Madras High Court
A.Anthonydoss vs Secretary To Government on 1 December, 2022
W.P.No.11840 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.12.2022
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.11840 of 2018
and
W.M.P.No.13839 of 2018
1.A.Anthonydoss
2.M.Parameswaran
3.G.S.Nataraj
4.G.Kalaivanan
5.P.Alexsender
6.J.Vasudevan
7.P.Magendravarman
8.S.Kamalarajan
9.K.Ravi
10.T.Balakrishnan
11.U.Gokulkumaran
12.P.Peramanadhan
13.T.Illaiyaraja ... Petitioners
Vs.
1.Secretary to Government,
Government of Tamil Nadu,
Fort St. George, Chennai 600009.
2.Director General of Police,
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W.P.No.11840 of 2018
Mylapore, Chennai 600004.
3.Additional Director General of Police,
Additional Commandant General,
Home Guards, Chennai 600004.
4.Commissioner of Police,
Egmore,
Chennai 600008.
5.Superintendent of Police,
Villupuram District,
Villupuram.
6.Superintendent of Police,
Dharmapuri District,
Dharmapuri.
7.Superintendent of Police,
Tiruppur District
Tiruppur.
8.Superintendent of Police,
Vellore District,
Vellore.
9.Superintendent of Police,
Thiruvallur District
Thiruvallur.
10.Superintendent of Police,
Tiruppur District,
Tiruppur.
11.Superintendent of Police,
Ariyalur District,
Ariyalur.
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W.P.No.11840 of 2018
12.Superintendent of Police,
Villupuram District,
Villupuram.
13.Superintendent of Police,
Villupuram District,
Villupuram.
14.The Secretary to Government,
Home (POL.14) Department,
Fort St. George, Chennai – 9. ... Respondents
[R14 impleaded as per order dated 26.07.2019 in
WMP.No.28155 of 2019 WP.No.11840 of 2018]
Prayer: Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Certiorarified Mandamus, calling for the concerned
records relating to the G.O.Ms.No.115 Home (Pol.14) Department dated
19.02.2019 passed by the 14th respondent and quash the same and
consequently direct the respondents to give call outs to the petitioners
throughout the month prior to issuance of G.O.Ms.No.703 Home (Pol.4)
Department dated 15.09.2017.
[Prayer amended vide order dated 28.01.2022 made in
WMP.No.1504 of 2022 in WP.No.11840 of 2018]
For Petitioner : Mr.M.Gnanasekar
For Respondents : Mr.S.Rajesh
Government Advocate
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W.P.No.11840 of 2018
ORDER
The amended prayer in the present writ petition is to call for the
records relating to G.O.Ms.No.115 Home (Pol.14) Department dated
19.02.2019 passed by the 14th respondent and quash the same and
consequently direct the respondents to give call outs to the petitioners
throughout the month prior to issuance of G.O.Ms.No.703 Home (Pol.4)
Department dated 15.09.2017.
2. The petitioners were appointed as Home Guards in the year 2011.
The petitioners underwent training for CD Annexure Fire Fighting and
Basic Fire and accordingly, performing the duties arising to them
effectively. The petitioners state that they are the holders of meritorious
services as Home Guards. While so, through the impugned order, the
respondents have reduced the call outs and thereby depriving the petitioners
from earning wages on par with Home Guards in other States. Prior to the
issuance of the impugned Government order, the petitioners were provided
25 days of call outs for a month. However, the number of call outs have
been reduced drastically, so as to deprive the petitioners from performing
duties and earning charges.
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W.P.No.11840 of 2018
3. The petitioners are performing the works related to regulating the
traffic, worked as drivers in the Police Force, security duty at the residence
of VVIPs, patrolling duty during odd hours, regulating the flow of traffic
during festive seasons and other connected works. No doubt, the duty
allowance to Home Guards were increased pursuant to the orders of the
Hon'ble Supreme Court of India. However, the number of call outs have
been reduced and therefore, the petitioners were constrained to move the
present writ petition.
