# Ram Babu Dwivedi v. State of U.P. and others

- **Citation:** (2009) 2 ILRA 369
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-08-04
- **Case number:** Civil Misc. Writ Petition No. 41 of 2009
- **Bench:** Sunil Ambwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-babu-dwivedi-v-state-of-u-p-and-others-41385
- **Pages:** 8

## Headnote

370 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
U.P. Home Guard, Act 1963-Rule-7petitioner initially working as Home
Guard in the year 1979-lastly found fit
for promotion on the post of Company
Commander-by
the
screening
committee-promotion order withheld on
the ground he shifted his native place
from one village to other neighboring
village-held-circular
23.5.84
can
not
come in way of promotion of petitioner.

Held: Para 19

The Court does not find that there was
any occasion at all, or it was permissible
to
terminate
the
petitioner's
engagement on the ground that he had
shifted his residence from Kanaili to a
neighbouring area in Newada for which
he had himself made a declaration on the
basis of a partition in his family. In this
case the question as to whether the
circular order dated May 23, 1984 is
relevant
for
the
purpose
of
fresh
engagement of Home Guards, Platoon
Commanders and Company Commanders
is not in issue. The circular however
issued after petitioner's engagement as
a Home Guard could not be a ground to
disengage him after his selections as
Company Commander.
Case law discussed:
Writ Petition No. 40505 of 2007 decided on
29.8.2007, AIR 2003 Supreme Court 3569,
(2008) 3 SCC 273, (2006) 11 SCC 67; (2006) 3
SCC 276, (2006) 6 SCC 162, (2007) 4 SCC

## Text

2 All] Ram Babu Dwivedi V. State of U.P. and others
369
parties which means that the issue shall be
decided while disposal of the suit. In my
opinion, both the reasons given by the
trial court for deferring the disposal of
issue of res-judicata are misconceived and
erroneous for the reasons that settlement
of issues as preliminary issue is a stage in
proceeding of the suit whereas disposal of
application for temporary injunction is
supplemental proceeding different from
the proceedings of the suit as described
under Section 94 of the Code despite
being a proceeding in pending suit. As is
clear from the heading of the section
itself, that such proceedings are normally
resorted to achieve the ends of justice
during the pendency of main proceedings
of the suit. Therefore, the issue of resjudicata does not necessarily require to be
decided by the trial court while disposal
of
temporary
injunction
application
during the pendency of the suit, which is
supplemental proceeding in pending suit,
accordingly disposal of issue of resjudicata in the said proceeding, in my
opinion, is of no legal consequence. So
far as another ground for deferring the
disposal of the issue of res-judicata is
concerned, I am of the considered opinion
that for the reasons given herein before,
the view taken by the trial court also
appears
to
be
erroneous
and
misconceived. In my opinion, in given
facts and circumstances of the case, the
issue of res-judicata was liable to be
decided as preliminary issue first by
postponing the settlement of other issues
involved in the said suit. It is immaterial
that while deciding the said issue, the
court is required to investigate some facts
necessary for its disposal.

27. In view of the aforesaid
discussion, I am of the considered opinion
that the view taken by court below is
wholly erroneous and contrary to the view
taken by me, therefore, the impugned
order dated 17.10.2.008 can not be
sustained and the same is hereby quashed.
The trial court is directed to consider the
case of the petitioner afresh in the light of
observations made herein before and
decide the issue of res-judicata raised by
the petitioner as preliminary issue first
and thereafter proceed with the suit
accordingly and shall decide the same
within a period of six months from the
date of production of certified copy of the
order passed by this Court.

28. However, the question of resjudicata shall be decided expeditiously
preferably within a period of one month
from the date of production of certified
copy of this order before the court
concerned.

