Allahabad High Court
Dheer Singh vs State Of U.P. And 4 Others on 9 September, 2021
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 6 Case :- WRIT - A No. - 8869 of 2021 Petitioner :- Dheer Singh Respondent :- State of U.P. And 4 Others Counsel for Petitioner :- Niraj Kumar Tripathi,Shailesh Verma Counsel for Respondent :- C.S.C. With Case :- WRIT - A No. - 8512 of 2021 Petitioner :- Kuldeep Kumar Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Niraj Kumar Tripathi,Shailesh Verma Counsel for Respondent :- C.S.C. With Case :- WRIT - A No. - 8867 of 2021 Petitioner :- Rajendra Kumar Verma Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Niraj Kumar Tripathi,Shailesh Verma Counsel for Respondent :- C.S.C. With Case :- WRIT - A No. - 8870 of 2021 Petitioner :- Ajay Pal Singh Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Niraj Kumar Tripathi,Shailesh Verma Counsel for Respondent :- C.S.C. Hon'ble Pankaj Bhatia,J.
1. Heard Shri Shailesh Verma and Shri M.M Sahai, Advocates for the petitioners and R.P. Dubey, learned Additional Chief Standing Counsel, Shri Vibhav Dutt, Standing Counsel, Mohd. Naushad Sidduqui, Standing Counsel, Shri Virendra Kumar Pal, Standing Counsel, Shri Ramesh Pundir, Standing Counsel, Shri Santosh Kumar, Standing Counsel and Shri Jitendra Kumar Singh, Standing Counsel for the State-respondents.
2. The issue raised in all the writ petitions are being decided by mean of this common judgment for the sake of convenience, the facts as mentioned in the case of Dheer Singh Vs. State of U.P. and others in Writ - A No.8869 of 2021 are being taken up. Individual cases will be dealt separately.
3. The present petition has been filed alleging that the petitioner was enrolled as a Home Guard in the year 1998 under Section 7 of the U. P. Home Guards Adhiniyam,1963 and in terms of mandate of section 8 of the Act was called upon to discharge of his duties, he was placed in various places in District Amroha, he was being paid honorarium as provided under the U.P. Home Guards Act, 1963.
4. Challenge in the present case is to the order dated 13.02.2019, whereby the services of the petitioners have been dispensed with mainly on the ground that the petitioners were involved in forming a Workers' Association. Name of four of the petitioners is mentioned in the order dated 13.02.2019, it was further mentioned that the said Act of forming an Association was not acceptable and the Commandant General, Home Guard Headquarters vide letters dated 02.09.2013 and 31.07.2013 had directed for dismissing the Association. It is further revealed that the news of formation of an Association by the petitioners was published in the Newspaper "Hindustan" and based on the said news the petitioners were served with a show cause notice dated 04.01.2019, to comply with the Principle of Natural Justice. In the impugned order, it is recorded that the petitioners did not file a reply and the said act of not filing the reply was itself recorded as an act of indiscipline. It further records that the petitioners had themselves admitted that they were not the member of the Association known as U.P. Home Guard Avaitnik Adhikari Avam Karmachari Association. It is recorded that the reply submitted by the petitioners was not considered to be appropriate and which established that the petitioners had associated themselves with the Association, which was an act of indiscipline. It is further recorded that the petitioners had earlier given an affidavit in September, 2011 swearing not to even take the name of the Association in future and had also apologized for the facts of associating with the Association and had prayed for mercy and had promised that they will not repeat the mistake again and despite the said affidavit, became a governing Member of the said Association, which is contrary to their common affidavit given earlier. It also records that Commandant General vide his letter dated 31.07.2017 had issued directions for dismissal of such employees and in pursuance to the said directions the services of the petitioners were dismissed. The said order was challenged before this Court.
