Allahabad High Court
Bal Govind S/O Late Mool Chand vs State Of U.P. Through Prin. Secy. ... on 20 April, 2023
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 20
Case :- WRIT - A No. - 7269 of 2011
Petitioner :- Bal Govind S/O Late Mool Chand
Respondent :- State Of U.P. Through Prin. Secy. Home Deptt. Lko. And Ors.
Counsel for Petitioner :- Awadhesh Kumar,Vinod Kumar Srivastava
Counsel for Respondent :- C.S.C.
Hon'ble Karunesh Singh Pawar,J.
Heard learned counsel for the petitioner and Shri Rajeev Srivastava, learned Additional CSC for the respondents.
A preliminary objection has been raised by Shri Rajeev Srivastava, learned Additional CSC that writ petition has been filed after a delay of several years. The petition suffers from latches. He has invited attention of the Court towards pleading made in para 4 of counter affidavit of the State dated 11.01.2012. The said para 4 is extracted below:-
"That in reply to the contents of paragraph 2 of the writ petition it is submitted that in the year 2000 the petitioner was deputed in election duty of Nagar Nigam, and despite of duty order received by him he did not report for election duty, and disobeyed the order of the authority, as such, the conduct of the petitioner was in the category of indiscipline, on account of which the Platoon Commander, Assistant Company Commander and Block Organizer of company Kumbhi submitted their report to answering opposite party. No. 4 on 06.12.2000 regarding disengagement of the petitioner along others who also absented from election duty. It is submitted that on the basis of aforesaid report vide Order No. 2616/ Do-3/ Niskasan /2000/ dated 07.02.2001 the answering opposite party No. 4 disengaged the petitioner from the organization in accordance with the provisions of Section 12(1) of the U.P Home Guards Act, 1963, and under provisions of 12 (3) directed him to deposit the uniform, and other articles provided him within 1 week. The true photo copies of the aforesaid report dated 06.12.2000 and order dated 07 02 2001 are being annexed herewith and marked as Annexure No. CA-1 and Annexure No. CA-2 respectively to the instant counter affidavit.
It is submitted that the copy of the order of disengagement dated 07.02.2001 was received to the petitioner and in pursuance to whereof, the he had deposited the uniform etc. in the year 2001, but he did not challenge the order of disengagement before any appropriate forum at the relevant time, and the present writ petition has been filed after lapse of more than 10 years, as such, the same is highly belated and is liable to be dismissed on the ground of delay and latches.
It is further submitted that in the case of Riasat Ali Vs State of U.P. and Others [reported in 2003 (53) A.L.R. 257] the Division Bench of this Hon'ble Court has been pleased to hold while answering the question referred (while dealing with the explanation appended to section 10 of the U.P Home Guard Act, 1963) that the officials of the Home Guards do not hold a civil post, and are not entitled to protection under Article 311 of the Constitution of India. It is further submitted that the Hon'ble Supreme Court while dealing with the identical provision in the Bombay Home Guards Rules 1953, in the judgment reported in 2006 (2) SCC 309; has held that the services rendered by home guards being honorary involves no civil consequences."
Learned counsel for the Additional CSC submits that it has been categorically pleaded that copy of the order of disengagement dated 07.01.2001 was received by the petitioner and pursuant to thereof he has deposited the uniform etc. in the year 2001, but he did not challenge the order of disengagement before any Court of law in relevant time and the petition has been filed after lapse of ten years.
It has been further submitted by the learned Additional CSC that letter dated 09.12.2011 written by the Divisional Commandant is an information to the District Commandant that the petitioner was already disengaged from the organization vide order of the District Commandant dated 07.02.2001 and since then the petitioner has been out of service for more than ten years.
He further submits that this communication cannot give any cause of action to the present petitioner to maintain this petition as admittedly the order dated 07.02.2001 was already received by him and in compliance thereof within one week he has deposited the uniform etc. with the department. The specific averment made in para 4 of the counter affidavit have not been denied categorically by the petitioner while filing rejoinder affidavit. Thus, the petition suffers from latches and is liable to be dismissed.
Learned counsel for the petitioner though has opposed this contention, however, from the pleadings, he could not show that while filing the rejoinder affidavit dated 04.07.2011, he has denied the fact that he received the order dated 07.02.2001 and in the year 2001 itself, he has also deposited the uniform etc. in the year 2001. The relevant para 3 of the rejoinder affidavit is extracted below:-
"3. That the contents of paragraph 4 of the counter affidavit are denied. It is stated that the rulings cited therein are not applicable in the instant case. Further, it is stated that the disengagement of the petitioner has wrongly been made. The petitioner from time to time submitted his representations for engaging him on which he was being assured every time but nothing was done. The petitioner got letter No. 3649/1-39( ???? )/2011 dated 9.12.2011 after filing the instant writ petition on 29.9.2011. As such, there is no question of filing this writ petition after lapse of more than 10 years. A true copy of the letter No.3649/1-39( ???? )/2011 dated 9.12.2011 is being filed herewith as Annexure No.RA-1."
In view of the above admitted facts that the impugned order/disengagement order and pursuant to whereof he has also deposited the uniform etc. in the year 2002, it leaves no doubt that the petition is highly belated and has been filed after a period of ten years without any explanation of latches. The communication order dated 09.12.2011 was issued pursuant to same application given by the petitioner to opposite party no. 3 by the order dated 09.12.2011, opposite party no. 3 has only replied to an application given by the petitioner that it is not the cause of action to maintain this petition after a delay of 10 years.
With these observations, the petition is dismissed on the ground of latches.
Order Date :- 20.4.2023
R.C.
