Rakesh Kumar Singh v. State of U.P. and others, which was disposed of vide order dated

4. Submission of learned counsel for the petitioner is that the opposite party no. 5 is facing the criminal case bearing no. 368 of 2024 under Sections 323, 504, 452, 342, 506 of the Indian Penal Code, Police Station Dostpur, District Sultanpur.

5. He further submits that the date of birth of opposite party no. 5 has been recorded as 1.5.1976, which is not correct. Therefore, a complaint was made by the petitioner via Annexure-4 to the writ petition. On the basis of this complaint, the service of opposite party no. 5 was terminated vide order dated 12.3.2020.

6. Against the order dated 12.3.2020, he filed a departmental appeal, which was dismissed vide order dated 23.6.2022. Against the dismissal of the appeal, opposite party no. 5 filed a revision before opposite party no. 2, and during the pendency of the revision, he filed the Writ Petition No. 8214 of 2023, Rakesh Kumar Singh vs. State of U.P. and others, which was disposed of vide order dated 19.10.2023. Thereafter, a contempt petition was also filed by him. In the meantime, the revision filed by opposite party no. 5 was dismissed vide order dated 6.3.2024, which was assailed by him while filing the writ petition no. 3369 of 2024 before this Court, Rakesh Kumar Singh vs. State of U.P. and others. At the time of hearing on 3.5.2024, the statement was made by his counsel that since the petitioner has been reinstated in service vide order dated

30.4.2024, he does not want to press the writ petition.

7. The petitioner again approached the opposite parties via an application, which is contained in Annexure-13 to the writ petition. He has also moved an application under the Right to Information Act dated 17.5.2024.

8. Learned counsel for the petitioner next submitted that opposite party no.5 got appointed in the department of U.P. Home Guard on 22.1.2005 on the post of home guard mentioning his date of birth as 1/5/1976. During the service period he passed high school as a regular candidate without getting permission from the department. In the high school mark-sheet his date of birth has been mentioned as 1/7/1988 and this date of birth has been used by the opposite party no.5.

9. In the criminal case i.e. Crime No.368 of 2024 (supra) charge-sheet has already been filed by the Investigating officer and opposite party no.5 is facing trial, thus, considering the fraud committed by opposite party no.5 a writ of quo warranto has been sought.

10. Learned Standing Counsel has opposed the contention and submitted that the petition has no locus to seek a writ in the nature of quo warranto.

11. Perused the record.

12. Section 4 of the U.P. Home Guards Act, 1963 (hereinafter referred to as "Act, 1963") defines the functions of the home guard, which is extracted below:- "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 public may be prescribed" welfare

13. A perusal of Section 4(a) Act, 1963 shows that home guard serve as auxiliary to the police. When required to maintain public order and internal security they will function as an emergency force, however, they do not perform any sovereign functions.

14. Section 6 of the Act, 1963 provides superintendence and administration of Home Guards appointed under the Act, 1963. Section 6(3) of the Act 1963 provides 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. Sub-section 3 of Section 6 of the Act, 1963 is extracted below:- "[6(3) 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.]"

15. In the case of University of Mysore Vs Govinda Rao reported in AIR 1965 SC 491, in Paragraph 6, the Hon'ble Apex Court has held that a writ of Quo-warranto lies against the person holding an independent substantive public office. From perusal of the provisions of the aforesaid Act, 1963 it is evident that home guard is not the person holding independent substantive public office.

16. In the case of B. Srinivasa Reddy Vs. Karnataka Urban Water Supply and Drainage Board Employees Association reported in (2006) 11 SCC 731 II Para 76; the judgment of learned Single Judge directing for the ouster of Managing Director, Karnataka Urban Water Supply was affirmed by the Division Bench of High Court of Karnataka in Writ Appeal No.86 of 2006. The matter went up to the Hon'ble Supreme Court and after considering the definition of ''Public Office' as defined in Black's Law Dictionary, the Hon'ble Apex Court has held that certain essential elements are to be established in order to hold an Office / Post as ''Public Office', which is extracted as under:- "Public Office: Essential characteristics of "public office" are (1) authority conferred by law, (2) fixed tenure of office, and (3) power to exercise some portion of sovereign functions of government, key element of such test is that "officer" is carrying out sovereign function. Spring v. Constantino 168 Conn.563, 362 A.2d 871, 875. Essential elements to establish public position as "public office" are position must be created by Constitution, legislature or through authority conferred by legislature, portion of sovereign power of government must be delegated to position, duties and power must be delegated to position, duties and powers must be defined, directly or impliedly, by legislature or through legislative authority, duties must be performed independently without control or superior power other than law, and position must have some permanency and continuity, State ex rel. E.li Lilly & Co. v. Gaertner, Mo.App 619 S.W. 2d 6761, 764."

17. A perusal of the definition of 'public office' shows that the duties must be performed by incumbent independently without any control or superior power other than the law. He must exercise sovereign power of the government and the position must have some permanency and continuity. In the case of Home guard, as discussed above, the Act itself does not give any sovereign power of the government to home guard. He is in direct supervision of district commandant under sub-section 3 of Section 6 of the Act, 1963.

18. Sub-section 5 of Section 11 of the Act, 1963 provides that Home Guards will generally be called out for duty in the areas of their enrolment and for part-time duty only, thus, the ingredients of public office in case of home guard are missing and accordingly writ of quo warranto can not be issued against the opposite party no.5 i.e. the home guard. A writ of quo warrnto being a highly discretionary remedy, this Court is not inclined to grant the relief as prayed for.

