Supreme Court of India

PRAKASH KUMAR JENA & ORS. versus THE STATE OF ODISHA & ORS. on 17 March 2023

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SUPREME COURT REPORTS

[2023] 5 S.C.R.

APRAKASH KUMAR JENA & ORS.

v.

THE STATE OF ODISHA & ORS.

(Civil Appeal No. 8836 of 2022)

B

MARCH 17, 2023

[M. R. SHAH AND M. M. SUNDRESH, JJ.]

Service Law – Home Guards – Disbursal of salary – Writpetition was filed by original writ petitioners, who were working asCHome Guards for more than 10 to 15 years, seeking disbursal oftheir salary as per direction of the Supreme Court in Grah Rakshak,Home Guards Welfare Association vs. State of Himachal Pradesh andothers – Division Bench of the High Court restricted the payment at the rate of Rs.533/- per day to the Home Guards from January,D2020, instead of 10.11.2016, as directed by the Single Judge of theHigh Court – On appeal, held: The State cannot be permitted tosubmit that as contractual Constables appointed under Rule 2013are being paid a fixed lump sum amount at the entry level, the HomeGuards after rendering 10 to 15 years of service also shall be entitledto the same fixed salary and the aforesaid stand would be justEcontrary to the directions issued by Supreme Court in the case ofGrah Rakshak – The High Court has rightly directed to pay the DCAat Rs.533 per day – So far as restricting the benefit of DCA atRs.533/- per day from January, 2020 is concerned, no cogentreasons were assigned by the Division Bench of the High Court toFrestrict the benefit of Rs.533/- per day from January, 2020 insteadof 10.11.2016 – Director General had recommended on 10.11.2016to pay DCA at Rs.533/- per day which was in consonance with thedecision of Supreme Court in the case of Grah Rakshak – Takinginto consideration the huge financial burden on the State, the benefitof DCA at Rs.533/- per day would be from the date of filing of theGwrit petition before the Single Judge i.e. from 01.06.2018 – OdishaGroup-C & Group-D (Contractual Appointment) Rules 2013.

Disposing of the appeals, the Court

HELD: 1. The State of Orissa cannot be permitted to nowHsubmit that as contractual Constables appointed under Odisha

Group-C & Group-D (Contractual Appointment) Rules 2013 arebeing paid a fixed lump sum amount at the entry level, the HomeGuards after rendering 10 to 15 years of service also shall beentitled to the same fixed salary. The aforesaid stand would bejust contrary to the directions issued by this Court in the case ofGrah Rakshak and the subsequent further clarificatory order.Under the circumstances, the High Court has rightly directed topay the DCA at Rs.533/- per day. As such the Court is in completeagreement with the view taken by the learned Single Judge aswell as the Division Bench of the High Court. Therefore, theappeals preferred by the State to that extent deserve dismissal.[Para 6.3][501-E-G]

2. Now, so far as the appeals preferred by the original writpetitioners against the impugned judgment and order passed bythe Division Bench of the High Court restricting the benefit ofDCA at Rs.533/- per day from January, 2020, is concerned, at theoutset it is required to be noted that no cogent reasons havebeen assigned by the Division Bench of the High Court to restrictthe benefit of Rs.533/- per day from January, 2020 instead of10.11.2016. Even otherwise, it is required to be noted that thisCourt as such delivered judgment in the case of Grah Rakshakas far back in the month of March, 2015 and a further clarificatoryorder was passed on 04.05.2016. Even thereafter the DirectorGeneral recommended on 10.11.2016 to pay DCA at Rs.533/-per day which was in consonance with the decision of this Courtin the case of Grah Rakshak and the subsequent clarificatory orderdated 04.05.2016. Therefore, the Division Bench of the HighCourt is not justified in restricting the benefit of the DCA atRs.533/- per day from January, 2020. However, at the same timeconsidering the fact that there were 17765 Home Guards workingand even as observed by the Commander General / DirectorGeneral in its recommendation dated 10.11.2016, there will be afinancial implication of Rs.51,78,775/- on the Government perday towards payment of DCA at Rs.293/- per day (Rs.533 –Rs.240) and the annual financial implication would come to Rs.189Crores if they are engaged 365 days a year and taking intoconsideration such a huge financial burden, the court directs to ABC

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Arestrict the benefit of DCA at Rs.533/- per day from the date offiling of the writ petition before the learned Single Judge whichwould be from 01.06.2018. [Para 7][501-G-H; 502-A-D]

Grah Rakshak, Home Guards Welfare Association vs.State of Himachal Pradesh and others (2015) 6 SCCB247: [2015] 2 SCR 800 - referred to.

