Orissa High Court
Prakash Kumar Jena & Others vs State Of Odisha & Others .... Opp. ... on 28 February, 2020
Author: Biswanath Rath
Bench: Biswanath Rath
HIGH COURT OF ORISSA: CUTTACK
W.P.(C) NO.8148 of 2018
In the matter of an application under Articles 226 & 227 of
the Constitution of India.
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Prakash Kumar Jena & others .... Petitioners
Versus
State of Odisha & others .... Opp. parties
For Petitioners ... Mr. N.S. Panda,
Advocate
For O.Ps.1, 2, 3, ... Mr. S.N.Mishra,
5&6 Addl. Govt. Advocate
For O.P.4 ... Mr. M.K.Pradhan,
Central Govt. Counsel
JUDGMENT
PRESENT:
THE HONOURABLE MR. JUSTICE BISWANATH RATH Date of Hearing and Judgment : 28.02.2020 Biswanath Rath, J. The writ petition involves the following prayer:
"It is therefore prayed that the Hon'ble Court may graciously be pleased to admit the case, call for the relevant records and after hearing the parties pass he following orders:
(i) To direct the Opp. Parties to disburse the salary to the petitioners as per the decisions of the Hon'ble Apex Court from the date other States have given with arrears and accordingly the 7th 2 Pay may be given to them within a stipulated time.
(ii) To direct the Opp. Parties to dispose of the representation within a stipulated time.
(iii) To pass such other order/orders as deemed fit and proper.
(iv) To allow the writ application.
And for which act of kindness, the petitioners shall as in duty bound ever pray."
2. The background involving the case of the petitioners is that they are all continuing as Home Guards for more than ten years as on the date of filing of the writ petition, i.e. on 09.05.2018. As the petitioners were suffering on account of less remuneration being granted by the Government of Odisha being contrary to the direction of the Hon'ble apex Court in Civil Appeal Nos.2782-2783 of 2015 decided along with similar batch of cases together, vide order dated 04.05.2016 as well as the clarificatory direction of the Hon'ble apex Court, vide Contempt Petition(C) Nos.699-700 of 2015 and several orders, they approached this Court for issuing Mandamus against the opposite parties involving herein to disburse their salary following the direction of the Hon'ble apex Court also taking into consideration the benefits flowing through 7th Pay Commission recommendation being adopted by the State Government in the meantime and/or at least giving a 3 direction to the State Government to consider their representation in the light of the above.
3. Referring to paragraph-22 of the decision of the Hon'ble apex Court in Civil Appeal Nos.2782-2783 of 2015, particularly in paragraph-22 therein, Sri N.S.Panda, learned counsel for the petitioners contended that for the direction of the Hon'ble apex Court, the petitioners are entitled to minimum duty allowance at such rates, total of which 30 days (a month) comes to minimum of the pay to which the Police personnel of the State are entitled. It is next taking to the involvement of the Issue in a contempt proceeding, copy of which is available at Annexure-1, referring to the observation part of the Hon'ble apex Court appearing at Pages-15 and 16 in the matter of entitlement to the Home Guards, Sri Panda, learned counsel for the petitioners contended that the petitioners functioning as Home Guards at the minimum are entitled to Basic Pay + Grade Pay + Dearness Allowance + Washing Allowance. It is next taking to the correspondence issued by the Government of India, Ministry of Home Affairs, New Delhi, dated 16.09.2016 appearing at Annexure-2, learned counsel for the 4 petitioners contended that following the directions of the Hon'ble Supreme Court and also the clarification of the Hon'ble Supreme Court through the Contempt Petition (C) No.699-700 of 2015 and on acceptance of the decision of the Hon'ble Supreme Court by the Government of India with a view to apply the direction of the Hon'ble Supreme Court to the similarly situated employees of all the States and Union Territories with a view to apply the same on all such employees (Home Guards) the decision of the Hon'ble apex Court, the Government of India through its letter communicated to the Commandant Generals of Home Guards of all the States and the Union Territories through the Chief Secretaries of all the States and Union Territories directed for applying the judgment of the Hon'ble apex Court in the matter of issuing necessary directions to all concerned. This was followed by another letter dated 07.02.2017, wherein the Government of India while referring to the representation received from one Prakash Kumar Jena (petitioner no.1) from the district of Bhadrak, Odisha in the matter of non-implementation of the order of Hon'ble Supreme Court made to the Chief Secretary of Government of Odisha, Bhubaneswar with a copy to the 5 Director General (Fire Services, Civil Defence and Home Guards) for taking appropriate action. In the meantime, the Director General of Home Guards vide Annexure-4 on 10.11.2016 made its recommendation in the matter of