Court No. - 29
Case :- SPECIAL APPEAL DEFECTIVE No. - 371 of 2021 Appellant :- Jay Ram Prasad Respondent :- State Of U.P. And 3 Others Counsel for Appellant :- Bholeshwar Counsel for Respondent :- C.S.C.
With Case :- SPECIAL APPEAL DEFECTIVE No. - 366 of 2021 Appellant :- Durga Prasad Respondent :- State Of U.P. And 3 Others Counsel for Appellant :- Bholeshwar Counsel for Respondent :- C.S.C.
With Case :- SPECIAL APPEAL DEFECTIVE No. - 367 of 2021 Appellant :- Pradyuman Tiwari Respondent :- State Of U.P. And 3 Others Counsel for Appellant :- Bholeshwar Counsel for Respondent :- C.S.C.
Hon'ble Munishwar Nath Bhandari,Acting Chief Justice Hon'ble Anil Kumar Ojha,J.
Order on Civil Misc. Exemption Application No. 1 of 2021
Exemption applications are allowed.
The appellants are exempted from filing the certified copy of the order dated 15th March, 2021 to these appeals.
Order on Memo of Appeal
By these appeals, challenge is made to the judgment dated 15th March, 2021 whereby the writ petitions preferred by the petitioners- appellants were dismissed.
The writ petitions were preferred to challenge the order dated 25th February, 2020 by which the services of the petitioners-appellants were terminated. An appeal thereupon was dismissed by the Divisional Commandant, Home Guard, Gorakhpur.
The services of the petitioners-appellants were terminated due to pendency of the criminal cases after their induction in the Home Guard service. The learned Single Judge refused to cause interference in the order of termination in reference to the earlier judgment of the learned Single Judge in the case of Hriday Narayan Yadav vs. State of U.P. and others (Writ-A No. 19141 of 2019), decided on 9th December, 2020. It was finding that the services of the Home Guard do not fall in the category of civil services and otherwise termination was subsequent to show cause notice thus, principles of natural justice were followed.
Learned counsel for the appellants has made reference of the circular/order issued by the State Government on 22nd October, 2020 to regulate all the matters of Home Guards against whom a criminal case is pending. Learned counsel for the appellants submits that last para of the said order directs for review of earlier cases of suspension and dismissal in which even the writ petition has been preferred. The direction was to seek a report followed by a decision but no such action in the present case has been taken. The prayer is to direct the respondents/non-appellants to consider the case of the appellants in light of the order/circular dated 22nd October, 2020.
Learned counsel for the State has contested the appeals even in reference to the order/circular dated 22nd October, 2020 and submits that such circular is prospective in nature thus, should not be applied in the present case as the order of termination is prior to the said circular.
We have considered the rival submissions of the parties and perused the record.
It is a case where petitioners-appellants were inducted as Home Guard and subsequent to it, a criminal case was registered against them Due to pendency of the criminal cases, their services were terminated invoking Section 12(1) of the Home Guard Act, 1963. The respondents issued a circular for the aforesaid. The order of termination was passed after serving show cause notice and accordingly learned Single Judge did not find it appropriate to cause interference in the order of termination in light of the judgment in the case of Hriday Narayan Yadav (supra).
