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2012 DIGILAW 832 (ALL)

Ram Kumar v. State of U. P. and Others

2012-04-05

UMA NATH SINGH, VIRENDRA KUMAR DIXIT

body2012
Order (Oral);— We have heard learned counsel for parties and perused the pleadings of Special Appeal. This Special Appeal has been filed to assail the judgment and order dated 22.02.2012, passed by learned Single Judge whereby the writ petition of the appellant has been dismissed while holding that appellant's appointment was temporary and a type of ad hoc engagement, and further that in view of the explanation attached to Section 10 of the U.P. Home Guards Act, 1963 (for short "the 1963 Act"), appellant's claim for regularisation cannot be accepted which is said to have not been in issue. Learned counsel for appellant submitted that the entire thrust of the impugned order is directed towards discussion on the right of appellant to file writ petition under Articles 226 and 227 of the Constitution of India being an Officer of the U.P. Home Guards which is not a civil post as per the provisions of U.P. Home Guards Act, 1963. Learned Single Judge has, in particular, laid great emphasis on explanation to Section 10 of the Act for denying the relief. Learned counsel referred to two judgments, namely, (i) rendered by a Full Bench of this Court in Sheela Devi and another vs. State of U.P. and others (2010 All. C.J. 1371) and (ii) the one passed by Hon'ble the Apex Court in the matter of a Home Guard personnel of State of Punjab in Ghulam Qadir vs. Special Tribunal and others, (2002) 1 SCC 33 , in support of his contention that irrespective of the fact of not holding a civil post, appellant would be entitled to invoke the provisions of Articles 226 and 227 of the Constitution, in case of grievance arising out of breach of any fundamental and legal right as a member of U.P. Home Guards. Thus, learned counsel prayed for remand of this matter for a fresh consideration on merit by the learned Single Judge. Learned State Counsel also does not have any objection to the prayer for remand being allowed. On careful consideration of the aforesaid submissions, we are of the view that with the expansion of scope of writ jurisdiction, it would be difficult to subscribe to the view taken by learned Single Judge. Section 10 of the 1963 Act provides that the Home Guards are public servants and the explanation attached to this Section clarifies that they do not hold the civil posts. Section 10 of the 1963 Act provides that the Home Guards are public servants and the explanation attached to this Section clarifies that they do not hold the civil posts. Provisions of Section 10 and the explanation attached thereto are reproduced as: "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. In a judgment of Division Bench of this Court sitting at Allahabad in the matter of Riasat Ali v. State of U.P., (2003)4 AWC 3046 at 3054 (All) (DB), it has been held that the duties performed by Home Guard personnel under the 1963 Act have all the features of a civil post still they have been deprived of the status of civil posts and thus have also been denied the protection available under Article 311 of the Constitution of India. Now, the question that arises for our consideration is as to whether a member of U.P. Home Guards, despite performing the duties under the 1963 Act and the U.P. Home Guards Service Rules, 1982 (for short, 'the 1982 Rules'), having almost all the attributes of a civil post should be deprived of rights to seek relief for enforcement of their legal rights against the State Authorities by invoking the provisions of Articles 226 and 227 of the Constitution. The full Bench of this Court in the matter of Sheela Devi and another (Supra) while dealing with the issue in hand has followed the judgment rendered in the case of Ghulam Qadir (Supra) and held as: "In view of the aforesaid facts and circumstances, we answer the question referred to us in favour of the appellants/petitioners and hold that the Anganwadi workers though appointed under a scheme of the government notwithstanding that they are not holders of civil posts are entitle to invoke the writ jurisdiction under Article 226 of the Constitution against the order terminating their services passed by the CDPO, a government functionary on grounds permissible for judicial review." In the judgment of Ghulam Qadir's case, Hon'ble the Supreme Court has taken the following view: "There is no dispute regarding legal proposition that the rights under Article 226 of the Constitution of India can be enforced only by an aggrieved person except in the case where the writ prayed for is for habeas corpus or quo warranto. Another exception in the general rule is the filing of a writ petition in public interest. The existence of the legal right of the petitioner which is alleged to have been violated is the foundation for invoking the jurisdiction of the High Court the aforesaid article. The orthodox rule of interpretation regarding the locus standi of a person to reach the Court has undergone a sea change with the development of constitutional law in our country and the constitutional Courts have been adopting a liberal approach in dealing with the cases or dislodging the claim of a litigant merely on hyper-technical grounds." That apart, a recent judgment of Hon'ble the Apex Court reported in (2010) 13 SCC 88 (Davinder Singh and others vs. State of Punjab and others) also appears to support the contentions of learned counsel for appellant. In that matter, a writ petition was filed before the Punjab and Haryana High Court against the order of termination of services of a Home Guard