# Dheer Singh(Home Guard) v. State of U.P. & Ors

- **Citation:** (2022) 2 ILRA 241
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-09
- **Case number:** Writ A No. 8869 of 2021
- **Bench:** Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dheer-singh-home-guard-v-state-of-u-p-ors-47516
- **Pages:** 13

## Headnote

A. U.P. Home Guards Act, 1963- Section 7
- Power of appointment and selection of Home
Guards vests with the St. which is exercised
through it's officers. The person selected and
enrolled is subordinate to a public servant and
he receives the salary/wages on a monthly
basis, there exists the relationship of master
and servant and he performs duties in
connection with the affairs of the St..

B. Any personnel enrolled u/S 7 of the Home
Guards Act will not be a holder of civil post and
will not enjoy any protection available u/A 311
of Constitution of India but as soon as he is
called to perform any duty u/S 8 of the Act he
will become holder of a civil post and enjoy the
protection of Article 311 of Constitution of
India.

C. The termination order on the ground that
the petitioners formed an association is not
sustainable as Article 19(1)© confers a
Fundamental right on every citizen to form a
Union/Association or Cooperative Society which
right can only be circumscribed by framing a
law under article 19(2) of Constitution of India
which would have to be a law as provided
under Article 13(3) of Constitution of India.

Held: Petition allowed. (E-12)

List of Cases cited: -

## Text

_Characters 0–39,829 of 44,108. This is a partial read: ask again with offset=39829 for what follows._

2 All. Dheer Singh(Home Guard) Vs. State of U.P. & Ors.
241

11- As such, the submission of
learned counsel for the applicants, as
mentioned above, is not liable to be
accepted.

12- The instant application lacks
merit and is accordingly rejected.

13- Office is directed to send a copy
of this order to the concerned court below.
----------
(2022)02ILR A241
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.09.2021

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ A No. 8869 of 2021
with
Writ A No. 8512 of 2021
with
Writ A No. 8867 of 2021
with
Writ A No. 8870 of 2021

Dheer Singh(Home Guard) ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Niraj Kumar Tripathi, Sri Shailesh Verma

Counsel for the Respondents:
C.S.C.

A. U.P. Home Guards Act, 1963- Section 7
- Power of appointment and selection of Home
Guards vests with the St. which is exercised
through it's officers. The person selected and
enrolled is subordinate to a public servant and
he receives the salary/wages on a monthly
basis, there exists the relationship of master
and servant and he performs duties in
connection with the affairs of the St..

B. Any personnel enrolled u/S 7 of the Home
Guards Act will not be a holder of civil post and
will not enjoy any protection available u/A 311
of Constitution of India but as soon as he is
called to perform any duty u/S 8 of the Act he
will become holder of a civil post and enjoy the
protection of Article 311 of Constitution of
India.

C. The termination order on the ground that
the petitioners formed an association is not
sustainable as Article 19(1)© confers a
Fundamental right on every citizen to form a
Union/Association or Cooperative Society which
right can only be circumscribed by framing a
law under article 19(2) of Constitution of India
which would have to be a law as provided
under Article 13(3) of Constitution of India.

Held: Petition allowed. (E-12)

List of Cases cited: -

1. St. of U.P. & ors. Vs Dashrath Singh Parihar &
anr. 2007 All.C.J. 1165

2. Chhaya Tripathi Vs St. of U.P. & ors. Writ A
No. 15793/2018

3. Omvir Singh & anr. Vs St. of U.P. & ors. Writ
A No. 16195 of 2005

4. Rajvir Singh Vs St. of U.P. & ors.
LAW(ALL)2018-10-61

5. Harveer Singh Vs St. of U.P. & anr. Writ A
No. 60671 of 2016

6. Ram Avadh Yadav Vs St. of U.P. & ors. Writ
A No. 145 of 2020

7. Riasat Ali Vs St. of U.P. & ors. 2003(4) AWC
3046

8. Roop Chand Vs St. of U.P. & ors. Special
Appeal(Defective) No. 904 of 2010

9. Arun Kumar Shukla Vs St. of U.P. & ors.
2018(2) ADJ 353

10. Vibhuti Narayan Singh Vs St. & ors. 1986
UPLBEC 1130

11. Abdul Hamid & anr. Vs St. of U.P. & anr.
Writ Petition No. 9028 of 1990
242 INDIAN LAW REPORTS ALLAHABAD SERIES
12. Hriday Narayan Yadav Vs St. of U.P. & ors.
Writ A No. 19141 of 2019

13. St. of U.P. Vs Chandra Prakash Pandey &
ors. JT 2001(4) SC 145
(Delivered by Hon'ble Pankaj Bhatia, J.)

1. Heard Shri Shailesh Verma and
Shri M.M Sahai, Advocates for the
petitioners
and
R.P.
Dubey,
learned
Additional Chief Standing Counsel, Shri
Vibhav Dutt, Standing Counsel, Mohd.
Naushad Sidduqui, Standing Counsel, Shri
Virendra Kumar Pal, Standing Counsel,
Shri Ramesh Pundir, Standing Counsel,
Shri Santosh Kumar, Standing Counsel and
Shri Jitendra Kumar Singh, Standing
Counsel for the State-respondents.

