Prakash Kumar Jena vs The State Of Odisha

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.8836/2022

PRAKASH KUMAR JENA & ORS. ..APPELLANT(S)

VERSUS

THE STATE OF ODISHA & ORS. .. RESPONDENT(S)

WITH C.A. No. 8837 / 2022 WITH C.A. No. 8838 / 2022

JUDGMENT

M. R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned

judgment and order passed by the Division Bench of the

High Court of Orissa at Cuttack in W.A. No.319 of 2020, Signature Not Verified Digitally signed by R

the original writ petitioners working as Home Guards and Natarajan Date: 2023.03.17 14:30:31 IST Reason:

the State of Orissa both have preferred the present

:1: appeals.

2. Civil Appeal arising out of SLP No.3906 of 2022 has been

filed by the State of Orissa and others challenging the

order passed by the High Court of Orissa at Cuttack in

W.P. (C) No.19556 of 2020 by which the High Court has

disposed of the said writ petition in terms of the

judgment and order passed in W.A. No.319 of 2020

which is the subject matter of C.A.No.8836 of 2022.

Therefore, C.A. No.8836 of 2022 arising out of the

impugned judgment and order passed by the High Court

in W.A. No.319 of 2020 is treated as lead matter and the

facts arising out of the said W.A.No.319 of 2020 are

narrated, which are as under: ­

2.1 That the original writ petitioners all are / were working as

Home Guards for more than 10 to 15 years under the

Home Department of the State of Orissa. After rendering

10 to 15 years of service, they filed the writ petition before

the learned Single Judge for a direction to the State to

disburse their salary as per the direction of this Court in

:2: the case of Grah Rakshak, Home Guards Welfare

Association vs. State of Himachal Pradesh and others

reported in (2015) 6 SCC 247 and the subsequent

order / clarificatory order dated 04.05.2016 passed in

Contempt Petition (C) Nos. 699­700 of 2015, by which

this Court clarified its earlier order. A relief was also

sought to give them benefit of 7th Pay Commission from

the date the same had been given to their counterparts of

the other States. The learned Single Judge following the

decision of this Court in the case of Grah Rakshak

(supra) allowed the said writ petition directing the State

Government to implement the recommendations of the

Director General (Fire Service, Home Guards, Civil

Defense), Orissa in respect of the Home Guards in the

State of Orissa as per the decision of this Court in the

case of Grah Rakshak (supra). The learned Single Judge

also directed the State to take into account the increase

in the pay of the Constables on application of the 7 th Pay

Commission’s report. That it is required to be noted that

:3: earlier the Director General of Police, Orissa,

recommended payment at the minimum sum of Rs.533/­

per day taking into consideration the remuneration

available to the Constables in the State in the lowest rank

in the Police personnel since 10.11.2016. Therefore, the

learned Single Judge while granting one month time to

the State Government to implement the said

recommendation directed that the Home Guards in the

State of Orissa pending decision under final fitment be

paid provisionally at the minimum Rs.500/­ from

January, 2020, subject to the final decision of the

Government of Orissa on implementation of the

recommendation of the Director General.

2.2 Feeling aggrieved and dissatisfied with the judgment and

order passed by the learned Single Judge in W.P.No.8148

of 2020, the State of Orissa and others preferred W.A. No.

319 of 2020. By the impugned judgment and order, the

Division Bench of the High Court by and large affirmed

the judgment and order passed by the learned Single

:4: Judge. However, The High Court restricted the payment

at the rate of Rs.533/­ per day to the Home Guards from

January, 2020, instead of 10.11.2016, as directed by the

learned Single Judge.

2.3 Feeling aggrieved and dissatisfied with the impugned

judgment and order passed by the Division Bench of the

High Court in W.A.No.319 of 2020, the original writ

petitioners – Home Guards as well as the State of Orissa

have preferred the present appeals.

3. Learned counsel appearing on behalf of the State of

Orissa has vehemently submitted that the High Court

has materially erred in directing the State to pay

Rs.533/­ per day as Duty Call­up Allowance (hereinafter

referred to as “DCA”) to the Home Guards working in the

State and the same would be much more than the

amount being paid to the Constables at the entry level

recruited as per Odisha Group­C & Group­D (Contractual

Appointment) Rules, 2013 (hereinafter referred to as the

:5: Rule, 2013).

