1

A.F.R.

Court No. - 40

Case :- WRIT - A No. - 30084 of 2003

Petitioner :- Rajveer Singh

Respondent :- State Of U.P. And Others

Counsel for Petitioner :- Madan Singh

Counsel for Respondent :- C.S.C.

Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Abhinava Upadhya,J.

Hon'ble Harsh Kumar,J.

Heard Sri S.B. Singh alongwith Sri Madan Singh

learned counsel appearing on behalf of the writ petitioner

Rajveer Singh and Sri M.C. Chaturvedi, learned

Additional Advocate General alongwith Sri J.N. Maurya

Chief Standing Counsel Ist for the State.

This reference arises out of the two questions

framed by a learned Single Judge in Writ Petition No.

30084 of 2003 (Rajveer Singh Vs. State of U.P. &

Others) in relation to a stated conflict between two

Division Bench judgments of this Court, namely, that of

Riasat Ali Vs. State of U.P. 2003 (4) AWC 3046 and an

unreported judgment of another Division Bench in the

case of Ram Kumar Vs. State of U.P. Special Appeal

No. 143 of 2012 decided on 5

th

April, 2012.

The learned Single Judge upon having entertained

the writ petition was of the opinion that there arises a

2

conflict between the above two judgments and further

the ratio of the other Division Bench in the case of Ram

Kumar Vs. State of U.P. & Anothers did not lay down the

correct law. The questions framed by the learned Single

Judge to be considered by the Full Bench are as

follows:-

“(1). Whether Division Bench

judgment in Riasat Ali Vs. State of

U.P. 2003 (4) AWC 3046 holding that

a Home Guard under U.P. Home Guards

Act, 1963 is not holder of a civil

post in view of expression to

Section 10 is correct or Division

Bench judgment in Special Appeal No.

143 of 2012 (Ram Kumar Vs. State of

U.P. & Others) relying on Full Bench

judgment in Sheela Devi & Another

Vs. State of U.P. & Others 2010

All.C.J. 1371, which is a case

relating to Anganbari Karyakatri and

Supreme Court's judgment in Davinder

Singh & Others Vs. State of Punjab &

Others 2010 (13) SCC 88 which is in

the context of Punjab Home Guards

Act, 1947 and Punjab Home Guards and

Civil Defence (Field) Class III

Service Rules, 1983 holding that

Home Guard is a holder of civil

post, is correct.

(2)Whether Division Bench in Ram

Kumar Vs. State of U.P. and others

(supra) has rightly held that Home

Guard in State of U.P. governed by

U.P. Home Guards Act, 1963 is not

holder of a civil post disagreeing

with the earlier Division Bench

judgment in Riasat Ali Vs. State of

U.P. (supra) and relying on Full

Bench judgment in Sheela Devi and

another Vs. State of U.P. and others

2010 All.C.J. 1371 relating to

Anganbari Karyakatri and Supreme

Court's judgment in Davinder Singh

and others Vs. State of Punjab and

others (supra) which was not in

relation to U.P. Home Guards Act,

1963, without referring the matter

3

to Larger Bench?”

In order to understand the controversy, it would be

apt to refer to the U.P. Home Guards Act, 1963 where

the concept of enrollment of home guards was

introduced. It is an Act that was promulgated to raise a

Volunteer Force for aiding the State Police Services as

an auxiliary force. The said Act defines Home Guard

under Section 2(e) as a person who is enrolled as such

and includes as officer appointed under the Act. Section

2(g) defines the word “prescribed” to mean as the Rules

framed under the Act. Section 2(j) defines service under

the State to mean a service under the State as defined in

Article 12 of the Constitution of India and includes

service under any statutory corporation. The functions of

Home Guards have been enumerated in Section 4 of the

Act followed by the provisions of Section 6 which provide

for superintendence and administration of such home

guards appointed under the Act. The prescription for

enrollment is provided for under Section 7 which is

extracted hereinunder:-

“7. Enrolment etc. - (1) Subject to

such conditions as may be prescribed,

any person desiring to be enrolled as

home guards 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

4

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.”

