A Company Commander in the Home Guards is the holder of a civil post within the meaning of Article 311 of the Constitution and is entitled to the protection of Article 311.

( 1 ) IN this writ petition, the moot point for consideration and determination is whether a person serving as a Company Commander, Home Guards, holds civil post and is entitled to the protection of Article 311 of the Constitution of India. The facts leading to this controversy, briefly stated, are as follows.

( 2 ) SURAJ Prasad Tiwart the petitioner, who is a graduate, was enrolled as Home Guard in the year 1987. Subsequently, looking to his sincerity, devotion to work and excellent performance, he was selected and upgraded to the post of Company Commander. He was posted as Company commander. Home Guards in Muskara in district Hamirpur. The appointment of the petitioner as Company Commander was for a period of three years under the provisions of Section 11 (2)of the Uttar Pradesh Home Guards Adhintyam, 1963 (U. P. Act No. XXIX of 1963) (hereinafter referred to as the Act ). The initial period of appointment was further extended to three years to commence from 7. 2. 1997. The petitioner had some tiff with one Sri R. K. Chaurasla, Zila commandant-respondent No. 5. He got certain false and fabricated complaints manipulated against the petitioner. The petitioner was surprised by an order dated 24. 7. 1996 alleged to have been passed in compliance of the order of the Home Guards Headquarters, U. P. dated 16. 7. 1996, whereby the services of the petitioner were terminated. The petitioner exactly was not in a position to visualise the grounds which resulted in his removal from service. The petitioner, therefore, filed the present writ petition under Article 226 of the Constitution of India with the prayer that the order dated 16. 7. 1996 and the consequential order dated 24. 7. 1996. which is contained in Annexure 3 to the writ petition, passed by the District Commandant, Home Guards, hamtrpur-respondent No. 1 be quashed and the respondents be commanded not to Interfere with his functioning as Company Commander, Home Guards in Muskara in district Hamirpur.

( 3 ) COUNTER and rejoinder-affidavits have been exchanged. Heard Sri R. R. Shivahare, learned counsel for the petitioner and learned standing counsel.

( 4 ) BY and large, the above facts as incorporated by the petitioner in the writ petition, have not been challenged. The only substantial ground taken in the counter-affidavit by the respondents is that the petitioner was enrolled in Home Guards Department as a volunteer and that his initial period of three years expired in the year 1990 ; that since the petitioner is not a whole-time employee, he is not entitled to any show cause notice prior to his disengagement from the post of company Commander.

( 5 ) LEARNED standing counsel urged that the matter stands concluded by decision of this Court dated 28. 10. 1991 delivered by Honble S. C. Mathur, J. , in Abdul Hameed and another v. State of U. P. , Civil Misc. Writ No. 9028 of 1990, by which 41 other similar writ petitions were decided, as well as the decision dated 23. 9. 1992 of the Division Bench of this Court in Civil misc. Writ Petition Nos. 29824 of 1992 and 27675 of 1992 delivered by Honble B. M. Lal, J. , (as His Lordship then was) and Honble V. Bahuguna, J. , Gulam Mohd. and others v. State of U. P. In Abdul Hameeds case (supra), after wading through the various provisions of the Act, honble S. C. Mathur, J. , had taken the view that "an enrolled Home Guard does have some rights against his main employer but he has no right against the State or its officers. . . . . There is no provision under which a Home Guard can compel the State Government or its officers to continue him on duty even though the period of three years specified in sub-section (2) of section 11 has expired. " Placing reliance on the decision of Honble S. C. Mathur, J. , the division Bench of this Court in Gulam Mohd. s case (supra) observed, "suffice it to say that argument of the learned counsel has no force in view of the fact that they (Home Guards) have been appointed on honorarium of R