JUDGMENT A.K. Yog, J.
1. Writ Petition No. 23570 of 1987, Riasat Ali v. State of U.P. through Home Secretary, Civil Secretariat. Lucknow and Ors., was heard by learned single Judge (A.K. Yog. J.) and vide judgment and order, dated May 11, 1999, this petition was connected with Writ Petition No. 5816 of 1995. Raghvendra Singh v. District Commandant, Home Guards Mainpuri and Anr. Record of the case was directed to be placed before Hon'ble the Chief Justice for nomination of a larger Bench for hearing the cases in view of conflicting decisions of this Court in the case of Bibhuti Narayan Singh v. State and Ors., 1986 UPLBEC 1130, (A.N. Verma, J.), holding post of Home Guard to be a civil post and in the case of Abdul Hameed and Anr. v. State of U.P. and Anr. Writ Petition No. 9028 of 1990 and other connected 42 writ petitions decided vide judgment and order dated 28.10.1991 (S.C. Mathur, J.) holding said post not to be a civil post.
2. The Chief Justice, vide order dated 3.8.1999, directed the present petition to be listed for hearing before Division Bench dealing with service matters along with above mentioned Writ Petition No. 5816 of 1995, Raghvendra Singh v. District Commandant, Home Guards, Mainpuri and Anr., wherein another learned single Judge (D.K. Seth, J.) vide order dated 12.8.1997, had also noticed the conflict and directed the case to be placed before the Chief Justice for referring the case for hearing by a larger Bench.
3. The only question required to be answered in these petitions, is 'whether a person enrolled as Home Guard under U.P. Home Guards Act, 1963, as amended by the Act No. 4 of 1972, (for short called 'the Act') holds a 'civil post'?
4. Facts of Writ Petition No. 23570 of 1987, Riasat Ali v. State :
Petitioner applied for the post of Platoon Commander in the year 1985. His conduct and character were verified by District Commandant, Home Guards, Rampur, and no adverse remark was ever communicated to the petitioner. According to the petitioner one R.K. Goel, the then District Commandant Home Guard, was instrumental in getting his tenure determined out of malice. The plea of mala fide has, however, been abandoned. The learned counsel for the petitioner, on his request, was permitted by the Court to delete the name of Sri R.K. Goel (respondent No. 4). The petitioner was informed that the Department of Home Guard did not require his temporary and voluntary service as Platoon Commander which were determined from the date of passing of the order and in lieu of one month's notice, one month's honorarium was sanctioned ; also, the petitioner was directed to hand over official property, dress, etc. with immediate effect vide impugned order dated 17.11.1987, Annexure-1 to the petition.
5. Feeling aggrieved, petitioner has challenged the impugned order of termination by filing present petition under Article 226, Constitution of India. Petitioner's grievances are :
(a) impugned order dated 17th November, 1987, has been passed without affording an opportunity of defending him even though from the facts in the counter-affidavit filed on behalf of respondent Nos. 1, 2 and 3 it is evident that his tenure has been determined by way of punishment and in the facts of present case, it casts stigma ;
(b) impugned termination order is bad inasmuch as Home Guard Department itself issued an advertisement for recruiting persons on several posts including Platoon Commander within two weeks of the passing of the termination order indicating that Department required services of Platoon Commanders.
6. The impugned order of termination, dated 17th November, 1987, according to the petitioner, is per se bad inasmuch as it mentioned that Department did not require the service of petitioner as Platoon Commander. According to the petitioner, no rules were framed as required under Section 15 of U.P. Home Guard Adhiniyam, 1963 ; principles of natural justice were applicable in the case of the petitioner, which required that services of the petitioner could not be determined arbitrarily without affording opportunity more so in view of Article 311, Constitution of India--on the premise that Post of Home Guard is a civil post.
7. In support of the above contention, learned counsel for the petitioner, placed reliance on the advertisement dated 26th November, 1987 (Annexure-2 to the writ petition) to show that Department of Home Guard required service of Platoon Commander. Learned counsel for the petitioner referred to the averments contained in paragraphs 4 and 5 of the counter-affidavit ; wherein respondent Nos. 1, 2 and 3 stated, "in the instant case the petitioner's conduct and work was not satisfactory as he indulged in making money and he was also running in collusion with Assistant Company Commander and Company Commander.........." and "his work was only satisfactory prior enquiry was made by respondent No. 3 in muster rolls prepared by him and after making enquiry the petitioner was terminated as the said muster roll was filled up by the petitioner which was found false and the same was made only to get money, hence considering the entire material on record and work of the petitioner his services rightly and legally have been terminated."
