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2000 Supreme(MP) 595
2001 (2) JLJ 11
Bhawani Singh, C.J. and A.K. Mishra, J.
Punpratap Singh and another v. State of M.P. and others
WP. No. 3651 of 1999; Decided on 12.7.2000.
S.A. Wakil for petitioners
Miss Chandan a Mukherjee, Government Advocate for State.
Headnote:(1) Home Guards Act, 1947 (M.P.) -- Preamble and Statement of Objects and Reasons -- Home Guards -- nature of the body is purely a voluntary force.
It is abundantly clear from the Preamble and the Statement of Objects and Reasons, that. Home Guards is a body of volunteers to supplement the police force and to assist in any general measure of public welfare in the State. The need to create this body was that ordinary police force was inadequate to deal effectively with the forces of disorder in the absence of cooperation from the members of the public in emergencies. It is, in substance, purely a voluntary force to supplement the ordinary police in times of emergency for maintaining law and order, protection of person and property of citizens and public safety [Para 4
(2) Central Provinces and Berar Home Guards Rules, 1947 (M.P.) -Rr. 4,5(3) and 5(4) -- Home Guards recruited and discharged under -- do not hold a civil post
(3) Administrative Tribunals Act, 1985 -- S. 14 -- Home Guard -- does not hold a civil post -- Tribunal has no jurisdiction to entertain his service matter.
It is stated that Home Guards do not enjoy a regular scale of pay nor are the Rules applicable to the civil service of the State apply to them. Simply because the voluntary force is constituted under statutory rules with control over them by the State and its officers that would not go to demonstrate that they are holding civil posts under the State.
The test is not only the relationship of master arid servant but the actual nature of the post and the circumstances under which the same is held, are also relevant apart from other factors which arc to be examined in each case for determining the exact nature of the post and the status of the incumbent. AIR 1955 SC 404, AIR 1960 SC 997, AIR 1961 SC 564, AIR 1965 SC 360, AIR 1977 SC 1677, AIR 1981 SC 53 and (1995) 4 SCC 8 distinguished. AIR 1999 SC 376 and SLP (Civil) No. 12465/90 followed. AIR 1962 MP 51 relied on. [Para 6
¼1½ gksexkMZ vf/kfu;e] 1947 ¼e-ç½&mísf‘kdk rFkk mís‘; vkSj dkj.kksa dk dFku&gksxk xkMZ&fudk dk Lo:Ik fo‘kq) :i ls LoSfPNd cy dk gSA
mísf‘kdk rFkk mís‘; vkSj dkj.kksa ds dFku ls ;g vfr‘k; Li"V gS fd gkse xkMZ] iqfyl cy dk laiwj.k djus vkSj jkT; esa yksd dY;k.k dh fdlh Hkh lkekU; dkjZokbZ esa lgk;rk djus ds fy, Lo;alsodksa dk fudk; gSA bl fudk; ds l`tu dh vko‘;drk ;g Fkh fd tu lk/kkj.k ds lg;ksx ds vHkko esa lkekU; iqfyl cy vkdfLed ladVksa ls çHkkoh :i ls fuiVus ds fy, vi;kZIr FkkA lkjr%] vkdfLed ladVksa esa fof/k vkSj O;oLFkk cuk, j[kus] ukxfjdksa ds ‘kjhj vkSj laifÙk dh laj{kk rFkk yksd lqj{kk ds fy, lk/kkj.k iqfyl ds laiwj.k ds fy, ;g iw.kZr;k LoSfPNd cy gSA ¿iSjk 4
¼2½ e/; çkar cjkj gksexkMZ fu;e] 1947 ¼e-ç-½&fu-4] 5¼3½ rFkk 5¼4½&ds v/khu gkse xkMZ HkrhZ fd, x, vkSj lsoksUeqr fd, x,&flfoy in /kkj.k ugha djrsA
¼3½ ç‘kklfud vf/kdj.k vf/kfu;e] 1985&/kkjk 14&gkse xkMZ&flfoy in /kkj.k ugha djrk&vf/kdj.k dks mldk lsok ekeyk xzg.k djus ddh vf/kdkfjrk ugha gSA
;g dgk x;k gS fd gkse xkMks± dks fu;fer osrueku miyC/k ugha gS u mudks jkT; dh flfoy lsok dks ykxw fu;e ykxw gksrs gSaA dsoy bl dkj.k ls fd LoSfPNd cy dk xBu mu ij jkT; vkSj mlds vf/kdkfj;ksa ds fu;a=.k ds lkFk dkuwuh fu;eksa ds v/khu gqvk gS] ;g çnf‘kZr ugha gksxk fd os jkT; dsss v/khu flfoy in /kkj.k djrs gSaA dlkSVh dsoy Lokeh vkSj lsod dh ugha gS fdarq çR;sd ekeys esa in ds ;FkkFkZ Lo:i vkSj in/kkjh dh çkfLFkfr vo/kkfjr fd, tkus ds fy, ftu vU; dkjdksa dk ijh{k.k fd;k tkuk gksrk gS] muds vfrfjDr in dk okLrfod Lo:i vkSj os ifjfLFkfr;ksa Hkh gSa ftuesa og /kkj.k fd;k tkrk gSA , vkb vkj 1955 ,l lh 404] , vkb vkj 1960 ,l lh 997] , vkb vkj 1961 ,l lh 564] , vkb vkj 1965 ,l lh 360] , vkb vkj 1977 ,l lh 1677] , vkb vkj 1981 ,l lh 53 rFkk ¼1995½ 4 ,l lh lh 8 çHksfnrA , vkb vkj 1999 ,l lh 376 rFkk fo‘ks"k btktr ;kfpdk ¼flfoy½ Ø-12465@90 vuqlfjrA , vkb vkj 1962 e-ç- 51 voyafcrA ¿iSjk 6
Singh, C.J. -- 1. Petitioners have by this petition challenged the order of the State Administrative Tribunal dated November 2, 1998 holding that the Tribunal has no jurisdiction to entertain the petition.
