Gujarat High Court
Mukesh Arsibhal Karmur vs State Of Gujarat on 19 February, 2026
NEUTRAL CITATION
C/SCA/17518/2019 CAV JUDGMENT DATED: 19/02/2026
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Reserved On : 12/02/2026
Pronounced On : 19/02/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17518 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 23127 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 384 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
==========================================================
Approved for Reporting Yes No
✓
==========================================================
MUKESH ARSIBHAL KARMUR & ORS.
Versus
STATE OF GUJARAT & ORS.
==========================================================
Appearance in SCA/17518/2019:
MR AKSHAT KHARE(5912) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,3
2,33,34,35,36,37,38,39,4,40,41,42,43,44,45,46,47,48,49,5,50,51,52,53,54,5
5,56,57,58,59,6,60,61,62,63,64,65,66,67,68,69,7,70,71,72,73,74,75,76,77,8
,9
MRS SUMAN KHARE(2226) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,3
2,33,34,35,36,37,38,39,4,40,41,42,43,44,45,46,47,48,49,5,50,51,52,53,54,5
5,56,57,58,59,6,60,61,62,63,64,65,66,67,68,69,7,70,71,72,73,74,75,76,77,8
,9
MS. DHRUTI PANDYA, AGP for the Respondent(s) No. 1,2
MR SHUSHIL R SHUKLA(5603) for the Respondent(s) No. 3
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Appearance in SCA/23127/2019:
MR AKSHAT KHARE(5912) for the Petitioner(s) No. 1
MRS SUMAN KHARE(2226) for the Petitioner(s) No. 1
PETITION/APPEAL WITHDRAWN/DISMISSED for the Petitioner(s) No. 2,3
MS. DHRUTI PANDYA, AGP for the Respondent(s) No. 1,2 – STATE
NOTICE SERVED for the Respondent(s) No. 3
==========================================================
Appearance in SCA/384/2020:
MR AKSHAT KHARE(5912) for the Petitioner(s) No. 10,11
MRS SUMAN KHARE(2226) for the Petitioner(s) No. 10,11
MS. FORUM SHAH, AGP for the Respondent(s) No. 1,2 – STATE
NOTICE SERVED for the Respondent(s) No. 3
==========================================================CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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COMMON CAV JUDGMENT
1. Rule returnable forthwith. Learned AGPs and
learned advocate for the respondents waive service of
rule on behalf of respective respondents. With consent of
the parties, the matter is taken up for final hearing.
2. Heard Mr. Akshat Khare, learned advocate for the
petitioner/s, and Ms. Forum Shah and Ms. Dhruti
Pandya, learned AGPs for the respondent-State in
respective petitions and Mr. Shushil R. Shukla, learned
advocate for the respondent No.3-Union of India in SCA
No. 17518 of 2019.
3. Since this batch of captioned petitions raises
common issues and seek common reliefs, they are beingdecided by way of this common judgment. To understand
and answer the issue germane in the present matters, I
would like to take the facts and prayers from Special
Civil Application No. 23127 of 2009, treating it as the
lead matter.
4. The present writ petition is filed under Article 226
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of the Constitution of India, inter alia, seeking following
reliefs:
“A) Your Lordship may be pleased to issue a writ of mandamus
or any other writ appropriate writ, order or direction directing
the respondent authorities to treat the members of the Home
Guards at par with equal grade of State Police Force.
B) Your Lordship may be pleased to issue a writ of mandamus or
any other writ appropriate writ, order or direction directing the
respondent to grant service benefits like pay fixation, leave
overtime, medical allowances, travelling allowances, retiral
benefits like provident fund like pension, gratuity, etc. to the
petitioners along with arrears by considering their service from
the date of appointment as Home Guard.
C) Your Lordship may be pleased to issue a writ of mandamus or
any other writ appropriate writ, order or direction directing the
respondent authorities to declare the petitioners as permanent
and fulltime member of Home Guard force and to treat them at
par with the State Police Force in terms of service condition &
benefits.
