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Judgment
J.N. Sarma J.
The Civil Rule. No. 2439 of 1990 has been filed by 108 Homeguards of ''D'' Company of Assam Homeguards (B.W.) against the (l) The State of Assam.
(2) The director of Civil Defence and Commandant General, Assam Homeguards, Beltola, Gauhati -28
(3) The Commandant, Assam Heme Guard Battalion, (B.W.) Beltola, Gauhati-28.
(4) The Union of India represented by the Secretary, Ministry of Home Affairs, New Delhi.
(5) The Director General, Homeguards Govt. of India, New Delhi.
(6) The Secretary to the Govt. of Assam Home Department, Dispur, Gauhati, praying the following reliefs:-
direct the Respondents to confirm and regularise the service of the Petitioners in the Assam Home guards Battalion (B.W.) and to extend all service and financial benefits with retrospective effect including those of leave facilities, Group Insurance scheme, full ration money, regular promotion benefits, Pension benefits, Border allowances and kit allowances, Armed allowances and other connected benefits.
The brief facts are as follows:
The Government of India raised a Border Wing Home Guards Battalion and this was sanctioned vide letter dated 15-10-76 which is at Annexure-1 to the writ application. Pursuant to this letter in the State of Assam four companies of Home Guards were raised in the year 1977 for Karimganj, Goalpara, Mankachar and Dhubri. The Petitioners on being recruited were sent for training at Beltola on the different dates to undergo battalion training. Accordingly the Petitioners were given training in Rifles, Stenguns, LMG, Hand Grenade etc. After completion of about 3 months training the Petitioners were appointed as Guardsmen in the Assam Homeguard Battalion (B.W.) in 1977. The Petitioner were posted at Assam (sic) border and had been put alongwith B.S.E. and they did their duties (sic) In fact both the B.S.E. and Homegurds petrilled the Border jointly. The Petitioners got in cerements of pay and some of the Petitioners were also promoted to the rank of L/Naik, Naik and Plotoon Havildar. That from the scheme of the Government of India vide Annexure-1 it appear that Tte Border wing Homeguards are not temporary rather permanent. The expenses of the Homeguards Battalion (B.W.) are borne by the Central Government. That though the Petitioners appointed temporarily, in fact, almost all the Petitioners except Petitioners No. 10, 27, 33, 54 and 79 are in continuous services since 1977. The Petitioner No. 10 joined on 27.8.83, Petitioner No. 27 joined on 11.1.78, Petitioner No. 33 joined on 11.1.78, Petitioner No. 54 joined on 11.1.78, and the Petitioner No. 79 joined on 12.9.86. The Petitioners for all practical purposes nave acquired the status of permanent posts and they claimed that they are entitled to all the service and financial benefits like that of permanent Govt. employees. Some of the Homeguards other than the Petitioners were suddenly disembodied Com service for about 2 months even after continuous service for about 8-10 years. Being aggrieved, those persons filed several writ applications before the Hon�ble High Court and the Hon''ble High Court after hearing the parties, allowed their petitions and directed the Respondent No. 3 i.e. Commandant to record the service of those persons the continuity without break A copy of the Judgment dated 18.1.90 passed by the Hon�ble High Court in Civil Rule No. 221 of 1988 is annexed as Anneure-4 to the writ application. This Judgment at Annexure-4 inter alia reads as follows:
Our observations and decisions rendered in Civil Rule No. 51 of 1988 vide Judgment dated 18.1.90 axe fully applicable in the case. The break m services for about two months was malafide, illegal, arbitrary and in violation of natural justice. The impugned order contained in Memo No. H.G. Bn. C/D 1/87, dtd. 9.9.1987 (Annexure-4) is liable to be quashed.
We accordingly quash the impugned order under Memo dated 9.9.87 issued by the Company Commandant, Assam Home Guards Battalion (B.W.) Karagaon, Assam and declare that the services of the 35 Petitioners to be in continuity without break entitling them to the salary, allowances etc, for the break period about two months (9.9.87 to 6.11.1987) and we further direct that the Respondent No. 2 Commandant, Assam Home Guards Battalion (B.W.) Betlola, Gauhati and Respondent No. 6 Company Commandant, Assam Home Guards Battalion (B.W.) Khargaon District. Karbi Anglong, Assam to record the continuity of services of 35 Petitioners without break.
