JIBAN KRISHNA MONDAL & ORS.versusSTATE OF WEST BENGAL & ORS.

                           [2015)2S.C.R. 772



                JIBAN KRISHNA MON DAL &ORS.                     A
                                v.
                STATE OF WEST BENGAL & ORS.

                (Civil Appeal No.6373 of 2010 etc.)             B

                        MARCH 10, 2015

         [SUDHANSU JYOTI MUKHOPADHAYA AND
                VIKRAMAJIT SEN, JJ.]                            C

   Service law - Regularization - Members of West Bengal
   Home Guards - Regularization of service - Entitlement for
   - Plea of home guards that they were in services of the State
   performing the same duty like police constables who are o
   Government employees, thus, entitled to regularization of
   their services and regular pay at par with police personnel -
   Held: Genesis of Home Guards and its role shows that the
   Home Guard Organization was always meant to be voluntary
   and it consisted of people from all walks of life - On facts, E
   majority of the claimants having attained the maximum age,
   no more members of the Home Guards-Appointment lette~s
   by other claimants not suggestive that they were performing
   duty all over the year - There was no master-servant
 · relationship - They were appointed pursuant to 1962 Rules F
   and their services were voluntary and would not get any pay
   but the duty allowance fixed by the State Government from
   time to time - Thus, claimants not entitled for regularization
   of. service - In absence of any comparison of duties, G
· responsibilities, accountability and status, they cannot be
   equated with the Police personnel to claim parity with their
   payor pay scale - West Bengal Home Guards Act, 1962 -
   ss: 5, 7 and 9- West Bengal Home Guards Rules, 1962- rr.
  3, 4, 7, 8.                                                   H
                                772
773       SUPREME COURT REPORTS                [2015) 2 S.C.R.


 A         Dismissing the appeals, the Court

          HELD: 1.1 From the plain reading of the West
   Bengal Home Guards Rules, 1962, it emerges that West
   Bengal Home Guards are enrolled as member of the
 B Home Guard in the form set out in Schedule A of the
   Rules. The Home Guards shall ordinarily be volunteers
   and unpaid. But the State Government may determine
   the allowances to be paid to the members of the Home
   Guard when they are called out for duty. There is no fixed
 C duty for members of the Home Guard. When they are
   caned out for duty, they shall assist the police force in
   the protection of civil population against the forces of
   crime and disorder. They have to work in close touch
   with Civil Defence Organization and have to perform
 0 such duties in connection /with the protection of
   persons, the security of property or the public safety as
   the State Government may, from time to time, determine.
   Therefore, if the West Bengal Home Guards Act, 1962
 E read with West B~ngal Home Guards Rules, 1962, it is
   found that members of Home Guards are ordinarily
   unpaid volunteers for whom the State Government shall
   determine the pay and allowances when called out for
   duty. [Para 14] [789-H; 790-A-E]
 F
   1.2 The voluntary character of the Home Guards
   Organization was not explicit in the 1962 Act because of
   the use of word "appointment as members", though it
   was explicit from 1962 Rules. For the said reasons, the
 G State Government issued West Bengal Home Guards
   (Amendment) Act, 1990. From the statement of objects
   and reasons of the Amendment Act of 1990, the intention
   of the Legislature to create a voluntary Home Guards
   Organization is made clear. [Para 15 & 16] [790-E-F; 792-
 H B]
JIBAN KRISHNA MONDAL v. STATE OF WEST BENGAL 774


1.3 A careful perusal of genesis of Home Guards and its A
role would show that the Organization was always meant
to be voluntary and it consisted of people from all walks
of life. In fact Government servants were also enrolled in
the Home Guards to be called as and when the need
arises. A large number of State enactments i.e. Andhra B
Pradesh Home Guards Act, 1948, Bombay Home Guards
Act, 1947,Assam Home Guards Act, 1947, ManipurHome
Guards Act, 1966, Madhya Pradesh Home Guards Act,
1947, Punjab Home Guard Act, 1947, Rajasthan Home C
Guards Act, 1963 etc. makes it clear that the provisions
of all these enactments are more or less similar. The
voluntary nature is a basic feature of the Home Guards.
[Para 19] [793-B-D]