scale of pay to be applied to the Home Guards in the State of Odisha with detailed discussions therein and made appropriate correspondence to the Principal Secretary to Government of Odisha in the Home Department. It is next referring to the communication under Annexure-8 series, Sri Panda, learned counsel for the petitioners drawing attention of this Court to the matter of implementation of the judgment of the Hon'ble apex Court by majority of States and Union Territories and referring to the document at Annexure-9 issued by the Ministry of Home Affairs submitted that in spite of there being a recommendation of the High Power Committee of the Government of India for taking urgent steps to implement the judgment of the Hon'ble apex Court through the Civil Appeals as well as the Contempt Petition, it is alleged that there has been no compliance of the direction of the Hon'ble apex Court not only that the State Government is also not adhering to the directions given by the Government of India from time to 6 time for implementation of the judgment of the Supreme Court as well as direction of the Government of India. It is in the circumstance, Sri Panda, learned counsel for the petitioners contended that the State Government for its non-implementation of the directions of the Supreme Court even in spite of the recommendation as well as the direction of the Government of India is already in deliberate contempt of the Hon'ble Supreme Court's order. It is in the circumstance and in spite of passing of two years time in the meanwhile since the State did not take any decision on their representation, a request is being made by the learned counsel for the petitioners to this Court for issuing Mandamus and directing the State Government to forthwith implement the direction of the Hon'ble apex Court involving the Civil Appeals as well as Contempt Petition at least in the light of the recommendation of the Director General, vide Annexure-4 herein and also taking into consideration of the benefit of 7th Pay Commission's recommendation already implemented in the State in respect of Constables.
4. Sri S.N. Mishra, learned Additional Government Advocate, on the other hand, while objecting to the claim of the petitioners in the first hand submitted that the action of 7 the State Government cannot be construed to be a violation of the direction of the Hon'ble apex Court, both the cases involving Civil Appeals as well as the Contempt Petition did not involve the State of Odisha. Referring to their counter affidavit, Sri Mishra submitted that for the State of Odisha having a decision to grant Rs.9000/-, i.e., @ Rs.300/- per day equivalent to minimum salary of a Police Duty call up allowance on implementation of the 7th Pay recommendation, State is in obligation of the same and they are not bound by the Hon'ble apex Court involved herein. Further on the premises that the Home Guards are since discharging the duties as Volunteers, Sri Mishra also contended that they are not entitled to regular salary, i.e., Grade Pay, Dearness Allowance etc. as per the direction of the Hon'ble apex Court. There is, however, no denial that the Home Guards all over India are working in similar conditions and that some of the States have in the meantime already adhered to the direction of the Hon'ble apex Court. It is at the same time, referring to the plea taken in the affidavit filed on behalf of opposite party no.1 dated 26.2.2020 through Paragraphs-3 and 4 submitted that in working out the direction of the Hon'ble apex Court, 8 only the State Government has to reach a decision to pay the Home Guards a sum of Rs.9,000/- @ Rs.300/- per day, i.e., equivalent to the salary of the Contractual Constable at entry level. Referring to the document, vide Annexure-C to the affidavit dated 26.2.2020, Sri Mishra, learned Additional Government Advocate also attempted to justify that for the decision therein, it can be construed that there is already compliance of the direction of the Hon'ble apex Court referred to herein. While submitting that previously the salary of the Home Guards was at Rs.7200/- per month, i.e., @ Rs.240/- per day taking into consideration the 7th Pay Commission's recommendation, the salary of the Home Guards has been increased to Rs.9000/- per month i.e., @ Rs.300/- per day. Sri Mishra, learned Additional Government Advocate appearing for the State contended that this Court is also to consider the applicability of the judgment of the Hon'ble apex Court in the Civil Appeals as well as the Contempt Petition for the reason that the State is not a party to either of the applications. On the issue of recommendation of the Director General (Fire Service, Home Guards and Civil Defence), Odisha through Annexure- 4, learned Addl. Government Advocate did not dispute that 9 the Director General has taken into consideration the Scale of Pay of the Constables in the lowest rank in Police Service in the State pre-7th Pay Commission application and made the calculations in his recommendation but however contended