DINESH KUMAR DWIVEDIversusState of UP AND 3 OTHERS

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                         WRIT - A No. - 16253 of 2024

Dinesh Kumar Dwivedi
                                                              .....Petitioner(s)
                                    Versus

State Of Up And 3 Others
                                                            .....Respondent(s)

Counsel for Petitioner(s)        : Abhishek Shukla, Vikram Bahadur
                                   Yadav
Counsel for Respondent(s)        : C.S.C.

Court No. - 33
                    HON'BLE VIKAS BUDHWAR, J.

1. Heard Shri Vikram Bahadur Yadav, learned counsel for the petitioner as
well as Shri Piyush Shukla, learned Standing Counsel for the State.

2. Though a counter affidavit has been filed on behalf of respondent nos. 2, 3
and 4 but the learned counsel for the petitioner has made a statement at bar
that he does not propose to file rejoinder affidavit. However, the parties have
made a statement that the matter be decided at the admission stage itself.
With the consent of the parties, the petition is being decided at this stage.


3. The case of the petitioner is that he was appointed as Honorary Platoon
Commander Home Guard Shankargarh, Prayagraj. However, according to
the petitioner post lodging of an FIR bearing no. 0087 of 2018 on 15.8.2018
under Section 342, 294, 323 and 34 IPC, a charge sheet came to be
submitted. However, the candidature of the petitioner came to be cancelled
by the District Commandant Home Guard Prayagraj on 28.10.2023 in light
of the provisions contained in the Government Order dated 18.2.2023,
wherein a classification has been made for the offences where punishment is
over and above 7 years and below 7 years. Against the said order, the writ
petitioner preferred an appeal before the Deputy Commandant General
Home Guard Eastern Region, Prayagraj, which came to be rejected on
01.05.2024.

4. Questioning both the orders, present petition has been preferred.

5. This Court entertained the writ petition on 28.10.2024 while seeking
instructions. A counter affidavit has been filed on behalf of respondent nos.
                                                              WRIA No. 16253 of 2024
                                    2


2, 3 and 4 sworn by District Commandant, Home Guard, District Prayagraj.

6. Learned counsel for the writ petitioner has submitted that the grounds
which weighed consideration with the respondents in cancelling the
candidature of the writ petitioner in the order in original as well as the
appellate order cannot be sustained, particularly when Clause 5, 6 and 8 of
the Government Order dated 18.8.2023 creating a classification of the
offences wherein punishment is below 7 years and above 7 years was
rendered ultra vires in Mahesh Singh vs. State of UP, Writ A No. 16186 of
2024 decided on 26.9.2025. Submission is that once the order in question
proceeds upon the classification so carved out in the Government Order
dated 18.8.2023 and such classification has been held to be ultra vires, then
the matter needs to be revisited in this regard.

7. Shri Piyush Shukla, on the strength of the averments and allegations
contained in the counter affidavit, has submitted that though the petitioner
may be right that the subject clauses of the Government Order dated
18.8.2023 had been held ultra vires in Mahesh Singh (supra), but according
to him, the charges are grave enough and the petitioner is not entitled to be
reinstated.

8. I have heard the submissions made across the bar and perused the record
carefully.

9. Apparently, the petitioner happens to be a Honorary Platoon Commander,
who, owing to lodging of a criminal case and submission of a charge sheet,
was subjected to an order dated 28.10.2023 for cancellation of his
candidature and appointment. Against which, the petitioner preferred an
appeal, which came to be rejected on 01.05.2024. Plainly and simply, the
appointing authority as well as the appellate authority had relied upon the
classification carved out in the Government Order dated 18.8.2023. In
Mahesh Singh (supra), the validity of the Government Order was under
consideration, and it was observed as follows:-

"1. In all the above petitions petitioners are aggrieved by the impugned orders passed
by the competent authority terminating the services of the petitioners by taking aid of
the Government order dated 18th August, 2023 which provides for termination of
services of such home guards, who have been chargesheeted in a criminal case in
respect of offences for which prescribed sentence is more than 7 years under the
criminal penal code.
                                                                  WRIA No. 16253 of 2024
                                      3