1.4 Majority of the appellants has attained the maximum       D
age and are no more members of the Home Guards. The
appointment letters enclosed by the remaining category
of appellants, do not suggest that they are performing
duty all over the year like any Government servant. There     E
is nothing on the record to suggest the master-servant
relationship. They were appointed pursuant to Home
Guard Rules, 1962 and it is made clear thattheir services
are voluntary and will not get any pay but the duty
allowance as may be fixed by the State Government from        F
time to time. Thus, the appellants are not entitled for
regularization of service. Further, in absence of any
comparison of duties, responsibilities, accountability and
status, they may not be equated with the Police
Constables or personnel to claim parity with the pay or       G
scale of pay as provided to the Police personnel. The
High Court rightly refused to grant regularization of their
services. [Para 20] [793-E-H]
                                                              H
775         SUPREME COURT REPORTS                    (2015) 2 S.C.R.


 A Ba/want Rai Saluja vs. Air India Ltd. (2014) 9 SCC 407; Rajesh ·
   Mishra v. Govt. ofNCT ofDelhi 98 (2002) DLT 624; State ofManipur
   and another v. Ksh. Moirangninthou Singh and others 2007 (3 )
   SCR 193:(2007) 10 SCC 544- referred to.

 B                        Case Law Reference

             (2014) 9 stc 407              referred to       Para7

             (2002) DLT 624                referred to      Para 17
 c          2007 (3) SCR 193               referred to      Para 18

      CML APPELLATE JURISDICTION : Civil Appeal No. 6373 of2010

   From the Judgment and Order dated 31.01.2008 of the High
 D Court at Calcutta in Writ Petition No. 18237 0N) of 2005

                                   VVTTH

      C.A. Nos. 6374, 6375of2010, 55, 56, 57, 58, 59, 60&61 of2015

 E Sushi! Kumar Jain, Vgay Hansaria, Sanjiv Sen, Shekhar Kumar, Rauf
   Rahim, S. K Verma, Ajay Veer Singh Jain, PuneetJain,AtulAggarwal,
   Divya Garg, U. R. 8okadia,AtjtJain,Ajay Kumar Jain, Mohd. lrshad
   Hanif, 8. K. Gupta, S. K. Gupta, M. K. Singh, 8. P. Gupta, Debashree
   Saikia, Avnish Pande~,1; Ghanshyam Joshi, F. I. Choudhury,
 F Rameshwar Prasad Goyal, P. K. Dey,Andleeb Naqvi,Abhijeet Singh,
   Vgay Pal Singh, Dr. Kailash Chand for the Appellants.

  Mukul Rohtagi,AG, Guru Krishna Kumar,Anip Sachthey, Mohit Paul,
  Saakaar Samana, Shreekant N. Terdal, Avijit 8hattacharjee, V.
G Mahana, Sadhana Sandhu, Kabir Hathi, R. K. Verma, Sushma Suri
  forthe Respondents.

            The Judgment of the Court was delivered by

 H          SUDHANSU JYOTI MUKHOPADHAYA, J. These appeals
JIBAN KRISHNA MONDAL v. STATE OF WEST BENGAL 776


have been preferred by the appellants against the judgment A
and orders passed by the Calcutta High Court in F.M.A.
No.588 of 2002 etc. dated 31st January, 2008, in W.P. No.
14779(W) of2005 etc. dated 23rd July, 2008 and in M.A.T.
No. 4609 of 2006 dated 26th November, 2008. By the
impugned judgment dated 31st January, 2008, Division B
Bench of the High Court set aside the judgment of learned
Single Judge dated 21st May, 1999 in C.O. No.21365(W) of
1995 and disposed of the writ petitions preferred by
appellants-members of the Home Guards and their C
Association accordingly. By the impugned orders dated 23rd
July, 2008 and 26th November, 2008, learned Single Judge
and Division Bench of the High Court respectively disposed
of the writ petitions preferred by appellants-Home Guards
and appeals preferred by the State relying on observations D
made by Division Bench in F.M.A. No. 588 of2002.

2. The only question involved in these appeals is wh_ether the
appellants and other members of West Bengal Home Guards
are in services of the State and whether they are entitled for   E
regularization of their services or any other relief.

