Madras High Court
A.Anthony Das vs The Union Of India on 20 November, 2024
Author: J.Sathya Narayana Prasad
Bench: J.Sathya Narayana Prasad
W.P.No.18739 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.11.2024
CORAM:
THE HONOURABLE MR. JUSTICE J.SATHYA NARAYANA PRASAD
W.P.No.18739 of 2020
and
W.M.P.No.23274 of 2020
1.A.Anthony Das
2.P.Alexander
3.K.Saravanan
4.J.Vasu Devan
5.S.Johndaniel Stanley ...Petitioners
-Vs-
1.The Union of India
Rep by its Directorate General Fire Services,
Civil Defence and Home Guards,
Ministry of Home Affairs,
East Block, VII,
Level-7, R.K.Puram,
New Delhi – 110 066.
2.The Additional Director General of Police,
Home Guard,
DGP Office,
Mylapore,
Chennai – 600 004. ...Respondents
https://www.mhc.tn.gov.in/judis
1/17
W.P.No.18739 of 2020
Prayer: Writ Petition filed under Article 226 of the Constitution of India,
praying for the issuance of a direction in the nature of Writ of Declaration, to
declare the act of commencing fresh recruitments to the post of Home Guards
in the Districts of State of Tamil Nadu by the second respondent as
unwarranted, unconstitutional without ensuring full employment to the
petitioners for a minimum of 8 hours per day and 30 days a month on par
with other States and pass such further orders.
For Petitioners : Mr.R.Sreedhar
For R1 : Mr.M.Sathyan
ACGSC
For R2 : Mr.M.Rajendiran
Additional Government Pleader
ORDER
This writ petition has been filed seeking to declare the act of
commencing fresh recruitments to the post of Home Guards in the Districts of
the State of Tamil Nadu by the second respondent as unwarranted and
unconstitutional without ensuring full employment for the petitioners for a
minimum of 8 hours per day and 30 days a month on par with other States.
2. The case of the petitioners are as follows:
https://www.mhc.tn.gov.in/judis
2.1 The petitioners joined the service of the Home Guard in the
Tamil Nadu Police Home Guard Department on 26.07.2010 and it is a
voluntary force raised by the States and Union Territories under a broad
pattern and policy laid down by the Ministry of Home Affairs and their
service conditions are governed by the Tamil Nadu Home Guard Rules, 1963.
The Home Guards are utilized to supplement the State / UT police force for
maintaining law and order, traffic control, protection of public property,
guarding borders and election-related work.
2.2 The Hon'ble Supreme Court had passed an order in Civil
Appeal No.2759 of 2015 passed against a batch of SLP's filed by the Home
Guards pertaining to the States of Himachal Pradesh, Punjab and Delhi who
were seeking for regular appointments and the Hon'ble Apex Court had
passed the following order, which is extracted hereunder:
"22. In view of the discussion made above, no relief can
be granted to the appellants either regularization of services or
grant of regular appointments hence no interference is called for
against the judgments passed by the Himachal Pradesh, Punjab and
Delhi High Courts. However, taking into consideration the fact that
Home Guards are used during the emergency and for other
purposes and at the time of their duty they are empowered with the
power of police personnel, we are of the view that the State
Government should pay them the duty allowance at such rates, total
of which 30 days (a month) comes to minimum of the pay to which
the police personnel of State are entitled. It is expected that the
https://www.mhc.tn.gov.in/judis
State Governments shall pass appropriate orders in terms of
aforesaid observation on an early date preferably within three
months."
In pursuance of the order passed by the Hon'ble Supreme Court and
on receiving various representations from various Home Guards Welfare
Associations of several States, the first respondent had sent a communication
dated 10.04.2018 to all the State Heads to implement the Hon'ble Supreme
Court order.
2.3 The Home Department of the State of Tamil Nadu had passed a
G.O.Ms.No.115 dated 19.02.2019 by enhancing the call-outs from 5 days per
month to 10 days per month for Home Guards and the duty allowance was
re-fixed at Rs.280/- for duties not more than 4 hours (i.e., one call-out) and
Rs.560/- for duties from four hours to eight hours (i.e., two call-outs) per day.
The duty allowance fixed by the second respondent is Rs.560/- for 8 hours.