that though there is already recommendation of the Director General but it appears, the same is contrary to the actual fact and the recommendation therein remains contrary to the minimum pay involving the lowest post in the Odisha Police Service. Sri S.N. Mishra, learned Addl. Government Advocate further on the pretext that there is already existence of a post called 'Contractual Constable' below the post of 'Constable' in the police cadre in the State of Odisha contended that in the event the recommendation of the Director General is implemented, there will be a disparity in payment amongst the Contractual Constables and the Home Guards in the State, which may land in serious resentment amongst the Contractual Constables, who are in the same remuneration at par with the Home Guards but however with assurance of their confirmation in the Post of Constable in the lowest rank in the State Police Service after their completion of six years of continuous service. It is in the above premises, Sri Mishra, learned 10 Additional Government Advocate submitted that the petitioners have in a way already been covered under the direction of the Hon'ble apex Court's judgment involving Civil Appeals as well as Contempt Petition involved herein and accordingly sought for dismissal of the writ petition.
5. Considering the rival contentions of the parties, this Court finds, there is no dispute that all the petitioners are continuing as Home Guards in the State of Odisha for more than 10 years. For the affidavit of the State dated 26.2.2020, there are 6413 nos. of Home Guards of the State, who have already completed 15 years of service and above, 5836 nos. of Home Guards, who have already completed 10 years of service but below 15 years of service, 1944 nos. of Home Guards, who have completed service of 06 years but below 10 years and 2701 nos. of Home Guards with service less than 06 years as of now making the total number of Home Guards in the State of Odisha to 16894. It is also not disputed that all these Home Guards are discharging their duties for eight hours like that of the Constables but neither have holidays to their credit nor have any promotional prospect throughout their career while these people have no holidays to their credit, they are 11 required to work for all the seven days in a week, if they go on leave then they are to sacrifice their Daily Allowance of Rs.300/- for all the days they remain on leave. From the pleadings it further reveals that the petitioners, who are serving as Home Guards, are drawing whole emolument of Rs.9,000/-, i.e. @ Rs.300/- per day and a paltry amount of Rs.25/- per month towards washing allowance. It also appears, in the event the Home Guards remain off, they are not entitled to salary for those off days. The Home Guards have no holiday's system. If they want to take leave, they are to abandon their salary and go on leave. It is at this stage of matter and looking to the prayer involved herein, this Court finds, the Home Guards involving the States of Himachal Pradesh, Punjab and Haryana and National Capital of Territory of Delhi had approached their respective High Courts and being aggrieved by the judgments of these High Courts they approached the Hon'ble apex Court in filing Special Appeal Nos.2759-2800 of 2015 are all disposed of by judgment of the Hon'ble apex Court dated 11.3.2015 finally observing therein in Paragraph-22 as follows :-
"22. In view of the discussion made above, no relief can be granted to the appellants either regularization of services or grant of regular 12 appointments hence no interference is called for against the judgments passed by the Himachal Pradesh, Punjab and Delhi High Courts. However, taking into consideration the fact that Home Guards are used during the emergency and for other purposes and at the time of their duty they are empowered with the power of police personnel, we are of the view that the State Government should pay them the duty allowance at such rates, total of which 30 days (a month) comes to minimum of the pay to which the police personnel of State are entitled. It is expected that the State Governments shall pass appropriate orders in terms of aforesaid observation on an early date preferably within three months. (Emphasis is of this Court)
6. It is for non-compliance of the direction of the Hon'ble apex Court, the matter again appeared before the Hon'ble apex Court in Contempt Petition(C) No.699-700 of 2015 along with several Contempt Petitions, vide Contempt Petition (C) Nos.701-704, 706, 707, 708, 711, 712, 713, 720 of 2015 and 96, 133 & 48 of 2016, which are found to have been disposed of by the Hon'ble apex Court, vide its order dated 4th May, 2016 with the following direction :-
".......According to learned counsel for the petitioners, while implementing the judgment of this Court, the respondents have only considered the basic pay + grade pay and have, accordingly, granted some minor increase in the allowance due to the petitioners as well as Rs.80/- by way of washing allowance.