3. The appellants took. plea before the High Court that the
members of West Bengal Home Guards are in the services
of the State performin_g the same duty like police constables    F
who are Government employees. They are also entitled for
regularization of their services and regular pay at par with
the police personnel.

4. The aforesaid plea taken by the appellants were opposed G
by the State of West Bengal and Union of India. According
to them, the members of West Bengal Home Guards are
volunteers who are neither employees of the State nor entitled
for regular scale of pay and hence the question of
regularization of their services does not arise.               H
777
           SUPREME COURT REPORTS                      [2015) 2 S.C.R.


 A 5.      The submission on behalf of the appellants was
   accepted by the learned Single Judges of the High Court who
   directed the State to give equal salary, allowances and other
   benefits as allowed by service standard to police personnel of
   Class IV category. Against which, the appeals were preferred
 B by the State before the Division Bench. By the impugned
   judgment and orders High Court disposed of the said appeals
   and fresh writ petitions preferred by the Home Guards. By the
   impugned judgment dated 31st January, 2008, the Division
 C Bench of the High Court held thatthe members of Home Guards
   are volunteers. However, taking into consideration the
   sufferings and miseries so highlighted by the members of the
   Home Guards, the Division Bench observed:

       "We, however, express our desire that the legislature as
 D
       well as executives should re-think on the issue as to what
       best they can do within the frame work of the Constitution
       for welfare of the members of the home guard. They have
       given some benefits in deference to the desire of this
 E     Court as discussed above. We hope and trust in future
       they would try to give something more. We, however,
       cannot issue any direction on that score. It would be open
       for the legislature to re-enact the law on the subject. It
       would be open to the executives to extend further benefits
 F     if permissible within the scope of the said Act of 1962 as
       amended up-till date. We, abundantly make it clear that
       our desire should not be construed as any special right
       accrued in favour of the members of the home guard to
       claim as a matter of right any further benefit from the State.
 G     The State would be free to act in accordance with law.
       While doing so they should keep in mind the plight of the
       members of the home guard so highlighted by us as
       above and should consider their case sympathetically in
       the light of the observation made by us herein before."
 H
JIBAN KRISHNA MONDAL v. STATE OF WEST BENGAL 778
      [SUDHANSU JYOTI MUKHOPADHAYA, J.]

6.     It is informed that pursuant to judgment and orders A
passed by the High Court the State of West Bengal has
increased the duty allowance which is more than Rs.300 per
day.

STAND OF THE APPELLANTS                                        B
7.     The gist of the arguments advanced on behalf of the
appellants can be summarized as follows:

(i)      A bare reading of the provisions of the West Bengal C
Home Guards Act, 1962 (hereinafter referred to as '1962 Act')
and West Bengal Home Guards Rules, 1962 (hereinafter
referred to as '1962 Rules') clearly establishes that there is an
organized service called the Home Guard under the State and
there exists master and servant relationship between the Home D
Guards and the State Government. The State Government
exercises complete supervision and control over the work done
by the Home Guards and directs what work is to be done and
in what manner it is to be done. The Home Guards satisfies
all the following tests laid down by this Court in Balwant Rai E
Saluja vs. Air India Ltd. (2014) 9 SCC 407 to determine the
relationship of master and servant:

       (i)     who appoints the workers;
                                                               F
      (ii)     who pays the salary/remuneration;

       (iii)   who has the authority to dismiss;

       (iv)    who cari take disciplinary action;
                                                               G
      (v)      whether there is continuity of service; and

       (vi) extent of control and supervision i.e whether
       there exists complete control and supervision.
                                                               H
779         SUPREME COURT REPORTS                    [2015] 2 S.C.R.


 A    (ii)    The State Government failed to prescribe pay scale of
      the Home Guards which is one of the essential conditions of
      service. In the 1962 Rules, it was merely stated that the service
      would be voluntary and unpaid, which was never the intention
      of the Act. The Act never intended to create voluntary service
 B    of Home Guard.

   (iii) Rule 4 of the 1962 Rules is ultra vires the Act inasmuch the
   Act never contemplated that the service would be voluntary
   and unpaid. Rule 4 is also unconstitutional, being arbitrary
 C and being violative of Articles 14 and 16 of the Constitution of
   India and it amounts to forced labour under Article 23 of the
   Constitution.