2.4 However the second respondent is allowing the Home Guards
only for 5 days and they are not complying with their own G.O. Now the
second respondent had called for applications from the public who are
between the age group of 18 to 45 years for the post of Home Guards and
some of the notifications issued by the Districts are enclosed in the typed set
https://www.mhc.tn.gov.in/judis
of papers.
2.5 The act of the second respondent filling the vacancy of Home
Guards would not arise as the existing Home Guards are not given proper job
and the petitioners are given only 4 hours per day to a maximum of 5 days
per month. The second respondent is attempting to spoil the life of the
youngsters by not mentioning the work hours in the notifications as nobody
can survive by working for 5 days. Since all the petitioners are seeking for the
same relief. Hence, a writ petition is filed.
3. Learned counsel appearing for the petitioners submitted that the
act of the second respondent inviting applications for appointments of
District-wise Home Guards is totally misconceived and unwarranted and the
act of the second respondent in not providing adequate employees to the
existing Home Guards itself is in violation of the Hon'ble Supreme Court
order.
4. Learned counsel further submitted that the second respondent in
order to evade enhancement of duty allowance, reduced the working hours of
the petitioners which is totally unconstitutional and is in violation of Article
https://www.mhc.tn.gov.in/judis
14. The second respondent is very much aware that the other States are
providing employment for full year but the State of Tamil Nadu is providing
work only for 60 days in a year which is less than the Mahatma Gandhi
National Rural Employment Guarantee Act, 2005 (MGNREGA) which
guarantees 100 days of employment in a financial year. The second
respondent had miserably failed to enhance people's livelihoods on a
sustained basis by developing the economic and social infrastructure. The
amount paid to the Home Guards is very less when compared to the payment
of the statutory minimum wage and equal wages for men and women.
5. A counter affidavit was filed by the second respondent in June
2022.
6. Learned Additional Government Pleader appearing for the
second respondent would submit that the Home Guard Organization is a
voluntary Organization and the members are not full time employee. The
members of the Home Guard Organization are being utilized to perform
certain functions performed by the regular Police. They are utilized to
perform duties like Traffic Control, night patrolling, bandobust and election
duties. They are not paid wages/salary and they are paid prescribed
https://www.mhc.tn.gov.in/judis
remuneration for the 5 days call-out duties. It is also submitted that nobody is
compelled to join in Home Guard organization, as per rule 3(ii) of the Tamil
Nadu Home Guard Rules, 1963, "Every person desiring to be appointed as
a member of the Home Guard shall make an application in Form 'A' to the
Commissioner of Police in the city or to the Superintendent of Police in a
District". Further, in Part -2 of said Form A, a declaration to be signed by the
applicant for the effect that "I declare that I am a citizen of India and that I
desire to be enrolled as a member of the Home Guard".
7. Learned Additional Government Pleader further submitted that in
G.O(Ms)No.115, Home (Pol.14) Department, dated: 19.02.2019, the
Government has 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/- for duties from
four to eight hours (i.e., two call outs) per day.
8. Learned Additional Government Pleader contended that in the
Contempt Petition No.133 of 2016 in Civil Appeal No.2768 of 2015, the
Hon'ble Supreme Court of India vide order dated 24.05.2016, has directed
that the State Government should pay to the Home Guards Personnel duty
https://www.mhc.tn.gov.in/judis
allowance at such rates, the total of which 30 days (a month) comes to pay
(sum of basic pay, grade pay, DA and washing allowance) to which the
police personnel are entitled. Since the Home Guards are State subject, pay
and allowance of Home Guards are governed by the Home Guards Acts and
Rules of respective States/UTs and there is no Central Act governing the
Home Guards in the Country. In the case of Loon Singh & Ors Vs. State of
Rajasthan (Special Appeal Writ No.801 of 2009) the Hon'ble High Court
of Rajasthan.
9. Learned Additional Government Pleader further contended that
directions laid down in the Judgment decided by the Hon'ble Supreme Court
of India in Civil Appeal No.2759 of 2015 in the case of GrahRakshak,
Home Guards Welfare Association Vs State of Himachal Pradesh & Ors
(2015) 6 SCC 247 has been already compiled by the Government of Tamil
Nadu without any deviation and the Government has enhanced the Duty
allowance from Rs. 150/- to Rs.560/- vide in G.O.Ms.No.703, Home
(Pol.14) Department, dated 15.09.2017.
