Dilip Kumar Seth, J. - (1.) THE order dated 13.12.1994 passed by the District Commandant, Home Guards, Mainpuri terminating the petitioner's services as Platoon Commander in the Home Guards, which is Annexure 5 to the writ petition, is the subject matter of challenge in this writ petition. The said order is assailed by the learned counsel for the petitioner, Sri K. Ajit on the ground that the petitioner has been holding a civil post within the scope and ambit of Article 311 of the Constitution of India and as such the termination contravenes the said Article and as such can not be sustained. In order to appreciate the points raised it is necessary to refer to the brief facts of the case. The petitioner was appointed Home Guard on 16.12.1983 and had undergone several trainings detailed in various paragraphs of the writ petition and had been serving continuously since then in the said organisation. He was ultimately promoted to the post of Platoon Commander after having duly selected by the Selection Board. He joined the post of Platoon Commander on 9.9.1988 pursuant to an order dated 12.8.1988. Even after his said promotion he underwent further training successfully. He had rendered good service which is reflected in the certificate issued to him on 20.9.1993. Then came suddenly the order dated 13.12.1994 terminating the petitioner's service, copy whereof is Annexure 5 to the writ petition.
(2.) IN the said order, it is mentioned that the petitioner was holding the honorary post of Platoon Commander and that his service was no longer required in the organisation, therefore, his temporary and honorary service in the organisation was being terminated with immediate effect. The question as to whether a Home Guard holds a civil post and the embargo created by Article 311 is attracted or not was considered in the case of Vibhuti Narayan Singh v. State of U.P. and others, 1986 UPLBEC 1130. The learned Single Judge having discussed the entire scheme of the Act had held that the post was a civil post subject to the protection provided in Article 311. While so holding the learned single Judge has taken a note of Section 10 of the said Act which in its explanation 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. It appears from the said judgment though it had taken into consideration the decisions in the case of State of Assam and others v. Kanak Chandra Dutt : AIR 1967 SC 884, as well as the ratio decided in the case of State of Uttar Pradesh v. Audh Narain Singh : AIR 1965 SC 360, and had examined the scheme of Act as well as the question of voluntary service on honorarium referring to the decision in the case of C.P. Francies v. State of Kerala, 1961 (1) CLJ 657, Sher Singh Malhan v. State of M.P. : AIR 1955 Nag. 175, and Brij Gopal Sarkar v. Commissioner of Jails : AIR 1955. Cal. 556, yet it had not addressed itself as to how the explanation by which the post was prescribed not to be a civil post could be reconciled. On the other hand, another learned single Judge while deciding similar question in Civil Misc. Writ Petition No. 2942 of 1995 between Ram Raj Ram and others v. State of U.P. and others disposed of on 7.2.1995 held contrary to the said judgment while referring to the same. In the later judgment of 7.2.1995 reliance was placed in the case of H.R. Ahyanthaya v. Sandoz (India) Ltd. : AIR 1994 SC 2608, and that of Abdul Hamid and another v. State of U.P. and another in Civil Misc. Writ Petition No. 9028 of 1990 decided on 28.12.1991 as well as that of Ravindra Prasad Upadhyaya v. State of U.P. and others in Civil Misc. Writ Petition No. 8433 of 1994 decided on 20.5.1994 held that a person enrolled as home guard has no vested right to continue to hold the post. The earlier judgment by the learned single Judge in the case of Vibhuti Narayan's case (supra) was also referred to in the later judgment with the observation that the said judgment can not come to the rescue of the petitioners considering the terms and conditions regulating their appointments which can not be ignored and continue to remain binding on them. No distinction has been sought to be made of the earlier judgment in the later judgment except the above observation. Neither any reference has been made to the explanation given under Section 10, nor any reference has been made either to any Division Bench judgment or to any judgment by the apex Court reflecting on the question involved.
(3.) ADMITTEDLY , the scheme of the Act goes to show that the ingredient relevant for determination of a post as a civil post as discussed in the earlier judgment are present but then the explanation stands in the way despite presence of said ingredients. Unless the explanation is reconciled the same stares on the face. The same was never attempted to be explained in the earlier judgment. The later judgment has also not sought to make any distinction on the said explanation.;