ABDUL BARI Vs. STATE OF U P

JUDGEMENT

(1.) The petitioner was a Platoon Commander in the Home Guard. His service was terminated by an order dated 7th March, 1996. This order is subject matter of challenge in this writ petition. Mr. Rajeshwri Sahai learned counsel for the petitioner contends that the petitioner was holding a civil post as has been held in the decision in the case of Suraj Prasad Tewari. Vs. Zila Commandar, Hamirpur (1998 (2) UPLBEC 1484). Therefore his service could not be terminated without giving an opportunity as has been held in the case of Jawed Ahmad. Vs. State of U.P. & others (1999(1) UPLBEC 655). On these grounds he prays that the writ petition be allowed and the impugned order be quashed.

(2.) Mr. K.R. Singh, learned Standing Counsel on the other hand contends that Section 12 of the U.P> Home Guard Adhiniyam, 1963 empowers an authority to terminate the petitioners service. He also contends that the petitioner did not hold the civil post in view of Section 10 of the said Act. He further contended that for the purpose of discharge or resignation of the petitioner, who was a volunteer and holding the post without any remuneration would not be equated with the same status which was involved in the decision in the case of Suraj Prasad Tewari (supra) and Jawed Ahmad and others (supra). He further contends that the Petitioner's service was terminated after holding an enquiry in which he had participated and as such sufficient opportunity was given to him. He further contends that the petitioner was a person who could not be retained in the force which is a disciplined one. On these grounds he contends that this writ petition should be dismissed. I have heard both the learned counsel at length

(3.) Section 10 of the U.P. Home Guards Adhiniyam, 1963 prescribes that the Home Guard would be deemed to be a public servant but not civil servant. He would be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code. The Explanation to Section 10 provides that a Home Guard would not be deemed to be a holder of civil post merely by reason of his enrolment as Home Guard. This question came to be interpreted in the decision in the case of Gulam Mohammad and others. Vs. State of U.P. nos. 29824 of 1992 and 27675 of 1992 disposed of on 23rd September, 1992 by a Division Bench comprising of the Hon'ble B.M.Lai and V.Bahuguna , JJ as their lordships then were. Relying on a Single Judge decision in the case of Abdul Hamid and another. Vs. State of U.P. in Civil Misc. Writ Petition no. 9028 of 1999 disposed of on 28th October, 1991 by Hon'ble S.C.Mathur, J as his lordship then was it was held that a Home Guard cannot compel the State Government or its officer to continue him on duty. The payment of honorarium to a Home Guard would not change the situation and cannot compel the State Government to continue him on duty. This very question was also dealt with in the decision in the case of Bibhuti Narain Singh. Vs. State of U.P. and another (1986 (2) UPLBEC 1130) But this judgment had taken a contrary view as has been taken in the case of Abdul Hamid (Supra) and Gulam Mohammad (supra) The decision in the case of Bibhuti Narain Singh was followed in the case of Dashrath Singh Parihar Vs.State of UP.(1997 (1) AWC 376). In the case of Bibhuti Narain Singh(Supra) and Dasrath Singh Parihar (Supra), this Court had taken the view that the post of Company Commandar is a civil post.