Sunil Ambwani, J.@mdashShri V.K. Srivastava, learned counsel appears for the petitioner. Learned standing counsel appears for the respondents. The affidavits have been exchanged. With the consent of parties the matter was heard and is decided at the admission stage.
2. The petitioner was engaged in the Home Guards Organization in the year 1979. He was appointed/promoted as Assistant Company Commander in the year 1983. In the year 1997 he was appointed/promoted by the District Commandant, Home Guards, Allahabad vide order No. 249 dated 29.1.1997 as Company Commander. The petitioner was required to appear before the Screening Committee on 5.9.2008, and was declared successful for appointment as Company Commander. By a notice dated 4.8.2008 the petitioner was required by an order to appear before the Screening Committee on 5.9.2008. The final list of the selectees prepared by the Screening Committee did not include the name of the petitioner on the ground that the petitioner did not belong to block Kanaili, District Kaushambi for which the appointment was to be made.
3. The petitioner was required to produce a domicile certificate that he was a resident of block Kanaili District Kaushambi, to confirm the appointment/promotion. The petitioner submitted a reply on 4.5.1999 stating that at the time of his engagement in Home Guards Organization in 1979, the petitioner was a resident of Village Jugrajpur Block Kanaili District Kaushambi. In the year 1999 by a family settlement in his family the petitioner got his share of properties in Village Bhikharipur Ka Purva @ Rajendra Nagar, Block Newada, District Kaushambi after which he along with his two brothers started living in Block Newada, District Kaushambi.
4. A show cause notice was given to the petitioner on 3.11.2008 to which he submitted his reply. The District Commandant, Home Guards, Allahabad, by his order dated 5.12.2008, dispensed with/cancelled his appointment as Company Commander on the ground of nonproduction of the domicile certificate of Block Kanaili, giving rise to this writ petition.
5. The short question, that calls for consideration in this writ petition, is whether the U.P. Home Guards Act 1963 provides for the residence in a particular village/area, as a condition for appointment as Company Commander and whether the Circular Order No. 5/1998 dated May, 23, 1984 to that effect, issued by the Commandant General, Home Guards providing that in rural areas the candidate must belong to the block to be able to attend the work, is a violative of provisions of U.P. Home Guards Act, 1963, and stands the test of reasonableness in appointment/promotions as Company commander.
6. The petitioner submits in paragraph7 of the writ petition as follows:
"7. ......At the time of his engagement in Home guard organization in the year 1979 the petitioner was residing at Village Jugrajpur, Block Kanaili, District Kaushambi. In the year 1999 a partition by means of a family settlement took place in the family, as a result whereof the share of the petitioner''s family was given in the property situated in village Bhikhari Ka Purwa @ Rajendra Nagar, Block Newada, District Kaushambi and consequently the petitioner along with his other 2 brothers and family started residing at village Bikhari Ka Purwa @ Rajendra Nagar, Block Newada District Kaushambi. The petitioner also informed the respondent no. 3 regarding his change of address on 4.5.99."
7. In the counter affidavit of Shri G. Chaturvedi, District Commandant, Home Guards, Allahabad, it is stated in paragraph3A that in view of the circular No. 1331/1977, dated 14.9.1978 and provisions of Section 11(2) of U.P. Home Guards Act, 1963 as amended in 1972 the Honorary Company Commander, Honorary Assistant Company Commander and Honorary Platoon Commander are appointed for a period of three years, after which their appointment can be renewed by the Screening Committee after considering the work, conduct and physical fitness of the employees. The Screening Board consists of District Magistrate or representative appointed by him; Mandaliya Samadeshta Home Guards; Superintendent of Police or representative appointed by him, and District Samadeshta Home Guards. The District Magistrate and in his absence the Divisional Samadeshtra or the Superintendent of Police with a minimum three members including the Chairman, considers the appointment. On 5.9.2008 a meeting of the Screening Board constituted under the directions/order of Home Guard Headquarters, Lucknow was held in Home Guard office, Allahabad for screening of honorary officers. The petitioner was appointed as a Honorary Company Commander in U.P. Home Guards, Block Kanaili District Kaushambi, purely on voluntary and temporary basis for a period of three years. For rural areas the essential/requisite eligibility of candidates is that they should be the resident of the concerned block and must be residing in the said block. On the date of screening by the high level screening board in the office of District Home Guards, the work and conduct of the petitioner was considered and it was found that since the petitioner is not resident of concerned block Kanaili and that at the time of consideration it was found that the petitioner is resident of block Newada, District Kaushambi he was not found eligible for consideration as Company Commander.