D) Your Lordship may be pleased to issue a writ of mandamus or
any other writ appropriate writ, order or direction directing the
respondents authorities to verify the numbers of Home Guard in
the State by removing the members of Home Guards who have
already joined other employment.
E) During the pendency of the present petition, your lordships
may be pleased to restrain the respondent authorities from
terminating the service of the petitioners or changing the service
conditions of the petitioners in terms of order under Section 33C
of the Industrial Disputes Act, 1947.
F) During the pendency of the present petition, your lordships
may be pleased to direct the respondent authorities to place on
record the entire details regarding vacancies in the Police Force
against the total sanctioned strength from 2002 to 2019 and also
place on record the data showing the work taken from the Home
Guards for the last 5 years due to short fall in the police force.
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G) Your Lordship may please to pass such order and further
directions as the nature of the case may require;”
5. BRIEF FACTS:
5.1 All the petitioners have been appointed by the
respondent-authority under Section 3 of the Bombay
Home Guards Act, 1947 (hereinafter referred to as ” the
Act, 1947″). Prior to their appointments, they were
subjected to physical tests and written tests, and as they
have cleared the same, accordingly, respondent hasappointed them as Home Guards. The petitioners have
also undergone training for imparting their duties as
members of Home Guard.
5.2 As per scheme of the Act, 1947, to provide
voluntary organization for use in emergencies and for
other purposes in the State of Gujarat, services of Home
Guards availed. The respondent-State used to pay per
day fixed allowance of Rs.304/- to Home Guards and the
same is revised from time to time. Nonetheless, the
Home Guard would not receive any monthly salary like
police personnel of State.
5.3 The petitioners are serving as Home Guards since
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long and felt that considering the nature of their duties
and as working almost for 27 days in a month, entitled
to receive the regular pay and other service benefits,
which otherwise available to the State Police Force.
Hence, preferred this petitions.
6. SUBMISSIONS ON BEHALF OF PETITIONER/S:
6.1 Mr. Khare, learned advocate for the petitioner/s,
would submit that as per the scheme of the Act, 1947,
and the nature of duties discharged by the petitioners as
Home Guards, they are entitled to receive similar pay
and other benefits given by respondent to its State
Police Force. It is submitted that as per Section 2 of the
Act, 1947, every Home Guard requires to discharge their
duties like protection of person, security of property,public safety and maintenance of essential services, etc.
6.2 Mr. Khare, learned advocate, would further submit
that apart from the aforesaid duties, Home Guards are
required to guard the public buildings, patrolling for the
purpose of prevention of crime, provide assistance to the
ordinary police force. They are also subjected to transport
from one area to another. All the aforesaid works are
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similar to the work discharged by State Police Force, but
paid only fixed daily allowance thereof, instead of
monthly pay.
6.3 Mr. Khare, learned advocate, would further submit
that all Home Guards are available for their services
throughout the year, and considering the fact that nature
of their services and requirements is perennial in nature,
such Home Guards are required to be given equal pay
for equal work.
6.4 Mr. Khare, learned advocate, would submit that the
issue germane to the matter is squarely covered by the
decision of this Court in the case of Gajaji Gopaji Jadeja
Vs. State of Gujarat reported in (2005) 2 GLR 1142. It
is submitted that in a case of Border Wing HomeGuards, this Court has accepted their plea to grant all
regular pay and other service benefits as available to the
State Police Force. It is further submitted that such
decision was even not disturbed by the Division Bench of
this Court as well as the Hon’ble Apex Court dismissed
the appeal filed by the State.
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6.5 Making the above submissions, learned
advocate for the petitioners would request this Court to
allow the present writ petition.
6.6 To buttress his arguments, he would rely on the
following judgments:
(i) State of W.B. And Others Vs. Pantha Chatterjee And
Others reported in (2003) 6 SCC 469.
(ii) Gajaji Gopaji Jadeja (supra).
(iii) State of Gujarat Vs. Gajaji Gopaji Jadeja rendered in
Letters Patent Appeal No. 712 of 2005 dated 06.04.2011.
