# Home Guard Resident No. 6901020120 Hriday Narayan Yadav v. The State of U.P. & Ors

- **Citation:** (2021) 1 ILRA 1114
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-09
- **Case number:** Writ-A No. 19141 of 2019
- **Bench:** Shekhar Kumar Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/home-guard-resident-no-6901020120-hriday-narayan-yadav-v-the-state-of-u-p-ors-46103
- **Pages:** 4

## Headnote

Civil Law-Service of Petitioner dispensed
on account of pendency of the criminal
case
against
him-verification
of
antecedents is to find out whether he is
suitable for the post of a Home Guardpendency of criminal case-not suitable for
appointment of post of Home Gurad.

List of Cases cited: -

## Text

1114 INDIAN LAW REPORTS ALLAHABAD SERIES
Masih (supra), if the case of the petitioner
is considered, as mentioned above, since he
retired from service, the respondents cannot
proceed against the petitioner with the
impugned order of recovery, therefore, the
impugned
recovery
notice
dated
26.08.2004 and 11.02.2009 (Annexure
Nos.1 and 3 to the writ petition) issued by
Officer
of
Accountant
General
Mahalekhakar (Lekha Evam Hakdari,) 1st
U.P., Allahabad through Senior Accountant
Nidhi-14, is not sustainable in the eye of
law and the same is hereby quashed and
remaining 10% balance amount of GPF be
paid to the petitioner within a period of two
months.

13. In view of vivid observations, this
petition stands allowed.

14. However, on the facts and in the
circumstances of the case, there will be no
order as to costs.
----------
(2021)01ILR A1114
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.12.2020

BEFORE

THE HON'BLE SHEKHAR KUMAR YADAV, J.

Writ-A No. 19141 of 2019
Connected with Writ-A Nos. 21089 of 2019,
21101 of 2019, 19140 of 2019, 19150 of 2019
and 145 of 2020

Home Guard Resident No. 6901020120
Hriday Narayan Yadav ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shailesh Verma

Counsel for the Respondents:
C.S.C.
Civil Law-Service of Petitioner dispensed
on account of pendency of the criminal
case
against
him-verification
of
antecedents is to find out whether he is
suitable for the post of a Home Guardpendency of criminal case-not suitable for
appointment of post of Home Gurad.

List of Cases cited: -

1. Arun Kumar Shukla Vs St. of UP & ors., 2018
2 ADJ 353

2.Riyasat Ali Vs St. of U.P. & ors. reported in
2003(4) AWC Page 3046

(Delivered by Hon'ble Shekhar Kumar Yadav, J.)

1. Since in all these writ petitions,
similar reliefs have been prayed, hence they
are being decided by a common order.

2. The facts of WRIT - A No. - 19141
of 2019 (Hriday Narayan Yadav Vs. State
Of U.P. And 02 Others) is taken as leading
case to decide the controversy.

3. The petitioner has instituted this
writ petition for issuance of writ of
certiorari for quashing the order dated
18.11.2019, whereby his engagement has
been dispensed with by respondent no. 3,
District Commandant of Home Guards,
Sonebhadra as well as the Government
Order
dated
21.08.2012
passed
by
respondent no. 2.

4. The brief facts of the case are that
petitioner is alleged to be appointed as
Home Guard under the provisions of UP
Home Guards Act, 1963. He was served a
show
cause
notice
regarding
his
involvement in criminal case, wherein after
investigation the Investigating Officer has
submitted charge sheet. The petitioner was
called upon to submit his reply within 15
days. The petitioner has submitted his reply
1 All. Home Guard Resident No. 6901020120 Hriday Narayan Yadav Vs. The State of U.P. & Ors.
1115
wherein he has not denied the pendency of
any criminal case against him and has
stated that he has been falsely implicated.
After considering the reply submitted by
the petitioner, the impugned order has been
passed dispensing the services of the
petitioner on the ground of the pendency of
the criminal case against him.

5. It is contended by learned counsel
for the petitioners that service of the
petitioner could not be terminated due to
mere filing of a charge sheet as that by
itself is not enough to remove or disengage
an employee unless the underlying conduct
that has led to registration of a criminal
case is considered. It is also contended that
the services of petitioner could not have
been dispensed with by the impugned order
in the manner it has been done without
holding any enquiry into the allegations
against him. It is further submitted that
private dispute giving rise to criminal case
cannot
be
made
subject
matter
of
departmental proceedings as it would not
amount to misconduct. He contends that a
full fledged enquiry was required in the
matter.