8. In the same paragraph of the counter affidavit, Shri G. Chaturvedi, the District Commandant has relied upon a circular No.132/84 dated 23.5.1984 and has stated that the petitioner does not come under the parameters of the said circular issued by the department and as such the Screening Board did not recommend the renewal of his appointment. In paragraph6 it is stated that the petitioner was informed by letter dated 6.8.2008 in pursuance to which he appeared before the Screening Committee on 20.8.2008. The meeting was adjourned for some reason. The petitioner appeared before the Screening Committee again on 5.9.2008. He was given an opportunity and was directed to produce the domicile certificate of block Kanaili within 14 days which he failed to produce. For the rural areas it was essential/requisite that he should be resident of the same block.
9. The respondents have relied upon a judgement in Jitendra Kumar Awasthi vs. State of U.P. And others, Writ Petition No. 40505 of 2007 decided on 29.8.2007, holding that the honorary post of home guard under the U.P. Home Guards Act, 1963 is not a civil post and that Article 311 (2) of the Constitution of India is not applicable to the post. The extension of a honorary or even regular service is not a matter of right but of discretion of the authority. It is further stated that by circular letter No. 230/1990 dated 7.6.1990 issued by the Home Guards Headquarters, a representation can be filed before the Commandant General, Home Guards, U.P. Lucknow within 90 days. The petitioner has failed to avail the alternative remedy and has filed the writ petition on misconceived facts.
10. In State of West Bengal and others vs. Pantha Chatterjee and others, AIR 2003 Supreme Court 3569 the Supreme Court held that the State Government with the sanction of the Governor of West Bengal raised the Battalion of Border Wing Home Guards. They were to be paid from the given head of expenditure of the State Government. The Scheme, however, made it clear that the expenditure incurred would be reimbursed by the Central Government. The Central Government should not and cannot get out of this undertaking. The State of West Bengal being in the position of an employer of the part time BWHG owes the primary responsibility of making all the payments on account of salary, allowances and other perquisites to them as admissible to the permanent staff but this burden of expenditure must be ultimately borne by the Central Government. The scheme envisaged, that on being released, after a period of three months, the volunteer Home Guards could go back and resume their vocations and may earn their livelihood and may be called as and when needed again for a shot period where after again they could pursue their vocation. After having put in 14 years of service, patrolling the borders in all weathers without any facilities, it is too much to say that their deployment was of a causal and voluntary nature and the Central Government will not be concerned with them and that it would be the responsibility of the State Government alone. Once they were made to work for ten to fifteen years or so without break, there hardly remained any chance or scope for them to resume their old vocations. The Central Government must in all fairness accept its responsibility and make the necessary facts available for reimbursement.
11. The petitioner was engaged as a Honorary Home Guard in 1979. He has continued to serve in the organization since thereafter and had earned promotions as Assistant Company Commander and thereafter as Company Commander by order No. 249 dated 29.1.1997. He was originally a resident of Block Kanaili. The family partition in his family made him to shift to village Bhikhari Ka Purwa @ Rajendra Nagar, Block Newada District Kaushambi, which is not stated to be far from Kanaili Block. Immediately after the family partition the petitioner informed respondent no. 3, regarding the change of his address on 4.5.1999. He was serving as Company Commander of Block Kanaili when he was called to appear before the Screening Committee and was told to produce a domicile certificate and was thereafter removed only on the ground that he does not reside in block Kanaili any more after 1999.