Upon enrollment and subject to the provisions of

the Act and Rules made thereunder the District

Magistrate has been empowered to call for any home

guard attached to a unit posted in the district for duty in

any area within the district. The Commandant General or

such officers of the home guards have been authorized

to call for any home guard for duty in any part of the

State or even outside the State.

Then comes the prescription of powers, privileges

and protection of home guards. The performance of a

duty by a Home Guard is clearly protected under Sub-

Section (2) of Section 9 through a statutory protection to

the effect that no prosecution shall be instituted against a

Home Guard in respect of anything or purported to be

done by him in the discharge of his duty as a Home

Guard except with the previous sanction of the District

Magistrate. This provision has to be read with Section 10

which is the most important provision and calls for

consideration by this Court. Home Guards under the said

section have been defined to be a public servant within

the meaning of Section 21 of the Indian Penal Code. The

explanation added to Section 10 states “A Home Guard

shall not be deemed to be a holder of a civil post

5

merely by reason of his enrollment as home guard”.

A Home Guard upon being enrolled and subject to

any Rules made in this regard is bound to serve in any

unit of the Home Guards to which he is for the time being

attached.

It is here that one has to refer back to Section 7

where enrollment can be opted for by any applicant

whether he is in private service or in any service under

the State. The application has to be made in the

prescribed form whereafter the formal enrollment takes

place. The initial period for engagement is prescribed as

three years under Sub-Section (2) of Section 11 which is

extendable with the consent of the employer in the

prescribed manner. Then comes the compulsion part

attached to the rendering of such volunteer service under

Sub-Section (3) of Section 11 which prescribes that

every home guard shall be liable to serve when called

out in the prescribed manner for duty in any part of the

State. Rendering of service outside the State would be

subject to the consent of the home guard. The home

guard would be entitled to payment of such allowances

as may be prescribed and they shall be called out to

serve only for part time duty. The discharge, suspension

and resignation of a home guard is provided for under

Section 12 and penalties on account of non failure of

reporting on duty are provided for under Section 13.

There are other liabilities also arising out of non

performance of duty including criminal liability with which

we are not presently concerned.

6

It is in this background that the State Government

has been empowered to make Regulations and Rules for

carrying out the purpose of this Act in order to give effect

to the provisions of the Act.

At this stage we may clarify that with regard to a

permanent establishment of home guards, the State

Government has framed the Uttar Pradesh Home Guard

Service Rules, 1982. The said Rules define the cadre of

service, namely, those who are appointed under the said

Rules and in accordance with the provisions thereunder.

One of the sources of recruitment is by direct recruitment

through an examination to be conducted by the Uttar

Pradesh Public Service Commission. The other is by

promotion from amongst the Subordinate Home Guard

Service Group C & D employees.

It is here that it is necessary to draw the distinction

between the two sets of establishment within the Home

Guards, namely, those who are engaged as volunteers

and enrolled in terms of Section 7 of the 1963 Act and

those who form part of the permanent establishment

under the 1982 Rules. It has to be kept in mind that

these two nature of engagements are entirely different

from each other, one under the 1982 Rules being

substantive in nature by way of selection and

appointment whereas that under Section 7 of the 1963

Act being voluntary and by way of an enlistment which is

to be carried out through as enrollment process as

prescribed thereunder.

In the present case, the dispute which has to be

7

resolved is confined only to such enlisted and enrolled

persons as per Section 7 of the 1963 Act. The judgment

which has been referred to by the learned Single Judge

on the basis whereof a conflict has been pointed out,

namely that of Riasat Ali Vs. State of U.P. 2003 (4)

AWC 3046, also refers to the 1982 Rules, but in our

opinion has not appropriately drawn the distinction

between the two sets of establishment, and therefore,

the question of applicability of 1982 Rules in the case of

such voluntary enrollment will not arise. To that extent

the judgment in the case of Riasat Ali Vs. State of U.P.

(supra) incorrectly refers to the said rules, inasmuch as,

in the case of Riasat Ali (supra) the issue was not

related to any engagement made under the 1982 Rules.

We now proceed to examine the nature of the

conflict which has been pointed out by the learned Single

Judge while framing the reference. The first question

which has been framed, is on the basis, as to whether a

home guard as enrolled under the 1963 Act under

Section 7 thereof is holder of a civil post or not, keeping

in view the explanation added to Section 10 of the Act.