After hearing learned counsel for the parties, we are of the opinion that the expression "minimum of the pay" mentioned in paragraph 22 is intended to mean not only the basic pay + grade pay, but also the dearness 13 allowance that comes along with the basic pay and grade pay. This is in the context of the view expressed by this Court denying regular appointments to the petitioners, while taking into consideration the fact that the services of the Home Guards are used during an emergency and for other purposes and at the time of their duty they are empowered with the power of police personnel.
Accordingly, we make it clear that the word "minimum of the pay" used in paragraph-22 of the judgment and order dated 11th March, 2015 means the basic pay + grade pay+ dearness allowance + washing allowance.
Our attention has been drawn by learned counsel for the respondents to a decision of this Court in Jiban Krishna Mondal and Others Vs. State of West Bengal and Others, [(2015) 12 SCC 74]. We have gone through the judgment with the assistance of learned counsel for the parties and are of the opinion that the judgment isclearly distinguishable on the facts of the case inasmuch as that case did not concern itself with the grant of pay to the Home Guards.
So far as the present case is concerned, relief of regularization was declined, but this Court directed the payment of minimum of the pay which, as we have explained above, would mean basic pay + grade pay + dearness allowance + washing allowance.
However, we make it clear that the pay that is given to the petitioners will not be on a monthly basis, but will be calculated with reference to each day of work put in by the petitioners.
The contempt petitions are disposed of in view of the above."
7. Here it appears that after the direction was given by the Hon'ble Supreme Court in the Contempt Petition, the 14 Government of India in realisation of the implementation of the Hon'ble apex Court's judgment including the direction involving in the Contempt Petition throughout the Nation issued direction, vide correspondence on 16.09.2016 to all State Governments through all the Chief Secretaries of all the States/ Union Territories and while sending copies of the judgment of the Hon'ble apex Court in the Civil Appeals as well as Contempt Petition, Government of India, Ministry of Home Affairs requested to issue necessary direction to the concerned authority for compliance of the direction of the Hon'ble Supreme Court. For the clear direction of the Government of India to all States for compliance of the direction of the Hon'ble apex Court herein, it becomes mandatory on all States and Union Territories. This Court finds strange to note that even after nearly four years of passage of time, above direction is yet to be complied with by the State of Government. Be that as it may, this Court next finds that vide letter dated 05.10.2016, again the Government of India in the Home Ministry issued another letter to the Secretary to Government in Home Department clearly indicating therein that there is already disobedience of the order of the Hon'ble apex Court. The letter dated 15 05.10.2016, which finds place at Annexure-3/1, reveals the following disclosure as under :
"Sir, Please find enclosed herewith a copy of the complaint letter dated 06/09/2016 received from Shri Prakash Kumar Jena, Vice-President Home Guards Association, Bhadrak, Odisha, regarding non-implementation of Supreme Court Judgment dated 4th May, 2016 by Odisha Govt. In r/o Contempt Petition No.699-700 in Civil Appeal No.2782-2783 of 2015 in the Case of Tej Singh & Ors. Vs. Sarvesh Kaushal & Anr. On the above subject for appropriate action."