2. The issue raised in all the writ
petitions are being decided by mean of this
common
judgment
for
the
sake
of
convenience, the facts as mentioned in the case
of Dheer Singh Vs. State of U.P. and others in
Writ - A No.8869 of 2021 are being taken up.
Individual cases will be dealt separately.

3. The present petition has been filed
alleging that the petitioner was enrolled as
a Home Guard in the year 1998 under
Section 7 of the U. P. Home Guards
Adhiniyam,1963 and in terms of mandate
of section 8 of the Act was called upon to
discharge of his duties, he was placed in
various places in District Amroha, he was
being paid honorarium as provided under
the U.P. Home Guards Act, 1963.

4. Challenge in the present case is to
the order dated 13.02.2019, whereby the
services of the petitioners have been
dispensed with mainly on the ground that
the petitioners were involved in forming a
Workers' Association. Name of four of the
petitioners is mentioned in the order dated
13.02.2019, it was further mentioned that
the said Act of forming an Association was
not acceptable and the Commandant
General, Home Guard Headquarters vide
letters dated 02.09.2013 and 31.07.2013
had directed for dismissing the Association.
It is further revealed that the news of
formation of an Association by the
petitioners was published in the Newspaper
"Hindustan" and based on the said news the
petitioners were served with a show cause
notice dated 04.01.2019, to comply with
the Principle of Natural Justice. In the
impugned order, it is recorded that the
petitioners did not file a reply and the said
act of not filing the reply was itself
recorded as an act of indiscipline. It further
records that the petitioners had themselves
admitted that they were not the member of
the Association known as U.P. Home Guard
Avaitnik
Adhikari
Avam
Karmachari
Association. It is recorded that the reply
submitted by the petitioners was not
considered to be appropriate and which
established
that
the
petitioners
had
associated themselves with the Association,
which was an act of indiscipline. It is
further recorded that the petitioners had
earlier given an affidavit in September,
2011 swearing not to even take the name of
the Association in future and had also
apologized for the facts of associating with
the Association and had prayed for mercy
and had promised that they will not repeat
the mistake again and despite the said
affidavit, became a governing Member of
the said Association, which is contrary to
their common affidavit given earlier. It also
records that Commandant General vide his
letter
dated
31.07.2017
had
issued
directions for dismissal of such employees
and in pursuance to the said directions the
services of the petitioners were dismissed.
The said order was challenged before this
Court.
2 All. Dheer Singh(Home Guard) Vs. State of U.P. & Ors.
243

5. Sri Shailesh Verma, learned
counsel appearing on behalf of the
petitioners argues that the order impugned
is bad on following grounds:-

The said order is bad as no
procedure as prescribed under the U.P.
Home Guards Act, 1963, has been followed
prior to passing of the said order. He argues
that the post of the petitioners was a Civil
Post and thus, it was incumbent upon the
respondents to have complied with the
mandate of Article 311 (2) of the
Constitution of India. He further argues that
the order is bad as the same has been
passed
under
directives
from
the
Commandant General and thus there is no
application of mind of the authority passing
the said. He further argues that the order is
clearly against the rights of the petitioners
enshrined under Article 19(1)(c) of the
Constitution
of
India,
which
is
a
fundamental right of the petitioner to form
an Association or Unions. He argues that no
law in terms of Article 19(2) has been
passed and an absence of a law under
Article 19(2) the rights enshrined under
Article 19(1) cannot be curtailed.

6. In response to the said arguments,
Sri Mohd. Naushad Siddiqui, learned
Standing Counsel argues that the post
held by the petitioners cannot be termed
to be a Civil Post as such the protection
of Article 311 (2) of the Constitution of
India is not available to the petitioners.
He
further
argues
that
the
orders
impugned
have
been
passed
after
complying with Principle of Natural
Justice and giving adequate opportunity
of hearing. He further argues that once
petitioners had given an undertaking in
the form of affidavit filed in the year
2011, acting against the same was wholly
arbitrary and illegal and an act of
indiscipline, for which the petitioners
have been rightly punished. In support of
his argument that post of the petitioners is
not a Civil Post, he places reliance on
Explanation to Section 10 of the 1963
Act. Lastly he submits that the writ
petition is liable to be dismissed.

