HIGH COURT OF MADHYA PRADESH : AT JABALPUR Writ Petition No : 10000 of 2010 Home Guard Sainik Evam Parivar Kalyan Sangh and others - V/s - State of Madhya Pradesh and another. Writ Petition No : 8281 of 2011(S) Nasharam Parihar and Others - V/s - State of Madhya Pradesh and others Writ Petition No : 18526 of 2010(S) Rajendra Prasad Mishra and Others - V/s - State of Madhya Pradesh and others Present : Hon’ble Shri Justice Rajendra Menon. -------------------------------------------------------------------------------------- In W.P. No.10000/2010: Shri Mrigendra Singh, learned counsel for the petitioners. Shri R.D. Jain, learned Advocate General, with Shri P.K. Kaurav, Dy. Advocate General, for State. In W.P. No.8281/2011(S): Shri A.K. Jain, learned counsel for the petitioners. Shri R.D. Jain, learned Advocate General, with Shri P.K. Kaurav, Dy. Advocate General, for State. In W.P. No.18526/2010(S): Shri Gopal Singh and Shri V.P. Singh, learned counsel for the petitioners. Shri R.D. Jain, learned Advocate General, with Shri P.K. Kaurav, Dy. Advocate General, for State -------------------------------------------------------------------------------------- Whether approved for reporting: Yes / No. O R D E R 02/12/2011 As common questions of law and facts are involved in all these three petitions and other connected cases, which were heard together, are being decided by this common order. 2- For the sake of convenience, the documents and material available in the record of W.P.No.10000/2010 is being referred to in this order. 3- Petitioners in all these cases are either individual persons, working as Sainiks/Sepoys in the Home Guards’ Organization or are Association of Employees working in the same Organization in similar capacity. The relief claimed for in these writ petitions are, that the petitioners be declared as holders of “civil post” and treating them to be so, all consequential benefits be granted to them as is being granted to regular employees of the State Government, particularly in the Police Department. That apart, further direction sought for is to issue a ‘mandamus’ to the respondents directing them to frame rules and regulations governing conditions of service for the persons working in the Home Guards Organization, particularly with reference to pay scale, allowances, increments, pensionary benefits and other service conditions. Further prayer made is to grant the benefit of pay and allowances as is paid to other employees of the Police Department and treat the petitioners as regular employees in the department and finally it is claimed that after so regularizing and absorbing them in the regular establishment, the system of calling off duty, which is followed be done away with. 4- In the year 1947, the Madhya Pradesh Home Guards Act (hereinafter referred to as ‘Act of 1947’) was enacted. This Act was created to establish a body of volunteers to supplement the police force and to assist the regular police force in case of emergency and as a 2 general measure for public welfare in the State of Madhya Pradesh. Section 2(a) of the Act defines a Home Guard to be a person, who is appointed under section 6. Thereafter, various provisions are contained in this Act, which deal with appointment, duties and training, calling of Home Guards, the competent authorities and the protection available to them. A copy of the Act is filed as Annexure P/1, and it contains various procedure for regulating the activities of Home Guard. Even though there is no specific mention in the Act that the organization is a voluntary organization, but the State Government has come with a case that the Organization is a voluntary organization and, therefore, the persons engaged as Home Guard are volunteers. It is also seen from the records that after due selection in accordance to the provisions contained in the Act of 1947, the Home Guards appointed are designated as Naik, Lance Naik, Constable, Sepoys etc. The persons so employed are deployed to work mainly under the operational control of the MP Police, but the over all control is exercised by respondent No.2 – the Director General, Home Guards and Civil Defence with Headquarters at Jabalpur. 