29. With the aforesaid observation
and direction, writ petition succeeds and
allowed to the extent indicated herein
before.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED; ALLAHABAD 02.03.2009

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ Petition No. 41 of 2009

Ram Babu Dwivedi

...Petitioner
Versus
State of UP and others ...Respondents

Counsel for the Petitioner:
Sri V.K. Srivastava

Counsel for the Respondents:
Sri R.N. Pandey
S.C.
370 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
U.P. Home Guard, Act 1963-Rule-7petitioner initially working as Home
Guard in the year 1979-lastly found fit
for promotion on the post of Company
Commander-by
the
screening
committee-promotion order withheld on
the ground he shifted his native place
from one village to other neighboring
village-held-circular
23.5.84
can
not
come in way of promotion of petitioner.

Held: Para 19

The Court does not find that there was
any occasion at all, or it was permissible
to
terminate
the
petitioner's
engagement on the ground that he had
shifted his residence from Kanaili to a
neighbouring area in Newada for which
he had himself made a declaration on the
basis of a partition in his family. In this
case the question as to whether the
circular order dated May 23, 1984 is
relevant
for
the
purpose
of
fresh
engagement of Home Guards, Platoon
Commanders and Company Commanders
is not in issue. The circular however
issued after petitioner's engagement as
a Home Guard could not be a ground to
disengage him after his selections as
Company Commander.
Case law discussed:
Writ Petition No. 40505 of 2007 decided on
29.8.2007, AIR 2003 Supreme Court 3569,
(2008) 3 SCC 273, (2006) 11 SCC 67; (2006) 3
SCC 276, (2006) 6 SCC 162, (2007) 4 SCC
669.

(Delivered by Hon'ble Sunil Ambwani, J.)

1. Shri V.K. Srivastava, learned
counsel
appears
for
the
petitioner.
Learned standing counsel appears for the
respondents. The affidavits have been
exchanged. With the consent of parties
the matter was heard and is decided at the
admission stage.

2. The petitioner was engaged in the
Home Guards Organization in the year
1979. He was appointed/promoted as
Assistant Company Commander in the
year 1983. In the year 1997 he was
appointed/promoted
by
the
District
Commandant, Home Guards, Allahabad
vide order No. 249 dated 29.1.1997 as
Company Commander. The petitioner
was required to appear before the
Screening Committee on 5.9.2008, and
was declared successful for appointment
as Company Commander. By a notice
dated 4.8.2008 the petitioner was required
by an order to appear before the
Screening Committee on 5.9.2008. The
final list of the selectees prepared by the
Screening Committee did not include the
name of the petitioner on the ground that
the petitioner did not belong to block
Kanaili, District Kaushambi for which the
appointment was to be made.

3. The petitioner was required to
produce a domicile certificate that he was
a resident of block Kanaili District
Kaushambi,
to
confirm
the
appointment/promotion. The petitioner
submitted a reply on 4.5.1999 stating that
at the time of his engagement in Home
Guards
Organization
in
1979,
the
petitioner was a resident of Village
Jugrajpur
Block
Kanaili
District
Kaushambi. In the year 1999 by a family
settlement in his family the petitioner got
his share of properties in Village
Bhikharipur Ka Purva @ Rajendra Nagar,
Block Newada, District Kaushambi after
which he along with his two brothers
started living in Block Newada, District
Kaushambi.

4. A show cause notice was given to
the petitioner on 3.11.2008 to which he
submitted
his
reply.
The
District
Commandant, Home Guards, Allahabad,
by his order dated 5.12.2008, dispensed
2 All] Ram Babu Dwivedi V. State of U.P. and others
371
with/cancelled
his
appointment
as
Company Commander on the ground of
non-production of the domicile certificate
of Block Kanaili, giving rise to this writ
petition.

5. The short question, that calls for
consideration in this writ petition, is
whether the U.P. Home Guards Act 1963
provides for the residence in a particular
village/area,
as
a
condition
for
appointment as Company Commander
and whether the Circular Order No.
5/1998 dated May, 23, 1984 to that effect,
issued by the Commandant General,
Home Guards providing that in rural areas
the candidate must belong to the block to
be able to attend the work, is a violative
of provisions of U.P. Home Guards Act,
1963,
and
stands
the
test
of
reasonableness
in
appointment/promotions
as
Company
commander.