Case Law Reference

[2015] 2 SCR 800referred toPara 2.1

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8836Cof 2022.

From the Judgment and Order dated 19.08.2020 of the High Courtof Orissa at Cuttack in WA No. 319 of 2020.

WITH

C.A. Nos. 8837 and 8838 of 2022.D

Sumit Goel, Tanuj Agarwal, Ms. Sreeparna Basak for M/s Parekh& Co., Sibo Sankar Mishra, Shovan Mishra, Ms. Bipasa Tripathy, ShikharSrivastava, Ms. Prerna Singh, Debabrata Dash, Niranjan Sahu, ApoorvaSharma, Advs. for the appearing parties.

EMrs. K. Sarada Devi, R. Vinay Nandan Reddy, Advs. for theApplicant.

The Judgment of the Court was delivered by

M. R. SHAH, J.F1. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the Division Bench of the High Court of Orissa atCuttack in W.A. No.319 of 2020, the original writ petitioners working asHome Guards and the State of Orissa both have preferred the presentappeals.

G2. Civil Appeal arising out of SLP No.3906 of 2022 has been filedby the State of Orissa and others challenging the order passed by theHigh Court of Orissa at Cuttack in W.P. (C) No.19556 of 2020 by whichthe High Court has disposed of the said writ petition in terms of thejudgment and order passed in W.A. No.319 of 2020 which is the subject H

matter of C.A.No.8836 of 2022. Therefore, C.A. No.8836 of 2022 arisingout of the impugned judgment and order passed by the High Court inW.A. No.319 of 2020 is treated as lead matter and the facts arising outof 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 asHome Guards for more than 10 to 15 years under the Home Departmentof the State of Orissa. After rendering 10 to 15 years of service, theyfiled the writ petition before the learned Single Judge for a direction tothe State to disburse their salary as per the direction of this Court in thecase of Grah Rakshak, Home Guards Welfare Association vs. Stateof Himachal Pradesh and others reported in (2015) 6 SCC 247 andthe subsequent order / clarificatory order dated 04.05.2016 passed inContempt Petition (C) Nos. 699-700 of 2015, by which this Court clarifiedits earlier order. A relief was also sought to give them benefit of 7[th] PayCommission from the date the same had been given to their counterpartsof the other States. The learned Single Judge following the decision ofthis Court in the case of Grah Rakshak (supra) allowed the said writpetition directing the State Government to implement therecommendations of the Director General (Fire Service, Home Guards,Civil Defense), Orissa in respect of the Home Guards in the State ofOrissa as per the decision of this Court in the case of Grah Rakshak(supra). The learned Single Judge also directed the State to take intoaccount the increase in the pay of the Constables on application of the7[th] Pay Commission’s report. That it is required to be noted that earlierthe Director General of Police, Orissa, recommended payment at theminimum sum of Rs.533/- per day taking into consideration theremuneration available to the Constables in the State in the lowest rankin the Police personnel since 10.11.2016. Therefore, the learned SingleJudge while granting one month time to the State Government toimplement the said recommendation directed that the Home Guards inthe State of Orissa pending decision under final fitment be paidprovisionally at the minimum Rs.500/- from January, 2020, subject to thefinal decision of the Government of Orissa on implementation of therecommendation of the Director General.

2.2 Feeling aggrieved and dissatisfied with the judgment and orderpassed by the learned Single Judge in W.P.No.8148 of 2020, the State ofOrissa and others preferred W.A. No. 319 of 2020. By the impugnedjudgment and order, the Division Bench of the High Court by and large ABC

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Aaffirmed the judgment and order passed by the learned Single 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 judgmentBand order passed by the Division Bench of the High Court in W.A.No.319of 2020, the original writ petitioners – Home Guards as well as the Stateof Orissa have preferred the present appeals.