7.

Learned
counsel
for
the
petitioners has placed reliance on the
following judgments in support of his
contention that the petitioners are holding
of Civil Post, namely, Division Bench
judgment of this Court in the case of
State of U.P. and others Vs. Dasrath
Singh Parihar and another, (2007 All.
C.J. 1165). He places reliance on the
judgment of this Court decided on
23.08.2018 in Writ - A No.15793 of
2018, (Chhaya Tripathi Vs. State of
U.P. and others) and judgment dated
11.10.2018 passed in Writ - A No.16195
of 2005 (Om Beer Singh and another
Vs. State of U.P. and others).

8. Counsel for the respondents on the
other hand has placed reliance in Full
Bench judgment dated 01.10.2018 passed
in the case of Rajveer Singh Vs. State of
U.P. and others; LAW(ALL) 2018 10 61.
He further places reliance on the judgment
of this Court in Writ - A No.60671 of 2016
(Harveer Singh Vs. State of U.P. and
another. He further places reliance on the
judgment of this Court dated 09.12.2020
passed in Writ - A No.145 of 2020 ( Ram
Awadh Yadav Vs. State of U.P. and
others) and Division Bench judgment of
this Court in the case of Riasat Ali Vs.
State of U.P. and others, reported in 2003
(4) AWC 3046. Further he placed reliance
on the judgment dated 06.10.2010 passed
in Special Appeal Defective No.904 of
2010 (Roop Chand Vs. State of U.P. and
others) and the judgment of this Court
244 INDIAN LAW REPORTS ALLAHABAD SERIES
passed in the case of Arun Kumar Shukla
Vs. State of U.P. and others, 2018 (2)
ADJ 353.

9. In the light of the submissions, the
first question to be decided is whether the
post held by the petitioners can be
considered to be holders of a "Civil Post" in
the light of the judgments relied upon and
quoted above.

10. Before deciding the question, the
Act namely, the Home Guard Adhiniyam is
being briefly discussed. The Act came into
force on 30th December, 1963 and was
promulgated for constituting a force for
utilizing its services for duties in times of
emergency and for serving as an auxiliary
to the police for the maintenance of law
and order. The constitution of the Home
Guard is provided under Section 3, which
provides for raising and maintaining a
volunteer force to be called of the Home
Guards and the functions to be performed
are
specified
in
Section
4.
The
superintendence of the administration of
the said Home Guards is provided for in
Section 6 and is to be done by the State
Government through the Commandant
General. Section 7 provides for the manner
of enrolment of the volunteers and Section
8 confers the powers on the District
Magistrate or the District Commandant or
the Commandant General to call of the said
enrolled persons for performing the duties
and functions as specified in Section 4 of
the said Act. Section 10 provides that the
Home Guard acting in discharge of the
functions under the Act shall be deemed to
be a public servant within the meaning of
Section 21 of the IPC. The liabilities placed
upon the Home Guards enrolled are laid
down under Section 11, which bind the
Home Guards for serving in any unit of the
Home Guard, in which he is attached and
the initial period required to be served is
three years from the date of his enrolment,
which can be extended. The procedure with
regard to the discharge, suspension and
designation are laid under Section 12 and
the penalties that can be imposed on the
said Home Guards are provided for under
Section 13.

11.
 The State
Government
is
empowered to make Rules and Regulations
for carrying out the performances of the
said Act. Since the passing of the said Act
and the passage of time, the utility of the
persons enrolled under the Home Guards
has continued and in terms of the mandate
of Section 8, they have been called to
perform the duties. It is also to be borne in
mind that the State Government has framed
rules for governing the services of Group-A
and Group-B post holders of Home Guards,
their manner of recruitment, the terms and
conditions of their services. Although, no
rules have been framed for Group-C and
Group-D, however, they are entitled to be
absorbed/promoted to Group-B and a quota
for promotion is also fixed in the rules
provided for recruitment of Group-A and
Group-B.

