N.G. Das, J.
1. This is an application under Article 226 of the Constitution of India by the petitioner Shri Nirmal Dey and Shri Bimal Kuri for issuance of the a writ directing the respondents to treat all the members of the Tripura Home Guards Organisation as regular employees holding civil post and also to allow all the members of the Tripura Home Guards Organsisation all benefits of services including pay and allowances of Police Officials of equivalent rank from the respective date of service of the individual employee.
2. I have heard Mr. B. Das, the learned senior counsel appearing on behalf of the petitioners and Mr. A. Chakraborty, the learned Advocate General appearing on behalf of the respondents.
3. The case of the Petitioner No. 1 is that he entered into the service as a member of the Tripura Home Guards in 1965 with the designation of 'Guardsman' which is equivalent to the rank of Police Constable and the duties performed by him since his entry into the service are similar to the duties performed by a police constable. While rendering services as Guardsman the petitioner was promoted to the rank of Naik some time in the year 1967 and thereafter he was prompted to the post of Sergeant in 1977 which post is equivalent to the post of Head Constable of Police. The grievance of the Petitioner No. 1 is that even though he has been rendering service in such capacity which is equivalent to the post of Head Constable he was not allowed to get the pay and allowances and other benefits which a Head Constable has been getting.
4. The case of the Petitioner No. 2 is that he entered into the service under the Tripura Home Guards Organisation in 1976 as Platoon Commander which post is equivalent to Sub-Inspector of Police. After his appointment as Platoon Commander the Petitioner No. 2 was given the rank of Senior Platoon Commander with effect from March, 1989. His grievance is that even though the post of Platoon Commander is equivalent to that of Sub-Inspector of Police in Tripura Police he was not given the pay scale of Sub-Inspector of Police in Tripura. On the other hand, he is being paid at the rate paid to a Guardsman.
5. The further case of the petitioners is that there are about 2,600 members of Tripura Home Guards and all of them are discharging duties like police officials of the equivalent rank viz. Police Constable, L. Naik Havildar, Sub-Inspector, Inspector etc. but they are treated as mere volunteers to deprive them of all the service benefits which their counterparts in the Tripura Police have been getting. The petitioners have stated that there has been infraction of their fundamental rights by not treating them as in civil employ and also not giving them the pay scales which their counterparts in the Tripura Police have, been getting. The petitioners have therefore, filed this case for the reliefs as stated above.
6. The respondents in their counter-affidavit have contended, inter alia, that this writ petition is not maintainable as there are so many disputed facts which cannot be adjudicated under the writ jurisdiction. It is contended that the petitioners and other Home Guards in Tripura are nothing but an auxiliary force and their functions are to assist the police in maintaining internal security and to discharge such other duties as may be assigned to them under the Rules. It is contended that under Rule 8 of Tripura Home Guards Rules the term of office of a member of Home Guard in Tripura shall be for 5 years and during their enrolment those who are willing to serve as Home Guards are to give a declaration in Form A which requires that they will have to serve for a period of 5 years in Home Guards unless they are allowed to resign in pursuance of Tripura Home Guards Rules, 1962.
7. As regards the contention of petitioner No. 1 that he was promoted to the rank of Naik in 1967 and thereafter to the post of Sergeant in 1977, it is stated that he was enrolled as a member of Tripura Home Guards Organisation for duties on December 19, 1965 and at present he has been holding the post of honorary post of Sergeant. It has been categorically denied that he has been appointed as Guardsman. It is averred that Guardsmen are used to be enrolled in Border Wing Home Guards Battalion and not in Home Guards Organisation. The Border Wing Home Guards came in existence in 1977 in Tripura and hence the question of enrolling the petitioner as Guardsman in 1965 does not arise at all. It is stated that the appointment letter will clearly indicate that the petitioner was not appointed as member of the Home Guards for Tripura State under the Bombay Home Guards Act, 1947.