2. It is argued for the petitioners that so long as the Government order dated 18th
August, 2023 remains in force, the order impugned terminating the service of the
petitioners cannot be questioned for the reason that they have been chargesheeted in
criminal case for an offence for which sentence provided is more than 7 years. So,
challenge basically laid to the Government order dated 18th August, 2023 in all these
petitions insofar as its clause (6) is concerned.
3. It is argued by learned counsel for the petitioner that not only clauses (5) and (6)
are discriminatory as there is no intelligible differentia available to the State
respondents inserting these provisions but providing classification between two sets of
employees, one facing criminal charges qua offences with sentence 7 years or less;
and the other with more than 7 years is arbitrary on the face of it. According to
learned counsel for the petitioners, there can be no rational nexus between the object
sought to be achieved and classifications so made.
4. Per contra, learned Additional Chief Standing Counsel defended the government
order dated 18th August, 2023 on the ground that the State is justified in carving out
difference between the offences which are heinous in nature for which sentence is
more than 7 years and those which are minor in nature being not heinous for which
sentence is 7 years or less.
5. It is sought to be argued that in matters where the sentence is 7 years or less, the
Courts are also discouraging arrests by granting bail ordinarily, and which ultimately
does not adversely suffer the work that volunteers are to perform. It is also argued by
learned Additional Chief Standing Counsel that a person chargesheeted in offences
which are heinous in nature if they are continued, it would also give bad impression
about the home guard forces which are auxiliary to the police force as at times
volunteers are employed at various places to aid and help police personnels. They are
called upon to perform same duty as police personnels perform, by way of their
auxiliary assistance.
6. It is further argued that the object sought to be achieved, therefore, is to ensure that
people who become offender of heinous crimes are not part of the force until
acquitted, so that police force also may not get demoralized and public faith and trust
reposed in police force to maintain public order and public peace, does not get
eroded.
7. Thus learned Additional Chief Standing Counsel argued that there is a rational
nexus between the object sought to be achieved and classification made and that
would render it to be valid intelligible differentia. It is argued that on the testing anvil
of Article 14 of the Constitution of India the relevant clauses (5) and (6) of the
government order dated 18th August, 2023 qualifies and hence it should be upheld.
8. In order to appreciate rival submissions qua sub-clause (6) of the government order
dated 18th August, 2023, it would be appropriate first to appreciate the said
government order and, accordingly, the same is reproduced hereunder in its entirety:
“प्रेषक,
अनिल कुमार,
                                                                               WRIA No. 16253 of 2024
                                              4