The Petitioners states the in view of the decision of the High Court, the services of all the Home Guards should and ought to have been regularised by this lime, bin inspite of several representations the Respondents are not doing anything positive, At present the Petitioners get Rs. 103.00 p.m. as ration money while their counterparts in oilier establishment get double of that amount i.e. Rs. 360/- per month. That inspite of continuous service for more than 10 years the Petitioners have not been confirmed in their services nor they have been regularised till today. They also do not get the benefits of Earned leave, medical leave, commuted leave, Group Insurance. Scheme, Provident fund, pension, and other service benefits are being denied to them. The Petitioners at present are entitled to only 15 days casual leave and no other leave even for serious illness is granted to the Petitioners. Leave is granted to the Petitioners for serious illness without pay for the period of absence. The Petitioners also are not given the Border allowance and kit allowances. By representations Annxeure -5(a) and 5(b) this matter was brought to the notice of the authority, but nothing vas done. The Petitioners submit that they are entitled to the "equal pay for equal work" and denial of the same to the Petitioners amounts to discrimination and same is violative of the provisions of Article 14 and 16 of the Constitution of India. The Petitioners state that the State Government raised two battalions in the year 1984 namely the Assam Special Reserve Force from Homeguards Organisation and they are under the same Directorate. The persons belonging to these battalions are getting all the facilities and benefits as stated above, where as the Petitioners are being continuously deprived of all those facilities and as such the same is discriminatory.
In support of their claims, the Petitioners have filed the following documents:
(i) Annexure-1 is ''he letter dated 15th October, 1976, creating the Border wing Hone Guards for Eisten States.
(ii) Annexure-2(a) to 2(g) and Annexure 3(a) 3(b) are some, of the appointment letters of the Petitioners.
(iii) Annexure-4 is the Judgment dated 18.1.90 passed in Civil Rule No. 221 of 1988.
(iv) Annexure-5(a) to 3(b) are the two representations dated 21.9.89 and 26.11.90.
An affidavit-in-opposition was filed on behalf of the Respondents No. 1, 2, 3 and 6 wherein it was inter aha slated us follows:
(i) The Battalion was created October, 1977.
(ii) The Role of Border Wing Home Guards Battalion personnel is to assist the B.S.E. personnel in anti-smuggting and in infiltration operation etc. The personnel embodied were trained the weapons like I.M.G.G.F etc. including tactics and craft.
(iii) Be it stated that the expenditure incurred is to be born by the Govt. of India to the extent of cent percent.
(iv) The Home Guards are not permanent in nature and their services are not permanent. The Govt. of India sanctioned ration money only Rs. 103/- per month and accordingly, the Home Guards Personnel are paid at that rate. The Services of the Petitioners are in the nature of part-timer and as such the benefits of Group Insurance, GPF are not envisaged in the scheme of the Govt. of India.
(v) The representation referred to above have been duly forwarded to the appropriate authorities. The services of the Home Guards cannot be regarded a? essential and therefore, there cannot be any question of regularization or confirmation.
(vi) it is a fact that the Government raised two forces in the year 1984 in the same directorate. But the Border Wing Home Guards were raised as per instructions of the Ministry of Home Affairs. Govt. of India and the terms and conditions of the service of the both wings are completely different.
Curiously enough, in the affidavit-in-opposition in paragraph 15) which is verifying paragraph of the statement of the affidavit-in-opposition have been kept blank and it is not known how this paragraph 18 of the affidavit have been verified. This being the position of the affidavit-in-opposition, this affidavit is likely lo be rejected. Along with the affidavit-in-opposition, the Respondents filed some of the same documents as filed by the Petitioners.
An affidavit-in-opposition has been filed on behalf of the Respondents No. 4 and 5. In this affidavit-in-opposition, it is stated inter alia as follows:
(i) Part time members are volunteers like urban/rural Home Guards who may be called upon for duty/training as and when required. Expenditure for such call up/embodiment of such pan time members is borne by Central Government when embodiment is at the instance of the Central Government. It is to be borne by the State Government when such embodiment is for State Government duty.
(ii) The pay and allowances of the part time members has been fixed by the State Government as per the scale obtaining in State Armed police. The Govt. of India did not sanction any other allowances as contended by the Petitioners.
No records have been pi educed by the State Govt. or by the Union of India.
The Civil Rule No. 2440 of 1990 has been filed by 53 persons. All are of ''A'' Company of Assam Home Guards Battalion (B.W.). The prayers are similar as in Civil Rule No. 2439 of 1990 and the facts are also same. In this Civil Rule also an affidavit-in-opposition was filed on behalf of the Respondents No. 4 and 5 and also another affidavit-in-opposition was filed on behalf of the Respondents No. 1, 2, 3 and 6. Regarding other matters it is same with the Civil Rule No. 2439 of 1990. As both the mailers raised the same question of law and fact, they are taken up together for hearing.