   (iv)     Appellants were regularly appointed as per the
 D procedure prescri9ed under the said Act and Rules. The
   appointment letters of the appellants clearly state that they are
   appointed as members of Home Guard under the Act and while
   on duty they will have the same powers, functions and
   privileges as Police Officers appointed under the Police Act
 E (Act V), 1861. The appointment letters do not state that the
   appellants were appointed as volunteers. Even as per the
   finding of the Division Bench ofthe High Court in the impugned
   judgment "it is however an admitted fact for all practical
 F purposes that they are engaged on continuous basis upto the
   age of 60 years when then are disengaged because of their
   advance stage." It is thus wrong to contend thatthe appellants
   were appointed as volunteers and not as members of Home
   Guard.
 G
   (v)     West Bengal Home Guards (Amendment) Act, 1990
   was passed by the West Bengal Legislature whereby the word
   "member" was substituted by word "volunteer". However, the
   Act is not retrospective and came into force on 1st October,
 H 1989. It is pertinent to note that all the appellants were
                                                                          .·
JIBAN KRISHNA MON DAL v. STATE OF WEST BENGAL 780
      [SUDHANSU JYOTI MUKHOPADHAYA, J.)

appointed between .1966 and 1974, i.e. prior to coming into A
force of the Amendment Act. The Amendment Act has thus not
altered the status of the appellants from that being "member"
of Home Guards to "volunteer" of Home Guards.

(vi)    The Home Guards were initially paid Rs.2.50 per day B
which was enhanced to Rs.24.71, then to Rs.53, to Rs.117
and finally to RS.328 which is presently being paid. The
payment of Rs.328 per day to them who are duly trained is a
pittance and much be!ow the minimum scale of pay of the State
Government. Payment of wages below the minimum wages C
fixed under the Minimum Wages Act, 1948 amounts to forced
labour within the meaning of Article 23 of the Constitution. The
appellants are thus entitled to regular scale of pay from the
date of their appointment.
                                                                 D
STAND OF THE STATE OF WEST BENGAL

8.      On the other hand, according to learned counsel for the
State, in absence of any sanctioned post for members of Home
Guard, the appellants cannot claim to be employees of the E
State. The word "appointment" used in the Act and Rules
amounts to enrollment of members in the Home Guard. The
following submissions were also made:

       Section 7 of the Act provides that the members of           F
  Home Guard called out u/s 5 directly in aid of police force
  shall be under the control of officers of such force in such
  manner as may be prescribed by rules made u/s 9. This
  provision clearly indicates that whenever any member of
  Home Guard will be called he will discharge his duties.          G
  The expression ;'called out" clearly shows that their
  services are called. out only when they are required as·
  per the circumstances and thus they are not rendering
  any service like a permanent employee.                      "'
                                                                   H
781       SUPREME COURT REPORTS                     (2015) 2 S.C.R.


 A    Rule 4 provides that the service in the Home Guard shall
      ordinarily be voluntary. A plain reading of the objects/
      reasons and the provisions of the Act and the rules framed
      thereunder clearly indicates that the services of the
      members of the Home Guard are voluntary in character.
 B
      Like in other states, in West Bengal also the members
      of the Home Guard are meant for voluntary service and
      in effect they have accepted the above position for
      decades together and now at almost the fag end of their
 c    enrollment as member, they cannot demand thatthey\'l/ere
      entitled to be appointed in the substantive post and
      entitled to get any pay scale whatsoever.

      All throughout their enrollment as members they have
 D    received duty allowances, which were time to time fixed
      by the order of the Governor of West Bengal. Further in
      the affidavits the appellants have incorrectly used the
      expression "daily wages" instead of "duty allowance".
      Section 9 of the Act empowers the State Government to
 E    make rules in different fields including condition of service
      and allowances. But no pay has been prescribed in the
      rules made thereunder as well. But in terms of provisions
      of the Act duty allowance has been given to them as
      prescribed from time to time. Since the Act and Rules
 F
      did not prescribe any scale of pay, the question giving
      any pay scale did not and does not arise. But all
      throughout they were paid duty allowances. It cannot be
      said that the members of the Home Guard were treated
 G    as bonded labour because neither were they forced to
      work nor were they unpaid. They were paid a substantive
      amount which is called as Duty Allowance.