अपर मुख्य सचिव,
उत्तर प्रदेश शासन।
सेवा में,
महासमादेष्टा,
होमगार्डस विभाग,
उत्तर प्रदेश, लखनऊ।
होमगार्डस अनुभाग लखनऊः दिनांक 18 अगस्त, 2023
विषय- आपराधिक मामलों में संलिप्त होमगार्डस स्वयंसेवकों/अवैतनिक अधिकारियों के विरुद्ध अनुशासनात्मक
कार्यवाही किये जाने के सम्बन्ध में।
महोदय,
कृपया उपर्युक्त विषयक अपने पत्र संख्या-5285/हो०स्व०-129/2022, दिनांक 07.07.2023 का संदर्भ
ग्रहण करने का कष्ट करे, जिसके द्वारा होमगार्डस स्वयंसेवकों/अवैतनिक अधिकारियों के आपराधिक मामलों में
संलिप्त होने की दशा में उनके विरूद्ध अनुशासनात्मक कार्यवाही किये जाने तथा सेवा में उ्नकी पुनः बहाली
संबंधी प्रत्यावेदनों के निस्तारण की प्रक्रिया संबंधी पूर्व में निर्गत शासनादेश में संशोधन किये जाने का अऩुरोध
किया गया है।
2. इस संबंध में मुझे यह कहने का निर्देश हुआ है कि प्रकरण में सम्यक विचारोपरान्त आपराधिक मामलों में
संलिप्त होमगार्डस स्वयंसेवकों/अवैतनिक पदाधिकारियों के विरूद्ध अनुशासनात्मक कार्यवाही किये जाने के
संबंध में होमगार्डस अनुभाग, उ०प्र० शासन द्वारा पूर्व में निर्गत शासनादेश संख्या-43/2020/1883/पन्चानबे-
2020-575होगा/2008 टी०सी०-II, दिनाँक 22 अक्टूबर, 2020 एवं तत्क्रम में निर्गत शासनादेश संख्या
22/2021/119/पन्चानबे-2021-575होगा/2008 टी०सी०-II, दिनांक 31 मई, 2021 को एतद्दवारा
अवक्रमित किया जाता है साथ ही होमगार्डस स्वयंसेवकों/अवैतनिक अधिकारियों के पुनः बहाली संबंधी
प्रत्यावेदनों का निस्तारण किये जाने के संबंध में निर्गत शासनादेश संख्या 57/2016/2455/पन्चानबे-16-
332 होगा/16, दिनांक 02 दिसम्बर 2016 में होमगार्डस स्वयंसेवकों की पुनः बहाली संबंधी प्रत्यावेदनों के
निस्तारण की प्रक्रिया के प्रस्तर-4, प्रस्तर-9 (क) एवं अवैतनिक अधिकारियों की पुनः बहाली संबंधी
प्रत्यावेदनों के निस्तारण की प्रक्रिया के प्रस्तर-3 एवं प्रस्तर-8(क) में अंकित प्राविधानों को अवक्रमित करते
हुये निम्नलिखित प्रक्रिया निर्धारित की जाती हैः-
(1) आपराधिक मामलों में अभियोग पंजीकृत होने के उपरान्त जेल में निरुद्ध होने पर सम्बन्धित होमगार्डस
सेवयंसेवक/अवैतनिक अधिकारी को तत्काल निलम्बित कर दिया जाय।
(2) होमगार्डस स्वयंसेवक/अवैतनिक अधिकारी के विरुद्ध आपराधिक मामलों में अभियोग पंजीकृत होने के
कारण जेल में निरुद्ध होने के पश्चात जमानत पर रिहा होने के बाद उसके द्वारा प्रस्तुत प्रत्यावेदन का परीक्षण
करते हुए उसका निलम्बन समाप्त किया जा सकता है तथा नियमानुसार डियूटी पर नियोजित किया जा सकता
है।
(3) किसी भी आपराधिक मामले में अभियोग पंजीकृत होने पर विवेचनाधीन होने तक सम्बन्धित होमगार्डस
स्वयंसेवक/अवैतनिक अधिकारी को नियमानुसार ड्यूटी पर नियोजित किया जा सकेगा।
(4) किसी भी आपराधिक मामले में अन्तिम रिपोर्ट (एफ०आर जिसमें आरोप प्रमाणित होना न पाया गया हो)
मा० न्यायालय को प्रेषित किये जाने की स्थिति में सम्बन्धित होमगार्डस स्वयंसेवक/अवैतनिक अधिकारी को
नियमानुसार ड्यूटी पर नियोजित किया जाएगा।
(5) 07 वर्ष या 07 वर्ष से कम सजा के प्राविधान से संबधि
                                                    ं त आपराधिक मामलों में मा० न्यायालय में आरोप-
पत्र दाखिल होने तथा मा० न्यायालय में मुकदमा विचारण (Trial) के दौरान जमानत पर रिहा होमगार्डस
स्वयंसेवक/अवैतनिक अधिकारी को नियमानुसार ड्यूटी पर नियोजित किया जा सकेगा।
(6)                                                                                                       07
                                                                                WRIA No. 16253 of 2024
                                            5