3.1 It is submitted that the High Court has failed to

appreciate that earlier as per the 6th Pay Commission

entitlement, the Constables at the entry level recruited as

per Rule 2013 used to get Rs.7,200/­ per month at entry

level. Therefore, Home Guards in the State of Orissa were

entitled to get Rs.240/­ per day as Daily Pay allowance/

Duty Call­up Allowance. It is submitted that however,

after the 7th Pay Commission, the pay of Police Constable

at entry level was revised to a consolidated remuneration

of Rs.9,000/­ per month as against Rs.7,200/­ per

month. It is submitted that therefore and accordingly, the

payment to the Home Guards was also revised to

Rs.300/­ per day from Rs.240/­ per day apart from

Rs.25/­ per month towards Washing Allowance. It is

submitted that therefore the State of Orissa as such

complied the judgment of this Court in the case of Grah

Rakshak (supra).

:6: 3.2 It is further submitted that even the High Court has

materially erred in taking into consideration the

recommendations made by the Director General, as apart

from the fact that the recommendations made by the

Director General were not binding on the State

Government, the Director General had also not taken into

consideration the remuneration of the Constables at

entry level appointed under Rule 2013. It is submitted

that rather the recommendations are based on the

comparative daily allowances of the Home Guards paid by

other States in the country. It is submitted that the facts

peculiar to the State of Orissa has not at all been taken

into consideration by the Director General in the

recommendations. It is submitted that therefore the High

Court has failed in error by solely relying upon the

recommendations of the Director General.

3.3 It is further submitted by learned counsel appearing on

behalf of the State that if the Home Guards in the State

:7: are paid daily pay allowance / Duty Call­up Allowance at

the rate of Rs.533/­ per day as directed by the High

Court, it would create an anomalous situation because

the Constables at entry level as per 7 th Pay Commission

would get only Rs.9,000/­ per month, whereas at the rate

of Rs.533/­ per day, the Home Guards would get more

than Rs.15,000/­ per month. It is submitted that

therefore same would be against the judgment of this

Court in the case of Grah Rakshak (supra).

3.4 It is further submitted by the learned counsel appearing

on behalf of the State that the High Court has also failed

to appreciate that presently 16894 numbers of Home

Guards are working in the State and therefore if the

Home Guards working in the State are paid salary as per

the directions issued by the learned Single Judge

modified by the Division Bench, in that case, a huge

financial burden would be fastened upon the State.

3.5 With above submissions, it is prayed to allow the present

:8: appeals preferred by the State.

4. While opposing the present appeals preferred by the

State, the learned counsel appearing on behalf of the

respective Home Guards/ original writ petitioners /

applicants have vehemently submitted that the direction

issued by the learned Single Judge affirmed by the

Division Bench of the High Court directing the State to

pay DCA at Rs.533/­ per day is absolutely in consonance

with the judgment of this Court in the case of Grah

Rakshak (supra) and the subsequent clarificatory order. 4.1 It is submitted that this Court in the case of Grah

Rakshak (supra) though rejected the prayer of the Home

Guards for regularization of their services or for grant of

regular appointments, however, directed all the State

Governments to pay them the DCA at such rate total of

30 days (one month) comes to minimum of the pay to

which the Police personnel of the State are entitled. It is

further submitted that thereafter dispute arose whether

:9: same includes DA or not and therefore this Court

clarified that the payment of minimum of the pay would

mean basic pay + grade pay + dearness allowance +

washing allowance. It is submitted that this Court also

further clarified that the pay that is given to the Home

Guards will not be on a monthly basis but will be

calculated with reference to each day of work put in by

the Home Guards.