      It would be evident from t:ie statement of objects and
 H    reasons of the 1990 amendment, that the voluntary
JIBAN KRISHNA MONDAL v. STATE OF WEST BENGAL 782
      [SUDHANSU JYOTI MUKHOPADHAYA, J.]

  character of the Home Guards Organization and its              A
  members had not also been explicit in the 1962 Act
  because of use of the word "appointment as members",
  and this gave rise.to confusion and claims of permanent
  status. The amendment Act was brought in 1990 so as
  to clarify the voluntary character of the Home Guard           B
  Organization and that the volunteers were enrolled in
  honorary and voluntary capacity. The expression
  "Voluntary" was used in the 1960 Rules itself. If objects
  and reasons of the 1962 Act, 1990 Act and the provisions
                                                                 c
  of the Act and Rules are taken into consideration, it can
  be safely said that the status of the members of the Home
  Guan;:! are voluntary in character and only when they are
  called upon to discharge their duty they perform their duty.
   Further they are not entitled to get any pay or any other     D
  benefits except duty allowances which the State
  Government may time to time fix.

STAND OF THE UNION OF INDIA

9.      LearnedAttomey General appearing on behalf of Union      E
of India made the following submissions:

   The concept of Home Guards has always been voluntary.
   This concept originated after the Second World War. In
   India, it was first conceived as a force in 1946. The         F
   Bombay Home Guards Act, 1947 apparently was among
   the first few of such State enactments. Its preamble states
   that it is "a volunteer organization for use in
   emergencies ...... " Section 3 provides for appointment
                                                                 G
   of Home Guards, "who are fit and willing to serve ..... "
   Rule 8 of the Bombay Home Guard Rules, 1953 provides
   that the term of a Home Guard shall be three years.

   The following features are note-worthy in the said Act.
                                                                 H
783
             SUPREME COURT REPORTS                   (2015] 2 S.C.R.


 A          (i)    There is no salary, retirement benefits like
                   pension etc.

            (ii) There is no regular cadre.

            (iii) The term of Home Guard is only 3 years.
 8
            (iv)   Persons "fit and willing to serve" are to come
                   forward to join as Ho01e Guards.

            (v)    It is a volunteer organization.
 c
            (vi) No methodical system of recruitment.

              This Act has been extended to Delhi.

              A Careful perusal of almost all the State enactments
 0
       will show that the Organization was always meant to be
       voluntary and it consisted of people from all walks of life. In
      fact Government servants were also enrolled in the Home
      Guards to be called as and when the need arises. However
 E     such persons were to route their application through their
      employers with the employer's No objection to lend their
      service. In fact refusal of an employer or obstruction met with
      penal consequences. For the period when these enrolled
      person were called for Home Guard duty, their service was
 F    treated as continuing and salary was to be paid. This shows
      that Home Guards are not a separate full time employment
      but it was utilized for specific occasions. Realizing that the
       1962 Act did not use the term "volunteer" or "enrolment" and
      since there was a spate of litigations, the Act was amended in
 G    1990. The Statement of Objects and Reasons dated 18th April,
      1990 is critical. It states that the Act was passed in the wake
      of external aggression in 1962. It states that the voluntary
      character was also not explicit in 1962 Act and this gave rise
 H    to confusion and claims of permanent status. It was made
JIBAN KRISHNA MONDAL v. STATE OF WEST BENGAL 784
      [SUDHANSU JYOTI MUKHOPADHAYA, J.]

clear that the character of Home Guards shall be voluntary         A
where volunteers would be enrolled in honorary and voluntary
capacity. What was implicit was thus made explicit. The 1962
Act was made after more than 15 years of other State Acts.
The legislature of the State would be aware of the legislatures
in different parts of the country dealing with the same issue      B
and had framed it accordingly. By virtue of amendment, the
concept of voluntary nature of service and voluntary
organization was made clear.

        The amendment is thus purely clarificatory. It made C
explicit what was implicit before. Clarificatory amendments will
be retrospective in nature since the intention of the Act would
be deemed to be right from the inception. Hence the term
voluntary and enrolment will always be deemed to have been D
there.