(iv) State of Gujarat Vs. Gajaji Gopaji Jadeja rendered in Civil
Appeal No.8815 of 2017.
7. SUBMISSIONS ON BEHALF OF RESPONDENTS:
7.1 Per contra, Ms. Pandya and Ms. Shah, learned AGP
appearing for the respondent-State, have vehementlyopposed the prayers of the petitioners contending, inter
alia, that the issue germane in the matter is not covered
by the cited decisions. It is submitted that appointmentof Home Guard cannot be equated with regular State
Police Force, and as such, Home Guards are not entitled
to receive regular pay as claimed.
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7.2 Learned AGP would further submit that nature of
the duties and works of Home Guards and State Police
Force are not equal and similar as claimed. It is
submitted that as per object of the Act, 1947, to provide
voluntary organization for use in emergencies and for
other purposes in the State, the appointment of Home
Guards undertaken. It is submitted that unlike State
Police Force, no power of investigation, arrest and to
receive complaint, etc., is available with Home Guards.
7.3 Learned AGP would further submit that facts of the
case of Gajaji Gopaji Jadeja (supra), are not so similar
to the facts of the present case, inasmuch as in the
cited case, the petitioner concerned was appointed as
Border Wing Home Guard, whose services are required
24×7 to protect the border of the country. The selection
criteria of Border Wing Home Guards are different from
the ordinary Home Guards like petitioners. It is further
submitted that as per rules of recruitment of Border
Wing Home Guards, it requires that the persons
concerned recruited as Border Wing Home Guard are
found to be residing within 50 kilometers of concerned
border, whereas there is no such area requirement for
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recruitment of ordinary Home Guard under the Act, 1947
and the rules framed thereunder. It is also submitted
that unlike Border Wing Home Guards, ordinary Home
Guards can pursue their own vocation, as the
requirements of Border Wing Home Guards are for 365
days.
7.4 Learned AGP would further submit that principle of
equal pay for equal work would not be applicable to the
present case, inasmuch as Home Guards are not in a
position to show that all the duties discharged by them
are similar as discharged by any State Police Force. It is
submitted that as per settled position of law, unless it is
established on record that nature of duties so discharged
by petitioner is similar to other employee, no benefits of
similar pay of such employee can be claimed by the
petitioners.
7.5 Learned AGP would further submit that as such,
the issue germane to the matter is settled down by the
Hon’ble Apex Court in its following decisions, wherein it
has been categorically held that requirement of Home
Guard is in the necessity and as such, their services are
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not perennial in nature, thereby they cannot seek
regularization of their engagement.
7.6 Making the above submissions, learned AGP would
request this Court to dismiss the present writ petition.
7.7 To buttress her arguments, learned AGP would rely
upon the following judgments:
(i) Grah Rakshak, Home Guards Welfare Association Vs.
State of Himachal Pradesh and Others reported in (2015) 6
SCC 247.
(ii) State of Manipur And Another vs Ksh. Moirangninthou
Singh reported in (2007) 10 SCC 544.
(iii) State Of Uttarakhand And Others Vs. Ram Bahadur
Maurya And Another rendered in Special Appeal No. 489 of
2017 dated 17.04.2018 reported in 2018 Lawsuit(Utt) 161.
8. Mr. Shukla, learned advocate for the respondent
No.3-Union of India appeared in SCA No. 17518 of 2019,
would submit that as such, essential reliefs, sought by
the petitioners, are against the respondent-State; yet, Mr.
Shukla, learned advocate for the respondent No.3-Union
of India would adopt the arguments put forth by learned
AGP appearing for the respondent-State.
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9. No other and further submissions have been made
by the learned advocates for the respective parties.
ANALYSIS:
10. Having heard the learned advocates for the
respective parties and after perusal of their pleadings
and documents, it appears that all the petitioners are
appointed as Home Guards by respondent as per Act,
1947. As per nature of appointment and object of the
Act,1947, their services are to be taken in case of
emergency. The Home Guards are paid daily allowance.
