Upendra Pratap Singh v. State Of U.P. Thru. Addl. Chief Secy. Home Deptt. Lko. And

Home Guards Act, 1963 sometimes in the year 2004. In 2006, an FIR was lodged against him, wherein a charge-sheet was filed. Ultimately, in the said criminal case, he was convicted of the offence punishable under Section 307 IPC. This fact is not in dispute. It is also not in dispute that the appellant-petitioner has challenged this conviction, wherein his sentence has been suspended i.e., he has been enlarged on bail, but his conviction has not been stayed. At least, as of now, nothing has been placed before us which may indicate that in the said appeal, the conviction of the appellant-petitioner has been stayed. Based on the aforesaid conviction, a show cause notice was issued to him asking him to 2 SPLA No. 275 of 2025 respond as to why he should not be disengaged in view of the said conviction under Section 307 IPC and the sentence of imprisonment for a period of 5 years, as informed by the appellant's counsel. After considering the response of the appellant-petitioner, ultimately an order cancelling the appointment of the appellant-petitioner was passed on

14.3.2024 referring to para 6 of the G.O. dated 18.8.2023. An appeal was filed against the said order, which was also rejected on 19.4.2024. This order was put to challenge by the appellant-petitioner before the learned Single Judge in Writ-A No. 3368 of 2024 which has been disposed of and the only interference made by the learned Single Judge is that instead of treating the orders impugned before him as one cancelling the appellant's appointment, they have been treated to be orders of dismissal from service. It is this judgement dated 28.11.2024 passed by the learned Single Judge which is under challenge.

4. The contention of the appellant's counsel is that the cancellation of appointment/dismissal, as the case may be, of the appellant is with reference to para 6 of the G.O. dated 18.8.2023 which was not applicable as the said paragraph applies where a charge-sheet is filed alleging commission of an offence which is punishable with incarceration of more than 7 years, whereas in this case, the charge-sheet was filed against the appellant only under Sections 504 and 506 IPC. It is only subsequently at the time of conclusion of trial that he has been convicted of the offence punishable under Section 307 IPC, but even here the punishment imposed is imprisonment of only 5 years i.e., less than 7 years. Therefore, the aforesaid Government Order was not applicable. It is the only argument advanced by the appellant's counsel. 3 SPLA No. 275 of 2025

5. The contention of Shri V.P. Nag, learned Additional C.S.C. is that it is a case where the appellant-petitioner has been convicted of an offence punishable under Section 307 IPC which has not been stayed in the said appeal, therefore, this by itself was sufficient for discharging him. He submitted that even assuming for a moment that para 6 of the G.O. dated

18.8.2023 is not applicable stricto sensuo, there being no denial of the conviction of the appellant by a trial court and the same having not been stayed in the appeal, the Home Guard Department could not be compelled to continue with the services of the appellant--petitioner. Therefore, this is not a case for interference by the appellate Court.

6. However, on being confronted as to how the order impugned before the writ Court has been treated as one of dismissal from service, whereas under the Act, 1963, at best, what could have been done is discharging the appellant-petitioner from service under Section 12(1) of the Act, 1963 and then to cancel the certificate of appointment issued to him as per Section 12(3) of the said Act, he submitted that learned Single Judge has erred in treating the orders as order of dismissal.

7. On being confronted, the appellant's counsel also could not satisfy us to the contrary.

8. Having heard learned counsel for the parties and having perused the record, we are of the opinion that irrespective of non-applicability of para 6 or any other provision of the Government Order dated 18.8.2023, para 7 of the same Government Order is as under:- "7. िविभन्न शमनीय अपराधों को छोड़कर िकसी भी आपरािधक मामले में मा० न्यायालय ्षारा दोषिस्ध होने पर सम्बिन्धत होमगाडर्स स्वयं सेवक/अवैतिनक अिधकारी को िवभाग से पृथक कर िदया जाएगा।" 4 SPLA No. 275 of 2025