10.    For determination of the issue, it is necessary to notice
the 'Genesis' of Home Guards Organization and relevant
provisions of Acts and Rules framed by State of West Bengal
with regard to Home Guards Organization.                           E

11.    Genesis

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

       "1.1. Genesis
                                                                   G
        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       H
785      SUPREME COURT REPORTS                  [2015] 2 S.C.R.


 A    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
 B    ChineseAggression 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.
 c
          1.2.   Role

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

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

 E        (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
 F
      water and power supply in installations etc.

          (d)     Promote communal harmony and give
      assistance to the administration in protecting weaker
      sections of the Society.
 G
           (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."
 H
JIBAN KRISHNA MONDAL v. STATE OF WEST BENGAL 786
      [SUDHANSU JYOTI MUKHOPADHAYA, J.]

WEST BENGAL HOME GUARDS ACT, 1962                                A
12.    Initially, West Bengal Home Guards Ordinance, 1962
(West Bengal Ordinance XI of 1962) was promulgated. In
exercise of the power conferred u/s 9 of the said Ordinance,
the Government of West Bengal, Home Department, Police           B
by notification No.4583P 1 dated 13th November, 1962
framed "The West Bengal Home Guards Rules, 1962".

      The Ordinance subsequently was made an Act known
as "The West BengC)I Home Guards Act, 1962.                      c
        From Statement of Objects and Reasons shown in (Part
IVA) the Calcutta Gazette Extraordinary dated 14th November,
1962, we find that the Home Guard Organization was raised
after the Chinese aggressiori. The Statement of Objects and D
Reasons reads as follows:

      "STATEMENT OF OBJECTS AND REASONS

       In connection with the defence of the country against
  external aggression it has been found necessary to raise       E
  an organization of Home Guards, the members of which
  may be called out for the protection of persons, the
  security of property or the public safety and for such other
  allied functions as may be assigned to them according
                                                                 F
  to circumstances: Accordingly, the West Bengal Home
  Guards Ordinance, 1962, was made and promulgated
  by the Governor under clause (1) of Article 213 of the
  Constitution. The present Bill is intended to enact the
  provisions of the said Ordinance. The clauses of the Bill      G
  are self-explanatory."

     Section 3 of the Act relating to constitution of Home
Guards reads as follows:
                                                                 H
78"1         SUPREME COURT REPORTS                    [2015] 2 S.C.R.


  A       "3. Constitution of Home Guards. The
          Superintendent of Police in a district or the
          Commissioner of Police in Calcutta may constitute for
          the district or Calcutta, as the case may be, a body to
          be called the Home Guards, the members of which shall
  B       discharge such functions in relation to the protection of
          persons, the security of property or the public safety as
          may be assigned to them in accordance with the
          provisions of this Act and the rules made thereunder."
  c           As per Section 5 of the Act, the Superintendent of Police
       may at any time. call out a Home Guard for training or to
       discharge any of the functions assigned to the Home Guard in
       accordance with the provisions of the Act.

  D         In the year 1990 by notification No.1189-1 dated 30th
    July, 1990, the West Bengal Home Guards (Amendment) Act,
     1990 was notified. It was given effect from 1st October, 1989.
    By the said amendment in place of a 'body' 'a body of
    volunteers' was substituted in Section 3. Similarly, by Section
  E 7 oftheAmendmeritActtheword 'member' in Section 6 was
    substituted by the word 'volunteers'. By Section 8 of the
    Amendment Act in Section 7 the word 'Member" was
    substituted by the word 'volunteers'. By Section 9 of the
  F Amendment Act the word 'members' in Section 8 was
    substituted by word 'volunteers' and in place of words 'as a
    member of the Home Guards' the words 'as such volunteer'
    were substituted. By Section 10 of the Amendment Act, in
    clause (b) of sub Section 2 of Section 9 of the Act the word
  G 'enrolment' was substituted in place of the word 'appointment'
    and for the word 'members' the word 'volunteers' was
    substituted. Similar substitutions were made in different
    clauses of Section 9.

  H
JIBAN KRISHNA MON DAL v. STATE OF WEST BENGAL 788
      [SUDHANSU JYOTI MUKHOPADHAYA, J.]

