The main legal point established in the judgment is that the home guard under the U. P. Home Guards Act, 1963, and Rules does not hold a civil post, as declared by the provisions of the Act and the Explanation attached to Section 10.

( 1 ) WRIT Petition No. 23570 of 1987, Riasat Ali v. State of U. P. through Home Secretary, Civil secretariat. Lucknow and Ors. , was heard by learned single Judge (A. K. Yog. J.) and vide judgment and order, dated May 11, 1999, this petition was connected with Writ Petition No. 5816 of 1995. Raghvendra Singh v. District Commandant, Home Guards Mainpuri and Anr. Record of the case was directed to be placed before Honble the Chief Justice for nomination of a larger Bench for hearing the cases in view of conflicting decisions of this Court in the case of bibhuti Narayan Singh v. State and Ors. , 1986 UPLBEC 1130, (A. N. Verma, J.), holding post of home Guard to be a civil post and in the case of Abdul Hameed and Anr. v. State of U. P. and anr. Writ Petition No. 9028 of 1990 and other connected 42 writ petitions decided vide judgment and order dated 28. 10. 1991 (S. C. Mathur, J.) holding said post not to be a civil post.

( 2 ) THE Chief Justice, vide order dated 3. 8. 1999, directed the present petition to be listed for hearing before Division Bench dealing with service matters along with above mentioned Writ petition No. 5816 of 1995, Raghvendra Singh v. District Commandant, Home Guards, Mainpuri and Anr. , wherein another learned single Judge (D. K. Seth, J.) vide order dated 12. 8. 1997, had also noticed the conflict and directed the case to be placed before the Chief Justice for referring the case for hearing by a larger Bench.

( 3 ) THE only question required to be answered in these petitions, is whether a person enrolled as home Guard under U. P. Home Guards Act, 1963, as amended by the Act No. 4 of 1972, (for short called the Act) holds a civil post?

( 4 ) FACTS of Writ Petition No. 23570 of 1987, Riasat Ali v. State : petitioner applied for the post of Platoon Commander in the year 1985. His conduct and character were verified by District Commandant, Home Guards, Rampur, and no adverse remark was ever communicated to the petitioner. According to the petitioner one R. K. Goel, the then district Commandant Home Guard, was instrumental in getting his tenure determined out of malice. The plea of mala fide has, however, been abandoned. The learned counsel for the petitioner, on his request, was permitted by the Court to delete the name of Sri R. K. Goel (respondent No. 4 ). The petitioner was informed that the Department of Home Guard did not require his temporary and voluntary service as Platoon Commander which were determined from the date of passing of the order and in lieu of one months notice, one months honorarium was sanctioned ; also, the petitioner was directed to hand over official property, dress, etc. with immediate effect vide impugned order dated 17. 11. 1987, Annexure-1 to the petition.

( 5 ) FEELING aggrieved, petitioner has challenged the impugned order of termination by filing present petition under Article 226, Constitution of India. Petitioners grievances are :

(a) impugned order dated 17th November, 1987, has been passed without affording an opportunity of defending him even though from the facts in the counter-affidavit filed on behalf of respondent Nos. 1, 2 and 3 it is evident that his tenure has been determined by way of punishment and in the facts of present case, it casts stigma ;

(b) impugned termination order is bad inasmuch as Home Guard Department itself issued an advertisement for recruiting persons on several posts including Platoon Commander within two weeks of the passing of the termination order indicating that Department required services of platoon Commanders.

( 6 ) THE impugned order of termination, dated 17th November, 1987, according to the petitioner, is per se bad inasmuch as it mentioned that Department did not require the service of petitioner as Platoon Commander. According to the petitioner, no rules were framed as required under section 15 of U. P. Home Guard Adhiniyam, 1963 ; principles of natural justice were applicable in the case of the petitioner, which required