Union Of India And Ors vs Parul Debnath & Ors

to as "the 1964 Regulation"). In terms of 2

Regulation 16 of the said Regulation, the then

Chief Commissioner (now Lieutenant Governor), A&N

Islands, framed the "Andaman & Nicobar Home Guard

Rules, 1965" (hereinafter referred to as "the 1965

Rules") for providing a voluntary organization

named as "A&N Islands Home Guard Organization" for

use in emergency and for other purposes in the

Union Territory of the Andaman & Nicobar Islands.

3. The respondents herein were appointed on

different dates as members of the said Home Guard

Organization under Regulation 4 of the said

Regulation for periods of three years and since

then they were continuously made to perform duties

of a regular nature. They were also deployed to

work under the operational control and supervision

of the A&N Police and the overall control of the

A&N Administration, without any break. From the

tabulated statement forming part of the writ

petition filed by the respondents, it appears that

the respondents have been working for periods 3

ranging from 12 years to 23 years. Inasmuch as, the

respondents claimed to be performing works of a

permanent nature, but were treated differently from

the regular employees of the same organization,

they claimed equal pay for equal work with the

regular Home Guards or for regularization of their

services.

4. Aggrieved by the differential treatment meted

out to them in comparison to their counterparts

in the regular administration, the respondents

filed two Original Applications, being OA

No.122/A&N/1999 (Parul Debnath & Ors. Vs. Union

of India & Ors.) and O.A. No.28/AN/2002 (S.

Selva Raj & Ors. Vs. Union of India & Ors.),

before the Central Administrative Tribunal,

Calcutta Bench, Circuit Bench at Port Blair,

for directions to be issued to the respondents

herein to prepare an appropriate/ reasonable

scheme for regularization of the services of

the Home Guards, who had been working for 4

several years and to give them equal pay for

equal work in relation to their counterparts in

the regular organization and in particular to

those Home Guards who were performing duties

which were similar to the duties of the regular

employees of the A&N Administration.

5. The Tribunal disposed of the said Original

Applications by passing a common order dated

16th September, 2002, inter alia, with a

direction to the respondents, and in particular

the Union of India, the Respondent No.1 before

the Tribunal, to consider the framing of an

appropriate Scheme, in consultation with the

A&N Islands Administration, for absorption/

regularization/ appointment of persons like the

respondents herein who had been working as Home

Guards for a number of years. While framing the

Scheme, the Respondent No.1 was directed to

keep in view the observations made in paragraph

7 of the order to suit local conditions, 5

keeping in mind the particular facts and

circumstances of the case. It was provided that

the said action should be taken by the

appellants herein within six months from the

date of receipt of a copy of the order.

6. The said order dated 16th September, 2002, of

the Central Administrative Tribunal, was

challenged by way of two writ petitions, being

WPCT No.73 of 2003 (Union of India & Ors. Vs.

Parul Debnath & Ors.) and WPCT No.158 of 2003

(Union of India & Ors. Vs. S. Selva Raj &

Ors.), before the Division Bench of the

Calcutta High Court, Circuit Bench at Port

Blair. The said two writ petitions were

disposed of by a common judgment and order

dated 16.12.2003. While disposing of the writ

petitions, the High Court, apart from

considering the nature of the work performed by

the respondents, also took into consideration

the decision of this Court in State of West 6

Bengal & Ors. vs. Pantha Chatterjee & Ors.

[2003 (6) SCC 469], wherein in a similar

situation certain directions had been given by

this Court for framing a Scheme for similar

purposes, and directed the appropriate

authority to frame a Scheme as directed by the

Tribunal and while doing so to take into

consideration the principles laid down in Pantha Chatterjee's case (supra).

7. After the orders passed by the Circuit Bench of

the Calcutta High Court at Port Blair in WPCT No.73

of 2003 and WPCT No.158 of 2003, one Manoj Kumar

Singh and others, who were similarly situated as

the respondents herein, moved a writ petition,

being WP No.22 of 2004, before the Single Bench of

the Calcutta High Court, which was disposed of on

18th March, 2004, with a direction upon the

respondents to consider the case of the writ

petitioners in accordance with the ratio of Pantha

Chatterjee's case (supra). Special Leave Petitions 7

filed by the Union of India against the orders

passed by the Circuit Bench of the Central

Administrative Tribunal, Calcutta Bench, as well as

the Single Judge of the High Court, being SLP(C)

No.14859 of 2004 and SLP(C) No.CC 7017/2004, were

dismissed at the threshold on 9th August, 2004 and

30th August, 2004, respectively. Thereafter, on 5th

April, 2005, a Scheme was framed by the appellants

herein, which provided for reservation of 20% of

the vacant posts to accommodate the respondents in

a phased manner, while setting apart 80% of the

vacancies for other candidates. The Scheme, as

framed, was challenged by the respondents herein in

Writ Petition No.195 of 2005 before the learned

Single Judge, who by his judgment and order dated

28th July, 2006, dismissed the said writ petition

upon holding that the Scheme had been framed by the

Government Authorities having due regard to the

principles laid down in Pantha Chatterjee's case

(supra).

