# Suraj Prasad Tiwari v. Zila Commandant Home Guards, Hamirpur and others

- **Citation:** (2005) 1 ILRA 8
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-11-05
- **Bench:** Shishir Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suraj-prasad-tiwari-v-zila-commandant-home-guards-hamirpur-and-others-40388
- **Pages:** 3

## Headnote

Constitution of India-Articles 14,16,21, &
311-Applicability-Home
Guards
Act,
1963-J. 10 Explanation-cancellation of
petitioner's
assignment
as
Company
Commander by Divisional Commandant
Home
Guards-Petitioners
plea
that
impugned order violative of Articles
14,16,21 and 311-Since no opportunity
of hearing given to petitioner before
passing of order-Held, a Home Guard
shall not be deemed to be a 'holder of a
Civil Post merily by reason of his
enrolment as home guard'-Writ petition
dismissed.

Held: Para 2 & 3

The learned Standing Counsel has placed
reliance on the explanation of Section 10
of U.P. Home Guards Act 1963 and 2003
Educational and Services Cases Vol. IV
1964 in which the Division Bench of this
Court
while
considering
the
similar
question
regarding
explanation
of
Section 10 has held that a home guard
shall not be deemed to be a "holder of a
civil post merely by reason of his
enrolment as home guard" The Division
Bench of this Court has also considered
the
earlier
judgment
cited
by
the
petitoner and has come to the conclusion
that as he is not holding a civil post,
therefore, he does not come in the
definition
as
provided. It has
also
considered that Article 311 of the
Constitution
while
deciding
the
controversy whether in spite of the fact
the consideration of Section 10, the
explanation that clearly stated that the
home hard shall not be deemed to a
holder of civil post. The Division Bench
has also considered the judgment of Writ
petition no. 29824 of 1992 and held that
in the said judgment, the aforesaid point
was not for adjudication.

I have heard the learned counsel for the
petitioner and the learned Standing
Counsel and after hearing both the
http://www.allahabadhighcourt.nic.in
1All] Suraj Prasad Tiwari V. Zila Commandant Home Guards, Hamirpur and others
9
parties
I
am
of
opinion
that
the
controversy involved in the present writ
petition is fully covered by the judgment
of the Division Bench of this Court
delivered in Writ Petition No. 23570 of
1987, Riasat Ali Vs. State of U.P. and
others.
Case law discussed:
1998 Vol. III AWC 1623
1986 UPLBEC 1130
2003 E & SC Vol. IV 1964 (DB) (All)
W.P. 29824 of 1992
W.P. No. 23570 of 1987 (All)(DB)

## Text

http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
8
calculating the minimum to be fixed for
refusing compassionate appointment on
the ground of financial condition of
family of deceased employee. It cannot be
left at the sole discretion of the concerned
authority to fix such an amount resulting
into discrimination and arbitrariness in
giving appointment on compassionate
basis. There has to be a uniform policy.

9. In the circumstances, the order
passed by the respondent Bank is set aside
and
the
matter
is
sent
back
for
consideration of the Bank for fixing the
scales under different heads and thereafter
circulate a uniform policy to be adopted
throughout the institution. In case the
scaling so fixed entitles the petitioner for
consideration, his case may be considered
and if he is excluded under the scales
fixed, he may be intimated accordingly.
Such decision should be taken at the
earliest and in any case within a period of
four months from the date of production
of certified copy of this order.

Accordingly, the writ petition is
allowed with the aforesaid directions.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.11.2004

BEFORE
THE HON'BLE SHISHIR KUMAR, J.

Civil Misc. Writ Petitio.45709 of 2004

Suraj Prasad Tewari

...Petitioner
Versus
Zila
Commandant
Home
Guards,
Hamirpur and others
...Respondents

Counsel for the Petitioner:
Sri R.R. Shivahare

Counsel for the Respondent:
S.C.

Constitution of India-Articles 14,16,21, &
311-Applicability-Home
Guards
Act,
1963-J. 10 Explanation-cancellation of
petitioner's
assignment
as
Company
Commander by Divisional Commandant
Home
Guards-Petitioners
plea
that
impugned order violative of Articles
14,16,21 and 311-Since no opportunity
of hearing given to petitioner before
passing of order-Held, a Home Guard
shall not be deemed to be a 'holder of a
Civil Post merily by reason of his
enrolment as home guard'-Writ petition
dismissed.

Held: Para 2 & 3

The learned Standing Counsel has placed
reliance on the explanation of Section 10
of U.P. Home Guards Act 1963 and 2003
Educational and Services Cases Vol. IV
1964 in which the Division Bench of this
Court
while
considering
the
similar
question
regarding
explanation
of
Section 10 has held that a home guard
shall not be deemed to be a "holder of a
civil post merely by reason of his
enrolment as home guard" The Division
Bench of this Court has also considered
the
earlier
judgment
cited
by
the
petitoner and has come to the conclusion
that as he is not holding a civil post,
therefore, he does not come in the
definition
as
provided. It has
also
considered that Article 311 of the
Constitution
while
deciding
the
controversy whether in spite of the fact
the consideration of Section 10, the
explanation that clearly stated that the
home hard shall not be deemed to a
holder of civil post. The Division Bench
has also considered the judgment of Writ
petition no. 29824 of 1992 and held that
in the said judgment, the aforesaid point
was not for adjudication.

I have heard the learned counsel for the
petitioner and the learned Standing
Counsel and after hearing both the
http://www.allahabadhighcourt.nic.in
1All] Suraj Prasad Tiwari V. Zila Commandant Home Guards, Hamirpur and others
9
parties
I
am
of
opinion
that
the
controversy involved in the present writ
petition is fully covered by the judgment
of the Division Bench of this Court
delivered in Writ Petition No. 23570 of
1987, Riasat Ali Vs. State of U.P. and
others.
Case law discussed:
1998 Vol. III AWC 1623
1986 UPLBEC 1130
2003 E & SC Vol. IV 1964 (DB) (All)
W.P. 29824 of 1992
W.P. No. 23570 of 1987 (All)(DB)

(Delivered by Hon'ble Shishir Kumar, J.)