8. It is further contended that concept of creating a voluntary organisation namely, Home Guards came from United Kingdom which during World War-II created a voluntary Citizen Organisation for local defence. In India in December, 1946 Home Guards were raised in Bombay to assist the Police in controlling civil disturbances and communal riots etc. and subsequently in the wake of Chinese aggression in 1962 the Central Government advised the States and the Union Territories to merge their existing voluntary organisations into one All India Force to be known as 'Home Gurads' which would be voluntary both in concept and character. It is stated that Home Guards Platoon Commander is not equivalent to the post of Sub-Inspector of Tripura Police as the duty and functions of the Home Guards Platoon Commander of Home Guards are totally different from that of Sub-Inspector or Constable. It is stated that the Home Guards are volunteers and they joined on the principal of no work no wage basis' and their duties are assigned as per the provisions laid down under the Bombay Home Guards Act, 1947. Therefore, the petitioners are not entitled to get the reliefs sought for in this writ petition.
9. Mr. A. Chakraborty, the learned Advocate General has taken a preliminary objection as to the maintainability of this writ petition, as according to him the petitioners are not entitled to file this application in the representative character. Mr. B.Das, the learned senior counsel appearing on behalf of the petitioner has, however, submitted that in view of the provisions laid down under Order 1 RuleSC.P.C. the petitioners are very much entitled to file such a case in representative capacity to avoid conflicting decision and multiplicity of proceedings. It is true that to avoid conflicting decision and multiplicity of proceedings under this Rule where there are numerous persons having the same interest in a suit, one or more of them with the permission of the Court may sue or be sued, or may defend in such suits on behalf of others. In the instant case, the petitioners have filed the suit on behalf of all the members of the Tripura Home Guards Organisation as according to them all the members of the Tripura Home Guards Organisation are being deprived of the service Benefits which their counter parts in the Tripura Police are getting. On going through the records I find that by the order dated September 19, 1989 a Division Bench of this Court allowed the prayer of the petitioners to file this writ petition in the representative character. Therefore, the preliminary objection taken by the learned Advocate General is not acceptable.
10. Now as regards the reliefs sought for in this writ petition it would be apparent from the facts stated above that the petitioners, at first sought for a declaration that they are holding a 'civil post' and as such they are entitled to get the service benefits which their counterparts in Tripura Police are getting. It is contended by Mr. Das that the letter of appointment of Petitioner No. 1 will clearly show that he was appointed as a member of the Home Guards for Tripura under the Bombay Home Gurads Act, 1947 and the duties the Home Guards are performing in Tripura are the same which their counter part in Tripura Police are doing. But the learned Advocate General has contended that the Home Guards in Tripura and the Home Guards in Border Wing Home Guards Bn. are not same. It is contended by him that a Home Guard of Tripura Home Guards Organisation and a Guardsman in Border Wing Home Guards Bn. are not same. What learned Advocate General likes to emphasise is that the duty which is performed by a Home Guard of Tripura Home Guards Organisation and the duties which are performed by the Guardsman of Border Wing Home Guards Battalion are not same. Moreover, according to him the Home Guards in Tripura are part time and they are only to assist the police during emergency as and when they are called out to do such emergent works.
11. In order to appreciate the contentions of the learned counsel for the parties it is necessary first to refer to the letter of appointment of Petitioner No. 1 contained in Annexure-A which reads:-
'CERTIFICATE OF APPOINTMENT AS A MEMBER OF THE HOME GUARDS NO. 3877 GOVERNMENT OF TRIPURA
Sri Nirmal Chandra Dey has been appointed as member of the Home Guards for Tripura State under the Bombay Home Guards Act, 1947 (Bombay III of 1947, as extended to Tripura.
Dated December 19,1965
Signature Commandant
Designation Home; Guards
Sadar Agartala'
12. The above quoted letter of appointment clearly indicates that the Petitioner No. 1 was appointed under the Bombay Home Guards Act, 1947. It is therefore, necessary to refer to the relevant provisions of the Bombay Home Guards Act, 1947 (hereinafter referred to as the Act.) Section 2(1) of the Act envisages that the Chief Commissioner shall constitute for the Union Territory of Tripura 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 and the public safety as may be assigned to them in accordance with the provisions of the Act and the Rules made thereunder.
13. The expression 'Chief Commissioner' has been substituted by the expression 'State Government' by notification No. F. 6/1/62-Judl-II UTL 53 dated October 18, 1962.