On a close scrutiny, the provisions relating to

voluntary enlistment and enrollment under Section 7 of

the 1963 Act are clearly aimed at providing a

supplementary help and to act as an accessory to the

police forces of the State. One who gets enrolled, he

stands enlisted as a part-timer as per Section 11 of the

1963 Act. A Home Guard so enlisted is a Public Servant

as defined under Section 21 of the IPC and the acts

8

performed during duty are protected under Section 9(2)

of the 1963 Act. On enlistment, a Home Guard receives

a certificate of appointment as per Section 7(2) thereof. A

Home Guard is bound to serve whenever called upon to

perform duties. It is thus a performance of public duty by

someone who voluntarily applies for the same which is

subject to enrollment and then being called upon to

perform a prescribed duty. Dr. S.B. Singh, learned

counsel for the petitioner is therefore right in his

submission that the activity entrusted to an enlisted

Home Guard when he is called upon to perform the

same transforms his action into a public duty. A Home

Guard is liable to serve and in default is also subject to

penal action. There are provisions of suspension and

discharge from services. Payment of allowances is also

prescribed with liberty to resign. Viewing the nature of

the duties to be performed, a closer look at Section 4 of

the 1963 Act is necessary. The same is extracted

hereinunder:-

“4. Functions. - 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 service; and

(e) they will perform such other

duties, relating to any measure of

9

public welfare as may be prescribed.”

A perusal thereof indicates that even though

Section 3 of the Act describes the Uttar Pradesh Home

Guards as a volunteer force, yet their duties encompass

a substantial area of policing, emergency and essential

public services and other duties of importance as a

measure of public welfare.

The question is, who can be described as the

holder of a civil post. This would be obviously dependent

on the nature of engagement, employment or

appointment coupled with the nature of the services or

duties to be performed. In ordinary parlance, a person,

outside the defence services, engaged in the work of the

State is a civil servant and he is said to be in civil

service. As to who would be holder of a civil post, it

would be apt to quote paragraph no. 9 and paragraph

no. 10 of the judgment in the case of State of Assam

Vs. Kanak Chandra Dutta, AIR 1967 SC 834:-

“9. The question is whether a

Mauzadar is a person holding a civil

post under the State within Art.311

of the Constitution. There is no

formal definition of "post" and

"civil post". The sense in which they

are used in the Services Chapter of

Part XIV of the Constitution is

indicated by their context and

setting. A civil post is

distinguished in Art. 310 from a post

connected with defence; it is a post

on the civil as distinguished from

the defence side of the

administration, an employment in a

civil capacity under the Union or a

State.See marginal notet of Art.311.

In Art.311,a member of a civil

10

service of the Union or an all-India

service or a civil service of a State

is mentioned separately, and a civil

post means a post not connected with

defence outside the regular civil

services. A post is a service or

employment. A person holding a post

under a State is a person serving or

employed under the State. See the

marginal notes- to Arts. 309, 310 and

311. The heading and the subheading

of Part XIV and Chapter I emphasise

the element of service. There is a

relationship of master and servant

between the State and a person

holding a post under it. The

existence of this relationship is

indicated by the State's right to

select and appoint the holder of the

post, its right to suspend and

dismiss him, its right to control the

manner and method of his doing the

work and the payment by it of his

wages or remuneration. A relationship

of master and servant may be

established by the presence of all or

some of these indicia, in conjunction

with other circumstances and it is a

question of fact in each case whether

there is such a relation between the

State and the alleged holder of a

post.

10. In the context of Arts. 309,

310 and 311, a post denotes an

office. A person who holds a civil

post under a State holds "office"

during the pleasure of the Governor

of the State, except as expressly

provided by the Constitution. See

Art. 310. A post under the State is

an office or a position to which

duties in connection with the affairs

of the State are attached, an office

or a position to which a person is

appointed and which may exist apart

from and independently of the holder

of the post. Article 310(2)

contemplates that a post may be

abolished-and a person holding a post

may be required to vacate the post,

and it emphasises the idea of a post

existing apart from the holder of the

11

post. A post may be created before

the appointment or simultaneously

with it. A post is an employment, but

every employment is not a post. A

casual labourer is not the holder of

a post. A post under the State means

a post under the . administrative

control of the State. The State may

create or abolish the post and may

regulate the conditions of service of

persons appointed to the post.”

