Heard learned Counsel for the petitioner and the learned Standing Counsel.
Being aggrieved by the order dated 19.5.2009 passed by the District Commandant, Home Guards, Pratapgarh, petitioner has filed this writ petition inter-alia on the ground that impugned order of termination has been passed without issuing show cause notice, although the petitioner has put in more than three decades of service; and secondly prior to passing of the impugned order, no disciplinary proceedings were initiated.
Standing Counsel raised a preliminary objection that the post of Home Guard is not a civil post and as such the protection available under Article 311 of the Constitution are not available to the Home Guards.
Services of the Home Guards are governed by U.P. Home Guards Adhiniyam, 1963 and U.P. Home Guard Service Rules, 1982, Group 'Ga'. . Section 10 of the Adhiniyam says that a home guard shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code. However, the explanation attached to the said section provides that a home guard shall not be deemed to be a holder of a civil post merely by reasons of his enrollment as home guard.
A Division Bench of this court in Riasat Ali vs. State of U.P. [2003(21) LCD 1192, to whom a question was referred by the Hon'ble Chief Justice was " whether a person enrolled as Home Guard under U.P. Home Guards Act, 1963, as amended by the Act 2 NO. 4 of 1972, holds a 'civil post'?
The Division Bench held in paragraph as under:-
"... we have not doubt that so long as explanation attached to Section 10 of the Act continues on the statute, evern 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 others vs. Kanak Chand, AIR 1967 SC 884, the statutory declaration that post of Home Guard is not a civil post, cannot be ignore. The said statutory provision ( Explanation to Section 10 of the Act0 has to be given purposeful meaning and to be duly honoured."
Counsel for the petitioner has failed to point out any other case law in which a different view has been taken or the view expressed in the aforesaid case has been upset by the Full Bench or by the Supreme Court.
In view of above legal proposition, the writ petition fails and is hereby dismissed.
29.1.2010 lakshman