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 [pic]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
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  so-called  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  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  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
[pic]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 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 of 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.



..............................................................................
                                                                       ...J.
                                        (SUDHANSU JYOTI MUKHOPADHAYA)

..............................................................................
                                                                       ...J.
                                   (N.V. RAMANA)
NEW DELHI,
MARCH 11, 2015.
-----------------------
|Percentage of     |Disability pension  |
|Disablement.      |Per mensem          |
|100               |Rs. 30/-            |
|90                |Rs. 27/-            |
|80                |Rs. 24/-            |
|70                |Rs. 21/-            |
|60                |Rs. 18/-            |
|50                |Rs. 15/-            |
|20 to 40          |Rs. 12/-            |
|10                |Rs. 10/-            |




|Column (1)               |Column (2)                   |
|(i) Commandant General   |(i) Gram Raksha Dal Chief.   |
|(ii) Deputy Commandant   |(ii) Chief Organizer, Gram   |
|General                  |Raksha Dal.                  |
|(iii) Commandant.        |(iii) Director, Training,    |
|                         |Gram Raksha Dal.             |
|(iv) Regional Commandant.|(iv) Senior Staff Officer.   |
|(v) Battalion Commander. |(v) Zonal Organizer.         |
|(vi)                     | (Vi) District Organizer.    |
|Battalion-Second-in-Comma|                             |
|nd.                      |                             |
|(vii) District Commandant|                             |




|Column (1)               |Column (2)                   |
|(i) Commandant Commandar |(i)  Company Commander       |
|(ii)Company-Second-in-Com|(ii)                         |
|mand                     |Company-Second-in-Command    |
|(iii) Platoon Commander. |(iii) Supervisor             |
|                         |(iv) Instructor              |
|                         |(v) Platoon Commander        |





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