It is, therefore, on receipt of a representation from one of the Home Guards in the State, namely, Prakash Kumar Jena of the district Bhadrak alleging non- implementation of the direction of the Hon'ble Supreme Court, it appears, the Government of India, Ministry of Home Affairs, New Delhi, vide its letter dated 02.02.2017 again wrote to the Chief Secretary to Govt. of Odisha, Bhubaneswar with copy to the Director General (Fire Services, Civil Defence and Home Guards) also enclosing therein a copy of the representation received from said Prakash Kumar Jena for necessary action at their end. It appears, for the repeated directions of the Government of India, as indicated hereinabove, the Director General (Fire Services, Home Guards and Civil Defence), Odisha, taking 16 up an exercise in working out the direction of the Hon'ble apex Court in terms of direction of the Govt. of India, vide letter dated 10.11.2016, Annexure-4 communicated the decision to the Principal Secretary, Home Department, Govt. of Odisha, which runs as follows :-
"Sir, In inviting reference to the Govt. Home (CD) Deptt., letter No.653/CD dtd.21.10.2016 on the aforementioned subject, this is to intimate as under.
Home Guards Volunteers as auxiliary to Police and Fire Services are being utilized to assist the Police and Fire Service Personnel in various duties like Law and Order, Night Patrolling, Guard duty, Traffic and also at different Fire Stations. Similarly, as per Section-5 of the Odisha Home Guards Act, 1961, a member of the Home Guards when called out under Section-4 shall have the same powers, privileges and protection as an Officer of Police appointed under any law for the time being in force.
The Hon'ble Supreme Court vide order dtd.11.03.2015 in Civil Appeal No.2768/2015 on paragraph-22 directed that Home Guards Volunteers should be paid the duty allowance at such rates total of which for 30 days (a month) comes to the minimum of pay to which the Police Personnel of State are entitled. Further, the Hon'ble Supreme Court in Contempt Petition No.133 of 2016 on the above Civil Appeal have clarified that the minimum of the pay used in Paragraph-22 of Judgment and order dtd.11.03.2015 means the Basic Pay + Grade Pay + Dearness Allowance + Washing Allowance. In this context, the Commandants General, Home Guards of some of our neighbouring States were requested vide this Directorate General letter No.3728/HG dtd.01.10.2016 (Copy enclosed) followed by two reminders to intimate if the Home Guards Volunteers of their States are being 17 paid DCA (Pay + Grade Pay + Dearness allowance + Washing allowance) as per orders of the Hon'ble Supreme Court in Civil Appeal No.133 of 2016. In response to this, information only from the States of Punjab, Madhya Pradesh, Bihar, Chhatisgarh, Maharastra have been received vide their letter No.16/1/PHG-2016/TRG /A-9/14274 dtd.14.10.2016, no.II-2/221/75/F(1) /BUD/16-17 dtd.14.10.2016, No.4717/PATNA/ EXV-6-15 dtd.18.10.2016, No.1724/F/2/07-08/ 2016 dtd.20.10.2016 and letter No.CG/DESK- 3/HC/2016-3602 DTD.27.10.2016 respectively. Copy of these letters are enclosed herewith for kind information.
These reveal that, only the Punjab State is paying Duty-allowance to their Home Guards Volunteers as per orders of the Hon'ble Supreme Court, i.e. Basic Pay + Grade Pay + Dearness Allowance + 119% = (Rs.10,300/-+ Rs.3,200/- + Rs.16,065/- = Rs.29, 565/-) i.e. the DCA per day is Rs.29,565/- X 12 / 365 = Rs.972/-.
It is further mentioned that, the present sanctioned strength of Home Guards Volunteers of the Odisha State is 17,675 (copy enclosed) and as per Govt. of Odisha Home Deptt. Letter No.989/CD dtd.16.09.2010, (Copy enclosed) these Home Guards Volunteers are being utilized through the year for 365 days or 366 days.
Presently, the Home Guards Volunteers of the Odisha state are getting Rs.240/- as DCA per day as pr Govt. Of Odisha Home (CD) Deptt., Memo No.317/CD, dtd.07.05.2016. In case they are paid the DCA equivalent to the minimum of the pay of a Police Personnel in lowest rank, i.e. Constable of Police, i.e. Pay + Grade Pay + 125% Dearness allowance + Washing Allowance as directed by the Hon'ble Supreme Court, then the total monthly emolument of a Home Guard Volunteer will be Pay (Rs.5,200/-) + Grade Pay (Rs.2,000/-) + Dearness Allowance-125%, i.e. (Rs.9,000/-) = Rs.16,225/- and the daily duty allowance will be Rs.16,200/- X 12 / 365= Rs.532.60 or 533/-. Besides DCA Home Guards are getting washing Allowance Rs.25/- per month.