3. Learned counsel appearing on behalf of the State of Orissa hasvehemently submitted that the High Court has materially erred in directingCthe State to pay Rs.533/- per day as Duty Call-up Allowance (hereinafterreferred to as “DCA”) to the Home Guards working in the State and thesame would be much more than the amount being paid to the Constablesat the entry level recruited as per Odisha Group-C & Group-D(Contractual Appointment) Rules, 2013 (hereinafter referred to as theDRule, 2013).

3.1 It is submitted that the High Court has failed to appreciatethat earlier as per the 6[th] Pay Commission entitlement, the Constables atthe entry level recruited as per Rule 2013 used to get Rs.7,200/- permonth at entry level. Therefore, Home Guards in the State of OrissaEwere entitled to get Rs.240/- per day as Daily Pay allowance/ DutyCall-up Allowance. It is submitted that however, after the 7[th] PayCommission, the pay of Police Constable at entry level was revised to aconsolidated remuneration of Rs.9,000/- per month as against Rs.7,200/-per month. It is submitted that therefore and accordingly, the payment toFthe 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 issubmitted that therefore the State of Orissa as such complied thejudgment of this Court in the case of Grah Rakshak (supra).

3.2 It is further submitted that even the High Court has materiallyGerred in taking into consideration the recommendations made by theDirector General, as apart from the fact that the recommendations madeby the Director General were not binding on the State Government, theDirector General had also not taken into consideration the remunerationof the Constables at entry level appointed under Rule 2013. It is submittedthat rather the recommendations are based on the comparative dailyH

allowances of the Home Guards paid by other States in the country. It issubmitted that the facts peculiar to the State of Orissa has not at all beentaken into consideration by the Director General in the recommendations.It is submitted that therefore the High Court has failed in error by solelyrelying upon the recommendations of the Director General.

3.3 It is further submitted by learned counsel appearing on behalfof the State that if the Home Guards in the State are paid daily payallowance / Duty Call-up Allowance at the rate of Rs.533/- per day asdirected by the High Court, it would create an anomalous situation becausethe Constables at entry level as per 7[th] Pay Commission would get onlyRs.9,000/- per month, whereas at the rate of Rs.533/- per day, the HomeGuards would get more than Rs.15,000/- per month. It is submitted thattherefore same would be against the judgment of this Court in the caseof Grah Rakshak (supra).

3.4 It is further submitted by the learned counsel appearing onbehalf of the State that the High Court has also failed to appreciate thatpresently 16894 numbers of Home Guards are working in the State andtherefore if the Home Guards working in the State are paid salary as perthe directions issued by the learned Single Judge modified by the DivisionBench, in that case, a huge financial burden would be fastened upon theState.

3.5 With above submissions, it is prayed to allow the present appealspreferred by the State.

4. While opposing the present appeals preferred by the State, thelearned counsel appearing on behalf of the respective Home Guards/original writ petitioners / applicants have vehemently submitted that thedirection issued by the learned Single Judge affirmed by the DivisionBench of the High Court directing the State to pay DCA at Rs.533/- perday is absolutely in consonance with the judgment of this Court in thecase 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 regularizationof their services or for grant of regular appointments, however, directedall the State Governments to pay them the DCA at such rate total of 30days (one month) comes to minimum of the pay to which the Policepersonnel of the State are entitled. It is further submitted that thereafter A

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Adispute arose whether same includes DA or not and therefore this Courtclarified that the payment of minimum of the pay would mean basic pay+ grade pay + dearness allowance + washing allowance. It is submittedthat this Court also further clarified that the pay that is given to theHome Guards will not be on a monthly basis but will be calculated withreference to each day of work put in by the Home Guards.B

4.2 It is submitted that thereafter the Government of India, Ministryof Home Affairs as early as on 16.09.2016 requested all the ChiefSecretaries of all States and Union Territories to issue necessarydirections for compliance of the aforesaid judgment. It is submitted thatthereafter many States have complied with the directions issued by thisCCourt in the case of Grah Rakshak (supra) and the clarificatory orderexcept the State of Orissa. It is submitted that even so far as the Stateof Orissa is concerned, the Director General in the year 2016 itselfrecommended to pay a minimum of Rs.533/- per day to the Home Guardsin the State of Orissa from 10.11.2016 in light of the judgment of thisDCourt in the case of Grah Rakshak (supra) and the clarificatory order.

