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2017 DIGILAW 259 (UTT)

SHIV PRASAD SHARMA v. STATE OF UTTARAKHAND

2017-04-25

RAJIV SHARMA

body2017
JUDGMENT Hon’ble Rajiv Sharma, J. Since the common questions of law and facts are involved in all these petitions, the same have been taken up together and adjudicated by this common order. However, in order to maintain the clarity, the facts of WPSS No.2322 of 2016 have been taken into consideration. 2. Petitioner no.1 is presently posted as a Platoon Commandant at Nagar Nigam, Dehradun and petitioner no.2 is posted as a Home Guard at Nagar Nigam, Dehradun. The State Legislature of Uttar Pradesh has passed the Act No.XXIX of 1963 called as ‘U.P. Home Guards Act, 1963’ (hereinafter to be referred as ‘the Act’). It was adopted by the State of Uttarakhand vide Notification dated 2.11.2002. Sections 3, 9 and 10 of the Act reads as under: - “3. Constitution of Home Guards - There shall be raised and maintained a volunteer force to be designated the Uttar Pradesh Home Guards hereinafter called the Home Guards and it shall be constituted in the manner prescribed. 4. Functions - The Home Guards will have the following functions:—(a) they will serve as auxiliary to the police, and, when required, help in maintaining public order and internal security; (b) they will help the community in air raids, fires, floods, epidemics and other emergencies;(c)they will function as an emergency force for such special tasks as may be prescribed;(d)they will provide functional units for essential service; and(e)they will perform such other duties, relating to any measure of public welfare as may be prescribed. 9. 9. Powers, privileges and protection of Home Guards - (1) Subject to the provisions of this Act and the rules made thereunder, a home guard when called out under Section 8 to serve as auxiliary to the police or to help in maintaining public order or internal security shall have the same powers, privileges and protection as a member of the police force appointed under any enactment for the time being in force, and shall subject to such adaptations and modifications as may be made therein by the State Government by notification in the official Gazette, be subject to the provisions of the Police Act, 1861 and the rule or regulation made thereunder in the same manner and to the same extent as he would, if such home guard held a corresponding rank in the police force to the one he holds for the time being in the Home Guards.(2)No prosecution shall be instituted against a home guard in respect of anything done or purporting to be done by him in the discharge of his duty as a home guard, except with the previous sanction of the District Magistrate having jurisdiction over the area in which the home guard was enrolled or in which the act was committed. 10. Home Guards to be public servants but not civil servants - A home guard acting in the discharge of his functions under this Act shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code.Explanation.—A home guard shall not be deemed to be a holder of a civil post merely by reasons of his enrolment as home guards.” 3. Petitioners have been deployed as the Home Guards. They sent a legal notice to the State on 16.11.2016, praying therein, to reconsider the Government Order dated 1.6.2016, whereby, their Daily Allowance was meagerly enhanced from Rs.350/- to Rs.400/- per day and with a further prayer to pay them the Duty Allowance in view of the judgment of Hon. Apex Court in 2015 (6) SCC Page 247 rendered by their Lordships in the case of ‘Grah Rakshak Home Guard Welfare Association v. State of Himachal Pradesh & others’. 4. 4. The issue, raised in this petitions, is no more res integra in view of the definitive law laid down by their Lordships in the case of Grah Rakshak Home Guard Welfare Association (Supra), while dealing with the petitions, filed under the Himachal Pradesh Home Guards Act, 1968, the Punjab (Home Guards) Act, 1947, the Bombay Home Guards Act, 1947 and Delhi Home Guards Rules, 1959. Their Lordships of Apex Court have directed that the State Government should pay the persons, engaged as Home Guards, 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 the State are entitled. Their Lordships in paragraph nos.37, 38 and 39, have held as under: - “37. It is not the case of the State Government that enrolment/appointments of the Home Guards were back door engagement and illegal made in violation of Articles 14 and 16 of the Constitution of India. Therefore, the decision of this Court in Umadevi, is not applicable in the case of the appellant 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 throughout the year. 38. 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 throughout the year can neither be equated with that of the police personnel. 39. In view of the discussion made above, no relief can be granted to the appellants either for regularisation of services or for grant of regular appointments, hence no interference is called for against the judgments passed by the Himachal Pradesh, Punjab and Delhi High Courts. 39. In view of the discussion made above, no relief can be granted to the appellants either for regularisation of services or for 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 the 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.” 5. The parent Act is the U.P. Home Guards Act, 1963. Learned Single Judge of Allahabad High Court on 8.7.2016, in Writ-A No.47479 of 2015 & analogous petitions, has also issued the directions on the basis of the judgment rendered by their Lordships of Hon. Apex Court, cited hereinabove. Learned Single Judge has considered the various provisions of U.P. Home Guards Act, 1963, more particularly, Sections 4, 9 and 10, quoted hereinabove. 