The judgment of the learned Single Judge has been questioned now in reference to the subsequent circular/order dated 22nd October, 2020. The circular aforesaid directs as to what action should be taken against the Home Guard pending criminal cases. A direction has been given to consider the earlier matters of suspension/termination where the writ petitions has been preferred. The case in hand is covered by the last para of the said order. However, for ready reference, the order aforesaid is quoted hereunder:
^^2- bl lEcU/k esa eq>s ;g dgus dk funs’k gqvk gS fd vkijkf/kd ekeyksa esa lafyIr ik;s tkus ij gksexkM~Zl Lo;a lsodksa@voSrfud vf/kdkfj;ksa ds fo:) l{ke Lrj ls fuEukuqlkj vuq’kklukRed dk;Zokgh dh tk;%& ¼1½ vkijkf/kd ekeyksa eas vfHk;ksx iathd`r gksus ds mijkUr tsy eas fu:) gksus ij rRdky lEcfU/kr gksexkM~Zl Lo;alsod@voSrfud vf/kdkjh dks fuyfEcr dj fn;k tk;A ¼2½ gksexkMZl Lo;alsod@ voSrfud vf/kdkjh ds vkijkf/kd ekeyks esa vfHk;ksx iathd`r gksus ds dkj.k tsy esa fu:) gksus ds i’pkr tekur ij fjgk gksus ds ckn mlds izR;kosnu ij ijh{k.k djrs gq, mldk fuyEcu lekIr dj fn;k tk;] rFkk mls fu;ekuqlkj M~;wVh ij fu;ksftr fd;k tk;A ¼3½ lkr o"kZ ;k lkr o"kZ ls vf/kd ltk ds izkfo/kku ls lEcfU/kr vkijkf/kd ekeyks esa vjksi&i= ¼pktZ’khV½ izLrqr gksus ij foHkkx ls fuyfEcr dj fn;k tk;A ¼4½ iz’uxr izdj.k esa vfUre fjiksVZ ¼,Q0vkj0½ ek0 U;k;ky; dks izsf"kr fd;s tkus dh fLFkfr esa lEcfU/kr gksexkMZ~l@voSrfud vf/kdkjh dks rRdky lsok ij cgky dj fn;k tk;sA ¼5½ fofHkUu 'keuh; vijk/kks dks NksM+dj fdlh Hkh vkijkf/kd ekeys esa ek0 U;k;ky; n~okjk nks"k fl) gksus ij lEcfU/kr gksexkMZ~l Lo;alsod@voSrfud vf/kdkjh dks foHkkx ls i`Fkd dj fn;k tk; vkSj nks"k eqDr gksus ij fuyEcu dks lekIr dj cgky dj fn;k tk,A orZeku esa gksexkM~Zl Lo;alsod@voSrfud vf/kdkfj;ks ds fo:) iwoZ ls yfEcr vijkf/kd ekeyks esa lafyIr ik;s tkus ij muds fuyEcu rFkk fu"dklu ds mijkUr fofHkUu izdj.kks esa lEcfU/kr gksexkM~Zl Loa;lsod@voSrfud vf/kdkfj;ksa n~okjk ek0 mPp U;k;ky; esa fofHkUu ;kfpdk,a ;ksftr dh x;h gSaA ;fn ,sls izdj.kks esa izLrj&2 esa of.kZr izfØ;k ls fHkUu fu.kZ; fy;k x;k gS rks ftyk dek.MsUV izdj.k ij lE;d tkWp djrs gq, viuh laLrqfr lfgr izLrko ,d ekg esa gksexkM~Zl eq[;ky; dks miyC/k djk;xsaA egklekns"Vk gksexkM~Zl foHkkx ;FkklaHko ,d ekg es mijksDr vk/kkj ij fu.kZ; ysrs gq, vxzsrj dk;Zokgh lqfuf’pr djsaxsA** The last para quoted above directs for consideration of earlier cases and accordingly, prayer of the counsel for the appellants is to consider the case of the petitioners-appellants pursuant to the aforesaid.
We find substance in the argument because the order directs consideration of the earlier cases also thus, the order/circular dated 22nd October, 2020 would apply for consideration of the earlier cases in which writ petition has been preferred. Accordingly, this appeal needs consideration and accordingly, we find reasons to issue appropriate direction while not causing interference in the order of termination but setting aside the judgment of the Learned Single Judge with a direction to the respondents to consider the case of the petitioners-appellants in light of the order dated 22nd October, 2020 and pass order afresh in consonance to it within a period of one month from the date of receipt of the copy of this judgment. The petitioners-appellants would be conveyed the order passed now pursuant to this judgment.
With the aforesaid observation, special appeals are disposed of.
Order Date :- 24.8.2021 VMA (Anil Kumar Ojha, J.) (Munishwar Nath Bhandari, A.C.J.)