4.3 Learned counsel appearing on behalf of the respective HomeGuards have prayed to consider the following facts:

(i) This Hon’ble Court had in the judgment dated 11.03.2015passed in the matter of Grah Rakshak, Home GuardsEWelfare Association vs. State of Himachal Pradesh directedpayment of such DCA preferably within three months;

(ii) The Government of India, Ministry of Home Affairs as earlyas on 16.09.2016 had requested the Chief Secretaries of allFStates and Union Territories to issue necessary directionsfor compliance of the aforesaid judgment;

(iii) The Government of India, Ministry of Home Affairs wroteletter dated 5.10.2016 to the Secretary, Home Department,Government of Orissa for taking appropriate action regardingGthe complaint of Petitioner No.1 about disobedience of theorder passed by this Hon’ble Court regarding payment ofsalary to Home Guards;

(iv) the Directorate General (Fire Service, Home Guards, CivilDefence) Odisha, in light of the judgment dated 11.03.2015passed by the Hon’ble Supreme Court in the matter of GrahH

Rakshak, Home Guards Welfare Association vs. State ofHimachal Pradesh and judgment dated 04.05.2016 passedin Contempt Petition (C) No.699-700 of 2015, issued arecommendation to Principal Secretary to Government ofOdisha, Home Department i.e. Respondent No.2 to pay aminimum of Rs.533/- per day to the Petitioners and otherHome Guards in the State of Odisha from 10.11.2016, aftertaking into consideration the remuneration paid to theConstables in the State of Odisha in the lowest rank in thepolice personnel.

(v) The Ministry of Petroleum and Natural Gas, Governmentof India issued a letter dated 31.10.2017 to the Chief Ministerof Odisha regarding the receipt of a petition in connectionwith implementation of judgment dated 04.05.2016 passedby this Hon’ble Court in Contempt Petition (c) No.699-700of 2015 regarding payment of Home Guards’ salary, forappropriate action.

(vi) The MHA directed the Chief Secretary of all the Statesincluding the State of Odisha on 11.04.2018 to implementthe judgments passed by this Hon’ble Court in the matterof Grah Rakshak, Home Guards Welfare Association vs.State of Himachal Pradesh and Contempt Petition (c)No.699-700 of 2015, for enhancing the duty allowance ofHome Guards latest by 15.09.2018.

(vii) Writ petition was filed by the petitioners on 09.05.2018.

4.4 It is further submitted by learned counsel appearing on behalfof original writ petitioners/ applicants/ Home Guards that the submissionon behalf of the State that the Constables in the State at the entry levelrecruited as per Rule 2013 were getting Rs.7,200/- per month as per 6[th]Pay Commission and thereafter at the rate of Rs.9,000/- per month afterthe 7[th] Pay Commission recommendations and therefore, the HomeGuards shall be entitled to the same consolidated remuneration ofRs.9,000/- per month is concerned, it is submitted that said submission isabsolutely misplaced. It is submitted that as per Rule 2013, the Constablesare appointed initially on contractual basis and thereafter after few yearsof service, they are made permanent. It is submitted that in the presentcase, the prayer of Home Guards for regular appointment and/or AB

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Aregularization of their services have been declined. It is submitted thatthe question is what the Constables are getting as minimum of the pay-scale/pay. It is submitted that all the aforesaid aspects were as suchdealt with and considered by the Director General in his recommendationdated 10.11.2016.

B4.5 It is submitted that even otherwise except the State of Orissa,all other States have complied with the directions issued by this Court inthe case of Grah Rakshak (supra). It is submitted that therefore allthe Home Guards working in the State of Orissa are entitled to similarbenefits which are being paid to the Home Guards in other States.