19. The petition, for the aforesaid reasons, is accordingly dismissed. Order Date :- 10.4.2025 Madhu D.R/P.S MADHU KUMARI High Court of Judicature at Allahabad, Lucknow Bench

4. Submission of learned counsel for the petitioner is that the opposite party no. 5 is facing the criminal case bearing no. 368 of 2024 under Sections 323, 504, 452, 342, 506 of the Indian Penal Code, Police Station Dostpur, District Sultanpur.

5. He further submits that the date of birth of opposite party no. 5 has been recorded as 1.5.1976, which is not correct. Therefore, a complaint was made by the petitioner via Annexure-4 to the writ petition. On the basis of this complaint, the service of opposite party no. 5 was terminated vide order dated 12.3.2020.

6. Against the order dated 12.3.2020, he filed a departmental appeal, which was dismissed vide order dated 23.6.2022. Against the dismissal of the appeal, opposite party no. 5 filed a revision before opposite party no. 2, and during the pendency of the revision, he filed the Writ Petition No. 8214 of 2023, Rakesh Kumar Singh vs. State of U.P. and others, which was disposed of vide order dated 19.10.2023. Thereafter, a contempt petition was also filed by him. In the meantime, the revision filed by opposite party no. 5 was dismissed vide order dated 6.3.2024, which was assailed by him while filing the writ petition no. 3369 of 2024 before this Court, Rakesh Kumar Singh vs. State of U.P. and others. At the time of hearing on 3.5.2024, the statement was made by his counsel that since the petitioner has been reinstated in service vide order dated

30.4.2024, he does not want to press the writ petition.

7. The petitioner again approached the opposite parties via an application, which is contained in Annexure-13 to the writ petition. He has also moved an application under the Right to Information Act dated 17.5.2024.

8. Learned counsel for the petitioner next submitted that opposite party no.5 got appointed in the department of U.P. Home Guard on 22.1.2005 on the post of home guard mentioning his date of birth as 1/5/1976. During the service period he passed high school as a regular candidate without getting permission from the department. In the high school mark-sheet his date of birth has been mentioned as 1/7/1988 and this date of birth has been used by the opposite party no.5.

9. In the criminal case i.e. Crime No.368 of 2024 (supra) charge-sheet has already been filed by the Investigating officer and opposite party no.5 is facing trial, thus, considering the fraud committed by opposite party no.5 a writ of quo warranto has been sought.

10. Learned Standing Counsel has opposed the contention and submitted that the petition has no locus to seek a writ in the nature of quo warranto.

11. Perused the record.

12. Section 4 of the U.P. Home Guards Act, 1963 (hereinafter referred to as "Act, 1963") defines the functions of the home guard, which is extracted below:- "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 public may be prescribed" welfare

13. A perusal of Section 4(a) Act, 1963 shows that home guard serve as auxiliary to the police. When required to maintain public order and internal security they will function as an emergency force, however, they do not perform any sovereign functions.

14. Section 6 of the Act, 1963 provides superintendence and administration of Home Guards appointed under the Act, 1963. Section 6(3) of the Act 1963 provides 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. Sub-section 3 of Section 6 of the Act, 1963 is extracted below:- "[6(3) 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.]"

15. In the case of University of Mysore Vs Govinda Rao reported in AIR 1965 SC 491, in Paragraph 6, the Hon'ble Apex Court has held that a writ of Quo-warranto lies against the person holding an independent substantive public office. From perusal of the provisions of the aforesaid Act, 1963 it is evident that home guard is not the person holding independent substantive public office.

16. In the case of B. Srinivasa Reddy Vs. Karnataka Urban Water Supply and Drainage Board Employees Association reported in (2006) 11 SCC 731 II Para 76; the judgment of learned Single Judge directing for the ouster of Managing Director, Karnataka Urban Water Supply was affirmed by the Division Bench of High Court of Karnataka in Writ Appeal No.86 of 2006. The matter went up to the Hon'ble Supreme Court and after considering the definition of ''Public Office' as defined in Black's Law Dictionary, the Hon'ble Apex Court has held that certain essential elements are to be established in order to hold an Office / Post as ''Public Office', which is extracted as under:- "Public Office: Essential characteristics of "public office" are (1) authority conferred by law, (2) fixed tenure of office, and (3) power to exercise some portion of sovereign functions of government, key element of such test is that "officer" is carrying out sovereign function. Spring v. Constantino 168 Conn.563, 362 A.2d 871, 875. Essential elements to establish public position as "public office" are position must be created by Constitution, legislature or through authority conferred by legislature, portion of sovereign power of government must be delegated to position, duties and power must be delegated to position, duties and powers must be defined, directly or impliedly, by legislature or through legislative authority, duties must be performed independently without control or superior power other than law, and position must have some permanency and continuity, State ex rel. E.li Lilly & Co. v. Gaertner, Mo.App 619 S.W. 2d 6761, 764."

17. A perusal of the definition of 'public office' shows that the duties must be performed by incumbent independently without any control or superior power other than the law. He must exercise sovereign power of the government and the position must have some permanency and continuity. In the case of Home guard, as discussed above, the Act itself does not give any sovereign power of the government to home guard. He is in direct supervision of district commandant under sub-section 3 of Section 6 of the Act, 1963.

18. Sub-section 5 of Section 11 of the Act, 1963 provides that Home Guards will generally be called out for duty in the areas of their enrolment and for part-time duty only, thus, the ingredients of public office in case of home guard are missing and accordingly writ of quo warranto can not be issued against the opposite party no.5 i.e. the home guard. A writ of quo warrnto being a highly discretionary remedy, this Court is not inclined to grant the relief as prayed for.

19. The petition, for the aforesaid reasons, is accordingly dismissed. Order Date :- 10.4.2025 Madhu D.R/P.S MADHU KUMARI High Court of Judicature at Allahabad, Lucknow Bench