There is no prerequisite to assign everyday duty to all
Home Guards, but as and when the requirement arises
or in emergency, they are called and deputed to various
places across the State by the Commandant.
10.1 The nature of duty and functions mentioned in
Section 2 of the Act, 1947 would be to the protection of
persons, security of property, public safety, maintenance
of essential services, etc. It is true that a member of
Home Guard when called out under Section 4 of the Act,
1947, shall have the same powers, privileges and
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protection as an officer of police appointed under any Act
for the time being in force. Even no prosecution shall be
instituted against a member of Home Guard in respect
of anything done by him in discharge of his function,
except with the previous sanction of the Commissioner of
Police or District Magistrate, as the case may be. At the
same time Section 6 of the Act, 1947, it is clear that
member of the Home Guard would become in aid of
police force, thereby under control of officers of police
force. However, it does not mean that the nature of
duties and functions of Home Guards is akin to those of
the State Police Force. The object of Act, 1947 itself
suggests that Home Guards are utilized as a voluntary
organization for emergency purposes; consequently, their
services cannot be characterized as being perennial in
nature.
11. To test the arguments of Mr. Khare, learned
advocate for the petitioners, I would like to reproduce
the relevant sections of the Act, 1947 and Gujarat Police
Act, 1951 (hereinafter referred to as ” the Act, 1951″) to
demonstrate the distinction between the duties discharged
by the Home Guards and the State Police Force.
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11.1 The relevant provisions of Sections 2, 4 to 7 of
the Act, 1947 are as follows:
“2. (1) The [ State ] Government shall constitute for each of the
areas specified in sub-section (3) of section 1 and for each of the
areas notified under the said sub-section (3) a volunteer body
called the Home Guards, the members of which shall discharge
such functions and duties in relation to the protection of
persons, the security of property, the public safety and the
maintenance of essential Services as may be assigned to them in
accordance with the provisions of this Act and the rules made
thereunder.
(1A) In respect of the Saurashtra area and the Vidarbha region,
the Home Guards raised or constituted, immediately before the
commencement of the Bombay Home Guards (Extension and
Amendment) Act, 1958, shall be deemed to be constituted under
sub-section (1) ].
(2) The [State] Government shall appoint a Commandant of
each of the Home Guards constituted under sub-section (1).
(3) The State Government shall also appoint a Commandant
General of the Home Guards in whom shall vest the general
supervision and control of the Home Guards throughout the
State of Gujarat.
4. (1) The Commandant may at any time call out a member of
the Home Guards for training or to discharge any of the
functions or duties assigned to the Home Guards in accordance
with the provisions of this Act and the rules made thereunder.
(2) The Commandant General may in an emergency call out a
member of the Home Guards for training or to discharge any of
the said functions or duties in any part of the State of Gujarat.
5. (1) A member of the Home Guards when called out under
section 4 shall have the same powers, privileges and protection
as an officer of police appointed under any Act for the time
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being in force.
(2) No prosecution shall be instituted against a member of the
Home Guards in respect of anything done or purporting to be
done by him in the discharge of this functions or duties as such
member except with the previous sanction of the Commissioner
of Police in any area for which a Commissioner of Police has
been appointed and of the District Magistrate, elsewhere.
6. The members of the Home Guards when called out under
section 4 in aid of the police force shall be under the control of
the officers of the police force in such manner and to such extent
as may be prescribed by rules’ made under section 8.
6A. (1) Every person who for any reason ceases to be a member
of the Home Guards shall forth with deliver upto the
Commandant or to such person and at such place as the
Commandant may direct, his certificate of appointment or of
office and the arms, accoutrements, clothing and other
necessaries which have been furnished to him as such member.