14. Section 3 of the Act further shows that a Commandant General of Home Guards can be appointed for exercising general supervision and control of the Home Guards throughout the State. Section 4 of the Act shows that 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 him in accordance with the provisions of the Act and the Rules made thereunder. Section 5(i) further shows that 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 tor the time being in force and Sub-section (2) of Section 5 shows that such a member cannot be prosecuted without previous sanction of the District Magistrate. Section 6B(1) further shows that a memcer of the Home Guards may be dismissed if he fails to obey any lawful order or direction given to him and Section 7 shows that if a Home Guard neglects or refuses to obey such order he may be convicted and that on conviction shall be punishable with imprisonment for a term which may extend to 3 months or with fine which may extend to two hundred and fifty rupees or with both. Rule 12 of the Tripura Home Guards, Rule 1962 (hereinafter referred to as the Rule, 1962) further shows that a Commandant General Working in the State of Tripura shall be directly responsible to the State Government.
15. All the provisions as discussed above taken together will make it abundantly clear that there exists a relationship between a member of the Home Guards and State Government a relationship of master and servant.
16. In the case of State of Assam and Ors., v. Kanak Chandra Dutta reported in (1968-I-LLJ-288) (SC) the question who can be said to hold a civil post came up for determination by their Lordships. It was contended that a 'Mouzadar' in Assam valley who was not a full time employee and whose remuneration was commission on calculation of government cannot be said to hold a 'civil post' and his dismissal or removal do not attract Article 311 of the Constitution. This contention was repelled by their Lordships and the observation of their Lordships made under para 9 may be quoted as under at p 290 :-
'The question is whether a Mauzadar is a person holding a civil post under the State within Article 311 of the Constitution. There is no formal definition of 'post' and 'civil post'. The sense in which they are used in the Services Chapter of Part XIV of the Constitution is indicated by their context and setting. A civil post is distinguished in Article 310 from a post connected with defence; it is a post on the civil as distinguished from the defence side of the administration, an employment in a civil capacity under the Union or a State, see marginal note to Article 311. In Article 311, a member of a civil service of the union or an all India service or a civil service of a State is mentioned separately and a civil post means a post not connected with defence outside the regular civil services. A post is a service or employment. A person holding a post under a State is a person serving or employed under the State, see the marginals, notes to Articles 309, 310 and 311. The heading and the sub heading of Part XIV and Chapter 1 emphasise the element of service. There is a relationship of master and servant between the State and a person said to be holding a post under it. The existence of this relationship is indicated by the State's right to select and appoint the holder of the post, its right to suspend and dismiss him, its right to control the manner and method of his doing the work and the payment by it of his wages or remuneration. A relationship of master and servant may be established by the presence of all or some of these indicia, in conjunction with other circumstances and it is a question of fact in each case whether there is such a relation between the State and the alleged holder of a post. '
With the above observation their Lordships in the aforesaid case held that Maujadar was holding a 'civil post' under the State.
17. In the present case, it would be quite apparent from my discussions of the provisions of the Act made above that a Home Guard is under the direct control of the Government which has got the right to suspend and dismiss him in case his performance is not satisfactory or he disobeys any lawful order.
18. Learned Advocate General has, however, contended that the Home Guards in Tripura get a nominal fixed wage and that the duration of their services is for a period of 5 years. It is also contended by him that the Home Guards are to discharge their duties without any arms. But Rule 14 of the Rules, 1962 shows that a Home Guard not only wears uniforms during duty but he may also carry rifle or a revolver.
Rule 14 may, therefore, be quoted as under:
'14 Uniforms , Accouterments etc.- A member of the Home Guards shall 'while on duty wear the uniform supplied to him. He may also carry a rifle or a revolver or other weapons' sanctioned by the Chief Commissioner. '
19. In the case of Sher Singh v. State of Madhya Pradesh, AIR 1955 Nagpur 175 it was held that Article 311 was applicable to the Home Guards appointed under the Central Provinces and Berar Home Guards Act, 1947. The certificate of appointment, their Lordships held, indicated that the petitioner was an officer in the police force. A perusal of the Act and the Rules clearly indicates that the wages to be paid to the Home Guards will be determined by the State and that the State can also abolish the post and that the State can also regulate the conditions subject to which the post is or will be held. All these clearly indicate that ultimate control is exercised by the State.