8. Petitioner also referred to para 11 of the counter-affidavit wherein respondents have stated : "The question of junior and senior are not applicable to the facts of the present case and in the instant case the petitioner was found guilty in making false entry in muster rolls hence after making inquiry, after giving him one month's advanced honorarium his services were terminated. Photostat copies of the muster rolls, said to have been prepared, by the petitioner and the District Commandant are annexed as Annexure-C.A.-1 to the counter-affidavit."
9. Petitioner contends that he could not be removed from service within three years, (which was fixed tenure) as contemplated under Section 11(2) of the U.P. Home Guards Adhiniyam, 1963.
10. Facts of the connected Writ Petition No. 5816 of 1995, Raghvendra Singh v. State of U.P. and Anr. :
The petitioner was appointed Home Guard on 16.12.1983 and had undergone several trainings detailed in various paragraphs of the writ petition and had been serving continuously since then in the said organisation. He was ultimately promoted to the post of Platoon Commander after having duly selected by the Selection Board. He joined the post of Platoon Commander on 9.9.1988 pursuant to an order dated 12.8.1988. Even after his said promotion he underwent further training successfully. He had rendered good service, which is reflected in the certificate issued to him on 20.9.1993, Then came suddenly the order dated 13.12.1994 terminating the petitioner's service, copy whereof is Annexure-5 to the writ petition.
11. In the said order, it is mentioned that the petitioner was holding honorary post of Platoon Commander and that his service was no longer required in the organisation and, therefore, his temporary and honorary service in the organisation was terminated with immediate effect.
12. It shall be useful, before proceeding further, to reproduce certain provisions of the Act :
"Whereas it is expedient to provide for the constitution of a force known as the Uttar Pradesh Home Guards, for utilising its services for duties in times of emergency and serving as an auxiliary to the police for the maintenance of law and order :"
2. In this Act unless there is anything repugnant in the subject or context:
(a) "District Commandant" means the officer commanding the Home Guards in a District ;
(b) "Duty" or "service" as Home Guard shall include the undergoing of training as such ;
(c) "employer" means an employer in relation to private service and includes his authorized agent or manager and in the case of a corporation, firm or other association of individuals, includes its director, partner, manager, secretary or other persons in charge of or responsible to it for the conduct of its business at any given time ;
(d) "essential services" means motor transport, pioneer and engineering corps, fire brigades, nursing, first aid, operation of water and power supply installations, and such other services as may be notified by the State Government as being essential to the life of the community ;
(e) "home guard" means a person who is enrolled as such and Includes an officer appointed under this Act ;
(f) "police" shall have the same meaning as assigned to the word in the Police Act, 1861 ;
(g) "prescribed" means prescribed by rules framed under this Act;
(h) "private service" means any service other than service under the State ;
(j) "service under the State" means service under the "State" as defined in Article 12 of the Constitution of India, and includes service under any statutory corporation ;
(k) "State Government" means the Government of Uttar Pradesh ; and
3. There shall be raised and maintained a volunteer force to be designated the Uttar Pradesh Home Guards, hereinafter called the Home Guards and it shall be constituted in the manner prescribed.
4. The Home Guards will have the following functions :
(a) they will serve as auxiliary to the police, and, when required ; help in maintaining public order and internal security ;
(b) they will help the community in air raids, fires, floods, epidemics and other emergencies ;
(c) they will function as an emergency force for such special tasks as may be prescribed ;
(d) they will provide functional units for essential services ; and
(e) they will perform such other duties relating to any measure of public welfare as may be prescribed.
5. The State Government shall appoint a Commandant General of Home Guards, hereinafter called the Commandant General, and other officers on such terms and conditions as may be prescribed.
6. (1) The superintendence of the Home Guards shall vest in and be exercised by the State Government.
(2) The administration of the Home Guards throughout the State shall vest in and be exercised by the Commandant General except in relation to any local area that may be excluded by notification by the State Government in this behalf ; and any officer appointed to administer the Home Guards of any local areas so excluded shall exercise in relation to that area the like powers as the Commandant-General exercises in the rest of the State.
(3) Subject to the general control and direction of the District Magistrate the administration of the Home Guards in a district shall vest in and be exercised by the District Commandant.
7. (1) Subject to such conditions as may be prescribed, any person desiring to be enrolled as Home Guard 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) 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. Subject to the provisions of this Act and the rules made thereunder :
(a) the District Magistrate (or the District Commandant) may by order call out any Home Guards 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.