(2) Any Magistrate, and for special reasons which shall be
recorded in writing at the time, any police officer not below the
rank of a Deputy Commissioner for Police in any area for which
a Commissioner of Police has been appointed and Assistant or
Deputy Superintendent of Police elsewhere, may issue a warrant
to search for and seize, wherever they may be found, any
certificate, arms, accoutrements, clothing or other necessaries
not so delivered up. Every warrant so issued shall be executed
in accordance with the provisions of the Code of Criminal
Procedure, 1898, by a police officer of if the Magistrate or the
police officer issuing the warrant so directs by any other person.
(3) Nothing in this section shall be deemed to apply to any
article which under the orders of the Commandant General has
become the property of the person to whom the same was
furnished.
6B. (1) The Commandant shall have the authority to suspend,
reduce or dismiss or fine, to an amount not exceeding fifty
rupees, any member of the Home Guards, under his control, if
such member, without reasonable cause, on being called out
under section 4 neglects or refuses to obey such order or to
discharge his functions and duties as a member of Home Guards
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or to obey any lawful order or direction given to him for the
performance of his functions and duties or is guilty of any
breach of discipline or misconduct. The Commandant shall also
have the authority to dismiss any member of the Home Guards
on the ground of conduct which has led to his conviction on a
criminal charge. The Commandant General shall have the like
authority in respect of any member of the Home Guards
appointed to a post under his immediate control.
(1A) Notwithstanding anything contained in this Act, the
Commandant shall have the authority to discharge any member
of the Home Guards at any time subject to such conditions as
may be prescribed if, in the opinion of the Commandant, the
services of such members are no longer required. The
Commandant General shall have the like authority in respect of
any member of the Home Guards appointed to a post under his
immediate control.
(2) When the Commandant General or the Commandant passes
an order for suspending, reducing, dismissing or fining any
member of the Home Guards under sub-section (1), he shall
record such order or cause the same to be recorded, together
with the reasons therefore and a note of the inquiry made, in
writing, and no such order shall be passed by the Commandant
General or the Commandant unless the person concerned is
given an opportunity to be heard in his defence.
(3) Any member of the Home Guards aggrieved by an order of
the Commandant may appeal against such order to the
Commandant General and any such member aggrieved by an
order of the Commandant General may appeal against such
order to the State Government, within thirty days of the date on
which he was served with notice of such order. The
Commandant General or the State Government, as the case may
be, may pass such order as he or it thinks fit.
(4) The Commandant General or the State Government may at
any time call for and examine the record of any order passed by
the Commandant or Commandant General, respectively, under
sub-section (1) or (1A) for the purpose of satisfying himself or
itself as to the legality or propriety of such order passed by the
Commandant or the Commandant General, as the case may be,
and may pass such order with reference thereto as he or it
thinks fit.
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(5) Every order if no appeal is made therefrom as hereinbefore
provided and every order passed in appeal or revision under
this section shall be final.
(6) Any fine imposed under this section may be recovered in the
manner provided by the Code of Criminal Procedure, 1898, for
the recovery of fines imposed by a Court as if such fine were
imposed by a Court.
(7) Any punishment inflicted on a member of the Home Guards
under this section shall be in addition to the penalty to which
such member is liable under section 7 or any other law for the
time being in force.
7.(1) If any member of the Home Guards, on being called out
under section 4, without reasonable excuse, neglects or refuses
to obey such order, or to discharge his functions as a member of
the Home Guards, or to obey any lawful order or direction
given to him for the performance of his duties, he shall, on
conviction, be punishable with simple imprisonment for a term
which may extend to three months or with fine which may extend
to two hundred and fifty rupees or with both.
(1A) If any member of the Home Guards wilfully neglects or
refuse to deliver up his certificate of appointment or of office or
any other article, in accordance with the provisions of sub-
ection (1) of section 6A, he shall, on conviction, be punished
with imprisonment for a term which may extend to one month or
with fine which may extend to one hundred rupees or with both.
(2) No proceedings shall be instituted under sub-section (1) or
(1A) without the previous sanction of the Commandant.
(3) A police officer may arrest without warrant any person who
commits an offence punishable under sub-section (1) or (1A).”