20. In the case of Kanak Chandra (supra) it has been held by their Lordships that a post outside the regularly constituted services need not necessarily carry 'a definite rate of pay' and that a post outside the regularly constituted services may be apart time employment.
21. Therefore, having regard to the existing system of his recruitment, employment and functions a Home Guard, in my opinion, is: holdinga 'civil post' under the State.
22. This finding cannot, however, dispose of the vital question, namely, whether the Home Guards are entitled to get the same pay scales which their counterparts in the Tripura Police are getting.
23. As already stated, the contention of the respondents in this regard is that functions and duties of a Home Guard are not equivalent to that of a Police Constable or that the functions and duties of a Commandant of Home Guards are not equivalent to the duties and responsibilities which a Sub-Inspector in Tripura Police are discharging. In the instant case, the petitioners have tiled two documents, namely, Annexure-A letter of appointment and Annexure-B which indicates that Home Guards shall be detailed unarmed duties only. Not a chit of paper has been filed in respect of the appointment /engagement of Petitioner No. 2. It is contended by the learned Advocate General that duties and functions performed by the Home Guard/Platoon Commander are not equivalent to that of Constable and Sub-Inspector in Tripura Police. Moreover, the duties and functions performed by the Home Guards are on part-time basis on the principle of 'no work no pay''. It has been seriously disputed by the respondents that the works and duties performed by the Home Guards are not equivalent to that of a Constable or Sub-Inspector in Tripura Police. The documents which the petitioners have filed do not indicate even casually what functions they are actually discharging. Therefore, in absence of materials it is difficult to hold that functions and duties discharged by a Home Guard are equivalent to that of a Constable or Sub-Inspector in Tripura Police. It has been contended by the learned Advocate General that there is no order of the Govt. of Tripura to the effect that the post of Guardsman of Border Wing Home Guards Bn. is equal to that of a post of Constable in Tripura or that their functions are same. It has already been stated that the documents which the petitioners have filed do not indicate at what scale or at what wages they were appointed. In the writ petition also they have not mentioned it. It is true that Article 39 of the Constitution en-shrines the principle 'equal pay for equal work.' But unless and until it is established that the duties and functions discharged by Home Guards are equal to that of a Constable or Sub-Inspector in Tnpura Police such a demand cannot be entertained. This question cannot be satisfactorily decided without a detailed adducing of evidence and cross-examination of witnesses.
24. Mr. Das, the learned senior counsel appearing on behalf of the petitioners has, however, referred to a number of decision of this Court in support of his contention. The first decision is of Civil Rule No. 119 of 1981. This judgment shows that the petitioner Ratan Lal Dutta was appointed temporarily as L. Naik in the scale mentioned in the appointment letter
which was subsequently amended without hearing the petitioner. But in the present case, the appointment letter of the petitioner under Annexure-A shows that he was simply appointed as a member of the Home Guards for Tripura State under the Bombay Home Guards Act, 1947 (Act III of 1947) as extended in Tripura. Petitioner has stated under para 2 of the writ petition that in the year 1967 he was promoted to the post of Naik and that thereafter he was promoted to the post of Sergeant in 1977. Those appointment letters have not been annexed to the writ Petition. However, under para 6, of the counter it has been admitted that the petitioner No. 1 who was enrolled as member of the Tripura Home Guards organisation was holding the post of honorary post of Sergeant. It was further contended that the Petitioner No. 1 was never enrolled as 'Guardsman' who are used to be enrolled in Border Wing Home Guards Bn. and not in Home Guards Organisation. The facts of the present case are, therefore, clearly distinguishable from the facts of Civil Rule No. 119/1981. It has already been stated that the petitioner did not annex the copy of the orders appointing him to the post of Naik and thereafter to the post of Sergeant.
In the Judgment of this case (Civil Rule No. 119/1981) it has been stated under para 2 that according to the respondents the petitioner of mat case was appointed as L. Naik in Border Wing Home Guards Bn. But in the present case the appointment letter contained in Annexure-A shows that the petitioner was simply appointed as a member of the Home Guards for Tripura under Bombay Home Guards Act (Act III of 1947). The respondents in their counter contended that there is a difference between Home Guards and Border Wing Home'Guards. The judgment of C.R. No. 119/1981 is, therefore, not applicable to the present case as the facts are different.