4.2 It is submitted that thereafter the Government of India,

Ministry of Home Affairs as early as on 16.09.2016

requested all the Chief Secretaries of all States and

Union Territories to issue necessary directions for

compliance of the aforesaid judgment. It is submitted

that thereafter many States have complied with the

directions issued by this Court in the case of Grah

Rakshak (supra) and the clarificatory order except the

State of Orissa. It is submitted that even so far as the

State of Orissa is concerned, the Director General in the

year 2016 itself recommended to pay a minimum of

: 10 : Rs.533/­ per day to the Home Guards in the State of

Orissa from 10.11.2016 in light of the judgment of this

Court in the case of Grah Rakshak (supra) and the

clarificatory order.

4.3 Learned counsel appearing on behalf of the respective

Home Guards have prayed to consider the following facts:

(i) This Hon’ble Court had in the judgment dated

11.03.2015 passed in the matter of Grah Rakshak,

Home Guards Welfare Association vs. State of

Himachal Pradesh directed payment of such DCA

preferably within three months;

(ii) The Government of India, Ministry of Home Affairs

as early as on 16.09.2016 had requested the Chief

Secretaries of all States and Union Territories to

issue necessary directions for compliance of the

aforesaid judgment;

(iii) The Government of India, Ministry of Home Affairs

wrote letter dated 5.10.2016 to the Secretary, Home

: 11 : Department, Government of Orissa for taking

appropriate action regarding the complaint of

Petitioner No.1 about disobedience of the order

passed by this Hon’ble Court regarding payment of

salary to Home Guards;

(iv) the Directorate General (Fire Service, Home Guards,

Civil Defence) Odisha, in light of the judgment dated

11.03.2015 passed by the Hon’ble Supreme Court

in the matter of Grah Rakshak, Home Guards

Welfare Association vs. State of Himachal Pradesh

and judgment dated 04.05.2016 passed in

Contempt Petition (C) No.699­700 of 2015, issued a

recommendation to Principal Secretary to

Government of Odisha, Home Department i.e.

Respondent No.2 to pay a minimum of Rs.533/­ per

day to the Petitioners and other Home Guards in

the State of Odisha from 10.11.2016, after taking

into consideration the remuneration paid to the

Constables in the State of Odisha in the lowest rank

: 12 : in the police personnel.

(v) The Ministry of Petroleum and Natural Gas,

Government of India issued a letter dated

31.10.2017 to the Chief Minister of Odisha

regarding the receipt of a petition in connection with

implementation of judgment dated 04.05.2016

passed by this Hon’ble Court in Contempt Petition

(c) No.699­700 of 2015 regarding payment of Home

Guards’ salary, for appropriate action.

(vi) The MHA directed the Chief Secretary of all the

States including the State of Odisha on 11.04.2018

to implement the judgments passed by this Hon’ble

Court in the matter of Grah Rakshak, Home Guards

Welfare Association vs. State of Himachal Pradesh

and Contempt Petition (c) No.699­700 of 2015, for

enhancing the duty allowance of Home Guards

latest by 15.09.2018.

(vii) Writ petition was filed by the petitioners on

09.05.2018.

: 13 : 4.4 It is further submitted by learned counsel appearing on

behalf of original writ petitioners/ applicants/ Home

Guards that the submission on behalf of the State that

the Constables in the State at the entry level recruited as

per Rule 2013 were getting Rs.7,200/­ per month as per

6th Pay Commission and thereafter at the rate of

Rs.9,000/­ per month after the 7 th Pay Commission

recommendations and therefore, the Home Guards shall

be entitled to the same consolidated remuneration of

Rs.9,000/­ per month is concerned, it is submitted that

said submission is absolutely misplaced. It is submitted

that as per Rule 2013, the Constables are appointed

initially on contractual basis and thereafter after few

years of service, they are made permanent. It is

submitted that in the present case, the prayer of Home

Guards for regular appointment and/or regularization of

their services have been declined. It is submitted that the

question is what the Constables are getting as minimum

of the pay­scale/pay. It is submitted that all the aforesaid

: 14 : aspects were as such dealt with and considered by the

Director General in his recommendation dated

10.11.2016.

4.5 It is submitted that even otherwise except the State of

Orissa, all other States have complied with the directions

issued by this Court in the case of Grah Rakshak

(supra). It is submitted that therefore all the Home

Guards working in the State of Orissa are entitled to

similar benefits which are being paid to the Home Guards

in other States.