WEST BENGAL HOME GUARDS RULES, 1962                              A

13.      Rule 3 deals with appointment and reads as follows:

       "3. Appointment (i) Application for enrolment as
  members of the Home Guards shall be in the form set
                                                                 B
  out in Schedule A to these rule and shall be presented to
  the Group Commander of the fjrea within which the
  applicant resides. The Group Commander shall interview
  the candidate and shall forward the application with his
  recommendations through the Home Guard                         c
  Commandant to the appointing authority and such
  authority may, in its discretion, refuse to accept any
  particular recommendation for appointment. All recruits
  shall be formally enrolled with due ceremony on parade,
  provided that before such enrolment, a recruit shall if he     D
  is in service, be required to produce a certificate from
  his employer agreeing to spare his services for training
  and duty When so required."

          Rule 4 relates to conditions of service, as quoted     E
      below:

          "4.Conditions of service-Save as the State
      Government may otherwise direct in the case of any class
      of officers, service in the Home Guards shall ordinarily   F
      be voluntary and unpaid.

          Provided that the State Government may determine
      the allowances t6 be paid to the members of the Home
      Guard when calls out on duty."                             G

         Rule 7 relates to duties as follows:

          "7.Duties-Members of the Home Guards may be
      called out on duty.
                                                                 H
789          SUPREME COURT REPORTS                   [2015] 2 S.C.R.


 A          (i)to assistthe police force in the protection of Civil
         population against the forces of crime and disorder;

            (ii)to work in close touch with Civil Defence
         Organization;
 B
             (iii)to perform such duties in connection with the
         protection of persons, the security of property or the
         public safety as the State Government may, from time to
         time, by rule assign to them."
 c
             Rule 8 relates to order for calling out Home Guards and
      reads as follows:

             "8. Order for calling out Home Guard-A Home
         Guard in its entirely or such portion thereof as the
 D
         Superintendent of Police or the Commissioner of Police,
         as the case may be, thinks fit may be called out on any
         particular occasion and for such purpose a written order
         shall be issued in a district by the Superintendent of
 E       Police and in Calcutta by the Commissioner of Police."

      14. From plain reading of the aforesaid Rules, the following
      facts emerge:

      (i) West Bengal Home Guards are enrolled as member of the
 F    Home Guard in the form set out in Schedule A of the Rules.

  (ii) The Home Guards shall ordinarily be volunteers and unpaid.
  But the State Government may determine the allowances to
  be paid to the members of the Home Guard when they are
G called out for duty,

      (iii)There is no fixed duty for members of the Home Guard.
      When they are called out for duty, they shall assist the police
      force in the protection of civil population against the forces of
H
JIBAN KRISHNA MON DAL v. STATE OF WEST BENGAL 790
      [SUDHANSU JYOTI MUKHOPADHAYA, J.]

crime and disorder. They have to work in close touch with Civil A
Defence Organization and have to perform such duties in
connection /with the protection of persons, the security of
property or the public safety as the State Government may,
from time to time, determine.
                                                               B
       Therefore, ifthe 1962Act is read with 1962 Rules, we
find that members of Home Guards are ordinarily unpaid
volunteers for whom the State Government shall determine the
pay and allowances when called out for duty.
                                                               c
15. The voluntary character of the Home Guards Organization
was not explicit in the 1962 Act because of the use of word
"appointment as members", though it was explicit from 1962
Rules as noticed above.
                                                               D
       For the reasons aforesaid, the State Government
issued Amendment Act, 1990.

16. The Statement of Objects and Reasons of amended 1990
Act reads as follows:                                          E

      "STATEMENT OF OBJECTS AND REASONS

           Home Guard Organization was created in West
  Bengal in the wake of the external aggression on India in
  1962 and the West Bengal Home Guard Act was passed           F
  in the same year. Since the passing the Act, there have
  been many changes in the working of the organization
  as a result of which the Act has become outdated. There
  is no reference in the 1962 Act to the post of
                                                               G
  Commandant General, Home Guards, West Bengal
  which was created long after the enactment of the current
  Act. Although the Commandant General, Home Guards,
  West Bengal has been given the task of commanding
  and controlling Home Guards Organization in the districts    H
791
            SUPREME COURT REPORTS                    (2015] 2 S.C.R.


