Orissa High Court
Amir Khan vs State Of Odisha And Others on 2 January, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.34419 of 2022
Amir Khan .... Petitioner
Mr. M.M. Das, Advocate
-versus-
State of Odisha and others .... Opp. Parties
Mr. T.K. Pattanaik, A.S.C.
CORAM:
JUSTICE A.K. MOHAPATRA
ORDER
Order No. 02.01.2023
01. 1. This matter is taken up through Hybrid Arrangement (Virtual
/Physical Mode).
2. Heard Mr. M.M. Das, learned counsel for the petitioner and
Mr. T.K. Pattanaik, learned Addl. Government Advocate.
3. The petitioner files this writ application to quash order dated
28.07.2014 under Annexure-4 passed by Commandant, Home
Guards, Sambalpur and Commandant General, Home Guards,
Odisha, Cuttack respectively, and further seeks for direction to the
opposite parties to consider his case for engagement as Home Guard
from the date similarly situated persons have been re-engaged even
though they are involved in criminal case.
4. Mr. Das, learned counsel for the petitioner at the outset
contended that the petitioner was engaged as Home Guard and
discharging his duties. Due to his involvement in a criminal case, he
was arrested and forwarded to the Court. Consequentially, he was
disengaged by the opposite parties. Challenging such order of
disengagement, the petitioner approached this Court by filing
// 2 //
W.P.(C) No. 9370 of 2014. This Court, by order dated 15.05.2014,
disposed of the said writ petition directing the opposite parties to
consider the representation of the petitioner and take a decision
within three months. He further submits that in the meantime, the
petitioner has been acquitted from charges in the criminal case.
Learned counsel for the petitioner, relying upon the judgment of this
Court in Yudhistira Jena v. State of Orissa, 2014 (II) OLR 494 :
2015 ILR CTC 534, has contended that action taken by the
Commandant, Home Guards, Sambalpur, as well Commandant
General, Home Guards is in gross violation of the provision of Rule
10 of the Orissa Home Guards Rules, 1962 and as such, the
impugned order is non est in the eye of law, inasmuch as it is
contrary to the provisions of law and, therefore, impugned discharge
order of the petitioner passed by opposite party no.3 and the
subsequent confirmation of the said order passed by opposite party
no.2 are unsustainable in law and are liable to be struck down.
5. Pursuant to notice issued by this Court, Mr. T.K. Pattanaik,
learned Addl. Standing Counsel referring to the counter affidavit in
W.P.(C) No.23226 of 2015 submitted that in paragraph-4 of the
counter it has been asserted that the petitioner was doing his duty in
the organization and also acted as Branch Active Leader of the
Nikhil Utkal Gruha Rakhi Mahasangha of Sambalpur district since
2004. He was involved in group activities like protest etc. along with
other coleaders of Sambalpur district. Due to his involvement in
criminal activities, he was discharged from service. Against the order
of disengagement, the petitioner in W.P.(C) No.23226 of 2015
approached this Court and as per direction of this Court given by
// 3 //
order dated 15.05.2014 in W.P.(C) No. 9370 of 2014, the
Commandant General-Opposite Party No.2, on consideration of the
representation of the petitioner, confirmed the order of discharge of
the petitioner.
6. Considering the contention raised by learned counsel for the
parties and after going through the record, it appears that since the
petitioner was involved in criminal activities, he was discharged
from service, but while disengaging him from service the authorities
have lost sight of the fact that the Government has taken a decision
on 28.07.2014 wherein it has been stated as follows:-
"Further it may be stated that 63 nos. of Home Guards
were discharged by different S.P.-cum-Commandants.
Home Guards of various districts due to their
participation in the illegal strike at Bhubaneswar on
22.3.2013 and involvement in Capital P.S. Case No. 113
dtd. 22.3.2013. Out of them, 11 Home Guards have been
ordered for reappointment on the recommendations of the
concerned S.P.-cum-Commandants. The S.P.-cum-
Commandants have also been advised by the Directorate
of Home Guards to reconsider the representations and to
recommend their cases, for considering re-appointment.
After receipt of the required recommendations from the
Commandant, Home Guards, necessary action will be
taken at the Directorate level for re-appointment of the
remaining discharged Home Guards."
7. If the Government had decided to reconsider the
representation of the petitioner in connected matters and to
recommend their case for re-appointment, the authorities should
have taken a liberal view in the present matter and passed order
inconsonance with the direction issued by the Government in Home
(Civil Defence) Department in its letter dated 28.07.2014 in
Annexure-4. More particularly, when similarly situated persons who
// 4 //
were involved in agitation have been reconsidered for engagement
and have been re-engaged in other districts, non-extension of similar
benefits to the petitioner amounts to discrimination, which violates
Article 14 of the Constitution.
8. In that view of the matter, the order of discharge of the
petitioner passed by the Commandant, Home Guards, Sambalpur,
which has been confirmed by the Commandant General is hereby
quashed. The matter is remitted back to the Commandant, Home
Guards, Sambalpur to reconsider the representation of the petitioner
dated 18.11.2022 under Annexure-6, in the light of the directions
issued by the Government in Home (Civil Defence) Department in
its letter dated 28.07.2014 in Annexure-4, as expeditiously as
possible, preferably within three months from the date of
communication of this order.
9. With the above observation and direction, the writ application
stands disposed of.
Urgent certified copy of this order be granted on proper
application.
( A.K. Mohapatra)
Judge
Jagabandhu