6. The gist of the reply filed by the State of Uttarakhand is that the Constables of Police Department cannot be equated with the voluntary Home Guards, since their work, duty and responsibilities are different. It is further averred in the reply that the work area, duty, source of recruitment, process, educational qualification etc. are also distinct. There was also resource crunch. The Home Guard Volunteers are paid the allowance on the basis of per day duty performed by them. The allowance of Home Guard Volunteers has been enhanced from Rs.350/- to Rs.400/- as per the Notification dated 16.9.2016. 7. Their Lordships of Hon. Supreme Court, in the judgment cited hereinabove, have held that it was not the case of the State Government that enrolment/ appointments of the Home Guards was a backdoor engagement or it was illegally made in violation of Articles 14 and 16 of the Constitution of India. Their Lordships have also observed that the Volunteers are paid the Daily Allowance and other Allowances to which they are entitled to. Their Lordships have also observed that the Volunteers are paid the Daily Allowance and other Allowances to which they are entitled to. Their Lordships have declined the prayers of the Volunteers to be regularized. Their Lordships have held that services of the Home Guards are used during the emergency and at the time of their duty, they are empowered with the power of police personnel. It was also held 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 the State are entitled. 8. According to Section 4 of the Act, the Home Guards are required to serve as auxiliary to the police, and also to help in maintaining public order and internal security. They are also required to help the community in air raids, fires, floods, epidemics and other emergencies. They are also required to function as an emergency force for such special tasks, as may be prescribed. They are required to provide functional units for essential services and they are also required to perform such other duties relating to any measure of public welfare as may be prescribed. 9. According to Section 9 of the Act, subject to the provisions of this Act and the rules made thereunder, a home guard, when called out under section 8 to serve as auxiliary to the police or to help in maintaining public order or internal security, shall have the same powers, privileges and protection as a member of the police force, appointed under any enactment for the time being in force, and is subject to such adaptations and modifications, as may be made therein by the State Government, and also in the same manner and to the same extent if such home guard held a corresponding rank in the police force to the one he holds for the time being in the Home Guards. It is also provided that no prosecution shall be instituted against a home guard in respect of anything done or purporting to be done by him in the discharge of his duty as a home guard, except with the previous sanction of the District Magistrate, having jurisdiction over the area in which the home guard was enrolled, or, in which the act was committed. 10. 10. Section 10 of the Act provides that a Home Guard, acting in discharge of his functions under the Act, shall be deemed to be a public servant within the meaning of Article 21 of the Indian Penal Code. However, he will not be deemed to be a holder of a civil post. The disciplinary proceedings can also be initiated against a Home Guard under the Act. 11. In the case in hand, the Union of India sent a communication to the State of Uttarakhand on 16.9.2016. The abstract of the letter reads as under: - “I am directed to refer to the judgment of the Hon. Supreme Court of India dated May 04, 2016 in the above mentioned case pertaining to Home Guards and to request you to issue necessary directions to the concerned authorities for its compliance. Copy of the judgment is enclosed for ready reference. This issues with the approval of DG, FS, CD & HG.” 12. However, the fact of the matter is that despite the law laid down by Their Lordships of Hon. Apex Court, cited hereinabove, read in conjunction with the communication dated 16.9.2016, petitioners have not been granted the relief in terms of the aforesaid judgment. Ours is a welfare State. It cannot remain oblivious to the hardships faced by the persons recruited in the voluntary organization. The Home Guards also perform the arduous and hazardous duties, akin to police personnel, as per Section 9 of the Act. 13. The enhancement of daily allowance, from Rs.350/- to Rs. 400/- per day, is very paltry. It would be difficult for the members of Home Guard Association even to make their both ends meal. They are also supposed to look after their families. The action of the respondents, in denying the Home Guards the benefit of the law laid down by Their Lordships in the above-mentioned judgment, is illegal, arbitrary, discriminatory and thus, violative of Articles 14 and 16 of the Constitution of India. Learned Single Judge of Allahabad High Court also, by following the judgment rendered by their Lordships of Hon. Apex Court in the case of Grah Rakshak Home Guard Welfare Association (Supra), has also issued necessary directions to the State of Uttar Pradesh. 14. Accordingly, the present petitions are allowed. Learned Single Judge of Allahabad High Court also, by following the judgment rendered by their Lordships of Hon. Apex Court in the case of Grah Rakshak Home Guard Welfare Association (Supra), has also issued necessary directions to the State of Uttar Pradesh. 14. Accordingly, the present petitions are allowed. The respondent-State of Uttarakhand, in terms of the judgment of their Lordships of Apex Court in the case of Grah Rakshak Home Guard Welfare Association (Supra), is directed to grant the petitioners, and other Members of the Home Guards, deployed in the State, 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 the State are entitled, within a period of three months from the date a certified copy of this order is placed before the competent authority. 15. However, there shall be no order as to costs. 16. All pending applications stand disposed of in the above terms.