5. Sri Shailesh Verma, learned counsel appearing on behalf of the petitioners argues that the order impugned is bad on following grounds:-
The said order is bad as no procedure as prescribed under the U.P. Home Guards Act, 1963, has been followed prior to passing of the said order. He argues that the post of the petitioners was a Civil Post and thus, it was incumbent upon the respondents to have complied with the mandate of Article 311 (2) of the Constitution of India. He further argues that the order is bad as the same has been passed under directives from the Commandant General and thus there is no application of mind of the authority passing the said. He further argues that the order is clearly against the rights of the petitioners enshrined under Article 19(1)(c) of the Constitution of India, which is a fundamental right of the petitioner to form an Association or Unions. He argues that no law in terms of Article 19(2) has been passed and an absence of a law under Article 19(2) the rights enshrined under Article 19(1) cannot be curtailed.
6. In response to the said arguments, Sri Mohd. Naushad Siddiqui, learned Standing Counsel argues that the post held by the petitioners cannot be termed to be a Civil Post as such the protection of Article 311 (2) of the Constitution of India is not available to the petitioners. He further argues that the orders impugned have been passed after complying with Principle of Natural Justice and giving adequate opportunity of hearing. He further argues that once petitioners had given an undertaking in the form of affidavit filed in the year 2011, acting against the same was wholly arbitrary and illegal and an act of indiscipline, for which the petitioners have been rightly punished. In support of his argument that post of the petitioners is not a Civil Post, he places reliance on Explanation to Section 10 of the 1963 Act. Lastly he submits that the writ petition is liable to be dismissed.
7. Learned counsel for the petitioners has placed reliance on the following judgments in support of his contention that the petitioners are holding of Civil Post, namely, Division Bench judgment of this Court in the case of State of U.P. and others Vs. Dasrath Singh Parihar and another, (2007 All. C.J. 1165). He places reliance on the judgment of this Court decided on 23.08.2018 in Writ - A No.15793 of 2018, (Chhaya Tripathi Vs. State of U.P. and others) and judgment dated 11.10.2018 passed in Writ - A No.16195 of 2005 (Om Beer Singh and another Vs. State of U.P. and others).
8. Counsel for the respondents on the other hand has placed reliance in Full Bench judgment dated 01.10.2018 passed in the case of Rajveer Singh Vs. State of U.P. and others; LAW(ALL) 2018 10 61. He further places reliance on the judgment of this Court in Writ - A No.60671 of 2016 (Harveer Singh Vs. State of U.P. and another. He further places reliance on the judgment of this Court dated 09.12.2020 passed in Writ - A No.145 of 2020 ( Ram Awadh Yadav Vs. State of U.P. and others) and Division Bench judgment of this Court in the case of Riasat Ali Vs. State of U.P. and others, reported in 2003 (4) AWC 3046. Further he placed reliance on the judgment dated 06.10.2010 passed in Special Appeal Defective No.904 of 2010 (Roop Chand Vs. State of U.P. and others) and the judgment of this Court passed in the case of Arun Kumar Shukla Vs. State of U.P. and others, 2018 (2) ADJ 353.
9. In the light of the submissions, the first question to be decided is whether the post held by the petitioners can be considered to be holders of a "Civil Post" in the light of the judgments relied upon and quoted above.
10. Before deciding the question, the Act namely, the Home Guard Adhiniyam is being briefly discussed. The Act came into force on 30th December, 1963 and was promulgated for constituting a force for utilizing its services for duties in times of emergency and for serving as an auxiliary to the police for the maintenance of law and order. The constitution of the Home Guard is provided under Section 3, which provides for raising and maintaining a volunteer force to be called of the Home Guards and the functions to be performed are specified in Section 4. The superintendence of the administration of the said Home Guards is provided for in Section 6 and is to be done by the State Government through the Commandant General. Section 7 provides for the manner of enrolment of the volunteers and Section 8 confers the powers on the District Magistrate or the District Commandant or the Commandant General to call of the said enrolled persons for performing the duties and functions as specified in Section 4 of the said Act. Section 10 provides that the Home Guard acting in discharge of the functions under the Act shall be deemed to be a public servant within the meaning of Section 21 of the IPC. The liabilities placed upon the Home Guards enrolled are laid down under Section 11, which bind the Home Guards for serving in any unit of the Home Guard, in which he is attached and the initial period required to be served is three years from the date of his enrolment, which can be extended. The procedure with regard to the discharge, suspension and designation are laid under Section 12 and the penalties that can be imposed on the said Home Guards are provided for under Section 13.