12. The State Government has issued
the Government Orders providing for
manner of enrolment of the Home Guards,
providing for their eligibility criteria, the
age ,physical abilities, as well as the other
eligibility conditions and whole process of
selection is provided for in the Government
Order
No.
1549/Chhah
Naasu-11-32
Hoga/11, dated 1st September, 2011. Prior
to the said, the Government Order No.
2099/Chhah Naasu-10-438 Hoga/07, dated
6st September, 2010 was issued providing
for the manner of recruitment and in fact a
Committee also has been constituted for
making said selections. It further provides
2 All. Dheer Singh(Home Guard) Vs. State of U.P. & Ors.
245
for awarding marks obtained on various
parameters.

13. Several welfare measures have
been taken by the State Government such
as
providing
for
compassionate
appointment to the dependents of the Home
Guards, who die while in harness or are
incapacitated while performing their duties,
vide Government Order No. 2013/Chhah
Naasu-12-188
Hoga/06,
dated
27th
September, 2012. The rules with regard to
the recruitment on the vacant posts of
Home Guards have further been amended
by Government Order No. 3089/95-15-08
Prakeerna/1, dated 12th January, 2016.

14. It is also to be noticed that the
salary/wages to the Home Guards are paid
out of the Sate funds and it term of their
appointment also continues for years, thus
from the Act and the various Government
Orders and the Rules, what is clear is that
power of appointment and selection vests
with the State, which is exercised though
its Officers. The person selected and
enrolled is subordinate to a public servant
and he receives the salary/wages on a
monthly basis, there exists the relationship
of master and servant and he performs
duties in connection with the affairs of the
State.

15. Before deciding the nature of the
post it is essential to note that, this Court
was confronted with this question way back
in the year 1986 in the case of Bibhuti
Narain Singh Vs. State and others
reported in 1986 UPLBEC 1130, a Single
Judge of this Court held that the post held
by the Home Guards to be a Civil Post,
whereas, another Single Judge of this Court
while deciding Writ Petition No.9028 of
1990 (Abdul Hameed and another Vs.
State of U.P. and another) vide judgment
dated 28.10.1991 held that the post was not
a "Civil Post". In view of the conflicting
decision, the matter was referred before the
Division Bench which decided the issue in
judgment delivered in case of Riasat Ali vs
State 2003(4) AWC 3046, holding that the
Home Guards under the Act and Rules did
not hold a Civil Post. The said judgment
was followed by this Court in the Case of
Roop Chand Vs. State of U.P. (supra).
While delivering the judgment in the case
of Roop Chand (supra), the Court also
agreed with the view taken in the case of
Riasat Ali (supra) nevertheless dismissed
the writ petition holding that the right of
appeal is available under the Rules. The
judgment in the case of Arun Kumar
Shukla
(supra)
relied
upon
by
the
respondent did not decide the issue of the
question whether the post held by the
petitioner is a Civil Post or not, the same as
such the same is not being considered. The
judgment of this Court passed in the case of
Hriday Narayan Yadav Vs. State of U.P.
and others (Writ - A No.19141 of 2019)
placing reliance in the case of Riasat Ali
Vs. State of U.P. held that it is still good
law and the protection under Article 311 of
the Constitution of India was not available
to the Home Guards.

16. The Division Bench of this Court
in the case of State of U.P. and others Vs.
Dasrath Singh Parihar and another
(supra), was confronted with the said issue
as to whether the Home Guards held the
post which can be said to be a Civil Post
enjoying the protection available under
Article 311 of the Constitution of India or
not. The said Division Bench considered
the judgments of the Single Judges as well
as the judgment in the case of Riasat Ali
(supra) as also the judgment of Supreme
Court in the case of State of U.P. Vs.
Chandra Prakash Pandey and others,
246 INDIAN LAW REPORTS ALLAHABAD SERIES
reported in JT 2001 (4) SC 145. After
considering the entire gamut of case laws
did not agree with the reasoning given in
the case of Riasat Ali (supra) and recorded
its opinion as under:-

"20. Therefore, in our opinion, by
mere enrolment, a Home Guard will not
hold a civil post but once a Home Guard is
called for duty under Section 8 of the Act,
he will be holding a civil post. The view,
which we are taking, is further supported
by the provisions of the Rules, which have
been framed by the Governor exercising the
powers conferred by the proviso to Article
309 of the Constitution. Rule 2 which deals
with the status of service clearly mentions
that the Uttar Pradesh Home Guard
Service is a State Service comprising group
''B' post."

17. In the said judgment, the Division
Bench also considered as to whether the
matter should be referred to a Larger Bench
or not, in view of the earlier judgment in
case of Riasat Ali (supra), the Division
Bench did not refer the matter to the Larger
Bench and the reasons for not doing so
were recorded as under:-

"22. A further question may arise
that in spite of our irresistible conclusion
that the respondent was a holder of civil
post should we refer this matter to a larger
Bench in view of the fact that Riasat Ali
(supra), however, held otherwise.