4. The learned counsel for the petitioners mainly contended that in
respect of other States, Home Guards are not only given higher salary based
on the judgment of the Hon'ble Supreme Court of India, but also getting call
outs for all the 30 days in the month. The Government of India, Ministry of
Home Affairs, directed the State of Tamil Nadu and all other States to
implement the judgement of the Hon'ble Apex Court of India. Even the
Government of India observed that the State of Tamil Nadu is paying lesser
rate of duty allowance to the Home Guards, which is lesser than the
minimum wages. However, the wages to the Home Guards were increased
pursuant to the orders of the Hon'ble Supreme Court of India and as per the
directives of the Government of India. While increasing the wages, the
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W.P.No.11840 of 2018
respondents have reduced the call outs. Such an action of the respondents
not in consonance with the spirit of the judgment of the Hon'ble Supreme
Court of India. When the petitioners were previously provided with 25 days
of call outs per month, now it has been reduced to a minimum of 10 days
per month and provided duties are not more than 4 hours for one call out.
Wages of Rs.560/- was fixed for 2 call outs i.e., 8 hours.
5. The learned counsel for the petitioner is of an opinion that the
services of he Home Guards are utilised by the State for the benefit of the
public at large and the Home Guards are performing their duties even during
odd hours and therefore, the reduction of call out would affect their
livelihood.
6. The learned counsel for the petitioner relying on the comparative
charts pertaining to various other States, contended that the State of Tamil
Nadu is not utilising the services of the Home Guards at an optimum level
and even the wages in some other States are higher than the wages now
fixed by the Government of Tamil Nadu. Thus, the order impugned is to be
set aside and the Scheme, which was existing prior to the existence of the
impugned order is to be restored for the benefit of the writ petitioners.
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W.P.No.11840 of 2018
7. The learned Government Advocate appearing on behalf of the
respondents objected the contentions raised by the petitioners by stating that
the Director General of Police, Tamil Nadu in letter
Rc.No.155539/Genl.2/2016 dated 04.04.2017 and 07.07.2017, the
Government have enhanced the Home Guards Duty Allowance from
Rs.150/- to Rs.560/- and sanctioned additional expenditure in
G.O.Ms.No.703, Home (Pol.14) Department, dated 15.09.2017. Further in
G.O.(Ms).No.115, Home (Pol.14) Department dated 19.02.2019, the order
has been issued that “After detailed examination, the Government have
decided to accept the proposal of Director General of Police. Accordingly,
the Government enhance the call outs from 5 days per month to 10 days per
month for Home Guards and the duty allowance re-fixed as Rs.280/- for
duties not more than 4 hours (i.e., one call out) and Rs.560/- for duties from
four to eight hours (i.e., two call outs) per day”.
8. It is contended that apart from the regular call outs depending on
the need and emergent situation, special call outs are being given to the
Home Guards during the visit of VVIPs, important Fairs and Festivals,
Natural Calamities like Flood, Cyclone etc. Further the services of the
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W.P.No.11840 of 2018
Home Guards are utilised in the Districts and Cities for crime prevention,
Night Beats and Traffic Regulation for effective Policing.
9. The Home Guards organisation is voluntary citizen force as
auxiliary to the Police for meeting emergencies during Law and Order
situation, Natural Calamities. Considering the daily duty allowance in other
States like Karnataka, Kerala and Telangana, the Government of Tamil
Nadu have enhanced the Duty allowance from Rs.150/- to Rs.560/- in
G.O.Ms.No.703, Home (Pol.14) Department dated 15.09.2017 and thereby
the Government have incurred additional expenditure of Rs.7,49,85,600/-
per annum. In fact, the petitioners have not challenged the said
G.O.Ms.No.703, Home (Pol.14) Department dated 15.09.2017. The Total
expenditure for 5 call outs per month worked out to Rs.52,48,99,200/- per
annum. The Government have reduced the number of call outs from 16 to 5
per month. Further in G.O.(Ms) No.115, Home (Pol.14) Department, dated
19.02.2019, the order has been issued that “After detailed examination, the
Government have decided to accept the proposal of Director General of
Police. Accordingly, the Government enhance the call outs from 5 days per
month to 10 days per month for Home Guards and the duty allowance re-
fixed as Rs.280/- for duties not more than 4 hours (i.e., one call out) and
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W.P.No.11840 of 2018
Rs.560/- for duties from four to eight hours (i.e., two call outs) per day.