11. The State Government is empowered to make Rules and Regulations for carrying out the performances of the said Act. Since the passing of the said Act and the passage of time, the utility of the persons enrolled under the Home Guards has continued and in terms of the mandate of Section 8, they have been called to perform the duties. It is also to be borne in mind that the State Government has framed rules for governing the services of Group-A and Group-B post holders of Home Guards, their manner of recruitment, the terms and conditions of their services. Although, no rules have been framed for Group-C and Group-D, however, they are entitled to be absorbed/promoted to Group-B and a quota for promotion is also fixed in the rules provided for recruitment of Group-A and Group-B.
12. The State Government has issued the Government Orders providing for manner of enrolment of the Home Guards, providing for their eligibility criteria, the age ,physical abilities, as well as the other eligibility conditions and whole process of selection is provided for in the Government Order No. 1549/Chhah Naasu-11-32 Hoga/11, dated 1st September, 2011. Prior to the said, the Government Order No. 2099/Chhah Naasu-10-438 Hoga/07, dated 6st September, 2010 was issued providing for the manner of recruitment and in fact a Committee also has been constituted for making said selections. It further provides for awarding marks obtained on various parameters.
13. Several welfare measures have been taken by the State Government such as providing for compassionate appointment to the dependents of the Home Guards, who die while in harness or are incapacitated while performing their duties, vide Government Order No. 2013/Chhah Naasu-12-188 Hoga/06, dated 27th September, 2012. The rules with regard to the recruitment on the vacant posts of Home Guards have further been amended by Government Order No. 3089/95-15-08 Prakeerna/1, dated 12th January, 2016.
14. It is also to be noticed that the salary/wages to the Home Guards are paid out of the Sate funds and it term of their appointment also continues for years, thus from the Act and the various Government Orders and the Rules, what is clear is that power of appointment and selection vests with the State, which is exercised though its Officers. The person selected and enrolled is subordinate to a public servant and he receives the salary/wages on a monthly basis, there exists the relationship of master and servant and he performs duties in connection with the affairs of the State.
15. Before deciding the nature of the post it is essential to note that, this Court was confronted with this question way back in the year 1986 in the case of Bibhuti Narain Singh Vs. State and others reported in 1986 UPLBEC 1130, a Single Judge of this Court held that the post held by the Home Guards to be a Civil Post, whereas, another Single Judge of this Court while deciding Writ Petition No.9028 of 1990 (Abdul Hameed and another Vs. State of U.P. and another) vide judgment dated 28.10.1991 held that the post was not a "Civil Post". In view of the conflicting decision, the matter was referred before the Division Bench which decided the issue in judgment delivered in case of Riasat Ali vs State 2003(4) AWC 3046, holding that the Home Guards under the Act and Rules did not hold a Civil Post. The said judgment was followed by this Court in the Case of Roop Chand Vs. State of U.P. (supra). While delivering the judgment in the case of Roop Chand (supra), the Court also agreed with the view taken in the case of Riasat Ali (supra) nevertheless dismissed the writ petition holding that the right of appeal is available under the Rules. The judgment in the case of Arun Kumar Shukla (supra) relied upon by the respondent did not decide the issue of the question whether the post held by the petitioner is a Civil Post or not, the same as such the same is not being considered. The judgment of this Court passed in the case of Hriday Narayan Yadav Vs. State of U.P. and others (Writ - A No.19141 of 2019) placing reliance in the case of Riasat Ali Vs. State of U.P. held that it is still good law and the protection under Article 311 of the Constitution of India was not available to the Home Guards.