12. The protection of Article 311 is not applicable to a Company Commander in Home Guards, as a Home Guard does not hold a civil post. It is an honorary appointment given under the U.P. Home Guards Act established for assisting the police in maintaining the law and order in emergent situations. The Home Guard Organization as a disciplined force is kept in reserved to serve with the police force in the state of emergency. Section 4 of the Act requires the Home Guard to assist the police force for maintaining public order and internal security to provide assistance to the public in case of air raids, fire, floods, epidemics and for all other specific purposes. For convenience and to ensure their availability it is provided in Section 7 that the Home Guards shall be recruited under such conditions, which are provided on making a proper application. If a person is in nongovernmental service he may send his application through his employer and if he is serving in a governmental organization, he has to forward his application through his appointing authority to give promotion. The U.P. Home Guards Act does not provide that the Home Guard should be the resident of the same block in case of rural areas and the same locality in urban areas. In fact a Home Guard can be called for duties from any place of the State under Section 8(b) of U.P. Home Guards Act, 1963.
13. In a meeting of Divisional Commandants on 25.4.1984 at Lucknow a question arose whether the post of Company Commander can be filled up from the persons, who are not resident of the same area. It was decided that in future, whenever recruitments of Company Commanders is made, each post shall be filled up only for the specific company in which the post has fallen vacant. The resolution in the Div. Commanders meeting dated 25.4.1984 communicated to all Div. Commanders, by letter dated May 23, 1984 sent by the U.P. Home Guard Headquarters reads as follows:
"U.P. HOME GUARD HEADQUARTERS: JAIL ROAD, LUCKNOW
No. 132/1984 Dated Camp Mussoorie, May 23, 1984
CIRCULAR ORDER NO.32/84
To
All Divl. Commandants, Home Guards,
Uttar Pradesh
It has been observed that despite earlier instructions for recruitment to the post of coy. Commanders, they have often been recruited regardless of the area and the Company where the post fell vacant. Such recruitments are in fact against the fundamental principles on which the Home Guards Organisation is based.
2. In the meeting of the Divl. Commandants held on 25.4.84 at Lucknow, it was decided that in future whenever recruitments of Coy. Commanders are made, each post shall be filled up only for the specific Company in which the post has fallen vacant. The candidates to be considered must be local persons able to attend and remain with their units. It is, therefore, necessary to keep this point in view when the selections are made. If any Board feels that no local candidate is available, the post may be readvertised. In the rural areas the candidate must belong to the block and be able to attend the Coy. Work without difficulty. So far as the Coys of the urban areas are concerned where the Coys are not organized on the block basis, the person should reside at a reasonable distance which has been decided as within 5 kms radius from from the ground where the parades are held.
3. The same principle shall also be applied in respect of the Platoon Commanders.
4. The above decision casts a special responsibility on the Divisional Commandant to review the position as it stands today in each district. A list of all such Coy. Commanders and Platoon Commanders who do not qualify as above but who are serving as Coy. Commanders or Pl. comdrs should be prepared and on the expiry of their term it should not be renewed.
5. If any Coy. Comdr. Or Pl. Comdr. Who has been weeded out or who has resigned has to be reemployed directly or on acceptance of his appeal or petition the case of such person shall also be considered keeping in view the above principle in mind i.e. the person shall be eligible only in respect of his coy. Or Platoon in which he or she was serving and provided there is a vacancy available or whenever a vacancy falls due. In the latter case the merits of the eligible Coy. Comdrs shall be taken into consideration by the Board prescribed for the purpose and the pot offered on merits.
