APHC010071232023 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3460] WEDNESDAY,THE TWENTY FOURTH DAY OF DECEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY WRIT PETITION NO: 3549/2023 Between: 1. N VIJITH KUMAR, S/O LATE RAMANA REDDY AGE.33 YEARS, OCC. HOME GUARD 437 REMOVED R/O EGUVA JANDRAPETA H/O AMMAGARIPALLI, SODAM MANDAL, CHITTOOR DIST ...PETITIONER AND 1. THE STATE OF AP, REP BY ITS PRINCIPAL SECRETARY HOME DEPARTMENT SECRETARIATE, VELAGAPUDI, GUNTUR DIST. 2. THE ADDITIONAL DIRECTOR GENERAL OF POLICE, HOME GUARDS, MANGALAGIRI TOWN, GUNTUR DIST. 3. THE COMMANDANT, HOME GUARDS, KURNOOL TOWN, KURNOOL DIST. 4. THE SUPERINTENDENT OF POLICE, CHITTOOR TOWN, CHITTOR DIST. ...RESPONDENT(S): Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the 2 High Court may be pleased topleased to issue a writ or direction preferably writ of mandamus declaring the order issued by the 4th respondent vide D.O.No.20/2022 dt. 12-12-2022 removing the petitioner from Home Guard Rolls on the ground that he has exhibited gross neglect of duty by indulging in Gambling Cases thereby bringing the image of the Police to disrepute as highly illegal, arbitrary and violative of principles of natural justice and consequently set aside the order dt.12- 12-2022 by declaring that the petitioner is entitled for reinstatement as Home Guard with all consequential benefits, and pass IA NO: 1 OF 2023 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased pleased to Suspended the impugned Removal order vide D.C.No.20/2022 dt.12-12-2022 issued by the 4th respondent with a further direction to the respondents to reinstate the petitioner into service as Home Guard, pending disposal of the writ petition. Counsel for the Petitioner: 1. M M M SRINIVASA RAO Counsel for the Respondent(S): 1. GP FOR SERVICES I The Court made the following: 3 HON’BLE SRI JUSTICE NYAPATHY VIJAY W.P.No.3549 of 2023 O R DE R: The present Writ Petition is filed questioning the order dated 12.12.2022 removing the Petitioner from Home Guard rolls by Respondent No.4 as illegal and arbitrary. 2. Petitioner was enlisted as Home Guard in Chittoor HG Unit in November, 2009 and was attending duties ever since. While so, an enquiry was initiated against the Petitioner with regard to a criminal case registered vide FIR.No.05/2020 on 29.01.2020 for the offence under Section 9-1 of the Andhra Pradesh Gambling Act on the ground that the Petitioner was playing cards in public place. The FIR was registered as STC.No.40 of 2021 and the same was closed on 10.02.2020 on payment of fine of Rs.300/- as the allegations were admitted by the Petitioner. Similarly, another crime was registered vide FIR.No.68 of 2021 on 01.06.2021 also for the very same offence and the same was ended in acquittal in STC.No.335 of 2020 on 28.12.2021 on payment of fine on admission by the Petitioner. In view of the same, the Petitioner was placed under suspension on 28.02.2022 4 on the ground of misconduct and subsequently, the Petitioner was terminated from service under the impugned proceedings. 3. The only question raised by the Petitioner is that Respondent No.4 is not competent authority as held by this Court in V.Sadasiva v. State of Andhra Pradesh1 and hence seeks to set aside the impugned order. 4. Learned Assistant Government Pleader would submit that as there is admission of guilt by the Petitioner, the impugned order of removal from service on the Petitioner cannot be faulted. 5. Heard Sri M.M.M.Srinivasa Rao, learned counsel for the Petitioner and learned Government Pleader for Services-I. 6. This Court in V.Sadasiva’s case (1 supra), after considering the competency of the authority to pass penalties on Home Guards, held that the ‘Commandant’ can only pass removal/suspension orders and not the Superintendent of Police or Commissioner of Police as the power of Commissioner of Police or Superintendent of Police is recommendatory in nature. The relevant paragraph of the order is extracted below: 1 2021(4) ALD 21 5 138. The language employed in sub-rule (5) of Rule 7 i.e. "direct the suspension, removal, or dismissal" assumes importance. The meaning of word "direct" is "to point to; guide; order, command: instruct, to advise, suggest, request". A close analysis of the language used in Rule 7 (3) (4) and (5) of the Madras Home Guards Rules, 1949, it is clear that the Commissioner in Presidency-town and Superintendent of Police concerned in other areas for sufficient and good reasons, "direct the suspension, removal, or dismissal" of a Home Guards from his office. Therefore, the power of the Commissioner of Police or Superintendent of police is recommendatory in nature and on the recommendation of Commissioner of Police in the presidency town and the District Superintendent of Police direct the Commandant as referred in sub- rule (4) of Rule 7 of the Madras Home Guards Rules for suspension/removal or dismissal only, but the ultimate authority to remove/suspension/dismiss is the Commandant not the Superintendent of Police or Commissioner of Police. Hence, the orders impugned in the petitioners are contrary to Rule 7 (3) (4) and (5) of the Madras Home Guards Rules, on this ground also the impugned orders are liable to be set aside. 7. The above said finding was not disturbed in Writ Appeal filed thereon. 8. In view of the above, the impugned order of removal cannot be sustained and the impugned order dated 12.12.2022 is set aside only on the issue of competency. 6 8. The writ petition is disposed of with the following directions: (i) The impugned order dated 12.12.2022 is set aside. (ii) Respondent No.2 is at liberty to give recommendations to Respondent No.3 for taking appropriate decision against the Petitioner. (iii) On receipt of the said recommendation, Respondent No.3 shall pass appropriate orders thereon as expeditiously as possible. (iv) There shall be no order as to costs. As a sequel, the miscellaneous petitions if any shall stand dismissed. ___________________ NYAPATHY VIJAY, J Date: 24.12.2025 KLP