9. (1) Subject to the provisions of this Act and the rules made thereunder, a Home Guard then called out under Section 8 to serve as auxiliary to the police or to help in maintaining public order or internal security shall have the same powers, privileges and protection as may be of the police force appointed under any enactment for the time being in force, and shall, subject to such adaptations and modifications as may be made therein by the State Government by notification in the Gazette, be subject to the provisions of the Police Act, ......... and the rules or regulations made thereunder in the same manner and to the same extent as he would, if such Home Guard held a corresponding rank in the police force to the one he holds for the time being in the Home Guards.
(2) No prosecution shall be instituted against a Home Guard in respect of anything done or purporting to be done by him in the discharge of his duty as a Home Guard, except with the previous sanction of the District Magistrate having jurisdiction over the area in which the Home Guard was enrolled or in which the act was committed.
10. 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 Guard.'
11. (1) Subject to any rules made in this behalf, a Home Guard shall be bound to serve in any unit of the Home Guards to which he is for the time being attached.
(2) The initial period during which a Home Guard may be required to serve shall be three years from the date of his enrolment. This period may be extended with his consent recorded in the prescribed manner :
(3) Every Home Guard shall be liable to serve, when called out in the prescribed manner, for duty in any part of the State. No Home Guard shall be required to render service outside the State unless he has given his consent in the prescribed manner for such service.
(4) The Home Guards called out for duty may be paid such allowances as may be prescribed.
(5) The Home Guards will ordinarily be called out to serve in the areas of their enrolment and only for part-time duty.
14. (1) Except as may be prescribed, every employer shall permit a Home Guard who is for the time being employed by or under him to join his duty as such, and, notwithstanding anything in any law or agreement between him and such Home Guard in force the period of his duty shall, subject to such conditions and restrictions as may be prescribed, be deemed to be the period spent in such employment.
(2) No employer shall dismiss, remove or suspend any employee or take any other action which may prejudice such employee by reason of his being a member of the Home Guards.
(3) Whoever contravenes the provisions of Sub-section (1) or (2) shall be punished with fine which may extend to two hundred and fifty rupees, and the Court by which an employee is convicted under this section may further order him to pay to the employee a sum not exceeding three months remuneration at the rate at which his last remuneration was payable to him by the employer, and any amount so ordered to be paid by the Court shall be recoverable as if it were a fine imposed by such Court.
(4) Nothing in this section shall apply to an employer unless he had forwarded the application of the employee concerned for enrolment as Home Guard or been informed by the employee of his being a Home Guard at the time of applying for employment.
15. (1) The State Government may make rules for carrying out the purposes of this Act and for giving effect to its provisions generally.
(2) In particular, and without prejudice to the generality of the forgoing power, such rules may provide for or regulate all or any of the following matters, namely :
(a) the organization, qualifications, manner of enrolment, medical examination, functions, discipline, accoutrements, clothing and uniform of Home Guards and the manner in which they may be called out for service or required to undergo training ;
(b) exercise by Home Guards of the powers of a Police Officer and the correspondence of ranks between Home Guards and police personnel for purposes of Sub-section (1) of Section 9 ;
(c) the conditions subject to which any person may be exempted from any obligation or liability under this Act or any particular provision thereof;
(d) the delegation of the powers and functions conferred by this Act on the State Government to the Commandant-General and other authorities ; and
(e) any other matter which under this Act is to be or may by prescribed.
(3) All rules made under this Act shall, as soon as may be after they are made, be laid before each House of the State Legislature while it is in session for a total period of not less than fourteen days extending in its one session or more than one successive session and shall, unless some later date is appointed, take effect from the date of their publication in the Gazette subject to such modifications or annulments as the Houses of the Legislature may agree to make, so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done thereunder."
U.P. Home Guard Service Rules, 1982, Group 'Ga' was published in the Gazette dated December 13, 1982 (called the Rules').
13. As the title itself suggests, the Act and the Rules, constitute and deal with 'Home Guard' Service. Rule 3 (tha) defines 'Home Guard'. Rule 4 provides that Governor shall, from time to time, determine number of posts in each category. Rule 5 provides for different categories and source of recruitment on different posts earmarked as 'Hawaldar Instructor', 'Junior Instructor', 'Block Organiser', 'Platoon Commander' and 'Company Commander'. Rule 6 provides for reservation on the aforementioned posts. Rule 7 contains eligibility conditions. Rule 8 provides for requisite qualifications for respective posts enumerated above. Rule 10 provides for age. Other rules namely Rules 15-20 deal with appointment, seniority probation period, confirment. Rule 22 provides for pay-scales.