वर्ष से अधिक सजा के प्राविधान से सम्बन्धित आपराधिक मामलों में आरोप-पत्र (चार्जशीट) मा० न्यायालय में
प्रस्तुत होने पर होमगार्डस स्वयंसेवक/अवैतनिक अधिकारी को विभाग से पृथक कर दिया जाएगा।
(7) विभिन्न शमनीय अपराधों को छोड़कर किसी भी आपराधिक मामले में मा० न्यायालय द्वारा दोष सिद्ध होने
पर सम्बन्धित होमगार्डस स्वयंसेवक/अवैतनिक अधिकारी को विभाग से पृथक कर दिया जाएगा।
(8) इस शासनादेश के निर्गत होने के पूर्व 07 वर्ष या 07 वर्ष से कम की सजा के प्राविधान से सम्बन्धित
आपराधिक मामलों में पूर्व में विभाग से पृथक किए गये होमगार्डस स्वयंसेवक/अवैतनिक अधिकारी को उनके
द्वारा प्रस्तुत प्रत्यावेदन का परीक्षण करते हुए उन्हें आपराधिक मुकदमें में मा० न्यायालय के अऩ्तिम निर्णय तक
सेवा में बहाल रखा जायेगा, भले ही आपराधिक मामला दर्ज होने के कारण उनको सेवा से निष्कासित किये
06 वर्ष से अधिक की अवधि हो चुकी हो अथवा उनकी आयु 50 वर्ष से अधिक हो अथवा एक बार बहाल
किये जाने के उपरान्त आपराधिक मामला दर्ज होने के कारण उनको दूसरी बार निष्कासित किया गया हो।
आपराधिक मुकदमें में मा० न्यायालय के अन्तिम निर्णय में दोष सिद्ध होने पर सवा से पृथक कर दिया जायेगा।
(9) इस शासनादेश के निर्गत होने के पूर्व आपराधिक मामलों जिसमें 07 वर्ष से अधिक दण्ड का प्राविधान है,
में संलिप्तता के आधार पर विभाग से पृथक किये गये होमगार्डस सेवयंसेवक/अवैतनिक अधिकारी को संबधि
                                                                                          ं त
आपराधिक मुकदमें में मा० न्यायालय द्वारा दोषमुक्त किये जाने पर उनके द्वारा प्रस्तुत प्रत्यावेदन का परीक्षण
करते हुए उन्हें बहाल किया जायेगा, भले ही आपराधिक मामला दर्ज होने के कारण उनको सेवा से निष्कासित
किये 06 वर्ष से अधिक की अवधि हो चुकी हो अथवा उनकी आयु 50 वर्ष से अधिक हो अथवा एक बार
बहाल किये जाने के उपरान्त आपराधिक मामला दर्ज होने के कारण उनको दूसरी बार निष्कासित किया गया
हो।
(10) बहाल किये जाने पर पुनर्नियुक्ति का आदेश निर्गत किये जाने से पूर्व सम्बन्धित होमगार्डस
स्वयंसेवक/अवैतनिक अधिकारी का चरित्र सत्यापन एवं चिकित्सा परीक्षण उसी प्रकार कराया जाय जैसे भर्ती
के समय कराया जाता है।
3- शासनादेश संख्या-57/2016/2455/पन्चानबे-16-332 होगा/16, दिनांक 02 दिसम्बर 2016 उक्त
सीमा तक संशोधित समझा जाय। उक्त शासनादेश की शेष शर्तें यथावत रहेंगी।
4- कृपया उपर्युक्त निर्देशों का कड़ाई से अनुपालन सुनिश्चत कराने का कष्ट करें।
भवदीय
अनिल कुमार
अपर मुख्य सचिव। "
(Emphasis added)
“2-(i). Those home guard volunteers and officers, who are detained in jail upon
criminal case being registered against them shall be suspended forthwith.
(ii). After getting released from jail their representations for revocation of suspension
can be considered and they can be reinstated on duty in accordance with law.
(iii). Upon criminal case being registered (FIR) so long as the investigation is going
on such home guard volunteers and officers can be provided duties in accordance
with law.
(iv). In a criminal case where final report has been submitted and commission offence
at the end of the home guard volunteers and officers were not found to be established
by the police then such volunteers and officers can be taken for duty in accordance
with law.
(v). Where the sentence prescribed is 7 years or less in a criminal case and
chargesheet has been filed and trial is also going on but the home guard volunteers
                                                                WRIA No. 16253 of 2024
                                    6