2. The petitioners are Home Guard Sainiks. They claim that they are holders of civil post under the State therefore, the State Administrative Tribunal has jurisdiction to entertain the dispute raised by them. The submission is rested on the ground that their appointment is made under statutory rules formulated by the State Government. There existed master and servant relationship between Home Guards and the State which can deal with them from time to time as per provisions of law. The contention of the petitioners did not find favour with the Tribunal resulting in the dismissal of their application.
3. Shri Syed Abdul Wakil, learned counsel for the petitioners has advanced the same submissions which were raised before the Tribunal. Reliance is placed on some decisions of Supreme Court, namely, AIR 1955 SC 404 (Shivnandan v. Punjab National Bank); AIR 1960 SC 997 (M/s Piyare Lal Adishwar Lal v. Income Tax Commissioner); AIR 1961 SC 564 (Dasaratha Rama Rao v. State of A.P.); AIR 1965 SC 360 (State of U.P. v. A.N. Singh); AIR 1977 SC 1677 (Supdt. of Post Offices v. P.K. Rajamma); AIR 1981 SC 53 (Mathuradas v. S.D. Munshaw); and (1995) 4 SCC 8 (R.N.A. Britto v. Chief Executive Officer).
Miss Chandana Mukherjee, learned counsel for the State submitted that the petitioners are not holders of civil post. Home Guard is voluntary organisation where the petitioners are enrolled for some time against honorarium and are replaced by others after some time. Simply because they are appointed Home Guards under the statutory rules and are controlled there under by the State Government, they do not come within the definition of civil service of the State. Two decisions, one of Apex Court -- AIR 1999 SC 376 (Union of India v. Chotelal) and the other of this Court reported in AIR 1962 MP 51 (Roopsingh v. Sanchalak Panchayat, etc.) are cited in support of the submissions.
4. With a view to understand the matter closely and clearly, it is necessary to refer to the Preamble and the Statement of Objects and Reasons to the Madhya Pradesh Home Guards Act, 1947 (hereafter for short, Home Guards Act) which read thus: .
"Preamble – Whereas it is expedient to create a body of volunteers to supplement the Police Force and to assist in any general measure of public welfare in Madhya Pradesh; it is hereby enacted as follows:-
Statement of objects and Reasons -- Experience has shown that in real emergencies the ordinary police force is inadequate to deal effectively with the forces of disorder without fuller assistance and cooperation from the members of the public. The present unsettled conditions point to the vital necessity of securing such cooperation and a condition precedent is the inculcation of the habits of self-reliance and discipline and spirit of civic service among the public. This Bill is designed to meet this purpose. The 'Home Guards' will be a purely volunteer force and will supplement the ordinary police, to be used in times of emergency for the purpose of maintaining Law and order, the protection of the person and property of the citizen and public safety. To start with, the force will be raised in 14 places only, but it may be extended to other areas as necessity arises."
Therefore, it is abundantly clear from the Preamble and the Statement of objects and Reasons, quoted above, that Home Guards is a body of volunteers to supplement the police force and to assist in any general measure of public welfare in the State. The need to create this body was that ordinary police force was inadequate to deal effectively with the forces of disorder in the absence of cooperation from the members of the public in emergencies. It is, in substance, purely a voluntary force to supplement the ordinary police in times of emergency for maintaining