1. The petitioner is aggrieved by the
order dated 15.10.2004, Annexure-1 to
the writ petition by which his assignment
as a Company Commander has been
cancelled by the Divisional Commandant
Home Guards, Jhansi. The petitioner
contends that the aforesaid order is
violative of Articles 14,16,21 and 311of
the Constitution of India and before
passing the aforesaid order no opportunity
of hearing or show cause has been given
to the petitioner. The petitoner has placed
reliance on a single Judge judgment of
this Court in the case of Suraj Tiwari Vs.
Zila
Commissioner
Home
Guard,
Hamirpur and others reported in 1998
Vol. III A.W.C. 1623. It has been stated
that while deciding the aforesaid case, the
Hon'ble single Judge has adopted the
reasoning
of
the
earlier
judgment
delivered in the case of Vibhuti Narain
Singh Vs. State and others reported in
1986 UPLBEC 1130. Various other
grounds have been raised on behalf of the
petitoner that though the petitoer was
being paid honorarium, yet he was
entitled for show cause notice and
opportunity of hearing and as such in the
absence of it, the order passed by the
respondent is illegal and is liable to be
quashed.

2. The learned Standing Counsel has
placed reliance on the explanation of
Section 10 of U.P. Home Guards Act
1963 and 2003 Educational and Services
Cases Vol. IV 1964 in which the Division
Bench of this Court while considering the
similar question regarding explanation of
Section 10 has held that a home guard
shall not be deemed to be a "holder of a
civil post merely by reason of his
enrolment as home guard" The Division
Bench of this Court has also considered
the earlier judgment cited by the petitoner
and has come to the conclusion that as he
is not holding a civil post, therefore, he
does not come in the definition as
provided. It has also considered that
Article 311 of the Constitution while
deciding the controversy whether in spite
of the fact the consideration of Section 10,
the explanation that clearly stated that the
home hard shall not be deemed to a holder
of civil post. The Division Bench has also
considered the judgment of Writ petition
no. 29824 of 1992 and held that in the
said judgment, the aforesaid point was not
for adjudication.

3. I have heard the learned counsel
for the petitoner and the learned Standing
Counsel and after hearing both the parties
I am of opinion that the controversy
involved in the present writ petition is
fully covered by the judgment of the
Division Bench of this Court delivered in
Writ Petition No. 23570 of 1987, Riasat
Ali Vs. State of U.P. and others.

In view of the aforesaid facts the
petition is dismissed. There shall be no
order as to costs.
Petition Dismissed.
---------
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
10
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.01.2005

BEFORE
THE HON'BLE S.U. KHAN, J.

Civil Misc. Writ Petition No.1887 of 2005

Shyam Kunwar and others ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri R.K. Shukla

Counsel for the Respondents:
Sri S.R. Jalil
Sri Anuj Kumar
S.C.

Constitution
of
India
Article
226Fisheries Rights-grant of lease earlier
the lease granted for Rs.700/- per year
basis-Deputy
District
Magistrate
submitted report that the current rate as
offered by the petitioner about Rs.
2000/- is most appropriate-while at the
intervention of court make offer of Rs.
25000/- per year-without issuing the
notices to the Private party direction
issued that if the petitioner deposits Rs.
25000 for one year the authorities shall
put auction and settled the same on the
basis highest bid-if no higher amount
offered only then lease can be sifted with
the petitioner for remaining period of 5
years at the rate of Rs.25,000/- per year
basis.

Held: Para 7

Accordingly, it is directed that within six
weeks
from
today
petitioners
shall
deposit
Rs.25,000/-
before
Deputy
Collector concerned as first year's rent
from 1.4.2005 till 31.3.2006. On such
deposit being made Deputy Collector
shall within one month invite respondent
no.4-Chhotkun, son of Ramat as well as
any other person who may be interested
in taking the lease of the pond in dispute
to offer higher amount i.e. more than
Rs.25,000/- per year. For inviting other
interested persons such procedure may
be adopted by the Deputy Collector as he
considers appropriate. If no person
offers higher amount then ten years'
fisheries lease in favour of petitioners
effective
from
1.4.2005
shall
be
executed on yearly rent of Rs.25,000/-
payable every year in advance and
recoverable like arrears of land revenue
in
case
of
default.

However,
if
respondent no.4 Chhotkun or any other
person
offers
higher
amount
then
auction must take place in between
those persons and the petitioners in the
office of Deputy Collector and lease shall
be settled in favour of the highest bidder
with similar terms in respect of payment
of rent.
Case law discussed:
AIR 1985 SC 1147
2004 (96) RD 645
1995 ACJ 1066
1997 RC 656
1999 ACJ-312
2002 ACJ 1148
2004 RD 645 (FB)

(Delivered by Hon'ble S.U. Khan, J.

1. Fisheries lease in respect of a
pond comprised in plot no.290 area 1.137
hectares situate in village Surhurpur,
Tappa-Haveli,
Pargana
and
Tehsil
Mohammdabad Gohna, District Mau was
granted by Deputy Collector in favour of
respondent
no.4-Chhotkun
for
only
Rs.2,000/- per year and that also without
any advertisement or auction. There are
several authorities of this Court (op.cit) to
the effect that fisheries lease shall be
granted only and only through auction,
and that auction cannot be confined to
members of any particular caste, society
or group of professionals (Machhuva
Samudai). In the aforesaid authorities it
has also been held that fisheries lease