10. The Home Guard organisation is a voluntary citizen force as an
auxiliary to the Police for meeting emergencies during law and order
situation and natural calamities etc. Apart from the regular call outs,
depending on the need and emergent situation, special call outs are being
given to the Home Guards. The contention of the petitioners that the 5 call
outs paralise the normal life of the petitioners, is not correct, since it is a
voluntary Citizen Force.
11. Considering the arguments on behalf of the parties to the lis on
hand, the constitution of Home Guard and the Service Conditions are
stipulated under the provisions of the provisions of the Tamil Nadu Home
Guard Act, 1963 and the Rules framed thereunder. Section 3 of the Tamil
Nadu Home Guard Act, 1963 provides Constitution and Control of Home
Guard. Sub Clause 1 to Section 3 states that “The Government may
constitute a volunteer body called the Home Guard, every member of which
shall exercise such powers, discharge such duties and perform such
functions, in relation to the maintenance of service essential to the life of the
community, the protection of persons, the security of property and the
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W.P.No.11840 of 2018
preservation of public order, as may be assigned to him by the provisions of
this act and the rules made there under”.
12. Therefore, as per the provisions of the Tamil Nadu Home Guard
Act, 1963, it is a volunteer body constituted for an effective maintenance of
Law and Order, whenever there is a need arises. It is neither a regular Police
Force nor the Home Guards are appointed as regular Government servants.
It is a volunteer body constituted to assist the law enforcing agencies for
better maintenance of Law and Order in the society.
13. Section 5 of the Act contemplates the period of service and
discharge. Sub Clause 1 stipulated that “A member of the Home Guard shall
be required to serve the Government for such period as may be prescribed
by any such member may be discharged from the Home Guard at any time
by such authority on such grounds and subject to such conditions as may be
prescribed”. Therefore, the period of service is at the discretion of the
Government and the members of the Home Guard may be discharged from
the Home Guard at any time by such authority on such ground.
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W.P.No.11840 of 2018
14. Section 6 stipulates Calling out of Home Guard as under:
“The Commissioner of Police, in the City of Madras and
the Superintendent of Police in a district may by order at any
time call out in the prescribed manner any member of the Home
Guard for training or for exercising the powers, discharging the
duties and performing the functions assigned to the Home Guard
by the provisions of this Act and the rules made there under”.
15. In the context of the above provisions, this Court has to consider
the scope of interference regarding impugned Government orders passed.
The impugned Government order issued in G.O.(Ms).No.115, Home
(Pol.14) Department dated 19.02.2019 is the revised order issued,
superseding the earlier Government order issued in G.O.Ms.No.703, Home
(Pol.14) Department, dated 15.09.2017. Accordingly, the Government
enhanced the call outs from 5 days per month to 10 days per month for
Home Guards and the duty allowance re-fixed as Rs.280/- for duties not
more than 4 hours (i.e., one call out) and Rs.560/- per duties from four to
eight hours (i.e., two call outs) per day.
16. In Government order issued in G.O.Ms.No.703, Home (Pol.14)
Department, dated 15.09.2017, the duty allowance was enhanced from
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W.P.No.11840 of 2018
Rs.150/- to Rs.560/- per day. In G.O.(Ms).No.115, Home (Pol.14)
Department dated 19.02.2019, the call outs restricted in the earlier
Government order was increased from 5 days per month to 10 days per
month.
17. Regarding the Government orders, the Government has clearly
stated that the total expenditure for 5 call outs per month worked out to
Rs.52,48,99,200/- per annum.