A learned Single Judge of this Court, following and

applying the said ratio, held that a company commander

engaged for a period of three years under Section 11(2)

of the U.P. Home Guards Act 1963 was holder of a civil

post. Paragraph nos. 10 to 13 of the said reported

decision in the case of Suraj Prasad Tiwari Vs. Zila

Commandant, Home Guards, Hamirpur Laws (All)

1998 (5) 107 = 1998 (3) AWC 1622 are extracted

hereinunder for ready reference:-

“10. In the backdrop of the above

legal position, now let us examine the

provisions of the Act to determine

whether a Company Commander in Home

Guard is the holder of a 'civil post'

within the meaning of Article 311 or

not. The preamble indicates that the

Act was brought into existence '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'. Section

2 (e) defines a 'Home Guard' to mean a

person who is enrolled as such, and

includes an officer appointed under

the Act. Section 4 enumerates the

functions of the Home Guards : they

are to serve as auxiliary to the

police, and, when required, help in

maintaining public order and internal

security ; to help the community in

air raids, fires, floods, epidemics

12

and other emergencies ; to function as

an emergency force for such special

tasks as may be prescribed ; to

provide functional units for essential

services and to perform such other

duties, relating to any measure of

public welfare as may be prescribed.

The Commandant-General of Home Guards

and other officers are to be appointed

by the State Government under Section

5 of the Act. Under Section 6, the

Superintendence of Home Guards vests

in and is exercised by the State

Government and the administration of

the Home Guards throughout the State

vests and is exercised by the

Commandant General and other officers.

In sub-section (3) of Section 6, it is

provided that 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. Section 7 deals with the

enrolment of the Home Guards, who

after the enrolment, receives 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. Under

Section 8, the District Magistrate or

the District Commandant have been

vested with the power to pass an order

to call out any Home Guard attached to

a unit posted in the district for duty

in any area within that district. The

Commandant General may call out any

Home Guard for duty in any part of the

State or outside the State. A

provision regarding powers, privileges

and protection of Home Guards has been

made under Section 9 of the Act. The

Home Guards have been given the

corresponding ranks in the police

force as may be subject to the

provisions of the Police Act, 1861- A

Home Guard cannot be prosecuted in

respect of anything done or purporting

to be done by him in the discharge of

13

his duty as a Home Guard, except with

the previous sanction of the District

Magistrate. Section 10, however, makes

a specific provision that though the

Home Guards are to be the public

servant, but they are not 'civil

servants'. The Explanation to Section

10 provides 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- Section 11

deals with the liability for service,

inasmuch as, a Home Guard shall be

bound to serve in any unit of the Home

Guards to which he is for the time

being attached and the initial period

during which a Home Guard may be

required to serve shall be three years

from the date of his enrolment. Every

Home Guard shall be liable to serve,

when called out in the prescribed

manner, for duty in any part of the

State, and the Home Guards called out

for duty may be paid such allowances

as may be prescribed. The Home Guards

may ordinarily be called out to serve

in the areas of their enrolment and

only for part time duty. Under Section

12 the Commandant-General or any other

officer prescribed in that behalf,

shall have the authority to discharge

or suspend any member of the Home

Guards in accordance with the rules

made in that behalf. If a Home Guard

falls to report himself when called

out for duty, or without sufficient

excuse, neglects or refuses to obey

any lawful order or direction of his

superior officer or other competent

authority, or falls to discharge his

function as a member of Home Guards

while on duty, or deserts his post, or

is guilty of cowardice or offers any

unwarranted personal violence to any

person in his custody, he is liable to

be prosecuted and punished under the

provisions of Section 13 of the Act.

11. A close examination of the

above provisions would make it

abundantly clear that a Home Guard is

employed by the State and is under its

direct administrative control. There

14

is no sphere of his employment and

work. such as, appointment, function,

duties, powers and privileges, which

is left untouched and uncontrolled by

the State Government. Due protection

has been provided which is available

to every public servant in the

performance of his public duty. The

primary function of a Home Guard is to

serve as auxiliary to the police in

times of emergency and for maintenance

of public order and Internal security.