11.2 The relevant provisions of Sections 2(4), 28, 64,
66 to 68, 71 to 73 of the Act, 1951 are as follows:
“2 …
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(4) “constable” means a police officer of the lowest grade and
includes a Lok Rakshak;
28. (1) Every Police officer not on leave or under suspension
shall for all purposes of this Act be deemed to be always on duty,
and any Police officer or any number or body of Police officers
allocated for duty in one part of the State may, if the State
Govermnent or the Inspector General so directs, at any time, be
employed on Police duty in any other part of the State for so long
as the services of the same may be there required.
(2) Timely intimation shall, except in cases of extreme urgency,
be given to the District Magistrate by the Inspector General of
any proposed transfer under this section, and except, where
secrecy is necessary the reasons for the transfer shall be
explained; whereupon the officers aforesaid and their
subordinate shall give all reasonable furtherance to such
transfer.
64. It shall be the duty of every Police officer-
(a) promptly to serve every summons and obey and execute every
wanant or other order lawfully issued to him competent
authority, and to endeavour by all lawful means to give effect to
the lawful commands of his superior:
(b) to the best of his ability to obtain intelligence concerning the
commission of congnizable offences or designs commit such
offences, and to lay such information and to take such other
steps, consistant with law and with the orders of his superiors as
shall be best calculated to bring offenders to justice or to prevent
the commission of cognizable and within his view of non-
ognizable offences;
(c) to prevent to the best of his ability the commission of public
nuisances;
(d) to apprehend without umeasonable delay all persons whom
he is legally authorised to apprehend and for whose
apprehension there is sufficient reason;
(e) to aid another Police officer when called on by him or in case
of need in the discharge of his duty, in such ways as would be
lawful and reasonable on the part of the officer aided;
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(f) to discharge such duties as are imposed upon him by any law
for the time being in force.
66. It shall be the duty of every Police Officer-
(a) to afford every assistance within his power to disabled or
helpless persons in the streets, and to take charge of intoxicated
persons and of lunatics at large who appear dangerous or
incapable of taking care of themselves;
(b) to take prompt measures to procure necessary help for any
person under arrest or in custody, who is wounded or sick and
whilst guarding or conducting any such person, to have due
regard to his condition;
(c) to arrange for the proper sustenance and shelter of every
person who is under arrest or in custody;
(d) in conducting searches, to refrain from needless rudeness and
the causing of unnecessary annoyance;
(e) in dealing with women and children to act with strict regard
to decency and with reasonable gentleness;
(f) to use his best endeavours to prevent any loss or damage by
fire;
(g) to use his best endeavours to avert any accident or danger to
the public.
67. It shall be the duty of a Police Officer-
(a) to regulate and control the traffic in the streets, to prevent
obstructions therein and to the best of his ability to prevent the
infraction of any rule or order made under this Act or any other
law in force for observance by the public in or near the streets;
(b) to keep order in the streets and at and within public bathing,
washing and landing places fairs, temples, and all other places
of public resort and in the neighbourhood of places of public
worship during the time of public worship;
(c) to regulate resort to public bathing, washing and landing
places, to prevent overcrowdig thereat and in public ferry-boats
and to the best of his ability, to prevent the infraction of any rule
or order lawfully made for observance by the public any such
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place or on any such boat.
68. All persons shall be bounded to conform to the reasonable
directions a Police officer given in fulfilment of any of his duties
under this Act.
71. It shall be the duty of the Police to see that every regulation
and direction made by any authority under sections 43, 55, 56,
57 or 63AA is duly obeyed to warn persons who from ignorance
fail to obey the same and to arrest any person who wilully
disobeys the same.
72. Any Police officer may, without any order from a Magistrate
and without
(1) any person who has been concerned in an offence
punishable under section 121 or against whom a reasonable
complaint has been made or credible information has been
received or a reasonable suspicion exists, of his having been
concerned in such offence;
(2) any person who contravences a rule or order under clause
(x) of subsection (1) of section 33 or an order or an order or
notification under section 36, 3 7, 56 57 or 63AA;
(2A) any person who contravences any order made under sub-
section (I) of section 63 A;]
(3) any person who commits an offence punishable under
section 122 or section 136.