23.
While
coming
to
the
conclusion that the respondent was holding
a civil post, we had followed the decision of
the Supreme Court in State of U.P. Vs.
Chandra Prakash Pandey and others JT
2001 (4) S.C.145 and explained the
Division Bench decision of this Court in
Riasat Ali (Supra) in which paragraph 18
of the judgment clearly states that though
the Home Guards may have the incident of
the civil post, they cannot be treated as
such only because of the explanation
attached to Section 10 of the Act. We,
therefore, do not think that any reference is
required to be made in the present case to a
larger Bench.

For the reasons stated above, we
are, therefore, in complete agreement with
the views expressed by the learned Judge.
The Special Appeal is, therefore, liable to
be dismissed and is, accordingly, dismissed.
There shall be no order as to costs."

18. It may not be out of place to
mention that the division bench in clear
terms held that Home Guard merely by
enrolment does not hold a Civil Post,
however, once he is called for performing
duty under Section 8 of the Act, he will be
holding a Civil Post, the court discussed the
individual case of Dasrath Singh Parihar
to
hold
that
he
was
a
Company
Commandant and thus he was entitled to
protection under Article 311 of the
Constitution of India.

19. Counsel for the Petitioner argues
that the Rules framed by the State known
as U.P. Home Guard Service Rules 1982,
referred to para 20 of the judgment in the
case of Dasrath Singh Parihar (supra),
are the Rules, which has been framed only
in respect of Class A and Class B. Officers
which are specified and not in the case of
Home Guards for which admittedly no
rules have been framed,however,they still
would be entitled to protection under article
311.

20. An analysis of the judgment of
this Court in the case of Dasrath Singh
Parihar (supra) specially para 20 thereof
makes it clear that it is divided into two
parts,the Court after holding that once the
2 All. Dheer Singh(Home Guard) Vs. State of U.P. & Ors.
247
Home Guards are enrolled, they would not
be holding the Civil Post, unless they are
assigned the works or duties under Section
8 of the Act and once they are assigned the
duties, the post held by them would clearly
be a Civil Post. 21. The observations made
in second part of paragraph no 20 of the
said judgment only fortifies or justifies the
first part by holding that the view can be
fortified by the Rules. He thus argues, even
if no Rules have been framed with regard
to the petitioners, it cannot be said that the
first part of the finding of this Court as
recorded in para 20 would not apply.

22. He also argues that once this
Court has clarified and taken a view after
considering the judgment in the case of
Riasat Ali (supra) and following the
Supreme
Court
Judgment,
the
legal
position merits very clearly that the Home
Guards, on there being assigned the duties
would qualify to be a Civil Post.

23. The judgment in the case of
Hriday Narayan Yadav (supra) does not
take notice of the judgment of this Court in
case of Dasrath Singh Parihar (supra)
and thus cannot be termed a binding
precedent similarly the judgment of this
Court in the case of Roop Chand (supra)
does not notice the judgment in the case of
Dasrath Singh Parihar (supra) and as
such
cannot
be
termed
as
binding
precedent.

24. Coming to the Full Bench judgment
of this Court in the case of Rajveer Singh
(Supra), cited by the Standing Counsel to
argue that in view of the explanation added to
Section 10, the Full Bench has held that the
post hold by the Home Guard is not a civil
post. The said argument merits rejection
inasmuch as the question referred before the
Full Bench was as under:-

"(1). Whether Division Bench
judgment in Riasat Ali Vs. State of U.P. 2003
(4) AWC 3046 holding that a Home Guard
under U.P. Home Guards Act, 1963 is not
holder of a civil post in view of expression to
Section 10 is correct or Division Bench
judgment in Special Appeal No. 143 of 2012
(Ram Kumar Vs. State of U.P. & Others)
relying on Full Bench judgment in Sheela
Devi & Another Vs. State of U.P. & Others
2010 All.C.J. 1371, which is a case relating
to Anganbari Karyakatri and Supreme
Court's judgment in Davinder Singh &
Others Vs. State of Punjab & Others 2010
(13) SCC 88 which is in the context of Punjab
Home Guards Act, 1947 and Punjab Home
Guards and Civil Defence (Field) Class III
Service Rules, 1983 holding that Home
Guard is a holder of civil post, is correct."