16. The Division Bench of this Court in the case of State of U.P. and others Vs. Dasrath Singh Parihar and another (supra), was confronted with the said issue as to whether the Home Guards held the post which can be said to be a Civil Post enjoying the protection available under Article 311 of the Constitution of India or not. The said Division Bench considered the judgments of the Single Judges as well as the judgment in the case of Riasat Ali (supra) as also the judgment of Supreme Court in the case of State of U.P. Vs. Chandra Prakash Pandey and others, reported in JT 2001 (4) SC 145. After considering the entire gamut of case laws did not agree with the reasoning given in the case of Riasat Ali (supra) and recorded its opinion as under:-
"20. Therefore, in our opinion, by mere enrolment, a Home Guard will not hold a civil post but once a Home Guard is called for duty under Section 8 of the Act, he will be holding a civil post. The view, which we are taking, is further supported by the provisions of the Rules, which have been framed by the Governor exercising the powers conferred by the proviso to Article 309 of the Constitution. Rule 2 which deals with the status of service clearly mentions that the Uttar Pradesh Home Guard Service is a State Service comprising group ''B' post."
17. In the said judgment, the Division Bench also considered as to whether the matter should be referred to a Larger Bench or not, in view of the earlier judgment in case of Riasat Ali (supra), the Division Bench did not refer the matter to the Larger Bench and the reasons for not doing so were recorded as under:-
"22. A further question may arise that in spite of our irresistible conclusion that the respondent was a holder of civil post should we refer this matter to a larger Bench in view of the fact that Riasat Ali (supra), however, held otherwise.
23. While coming to the conclusion that the respondent was holding a civil post, we had followed the decision of the Supreme Court in State of U.P. Vs. Chandra Prakash Pandey and others JT 2001 (4) S.C.145 and explained the Division Bench decision of this Court in Riasat Ali (Supra) in which paragraph 18 of the judgment clearly states that though the Home Guards may have the incident of the civil post, they cannot be treated as such only because of the explanation attached to Section 10 of the Act. We, therefore, do not think that any reference is required to be made in the present case to a larger Bench.
For the reasons stated above, we are, therefore, in complete agreement with the views expressed by the learned Judge. The Special Appeal is, therefore, liable to be dismissed and is, accordingly, dismissed. There shall be no order as to costs."
18. It may not be out of place to mention that the division bench in clear terms held that Home Guard merely by enrolment does not hold a Civil Post, however, once he is called for performing duty under Section 8 of the Act, he will be holding a Civil Post, the court discussed the individual case of Dasrath Singh Parihar to hold that he was a Company Commandant and thus he was entitled to protection under Article 311 of the Constitution of India.
19. Counsel for the Petitioner argues that the Rules framed by the State known as U.P. Home Guard Service Rules 1982, referred to para 20 of the judgment in the case of Dasrath Singh Parihar (supra), are the Rules, which has been framed only in respect of Class A and Class B. Officers which are specified and not in the case of Home Guards for which admittedly no rules have been framed,however,they still would be entitled to protection under article 311.
20. An analysis of the judgment of this Court in the case of Dasrath Singh Parihar (supra) specially para 20 thereof makes it clear that it is divided into two parts,the Court after holding that once the Home Guards are enrolled, they would not be holding the Civil Post, unless they are assigned the works or duties under Section 8 of the Act and once they are assigned the duties, the post held by them would clearly be a Civil Post. 21. The observations made in second part of paragraph no 20 of the said judgment only fortifies or justifies the first part by holding that the view can be fortified by the Rules. He thus argues, even if no Rules have been framed with regard to the petitioners, it cannot be said that the first part of the finding of this Court as recorded in para 20 would not apply.
22. He also argues that once this Court has clarified and taken a view after considering the judgment in the case of Riasat Ali (supra) and following the Supreme Court Judgment, the legal position merits very clearly that the Home Guards, on there being assigned the duties would qualify to be a Civil Post.
