Sampatti Kumar Dixit and Another vs State of U.P. and Others

Devendra Kumar Arora, J.—By means of present writ petition, the Petitioners pray for a writ in the nature of certiorari for quashing of orders dated 26.2.2010, passed by opposite party No. 3, as contained in Annexures No. 1 & 2 to the writ petition. Petitioners further pray for a writ in the nature of mandamus commanding the opposite parties to allow the Petitioners to work on the post of Home Guards and pay them honorarium in accordance with law, each and every month.

Facts of the case, in nutshell, are that Petitioners are Home Guards, appointed in the year 1998 and 1987, respectively and they were kept in Reserve Police Line (Traffic) where they were performing their duties under the instructions of Traffic Inspector and Traffic Sub Inspector (hereinafter referred to as ''T.S.I''). On 06.2.2010, when Petitioner No. 1 under the instructions of T.S.I. namely, Sri Sanjeev Kumar Gautam had gone to Loco Crossing for checking of the vehicles and Petitioner No. 2 who was waiting for a vehicle to go to his residence after duty, Traffic Inspector (hereinafter referred to T.I.) namely, Sri Dev Narain Yadav came there and asked the reason of presence of both the Petitioners with T.S.I.. The Petitioners explained him the reason of their presence but without verifying the fact from the T.S.I. on duty, the T.I. conveyed the message on wireless to the concerned authorities about the alleged unauthorised checking of the vehicles by the Petitioners. On 9.2.2010 the Petitioners were given a notice (Annexure No. 3) as to why they may not be ousted from service for their unauthorised act of checking of the vehicles. The Petitioners submitted their reply to the opposite party No. 3 on 15.2.2010 and denied the allegations made against them. The opposite party No. 3 passed the impugned orders dated 26.2.2010 (Annexure No. 1) in violation of principles of natural justice by which Petitioners were ousted from service on the ground that they did not submit any reply to the notice dated 09.2.2010.

Submission of learned Counsel for the Petitioners is that the reply submitted by the Petitioner No. 1 was duly received by the office of opposite party No. 3 whereas no receiving of the reply submitted by the Petitioner No. 2 was given by the office of concerned opposite party. Further submission is that no opportunity of hearing or show cause notice has been given to the Petitioners and the impugned orders have been passed without any enquiry and in utter violation of principles of natural justice. After having knowledge of the impugned orders dated 26.2.2010, the Petitioners made representation on 04.3.2010 (Annexure No. 6) for initiating an enquiry in the matter on which the opposite party No. 2 directed the S.P. Traffic to make an enquiry into the matter and, as such, an enquiry was made by the Circle Officer, Traffic. On enquiry, it was found that the Petitioners were not involved in any illegal act and report was submitted before the opposite party No. 3 through Addl. S.P. Traffic on 09.4.2010 (Annexure No. 7). After submission of report dated 09.4.2010, the Petitioners again made representations to the opposite party No. 3 for reinstatement of their services but nothing has been done so far. Since Petitioners are honorarium paid employees, they are at the verge of starvation due to their termination from service. Being aggrieved, Petitioners have approached this Court.

Learned Counsel for the Petitioners has placed reliance upon a decision reported in Suraj Prasad Tiwari Vs. Zila Commandant, Home Guards, Hamirpur and others, in which it has been held that a Company Commander of Homeguards holds a civil post and is entitled to protection of Article 311 of the Constitution of India. As such, Petitioners being Homeguards are also entitled to get protection of Article 311 of the Constitution of India.

Heard learned Counsel for parties and perused the record.

The Petitioners are aggrieved by the order dated 26.2.2010 passed by the District Commandant, Home Guards, Lucknow (Opposite Party No. 3), as contained in Annexures No. 1 & 2 to the writ petition by which appointment letters of the Petitioners have been cancelled.

Learned Counsel for the Petitioners submits that though the Petitioners were being paid honorarium, yet they were entitled for opportunity of being heard and, as such, in the absence of it, the order passed by the Respondent is illegal and is liable to be quashed.

The learned Standing Counsel while opposing the writ petition, submitted that home guards do not hold a civil post and has placed reliance on the explanation of Section 10 of U. P. Home Guards Act, 1963 as well as on the case of Riasat Ali v. State of U.P. and Ors., reported in 2003 (4) ESC 1964,

A perusal of judgment passed in Riasat Ali''s case (supra), it reveals that the matter was referred to larger bench in view of the conflicting views of the learned Single Judge and Hon''ble the Chief Justice vide order dated 03.8.1999 directed the said petition to be listed for hearing before the Division Bench for consideration of a question "Whether a person enrolled as Home Guard under U.P. Home Guards Act, 1963, as amended by the Act No. 4 of 1972 (for short called ''the Act'') holds a ''civil post?" The Division Bench while examining the issue apart from various decisions of the learned Single Judge, also considered the judgment of Suraj Prasad Tiwari Vs. Zila Commandant, Home Guards, Hamirpur and others, in which the learned Single Judge adopted the reasoning given in the earlier judgment of Bibhuti Narain Singh v. State and Ors. reported in 1986 UPLBEC 1130 and referred Article 311 of the Constitution of India in holding that the Home Guards under the Act hold civil post. After examining all the judgments and provisions of Home Guards Act, 1963 pleased to observed in paras 33 & 34 of the judgment which read as under:

We cannot, at the same time ignore that even if Act and Rules contemplate a service, which has incidence of ''civil service'', the most conspicuous distinguishing feature of the Act is the Explanation embedded in Section 10 of the Act which contemplates continuance in another employment including a civil service or civil post in the State/Union.

Explanation attached to Section 10 of the Act cannot be ignored or sidelined for extending protection contemplated under Article 311(2) of the Constitution of India. Hardship, if any, is perpetuated, as observed by learned Single Judge in the case of Raghvendra Singh (supra) it is for the legislature to remove the statutory hurdle but the Court cannot sideline, or ignore it.

On the basis of the aforesaid reasoning, it has been held that the Home Guards under the Act and Rules do not hod a ''civil post''.

The Hon''ble Supreme Court in the case of State of Gujarat and Anr. v. Akshay Amrutlal Thakkar reported in (2006) SCC 309 has held that as the services rendered by the Respondents were essentially honorary, no civil consequences were involved. Section 6-B(1-A) empowers the Commandant to discharge any member of the Home Guards at any time if, in the opinion of the Commandant, the services of such member are no longer required.

Since controversy has already been settled by the Division Bench in Riasat Ali''s case (supra) and the same was also followed by this Court subsequently in the case of Suraj Prasad Tewari Vs. Zila Commandant, Home Guards and Others, , this Court is also of the view that the Petitioners are not holder of a civil post and, therefore, the writ petition challenging the order of termination of services is not maintainable.

This Court is in full agreement with the view taken by the Division Bench in the case of Riasat Ali v. State of U.P. and Ors. reported in 2003 (4) ESC 1964,and does not find any good reason to interfere with the impugned orders of dismissal of services of the Petitioners.

Writ Petition is dismissed. No order as to costs.