5- The duties of a Home Guard are those which are assigned to them in the Act of 1947 itself. Thereafter, a provision for calling of duty is contained. Section 10 of the Act of 1947, stipulates the duty of a Home Guard, the same reads as under: “10. Duties. Subject to any general or special order of the District Magistrate, the Nagar-sainiks ( Home Guards) called out under sub-rule (1) of rule 9 may be required to perform all or any of the following duties: (a) the prevention of commission of offences; (b) the protection of life and property; (c) collection and communication to the superior officer of information; (d) the regulation of traffic; (e) the suppression of disorder; (f) to report the currency of false rumours and check it; 3 (g) to control and regulation of fairs and large assemblies; (h) to assist the regular fire-fighting services in fighting fires resulting from rioting or sabotage; (i) to render first-aid and to help in the removal of casualties under escort to hospital; (j) to combat subversive activities; and, (k) generally to assist the police in discharge of their lawful duties; *[(l) to perform such duties as may, in the event of strike or general disorder, be assigned to a Nagar-Sainik (Home Guard) for the purposes of maintaining supplies and services which, in the opinion of the Provincial Government, are essential to the life of the community.] *Added vide Police Department Notification No.922- 946-IV dated 23rd January, 1949.” 6- It is the case of the petitioners, in all these cases, that the aforesaid duties being performed by the Home Guards are nothing but regular duties which are performed by the persons employed in the regular police establishment in the State of Madhya Pradesh and inspite of the fact that the Home Guards are performing all these duties, they are neither classified as “civil post” holders nor is the benefit of regular pay and other conditions of service applicable to an employee of the Police Department granted. It is the case of the petitioners that even though various statutory rules have been framed like the Madhya Pradesh Home Guards (Gazetted) Service Rules, 1973; the Madhya Pradesh Home Guards [Class III Ministerial] Service Recruitment Rules, 1973 and various other statutory rules providing for creating a substantively defined organization is enacted, but nothing has been done, neither posts are created nor are the pay scale prescribed under various statutory provisions granted to the employees. By referring to the Madhya Pradesh Home Guards Class III [Executive] Service Recruitment Rules, 1973, 4 filed as Annexure P/4, it is stated that even though posts and pay scale are created by the said rules, but the same is not being implemented. It is stated that for the last more than 50 years, the Home Guards are discharging duties like the police personnel and by treating them to be a voluntary organization, benefits available to a regular employee by enforcing the rules framed under Article 309 of the Constitution is not being given. Instead, a pick and choose policy is adopted and in case of some persons even though the benefits are given, but in case of the petitioners, who are before this Court neither the regular pay scale is given nor any service benefit granted. They are only paid an honorarium of `120-125/- per day alongwith certain additional benefits like washing allowance etc. Vide orders – Annexures P/7 and P/8, certain reservation to the extent of 5% for recruitment on the post of Security Guard in the MP State Electricity Board, and to the extent of 15% in the regular appointment to the Police Department, is granted, but no other service benefit or regular pay scale are granted. 7- Accordingly, in sum and substance, grievance of all the petitioners in these cases are that the Organization is functioning for the last more than 50 years. Even though it was initially started as a voluntary organization, but with the passage of time it lost its voluntary characteristics, instead has become a regular establishment assisting the regular police force of the State and even though persons like the petitioners are required to perform regular duties, they are neither paid regular salary or pay scale and other service benefits. Interalia contending that no statutory rules or regulations have been framed and in an arbitrary manner the respondents are treating the petitioners to be volunteers and denying them their statutory benefit, these petitions are filed. 8- Interalia contending that the voluntary nature of the organization, which existed initially 50 years back, no more survives Shri Mrigendra Singh, Shri A.K. Jain, Shri Gopal Singh and other counsel appearing for the petitioners, took me through the provisions of the Act of 1947, the rules framed thereunder and various judgments to 5 emphasize that the petitioners are entitled to the benefit as claimed for. Placing reliance on a judgment of the Supreme Court, in the case of State of West Bengal Vs. Pantha Chattarjee, AIR 2003 SC 3569, and the observations made by the Supreme Court therein to the effect that the Home Guards organization is no more a voluntary organization, learned counsel emphasized that petitioners are entitled to be benefit as claimed for. That apart, inviting my attention to the following judgments: Union of India Vs. Tarit Ranjan Das, AIR 2004 SC 852; State of Karnataka Vs. M.L. Kesari, AIR 2010 SC 2587; Government of India