23. The judgment in the case of Hriday Narayan Yadav (supra) does not take notice of the judgment of this Court in case of Dasrath Singh Parihar (supra) and thus cannot be termed a binding precedent similarly the judgment of this Court in the case of Roop Chand (supra) does not notice the judgment in the case of Dasrath Singh Parihar (supra) and as such cannot be termed as binding precedent.
24. Coming to the Full Bench judgment of this Court in the case of Rajveer Singh (Supra), cited by the Standing Counsel to argue that in view of the explanation added to Section 10, the Full Bench has held that the post hold by the Home Guard is not a civil post. The said argument merits rejection inasmuch as the question referred before the Full Bench was as under:-
"(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."
25. The Full Bench considered the scope of the U.P. Home Guards Act and discussed the concept of enrolment of the Home Guard of the State. It interpreted that Home Guard defined under Section 2 (e) of the said Act It further proceeded to discuss Section 7 of the said Act, which provides for the manner of enrolment as a Home Guard.
26. The Full bench proceeded to examine the issue after noticing the nature of conflict pointed out by learned single judge by observing as under:-
"13. 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."
27. The Court further interpreted the distinction between the two sets of establishment within the Home Guards namely, those who are engaged as volunteer and enrolled in terms of Section 7 of the Act and those who form a part of the permanent establishment under the 1982 Rules. The Court observed in para 11 as under:-
"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."
28. The most important part referred to in the Full Bench judgment is contained in paragraph 12, which is a under:-
"In the present case, the dispute which has to be 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."
29. In the light of the said, the Court proceeded to consider the status of the persons enrolled under Section 7 of the said Act and proceeded to hold that the view taken by the Division Bench in the case of Riasat Ali (supra) was affirmed in view of the explanation attached to Section 10.
30. The question whether the persons, who were called for performance of their duties under Section 8 would be the holders of civil post or not ,was neither considered nor decided by the Full Bench.
31. At this juncture, it becomes imperative to notice, as also noticed by the Full Bench, there are two sets of persons who are covered under the scope of U.P. Home Guards Act, 1963, one being the persons who are only enrolled by virtue of Section 7 of the said Act and the second would be the employees who are called for performance of duties as specified and elaborated under Section 8 of the said Act. Section 7 and Section 8 of the said Act are being reproduced:-
"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 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. Calling out of Home Guards.- Subject to the provisions of this Act and the rule made thereunder-
(a) [the District Magistrate or the District Commandant] may by order call out any home guard 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."
32. This Court in the case of Dasrath Singh Parihar (supra) had also noticed the said distinction in between two class of employees, one being only enrolled as Home Guards covered under section 7 and the second being the persons, who were called to perform duties in terms of the provisions of Section 8 and after noticing the said distinction, proceeded to hold that the persons, who are called for performance of duties under Section 8 would be holders of "civil post".
33. The Standing Counsel has laid much emphasis on the explanation to Section 10 of the said Act. Section 10 of the said Act is being quoted hereinunder:-
"10. Home Guards to be public servants but not civil servants. - 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 guards."
34. Section 10 on its plain reading provides that a Home Guard acting and discharging of his function shall be deemed to be a public servant within the meaning of Section 21 of the IPC and enjoyed the protections and powers as conferred by Section 21 of the IPC. The explanation only clarifies the section to the extent that a Home Guard will not be holder of a civil post merely by the "reasons of his enrolment" as Home Guards. Thus on a plain interpretation of the provisions of Section 10, it is clear that persons enrolled under Section 7 will not be deemed to be public servant within the meaning of Section 21 of the IPC and would not also be holder of a civil post, whereas once they called for performance of duties under Section 8, they would enjoy the protection of Section 21 of the IPC and the explanation would not be applicable to them as they are not merely enrolled but are performing the duties when called upon under Section 8 of the said Act.