There is, thus, complete control over

the work, function and duties of a

Home Guard. It is not that any person

who volunteers himself to work as Home

Guard may be enrolled. There has to be

scrutiny before making an appointment

or enrolling a Home Guard. The power

of suspension, termination or removal

vests in the State Government. A Home

Guard cannot disobey the orders of the

State Government or desert his duties.

In view of the various provisions

contained in the Act, the position of

a Home Guard is not that of a

volunteer but of a public servant as

has been specifically mentioned in

Section 1O and as the position flows

from the various other provisions of

the Act.

12. A little doubt is created by

the Explanation appended to Section 10

which provides that though a Home

Guard is a public servant, he is not

to be treated as holding a 'civil

post' merely because of his enrolment

under the Act. In Vibhuti Narain

Singh's case (supra), this aspect of

the matter was considered. It was

observed that the Explanation is of no

assistance in the determination of the

controversy. Section 10 appears to

have been enacted to Include a Home

Guard within the ambit of Section 21

of the Indian Penal Code. However, any

question under Article 311 of the

Constitution has to be determined with

reference to the connotation of these

words as appearing in the Constitution

itself. The meaning of a term as

appearing in the Constitution cannot

15

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,

therefore, in my view, cannot negate

the meaning of "civil post' as

contained in Article 311 of the

Constitution of India, merely because

a sweeping provision has been made 1n

the Act. In view of the various

decisions of the Supreme Court,

particularly that of Kanak Chand

Dutta's case (supra), all the relevant

considerations for determining a

'civil post' exist in the case of a

Home Guard enrolled under the Act. To

fortify the point it would not be out

of place to make a reference to a

decision reported in Sher Singh Malhan

v. State of M. P.. AIR 1955 Nag 175,

in which again a question was whether

a person holding rank of Deputy

Company Commandant, whose services

were terminated without complying with

the provisions of Article 311 of the

Constitution of India, is the holder

of a 'civil post' or not. The

petitioner, in that case, was governed

by C. P. and Barar Home Guards Act,

1947, the provisions of which are akin

to the provisions of the Act. In the

preamble, the C. P. and Barar Act was

passed to create a body of volunteers

to supplement police force and to

assist in any general measure of

public welfare in Madhya Pradesh. It

was held that there was no doubt that

the petitioner Sher Singh held 'civil

post' in the State and was entitled to

the protection under Article 311. The

fact that the present petitioner is

drawing only an honorarium of Rs. 100

per month and that he was required to

perform his duties on part time basis

as and when called upon, would not

make any difference in view of Kanak

16

Chand Dutta's case (supra). In Brojo

Gopal Sarkar v. Commissioner of

Police. AIR 1955 Cal 556, the Calcutta

High Court has held that a member of a

Special Police Force has the status of

a holder of 'civil post1, entitled to

the protection of Article 311.

13. In view of the above analysis

and placing reliance on the direct

decisions of this Court in Vibhutt

Naraln Slngh's case as well as in

Dashrath SinghParthar's case (supra),

I have no hesitation in recording a

finding that the petitioner, who is a

Company Commander, enrolled under the

Act. Is holding a 'civil post' and Is,

therefore, entitled to the protection

under Article 311 of the Constitution

of India.”

The aforesaid view was specifically reconsidered in

the reference before the Division Bench in the case of

Riasat Ali Vs. State (supra) and was overruled.

Paragraph nos. 18 to 21 and Paragraph nos. 27 to 35 of

the said decision are extracted hereinunder:-

“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'.

17

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.

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'

18

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

19

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.”

The Division Bench in the case of Riasat Ali

(supra) categorically referred to the explanation to

Section 10 and also observed that the question of vires

has not been raised nor it has been tested in any other

case. Therefore, so long as the said provision remains

on the statute book, the issue as to whether a home

20

guard is a civil post or not, is no longer in confusion. We

are entirely in agreement with the aforesaid proposition

of law laid down in the case of Riasat Ali, inasmuch as,

inspite of the observations by the Division Bench, there

is no challenge raised to the vires of the explanation

added to Section 10 of the Act referring to a home guard

as not being holder of a civil post. In the absence of any

such challenge raised, we do not find it necessary to

probe the matter any further and leave it at that stage

without prejudice to the rights of any person who may

choose to challenge the vires of the said provision in

any appropriate case, but so long as, the statute

contains the explanation added to Section 10, the view

taken by the Division Bench in the case of Riasat Ali

(supra) to that extent will continue to hold the field.