6. The petitioner submits in
paragraph-7 of the writ petition as
follows:-

"7. ......At the time of his engagement
in Home guard organization in the year
1979 the petitioner was residing at
Village Jugrajpur, Block Kanaili, District
Kaushambi. In the year 1999 a partition
by means of a family settlement took place
in the family, as a result whereof the
share of the petitioner's family was given
in the property situated in village
Bhikhari Ka Purwa @ Rajendra Nagar,
Block Newada, District Kaushambi and
consequently the petitioner along with his
other 2 brothers and family started
residing at village Bikhari Ka Purwa @
Rajendra Nagar, Block Newada District
Kaushambi. The petitioner also informed
the respondent no. 3 regarding his change
of address on 4.5.99."

7. In the counter affidavit of Shri G.
Chaturvedi, District Commandant, Home
Guards, Allahabad, it is stated in
paragraph-3A that in view of the circular
No. 1-331/1977, dated 14.9.1978 and
provisions of Section 11 (2) of U.P. Home
Guards Act, 1963 as amended in 1972 the
Honorary
Company
Commander,
Honorary
Assistant
Company
Commander
and
Honorary
Platoon
Commander are appointed for a period of
three years, after which their appointment
can be renewed by the Screening
Committee after considering the work,
conduct and physical fitness of the
employees. The Screening Board consists
of District Magistrate or representative
appointed by him; Mandaliya Samadeshta
Home Guards; Superintendent of Police
or representative appointed by him, and
District Samadeshta Home Guards. The
District Magistrate and in his absence the
Divisional
Samadeshtra
or
the
Superintendent of Police with a minimum
three members including the Chairman,
considers the appointment. On 5.9.2008 a
meeting
of
the
Screening
Board
constituted under the directions/order of
Home Guard Headquarters, Lucknow was
held in Home Guard office, Allahabad for
screening of honorary officers. The
petitioner was appointed as a Honorary
Company Commander in U.P. Home
Guards,
Block
Kanaili
District
Kaushambi, purely on voluntary and
temporary basis for a period of three
years.
For
rural
areas
the
essential/requisite eligibility of candidates
is that they should be the resident of the
concerned block and must be residing in
the said block. On the date of screening
by the high level screening board in the
372 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
office of District Home Guards, the work
and conduct of the petitioner was
considered and it was found that since the
petitioner is not resident of concerned
block Kanaili and that at the time of
consideration it was found that the
petitioner is resident of block Newada,
District Kaushambi he was not found
eligible for consideration as Company
Commander.

8. In the same paragraph of the
counter affidavit, Shri G. Chaturvedi, the
District Commandant has relied upon a
circular No.1-32/84 dated 23.5.1984 and
has stated that the petitioner does not
come under the parameters of the said
circular issued by the department and as
such the Screening Board did not
recommend
the
renewal
of
his
appointment. In paragraph-6 it is stated
that the petitioner was informed by letter
dated 6.8.2008 in pursuance to which he
appeared before the Screening Committee
on 20.8.2008. The meeting was adjourned
for some reason. The petitioner appeared
before the Screening Committee again on
5.9.2008. He was given an opportunity
and was directed to produce the domicile
certificate of block Kanaili within 14 days
which he failed to produce. For the rural
areas it was essential/requisite that he
should be resident of the same block.

9. The respondents have relied upon
a judgement in Jitendra Kumar Awasthi
vs. State of U.P. And others, Writ
Petition No. 40505 of 2007 decided on
29.8.2007, holding that the honorary post
of home guard under the U.P. Home
Guards Act, 1963 is not a civil post and
that Article 311 (2) of the Constitution of
India is not applicable to the post. The
extension of a honorary or even regular
service is not a matter of right but of
discretion of the authority. It is further
stated that by circular letter No. 230/1990
dated 7.6.1990 issued by the Home
Guards Headquarters, a representation can
be filed before the Commandant General,
Home Guards, U.P. Lucknow within 90
days. The petitioner has failed to avail the
alternative remedy and has filed the writ
petition on misconceived facts.