It is an admitted position drat so far as the scale of pay is concerned, the Petitioners are presently getting the scale similar to given to the personnel of the State Armed Police force as recommended by the last Pay Commission and that relevant portion of the Gazette Extra-ordinary Notification dated 11.12.90 is available in the record.
In Civil Rule No. 51 of 1988 (Shri Rathin Chandra Roy & 90 Ors. v. State of Assam and Ors.), date of Judgment 18.1.90 this Court inter alia held as follows:
It indicated the nature of the Force of the Wing and their services under the Scheme was not of temporary character rattier permanent and completely different from Rural Home Guards; and that the physical standards of the members of the Border Wing Home Guards should conform lo the standards laid down for the Armed Police Battalion in the Slate.
The initial appointments were shown as temporary and terminable without notice in the year 1977. But the services of the Petitioners under such appointments continued without interruption for more dtan 10 years;
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In view of the scheme of the service and continuity in the services for more than 10 years, without interruption, the initial nature and terms of appointment temporary and terminable without notice had automatically lost its force and character of their permanancy in the services had grown with rights in the services.
In (1985) 1 GLR NOC 8 Civil Rule No. 119 of 1981 Ratal Lal Das Dutta v. State of Tripura. It was inter alia held as follows:
As the Petitioner is working for more than 10 years and discharging his duties, as members of the Home Guards, he shall be entitled to get the pay and allowances and all other benefits, equally to his counterparts in the State Armed force.
The principle of law has been laid down by the Apex Court on the doctrine of "equal pay for equal work", it is not necessary to burden the Judgments with the cases regarding equal pay for equal work and this aspect of the matter is nor very important now in as much as the last Pay Commission has given the same pay scale to the Petitioners as given to the members of the State Armed Police services. The only question is that whether the Petitioners are entitled lo regularisation and confirmation of their services and other benefits.
I have heard Sri A.F.G. Osmani, learned Counsel for the Petitioners. The Govt. Advocate, Assam for the Respondents No. 1, 2, 3 and 6 and Central Govt. Standing counsel for the Respondents No. 4 and 5.
As pointed out earlier, the affidavit-in-opposition filed on behalf of the State of Assam is not an affidavit, in the eye of law. Yet, I am not rejecting it on the ground as suited earlier and have considered it.
Sri Osmani submits the there is no reason as to why the services of the Petitioners should not be regularised and lie relied on the Division Bench, Judgment dated 18.1.90 passed in Civil Rule No. 51 of 1988 wherein this Court held - that "character of their permanancy in the services had grown with rights in the services." Regarding ration money, Mr. Osmani submits, dial the Govt. of India authorised the State Govt. to pay the ration money as per scale of the members obtaining in the State Armed Police. In that view of the matter, the stand taken by the State Government that only Rs. 103/- p.m. was sanctioned by the Union of India is not correct and he submits that the Petitioners are entitled to same ration money as the members of the State Armed Force are getting. I find force in the contention of Mr. Osmani and I accordingly hold that the Petitioners are entitled to the same ration money as with the members of the State Armed Force. Regarding kit allowance it is difficult, because according to the Respondents the kit are supplied by the Respondents. So, the question of kit allowance does not arise. But even, then if the members of the State Armed Police, are entitled to kit allowance, there is no reason as to why the Petitioners should be deprived from this kit money. Regarding regularisation, on perusal of the materials, 1 hold that the Petitioners are entitled to be regularised in service and they are also entitled to oilier benefits of regularisation of service of the Petitioners cannot be kept hanging and it is not proper that they should be deprived of the benefits of their long service.
for all the reasons slated above. 1 a now this writ application with the following directions:
(i) The Petitioners and all oilier similarly situated persons shall be regularised in their services and confirmation will be done according to Rules within a period of 3 (three) months from today.
(ii) The Petitioners will to entitled to all other incidental benefits of regularisation and confirmation of service like-leave facility, provident Fund. Pension, Group Insurance Scheme, regular promotion to Higher posts and other benefits which may be available to them.
(iii) The Petitioners will be entitled to the same, ration money as available to the members of the State Armed force of Assam.
(iv) Kit allowance as available to the members of the Armed Force of she State of Assam shall also be made available to the Petitioners. All other benefits which will be available because of rcgularisation shall also be given to the Petitioners.
(v) All these things are to be sorted out by the Respondents within a period of (4) four months from today.
With the above directions, the writ application stands disposed of.