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In the above event, the DCA of a Home Guard Volunteer will rise by (Rs.533.00 -
Rs.240.00) =Rs.293/- per day per Home Guard and in respect of 17675 Home Guards there will a financial implication of rs.51,78,775/- on the Govt. Per day towards payment of DCA to them. The annual financial implication would amount to Rs.189/- crores if they are engaged 365 days a year.
In view of the above, Govt. May kindly take a considered view in the matter."
8. Further it appears, pursuant to the direction of the Hon'ble apex Court and repeated instructions of the Government of India, the order of Hon'ble apex Court has already been complied with by several States, as appearing at Annexure-8 series. Documents at Annexure-8 series reveal, particular Home Guard Volunteers in the Union Territory, New Delhi have already been provided with Rs.15,840/- per month, i.e. @ Rs.528/- per day since 15.09.2016. Similarly, the State Government of Goa has also on implementation of the direction of the Hon'ble apex Court has already granted a sum of Rs.18,770/- per month to all such Home Guards, i.e. @ Rs.626/- per day, w.e.f. 01.06.2017. These fixations are of course based on the 6th Pay Commission compliance. On compliance of the direction of the Hon'ble apex Court, it appears, the State Government of Punjab has also implemented the decision of 19 the Hon'ble apex Court. Similarly, State Govt. of Himachal Pradesh, State Govt. of Madhya Pradesh, State Govt. of Kerala, State Govt. of Bihar, State Govt. of Chhatishgarh, State Govt. of Maharashtra, State Govt. of Goa and Union Territory, Lakshyadeep have already implemented the judgment of the Hon'ble apex Court. In the meantime, State Govt. of Punjab has started paying to the Home Guards a sum of Rs.29,565/-, State Govt. of Madhya Pradesh a sum of Rs.29,565/-, State Govt. of Bihar a sum of Rs.29,565/-, State Govt. of Chhatishgarh a sum of Rs.29,565/-, State Govt. of Maharashtra, a sum of Rs.29,565/-, State Govt. of Haryana a sum of Rs.17,160/-, State Govt. of Himachal Pradesh a sum of Rs.17,134/-, State Govt. of Goa a sum of Rs.18,770/- and State Govt. of Kerala a sum of Rs.18,000/-, Union Territories like Lakshyadeep a sum of Rs.19,260/- and New Delhi a sum of Rs.20,550/-. Some of these States as appears fixed salary on implementation of the 6th Pay recommendation whereas some States as appears fixed after taking into consideration the 7th Pay recommendation.
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9. It is at this stage, taking into consideration the submission of the learned Addl. Government Advocate that the State Government of Odisha being not a party to the Civil Appeal as well as Contempt Petition in the Hon'ble apex Court and for there being no direction to the State Government of Odisha in more particularly they are in difficulty in implementing such direction, this Court taking into consideration here the development through Anenxures-2 to 4 finds, the direction of the Hon'ble apex Court remains binding on all States after the decision of the Government of India being taken to implement the direction of the Hon'ble apex Court involving all the States and Union Territories in a way to achieve an uniformity involving the Home Guards throughout the Nation. This Court here finds, there are also repeated directions by the Government of India for implementation of the said judgment keeping in view the decision of the Government of India to apply the decision of the Hon'ble Supreme Court of India to all States uniformly. Thus the plea, as advanced by the State Government, is no more available to be considered. Further, this Court clarifies, that once the Hon'ble apex Court has already given a direction involving Home Guards 21 in particular State and for there being no material brought through the counter affidavit or any additional affidavit that there is difference in working condition of the Home Guards in this State than the Home Guards deployed in the State of Uttarakhand or Himachal Pradesh or even in the States and Union Territories, which have already taken decision to step up the salary of the Home Guards in their States. As discussed herein above, this Court finds, there is no escape for the State of Odisha than to implement the direction of the Hon'ble apex Court. From the discussions in Annexure- 4, this Court not only finds the Director General (Fire Services, Home Guard and Civil Defence) in his recommendation not only admitted that the Constable Post is in the lowest level of the State Police personnel but he has also while recommending fitment of pay of the Home Guards in the State @ Rs.16225/- per thirty days, i.e., @ Rs.532.60 paise per day along with washing allowance of Rs.25/- per month has also clearly indicated to have taken into consideration of the decision in respect of similarly situated persons in the State of Punjab, Madhya Pradesh, Bihar, Chatisgarh, Maharastra thus leaving no doubt that the Direct General has a clear indication on the subject 22 leaving no scope for the State Government to find it otherwise. It is here further taking into consideration