The first question, therefore, referred by the

learned Single Judge without there being any challenge

raised to the vires to the aforesaid explanation stands

answered accordingly.

Coming to the second question as to whether

home guard in the State is not holder of a civil post, we

do not find there to be any conflict in the two judgments,

the reference whereof has been made to us. The

Division Bench in the case of Ram Kumar Vs. State of

U.P, (supra) has nowhere held that a home guard is a

holder of a civil post. There is no final view expressing

conflict except for referring to certain decisions of the

Apex Court and the arguments raised in this regard on

behalf of either of the parties. We have been unable to

21

find out any ratio laid down therein so as to warrant any

inference of conflict and therefore the second question

as framed by the learned Single Judge practically does

not arise for any consideration.

Learned counsel for the petitioner has relied on the

following judgments to advance his submissions:- Smt.

Sheela Devi & Another Vs. State of U.P. & Others

2010 (5) ADJ 86 (FB); State of Gujarat & Another Vs.

Akshay Amrutlal Thakkar 2006 SCC (L&S) 290;

Davinder Singh & Others Vs. State of Punjab &

Others 2010 (13) SCC 88; Grah Rakshak, Home

Guards Welfare Association Vs. State of Himachal

Pradesh & Others 2015 (6) SCC 247; The State of

Assam & Others Vs. Kanak Chandra Dutta AIR 1967

SC 884.

The learned counsel to substantiate his submission

has also referred to the following Act and notification:-

Home Guards, Public Safety, Security of Property

Act 8 of 1947 and Government of Punjab

Department of Home Affairs and Justice Notification

dated 14

th

September, 1983.

Learned counsel on behalf of the State also relied

on a compilation of the same set of judgments coupled

with the notifications and the Rules that have been

referred to in the said judgments.

As we find that none of those judgments referred to

by the Apex Court had the occasion to examine the

provisions of the 1963 Act as presently involved, we do

not find it necessary to proceed to analyse the same

22

keeping in view the conclusions already drawn

hereinabove. The same may assume importance for an

aid to interpret the 1963 Act as and when the occasion

arises whenever a challenge to the vires is raised in any

appropriate case. The same would be only an academic

exercise at present.

We may however observe that one of the issues

that was dealt with in the case of Ram Kumar (supra)

was of the maintainability of a writ petition under Articles

226 and 227 of the Constitution of India in the event any

action is questioned being violative of Article 14 of the

Constitution of India or of any legal rights under the Act.

In this regard, we may point out that the Apex

Court in the case of A.K. Nag Vs. General Manager

(P.J.)Indian Oil Corporation Ltd, Haldia & Others

2005 (7) SCC 764 which is a three Judges decision had

the occasion to deal with a somewhat similar situation in

the case of an employee of the Indian Oil Corporation

where also the issue of the employee holding a civil post

and applicability of Article 311(2) of the Constitution of

India had been raised. The said decision answered the

question holding that an employee of the corporation

was not holder of a civil post. It however held that even

in such situations where the employee is claiming

protection of the audi alteram partem Rule, there cannot

be a straight jacket formula but if the action is

unreasonable or arbitrary then in that event the tenets of

Article 14 would be attracted and the same can be tested

on the anvil thereof for which the said decision further

23

ruled that a writ petition under Article 226 read with

Article 227 would be maintainable. A Home Guard as

observed above may for the time being be not holder of

a civil post, but there is a substantial statutory control of

the State administration under the 1963 Act.

Consequently, we do not find there to be any conflict on

this issue and once the law has been clarified by the

Apex Court we find that the judgment in the case of Ram

Kumar (supra) rightly holds that a writ petition would be

maintainable under Article 226/227 of the Constitution of

India in the event an action taken under the 1963 Act is

questioned.

In view of the two questions referred, having been

answered by us, let the judgment be now placed before

the learned Single Judge for proceeding further in the

matter.

Order Date :- 1.10.2018

S.Chaurasia