(P.C. KAKKAR)
Commandant General, Home Guards
Copy to:
1. All Distt. Commandants/Urban Commandants/Commandants, DTCs, Hgs, UP
2. All officers at HGs Hqrs/Commandant, CTI."
14. The circular letter dated May 23, 1984 was not issued nor serves any specific provisions of the U.P. Home Guards Act, 1963. The Divisional Commanders prepared guidelines for the purposes of convenience. The circular letter did not provide for dispensing with the services of those persons, who are already working. The guidelines were prepared for making home guards readily available. The review in respect of each district did not provide for dispensing with the services of such Company Commanders and Platoon Commanders, who do not qualify the test. It only provided that their term, at its expiry should not be renewed. The honorary engagement of a Home Guard, Assistant Commandant and Company Commander may not give them a right to hold the posts and that Article 311 would not strictly apply to their case, but these persons are citizens of India and are discriminated in engagement or treated unreasonably even on honorary post.
15. In the present case the petitioner is serving as Home Guard since 1979. He was promoted as Assistant Company Commander in 1983 and as a Company Commander in 1997. It was in the review meeting the respondents sought to enforce a circular letter dated May 23, 1984 nonsuiting him to hold a post of the Company Commander without making any allegations with regard to his integrity, competence and the fact whether his residence in village Newada will affect his performance and in discharge of the duties. A rule of convenience could not be a ground to subject the petitioner to an arbitrary action to terminate his engagement on a honorary post. He has a right of equality which includes nonarbitrariness and reasonableness in state functions.
16. The principles of judicial review of administrative action, include unreasonableness as a ground on which the administrative action can be struck down. In State of M.P. Vs. Hazari Lal, (2008) 3 SCC 273 the Supreme Court has held in para 11 that the legal parameters of judicial review have undergone a change. Wednesbury principle of unreasonableness has been replaced by the doctrine of proportionality vide Indian Airlines Vs. Prabhu D. Kanan, (2006) 11 SCC 67; State of U.P. Vs. Sheo Shanker Lal Srivastava, (2006) 3 SCC 276 and M.P. Gangadharan Vs. State of Kerala, (2006) 6 SCC 162.
17. "Proportionality" is a principle, where the Court is concerned with the process, method or manner in which the decision maker has ordered his priorities, reach of conclusion or arrived at a decision. The Supreme Court observed in Coimbator District Central Cooperative Bank Vs. Employees'' Association, (2007) 4 SCC 669 that the doctrine of proportionality steps in focus true nature of exercise the elaboration of rule of permissible priorities. Proportionality involves "Balancing Test" and "Necessity Test". Whereas ''Balancing Test'' permits scrutiny of excessive onerous penalties or infringement of rights or interest and a manifest imbalance of relative considerations, the ''Necessity Test,'' requires infringement of human rights to the least restrictive alternative. In administering the affairs of the State the Government is expected to honour the statement of policy or intention and treat the citizens with full personal consideration, when abuse of discretion. The Supreme Court held that there can be no "pick and choose" selective applicability of government norms or unfairness, arbitrariness or unreasonableness. Where a paring knife suffices, it is often stated that battle axe is precluded.
18. While judging the question of reasonableness and fairness, the statutory authority must consider the factual matrix in each case keeping in mind the doctrine of flexibility. Before an action is struck down, the Court must be satisfied that a case has been made out for exercise of power of judicial review. Every order must be founded on rationality, which must be seen in the context of the facts of the case.
19. The Court does not find that there was any occasion at all, or it was permissible to terminate the petitioner''s engagement on the ground that he had shifted his residence from Kanaili to a neighbouring area in Newada for which he had himself made a declaration on the basis of a partition in his family. In this case the question as to whether the circular order dated May 23, 1984 is relevant for the purpose of fresh engagement of Home Guards, Platoon Commanders and Company Commanders is not in issue. The circular however issued after petitioner''s engagement as a Home Guard could not be a ground to disengage him after his selections as Company Commander.
20. The writ petition is allowed. The order No. 8290 dated 5.12.2008 passed by District Commandant, Home Guards, is set aside. The petitioner shall be reinstated and shall be allowed to serve as Company Commander in Home Guards with all consequential benefits. The petitioner will also be entitled Rs. 5000/ as cost of this petition.