6. He has placed reliance on the case
of Arun Kumar Shukla Vs State of UP
and others, 2018 2 ADJ 353, to contend
that a Government employee cannot be
dismissed, removed or reduced in rank
merely on the ground that he has been
convicted by a court of law.

7. A counter affidavit has been filed
on behalf of the respondents. It is stated
therein that under the Circular issued by the
respondent no. 2 i.e. Headquarters of Home
Guards, Uttar Pradesh, Lucknow dated
02.09.2013, which is Annexure No. 4 to the
counter affidavit, in which conditions have
been mentioned as to on which grounds the
action can be taken against the conduct of
the Home Guards. One of the grounds
mentioned for dispensing the services is the
pendency of the criminal case, wherein the
involvement of the petitioner is prima-facie
clear. It has further been stated that as
criminal case is pending against the
petitioner,
the
impugned
order
of
termination has been passed under the
provisions of Section 12(1) of the Home
Guards Act, 1963.

8. Learned Standing Counsel for the
State submits that in view of the circular
letters dated 21.08.2012, 2.9.2013 and
30.102.2019,
the
termination
of
the
petitioner is justified. It is further submitted
that the services of the petitioner was
purely on temporary basis, which came to
be
terminated
on
the
ground
of
unsuitability and the same being the
discharge simplicitor and certainly not by
way of penalty, it was not necessary to
afford any opportunity to the petitioner
before passing any order of termination
against him. He also contends that there is
no statutory Rules regarding the holding of
an enquiry into allegations levelled against
the petitioner, before dispensing with his
service. He also contends that Home
Guards are volunteers and do not hold any
civil post under the State. It is further
submitted that since the petitioner is not a
regular government employee, therefore,
the
judgement
[Arun
Kumar
Shukla(supra)]
relied
upon
by
the
petitioner is of no application in the case of
the petitioner.

9. I have considered the rival
submissions and perused the record.

10. Admittedly, criminal case is
pending against the petitioner and this fact
has not been denied by the petitioner. Thus,
1116 INDIAN LAW REPORTS ALLAHABAD SERIES
there is no dispute regarding the pendency
of the criminal case.

11. Perusal of circular dated 2.9.2013
issued by the Headquarters of Home
Guards,
Uttar
Pradesh
for
taking
disciplinary action against the Home
Guards, referring the earlier circular dated
02.11.2007, whereby some amendments
have been made, clearly mentions the
following grounds on which the action
against the Home Guards can be taken. The
circular is as under:-

"gksexkM~Zl eq[;ky; ds ifji= la[;k %
3890@LFkk0@,d&796@ 2006] fnukad 02-11-2007 esa
fn;s x;s funsZ'kksa esa vkaf'kd la'kks/ku djrs gq,
fuEufyf[kr vkns'k ikfjr fd;s tkrs gSa &

1& fu"dklu dh dk;Zokgh fuEufyf[kr
ifjfLFkfr;ksa esa gh dh tk;sxh %&

1⁄4d1⁄2 vuq'kklughurkA

1⁄4[k1⁄2 xSj ekU;rkizkIr ,lksfl,'ku dh xfrfof/k;ksa
;Fkk&/kjkuk&izn'kZu bR;kfn esa lafyIrrkA

1⁄4x1⁄2 vokWNuh; xfrfof/k;kaA

1⁄4?k1⁄2 'kkjhfjd v{kerk@viaxrk 1⁄4 esfMdy izek.k
i= ds vk/kkj ij1⁄2

1⁄431⁄2 uSfrd v/kerkA

1⁄4p1⁄2 M~;wVh ij e|iku lsouA

1⁄4N1⁄2 vkijkf/kd ekeyksa esa lafyIrrk 1⁄4vkijkf/kd
ekeyksa esa vfHk;ksx iathd`r gksus ij izFken`"V;k
lafyIrrk ik;s tkus ij1⁄2

1⁄4t1⁄2 LFkkuh ukSdfj;ksa esa lek;ksftr gksus ijA"

12. Moreover, there is another
circular dated 21.08.2012 issued by the
Headquarters of Home Guards, Uttar
Pradesh for taking disciplinary action
against the Home Guards, who are
involved in criminal offences.

