RSA No. 627 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 627 of 2005 Decided on : 11-02-2009 Nirmala Devi and others ....Appellants VERSUS Director, Civil Defence, Home Guards, Punjab, Chandigarh and others ....Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr. D.K. Kaushal, Advocate for the appellants. Mr. N.S.Virk, Addl. A.G., Punjab. MAHESH GROVER, J This appeal has been preferred by the plaintiffs assailing the judgements of the learned Trial Court dated 22.3.2001 and the First Appellate Court dated 29.7.2003. A suit was filed by the appellants claiming that Jangir Singh, the husband of appellant no.1 Nirmala Devi was an ex-serviceman and was working as Home Guard in 64(c) Company Punjab Home Guards, Kotkapura and his work and conduct during his period of service was excellent and he served Punjab Home Guards from 14.9.1990 upto 6.5.1993. He lost his life in a road accident while he was on the active duty of the Department. It was pleaded that the service of Home Guard was of 32 months without any break and since he was permanent employee of the Department, his legal heirs were entitled for grant of family pension, gratuity and other pensionary benefits etc. The claim for such benefits was made alongwith interest at the rate of 18% per annum. The respondents objected to the suit and pleaded that the RSA No. 627 of 2005 2 deceased was not a permanent employee of the Department and that Home Guards Organisation is a voluntary organisation in which the deceased was also a part-time volunteer and since he was not a permanent employee and the organisation being purely voluntary, the benefits as claimed by the plaintiffs-appellants could not be granted to them. Both the parties went to trial on the following issues:- 1. Whether Jangir Singh was a volunteer or regular employee of the defendant? OPP. 2. Whether the plaintiffs are entitled for the declaration as prayed for ?OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the plaintiffs have no locus standi to file the suit?OPD. 5. Whether the suit is time barred? OPD 6. Whether the suit is bad for want of notion under Section 80 CPC? OPD. 7. Relief. Learned Trial Court and also the First Appellate Court concluded that the Home Guards Organisation was a voluntary organisation and therefore, the provisions of rules were not attracted and consequently the plaintiffs-appellants were not entitled to the benefits as claimed by them. Assailing the aforesaid findings, learned counsel for the appellants has strenuously contended that according to the provisions of Punjab Civil Services Rules as applicable to the organisation of Home Guards, the deceased being a permanent employee was entitled to the RSA No. 627 of 2005 3 benefits of gratuity, pension etc. Reference was made to Rule 3.8 and 3.12 of the Punjab Civil Services Rules in support of the contention. On the other hand, learned counsel for the respondents contended that Punjab Civil Services Rules were applicable only to the category of the employees/incumbents who have been detailed in Schedule A of the Rules. It was contended that these rules are applicable to the incumbents who are occupying the posts made to administer the organisation but as far as the Home Guards are concerned, they being purely a voluntary service, the appellants could not be held entitled to any benefit on this count. Reliance was placed on Division Bench judgement of Delhi High Court in case titled as 'Rajesh Mishra and others versus Govt. of NCT of Delhi and others' 2002 (4) RSJ 576 wherein an almost identical question as addressed and it was ruled that Home Guards are purely voluntary organisation. On 29th November, 2005 this Court admitted the present appeal by noticing that following questions of law arise for the consideration of this Court:- a)Whether the findings of the ld. Lower Court are againt the law and facts on the issue No.1 and 2? b) Whether the deceased Jangir Singh was considered to be a regular employee and appellants being LRs of the deceased entitled to family pension according to 6.17 of the Punjab Civil Serivces Rules? c) Whether the Punjab Civil Services Rules are applicable to the deceased and he continuously done 32 months service i.e. More than 240 days be considered to be a regular employee? RSA No. 627 of 2005 4 I have heard learned counsel for the parties and perused the impugned judgments. The appellants have claimed that they were entitled to family pension, gratuity etc on the basis of the Punjab Civil Services Rules 3.8 and 3.12 which are extracted hereunder:- 3.8.Unless it be otherwise provided by special rule or contract, the service of every Government employee begins to qualify for pension when he takes charge of post to which he is first appointed. 3.12.The service of a Government employee does not qualify for pension unless it conforms to the following three conditions:- First – The service must be under Government Second – The employment must be substantive and permanent. Third – The service must be paid by Government. These three conditions are fully explained in the following rules. However, the foremost question that has to be decided is as to whether these rules are applicable to Home Guards or not? In the introductory passage of the Home Guards' Rules, the Home Guard organisation has been described to be a voluntary force. It was conceptualized in the wake of Chinese aggression in 1962 when Centre advised the States and the UTs to merge their existing voluntary organisations into one all India force known as Home Guards' and it was expected to be a voluntary organisation both in concept and character. The RSA No. 627 of 2005 5 Rules were further elaborated to include their role at the time of calamities. In short they to be utilised as volunteers during the course of disaster management. The enrollment procedure also does not vizualise any regular character. However, certain other categories of staff have been set up which forms the various levels of hierarchy in the organisation and includes clerical and Class III and IV employees and extends upto the level of Commandants and Divisional Commandants. The Rules do not stipulate that Home Guards will be entitled to any regular pay scale or a regular service so as to invite the benefits as admissible to such a regular employee. Division Bench of Delhi High Court has observed in Rajesh Mishra's case (supra) as under:- “22. In Man Sukh Lal Rawal & others vs. Union of India & Others, Civil Writ Petition No. 4286 of 1997 decided on 26.5.1999 a Division Bench of this Court having regard to the provisions of the said Act, inter alia, held:- “The two questions that have been raised by the petitioners before us are whether they are entitled to be regularized as members of the Home Guards, and whether their services can be terminated without following the procedure laid down by Rule 8 of the Rules. In so far as the first question is concerned, the genesis, history and concept of the Home Guards clearly show that it is not an “employment” or a “source of employment”. It is a volunteer body where citizens voluntarily offer their serivces for the benefit of society. There are no hard and fast rules for recruitment or the nature of duties and functions that are to be performed by a member of the RSA No. 627 of 2005 6 Home Guards. It is also not as if a member of the Home Guards cannot have employment elsewhere. A member of the Home Guards can be a professional or a government servant or a person carrying on any trade or occupation, industrial worker, university student, etc; it can be anyone who can give some spare time for the benefit of the community. In fact, of the applicants who were before the Tribunal, admittedly some of them were employed in the government and some in the private sector. This being the position, there cannot be any question of regularizing any person as a volunteer or for carrying on any voluntary activity. A contrary view will destroy the very ethos and character of the Home Guards.” Therefore, I am of the considered opinion that a perusal of the Home Guards' Rules leave no room for doubt that Home Guards Organisation is purely a voluntary organisation as conceptualized during the time of its birth and therefore, the deceased certainly could not have been considered to be a regular employee or a Government employee so as to entitle him to the benefits of the service as claimed by his legal heirs, the appellants after his death. For the reasons stated above, the question of law is answered as above. It is held that Home Guards Organisation is purely a voluntary organisation and the Home Guards are not entitled to benefits of the regular employee or consequent benefits claimed thereof. The appeal being devoid of any merit is hereby dismissed. February 11, 2009 (Mahesh Grover) rekha Judge