and officers have been released on bail then they can be taken on duty in accordance
with law.
(vi). Where the sentence in respect of a criminal offence prescribed is more than 7
years and chargesheet has been filed in court then such home guard volunteers and
officers facing the chargesheet shall be terminated from service.
(vii). Except for compoundable offences in any other criminal cases if court convicts
home guard volunteer and officer then he shall be terminated from services.
(viii). All those home guard volunteers and officers, who have been terminated from
service even the sentence being 7 years or less than 7 years prior to the issuance of
the government order then upon their representations they shall be reinstated, even if
more than six years have been passed since their termination order provided they
have not attained the age of 50 years and further after their first reinstatement they
have been subjected to second termination due to involvement of criminal case
however, such reinstatement shall be subject to final order thay may be passed by the
criminal court of law. Upon final conviction in a criminal case by criminal law court,
such home guard volunteers and officers shall be terminated from service.
(ix). Those home guard volunteers and officers, who were terminated on account of
their involvement in a criminal case where the sentence was more than 7 years and
they have been subsequently acquitted by the court of law then they shall be reinstated
upon the representations being made even if more than 6 years have been passed
since the date of their termination provided, of course, they have must not attained
more than 50 years of age and must not have been terminated second time for
involvement in a criminal case after their initial reinstatement.
(x). Upon reinstatement police verification and medical examination of all these home
guard volunteers and officers shall be done in the same manner as it is done at the
time initial recruitment in service.
3. The government order bearing No.- 57/20/16/2455/ 95-16-332 HG/ 16, dated 2nd
December, 2016 shall be amended to the extent as above. Rests of the terms and
conditions of the government order shall remain intact.”
(english translation by the Court)
(Emphasis added)
9. By issuing this above government order the earlier government orders dated 22nd
October, 2020 and 31st May, 2021 have been superseded and it is also in super-
session to paragraph 3 and 8(a) of the government order dated 2nd December, 2016
in respect of home guard volunteers. Upon perusal of the government order dated 2nd
December, 2016, I find that there were no such guidelines provided therein.
10. Upon giving thoughtful consideration to the various clauses prescribed as above,
it transpires that State Government classified two categories of criminal case: one
where chargesheet has been filed but in respect of an offence for which sentence is 7
years or less than 7 years and the other case in which chargesheet is filed in respect of
the offences for which sentence is more than 7 years. In respect of former upon being
released on bail, the home guard volunteers are made entitled for reinstatement with
                                                                WRIA No. 16253 of 2024
                                    7

revocation of suspension order, whereas in the case of latter, the home guard
volunteers are terminated from service straight-away and are not even continued
under suspension.
11. What is further very interesting to notice is that except for those offences which
are compoundable upon conviction, such home guard volunteers shall not be
terminated from service. Thus, in criminal cases qua offences with whatever sentence,
if home guard volunteer stands convicted by a criminal law court, then he is
terminated from employment and there is no further classification of criminal cases on
the basis of sentence. The State, therefore, it appears, made it clear that those who are
convicted, are to face same consequences and the only exception lies in respect of
those who are convicted in cases of compoundable offence.
12. These are apparently the rules prescribed for taking disciplinary action in respect
of the home guard volunteers, who are implicated in criminal cases in the first
instance, then when chargesheeted and then again also when they are finally
convicted. The object, therefore, is only to lay down rules to govern service conditions
of volunteers while they get implicated in criminal cases and it is apparent that State
has gone milder in respect of those criminal cases where the sentence in 7 years or
lesser.
13. I am reminded here of the argument of learned Additional Chief Standing Counsel
that object for creation of home guard force of volunteers has been to provide a
disciplined auxiliary force to the police force to support it in maintaining public order
and public peace and to maintain general public perception that auxiliary force is
equally honest and disciplined force like the police that those involved in offences of
lesser degree only, may not be fired before their conviction.
14. In order to test this above argument it is necessary to understand what would be
the status of a person chargesheeted in a criminal case. Every person implicated in a
criminal case, if chargesheeted becomes a potential offender as he may be convicted
and the potential offender whether for a lesser offence or heinous offence should be
seen in the same status at least by the State. Once the offence is alleged to have been
committed and a person is named in a first information report or otherwise
chargesheeted and faces charges and trial then he becomes an offender against the
State. The criminal justice system does not discriminate between an offender of crime
with lesser punishment or offender of heinous crime with lighter degree of punishment
and insofar as the concept of compounding is concerned that is the mercy and
discretion of court. The State, of course, is not supposed to draw any line of
distinction between compoundable and non compoundable offences. Offence is offence
and a criminal liability occurs when offender is named and booked and faces trial.
15. Keeping this above principle in mind and looking to the specific provision as
contained under clause 7 of the government order that whoever is punished and
sentenced except in compounding cases, would stand terminated from service, makes
no sense to carve out a distinction between the criminal cases where the sentence is
less than 7 years and those with sentence of more than 7 years for the purpose of
                                                                   WRIA No. 16253 of 2024
                                      8