13. A perusal of the said circulars
clearly indicates that the impugned
order has been passed in compliance of
the said circulars and show cause notice
has also been given to the petitioner and
in its reply, the petitioner has also
admitted the pendency of the criminal
case.

14. So far as the contention that
full fledged enquiry was required to be
conducted, there is no such provision
under the Act 1963. The petitioner, as
per the explanation to Section 10 of the
Act, 1963, does not hold a civil post as
has also been held by a Division Bench
of this Court in the case of Riyasat Ali
Vs. State of U.P. & others reported in
2003(4) AWC Page 3046, which is still
good law, therefore, the protection
under Article 311 of the Constitution is
also not attracted to the case at hand.
Consequently the judgement [Arun
Kumar Shukla(supra)] relied upon by
the petitioner is also not applicable to
the facts and circumstances of the
present case. Moreover, record reveals
that show cause notice was duly issued
to the petitioner, seeking his reply in
respect of the involvement in criminal
case, therefore, passing of the impugned
order in terms of Section 12 (1) of the
Act 1963 sufficiently satisfies the
requirement of principles of natural
justice.

15. Petitioner, a Home Guards, who
was assigned the duty to act in aid to the
police and to maintain public order, is
always expected to be of clean antecedents.
It is settled that a person who violates the
law cannot be permitted to urge that his
offence cannot be subjected to inquiry, trial
or investigation. Hence the decision of the
respondents holding that the petitioner is
not suitable, is just, fair and reasonable
keeping in view the nature of the post and
the duties to be discharged. The Apex Court
in unambiguous terms has categorically
held in catena of decisions that the
employer would be well within his rights to
1 All. Chandra Shekhar Singh Yadav & Anr. Vs. The State of U.P. & Ors.
1117
consider the antecedents and the suitability
of its employee.

16. Moreover, perusal of all the
connected writ petitions indicates that in the
criminal cases shown to have been pending
against the petitioners, they are facing trial.
The petitioner cannot claim right to continue
in service and the employer, having regard to
the nature of employment as well as other
aspects, has the discretion to terminate his
services. The standard expected of a person
intended to serve in uniformed service is
quite distinct from other services. The
authorities entrusted with the responsibility of
appointing Home Guard, are under duty to
verify the antecedents of a candidate to find
out whether he is suitable for the post of a
Home Guard and so long as the candidate has
not been acquitted in the criminal case, he
cannot be held to be suitable for appointment
to the post of Home Guard.

17. In view of the above, I am of the
opinion that no interference is called for in
the matter.

18. The writ petition lacks merit and is
accordingly dismissed.
----------
(2021)01ILR A1117
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.01.2021

BEFORE

THE HON'BLE SHEKHAR KUMAR YADAV, J.

Writ-A No. 28281 of 1997

Chandra Shekhar Singh Yadav & Anr.
 ...Petitioners
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri K.K. Mishra, Sri Siddharth Khare

Counsel for the Respondents:
S.C.

Civil
Law-Petitioners
given
temporary
appointment on post of Survey Lekhpalappointment cancelled-so that retrenched
employees of Kaimoor Survey Agency
could
be
absorbed-All
retrenched
employees had already been absorbed
prior to passing of the impugned order-the
basis of cancellation of appointment is
non-existent.

W.P. allowed. (E-7)

(Delivered by Hon'ble Shekhar Kumar Yadav, J.)

1. To assail correctness of the order
dated 06.11.1996 passed by respondent
no.3-Assistant
Record
Officer
Obra,
District Sonebhadra and circular letter
dated 17.09.1996 issued by respondent
no.1-Secretary & Commissioner Board of
Revenue, U.P. Lucknow (Annexure Nos.5
and 6 respectively), this writ petition under
Article 226 of the Constitution of India, has
been preferred by the petitioners.

2. In a nut-sell, the case of the
petitioners are that the appointment of the
petitioners were made on 11.07.1996 on
temporary basis and petitioners have
reported their duties on 12th July, 1996
(copy whereof is annexed as Annexure
No.3 to the writ petition), which is evident
from the report of Assistant Record Officer
Obra. Thereafter, the petitioners were
started their functioning on the basis of
their appointment letter dated 11.07.1996
on the post of Survey Lekhpal. It is
mentioned in the appointment letter that the
appointment of the petitioners were made
purely on temporary basis and their
services can be terminated at any time by
given one month prior notice. It appears