personnel. The High Court took the view that the petitioners being volunteers of the Punjab Home Guards were engaged in honorary capacity. Thus, they had no civil rights and, therefore, termination of their services on account of allegation levelled against them could not have been considered to be in violation of law. The High Court took the view that the petitioners being volunteers of the Punjab Home Guards were engaged in honorary capacity. Thus, they had no civil rights and, therefore, termination of their services on account of allegation levelled against them could not have been considered to be in violation of law. The Punjab and Haryana High Court also placed reliance on a judgment of Hon'ble the Apex Court in the case of State of Gujarat v. Akshay Amrutlal Thakkar (2006) 2 SCC 309 . When the matter came up before Hon'ble the Apex Court in the civil appeal, on grant of special leave, it was contended on behalf of the appellants therein that they being temporary employees working for 15 to 17 years were entitled to protection guaranteed under Article 311(2) of the Constitution of India before their services were terminated. Reliance was also placed on the judgments of Hon'ble the Apex Court in the matter of Parshotam Lal Dhingra v. Union of India AIR 1958 SC 36 and Southern Railway v. S. Raghavendrachar, AIR, 1966 SC 1529, in support of the contention that the appellants are governed by the provisions of the Punjab Home Guards Act, 1947 and the Punjab Home Guards and Civil Defence (Field) Class III Service Rules, 1983. Thus, their services could not have been terminated without issuing them a show cause notice and without holding the departmental inquiry. Alternatively, it was also argued that the order of termination passed by the respondents was not only stigmatic but was also passed as a consequence of alleged acts of misconduct by the Home Guard personnel at Amritsar Railway Station on 02.12.2004. Thus, they ought to have been afforded a reasonable opportunity of hearing while following the principles of natural justice. On the other hand, on behalf of respondents, inter alia, it was contended that the appellants were "volunteers" though their appointment was under the Act and the Rules and therefore, in view of the specific provisions under the Rules, their services could be discharged at any time without issuing a show cause notice and without holding any inquiry, much less a departmental inquiry. Alternatively, it was contended that the appellants had no civil rights as they were engaged only as volunteers. Since, the appellants had no civil rights, their services could be terminated for the reasons stated in the order of termination. Alternatively, it was contended that the appellants had no civil rights as they were engaged only as volunteers. Since, the appellants had no civil rights, their services could be terminated for the reasons stated in the order of termination. Hon'ble the Apex Court with particular reference to reliance placed by Punjab and Haryana High Court upon the judgment in the matter of state of Gujarat v. Akshay Amrutlal Thakkar (Supra) held that Akshay Amrutlal Thakkar was appointed on the honorary post of District Commandant, and subsequently he was dis-engaged by the State Government vide its order dated 02.12.1995. Hon'ble the Supreme Court sustained the order passed by the State Government primarily on the ground that the persons involved therein did not act in terms of undertaking given by them. It was held that the services rendered by those persons were honorary therefore no civil consequences were involved. However, in the case of Davindar Singh and others v. State of Punjab (Supra), the Court held that after going through the Act and the Rules framed thereunder the expression "volunteers" appear to be misnomer. Hon'ble the Apex Court also took into consideration the age factor of the appellants for the purpose of seeking alternate employment and thus held as under: "Even without going into the question whether the appellants are eligible for the protection under Article 311 of the Constitution, in our view, the respondents seem to have acted in an arbitrary manner by terminating the services of the appellants, who have been working as Home Guards for the last 15-17 years. They are all overaged. They may find it difficult to find alternate employment. They are all overaged. They may find it difficult to find alternate employment. Therefore, in the facts and circumstances of this case and in the interest of justice, we deem it proper to set aside the order of termination passed by the respondents dated 2-12-2004 and direct the respondents to reinstate the appellants as Home Guards without back wages." Keeping in view the aforesaid discussions and the ratio of judgments as laid down by Hon'ble the Apex Court as also by the Full Bench of this Court, we are inclined to set aside the impugned judgment passed by learned Single Judge and to remand the matter for a fresh consideration on merit while holding that irrespective of the fact that a Home Guard personnel or for that matter, any other similarly situated person, who is aggrieved by the breach of fundamental/legal right (no matter he or she holds or does not hold a civil post) would be entitled to invoke the jurisdiction of this Court under Articles 226 and 227 of the Constitution. Special Appeal, thus, stands allowed and the impugned judgment dated 22.02.2012 is accordingly set aside. Consequently, we remand the matter to learned Single Judge for a fresh consideration. Besides, we also grant liberty to mention before learned Single Judge for early listing of the writ petition. _____________