M.Y.EQBAL, J. - (1.) THE petitioner who is the widow of late Babulal Singh seeks a mandamus directing the respondents to appoint her on compassionate ground. Petitioner 'scase 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.
(2.) 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. 15,000.00 from the welfare fund and the Deputy Commissioner also paid a sum of Rs. 20,000.00 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.
(3.) BEFORE appreciating the submission of learned counsel, I would like to discuss the relevant provision of Bihar Home Guard Act, 1947. Sec.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. Sec. 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. Sec.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 Sec.21 of the Indian Penal Code. Sec.13 empowers the State Government to make rules for carrying out the purposes of the Act.;