Vs. Court Liquidator Employees Association, 1999 (8) SCC 560; and, Union of India Vs. Parul Devnath, 2009(14) SCC 173; Jaspal Singh Vs. State of Haryana, (1988) 3 SCC 354, it was argued that in view of the provisions of Articles 14, 16 and 23 of the Constitution and the law laid down by the Supreme Court, in the aforementioned cases, on the principle of ‘equal work for equal wages’, the petitioners are entitled to the relief as claimed for. 9- Finally, inviting attention to a report submitted by the MP State Human Rights Commission, filed as I.A.No.11324/2011, in the record of Writ Petition No.10000/2010, referring to this detailed report submitted by the Commission on 23.6.2011, during the pendency of this writ petition, learned counsel for the petitioners argued that the Human Rights Commission has found that the engagement of the petitioners in the manner done by paying them a meagre honorarium of ` 120-125/- with certain washing allowance and following the system of calling off and granting employment only for a period of 8 months in a year, is an arbitrary, illegal and unconstitutional decision violating the provisions of Articles 14, 21 and 23 of the Constitution, so also amounts to breach of their human rights, the recommendations of the Commission are to the effect that the petitioners should be brought into the regular establishment and regular benefit granted by framing appropriate rules and regulations. 10- Accordingly, contending that now in the light of the recommendations made by the State Human Rights Commission, 6 respondents cannot deny benefits to the petitioners, exploitation of the Home Guards should be done away with, relief is sought for. 11- Finally, by placing reliance on a judgment of the Division Bench of the Nagpur High Court – Sher Singh Malhan Vs. State of Madhya Pradesh, AIR 1955 NAGPUR 175, it is emphasized that in this case the Division Bench has held that Home Guard is a civil post holder and, therefore, ‘mandamus’ and declaration as sought for be granted. Accordingly, in sum and substance, it is the case of the petitioners that the voluntary nature of the organization has ceased to exist with the passage of time, the Home Guards are performing regular duties as are performed by members of the regular police staff in the State and, therefore, treating the petitioners to be regular employees, applying the principle of ‘equal work for equal wages’ and by declaring the action of the State Government in not doing so to be an arbitrary and an illegal decision, contrary to the mandate of Article 14, 21 and 23 of the Constitution, the relief be granted. 12- Shri R.D. Jain, learned Advocate General appearing for the State, refuted the aforesaid contentions and submitted that the recommendations made by the Human Rights Commission is not legal. The recommendations made by the Human Rights Commission is beyond the powers conferred on the Commission under law and the Commission has no authority to recommend or direct the State Government to frame rules and regulations for laying down the service conditions of the Home Guards. Contending that the Home Guards organization is a voluntary organization and until and unless the statutory Act of 1947 is not declared as ‘ultra vires’ and so long as the said Act is in existence, engagement of the volunteers as Home Guards under the said Act is permissible, the Human Rights Commission has no authority to make any recommendation as has been done in the present circumstances. Contending that the Human Rights Commission has travelled beyond its jurisdiction in making the recommendation and the recommendations made by the Commission to formulate the rules and regulations cannot be enforced by this Court Shri R.D. 7 Jain, learned Advocate General, sought for rejecting the claim of the petitioners. 13- Placing reliance on a judgment of the Supreme Court, in the case of Mallikarjuna Rao and others Vs. State of Andhra Pradesh and others, (1990) 2 SCC 707, and referring to paragraphs 9 to 13 thereof, Shri R.D. Jain, learned Advocate General, argued that the recommendations made and the directions given by the Human Rights Commission cannot be enforced by this Court. Thereafter, placing reliance on the judgment of the Supreme Court, in the case of N.C. Dhoundial Vs. Union of India and others, AIR 2004 SC 1272, learned Advocate General argued that the Home Guards are not “civil post” holders, they are only volunteers and as they are not civil post holders, it is stated that no relief can be granted to them. 14- Emphasizing that the judgment rendered by the Nagpur High Court, in Sher Singh Malhan (supra), was based on the benefit to be granted and the protection available under Article 311 of the Constitution, it is without referring to the statutory provisions of the Act, the same is no more good law in view of the subsequent judgments rendered by this Court, particularly in the case of Kedar Prasad Mishra Vs. State of MP and others, Writ Petition No.3668/2000 decided on 14.7.2000; and, Punpratap Singh and another Vs. State of MP and others, 2000 (4) MPHT 398, learned Advocate General submits that the contention of the petitioners that they are civil post holders cannot be accepted. 