IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. CWP No. 588 of 2005 with CWP Nos. 645, 651, 737 & 752 of 2005 Reserved on : 19.5.2008 Date of Decision : May 26, 2008 CWP No. 588 of 2005 Ram Kumar Sharma & Ors. …Petitioners. Versus: State of H.P. & others …Respondents. CWP No. 645 of 2005 Grah Rakshak Home Guards Welfare …Petitioner. Versus: State of H.P. & others …Respondents. CWP No. 651 of 2005 Balbir Singh & ors. …Petitioners. Versus: State of H.P. & others …Respondents. CWP No. 737 of 2005 Taj Mohammad & Ors. …Petitioners. Versus: State of H.P. & others …Respondents. CWP No. 752 of 2005 Sulakash Kumar & ors. …Petitioners. Versus: State of H.P. & others …Respondents. Coram: The Hon’ble Mr.Justice R. B. Misra, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. 2 Whether approved for reporting?1 Yes For the petitioners: Mr. A. K. Gupta, Advocate with Mr. R. D. Kaundal, Advocate. For the respondents : Mr. R. M. Bisht, Dy. Advocate General. For Union of India : Mr. Anoop Rattan, Central Govt. Counsel. Sanjay Karol, J. The legal issues involved in all the writ petitions are same, therefore, they are being disposed of by a common judgment. In four writ petitions, the petitioners have assailed the impugned orders passed by the H. P. Administrative Tribunal, Shimla in the Original Applications. A chart showing the O.A. numbers, the date of the order and the number of the writ petitions is as udner: - Sr.No. O.A. No. Date of the order Writ petition 1. O.A. (M) No. 308 of 2004 27.5.2005 CWP 651/2005 2. O.A. No. 1871 of 2004 27.5.2005 CWP 588/2005 3. O.A. No. 404 of 2005 1.7.2005 CWP 737/2005 4. O.A. No. 758 of 2005 1.7.2005 CWP 752/2005 CWP No. 645 of 2005 has been filed by way of Public Interest Litigation. The writ petitioners have raised a common question of law, therefore, all the writ petitions are being disposed of by a common judgment. 1 Whether reporters of Local Papers may be allowed to see the judgment? 3 The point for consideration in the present writ petitions as to whether the petitioners, being members of the voluntarily force of the Home Guards meant to meet emergent situations in Civil Defence, would be entitled for regularization and grant of regular pay scale in parity with the regularly appointed employees of the Home Guards Organization of the State. It is the case of the petitioners/its members that they have been continuously serving the Home Guards Organization for 10 to 20 years and have neither been granted regular pay scale nor have their services been regularized. The petitioners who have undergone training at various levels have been deployed for undertaking various duties such as traffic duty, law and order duty. Thus, they are entitled for not only regularization but also regular pay-scale on the principle of ‘equal pay for equal work’. To defeat their continuity, the respondents have been giving technical breaks at various times. The opposition is on the ground that the petitioners were enrolled as Home Guards volunteers in the Home Guards Organization on their willingness for a period of 3 years under Section 5(1) of the H. P. Home Guards Act, 1968 (hereinafter referred to as ‘the Act’.) The Home Guards remain in the organization as a volunteer and they are not appointed on regular pay and wages. The volunteers are called out for duty only when their services are required in public interest and are 4 paid remuneration and honorarium as authorized by the State Government. They are not discharging the duties as whole time employees and are thus not entitled for parity. The petitioners are honorary rank holders of the Home Guards Organization. They are being looked after well by the State and in accordance with the various schemes of the Government are paid temporary disability allowance, invalid pension, family pension, extraordinary family pension and ex-gratia grant as introduced by the State Government vide Notification dated January 2, 1989 for the welfare of the Home Guards. The petitioners as volunteers are entitled to regular recruitment in the Police Department, Forest Department and Warder in Prisons Department on the basis of 15% posts reserved for such Home Guards volunteers. Considering the provisions of the Act, the Rules framed thereunder and relying upon the judgment delivered by the Apex Court in Rameshwar Dass Sharma & ors. vs. State of Punjab (SLP (Civil No. 12465/1990), the Original Applications filed by the petitioners before the Tribunal were dismissed on merits. Challenging the same, the learned counsel for the petitioners made the following submissions;- i) The judgment delivered by the Division Bench of this Court, in Civil Writ Petition No. 780 of 1990 titled as Veer Singh and another vs. State of H.P. & ors. is not binding as the Court has 5 not considered the provisions of Rule 13(1) of the Himachal Pradesh Home Guards Rules, 1971 (hereinafter referred to as ‘the Rules’) and the form-A inviting applications for recruitment, which does not specify that the engagement is voluntary in nature. s ii) By virtue of the provisions of the Himachal Pradesh Home Guards (Amendment) Act, 2002 (hereinafter referred to as ‘the amending Act’), the concept of volunteer was introduced for the first time and the amendment being prospective in nature, it has to be inferred that the petitioners appointment is on regular basis. iii) The petitioners case is covered by a decision rendered by the Apex Court in State of W. B. and