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4.6 Now so far as the impugned judgment and order passed bythe Division Bench of the High Court restricting the benefits of the DCAat Rs.533/- per day from January, 2020, is concerned, learned counselappearing for the respective original writ petitioners – Home Guardshave vehemently submitted that as such no cogent reasons have beenDgiven by the Division Bench of the High Court restricting the said benefitsfrom January, 2020 only.

4.7 It is submitted that as such this Court passed the judgmentand order in the case of Grah Rakshak (supra) in the year 2015.Thereafter, the Government of India, Ministry of Home Affairs as earlyEas on 16.09.2016 requested the Chief Secretaries of all the States andUnion Territories to issue necessary directions for compliance of thejudgment and order of this Court in the case of Grah Rakshak (supra).It is submitted that thereafter the Government of India, Ministry of HomeAffairs wrote letter dated 05.10.2016 to the Secretary, HomeDepartment, Government of Orissa for taking appropriate actionFregarding the complaint of the Home Guards about disobedience of theorder passed by this Court regarding payment of salary to Home Guards.It is submitted that not only then even thereafter the Director Generalvide his recommendation dated 10.11.2016 recommended to pay DCAat Rs.533/- per day with effect from 10.11.2016. It is submitted thatGtherefore the learned Single Judge was justified in directing to pay DCAat Rs.533/- per day with effect from 10.11.2016.

4.8 It is submitted that therefore the Division Bench of the HighCourt has materially erred in restricting the benefit of DCA at Rs.533/-per day from January, 2020 only.H

4.9 By making above submissions, it is prayed to dismiss theappeals preferred by the State and to allow the appeals preferred by theHome Guards.

5. We have heard the learned counsel appearing on behalf ofrespective parties at length.

6. At the outset, the issue whether the Home Guards working inthe State are entitled to DCA/Duty Allowance as per minimum of thepay to which the Police personnel of the State are entitled is not resintegra in view of the decision of this Court in the case of Grah Rakshak(supra). While declining to grant the relief either for regularization ofservice or for grant of regular appointments, this Court in paragraph-39directed as under :

“39. In view of the discussion made above, no relief can begranted to the appellants either regularization of services orgrant of regular appointments hence no interference is calledfor against the judgments passed by the Himachal Pradesh,Punjab and Delhi High Courts. However, taking intoconsideration the fact that Home Guards are used during theemergency and for other purposes and at the time of theirduty they are empowered with the power of police personnel,we are of the view that the State Government should pay themthe duty allowance at such rates, total of which 30 days (amonth) comes to minimum of the pay to which the policepersonnel of State are entitled. It is expected that the StateGovernments shall pass appropriate orders in terms ofaforesaid observation on an early date preferably within threemonths.”

6.1 Thereafter, a further clarificatory order came to be passedby this Court in Contempt Petition (C) Nos.699-700 of 2015. This Courtclarified as under:

“So far as the present case is concerned, relief ofregularization was declined, but this Court directed thepayment of minimum of the pay which, as we have explainedabove, would mean basic pay + grade pay + dearnessallowance + washing allowance.

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A However, we make it clear that the pay that is given to thepetitioners will not be on a monthly basis, but will be calculatedwith reference to each day of work put in by the petitioners.”

6.2 Thereafter, Government of India, Ministry of Home Affairsvide communication dated 16.09.2016 requested Chief Secretaries of allBthe States and Union Territories to issue necessary directions forcompliance of the judgment of this Court in the case of Grah Rakshak(supra) and further clarificatory order. That thereafter a complaint wasmade on behalf of the Home Guards of the State of Orissa aboutdisobedience of the order passed by this Court regarding payment ofCsalary to Home Guards in the State and to that the Government of India,Ministry of Home Affairs vide communication dated 05.10.2016 addressedto the Secretary, Home Department, Government of Orissa, requestedfor taking appropriate action. That thereafter in the recommendationdated 10.11.2016, Director General (Fire Service, Home Guards, CivilDefence) Orissa recommended to pay to the Home Guards in the StateDof Orissa, DCA at Rs.533/- per day as per minimum of the pay to whichthe Police personnel of the State were entitled. Despite the above, theState Government did not pay the DCA as per the judgment of thisCourt in the case of Grah Rakshak (supra) and as per the furtherclarificatory order. However, the Home Guards in the State were beingEpaid the DCA at Rs.7,200/- per month/Rs.9,000/- per month as beingpaid to the Constables appointed under Rule 2013. It is required to benoted that under Rule 2013, the Constables in the State initially areappointed on contractual basis and thereafter, after few years of service,they are made permanent. However, after they are made permanent,Fthey are being put in the minimum of the pay-scale and therefore, theHome Guards shall be entitled to the DCA taking into consideration theminimum of the pay to which the Police personnel of the State are entitledat 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 ofGGrah Rakshak (supra) and further clarificatory order has also beencomplied with by several States like Himachal Pradesh, Punjab, MadhyaPradesh, Bihar, Chhastisgarh, Maharashtra, Kerala, Haryana, Goa, NCTof Delhi and Union Territory of Lakshadweep etc. which is evident fromthe following chart:H