15- Inviting my attention to various judgment Shri R.D. Jain, learned Advocate General, submitted that the principle of ‘equal work for equal wage’ will not apply in the case under the present set up, for the simple reason that the method of recruitment, the nature of work, the control and power exercised by the Home Guards are entirely different from those exercised by the employees of the regular police establishment and, therefore, it is stated that the principle of ‘equal work for equal wage’ will not apply. Placing reliance on various judgments as is indicated hereinabove Shri R.D. Jain, learned Advocate General, 8 argued that quantity and quality of work done by the Home Guards, the capacity of the work to be performed by them, the method of recruitment and all other factors are different and, therefore, the principle of ‘equal work for equal wage’ will not apply. The judgments relied upon are: Punpratap Singh (supra); State of Haryana and others Vs. Charanjit Singh and others, (2006) 9 SCC 321; State of Madhya Pradesh and another Vs. Pramod Bhartiya and others, (1993) 1 SCC 539; Sita Devi and others Vs. State of Haryana and others, (1996) 10 SCC 1; Union of India and another Vs. S.K. Sareeen, (1998) 1 SCC 177; State of Orissa and others Vs. Balaram Sahu and others, AIR 2003 SC 33; State of Haryana and another Vs. Haryana Civil Secretariat Personal Staff Association, (2002) 6 SCC 72; Raghunath Rai Bareja and another Vs. Punjab National Bank and others, (2007) 2 SCC 230; State of West Bengal Vs. Kinkar Karmakar, 2008 Cal LT (2) 315; Delhi Home Guards Welfare Association (Delhi Pradesh) Vs. Lieutenant Governor, Delhi, 2003 ILR DLH (11) 272; Manibhushan Kumar Rao Vs. State of Bihar, 2005 PLJ(3) 355; Prakash Balwantrao Dethe Vs. Collector, Yavatmal, 2007 AIR Bom R (1) 441; Narayan S. Bhat Vs. State of Karnataka, 2008 KCCR (2) 818. 16- Shri R.D. Jain, learned Advocate General, taking me through the organizational set up of the Home Guards, the work being done by the regular police personnel, submitted that except for certain duties with regard to public safety, none of the work performed by the Home Guards fall in the category of a work, which is performed by the regular police personnel and, therefore, the same benefit of ‘equal work for equal wage’ cannot be granted. Distinguishing the principle laid down by the Supreme Court in the case of Pantha Chatterjee (supra) and contending that the said case has been subsequently explained by the Calcutta High Court in the case of Kinkar Karmakar (supra) Shri R.D. Jain, learned Advocate General, argued that the benefit cannot be granted to the petitioners. 17- Thereafter, inviting my attention to certain judgments of the High Court of Patna, High Court of Bombay, High Court of Karnataka, 9 particulars of which are given hereinabove, Shri R.D. Jain, learned Advocate General, argued that the Home Guards set up throughout the country is in the nature of a voluntary organization and the work done by the Home Guards is entirely different from that of a regular police personnel and, therefore, the Home Guards and the petitioners herein have no right to claim any benefit. Accordingly, contending that the recommendations of the Human Rights Commission cannot be enforced by this Court; the Commission is not empowered to issue the recommendations or directions as contained in its report dated 23.6.2011, and further submitting that the Home Guards are not civil post holders nor does the principle for ‘equal work for equal wage’ applies, learned Advocate General resists the claim made by the respondents. 18- Finally, it was also submitted by Shri R.D. Jain, learned Advocate General, that if the prayer made by the petitioners are to be considered and accepted, the financial implication of the same will create burden on the State Government, which the State Government is unable to bear and, therefore, no ‘mandamus’ can be issued which would have the effect of upsetting the entire economic and financial set up of the State Government. Accordingly, contending that the petitioners and the Home Guards chose to come into the organization which is voluntary in nature, governed by the Act of 1947 and having accepted the same, they cannot now claim any further benefit. Accordingly, on the aforesaid contentions, Shri R.D. Jain, learned Advocate General, prays for dismissal of the writ petition. 