the submission of the Addl. Government Advocate that there may be disparity in the matter of payment amongst the Home Guards and the Contractual Constables, this Court here observes, looking to the direction of the Hon'ble apex Court in the Civil Appeal as well as the Contempt Petition, indicated herein above, Hon'ble apex Court in clear term directed the Home Guards to be treated in the lowest rank of police service with minimum of pay, to which police personnel of the State are entitled to. Looking to the Police Manual and also taking support of the Director General's recommendation, it appears, the Constables in the Police Establishment are in the lowest rank of the police personnel in the State of Odisha. If the State Government has created any post of contractual Constable, since it is outside the cadre of police personnel, this development has nothing to do with the case at hand. Further in the event the Contractual Constables also treated at par with the Home Guards, the State Government is also obliged to treat them also in the light of the judgment of the Hon'ble apex Court 23 indicated herein above until they are regularly absorbed as Constables.
10. It is now looking to the documents through Annexure-8 series, this Court finds surprise in the attitude of the State Government as to when the direction of the Hon'ble apex Court involving the above cases being complied already by the States of Punjab, Madhya Pradesh, Bihar, Chhatishgarh, Maharashtra, Kerala, Haryana, Himachal Pradesh and Goa and also by the Union Territories like, Lakshyadeep and New Delhi, this Court finds no reason for the State of Odisha in not implementing the direction of the Hon'ble Supreme Court indicated hereinabove. For non- compliance of the direction of the Hon'ble apex Court involving Civil Appeal and that too involving direction in a Contempt Petition in the Hon'ble Supreme Court, the State Government appears to be in contempt of the judgment of the Hon'ble Supreme Court. This observation is made by this Court keeping in view that the situation in the State is still not improving even after repeated directions of the Government of India directing the State Government to apply such decision in the case of Home Guards in their 24 respective States and even after implementation of the judgment of the Hon'ble Supreme Court by several States.
11. This Court here finds, not only the Home Guards under the Police Department have taken over the security duty of almost all important Government Establishments, it is also apparent that the State also utilises their services for the purpose of providing security not only in the houses of officials, who are entitled to Official Security but it has also become a normal feature that the Home Guards have almost taken over the Law and Order controlling of the main streets of almost all Cities be it a big City or small City in the entire State of Orissa. This apart, it is also observed that the Home Guards are even required to discharge their duties to maintain traffic control, to assist the Police personnel in maintaining law and order, to assist Police personnel in Mobile Van duty, Emergency Call Duty, positioned in the local Police Station, all sorts of Government Hospitals, giving duties in Government Premises, duty in Court Office Premises even posted in the houses of High Rank Police Officials and Judges of the State. Thus leaving no doubt that there is virtually no difference in the working between both the sources. It thus 25 appears, State Government instead of creation of sufficient number of Constable Posts in the Police Service Establishment is getting the services of Constables done through almost seventeen thousand Home Guards. For the affidavit of the State Government, the Home Guards in the State even after completion of 15 years of service are paid @ Rs.300/- per day for their working days thus making Rs.9000/- for 30 working days. It be stated here that the Home Guards in the State are paid even half of rate meant for semiskilled employees fixed by the State under the Minimum Wages Notification. This Court here takes into account the direction of the Hon'ble Supreme Court and finds in the disposal of Civil Appeal Nos.2782-2783 of 2015, the Hon'ble Supreme Court when directed the Home Guards to be entitled to at the minimum in the rank of Police personnel and in their clarification, vide Contempt Petition Nos.699-700 of 2015, Hon'ble Supreme Court in clear terms directed the Home Guards involved shall be entitled to minimum pay means Basic Pay + Grade Pay + Dearness Allowance + Washing Allowance. In the circumstance, this Court does not find any difference can be made in the duties of Home Guards in the State of Odisha 26 and other States and Union Territories in the country. Following the direction, it appears, at least eight States and two Union Territories after the Government of India's direction to implement it in all States have already implemented the direction of the Hon'ble apex Court in the following manner :-
Sl. Name of the Payment Pay Grade D.A. Wash Total No. State w.e.f. Rs. Pay Rs. Rs. Allow- amount (19%) ance In Rs.