9. Further, the fact of the matter is that the appellant-petitioner has been convicted of an offence under Section 307 IPC which is non compoundable, therefore, para 7 of the Government Order is applicable. In fact, it appears that para 6 of the G.O. dated 18.8.2023 has been inadvertently referred in the order dated 14.3.2024. It is para 7 which applies. He is a Home Guard. The law is settled that a Home Guard does not hold a civil post under the State. We may in this regard refer to a Division Bench judgement of this Court in the case of Riyasat Ali vs. State of U.P. and others reported in 2003 (4) AWC page 3046, therefore the protection under Article 311 is not available to the appellant- petitioner. We may also in this regard refer to Section 10 of the Act, 1963 which categorically provides that a home guard acting in 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, but not holder of a civil post merely by reason of his appointment as home guard nor shall he be deemed to be holder of such civil post. It is not in dispute that the appellant-petitioner was given a show cause notice prior to passing of the order dated 14.3.2024 and his reply has been considered which is sufficient compliance of natural probe. The order specifically refers to Section 12(1) and sub Section 3 of the Act, 1963, therefore, veritably it is an order of discharge and in view of sub Section 3 which has not been noticed by the learned Single Judge. It is an order cancelling the certificate of appointment.

10. In view of the aforesaid, we do not find any merit in this appeal for interfering with the judgement of the writ Court except to the extent the learned Single Judge has opined that instead of treating the impugned order dated 14.3.2024 as a cancellation of appointment, it should be 5 SPLA No. 275 of 2025 treated as dismissal from service. We are of the opinion that it is a case of discharge under Section 12(1) of the Act, 1963 and as a consequence, the appellant-petitioner ceased to be a home guard and the certificate of appointment issued to him has been cancelled by the aforesaid order under Section 12(3) of the Act, 1963 which the learned Single Judge has not noticed, therefore, to this extent, we quash the observations made by the learned Single Judge in para No. 12, meaning thereby the order dated

14.3.2024 shall be treated as an order of discharge and cancellation of certificate of appointment under Section 12 of the Act, 1963. As there is no ground to interfere with the said order dated 14.3.2024, subject to above modification, the appeal is dismissed. October 6, 2025 Shravan (Rajeev Bharti,J.) (Rajan Roy,J.) SHRAVAN KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Home Guards Act, 1963 sometimes in the year 2004. In 2006, an FIR was lodged against him, wherein a charge-sheet was filed. Ultimately, in the said criminal case, he was convicted of the offence punishable under Section 307 IPC. This fact is not in dispute. It is also not in dispute that the appellant-petitioner has challenged this conviction, wherein his sentence has been suspended i.e., he has been enlarged on bail, but his conviction has not been stayed. At least, as of now, nothing has been placed before us which may indicate that in the said appeal, the conviction of the appellant-petitioner has been stayed. Based on the aforesaid conviction, a show cause notice was issued to him asking him to 2 SPLA No. 275 of 2025 respond as to why he should not be disengaged in view of the said conviction under Section 307 IPC and the sentence of imprisonment for a period of 5 years, as informed by the appellant's counsel. After considering the response of the appellant-petitioner, ultimately an order cancelling the appointment of the appellant-petitioner was passed on

14.3.2024 referring to para 6 of the G.O. dated 18.8.2023. An appeal was filed against the said order, which was also rejected on 19.4.2024. This order was put to challenge by the appellant-petitioner before the learned Single Judge in Writ-A No. 3368 of 2024 which has been disposed of and the only interference made by the learned Single Judge is that instead of treating the orders impugned before him as one cancelling the appellant's appointment, they have been treated to be orders of dismissal from service. It is this judgement dated 28.11.2024 passed by the learned Single Judge which is under challenge.