25. The Full Bench considered the
scope of the U.P. Home Guards Act and
discussed the concept of enrolment of the
Home Guard of the State. It interpreted that
Home Guard defined under Section 2 (e) of
the said Act It further proceeded to discuss
Section 7 of the said Act, which provides
for the manner of enrolment as a Home
Guard.

26. The Full bench proceeded to
examine the issue after noticing the nature
of conflict pointed out by learned single
judge by observing as under:-

"13. We now proceed to examine
the nature of the conflict which has been
pointed out by the learned Single Judge
while framing the reference. The first
question which has been framed, is on the
basis, as to whether a home guard as
enrolled under the 1963 Act under Section
7 thereof is holder of a civil post or not,
keeping in view the explanation added to
Section 10 of the Act."
248 INDIAN LAW REPORTS ALLAHABAD SERIES

27. The Court further interpreted the
distinction between the two sets of
establishment within the Home Guards
namely,
those
who
are
engaged
as
volunteer and enrolled in terms of Section 7
of the Act and those who form a part of the
permanent establishment under the 1982
Rules. The Court observed in para 11 as
under:-

"It is here that it is necessary to
draw the distinction between the two sets of
establishment within the Home Guards,
namely, those who are engaged as
volunteers and enrolled in terms of Section
7 of the 1963 Act and those who form part
of the permanent establishment under the
1982 Rules. It has to be kept in mind that
these two nature of engagements are
entirely different from each other, one
under the 1982 Rules being substantive in
nature by way of selection and appointment
whereas that under Section 7 of the 1963
Act being voluntary and by way of an
enlistment which is to be carried out
through
as
enrollment
process
as
prescribed thereunder."

28. The most important part referred
to in the Full Bench judgment is contained
in paragraph 12, which is a under:-

"In the present case, the dispute
which has to be resolved is confined only
to such enlisted and enrolled persons as
per Section 7 of the 1963 Act. The
judgment which has been referred to by the
learned Single Judge on the basis whereof
a conflict has been pointed out, namely that
of Riasat Ali Vs. State of U.P. 2003 (4)
AWC 3046, also refers to the 1982 Rules,
but in our opinion has not appropriately
drawn the distinction between the two sets
of establishment, and therefore, the
question of applicability of 1982 Rules in
the case of such voluntary enrollment will
not arise. To that extent the judgment in
the case of Riasat Ali Vs. State of U.P.
(supra) incorrectly refers to the said rules,
inasmuch as, in the case of Riasat Ali
(supra) the issue was not related to any
engagement made under the 1982 Rules."

29. In the light of the said, the Court
proceeded to consider the status of the
persons enrolled under Section 7 of the said
Act and proceeded to hold that the view
taken by the Division Bench in the case of
Riasat Ali (supra) was affirmed in view of
the explanation attached to Section 10.

30. The question whether the persons,
who were called for performance of their
duties under Section 8 would be the holders
of civil post or not ,was neither considered
nor decided by the Full Bench.

31. At this juncture, it becomes
imperative to notice, as also noticed by the
Full Bench, there are two sets of persons
who are covered under the scope of U.P.
Home Guards Act, 1963, one being the
persons who are only enrolled by virtue of
Section 7 of the said Act and the second
would be the employees who are called for
performance of duties as specified and
elaborated under Section 8 of the said Act.
Section 7 and Section 8 of the said Act are
being reproduced:-

"7. Enrolment etc. - (1) Subject
to such conditions as may be prescribed,
any person desiring to be enrolled as home
guards shall make an application in the
prescribed form.

If such applicant is in private
service he shall make such application
through his employer, or if in service under
the State through the authority competent
to grant him permission to join the force.
2 All. Dheer Singh(Home Guard) Vs. State of U.P. & Ors.
249

(2) A home guard shall be
formally enrolled and on enrolment make a
declaration in the form set out in the First
Schedule and receive a certificate of
appointment in the form set out in the
Second Schedule under the seal and
signature of such officer as may be

prescribed, by virtue of which he
shall be vested with the powers and
privileges and be subject to the duties of a
home guard.

(3) Officers and other members of
the Home Guards shall wear such uniforms
as may be prescribed.

8. Calling out of Home Guards.-
Subject to the provisions of this Act and the
rule made thereunder-

(a) [the District Magistrate or the
District Commandant] may by order call
out any home guard attached to a unit
posted in the district for duty in any area
within that district;)

(b) the Commandant-General or
such officer of the Home Guards as may be
authorised by him in this behalf, may call
out any home guard for duty in any part of
the State or outside the State."