1. Punjab 14.10.16 10,300/- 3,200/- 16165/- 80/- 29,565/-
2. Madhya 14.10.16 10,300/- 3,200/- 16065/- 80/- 29,565/-
Pradesh
3. Bihar 18.10.16 10,300/- 3,200/- 16065/- 80/- 29,565/-
4. Chhatisgarh 20.10.16 10,300/- 3,200/- 16065/- 80/- 29,565/-
5. Maharastra 27.10.16 10,300/- 3,200/- 16065/- 80/- 29,565/-
6. Kerala 04.03.16 - - - - 18,000/-
(per day 600/-)
7. Haryana 01.11.16 - - - - 17,160/-
(per day 572/-)
8. Himachal 14.10.15 5,910/- 1,900/- 9294/- 30/- 17,134/-
Pradesh
9. Goa 01.06.17 18,000/- - 720/- 50/- 18,770/-
(p.d.
642/-)
10. Lakshyadeep 14.08.18 - - - - 19,260/-
(p.d.
642/-)
11. New Delhi 01.01.18 18,000/- - 1,260/- 90/- 20,550/-
In the circumstance and particularly for the direction of the Hon'ble apex Court being worked out by ten States 27 including the Union Territories as per the information provided through affidavit, this Court does not find any plausible reason in not implementing the same by the State of Odisha in respect of the Home Guards in this particular State.
12. For inordinate delay in implementation of the direction of the Hon'ble apex Court by the State of Odisha even after the direction of the Government of India, this Court while allowing the writ petition directs the State Government in compliance of the direction of the Hon'ble apex Court, vide Civil Appeals and Contempt Petition referred to herein above following the Government of India directives taken note and further as this Court finds, the recommendation of the Director General is strictly in terms of the apex Court's clarification in the Contempt Petition referred to herein above, to forthwith implement the recommendation of the Director General (Fire Service, Home Guards, Civil Defence), Odisha in respect of all the Home Guards in the State of Odisha, keeping in view to have a check of flooding of writ petitions by each of the Home Guards on the role of the State to this Court. While 28 taking decision, State is also directed to take into account the increase in the Pay of the Constables on application of the 7th Pay Commission's report. Entire exercise be completed as expeditiously as possible preferably within a period of one month from the date of communication of this order by either party.
13. For the Director General of Police, Odisha recommended payment at the minimum a sum of Rs.533/- per day taking into consideration the remuneration available to the Constables in the State of Odisha in the lowest rank in the police personnel since 10.11.2016, this Court while granting time to the State Government to implement the recommendation of the Director General at Annexure-4 within a period of one month also keeping in view the observations herein above directs that the Home Guards in the State of Odisha pending decision on final fitment be paid provisionally at the minimum Rs.500/- (Rupees Five hundred) from January, 2020. This payment will however be subject to the final decision of the Government of Odisha on implementation of the recommendation of the Director General. Arrear, if any, likely to be accrued on account of the ultimate decision of 29 the State Government shall also be paid to all Home Guards within a period of three months thereafter.
14. With the above observations and directions, the writ petition stands allowed. There shall be no order as to cost.
Free copy of this judgment be supplied to Sri S.N.Mishra, learned Additional Government Advocate for information and implementation by the State.
............................................ BISWANATH RATH, J.
Orissa High Court, Cuttack.
Dated 28th February, 2020/Uks, PA