73. Any Police officer may, without an order from a Magistrate
and without a warrant, arrest any person committing in his
presence any offence punishable under section 3, 3A, 4, 5, 6 or
6C of the Prevention of Cruelty to Animals Act, 1890 or of that
Act as in force in the Saurashtra area of the State of Gujarat.
73A. Section 6B of the Prevention of Cruelty to Animals Act,
1890, as in force in the Bombay area of the State of Gujarat
(hereinafter in this section and in section 74, 75 and 77 referred
to as the said Act) is, for the purposes of sections 74 to 77 (both
inclusive) hereby extended to, and shall be in force in, the
remaining areas of the State of Gujarat he and in consequence
thereof, any provisions corresponding thereto or dealing with
the like matter, force in any such areas of the State shall be
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deemed to have been substituted by the aforesaid provisions of
the said Act.”
11.3 The plain reading of the aforesaid provisions of
the aforesaid Acts would clearly indicate that the nature
of duties and functions of the Home Guards and the
Police Officers of the State are neither similar nor equal.
Since the nature of duties and work of the Home
Guards and the Police Personnel of State are not equal,
principle of equal pay for equal work cannot be applied,
as argued by Mr. Khare, learned advocate for petitioners.
12. It is true that in a case of Gajaji Gopaji Jadeja
(supra), the Co-ordinate Bench of this Court granted
benefits of regular pay and other service and retiral
benefits as admissible and payable to State Government
servants to Border Wing Home Guards. The facts of that
case are not so similar to the facts of present case,
inasmuch as the appointment of Border Wing Home
Guard is different from appointment of ordinary Home
Guard, which is noticeable from the pleadings and
arguments canvassed before this Court in that matter.
12.1 The decision of Hon’ble Apex Court in the case
of Pantha Chatterjee (supra), followed by Co-ordinate
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Bench of this Court while accepting the plea of Border
Wing Guards and upon which heavy reliance placed by
Mr. Khare, learned advocate for the petitioners, is also
not helpful to the case of the petitioners, inasmuch as
the nature of the duties and continuous service required
to be discharged by Border Wing Home Guards unlike
the ordinary Home Guards. The present petitioners are
appointed as ordinary Home Guards, whereby as per
object and scheme of the Act, 1947, as and when
contingency arises, a competent authority would call upon
them to discharge their duties and accordingly, pay their
daily allowances as per fixed rate. Thus, petitioners can
very well pursue their vocation in free time unlike
Border Wing Home Guards whose services require
continuously; accordingly, it treated as perennial in
nature. Further, it appears that the criteria set for
recruiting Border Wing Home Guards are different from
the ordinary Home Guards, which is also referred by Co-
ordinate Bench of this Court in the aforesaid decision.
13. At this stage, it is apt to refer the decision of
Hon’ble Apex Court in the case of Grah Rakshak, Home
Guards Welfare Association (supra) , wherein in a
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somewhat similar claim raised by the ordinary Home
Guards, to give relief of regularization, was turned down,
wherein held thus:
“30. The learned counsel appearing on behalf of the appellants
had taken plea that the appellants have been working as Home
Guards for period ranging from 10 to 30 years and therefore in
view of the decision in State of W.B. v. Pantha Chatterjee [State
of W.B. v. Pantha Chatterjee, (2003) 6 SCC 469 : 2003 SCC
(L&S) 894] they are also entitled for regularisation of their
services. However, such contention has been opposed by the
learned counsel for the State(s). They relied upon another
decision of this Court in State of Manipur v. Moirangninthou
Singh [(2007) 10 SCC 544 : (2008) 1 SCC (L&S) 35] . In the
said case, the members of the Manipur Home Guards filed
different writ petitions in the Gauhati High Court inter alia
praying that their services be regularised in the Home Guards
and that they be given regular pay scales. In the said case, the
Court noticed that Home Guards have been constituted as a
voluntary organisation for service in emergencies. Their initial
appointment was for three years after which it is at the discretion
of the Commandant, subject to approval of the Commandant
General to reappoint a member of the Home Guards. The Court
further noticed that there was an age-limit of 50 years. In the
said case, the Court held : (SCC p. 546, para 7)“7. We are of the opinion that in view of the Constitution
Bench judgment of this Court in State of Karnataka v.