8

8. The matter was taken to the Division Bench in

appeal, being MAT No.25 of 2006. On being convinced

that the Scheme had not been framed in accordance

with the views expressed in Pantha Chatterjee's

case (supra), the Division Bench by judgment and

order dated 22nd January, 2007, not only set aside

the Scheme framed on 5th April, 2005, but also set

aside the order of the learned Single Judge dated

28th July, 2006, whereby the writ petition had been

dismissed. The Division Bench directed the

Government Authorities to frame the Scheme afresh

in keeping with the principles enunciated in Pantha

Chatterjee's case (supra).

9. The instant appeal has been filed by the Union

of India, the Lieutenant Governor, A&N Islands,

Port Blair and other authorities of the Islands'

Administration, alleging that the Division Bench of

the High Court had erroneously reversed the

judgment of the Single Judge despite the fact that 9

the Scheme had been framed as per the directions of

the Court in keeping with the principles set out in

Pantha Chatterjee's case (supra).

10. Appearing in support of the Appeal, Mr. S.K.

Dubey, learned Senior Advocate, drew the attention

of the Court to the observations made in paragraphs

7 and 8 of the order of the Central Administrative

Tribunal holding that having regard to earlier

orders passed by the Delhi High Court for

preparation of a Scheme to cover Home Guards in

similar situations, it would be appropriate for the

Union of India to contact the Government of NCT

Delhi to examine the matter and, if necessary,

modify the Scheme to suit local conditions. Mr.

Dubey pointed out that the claim of the respondents

herein for pay parity on the principle of `equal

pay for equal work' had been negated having regard

to the provisions of the 1964 Regulation and the

Rules framed thereunder in 1965. In addition, the

question of regularization of the services of the 10

respondents would not also arise as they were not

working against sanctioned posts.

11. It was urged on behalf of the appellants that

if all the vacancies were to be filled up from

amongst the respondents, it would amount to 100%

reservation, which is contrary to Articles 14 and

16 of the Constitution.

12. Drawing attention to the Scheme formulated

pursuant to the directions given by the Division

Bench of the High Curt in WPCT No.73 of 2003 and

WPCT No.158 of 2003, Mr. Dubey submitted that

having regard to the compulsions of Articles 14 and

16 of the Constitution, it was decided to give

effect to the directions of the High Court

regarding absorption of the respondents in a phased

manner. Mr. Dubey submitted that such a course of

action would not only enable the authorities to

implement the directions of the High Court, but to

also comply with the requirements of Articles 14 11

and 16 of the Constitution. It was in keeping with

such a policy decision that in the Scheme it was

provided that of the vacancies occurring in any

year, including the existing vacancies in all Group

D posts under the A&N Administration and in the

post of Constable in Group C under the A&N Police

Department, 20% thereof would be earmarked for the

Home Guards, who were enrolled and had completed at

least five years of continuous services and

fulfilled the eligibility conditions, including

educational qualifications prescribed in the

Recruitment Rules/Andaman & Nicobar Police Manual,

1963. Mr. Dubey pointed out that in the Scheme it

was also provided that the 20% quota would continue

till such time as all the existing Home Guards

fulfilling the eligibility conditions for

absorption under the Scheme were absorbed. Mr.

Dubey submitted that by its order dated 22.1.2007,

the Division Bench of the High Court in MAT No.25

of 2006, erred in quashing the Scheme, as framed, 12

upon holding that the same was not in conformity

with the directions of the High Court or the

directions in Pantha Chatterjee's case (supra). Mr. Dubey submitted that the Division Bench, while

allowing the above-mentioned writ petitions on 16th

December, 2003, directed the authorities to frame a

Scheme and while doing so, to take into

consideration the principles laid down in Pantha

Chatterjee's case (supra). Mr. Dubey urged that

there was no direction that the Scheme would have

to be formulated in keeping with the principles

enunciated in the said case, but to take the same

into consideration while framing the present

Scheme.