10. Learned Additional Government Pleader submitted that
whenever vacancies arise in Home Guard, fresh recruitments are being
https://www.mhc.tn.gov.in/judis
conducted by the Appointing Authority i.e. Commissioners of Police in Cities
and Superintendents of Police in Districts in the respective City/District. On
perusal of the Unit wise strength Particulars of Tamil Nadu Home Guards as
on 01.11.2020, it is observed that there are 1721 posts of Home Guard
Personnel vacant in various Districts/Cities in the State and in view of the
General Election to Tamil Nadu Legislative Assembly - 2021, it was
necessary to fill up vacancies with suitable and eligible candidates. Hence, all
the Commissioners of Police in Cities and all the Superintendents of Police in
Districts were instructed to fill up the vacancies at the earliest.
11. The Tamil Nadu Home Guard strength details as on 01.06.2022
are as follows:
Sanctioned Actual Strength as Vacancy
Strength Total on Total Total
Men Women 01.06.2022 Men Women
Men Women
12817 2805 15622 12155 2700 14855 662 105 767
As per the Tamil Nadu Home Guards Rules, 1963, it is a voluntary
citizen's force to assist the Police in the maintenance of Law and Order and to
meet emergencies like floods, fires, cyclones, etc. The Home Guards
Organization renders valuable assistance in the regulation of traffic, crowd
https://www.mhc.tn.gov.in/judis
control, maintenance of internal security and promotion of communal
harmony to create awareness on health, hygiene and road safety. As on date,
the sanctioned strength of Home Guards is 15622 and new recruitments are
being conducted whenever vacancies arise in the existing sanctioned strength.
12. Learned Additional Government Pleader drew the attention of
this Court to G.O.Ms.No.35, Home (Pol.XIV) Department, dated
05.01.2012, which deals in connection with the Special Call-Outs and
allowances is reproduced below:
https://www.mhc.tn.gov.in/judis
13. Heard both sides and perused the materials available on record.
14. In the case on hand, the petitioners were already serving in the
Home Guards and their main grievance is that though the Government has
passed G.O.Ms.No.115 dated 19.02.2019 by enhancing the call-outs from 5
days per month to 10 days per month for Home Guards and the duty
allowance re-fixed at Rs.280/- for duties not more than 4 hours (i.e., one call-
out) and Rs.560/- for duties from four hours to eight hours (i.e., two-call
outs) per day. The duty allowance fixed by the second respondent is Rs.560/-
for 8 hours. However the second respondent is allowing the Home Guards to
work only for 5 days and the above said G.O is not complied with by the
second respondent.
15. It is an admitted fact that the Home Guards is a voluntary force
raised by the States and Union Territories under a broad pattern and policy
laid down by the Ministry of Home Affairs and their service conditions are
governed by the Tamil Nadu Home Guard Rules, 1963. The Home Guards
are utilized to supplement the State / UT Police force for maintaining Law
and Order, traffic control, protection of public property, guarding borders and
https://www.mhc.tn.gov.in/judis
election-related work and to meet emergencies like floods, fires, cyclones, etc.
The Home Guards Organization renders valuable assistance in the regulation
of traffic crowd control, maintenance of internal security and promotion of
communal harmony, to creates awareness on health, hygiene and road safety
and also to perform duties like night patrolling, bandobust and election
duties. The members of the Home Guard Organization are not full time
employees and their services will be required only at the time of the above
mentioned emergencies and not otherwise, like the police force. The Home
Guards play a vital role by assisting the police personnel in tackling the above
emergencies. Hence, whenever vacancies arise in the Home Guard, the
second respondent has to go for fresh recruitments drive which are being
conducted by the Appointing Authority, i.e. Commissioners of Police in Cities
and Superintendents of Police in Districts in the respective City/District.
16. It is seen that the present public notice was issued in the daily
newspaper in the year 2020 for recruitment of Home Guards in view of the
General Election to the Tamil Nadu Legislative Assembly - 2021.