14. We now deal with the decisions cited at the Bar in support of their respective contentions.
15. In the case of Vibhuti Narain Singh v. State of U.P. and Ors., learned single Judge (Hon'ble A.N. Verma, J.), in para 15 of the Judgment quoted Section 10 of the Act, including Explanation. His lordship referred to other Sections 4, 11 and 12 of the Act in paras 15, 16, 17 and 19 of the judgment and referred to various cases decided by Hon'ble Supreme Court and held that a Home Guard in the State of U.P. holds a Civil Post under Article 311, Constitution of India and the fact that Home Guard was paid 'honorarium' made no difference.
16. In para 23 of the said judgment, his lordship has referred to the Explanation attached to Section 10 and observed that "in my Judgment, the Explanation is of no assistance in the determination of the controversy .................. any question under Article 311, Constitution of India has to be determined with reference to the connotation of these words as appearing in the Constitution of India and observed that Explanation was of no assistance for the determination of the controversy. His lordship observed that "the meaning of the term as appearing in the Constitution of India cannot be controlled or whittled down by any ordinary law. If a person holds a civil post as contemplated by our Constitution, he cannot be excluded from the protection or privilege conferred upon him by a constitutional provision by the simple expedient of excluding him from the definition of holder of civil post by an ordinary statutory provision. Section 10, can therefore, be of no assistance to the defendants".
17. With reference to the above judgment, It is to be noted that legislative competence to declare a 'service' or 'post' not to be a 'civil service' or 'post' has not been considered.
18. Section 10 Explanation contains declaration of 'Post' of Home Guard, not to be a 'civil post'. Explanation is part and parcel of the main section. It is a declaratory-clause leaving no room for doubt or entertain controversy as to whether 'Home Guard' is a civil service. A 'Home Guard' may have incidence of 'civil service', but it cannot be treated as such because of the Explanation attached to Section 10 of the Act which unequivocally declares it to be not a 'civil post'.
19. Article 311 of the Constitution is not relevant so long it is found that 'post' under consideration is in fact not a 'civil post'. Aforesaid Article of the Constitution does not provide the basis or criterion or the test to ascertain whether it is a 'civil post'.
20. Article 311, Constitution of India contains statutory protection to a person who is member of a civil service of Union/State. The Constitution nowhere contemplates that a 'service'/'post' cannot be declared to be 'civil service' or 'civil post' through statutory enactment.
21. None of the earlier decisions of this Court dealt with this point. We are not aware of any valid basis or genesis to infer that the Explanation to Section 10 of the Act is 'ultra vires'. Article 311, Constitution of India merely confers certain protection to a person if he holds a 'civil post' in a State or Centre. This Article has no relevance nor it is at all material to determine whether a post is civil or not.
22. The judgment of the learned single Judge, in the case of Vibhuti Narain Singh is dated July 29, 1979, and, therefore, it is apparent that learned single Judge, (A.N. Verma, J.) had no occasion to notice or refer to U.P. Home Guards Service Rules, 1982 'Group Ga'.
23. Learned single Judge, (S.C. Mathur, J.) in the case of Abdul Hameed (supra), referred to Sections 2, 3 and 7 of the Act, and held that Home Guard is a volunteer force, organised on the basis of voluntary enrolment. Learned single Judge, particularly noticed Section 14 of the Act which contemplates situation wherein a Home Guard may be employed elsewhere or in State service. The said judgment of the learned single Judge is dated 28.10.1991, but curiously aforementioned Rule, 1982, does not find mention in the judgment, and hence, there is no consideration of the distinguishing features of the establishment after enforcement of Rules, 1982, which prescribe mode of recruitment, physical/academic qualifications, cadre, number of posts, pay-scale, mode of appointment, probation, confirment, and simultaneous continuance in State service as well as Home Guard etc.
24. In the Judgment dated 9.8.1999 in the case of Abdul Bari v. State of U.P. and Ors., 1999 (4) AWC 3433 : 2000 All LJ 63, (D.K. Seth, J.), various decisions have been noted but without referring to the aforesaid Rules, 1982. Learned single Judge (D.K. Seth, J), it appears, inadvertently allowed the writ petition without noticing his own judgment and order dated 12.8.1997 in Writ Petition No. 5816 of 1995, Raghuendra Singh v. District Commandant Home Guards, Mainpuri and Anr.
25. Learned single Judge, in para 4 of his judgment referred to a Division Bench judgment and order dated September 23, 1992 in Writ Petition No. 29824 of 1992 (comprising of Hon'ble B.M. Lal and Hon'ble V. Bahuguna, JJ.)--Gulam Mohammad v. State of U. P.