10. In State of West Bengal and
others vs. Pantha Chatterjee and
others, AIR 2003 Supreme Court 3569
the Supreme Court held that the State
Government with the sanction of the
Governor of West Bengal raised the
Battalion of Border Wing Home Guards.
They were to be paid from the given head
of expenditure of the State Government.
The Scheme, however, made it clear that
the
expenditure
incurred
would
be
reimbursed by the Central Government.
The Central Government should not and
cannot get out of this undertaking. The
State of West Bengal being in the position
of an employer of the part time BWHG
owes the primary responsibility of making
all the payments on account of salary,
allowances and other perquisites to them
as admissible to the permanent staff but
this burden of expenditure must be
ultimately
borne
by
the
Central
Government. The scheme envisaged, that
on being released, after a period of three
months, the volunteer Home Guards could
go back and resume their vocations and
may earn their livelihood and may be
called as and when needed again for a
shot period where after again they could
pursue their vocation. After having put in
14 years of service, patrolling the borders
in all weathers without any facilities, it is
too much to say that their deployment was
of a causal and voluntary nature and the
Central
Government
will
not
be
2 All] Ram Babu Dwivedi V. State of U.P. and others
373
concerned with them and that it would be
the responsibility of the State Government
alone. Once they were made to work for
ten to fifteen years or so without break,
there hardly remained any chance or
scope for them to resume their old
vocations. The Central Government must
in all fairness accept its responsibility and
make the necessary facts available for
reimbursement.

11. The petitioner was engaged as a
Honorary Home Guard in 1979. He has
continued to serve in the organization
since
thereafter
and
had
earned
promotions
as
Assistant
Company
Commander and thereafter as Company
Commander by order No. 249 dated
29.1.1997. He was originally a resident of
Block Kanaili. The family partition in his
family made him to shift to village
Bhikhari Ka Purwa @ Rajendra Nagar,
Block Newada District Kaushambi, which
is not stated to be far from Kanaili Block.
Immediately after the family partition the
petitioner informed respondent no. 3,
regarding the change of his address on
4.5.1999. He was serving as Company
Commander of Block Kanaili when he
was called to appear before the Screening
Committee and was told to produce a
domicile certificate and was thereafter
removed only on the ground that he does
not reside in block Kanaili any more after
1999.

12. The protection of Article 311 is
not applicable to a Company Commander
in Home Guards, as a Home Guard does
not hold a civil post. It is an honorary
appointment given under the U.P. Home
Guards Act established for assisting the
police in maintaining the law and order in
emergent situations. The Home Guard
Organization as a disciplined force is kept
in reserved to serve with the police force
in the state of emergency. Section 4 of the
Act requires the Home Guard to assist the
police force for maintaining public order
and internal security to provide assistance
to the public in case of air raids, fire,
floods, epidemics and for all other
specific purposes. For convenience and to
ensure their availability it is provided in
Section 7 that the Home Guards shall be
recruited under such conditions, which are
provided on making a proper application.
If a person is in non-governmental service
he may send his application through his
employer and if he is serving in a
governmental organization, he has to
forward his application through his
appointing authority to give promotion.
The U.P. Home Guards Act does not
provide that the Home Guard should be
the resident of the same block in case of
rural areas and the same locality in urban
areas. In fact a Home Guard can be called
for duties from any place of the State
under Section 8 (b) of U.P. Home Guards
Act, 1963.

13. In a meeting of Divisional
Commandants on 25.4.1984 at Lucknow a
question arose whether the post of
Company Commander can be filled up
from the persons, who are not resident of
the same area. It was decided that in
future,
whenever
recruitments
of
Company Commanders is made, each
post shall be filled up only for the specific
company in which the post has fallen
vacant. The resolution in the Div.
Commanders meeting dated 25.4.1984
communicated to all Div. Commanders,
by letter dated May 23, 1984 sent by the
U.P. Home Guard Headquarters reads as
follows:-
374 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
"U.P. HOME GUARD HEADQUARTERS:
JAIL ROAD, LUCKNOW

No. 132/1984 Dated Camp Mussoorie,
May 23, 1984

CIRCULAR ORDER NO.32/84

To
All
Divl.
Commandants,
Home
Guards,
Uttar Pradesh

It has been observed that despite
earlier instructions for recruitment to the
post of coy. Commanders, they have often
been recruited regardless of the area and
the Company where the post fell vacant.
Such recruitments are in fact against the
fundamental principles on which the
Home Guards Organisation is based.