35. The concept of holder of a civil post has its genesis from Article 311 of the Constitution of India, which came up for interpretation in the case of State of Assam and others Vs. Shri Kanak Chandra Dutta, AIR 1967 SC 884, wherein the Supreme Court laid down the parameters to determine whether the duties performed by a person can be described as civil post so as to enjoy the protection under Article 311 of the Constitution of India. Paragraphs 9 and 10 of the said judgment are being quoted hereinbelow:-
"9. The question is whether a Mauzadar is a person holding a civil post under the State within Article 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 Article 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 note to of Article 311. In Article 311, a member of a civil 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 Articles 309, 310 and 311. The heading and the sub-heading 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 Articles 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 Article 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 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."
36. The judgment of the Supreme Court in the case of State of Assam Vs. Kanak Chandra Dutta (Supra), was considered and explained in the subsequent judgment of the Supreme Court in the case of State of Karnataka and others Vs. Ameerbi and others; (2007) 11 SCC 681, wherein the Supreme Court noticing the law laid down in the case of State of Assam Vs. Kanak Chandra Dutta (Supra), explained it as under:-
"19. Applying the said principes of law, it was held that a Mauzadar holds a civil post under the State as: (i) the State has the power and the right to select and appoint him; (ii) he is subordinate to public servant; (iii) he receives remuneration by way of a commission and sometimes a salary; (iv) there exists a relationship of master and servant; (v) he holds an office on the revenue side of the administration to which specific and onerous duties in connection with the affairs of the State are attached; (vi) the office falls vacant on the death or removal of the incumbent; (vii) he is responsible officer exercising delegated powers of the Government; (viii) he is appointed Revenue Officer."
37. The said judgment of the Supreme Court in the case of State of Assam Vs. Kanak Chandra Dutta (Supra) was also considered by the Supreme Court in the case of State of U.P. Vs. Chandra Prakash Pandey; 2001 AIR (SC) 1298, wherein after noticing the various judgments refered to and in paragraph 27 of the judgment referring to judgment of the Supreme Court in the case of State of Gujarat and Another Vs. Raman Lal Keshav Lal Soni and others; 1983(2) SCC 33 observed as under
"12. In the case of State of Gujarat v. Raman Lal Keshav Lal Soni [(1983) 2 SCC 33 : 1983 SCC (L&S) 231] again a Constitution Bench of this Court was considering the question as to whether the Panchayat service constituted under Section 203 of the Gujarat Panchayats Act, 1962 was a civil service of the State and the members of the service were government servants. The Court after due consideration enumerated the following indicia for deciding whether a particular person is a member of civil service of the State and a government servant in para 27 which runs thus: (SCC p. 49) "We do not propose and indeed it is neither politic nor possible to lay down any definitive test to determine when a person may be said to hold a civil post under the Government. Several factors may indicate the relationship of master and servant. None may be conclusive. On the other hand, no single factor may be considered absolutely essential. The presence of all or some of the factors, such as, the right to select for appointment, the right to appoint, the right to terminate the employment, the right to take other disciplinary action, the right to prescribe the conditions of service, the nature of the duties performed by the employee, the right to control the employee's manner and method of the work, the right to issue directions and the right to determine and the source from which wages or salary are paid and a host of such circumstances, may have to be considered to determine the existence of the relationship of master and servant. In each case, it is a question of fact whether a person is a servant of the State or not."
(emphasis added)"
38. The Standing Counsel lays emphasis on the explanation to Section 10 to argue that even the persons who are called on to perform their duties under Section 8 would not be holders of the civil post. The said contention has to be negated in view of the judgment of the Supreme Court in the case of State of Assam Vs. Kanak Chandra Dutta (Supra), which laid down the manner, in which the post has to be interpreted to be a civil post. Once the factors as laid down by the Supreme Court are existent, the nature of the post has to be determined with reference to the meaning and the nature of duties performed by such persons,the relationship with the state and the administrative control of the state. Even otherwise, the benefit of Article 311 cannot be controlled or whittled down by the statutory enactment by the State.