17. In view of G.O.Ms.No.115 dated 19.02.2019 the call-outs were
enhanced from 5 days per month to 10 days per month for Home Guards.
https://www.mhc.tn.gov.in/judis
The aforesaid G.O was issued pursuant to the letter issued by the Directorate
General Fire Services, Civil Defence and Home Guards, Ministry of Home
Affairs, Government of India, dated 11.04.2018 to all the Chief Secretaries /
Administrators of the UTs in which the State of Tamil Nadu was also
mentioned, wherein it was observed that the Department related Parliament
Standing Committee on Home Affairs had mentioned that most of the States
have failed to implement the judgment of the Hon'ble Supreme Court on
increasing the duty allowances of Home Guards to the minimum pay.
G.O.Ms.No.115 was issued for enhancing the call-outs from 5 days per
month to 10 days per month for Home Guards and the duty allowance re-
fixed at Rs.280/- for duties not more than 4 hours (i.e., one call-out) and
Rs.560/- for duties from four hours to eight hours (i.e., two call-outs) per day
pursuant to the letter dated 11.04.2018.
18. Taking note of Contempt Petition No.133 of 2016 in Civil
Appeal No.2768 of 2015, the Hon'ble Supreme Court of India vide order
dated 24.05.2016 has directed that the State Government should pay to the
Home Guards Personnel duty allowance at such rates, the total of which 30
days (a month) comes to pay (sum of basic pay, grade pay, DA and washing
allowance) to which the police personnel are entitled. Since the Home Guards
https://www.mhc.tn.gov.in/judis
are State subject, pay and allowance of Home Guards are governed by the
Home Guards Acts and Rules of respective States / UTs and there is no
Central Act governing the Home Guards in the Country.
19. The Home Guards are appointed pursuant to the Tamil Nadu
Home Guards Rules, 1963, since their services are voluntary and their duty
allowance can be re-fixed by the State Government from time to time. The
recruitment of the Home Guards are subject to the vacancies available and it
is a prerogative discretion of the second respondent and the same cannot be
interfered by this Court.
20. The recruitment notice which the petitioners have challenged is of
the year 2020 and the recruitment process is completed already in not only
the 5 districts mentioned by the petitioners but in the entire State according to
the respondents.
21. The plea of the petitioners cannot be considered for the following
reasons:
a) The aim and objectives of creating the Tamil Nadu Home Guards
Force will go in vain.
https://www.mhc.tn.gov.in/judis
b) There will be vacancies arising out of the retirement of the Personnel
every year and if no recruitment taken place the number of the Personnel will
reduce drastically as a result they cannot contribute their services effectively
for the citizens of the State.
c) When the number of Personnel gets reduced then the Home Guards
force will not be able to assist the police effectively in maintaining law and
order by the control and during big meetings and rallies.
d) The Home Guards will not be able to render a good and remarkable
service during the emergencies like cyclone, floods, fire accidents and during
the assembly and parliamentary elections.
e) If the Home Guards Personnel are given 8 hours of work instead of
4 hours of work then the strength of the force will remain the same as a result
there will be minimal strength in the force. The aim of recruitment for new
Personnel is to achieve the sanctioned strength of 15622 and to give 4 hours
work per day to all the Personnel.
f) It was submitted by the second respondent that there are 375
vacancies as on date in the Home Guards Force.
g) The fresh recruitment will create job opportunities to the
unemployed youths and they will also be appointed if they fulfill the eligible
https://www.mhc.tn.gov.in/judis
conditions stipulated in the Tamil Nadu Home Guards Rules, 1963.
22. In view of the above facts, circumstances of the case and for the
above mentioned reasons, the writ petition is liable to be dismissed.
23. In the result, the writ petition stands dismissed with the
above observations. No costs. Consequently, connected miscellaneous
petition is closed.
20.11.2024
cda
Index : Yes/No
Speaking/Non Speaking order
J.SATHYA NARAYANA PRASAD, J.
cda
To
1.The Directorate General Fire Services,
The Union of India
Civil Defence and Home Guards,
https://www.mhc.tn.gov.in/judis
Ministry of Home Affairs,
East Block, VII,
Level-7, R.K.Puram,
New Delhi – 110 066.
2.The Additional Director General of Police,
Home Guard,
DGP Office,
Mylapore,
Chennai – 600 004.
20.11.2024
https://www.mhc.tn.gov.in/judis