 A       in West Bengal and administrating Home Guards Budget,
         legally he cannot issue any direction to the
         Superintendent of Police or to other police officers
         posted in the Home Guard section of the district. There
         is hence absence of a chain of command in the Home
 B       Guards Organization.

             The voluntary character of the Home Guards
         Organization and its voluntary members had not also
         been explicit in the 1962 Act because of use of the word
 c       "appointment as members", and this gave rise to
         confusion and claims of permanent states.

             In view of the above reasons, the present
        amendment to West Bengal Home Guard Act, 1962 is
 D      proposed with the objectives of establishing the control
        of Commandant General, Home Guard, West Bengal
        over Home Guards Organization in West Bengal districts
        and defining the ex officio capacity of Additional
        Commandant General, Home Guard of the
 E      Commissioner of Police in Calcutta and of making clear
        the voluntary, character of the Home Guard Organization
        where volunteers are enrolled in honorary and voluntary
        capacity.
 F      The Bill has been framed with the above objects in view."

        Thereby the intention of the Legislature to create a voluntary
      Home Guard Organization is made clear.

G     17. In Rajesh Mishra v. Govt. of NCT of Delhi, 98 (2002)
      DLT 624, the High Court speaking through S.B. Sinha,J held
      that that the Home Guards is a voluntary organization and there
      is no Master-Servant relationship between Government and
      Home Guards. It )Nas held that they are not civil servants and
H
 JIBAN KRISHNA MONDAL v. STATE OF WEST BENGAL 792
       [SUDHANSU JYOTI MUKHOPADHAYA, J.)

they cannot move before the Tribunal u/s 19 of the                  A
Administrative Tribunal Act.

18. In State of Manipur and another v. Ksh.
Moirangninthou Singh and others, (2007) 10 SCC 544,
·this Court reiterated the voluntary nature of service of members   B
 of Home Guard and held:

    "8. It may be noted that Home Guards have been
    constituted as a voluntary organisation for service in
    emergencies and hence it cannot be treated on a par             c
    with other organisations like the army, paramilitary
    organisations or the civil police .

    .11. A perusal of the provisions of the Home Guards Act
    and the Rules show that the Home Guards was meant               D
    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         E
    v. Govt. of NCT of Delhi.

    13. The concept of Home Guards was of a voluntary
    citizen force as auxiliary to the police for maintaining law
    and order and for meeting emergencies like floods, fires,       F
    famine, etc. and for civil defence."
19. A Careful perusal of genesis of Home Guards and its role
will show that the Organization was always meant to be
voluntary and it consisted of people from all walks of life. In
fact Government servants were also enrolled in the Home G
Guards to be called as and when the need arises. A large
number of State enactments i.e. Andhra Pradesh Home Guards
Act, 1948, Bombay Home Guards Act, 1947, Assam Home
Guards Act, 1947, Manipur Home Guards Act, 1966, Madhya
Pradesh Home Guards Act, 1947, Punjab Home Guard Act, H
793           SUPREME COURT REPORTS                    (2015] 2 S.C.R.


 A    1947, Rajasthan Home Guards Act, 1963 etc. placed before
      this Court in compilation by learned Attorney General during
      the hearing makes it clear that the provisions of all these
      enactments are more or less similar. The voluntary nature is a
      basic feature of the Home Guards.
 B    20. Majority of the appellants has attained the maximum age
      and are no more members of the Home Guards. The
      appointment letters enclosed by the remaining category of
      appellants, do not suggest that they are performing duty all ·
      over the year like any Government servant. There is nothing
 c    on the record to suggest the master-servant relationship. They
      were appointed pursuant to Home Guard Rules, 1962 and it
      is made clear that their services are voluntary and will not get
      any pay but the duty allowance as may be fixed by the State
      Government from time to time.
 D            In that view of the matter, we hold that the appellants
      are not entitled for regularization of service. Further, in absence
      of any comparison of duties, responsibilities, accountability
      and status, they may not be equated with the Police Constables
      or personnel to claim parity with the pay or scale of pay as
      provided to the Police personnel. The High Court by the
 E    impugned judgment and orders rightly refused to grant
      regularization of their services. We find no merit in these
      appeals and they.are accordingly dismissed.
      Nidhi Jain                                       Appeals dismissed.

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