26. We sent for the record of the aforesaid petition and also perused the said judgment and order dated September 23, 1992. In the said judgment, we find no adjudication of this point. The Division Bench however, observed that since Home Guards are appointed on fixed honorarium and there being no provision under the Act, under which Home Guard can compel the State Government, to continue him on duty. The petitioners of those petitions were not entitled for relief. We do not find any declaration of the law in the aforesaid Division Bench decision which merely relied upon the judgment in the case of Abdul Hameed (supra). The Division Bench did not refer to the provisions of Rules, 1982 and/or decision of the Supreme Court referred to in the case of Vtbhuti Narayan Singh (supra) and Suraj Prasad Tewari (supra).
27. Having considered respective contentions at the Bar as well as the aforesaid judgments, we have no doubt that so long as Explanation attached to Section 10 of the Act continues on the Statute, even if a service or post has incidences, of 'civil service'/ 'civil post' as held by Supreme Court in the case of State of Assam and Ors. v. Kanak Chand, AIR 1967 SC 884, the statutory declaration that post of Home Guard is not a civil post, cannot be ignored. The said statutory provision (Explanation to Section 10 of the Act) has to be given purposeful meaning and to be duly honoured. In our humble but considered opinion, there is no conflict between Article 311, Constitution of India and said Section 10 with its Explanation.
28. We may re-state that it is not possible to appreciate as to how Explanation attached to Section 10 seeks to whittle down the rigour of the constitutional protection provided through Article 311, Constitution of India so long as a Home Guard does not hold 'civil post' as declared by the Act itself.
29. At this juncture, we would like to note that the decision of the learned single Judge rendered in the case of Abdul Hameed (supra) in view of the Division Bench decision in the case of Gulam Mohammad and Ors. (supra) cannot be applied in view of the enforcement of Rules, 1982.
30. Again another learned single Judge (O.P. Garg, J.) in the case of Suraj Prasad Tewari v. Zila Commander, Home Guards, Hamirpur and Ors., 1998 (3) AWC 1622 : (1998) 2 UPLBEC 1484, adopted reasoning given in the earlier judgment of this Court in the case of Vibhuti Narayan Singh (supra) and referred to Article 311 in holding that Home Guards under the Act hold a civil post. However, in para 12 of the reported Judgment in the case of Suraj Prasad Tewari (supra) learned single Judge, we note with due respect, did not appreciate that even 'intents' and 'features' of service Justify declaration of it as a civil service or post, but it cannot be treated as such if Legislature specifically--through legislative enactment--declares it not to be a civil service/civil post, and consequently, protection of Article 311 cannot be taken resort to Article 311 of the Constitution of India to treat it as a civil service or a civil post.
31. We do not find that in any of the above referred cases or in the two writ petitions before us, any material is placed to declare the Explanation attached to Section 10 of the Act to be ultra vires of the Constitution of India or the same being non est because of lack of competence on the part of the Legislature to enact such a provision.
32. We hasten to note that in view of the various conspicuous features of the Home Guard service (as also noted by Hon'ble D.K. Seth in the case of Raghvendra Singh (supra), it may be very hard and source of discomfort to note that persons working as Home Guard under the Act and the Rules framed thereunder though they have attending duties which has all features of a civil post/civil service, still they have been deprived of the status/stature of civil post and denied protection enshrined in Article 311 of the Constitution of India to a civil service or civil post.
33. We cannot, at the same time ignore that even if Act and Rules contemplate a service, which has incidence of 'civil service', the most conspicuous distinguishing feature of the Act is the Explanation embedded in Section 10 of the Act which contemplates continuance in another employment including a civil service or civil post in the State/Union.
34. Explanation attached to Section 10 of the Act cannot be ignored or sidelined for extending protection contemplated under Article 311(2) Constitution of India. Hardship, if any, is perpetuated, as observed by learned single Judge in the case of Raghvendra Singh (supra), it is for the Legislature to remove the statuary hurdle but the Court cannot sideline or ignore it.
35. In view of the above, we hold that the Home Guard under the Act and Rules do not hold a civil post.
36. In view of the above, we agree with the view taken by A.K. Yog, in his judgment and order dated 11.5.1999, passed in Writ Petition No. 23570 of 1987.
37. In the result, both the Writ Petition No. 23570 of 1987, Riasat Ali v. State of U.P. through Home Secretary, Civil Secretariat, Lucknow and Ors. and Civil Misc. Writ Petition No. 5816 of 1995, Raghvendra Singh v. District Commandant, Home Guards, Mainpuri and Anr. fail and are hereby dismissed.
38. No order as to costs.