Umadevi (3) [State of Karnataka v. Umadevi (3)(2006) 4
SCC 1 : 2006 SCC (L&S) 753] this Court cannot direct
regularisation in service. Since the court has no power to
direct regularisation, it also follows that it has no power
to direct grant of benefits payable to the regular
employees.”
The Court further held : (Moirangninthou Singh case [(2007)
10 SCC 544 : (2008) 1 SCC (L&S) 35] , SCC p. 547, para 11)
“11. A perusal of the provisions of the Home Guards Act
and the Rules show that the Home Guards was meant to
be a reserve force which was to be utilised in
emergencies, but it was not a service like the police,
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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
v. Govt. (NCT of Delhi) [2002 SCC OnLine Del 483 :
(2002) 98 DLT 624] .”
34. In the form filled up by the Home Guards volunteers of each
State, the Home Guards have specifically mentioned that they
undertake to serve as a member of the Home Guards at any time
and place in India if they are called out for training or duty. This
is evident from Form I of the Himachal Pradesh Home Guards
Act, 1968 which shows that they are entitled for temporary
allowance and in case of injury sustained or disability occurred
during the duty they are entitled for disability pension.
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 (3) [State of Karnataka v. Umadevi (3)(2006) 4 SCC 1 :
2006 SCC (L&S) 753] , 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 [Grah Rakshak Home Guards
Welfare v. State, WP (C) No. 645 of 2005, order dated 26-5-2008
(HP); Hardev Singh v. State of Punjab, 2013 SCC OnLine P&H
2918; Daya Singh v. State of Punjab, WP (C) No. 7365 of 2013,
order dated 8-4-2013 (P&H); Balbir Singh v. State of Punjab,
WP (C) No. 12859 of 2013, order dated 31-5-2013
(P&H); Anant Prasad v. Union of India, 2013 SCC OnLine Del
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314; Surender Kumar v. Govt. (NCT of Delhi), WP (C) No. 3007
of 2010, order dated 20-5-2013 (Del)] 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.”
(emphasis supplied)
14. Thus, in view of the aforesaid facts and
circumstances and keeping in mind the ratio of the
decision of the Hon’ble Apex Court in the cases of Ksh.
Moirangninthou Singh (supra) and Grah Rakshak, Home
Guards Welfare Association (supra) , I am of the view
that the petitioners – Home Guards are not entitled to
the claim the regular pay and other service and
retirement benefits as claimed in these petitions.
CONCLUSION:
15. In view of the foregoing reasons, it is held that
duties and functions of the Home Guards appointed
pursuant to the Act, 1947 are not equivalent to those
performed by the police officers under the Act, 1951.
Accordingly, the petitioners have failed to make out a
case for equal pay for equal work.
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16. Before parting with, as observed by Hon’ble Apex
Court in the case of Grah Rakshak, Home Guards
Welfare Association (supra), I am also of the view that
the rate of daily duty allowance paid to the Home
Guards if pay for 30 days (a month) is less than
minimum of the pay to which the police personnel of the
State are entitled to, then the State should consider such
aspect, and appropriate decision in that respect may be
taken, thereby such daily duty allowance rate may be
revised, so the Home Guards may get at least the
appropriate daily duty allowances as and when called for
duty, which may be par with minimum of the pay (per
day) received by the police personnel of the State.
17. In view of the foregoing conclusion, I do not find
any merit in the present captioned petitions, which are
required to be dismissed and, thus, are hereby dismissed,
albeit the aforesaid aspect may be considered by the
State. Rule stands discharged. No order as to costs.
(MAULIK J.SHELAT,J)
DIWAKAR SHUKLA
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