# Ramesh Narain Tripathi and another v. State of U.P. and others

- **Citation:** (2005) 1 ILRA 329
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-02-22
- **Case number:** Civil Misc. Writ Petition No. 5980 of 2005
- **Bench:** Sunil Ambwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramesh-narain-tripathi-and-another-v-state-of-u-p-and-others-40446
- **Pages:** 2

## Headnote

Limitation Act, 1963, S-5 read with
Constitution
of
India,
Article
226-
Practice and Procedure-condonation of
delay- Appeal filed by the State barred
by time for few days- No prayer for
condonation of delay- even the memo of
appeal not signed by the Collectorargument
that
the
continuance
of
incompetent appeal- amounts to abuse
the process of law- hence the writ of
prohibition be issued restraining the
appel

## Text

1 All] Ramesh Narain Tripathi and another V. State of U.P. and others
329
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.2.2005

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ Petition No. 5980 of 2005

Ramesh Narain Tripathi and another

 ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri Ashok Pandey

Counsel for the Respondents:
Sri C.B . Yadav, S.C.

Home guard Act 1963-S-7(2)-read with
U.P. Fundamental Rules as Amended
2002-Rule-56-words and phrases-civil
post- whether the Home guards are
within
the meaning
of
Government
Servants?- held- no- protection, rights
and privilege given to holder of civil post
can not be a government servantaccordingly the provisions of Rule 56 of
U.P.
Fundamental
Rule
are
not
applicable-for the retirement of home
guard- extension of service beyond 58
years can not be given.

Held- para 4

It is not necessary that a person holding
civil post is a Government Servant or
that the protection, rights and privileges
given to a public servant makes him a
government servant. The Fundamental
Rules do not apply to all the holders of
civil post and public servants. These are
as such not applicable to the petitioner
as a Home Guard. The amendments
made in Rule 56 are also not applicable
to Home guards giving the benefit of
extension of service beyond 58 years.
Case law discussed:
Special
Appeal
No.
363/97
decided
on
326.8.2004
2003 (4) ESC (Alld) 1964
W.P. No. 32279/04 de3cided on 13.8.04
W.P. No. 16093/04 decided on 22.4.04

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

1. Heard learned counsel for the
petitioner and Sri C.B. Yadav, learned
Chief
Standing
Counsel
for
the
respondents.

2. The petitioner is serving as a
Home Guard. By this writ petition, he has
prayed for quashing an order dated
31.1.2005 by which he is sought to be
superannuated at the age of 58 years.
Learned counsel for the petitioner submits
that once the petitioner is called on duty,
he holds a civil post. He has relied upon a
Division Bench judgment of State of U.P.
Vs. Dashrath Singh Parihar in Special
Appeal no. 363 of 1997 decided on
26.8.2004, in which this Court had
distinguished the judgment in Riasat Ali
Vs. State of U.P. and others 2003 (4)
ESC (Alld), 1964 and held that when he
is not enrolled under Section 7 (2) of the
Home Guard Act, 1963, a Home guard
can take up a private service and then he
would obviously not be holding a civil
post but when he was called on duty he
holds a civil post and in that case
explanation of Section 10 of the Act is not
attracted. It was further held that in such
circumstances, protection of Article 311
of the Constitution of India is applicable
to the petitioner.

3. In this case we are concerned with
the applicability of Fundamental Rule 56
which has been amended by U.P.
Fundamental Rules, 2002, and by which
the
age
of
superannuation
of
a
Government Servant to which these rules
apply has been extended to 60 years.
330 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
Learned counsel for the petitioner has
relied upon the interim order passed by
me on 10.9.2002 in writ petition no.
37675 of 2002. After the decision in State
of U.P. Vs. Dasharath Singh Parihar, the
legal position has been more clarified.
The Home guards under section 4 serving
as auxiliary force to the police as and
when required, for maintaining public
order and internal security served under
the superintendence and administration
exercised by Commandant General. The
Home guards is a volunteer force and
when not called for service can take up
any
private
service.
The
powers,
privileges and protection of Home guards
is maintained under section 9 of the Act.
Section 10 of the Act provides that the
Home guard acting in the discharge of his
functions under the Act shall be deemed
to be public servant within the meaning of
section 21 of the Indian Penal Code. The
engagement of Home guard under the
U.P. Home Guards Act, 1963, is only part
tie. Any person either in private or in
Government Service cannot be enrolled as
Home guard. He only gets as honorarium.
The Act does not prescribe any retirement
age. By a Government order dated
6.11.1995, it is prescribed that a Home
Guard shall not be engaged after he
attains 58 years of age.

4. The expressions 'Civil Post',
'Public
Servant'
and
'Government
Servant' are well understood and have
well defined attributes. It is not necessary
that a person holding civil post is a
Government
Servant
or
that
the
protection, rights and privileges given to a
public servant makes him a government
servant. The Fundamental Rules do not
apply to all the holders of civil post and
public servants. These are as such not
applicable to the petitioner as a Home
Guard. The amendments made in Rule 56
are also not applicable to Home guards
giving the benefit of extension of service
beyond 58 years.

5. The same view was taken by me
in Surnam Singh Vs. State of U.P. (writ
petition no. 32279 of 2004 decided on
13.8.2004 and Nandi Prasad Vs. State of
U.P. (civil misc. writ petition no. 16093
of 2004 decided on 22.4.2004).

The writ petition is consequently
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD: 22.12.2004

BEFORE
THE HON'BLE S.K. SINGH, J.

Civil Misc. Writ Petition No. 48402 of 2004

Mohan and others
 ...Petitioners
Versus
The Settlement Officer of Consolidation,
Jaunpur and others
 ...Respondents

Counsel for the Petitioners:
Sri S.C. Tripathi

Counsel for the Respondents:
Sri Anuj Kumar, Addl. S.C., S.C.

Limitation Act, 1963, S-5 read with
Constitution
of
India,
Article
226-
Practice and Procedure-condonation of
delay- Appeal filed by the State barred
by time for few days- No prayer for
condonation of delay- even the memo of
appeal not signed by the Collectorargument
that
the
continuance
of
incompetent appeal- amounts to abuse
the process of law- hence the writ of
prohibition be issued restraining the
appellate authority to entertain and
decide such appeal-held-unless some
exceptional circumstances are there-