25. The next decision referred to by Mr. Das is a decision rendered in Civil Rule No. 141 of 1986. The Judgment of this case shows that the petitioner Jatindra Barman who was appointed as Home Guard and discharged by an order contained in Annexure-C to that writ petition. Shri Barman challenged this order of discharge . That order of discharge was quashed by the judgment and the respondents were directed to take him back to the service within a period of month. The facts are clearly distinguishable from the present one.
26. The judgment of Civil Rule No. 38 of 198.5 which has been referred by Mr. Das shows that the petitioner Jatindra Das joined Home Guards Bn in the pay scale of Rs. 205-290/- on April 6,1977. In 1981 a disciplinary proceeding was drawn up against him and thereafter he was discharged. The petitioner challenged the legality and validity of the order of discharge in that writ petition. He did not file the case for fixation or the scale. So, this judgment has no application to the present case so far as the question of entitlement of scale is concerned.
27. Similarly, the decision of Civil Rule No. 66 of 1987 has no application to the present case as in that case also the petitioner was released from Home Guards Organisation without following the mandate of Article 311(2) of the Constitution of India. The question of pay and allowances was not required to be determined in that case.
28. Similarly the decision of Civil Rule No. 64 of 1993 is also not applicable to the present case for the simple reason that in that case petitioner Ratan Lal Das assailed the order of his discharge. The judgment of this case shows that the petitioner was appointed a 'Guardsman' in the Border Wing Home Guards Bn. in the scale of Rs. 205-5-260-6 -290/- . The appointment letter of the petitioner dated February 17, 1977 as has been quoted in the judgment shouws that he was appointed temporarily as 'Guardsman' in the Wing Headquarters Bn. on part time basis in the scale of Rs. 205-290/-. The petitioner got the relief as no enquiry as contemplated under Article 311(2) of the Constitution was made before discharging him.
29. In the case of Rameshwar Das Sharma and Ors. v. State of Punjab and Ors. in petition for Special Leave to Appeal No. 12465/ 1990 the Supreme Court by it order dated March 6, 1990 held as under:
Heard petitioner in person and learned counsel for the respondent. The counter affidavit indicates that the Home Guards who are
ordinarily demobbed Army personnel are employed on the basis of temporary need from time
to time and in case they are called back to do
work with arms in hand, they are paid at the rate
of Rs. 30/- per day on the basis of eight hours working during the day or otherwise they are
paid at the rate of Rs. 25/- per day. Petitioner,
according to the respondent, being an employee
under this system cannot ask for regularisation.
In such circumstances, we do not think that the
petitioner is entitled to any relief. We have impressed upon learned counsel, however, to find
out from the Home Guards Organisastion if in
any manner, the petitioner can be accommodated in a limited way.
The special leave petition and the interlocutory application are disposed of accordingly. No costs.
Sd/- Sd;/-
Court Master Court; Master'
30. It has already been stated above that in the instant case the documents which have been filed on behalf of the petitioners do not indicate at what scale or at what rate of wages they were appointed and whether they were appointed on part-time basis or not. Even in the writ petition they did not mention it. The respondents categorically stated in the counter that duties and functions discharged by the Home Guards are not equivalent to that of Con-stable/Sub-Inspector of Police. This question cannot, therefore, be resolved unless sufficient evidence is adduced.
31. There is no dispute that doctrine of equal pay for equal work has assumed the status of fundamental right in Service Jurisprudence having regard to the Constitutional mandate of equality enshrined in Articles 14 and 16 of the Constitution. But application of this doctrine depends upon the nature of works done. It cannot be judged by mere volume of work as even functions are same the responsibility make a difference. Learned Advocate General has quite emphatically argued that there is no proof to show that a Home Guard discharge any duty with arms. According to him Home Guards are never allowed to discharge any duty independently as a Police Officer does. It may also mentioned here that the same amount of physical work may entail different quality of work, some more sensitive, some requiring more tact, some less. It varies from nature and culture of employment.
32. In view of the above facts this application must fail and accordingly it is dismissed without any order as to costs.
.