13. Mr. Dubey submitted that in order to strike a

balance between the constitutional provisions and

the directions given both by the Central

Administrative Tribunal and the High Court, the

authorities framed the instant Scheme which they

thought would take care of both the conditions. It 13

was also urged that the direction given for

creation of supernumerary posts to provide for

absorption of the existing Home Guards had been

deprecated by this Court on several occasions in

view of the financial implications on the State

Administration in the creation of such posts and

the infrastructure to go along with it. In this

regard, reference was made to the decision of this

Court in Divisional Manager, Aravali Golf Club and

another vs. Chander Hass and another [2008 (1) SCC

683], wherein, since in spite of the fact that

there were no sanctioned posts of tractor drivers

against which the respondents could be regularized,

directions had been given to create such posts and

to regularize the services of the claimants against

the said newly-created posts, this Court was of the

view that such a direction was completely beyond

the jurisdiction of the Courts. Further

observations were made to the effect that the Court

cannot direct the creation of posts since the same 14

is the prerogative of the executive or the

legislative authorities and the Court could not

arrogate to itself this purely executive or

legislative function and direct creation of the

posts in the organization. It was also observed

that this Court has, time and again, pointed out

that the creation of a post is an executive and

legislative function as it involves economic

factors.

14. In support of his submissions regarding phase-

wise absorption, Mr. Dubey referred to the decision

of this Court in the case of Mool Raj Upadhyaya vs.

State of Himachal Pradesh [1994 (Supp.) 2 SCC 316],

in which, in a similar situation, a Bench of three

Judges of this Court observed that having regard to

the additional financial implications that may be

incurred by the proposed Scheme for regularization,

as modified, the State should not be burdened with

the financial implications arising out of payment

of arrears for the period mentioned therein. It 15

also approved the Scheme which included the

decision to regularize the daily-wage/muster-roll

workers in a phased manner on the basis of

seniority-cum-suitability. Mr. Dubey also referred

to another decision of this Court in Gujarat

Agricultural University vs. Rathod Labhu Bechar and

others [2001 (3) SCC 574], wherein also this Court

permitted the regularization of a large number of

daily-rated labourers to be effected in a phased

manner. Mr. Dubey lastly referred to the decision

of this Court in State of Manipur and another vs.

KSH. Moirangninthou Singh and others [2007 (10) SCC

544], wherein following the decision in the case of

Secretary, State of Karnataka and others vs. Uma

Devi and others [2006 (4) SCC 1], it was held that

in the absence of specific rules, the Court did not

have power to direct regularization of the services

of the Home Guards under the Manipur Home Guards

Act, 1966.

16

15. Mr. Dubey submitted that the judgment and order

of the learned Single Judge did not warrant any

interference by the Division Bench, and,

accordingly, the judgment under appeal was liable

to be set aside and the scheme as framed was liable

to be approved.

16. Mr. Dubey's submissions were hotly contested by

Mr. B.K. Das, learned Advocate, who contended that

the Scheme, as framed, was only meant to pay lip-

service to the directions given by the Tribunal as

well as the High Court and had been rightly quashed

by the Division Bench in MAT No.25 of 2006. He

urged that the directions as given by the Division

Bench while disposing of the writ petitions

specifically directed the authorities to frame a

Scheme in keeping with the principles enunciated in

Pantha Chatterjee's case (supra) since the decision

of the Tribunal was justified. Since the said

direction is relevant for disposal of this appeal,

the same is extracted hereinbelow :- 17

"The appropriate authority shall frame a Scheme as directed by the learned Tribunal, if necessary, by issuing an appropriate Notification for the purposes mentioned in the order appealed against. When the Scheme is to be formulated, the appropriate authority shall take into consideration the principles laid down in the decision in Pantha Chatterjee(supra)."

17. Mr. Das submitted that from the above

directions, it would be crystal clear that it was

the intention of the High Court that the Scheme as

contemplated should be formulated after taking into

account the principles laid down in Pantha

Chatterjee's case (supra). He submitted that

otherwise, if that were not the intention,

reference to Pantha Chatterjee's case (supra) was

redundant. Referring to the Scheme, as framed, Mr.

Das urged that it was the intention, both of the

Central Administrative Tribunal as also of the High

Court, that all the respondents had to be absorbed

together and not in instalments, as has been sought

to be done in the Scheme as framed by the

authorities. Furthermore, the directions given 18

being for absorption, it only required

regularization of the services of the respondents

and not new appointments and hence the question of

reservation on any count is not applicable in the

facts of the instant case.

18. Mr. Das submitted that the Scheme as framed was

not in keeping with the directions given by the

Division Bench and it had been wrongly claimed on

behalf of the appellants that in the absence of any

specific directions, they were not required to

frame the Scheme on the basis of the observations

made in Pantha Chatterjee's case (supra). Mr. Das

urged that if every portion of the Scheme were to

be analyzed carefully, it would be evident that the

same had been framed in a manner which was contrary

to the directions given by the Division Bench while

disposing of the writ petitions and not also in

keeping with the views expressed in Pantha

Chatterjee's case (supra). Mr. Das urged that in

the Scheme an attempt had been made to create a 19

divide within the same class of Home Guards whose

cases fall within the scope of the directions given

by the Division Bench, which was not its intention.