19- Having heard learned counsel for the parties at length and after taking note of the various contentions advanced at the time of hearing and further on a close scrutiny of the report submitted by the State Human Rights Commission, the matter is being decided. 20- As far as the claim made by the petitioners for treating them as “civil post” holders and further issuing a direction for treating them as regular employees of the department are concerned, the same is to be considered in the light of submissions made by Shri R.D. Jain, learned 10 Advocate General, particularly with reference to the rights and power of the Human Rights Commission. 21- In the light of the principles laid down by the Supreme Court in the case of Mallikarjuna Rao (supra), relied upon by Shri R.D. Jain, learned Advocate General, this Court cannot issue a ‘mandamus’ for implementing the recommendations of the State Human Rights Commission. To that effect, the relief claimed for by the petitioners cannot be accepted. 22- Similarly, as the method of recruitment of the petitioners and the employees appointed in the regular establishment of the Police Department and even in the manner of discharging the duty and exercise of powers, there is no exact similarity. As such, the principle of ‘equal work for equal wages’ cannot be enforced in its totality in the facts and circumstances of the present case. Particularly, in the light of the law laid down by the Supreme Court in the cases relied upon by learned Advocate General. To that effect Shri R.D. Jain, learned Advocate General, may be right in contending that the relief claimed for by the petitioners cannot be granted. 23- However, this Court can very well take note of the findings recorded by the State Human Rights Commission and consider as to under the facts and circumstances that have come on record, whether the relief of directing for their continuation in service without calling off and the relief of paying them a reasonable salary can be granted. To that affect, I am of the considered view that the report of the Human Rights Commission can very well be examined and after taking note of the manner in which the Home Guards establishment is functioning in the State of Madhya Pradesh, during the long period of 50 years, a decision can be taken. 24- Even though initially when the Act of 1947 was enacted, the same was enforced for establishing a voluntary organization and the organization that came into force was also a voluntary organization, but the voluntary nature of the organization lost its identity, with the passage of time and the nature of work which the organization started performing 11 also underwent substantial change in due course of time, it attained the status of a regular establishment. Even the employees, like the petitioners, who are working have continued to work for more than 10- 20 years and it is, therefore, correct on the part of the petitioners in contending that with the passage of time and with the manner in which the organization had progressed, the voluntary nature of the organization had ceased to exist. This aspect of the matter is considered by the Supreme Court in the case of Pantha Chatterjee (supra) and after taking note of the continued deployment of Home Guards for a period of more than 10 years, in that particular case, it has been held by the Supreme Court that the voluntary nature of the organization has lost its identity and it has become more or less a regular establishment. It is held by the Supreme Court that in the prevailing situation, it is unfair on the part of the competent authorities to contend that it is a voluntary organization and no relationship of master and servant exists. It has been held that the scheme, which was originally indicated as a voluntary organization, has lost its characteristic and now it is nothing but a regular establishment, catering to the needs of the State in various matters. 25- Even though under the Act of 1947, the Home Guards organization is termed to be a voluntary organization, the nature of duties of the Home Guards as is specified in Section 10 clearly indicates that the Home Guards have to perform various duties. The duties performed by the Home Guards and the findings recorded by the Human Rights Commission in this regard would be referred to after some point of time. For the present, it may be taken note of that the State Government itself feeling that the Home Guards organization is no more a voluntary organization, temporary in nature, has enacted various rules exercising powers under Article 309 of the Constitution and if these rules are taken note of, it would be seen that the State Government had been harping upon an idea of creating a permanent organization with a permanent set up, regular substantive posts were to be created with a particular pay scale.