ventilation. If an accused is enlarged on bail, he should be entitled for reinstatement
without any discrimination or none of those implicated in criminal case should be
reinstated. Merely because a person has been chargesheeted does not become a
convict as ultimately he may be acquitted also. So whether a person is charged with a
murder and a person is charged with lesser crime, it should not make any difference
insofar as the reinstatement is concerned or for this purpose in order to draw an
element of moral turpitude, the rules should be modified to take action on case to case
basis by holding a departmental inquiry, may be summary in nature. The rules so
framed, according to me, do not lay any justification for classification and hence
classification does not appear to be logical one for the discussions so held above. The
intelligible differentia would have been to distinguish cases where the chargesheet is
filed and the chargesheet is not filed but I do not see any intelligible differentia behind
classification on the basis of prescribed sentence in criminal law.
16. For a classification to be a valid classification under Article 14 of the
Constitution, ‘a just object’ is a must so as to justify a classification as having clear
nexus with and purpose sought to be achieved. In the case of All Manipur Pensioners
Association v. State of Manipur and others (2020) 14 SCC 625, vide paragraph 8 the
Supreme Court has held thus:
“8. … Article 14 of the Constitution of India ensures to all equality before law and
equal protection of laws. At this juncture it is also necessary to examine the concept of
valid classification. A valid classification is truly a valid discrimination. It is true that
Article 16 of the Constitution of India permits a valid classification. However, a valid
classification must be based on a just objective. The result to be achieved by the just
objective presupposes the choice of some for differential consideration/treatment over
others. A classification to be valid must necessarily satisfy two tests. Firstly, the
distinguishing rationale has to be based on a just objective and secondly, the choice of
differentiating one set of persons from another, must have a reasonable nexus to the
objective sought to be achieved. The test for a valid classification may be summarised
as a distinction based on a classification founded on an intelligible differentia, which
has a rational relationship with the object sought to be achieved. Therefore, whenever
a cut-off date (as in the present controversy) is fixed to categorise one set of
pensioners for favourable consideration over others, the twin test for valid
classification or valid discrimination therefore must necessarily be satisfied.”
17. The object if is to maintain a good public perception about the police force and its
auxiliary force namely home guard force and also to ensure that police force itself
does not get demoralized and for that matter the home guard force as well, being an
auxiliary force, then whether it is a crime with 7 years sentence or less or crime with
sentence of more than 7 years, it does not in any manner meet the object for which the
classification has been made. Such reinstatement or taking back of such volunteers
charged with offence of sentence of 7 years or less, by revoking suspension/
termination may equally demoralize the force and hence I do not see any rational
nexus between the object sought to be achieved and classification so made.
                                                               WRIA No. 16253 of 2024
                                    9