2. In
the
meeting
of
the
Divl.
Commandants
held
on
25.4.84
at
Lucknow, it was decided that in future
whenever
recruitments
of
Coy.
Commanders are made, each post shall
be filled up only for the specific
Company in which the post has fallen
vacant. The candidates to be considered
must be local persons able to attend and
remain with their units. It is, therefore,
necessary to keep this point in view when
the selections are made. If any Board
feels that no local candidate is available,
the post may be re-advertised. In the
rural areas the candidate must belong to
the block and be able to attend the Coy.
Work without difficulty. So far as the
Coys of the urban areas are concerned
where the Coys are not organized on the
block basis, the person should reside at a
reasonable distance which has been
decided as within 5 kms radius from
from the ground where the parades are
held.

3. The same principle shall also be
applied in respect of the Platoon
Commanders.
4. The above decision casts a special
responsibility
on
the
Divisional
Commandant to review the position as it
stands today in each district. A list of all
such Coy. Commanders and Platoon
Commanders who do not qualify as above
but who are serving as Coy. Commanders
or Pl. comdrs should be prepared and on
the expiry of their term it should not be
renewed.
5. If any Coy. Comdr. Or Pl. Comdr.
Who has been weeded out or who has
resigned has to be re-employed directly or
on acceptance of his appeal or petition
the case of such person shall also be
considered keeping in view the above
principle in mind i.e. the person shall be
eligible only in respect of his coy. Or
Platoon in which he or she was serving
and provided there is a vacancy available
or whenever a vacancy falls due. In the
latter case the merits of the eligible Coy.
Comdrs shall be taken into consideration
by the Board prescribed for the purpose
and the pot offered on merits.

(P.C. KAKKAR)
Commandant General, Home Guards
Copy to:-
1.
All
Distt.
Commandants/Urban
Commandants/Commandants,
DTCs,
Hgs, UP
2. All officers at HGs Hqrs/Commandant,
CTI."

14. The circular letter dated May 23,
1984 was not issued nor serves any
specific provisions of the U.P. Home
Guards
Act,
1963.
The
Divisional
2 All] Ram Babu Dwivedi V. State of U.P. and others
375
Commanders prepared guidelines for the
purposes of convenience. The circular
letter did not provide for dispensing with
the services of those persons, who are
already working. The guidelines were
prepared for making home guards readily
available. The review in respect of each
district did not provide for dispensing
with the services of such Company
Commanders and Platoon Commanders,
who do not qualify the test. It only
provided that their term, at its expiry
should not be renewed. The honorary
engagement of a Home Guard, Assistant
Commandant and Company Commander
may not give them a right to hold the
posts and that Article 311 would not
strictly apply to their case, but these
persons are citizens of India and are
discriminated in engagement or treated
unreasonably even on honorary post.

15. In the present case the petitioner
is serving as Home Guard since 1979. He
was promoted as Assistant Company
Commander in 1983 and as a Company
Commander in 1997. It was in the review
meeting the respondents sought to enforce
a circular letter dated May 23, 1984 nonsuiting him to hold a post of the Company
Commander
without
making
any
allegations with regard to his integrity,
competence and the fact whether his
residence in village Newada will affect
his performance and in discharge of the
duties. A rule of convenience could not be
a ground to subject the petitioner to an
arbitrary
action
to
terminate
his
engagement on a honorary post. He has a
right of equality which includes nonarbitrariness and reasonableness in state
functions.