others vs. Pantha Chatterjee and others (2003 (6) SCC 469). Per Contra, the learned Deputy Advocate General has supported the judgment for the reasons set out therein. This Court in Veer Singh’s case (supra) has in extenso considered the relevant provisions of the Act and the Rules. In the said case, petitioners were also seeking a direction that they be treated permanent employees of the Home Guards Organization, and as such entitled for claiming pensionary benefits, as were available to the permanent employees of the Government and the Home Guards Organization. The Court took notice of the fact that the petitioners had been serving the organization for sufficiently long time and had also undertaken 6 training at various levels and participated in Republic Day Parade at different periods. The Court took the view that the Home Guards Organization, is purely a volunteers organization and the volunteers are trained for civil defence to assist the regular police in emergency and other connected matters and cannot be treated as Government servants nor could be regularized under the Act. It was held that the Commandant of the Battalion could appoint such persons as member of the Home Guards, who were found fit and were willing to serve from time to time. After the appointment, the member of the Home Guards was required to make a declaration in form and receive a certificate of appointment under the seal and signatures of the officer. The member was to serve for a period of 3 years, though extendable for further period as found necessary. The Commandant General could call any member of the Home Guard to discharge any function or duties in accordance with the provisions of the Act and Rules. The Court noticed the provisions of Section 8 of the Act which provides that while a member is called out for duty, he shall have the same powers, privileges and protection as an officer of the police appointed under any law for the time being in force. The Court considered the application for enrolment, form- A, to be filled up by the Home Guard at the time of giving his consent to be a volunteer member of the Home Guard. The Court finally observed :- “A reading of the provisions of the Home Guards Act read with the rules, noticed above, makes it clear 7 that members of the Home Guards Organization serve the organization purely on voluntary basis for a limited period of three years though extendable by the Government. After the expiry of the period of appointment, such members are to be included in the reserve force of the Home Guards for another period of three years. During this period of three years, such reserves are liable to be called for duty from time to time for various purposes, noticed above. Members of this organization are not placed in the regular pay- scale. They are paid fixed amount. When called for duty, or training, they are paid Camp allowance, Out of Pocket Allowance and Travelling allowance. In this view of the matter, the members of the Home Guards cannot be termed as Government servants nor can they be regularized. A Four Judges Bench of the Apex Court in Rameshwar Dass Sharma versus State of Punjab and others (Civil Appeal No. 12405/1990 decided on July 30, 1991) taking note of the counter affidavit filed by the State of Punjab, the fact that Home Guards who are ordinary demobilized armed personnel are employed on the basis of temporary need from time to time and in case they are called back to duty, they are paid per day allowance and the employees under this system cannot ask for regularization.” In our considered view, the aforesaid decision fully applies to the facts of the present case. The Court has considered the form annexed to the Rules in Appendix - A. Bare reading of form-A itself would show that even the persons who 8 are in business, profession or otherwise employed can volunteer and become a member of the Home Guards. Rule 13(ii) of the 1971 Rules reads as under:- “The Home Guards employed for whole time duty, other than the Honorary Home Guards, will receive pay and allowances equivalent to their counter-parts in the Police Department of equal rank. The equivalency of rank is given in Appendix ‘B’.” Bare reading of the Rule itself clarifies that Home Guards employed for whole time duty, other than the Honorary Home Guards, would be entitled to receive pay and allowances equivalent to their counter-parts in the Police Department of equal rank. Rule itself creates distinction between the Home Guards employed on whole time duty and Honorary Home Guards who are volunteer workers. Therefore, such of those persons who are volunteers cannot be said to have been regularly appointed and have any legal right of claiming regularization. The submission made by the learned counsel, therefore, is misplaced and untenable in law. The amendment carried out by virtue of the Amending Act are reproduced as under:- “2. In Section 4 of the Himachal Pradesh Home Guards Act, 1968 (hereinafter referred to as ‘the principal Act’). In sub-section (1) for the word “members” the words “volunteers” shall be substituted. 