4.6 Now so far as the impugned judgment and order passed

by the Division Bench of the High Court restricting the

benefits of the DCA at Rs.533/­ per day from January,

2020, is concerned, learned counsel appearing for the

respective original writ petitioners – Home Guards have

vehemently submitted that as such no cogent reasons

have been given by the Division Bench of the High Court

restricting the said benefits from January, 2020 only.

: 15 : 4.7 It is submitted that as such this Court passed the

judgment and order in the case of Grah Rakshak (supra)

in the year 2015. Thereafter, the Government of India,

Ministry of Home Affairs as early as on 16.09.2016

requested the Chief Secretaries of all the States and

Union Territories to issue necessary directions for

compliance of the judgment and order of this Court in the

case of Grah Rakshak (supra). It is submitted that

thereafter the Government of India, Ministry of Home

Affairs wrote letter dated 05.10.2016 to the Secretary,

Home Department, Government of Orissa for taking

appropriate action regarding the complaint of the Home

Guards about disobedience of the order passed by this

Court regarding payment of salary to Home Guards. It is

submitted that not only then even thereafter the Director

General vide his recommendation dated 10.11.2016

recommended to pay DCA at Rs.533/­ per day with effect

from 10.11.2016. It is submitted that therefore the

learned Single Judge was justified in directing to pay DCA

: 16 : at Rs.533/­ per day with effect from 10.11.2016.

4.8 It is submitted that therefore the Division Bench of the

High Court has materially erred in restricting the benefit

of DCA at Rs.533/­ per day from January, 2020 only.

4.9 By making above submissions, it is prayed to dismiss the

appeals preferred by the State and to allow the appeals

preferred by the Home Guards.

5. We have heard the learned counsel appearing on behalf

of respective parties at length.

6. At the outset, the issue whether the Home Guards

working in the State are entitled to DCA/Duty Allowance

as per minimum of the pay to which the Police personnel

of the State are entitled is not res integra in view of the

decision of this Court in the case of Grah Rakshak

(supra). While declining to grant the relief either for

regularization of service or for grant of regular

appointments, this Court in paragraph­39 directed as

: 17 : under :

“39.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.”

6.1 Thereafter, a further clarificatory order came to be passed

by this Court in Contempt Petition (C) Nos.699­700 of

2015. This Court clarified as under:

“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.”

6.2 Thereafter, Government of India, Ministry of Home Affairs

: 18 : vide communication dated 16.09.2016 requested Chief

Secretaries of all the States and Union Territories to issue

necessary directions for compliance of the judgment of

this Court in the case of Grah Rakshak (supra) and

further clarificatory order. That thereafter a complaint

was made on behalf of the Home Guards of the State of

Orissa about disobedience of the order passed by this

Court regarding payment of salary to Home Guards in

the State and to that the Government of India, Ministry of

Home Affairs vide communication dated 05.10.2016

addressed to the Secretary, Home Department,

Government of Orissa, requested for taking appropriate

action. That thereafter in the recommendation dated

10.11.2016, Director General (Fire Service, Home

Guards, Civil Defence) Orissa recommended to pay to the

Home Guards in the State of Orissa, DCA at Rs.533/­ per

day as per minimum of the pay to which the Police

personnel of the State were entitled. Despite the above,

the State Government did not pay the DCA as per the

: 19 : judgment of this Court in the case of Grah Rakshak

(supra) and as per the further clarificatory order.

However, the Home Guards in the State were being paid

the DCA at Rs.7,200/­ per month/Rs.9,000/­ per month

as being paid to the Constables appointed under Rule

2013. It is required to be noted that under Rule 2013, the

Constables in the State initially are appointed on

contractual basis and thereafter, after few years of

service, they are made permanent. However, after they

are made permanent, they are being put in the minimum

of the pay­scale and therefore, the Home Guards shall be

entitled to the DCA taking into consideration the

minimum of the pay to which the Police personnel of the

State are entitled at the time of their initial appointment

on regular basis/permanent basis, after rendering their

contractual services under Rule 2013. At this stage, it is

required to be noted that the decision of this Court in the

case of Grah Rakshak (supra) and further clarificatory

order has also been complied with by several States like

: 20 : Himachal Pradesh, Punjab, Madhya Pradesh, Bihar,

Chhastisgarh, Maharashtra, Kerala, Haryana, Goa, NCT

of Delhi and Union Territory of Lakshadweep etc. which

is evident from the following chart:

Sl. Name of the Payment Pay Rs. Grade DA Rs. Wash Total No. State w.e.f. Pay Rs. (19%) Allowan amount ce 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 Maharashtra 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 Lakshadweep 14.08.18 ­ ­ ­ ­ 19,260/­ (p.d.

642/­)

: 21 : 11 New Delhi 01.01.18 18,000/­ ­ 1,260/­ 90/­ 20,550/­

6.3 Therefore, the State of Orissa cannot be permitted to now

submit that as contractual Constables appointed under

Rule 2013 are being paid a fixed lump sum amount at

the entry level, the Home Guards after rendering 10 to 15

years of service also shall be entitled to the same fixed

salary. The aforesaid stand would be just contrary to the

directions issued by this Court in the case of Grah

Rakshak (supra) and the subsequent further clarificatory

order. Under the circumstances, the High Court has

rightly directed to pay the DCA at Rs.533/­ per day. As

such we are in complete agreement with the view taken

by the learned Single Judge as well as the Division Bench

of the High Court. Therefore, the appeals preferred by the

State to that extent deserve dismissal.

8. Now, so far as the appeals preferred by the original writ

petitioners against the impugned judgment and order

passed by the Division Bench of the High Court

: 22 : restricting the benefit of DCA at Rs.533/­ per day from

January, 2020, is concerned, at the outset it is required

to be noted that no cogent reasons have been assigned

by the Division Bench of the High Court to restrict the

benefit of Rs.533/­ per day from January, 2020 instead

of 10.11.2016. Even otherwise, it is required to be noted

that this Court as such delivered judgment in the case of

Grah Rakshak (supra) as far back in the month of

March, 2015 and a further clarificatory order was

passed on 04.05.2016. Even thereafter the Director

General recommended on 10.11.2016 to pay DCA at

Rs.533/­ per day which was in consonance with the

decision of this Court in the case of Grah Rakshak

(supra) and the subsequent clarificatory order dated

04.05.2016. Therefore, the Division Bench of the High

Court is not justified in restricting the benefit of the DCA

at Rs.533/­ per day from January, 2020. However, at

the same time considering the fact that there were

17765 Home Guards working and even as observed by

: 23 : the Commander General / Director General in its

recommendation dated 10.11.2016, there will be a

financial implication of Rs.51,78,775/­ on the

Government per day towards payment of DCA at

Rs.293/­ per day (Rs.533 – Rs.240) and the annual

financial implication would come to Rs.189 Crores if

they are engaged 365 days a year and taking into

consideration such a huge financial burden, we restrict

the benefit of DCA at Rs.533/­ per day from the date of

filing of the writ petition before the learned Single Judge

which would be from 01.06.2018.

9. In view of the above and for the reasons stated above, the

appeals preferred by the State of Orissa are hereby

dismissed with the modification as under and the

appeals preferred by the original writ petitioners/Home

Guards are partly allowed as under.

10. The judgment and order passed by the learned Single

Judge confirmed by the Division Bench directing to pay

to the Home Guards in the State, DCA at Rs.533/­ per

: 24 : day are hereby confirmed. However, it is clarified that the

arrears at the rate of Rs.533/­ per day shall be paid from

01.06.2018. The arrears shall be paid within a period of

three months from today. It goes without saying that the

Home Guards shall be entitled to the periodical rise

which may be available to the Police personnel of the

State and the DCA to be paid to the Home Guards be

periodically increased taking into consideration the

minimum of the pay to which the Police personnel of the

State are entitled considering periodical increase from

time to time. The present appeals stand disposed in

terms of the above. There shall be no orders as to costs.

…………………………………J. (M. R. SHAH)

…………………………………J. (M.M. SUNDRESH) New Delhi, March 17, 2023

: 25 :