18. The proper cause would have been to suspend all those chargesheeted with
criminal case, to hold proceedings departmentally as well and even reinstatement on
case to case basis for the result of the proceedings. Since home guard force is a force
of volunteers only, summary enquiry with show cause notice would have been
sufficient. The government could have equally waited for the outcome of criminal
proceedings by keeping such volunteers’ duties in a suspended animation. Rules
should not have discriminated those chargesheeted from those not chargesheeted
during pendency of trial, if such volunteer is enlarged on bail.
19. One must remember, a mere chargesheet submitted by police does not mean
conviction. Insofar as public perception is concerned, such person who are sent to jail
whether for petty offences or major offences, they are not placed in good esteem.
Government, of course being a welfare state, should not form such perception and
hence all those chargesheeted, if bailed out, should not be removed from service until
conviction or may in the event of a disciplinary action as a result of summary enquiry
on the principle of preponderance of probabilities. There may be cases where an
employee gets implicated in a criminal case for act and conduct in discharge of
official duties and where he may get implicated for private rival disputes resulting in
first information report for alleged act of assault/ cheating/ fraud and forgery. In the
case of former, a summary departmental enquiry may do justice both to the
establishment and the employee while in the case of latter, one will have to await for
outcome of trail. Hence, mere filing of chargesheet should not result in ipso facto
termination of employment.
20. Likewise, therefore, the classification made under the government order vide
clause 8 of it, stands hit by Article 14 of the Constitution for it being discriminatory
deserves to be held ultra vires Article 14 of the Constitution.
21. In view of the above, therefore, classification made in clauses 5 & 6 of the
government order dated 18th August, 2023 on the basis of chargesheet for offences
with sentence of 7 years or less and those above 7 years is held discriminatory and
arbitrary and is hit by Article 14 of the Constitution and hence deserves to be struck
down to the extent of such discrimination.
22. Accordingly, clause 5 of the government order dated 18th August, 2023 to the
extent it denies reinstatement of those home guard volunteers, while being enlarged on
bail, who have been chargesheeted with offence having prescribed sentence of 7 years
or above, is held ultra vires Article 14 of the Constitution and is struck down to that
extent. Likewise clause 6 of the government order dated 18th August, 2023 that
provides for immediate termination of home guard volunteers, who have been charge
sheeted in offence having prescribed sentence of more than 7 years is held ultra vires
Article 14 of the Constitution and is struck down to that extent. Similarly, clause 8 of
the government order dated 18th August, 2023 to the extent it discriminates between
the offence with 7 years and more sentence and those with 7 years and less sentence
for the purposes of reinstatement of chargesheeted employees is held ultra vires
Article 14 of the Constitution to the extent of such discrimination and is accordingly,
                                                                                                  WRIA No. 16253 of 2024
                                                                       10

                                    struck down to that extent.
                                    23. Petitioners are directed to make their representation to be decided for the
                                    purposes of reinstatement on account of the fact that they have been enlarged on bail,
                                    within four weeks from today and their representations shall accordingly be dealt with
                                    and disposed of within a further period of six weeks.
                                    24. All these writ petitions succeed and are allowed as above."

                                    10. Since the impugned clauses of the Government Order dated 18.8.2023
                                    had been rendered ultra vires, thus, in the opinion of the Court, the matter
                                    needs to be revisited. Accordingly, the writ petition is being allowed in part
                                    in the following terms:-

                                    (a) The order dated 28.10.2023 passed by District Commandant, Home
                                    Guard, Prayagraj and the appellate order dated 01.05.2024 passed by Deputy
                                    Commandant General, Home Guard, Purvanchal Region, Prayagraj are set
                                    aside.

                                    (b) The matter stands remitted back to District Commandant, Home Guard,
                                    District Prayagraj to pass a fresh order strictly in accordance with law,
                                    bearing in mind the overall facts and situation in that regard, within a period
                                    of three months.

                                    March 19, 2026
                                    N.S.Rathour

                                                                                                      (Vikas Budhwar,J.)




Digitally signed by :-
NIPENDRA SINGH RATHOUR
High Court of Judicature at Allahabad