3. In Section 5 of the principal Act:- 9 (a) In its heading, for the words “appointment of members” words “enrollment of volunteers” shall be substituted. (b) In the sub-sections (1), (2) and (3):- (i) for the word “members” and “member” wherever these occur, the words “volunteers” and “volunteer” shall respectively be substituted; and (ii) for the words “appoint” and “appointment” wherever these occur, the words “enrol” and “enrolment” shall respectively be substituted; and (c) for sub section (4), the following shall be substituted, namely :- “(4) Subject to rules made in this behalf, a volunteer of Home Guards shall serve the Home Guards Organization for a minimum period of three years and may continue as such till attaining the age of 58 years and thereafter serve in the reserve force till attaining the age of 60 years”. 4. In Sections 6, 7, 8, 9, 10, 11, 12, 13 and 15 of the principal Act, for the words “member” and “members”, wherever these occur, the words “volunteer” and “volunteers” shall respectively be substituted. 5. In Section 14 of the principal Act, in sub-section (1) in clause (c) for the words “appointment” and members of the words “enrollment” and “volunteers” shall respectively be substituted. 6. In Section 16 of the principal Act, in sub-sections (1) and (2) for the words “a member of Home Guards” wherever these occur, the words “a 10 volunteer of Home Guards” shall be substituted.” The amendment is only clarificatory in nature and cannot be said to have taken away any rights which had accrued in favour of the petitioners under the Act and the Rules. The claim of the petitioners was adjudicated on the basis of the Act and the Rules and not the Amending Act alone. In our view, the issue of regularization in fact also stands determined by the Apex Court in Rameshwar Dass Sharma (supra) as under:- “Heard petitioner in person and learned counsel for the respondent. The counter affidavit indicates that the Home Guards who are ordinarily demobed Army personnel are employed on the basis of temporary need from time to time and in case they are called back to do work with arms in hands, they are paid at the rate of Rs.30/- per day on the basis of eight hours working during the day, or otherwise they are paid at the rate of Rs.25/- per day. Petitioner, according to the respondent, being an employee under this system cannot ask for regularization. In such circumstances, we do not think that the petitioner is entitled to any relief. We have impressed upon learned counsel, however to find out from the Home Guards Organization if in any manner, the petitioner can be accommodated in limited way. The special leave petition and the interlocutory application are disposed of accordingly. No costs.” 11 The decision rendered by the Apex Court in Pantha Chatterjee (supra) is clearly distinguishable on facts and therefore, reliance thereupon in the facts of the present case is misconceived. In Pantha Chatterjee (supra), the Court was dealing with the case of part time Border Wing Home Guards (BWHG) appointed under the Scheme promoted by the Central Government and the State Government. The Court held that the difference between the permanent staff and the part time staff stood oblitered and, therefore, BWHG were entitled to emoluments on the lines of the regular Border Wing Home Guards of the West Bengal and the Border Security Force Personnel, as they were performing the same duties and discharging the same responsibilities. Under the Scheme, part time Home Guards were to help and assist and to do the patrolling etc. along with and under the supervision and direction of the Border Security Force authorities. The duties of the permanent and the part time employees being same were performed under the same situation and circumstances. The Central Government Scheme was to be implemented through the State Government. In the instant case, the statutory provisions, Act and the Rules govern the relationship, conditions and nature of enrolment and deployment. The volunteers are free to carry out any vocation and are called to meet the contingencies of civil 12 defence and more particularly for operational duty for the protection of life and property from natural calamities or anti social elements, maintenance of essential services, control and regulation of traffic etc. The Home Guards remain in the organization as a volunteer and they are not appointed on regular pay and wages. The volunteers are called out for duty only when their services are required in public interest and are paid remuneration and honorarium as authorized by the State Government. They are not discharging the duties as whole time employees and are thus not entitled for parity. The petitioners are honorary rank holders of the Home Guards Organization. They are being looked after well by the State and in accordance with the various schemes of the Government are paid temporary disability allowance, invalid pension, family pension, extraordinary family pension and ex-gratia grant as introduced by the State Government vide Notification dated January 2, 1989 for the welfare of the Home Guards. The petitioners as volunteers are entitled to regular recruitment in the Police Department, Forest Department and Warder in Prisons Department on the basis of 15% posts reserved for such Home Guards volunteers. Therefore, the contention of the learned counsel needs to be rejected. All the writ petitions were heard together and no other point was raised by the learned counsel for the parties. 13 For the aforesaid reasons, the present writ petitions do not merit any interference. The same are accordingly dismissed so also the pending applications. The Tribunal has rightly dismissed the OAs in the present writ petitions. ( R. B. Misra ), Judge. ( Sanjay Karol ), Judge. May 26, 2008 (rana)