Decided on August 19,2020

State Of Odisha Appellant
Prakash Kumar Jena Respondents


MOHAMMAD RAFIQ,A. K. MISHRA,JJ. - (1.) This appeal is directed against the judgment dated 28.02.2020 passed in W.P.(C) No.8148 of 2020 by the learned Single Judge, by which the writ petition filed by the applicants (respondent Nos.1 to 3 herein) namely; Prakash Kumar Jena, Prasanna Kumar Behera and Lokanath Mohanta, has been allowed with the following directions: " xx xx xx 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 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 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."
(2.) According to the case set up by the respondents in the writ petition, they are working as Home Guards for more than 10 years under the Home Department of appellants-State of Odisha. In the writ petition, they sought a direction to the appellant-State of Odisha to disburse their salary as per the direction of the Apex Court in Grah Rakshak, Home Guards Welfare Association vs. State of Himachal Pradesh and others, 2015 6 SCC 247and subsequent order dated 04.05.2016 passed in a contempt petition i.e. Contempt Petition (C) No.699-700 of 2015, by which the Apex Court has clarified its earlier order. Prayer was also made by the respondents to give them benefit of 7th Pay Commission from the date this has been given to their counter parts by other States.
(3.) The Supreme Court in Grah Rakshak, Home Guards Welfare Association, (supra) considered the working conditions of the Home Guards in different States of the Country, especially, the State of Himachal Pradesh, Bombay, and NCT of Delhi. While reiterating its earlier view that the 'Home Guards' is a volunteer organization, the Supreme Court held that their enrolment cannot be considered as an appointment on regular basis. They are not paid salary as is granted to the regular employee but are only paid Duty Allowance and other allowances. But at the same time, the Supreme Court observed that it was not the case of the State Governments that enrollment/appointments of the Home Guards were back door engagement and were made in violation of Articles 14 and 16 of the Constitution and on that basis, it held that the ratio of the judgment of the Supreme Court in the case of State of Karnataka vs. Uma Devi (3) and ors., 2006 4 SCC 1, would not be applicable to their case. Observing that the Home Guards are paid duty allowances and other allowances only for the period of time they are required to perform their duty, the Supreme Court held that no relief can be granted to the appellants either of regularization in services or of regular appointment. The Supreme Court however allowed the appeals in part with the following directions: "22. In view of the discussion made above, no relief can be granted to the appellants either regularization of services or grant of regular 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." (Para-39 of the report in SCC) ;

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