PRAKASH KUMAR JENA Vs. STATE OF ODISHA

JUDGEMENT

(1.) The writ petition involves the following prayer:

(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 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 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 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 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.