18. Considering the financial implications, the Government have
reduced the number of call outs from 16 to 5 per month and thereafter, on
detailed examination, the Government accepted the proposal of the Director
General of Police and enhanced the call outs from 5 days per month to 10
days per month for Home Guards. Therefore, the Government, considering
the financial implications and for better utilisation of the services of the
Home Guard, issued Government orders, regulating the Service Conditions
within the provisions of the Home Guard Act. The services of the Home
Guard are engaged on need basis, since they are not regular Police
personnel. When the services are utilised on need basis, it is for the
Government to regulate in accordance with the provisions of the Act and
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W.P.No.11840 of 2018
more so, it is a volunteer organisation. Thus, this Court is of an opinion that
the scheme formulated by the Government is a policy decision taken within
the ambit of the provisions of the Home Guard Act and Rules.
19. As far as the right of the petitioners are concerned, accepting the
terms and conditions of the service based on the provisions of the Home
Guard Act and Rules, they are performing their duties and responsibilities.
More so, the petitioners are aware of the fact that it is a volunteer body and
period of service and calling out of Home Guards are prescribed by the
Government under the provisions of the Act. Once the petitioners have
accepted the terms and conditions of the service of the Home Guard, they
cannot now compel the Government to provide more call outs or otherwise.
The wages have already been enhanced pursuant to the orders of the
Hon'ble Supreme Court of India. Thus, the grievances regarding the wages
are considered and accordingly enhanced by the Government of Tamil
Nadu. Now the Home Guards are getting a sum of Rs.560/- as duty
allowance for eight (8) hours.
20. This being the factum established the petitioners cannot claim
more number of call outs as a matter of right. It is their choice to serve in a
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W.P.No.11840 of 2018
volunteer organisation and therefore, the petitioners are at liberty to take a
decision to serve the society for maintenance of Law and Order or
otherwise.
21. In view of the fact that the impugned Government order has been
issued in consonance with the provisions of the Home Guard Act and Rules,
this Court do not find any infirmity, more so, the petitioners have no right to
claim the number of call outs or duty hours. It is a volunteer organisation
and therefore, the decision of the Government in consonance with the Act
and Rules became final and there is no scope for exercise of powers of
judicial review by this Court under Article 226 of the Constitution of India.
22. Thus, the petitioners have not established any acceptable ground
for the purpose of interfering with the Government order impugned and
consequently, this Writ Petition stands dismissed. No costs. Connected
Miscellaneous Petition is closed.
01.12.2022
Jeni/Kak
Index : Yes
Speaking order
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W.P.No.11840 of 2018
To
1.The Secretary to Government,
Government of Tamil Nadu,
Fort St. George, Chennai 600009.
2.The Director General of Police,
Mylapore, Chennai 600004.
3.The Additional Director General of Police,
Additional Commandant General,
Home Guards, Chennai 600004.
4.The Commissioner of Police,
Egmore,
Chennai 600008.
5.The Superintendent of Police,
Villupuram District,
Villupuram.
6.The Superintendent of Police,
Dharmapuri District,
Dharmapuri.
7.The Superintendent of Police,
Tiruppur District
Tiruppur.
8.The Superintendent of Police,
Vellore District,
Vellore.
9.The Superintendent of Police,
Thiruvallur District
Thiruvallur.
10.The Superintendent of Police,
Tiruppur District, Tiruppur.
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W.P.No.11840 of 2018
11.The Superintendent of Police,
Ariyalur District,
Ariyalur.
12.The Superintendent of Police,
Villupuram District,
Villupuram.
13.The Superintendent of Police,
Villupuram District,
Villupuram.
14.The Secretary to Government,
Home (POL.14) Department,
Fort St. George, Chennai – 9.
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W.P.No.11840 of 2018
S.M.SUBRAMANIAM, J.
Jeni/Kak
W.P.No.11840 of 2018
01.12.2022
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