4. The contention of the appellant's counsel is that the cancellation of appointment/dismissal, as the case may be, of the appellant is with reference to para 6 of the G.O. dated 18.8.2023 which was not applicable as the said paragraph applies where a charge-sheet is filed alleging commission of an offence which is punishable with incarceration of more than 7 years, whereas in this case, the charge-sheet was filed against the appellant only under Sections 504 and 506 IPC. It is only subsequently at the time of conclusion of trial that he has been convicted of the offence punishable under Section 307 IPC, but even here the punishment imposed is imprisonment of only 5 years i.e., less than 7 years. Therefore, the aforesaid Government Order was not applicable. It is the only argument advanced by the appellant's counsel. 3 SPLA No. 275 of 2025

5. The contention of Shri V.P. Nag, learned Additional C.S.C. is that it is a case where the appellant-petitioner has been convicted of an offence punishable under Section 307 IPC which has not been stayed in the said appeal, therefore, this by itself was sufficient for discharging him. He submitted that even assuming for a moment that para 6 of the G.O. dated

18.8.2023 is not applicable stricto sensuo, there being no denial of the conviction of the appellant by a trial court and the same having not been stayed in the appeal, the Home Guard Department could not be compelled to continue with the services of the appellant--petitioner. Therefore, this is not a case for interference by the appellate Court.

6. However, on being confronted as to how the order impugned before the writ Court has been treated as one of dismissal from service, whereas under the Act, 1963, at best, what could have been done is discharging the appellant-petitioner from service under Section 12(1) of the Act, 1963 and then to cancel the certificate of appointment issued to him as per Section 12(3) of the said Act, he submitted that learned Single Judge has erred in treating the orders as order of dismissal.

7. On being confronted, the appellant's counsel also could not satisfy us to the contrary.

8. Having heard learned counsel for the parties and having perused the record, we are of the opinion that irrespective of non-applicability of para 6 or any other provision of the Government Order dated 18.8.2023, para 7 of the same Government Order is as under:- "7. िविभन्न शमनीय अपराधों को छोड़कर िकसी भी आपरािधक मामले में मा० न्यायालय ्षारा दोषिस्ध होने पर सम्बिन्धत होमगाडर्स स्वयं सेवक/अवैतिनक अिधकारी को िवभाग से पृथक कर िदया जाएगा।" 4 SPLA No. 275 of 2025

9. Further, the fact of the matter is that the appellant-petitioner has been convicted of an offence under Section 307 IPC which is non compoundable, therefore, para 7 of the Government Order is applicable. In fact, it appears that para 6 of the G.O. dated 18.8.2023 has been inadvertently referred in the order dated 14.3.2024. It is para 7 which applies. He is a Home Guard. The law is settled that a Home Guard does not hold a civil post under the State. We may in this regard refer to a Division Bench judgement of this Court in the case of Riyasat Ali vs. State of U.P. and others reported in 2003 (4) AWC page 3046, therefore the protection under Article 311 is not available to the appellant- petitioner. We may also in this regard refer to Section 10 of the Act, 1963 which categorically provides that a home guard acting in 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, but not holder of a civil post merely by reason of his appointment as home guard nor shall he be deemed to be holder of such civil post. It is not in dispute that the appellant-petitioner was given a show cause notice prior to passing of the order dated 14.3.2024 and his reply has been considered which is sufficient compliance of natural probe. The order specifically refers to Section 12(1) and sub Section 3 of the Act, 1963, therefore, veritably it is an order of discharge and in view of sub Section 3 which has not been noticed by the learned Single Judge. It is an order cancelling the certificate of appointment.

10. In view of the aforesaid, we do not find any merit in this appeal for interfering with the judgement of the writ Court except to the extent the learned Single Judge has opined that instead of treating the impugned order dated 14.3.2024 as a cancellation of appointment, it should be 5 SPLA No. 275 of 2025 treated as dismissal from service. We are of the opinion that it is a case of discharge under Section 12(1) of the Act, 1963 and as a consequence, the appellant-petitioner ceased to be a home guard and the certificate of appointment issued to him has been cancelled by the aforesaid order under Section 12(3) of the Act, 1963 which the learned Single Judge has not noticed, therefore, to this extent, we quash the observations made by the learned Single Judge in para No. 12, meaning thereby the order dated

14.3.2024 shall be treated as an order of discharge and cancellation of certificate of appointment under Section 12 of the Act, 1963. As there is no ground to interfere with the said order dated 14.3.2024, subject to above modification, the appeal is dismissed. October 6, 2025 Shravan (Rajeev Bharti,J.) (Rajan Roy,J.) SHRAVAN KUMAR High Court of Judicature at Allahabad, Lucknow Bench