19. Reference was made to the decision of this

Court in Baburam vs. C.C. Jacob and others [1999

(3) SCC 362], wherein it was laid down that the

prospective declaration of law by the Supreme Court

under Article 141 of the Constitution is to avoid

reopening of settled issues and to prevent

multiplicity of proceedings. Accordingly, once the

matter relating to the regularization of the

services of the Home Guards had been decided

finally in Pantha Chatterjee's case (supra), it was

no longer open to the Central Government to frame a

Scheme to defeat the said decision.

20. It was urged by Mr. Das that the decision of

the Division Bench did not warrant any

interference.

20

21. Having considered the submissions made on

behalf of the respective parties, we are inclined

to accept Mr. Das's submissions, which were in

support of the decision of the Division Bench of

the Circuit Bench of the Calcutta High Court at

Port Blair.

22. Firstly, we are in agreement with Mr. Das and

the Division Bench of the High Court that the

intention of the earlier Division Bench while

disposing of the two writ petitions filed by Manoj

Kumar Singh and others was that the Scheme was to

be framed not only in terms of the directions given

by the Central Administrative Tribunal, but also in

the light of the views expressed in Pantha

Chatterjee's case (supra). A glance at the Scheme

framed makes it very clear that the same had not

been framed in terms of the directions given by the

Division Bench and also this Court and certainly

not in keeping with the decision in Pantha

Chatterjee's case (supra). As has been very 21

rightly pointed out in the judgment under appeal,

it was the intention, both of the Tribunal and the

High Court, as well as this Court, that the

respondent Home Guards were to be absorbed in the

regular establishment of the Andaman & Nicobar

Islands and no new appointment was required to be

made. It was, therefore, the further intention of

the Tribunal as well as the Courts that the

absorption of the eligible respondents were to be

at one go and not in phases, as has been sought to

be suggested in the proposed Scheme. In fact, such

a procedure had neither been directed by the

Tribunal nor the High Court, nor this Court in

Pantha Chatterjee's case (supra). As a result,

the question of 100% reservation would not arise

since the absorption of the respondents did not

amount to new appointments which could have given

rise to the question of reservation. In our view,

the Division Bench has very correctly observed that

the intention of the Tribunal and the Courts was 22

that the benefits to be given to the writ

petitioners (respondents herein) should be extended

to all of them uniformly and without making any

discrimination. The very fact that some of the

respondents would be regularized, while the others

would have to wait till the next vacancies arose or

the possibility that some of the candidates who

were otherwise eligible, might not even be

absorbed, was never the intention when the

directions were given to frame a Scheme for

absorption of the respondents. In our view, such a

course of action appears to have been adopted to

negate the effect of the earlier orders so that the

respondents as a whole were deprived of the benefit

of absorption and the further benefit of `equal pay

for equal work', as was indicated in Pantha

Chatterjee's case (supra). As a direct consequence

of the disparity in the pay structure of the

respondents, who were to be absorbed in stages,

their post-retiral benefits would be affected and 23

would not be uniform, which was also not intended

when directions were given for framing of Scheme to

absorb the said respondents.

23. Clause (h) of the Scheme, which has been

commented upon by the Division Bench of the

High Court, denies to the respondents any other

benefit other than those specified in the

Scheme, thereby creating a class within a

class, which is not only contrary to Article 16

of the Constitution but is also contrary to the

directions given by the High Court regarding

absorption of the existing Home Guards. Even

clause (i) is arbitrary and discriminatory in

nature as it contemplates a situation where

some of the respondents who were otherwise

eligible, may not at all be absorbed in the

regular administration which would disentitle

them to the benefits of the directions given by

the Central Administrative Tribunal and the

High Court.

24

24. On the question of creation of supernumerary

posts, it may be indicated that while it is no

doubt true that creation of posts is the

prerogative of the executive, in order to meet

certain special exigencies such a course of

action has been resorted to by this Court and

in our view this is one such case where such a

direction does not need any intervention.

25. In such circumstances, we see no reason to

interfere with the judgment impugned and the

appeal is accordingly dismissed.

26. The appellants and those concerned are directed

to implement the directions given by the

Division Bench in the impugned judgment within

three months from the date of communication of

this order.

.......................................J. (ALTAMAS KABIR) 25

.......................................J. (CYRIAC JOSEPH)

New Delhi Dated: 06.05.2009