39. In the present case, the explanation to Section 10 does not in any way whittle down the benefits of Article 311, which flow in favour of the persons, who are performing the duties under Section 8 of the said Act, as it very clearly lays down that it applies only in the case of the personnel, who are enrolled under Section 7. If the intent of the State while enacting the said Act was to exclude even the persons who are performing the duties under Section 8 to be not holder of a civil post, the legislature would have provided so (it is another question whether the legislature could have done that to wipe away the benefits of a constitutional provision).
40. In view of the legal principles of determining the nature of the post as laid down in case of State of Assam Vs. Kanak Chandra Dutta (Supra), and explained in State of Karnataka and others Vs. Ameerbi and others read with the scheme of the Act and the nature of state control as discussed in the foregoing paragraphs and following the judgment of this Court in the case of Dasrath Singh Parihar (Supra), I have no hesitation in holding that any personnel enrolled under section 7 of the Home Guards Act will not be a holder of Civil Post and will not enjoy any protection available under Article 311 of The Constitution of India but as soon as he is called to perform any duty under Section 8 of the Act he will become holder of a Civil Post and will enjoy the protection of Article 311 of The Constitution of India .
41. As admittedly no service rules have been framed except for class A and B post holders ,the state is advised to take steps for framing the rules ,however, till such rules are framed all action in respect of services of the Home Guards who are called upon to perform duties under Section 8 will have to be in conformity with Article 311
42. In view of my coming to the conclusion as recorded above, I proceed to examine the individual cases on the facts of each case .
Writ-A No. 8869 of 2021 (Dheer Singh vs State of U.P. And 4 Others) Writ-A No. 8512 of 2021 (Kuldeep Kumar vs State Of U.P. And 4 Others) Writ-A No. 8867 of 2021 (Rajendra Kumar Verma vs State Of U.P. And 4 Others) Writ-A No. 8870 of 2021 (Ajay Pal Singh vs State Of U.P. And 4 Others)
43. In all the above cases , the ground taken for dismissing the services, are only that the petitioners have engaged in formation of an association.
44. The said cannot be justified for reasons:
As the petitioners were performing duties in terms of Section 8 of the Act and were thus holding a "civil post" and as no procedure has been followed prior to their termination vide the impugned orders dated 13.2.2019 the same is clearly in violation of Article 311 and thus bad in law. The termination order in these cases is further bad as it is reasoned on the ground of petitioners forming an association is also not sustainable as Article 19(1) (c) confers a fundamental right on every citizen to form Union/Association or Co-operative Society which right can only be circumcised by framing a law as prescribed under Article 19 (2) of the Constitution of India. Admittedly, no such law has been framed by the State. Needless to say that the law as referred to be Article 19 (2) would have to be a ''law' as provided under Article 13 (3) of the Constitution of India. Even otherwise, the order dated 2.9.2013 and 31.7.2013 restraining the formation of an Association cannot be termed as 'reasonable restriction by law' as required under Article 19 (2) of the Constitution of India, further even if, for the sake of arguments the orders issued restraining the formation of Association be considered as a law in terms of Article 13 (3) of the Constitution of India, the same is also clearly in violation of Article 14 of the Constitution of India as there appears to be no justification for placing the restriction for forming an Association.
45. In view of the findings as recorded above and agreeing with the submissions made by counsel for the petitioners, the petitions deserve to be allowed. The orders impugned are set aside with directions that the petitioners shall be permitted to continue and shall be paid their salary/wages to which they were entitled prior to dismissal in accordance with law.
46. The writ petition stands allowed in terms of the said. As regards the arrears, I am not inclined to pay the same on the basis of "no work no pay".
47. I record my appreciation for the assistance given by Shri Hritudhwaj Pratap Sahi, Advocate to assist this Court on the question of scope of civil post in respect of the duties performed by the petitioner.
Order Date :- 9.9.2021 Atul/S. Rahman