6.3 Therefore, the State of Orissa cannot be permitted to nowsubmit that as contractual Constables appointed under Rule 2013 arebeing paid a fixed lump sum amount at the entry level, the Home Guardsafter rendering 10 to 15 years of service also shall be entitled to thesame fixed salary. The aforesaid stand would be just contrary to thedirections issued by this Court in the case of Grah Rakshak (supra) andthe subsequent further clarificatory order. Under the circumstances, theHigh Court has rightly directed to pay the DCA at Rs.533/- per day. Assuch we are in complete agreement with the view taken by the learnedSingle Judge as well as the Division Bench of the High Court. Therefore,the appeals preferred by the State to that extent deserve dismissal.

7. Now, so far as the appeals preferred by the original writpetitioners against the impugned judgment and order passed by theDivision Bench of the High Court restricting the benefit of DCA at Rs.533/- per day from January, 2020, is concerned, at the outset it is required tobe noted that no cogent reasons have been assigned by the DivisionBench of the High Court to restrict the benefit of Rs.533/- per day from A

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AJanuary, 2020 instead of 10.11.2016. Even otherwise, it is required to benoted that this Court as such delivered judgment in the case of GrahRakshak (supra) as far back in the month of March, 2015 and a furtherclarificatory order was passed on 04.05.2016. Even thereafter the DirectorGeneral recommended on 10.11.2016 to pay DCA at Rs.533/- per daywhich was in consonance with the decision of this Court in the case ofBGrah Rakshak (supra) and the subsequent clarificatory order dated04.05.2016. Therefore, the Division Bench of the High Court is notjustified in restricting the benefit of the DCA at Rs.533/- per day fromJanuary, 2020. However, at the same time considering the fact that therewere 17765 Home Guards working and even as observed by theCCommander General / Director General in its recommendation dated10.11.2016, there will be a financial implication of Rs.51,78,775/- on theGovernment per day towards payment of DCA at Rs.293/- per day(Rs.533 – Rs.240) and the annual financial implication would come toRs.189 Crores if they are engaged 365 days a year and taking intoconsideration such a huge financial burden, we restrict the benefit ofDDCA at Rs.533/- per day from the date of filing of the writ petitionbefore the learned Single Judge which would be from 01.06.2018.

8. In view of the above and for the reasons stated above, theappeals preferred by the State of Orissa are hereby dismissed with themodification as under and the appeals preferred by the original writEpetitioners/Home Guards are partly allowed as under.

9. The judgment and order passed by the learned Single Judgeconfirmed by the Division Bench directing to pay to the Home Guards inthe State, DCA at Rs.533/- per day are hereby confirmed. However, itis clarified that the arrears at the rate of Rs.533/- per day shall be paidFfrom 01.06.2018. The arrears shall be paid within a period of three monthsfrom today. It goes without saying that the Home Guards shall be entitledto the periodical rise which may be available to the Police personnel ofthe State and the DCA to be paid to the Home Guards be periodicallyincreased taking into consideration the minimum of the pay to which thePolice personnel of the State are entitled considering periodical increaseGfrom time to time. The present appeals stand disposed in terms of theabove. There shall be no orders as to costs.

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Ankit Gyan

(Assisted by : Abhishek Agnihotri and Mahendra Yadav, LCRAs)

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