Gayatri Devi vs The State of Jharkhand and Others

M.Y. Eqbal, J.—The petitioner who is the widow of late Babulal Singh seeks a mandamus directing the respondents to appoint her on

compassionate ground. Petitioner''s case is that her husband was Home Guard posted at Garu in the district of Latchar. He died in harness on 24th

July, 1999 while he was on duty in an encounter by the extremists along with two other Home Guards. After the death of her husband in an

encounter by the extremists she made an application before the Commandant, Bihar Home Guard for appointment on compassionate ground. She

also requested the Superintendent of Police, Palamau and the Commissioner of police. Palamau for her appointment on compassionate ground.

Her further case is that the Commandant, Bihar Home Guard recommended her case and requested the Deputy Commissioner, Palamau for giving

employment to the petitioner. A copy of the letter dated 17.1.2001 has been annexed as Annexure 3 to the writ application. It is contended by the

petitioner that till date no decision has been taken by the respondents on the application of the petitioner.

In the counter-affidavit filed by the respondents it is stated that since the petitioner''s husband was killed in an encounter she was paid a sum of

Rs. 2,50,000. She was also paid a sum of Rs. 15,000/- from the welfare fund and the Deputy Commissioner also paid a sum of Rs. 20,000/- to

the petitioner on account of death of her husband. The petitioner has already been provided house under the Indira Awas Yozna by the order of

Deputy Development Commissioner, Palamau. So far the claim of compassionate appointment is concerned it is stated that the scheme of

compassionate appointment is applicable only in the case of government servant. A Home Guard remains on the role of the department only as a

volunteer and they are deputed only for the administration exigencies and they draw allowances for their voluntary services. It is further stated that

there is no such provision of compassionate appointment so far Home Guard is concerned.

Mr. P.P.N. Roy learned counsel appearing for the petitioner submitted that under the Home Guards Act persons appointed as Home Guard are

public servant and all protection are available to that as a public servant.

Before appreciating the submission of learned counsel, I would like to discuss the relevant provision of Bihar Home Guard Act, 1947. Section 3

empowers the State Government to constitute in each area Home Guards who shall discharge such function in relation to the protection of persons,

the security of property or public safety in the area. The Home Guards in the State Government shall be deemed to be a single force and the

District Magistrate having jurisdiction over the area may call out any Home Guards for the discharge of any duty assigned to them. Section 6

provides that when Home Guard called out in aid of the police force they shall be under the control of the officers of the police forces. Section 9

provides that a Home Guard, when on duty as such in so far as such duty is not inconsistent with the act be mutatis mutandis subject to the Police

Act, 1861. Section 12 provides that a Home Guard acting in the discharge of his function under the Act shall be deemed to be public servant

within the meaning of Section 21 of the Indian Penal Code. Section 13 empowers the State Government to make rules for carrying out the

purposes of the Act.

The State Government framed rules called Bihar Home Guards Rules, 1953. Rules 19 and 21 of the said rules is worth to be quoted herein

below.

Inspection by Higher Authorities.--The Inspector General of Police, Commissioner of the Division, Deputy Inspector General of Police, Armed

Forces and the Range Deputy Inspector General of Police shall periodically inspect the Home Guards and submit minutes or inspection to the

State Government.

Standing Orders.--The Inspector General or the Commandant may issue standing orders relating to the discipline, morale and sense of duty of the

force. The Commandant will invariably maintain very close contact with the District Magistrate, Superintendent of Police, Range Deputy Inspector

General of Police and Inspector General of Police, Armed Forces.

It is therefore, clear that the Home Guard while on duty shall be deemed to be a public servant and the provisions of Bihar Police Manual shall

be applicable to the Home Guards excepting such provision which is repugnant to any of the provisions of Bihar Home Guard Acts and the rules

made thereunder.

The question, therefore, that falls for consideration is whether a dependent of the Home Guards who is killed in an encounter in the discharge of

his duty is to be considered for appointment on compassionate ground, In other words whether the provision of compassionate appointment

available to the regular force can be extended to Home Guards who are killed in the discharge of his duty.

The very object of compassionate appointment of a dependent of the deceased employee, who died in harness, is to relieve unexpected

immediate hardship and distress caused to the family by sudden demise. It is well-settled that appointment on compassionate ground is an

exception to the equality clause under Article 14 and it forms a class by themselves. The word ""compassionate"" itself denotes a sorrow for the

suffering of another. Compassionate appointment means appointment because of suffering and pitiable condition.

It is not disputed by Mr. Jerath, learned counsel appearing for the respondents that provision has been made for giving compassionate

appointment in case of death of regular police officer In the discharge of his duty. In my considered opinion, therefore, a Home Guard when killed

in an encounter with the extremist will get the benefit of compassionate appointment particularly when the provisions of police manual which are not

in consistent with the Home Guards Act will be applicable to the Home Guard also. In the instant case as noticed above the petitioner''s husband

was killed in an encounter with the extremists. After the death of the only bread earner the petitioner has been put in a very pitiable condition and

she claims appointment in Class IV post. Such a benefit should be allowed to the petitioner.

For the aforesaid reason this writ application is allowed and the respondents are directed to consider the case of the petitioner for appointment

on compassionate ground and take a decision within a period of two months from the date of receipt of copy of this order.