16. The principles of judicial review
of
administrative
action,
include
unreasonableness as a ground on which
the administrative action can be struck
down. In State of M.P. Vs. Hazari Lal,
(2008) 3 SCC 273 the Supreme Court has
held in para 11 that the legal parameters
of judicial review have undergone a
change.
Wednesbury
principle
of
unreasonableness has been replaced by
the doctrine of proportionality vide
Indian Airlines Vs. Prabhu D. Kanan,
(2006) 11 SCC 67; State of U.P. Vs.
Sheo Shanker Lal Srivastava, (2006) 3
SCC 276 and M.P. Gangadharan Vs.
State of Kerala, (2006) 6 SCC 162.

17. "Proportionality" is a principle,
where the Court is concerned with the
process, method or manner in which the
decision maker has ordered his priorities,
reach of conclusion or arrived at a
decision. The Supreme Court observed in
Coimbator
District
Central
Cooperative
Bank
Vs.
Employees'
Association, (2007) 4 SCC 669 that the
doctrine of proportionality steps in focus
true nature of exercise- the elaboration of
rule
of
permissible
priorities.
Proportionality involves "Balancing Test"
and "Necessity Test". Whereas 'Balancing
Test'
permits
scrutiny
of
excessive
onerous penalties or infringement of
rights or interest and a manifest imbalance
of relative considerations, the 'Necessity
Test,' requires infringement of human
rights to the least restrictive alternative. In
administering the affairs of the State the
Government is expected to honour the
statement of policy or intention and treat
the
citizens
with
full
personal
consideration, when abuse of discretion.
The Supreme Court held that there can be
no
"pick
and
choose"
selective
applicability of government norms or
unfairness,
arbitrariness
or
unreasonableness. Where a paring knife
376 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
suffices, it is often stated that battle axe is
precluded.

18. While judging the question of
reasonableness and fairness, the statutory
authority must consider the factual matrix in
each case keeping in mind the doctrine of
flexibility. Before an action is struck down,
the Court must be satisfied that a case has
been made out for exercise of power of
judicial review. Every order must be
founded on rationality, which must be seen
in the context of the facts of the case.

19. The Court does not find that
there was any occasion at all, or it was
permissible to terminate the petitioner's
engagement on the ground that he had
shifted his residence from Kanaili to a
neighbouring area in Newada for which
he had himself made a declaration on the
basis of a partition in his family. In this
case the question as to whether the
circular order dated May 23, 1984 is
relevant
for
the
purpose
of
fresh
engagement of Home Guards, Platoon
Commanders and Company Commanders
is not in issue. The circular however
issued after petitioner's engagement as a
Home Guard could not be a ground to
disengage him after his selections as
Company Commander.

20. The writ petition is allowed.
The order No. 8290 dated 5.12.2008
passed by District Commandant, Home
Guards, is set aside. The petitioner shall
be reinstated and shall be allowed to serve
as Company Commander in Home
Guards with all consequential benefits.
The petitioner will also be entitled Rs.
5000/- as cost of this petition.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.04.2009

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No.4300 of 2009

Anoop Kumar Shukla and others

 ...Petitioners
Versus
Secretary,
Secondary
Sanskrit
Education Board U.P. Lucknow and
others

 ...Respondents

Counsel for the Petitioners:
Sri R.C. Dwivedi

Counsel for the Respondents:
Sri Anil Tiwari
Sri Ved Vyas Misra
Sri Sudama Ram

Sampurnanad Sanskrit Vishwa Vidyayala
Niyamawali-Section
37(8),
49(d)
of
Article 12.31-ceasure of affiliation -on
pertext for last 3 year no student send
for examination- Assistant Registrar of
University reported regarding continuity
officiation- in absence of any restriction
in U.P. Secondary Sanskrit education
Board-petitioner can not be compelled to
pursue their examination as private
candidate.

Held: Para 6

After hearing counsel for the parties at
length, in the opinion of this Court, in the
absence of any provision in the aforesaid
Act, the petitioners cannot be directed
by the Board or DIOS to appear in the
examination as private student also for
the reason that respondent university
still
recognises
the
institution
of
petitioners as affiliated to it as is
apparent from the record, and therefore
the petitioners cannot be denied to
appear in the examination as regular