32. This Court in the case of Dasrath
Singh Parihar (supra) had also noticed the
said distinction in between two class of
employees, one being only enrolled as
Home Guards covered under section 7 and
the second being the persons, who were
called to perform duties in terms of the
provisions of Section 8 and after noticing
the said distinction, proceeded to hold that
the persons, who are called for performance
of duties under Section 8 would be holders
of "civil post".

33. The Standing Counsel has laid
much emphasis on the explanation to
Section 10 of the said Act. Section 10 of
the said Act is being quoted hereinunder:-

"10. Home Guards to be public
servants but not civil servants. - A home
guard acting in the discharge of his
functions under this Act shall be deemed to
be a public servant within the meaning of
Section 21 of the Indian Penal Code.

 Explanation.-A home guard shall
not be deemed to be a holder of a civil post
merely by reasons of his enrolment as
home guards."

34. Section 10 on its plain reading
provides that a Home Guard acting and
discharging of his function shall be deemed
to be a public servant within the meaning
of Section 21 of the IPC and enjoyed the
protections and powers as conferred by
Section 21 of the IPC. The explanation only
clarifies the section to the extent that a
Home Guard will not be holder of a civil
post merely by the "reasons of his
enrolment" as Home Guards. Thus on a
plain interpretation of the provisions of
Section 10, it is clear that persons enrolled
under Section 7 will not be deemed to be
public servant within the meaning of
Section 21 of the IPC and would not also
be holder of a civil post, whereas once they
called for performance of duties under
Section 8, they would enjoy the protection
of Section 21 of the IPC and the
explanation would not be applicable to
them as they are not merely enrolled but
are performing the duties when called upon
under Section 8 of the said Act.

35. The concept of holder of a civil
post has its genesis from Article 311 of the
Constitution of India, which came up for
interpretation in the case of State of Assam
and others Vs. Shri Kanak Chandra Dutta,
AIR 1967 SC 884, wherein the Supreme
Court
laid
down
the parameters
to
determine whether the duties performed by
a person can be described as civil post so as
250 INDIAN LAW REPORTS ALLAHABAD SERIES
to enjoy the protection under Article 311 of
the Constitution of India. Paragraphs 9 and
10 of the said judgment are being quoted
hereinbelow:-

"9. 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 of 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 marginal
notes to Articles 309, 310 and 311. The
heading and the sub-heading of Part XIV and
Chapter I emphasise the element of service.
There is a relationship of master and servant
between the State and a person 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.

10. In the context of Articles 309,
310 and 311, a post denotes an office. A
person who holds a civil post under a State
holds "office" during the pleasure of the
Governor of the State, except as expressly
provided by the Constitution. See Article
310. A post under the State is an office or a
position to which duties in connection with
the affairs of the State are attached, an
office or a position to which a person is
appointed and which may exist apart from
and independently of the holder of the post.
Article 310(2) contemplates that a post may
be abolished and a person holding a post
may be required to vacate the post, and it
emphasises the idea of a post existing apart
from the holder of the post. A post may be
created
before
the
appointment
or
simultaneously with it. A post is an
employment, but every employment is not a
post. A casual labourer is not the holder of
a post. A post under the State means a post
under the administrative control of the
State. The State may create or abolish the
post and may regulate the conditions of
service of persons appointed to the post."

36. The judgment of the Supreme
Court in the case of State of Assam Vs.
Kanak Chandra Dutta (Supra), was
considered and explained in the subsequent
judgment of the Supreme Court in the case
of State of Karnataka and others Vs.
Ameerbi and others; (2007) 11 SCC 681,
wherein the Supreme Court noticing the
law laid down in the case of State of Assam
Vs. Kanak Chandra Dutta (Supra),
explained it as under:-

"19. Applying the said principes
of law, it was held that a Mauzadar holds a
civil post under the State as: (i) the State
has the power and the right to select and
appoint him; (ii) he is subordinate to public
servant; (iii) he receives remuneration by
2 All. Dheer Singh(Home Guard) Vs. State of U.P. & Ors.
251
way of a commission and sometimes a
salary; (iv) there exists a relationship of
master and servant; (v) he holds an office
on the revenue side of the administration to
which specific and onerous duties in
connection with the affairs of the State are
attached; (vi) the office falls vacant on the
death or removal of the incumbent; (vii) he
is responsible officer exercising delegated
powers of the Government; (viii) he is
appointed Revenue Officer."

37. The said judgment of the Supreme
Court in the case of State of Assam Vs.
Kanak Chandra Dutta (Supra) was also
considered by the Supreme Court in the
case of State of U.P. Vs. Chandra Prakash
Pandey; 2001 AIR (SC) 1298, wherein
after noticing the various judgments refered
to and in paragraph 27 of the judgment
referring to judgment of the Supreme Court
in the case of State of Gujarat and Another
Vs. Raman Lal Keshav Lal Soni and
others; 1983(2) SCC 33 observed as under

"12. In the case of State of
Gujarat v. Raman Lal Keshav Lal Soni
[(1983) 2 SCC 33 : 1983 SCC (L&S) 231]
again a Constitution Bench of this Court
was considering the question as to whether
the Panchayat service constituted under
Section 203 of the Gujarat Panchayats Act,
1962 was a civil service of the State and the
members of the service were government
servants. The Court after due consideration
enumerated the following indicia for
deciding whether a particular person is a
member of civil service of the State and a
government servant in para 27 which runs
thus: (SCC p. 49)

"We do not propose and indeed it
is neither politic nor possible to lay down
any definitive test to determine when a
person may be said to hold a civil post
under the Government. Several factors may
indicate the relationship of master and
servant. None may be conclusive. On the
other hand, no single factor may be
considered
absolutely
essential.
The
presence of all or some of the factors, such
as, the right to select for appointment, the
right to appoint, the right to terminate the
employment, the right to take other
disciplinary action, the right to prescribe
the conditions of service, the nature of the
duties performed by the employee, the right
to control the employee's manner and
method of the work, the right to issue
directions and the right to determine and
the source from which wages or salary are
paid and a host of such circumstances, may
have to be considered to determine the
existence of the relationship of master and
servant. In each case, it is a question of fact
whether a person is a servant of the State
or not." (emphasis added)"

38. The Standing Counsel lays
emphasis on the explanation to Section 10
to argue that even the persons who are
called on to perform their duties under
Section 8 would not be holders of the civil
post. The said contention has to be negated
in view of the judgment of the Supreme
Court in the case of State of Assam Vs.
Kanak Chandra Dutta (Supra), which laid
down the manner, in which the post has to
be interpreted to be a civil post. Once the
factors as laid down by the Supreme Court
are existent, the nature of the post has to be
determined with reference to the meaning
and the nature of duties performed by such
persons,the relationship with the state and
the administrative control of the state. Even
otherwise, the benefit of Article 311 cannot
be controlled or whittled down by the
statutory enactment by the State.

39.
In
the present
case,
the
explanation to Section 10 does not in any
252 INDIAN LAW REPORTS ALLAHABAD SERIES
way whittle down the benefits of Article
311, which flow in favour of the persons,
who are performing the duties under
Section 8 of the said Act, as it very clearly
lays down that it applies only in the case of
the personnel, who are enrolled under
Section 7. If the intent of the State while
enacting the said Act was to exclude even
the persons who are performing the duties
under Section 8 to be not holder of a civil
post, the legislature would have provided
so (it is another question whether the
legislature could have done that to wipe
away the benefits of a constitutional
provision).

40. In view of the legal principles of
determining the nature of the post as laid
down in case of State of Assam Vs. Kanak
Chandra Dutta (Supra), and explained in
State of Karnataka and others Vs.
Ameerbi and others read with the scheme
of the Act and the nature of state control
as discussed in the foregoing paragraphs
and following the judgment of this Court in
the case of Dasrath Singh Parihar
(Supra), I have no hesitation in holding
that any personnel enrolled under section 7
of the Home Guards Act will not be a
holder of Civil Post and will not enjoy any
protection available under Article 311 of
The Constitution of India but as soon as he
is called to perform any duty under Section
8 of the Act he will become holder of a
Civil Post and will enjoy the protection of
Article 311 of The Constitution of India .

41. As admittedly no service rules have
been framed except for class A and B post
holders ,the state is advised to take steps for
framing the rules ,however, till such rules
are framed all action in respect of services of
the Home Guards who are called upon to
perform duties under Section 8 will have to
be in conformity with Article 311

42. In view of my coming to the
conclusion as recorded above, I proceed to
examine the individual cases on the facts of
each case .

Writ-A No. 8869 of 2021 (Dheer
Singh vs State of U.P. And 4 Others)

Writ-A
No.
8512
of
2021
(Kuldeep Kumar vs State Of U.P. And 4
Others)

Writ-A
No.
8867
of
2021
(Rajendra Kumar Verma vs State Of U.P.
And 4 Others)

Writ-A No. 8870 of 2021 (Ajay
Pal Singh vs State Of U.P. And 4 Others)

43. In all the above cases , the ground
taken for dismissing the services, are only
that the petitioners have engaged in
formation of an association.

44. The said cannot be justified for
reasons: