D.H. Waghela, J.@mdashThe original parties on both sides in SCA No. 10862 of 2003have preferred these appeals from the elaborate judgment dated 09.02.2005 of learned single Judge of this Court, whereby the original Petitioners, Border Wing Home Guards, were ordered to be granted all benefits admissible to the State Government''s servants with effect from 30.7.2003 with a direction to absorb them retrospectively from the same date. LPA No. 712 of 2005 is preferred by the State of Gujarat and the Commandant General of Home Guards Organization against all the 610 home guards concerned -original Petitioners. LPA Nos. 788 of 2005 and 839 of 2005 are preferred from judgment dated 13.4.2005 and 16.2.2005 in SCA Nos. 9434 of 2004 and 15654 of 2003 respectively. Those judgments referred and relied upon the judgment impugned in the main LPA No. 712 of 2005. LPA Nos. 1709 of 2005, 204 of 2007 and 478 to 589 of 2006 are cross-appeals filed by the BWH Gs concerned from the same judgments. The original impugned judgment being one in all the appeals and all the arguments having been addressed on the basis of record of LPA No. 712 of 2005, the parties concerned are addressed herein, for the sake of convenience, as "the Appellants", i.e. the State Government and the Commandant General of Home Guards Organization (original Respondents) and "the Respondents", i.e. Border Wing Home Guards (original Petitioners).
2 The original Petitioners (referred to as "BWH Gs") approached this Court with the prayers, inter alia, to direct the Appellants to evolve fair, just and reasonable conditions of service and grant service benefits, like fixation of pay, leave, over-time, medical allowance, travelling allowance, retiral benefits like provident fund, pension and gratuity and declare them as permanent and full-time members of the Boarder Wing Home Guards with all consequential benefits. The factual basis for the BWH Gs to make those prayers was that, border wing home guards were classified as full-time and part-time appointees and the original Petitioners were described as part time employees, though they were working full time, round the clock and throughout the year. While the BWG Hs were given different designations carrying different pay scales, the so-called part-time BWH Gs were paid only basic pay plus dearness allowance in the respective scale against their designations. Even after putting in more than 10 to 18 years of service (in the year 2003), the part-time BWH Gs were denied parity of pay and benefits at par with the so-called full-time border wing home guards. According to them, they were duly recruited, selected and appointed after public notice and physical test as well as oral and written tests. After being duly appointed and enrolled as part-time BWH Gs, they have been engaged in full-time duty, round the clock and throughout the year, as fully trained personnel. Vide Government Resolution dated 04.10.1989 of the Home Department, home guards were equated with State Reserve Police (SRP) personnel for the purpose of pay, but no other benefits of paid holidays, leave with wages, over time, medical allowance, travelling allowance or any terminal benefits were accorded to part-time BWH Gs. Instead, professional tax was deducted from their salaries. The BWH Gs were, throughout their many years of service, rendering full time duties and performing various functions contemplated by Rule 16 of the Bombay Home Guards Rules, 1953 and were having 85 to 93% presence in the total years of service as BWH Gs, according to original Petitioners. Thus, even as they were described as part-time in their enrollment orders, they were in fact rendering full-time duties and they were usually deployed in the border areas or other stations far from their home and family throughout the year. Therefore, they could not engage in other employment or work and their source of income remained the fixed salary as BWH Gs. It was the contention on behalf of the BWH Gs that in the Bombay Home Guards Rules, 1953 ("the Rules" for short), there is no reference to any part time service. Under such circumstances, when they were apprehensive of their disengagement by way of punishment for demanding service benefits, they had approached this Court in October 2001 by way of SCA No. 9113 of 2001 and obtained interim stay against termination of such BWH Gs who had put in more than two years of service. On 28.01.2003, the BWH Gs concerned were permitted to withdraw their petition with a view to making a representation through the Commandant of Home Guards for ventilating their grievances. Accordingly, while the authorities were directed to maintain status quo as regards services of the Petitioners till a decision on the representation was made and communicated, a representation was made in March 2003, but no decision on the representation was communicated and service of 428 BWH Gs was terminated in breach of the aforesaid order, according to the petition. The BWH Gs heavily relied upon judgment of the Apex Court in
16. ... Ordinarily, no doubt they could claim benefits only in accordance with the scheme under which they were engaged. But as held earlier, the scheme was not implemented in its terms as framed. Hence, the distinction sought to be drawn between the part time and the permanent BWH Gs had obliterated and both worked together shoulder to shoulder under similar situations and circumstances and discharged same duties. Once the scheme as framed failed to be implemented as such by those at the helms of the affairs and the part time BWH Gs were continued under the authority of those vested with such power to continue them, it is not open to the State Government or the Central Government to deny them the same benefits as admissible to members of the permanent staff of BWH Gs.
18. In the circumstances indicated above the High Court has rightly come to the conclusion that so-called part time Border Wing Home Guards could not be treated differently from the permanent staff of the BWHG. They have been rightly accorded parity with them.
3. As against the above case of the BWH Gs, the Appellants herein stated before learned single Judge that the representation of the BWH Gs was replied by letter dated 22.9.2003 of the Commandant General of Home Guards, according to which the application for giving uniform maintenance allowance to the members of BWHG was under consideration of the Government. However, as they were governed by the provisions of the Bombay Home Guards Act, 1947 and the Bombay Home Guards Rules, 1953, they had no right to permanency and hence no right to parity with permanent employees. The Bombay Home Guards Act, 1947 ("the Act" for short) has been enacted with a view to provide for a voluntary organization for use in emergencies and for other purposes. Home Guards were the persons who had voluntarily joined the Organization to serve under the Commandant of Home Guards. Thus, it was denied that there was relationship of master and servant between the Appellants and the home guards. The Appellants herein contended that there were four Battalions of Border Wing Home Guards functioning in the State and each Battalion had 708 part time voluntary home guards. The Border Wing Home Guards were a part of the Home Guards Organization as a whole having 45,000 members. The home guards were paid remuneration in accordance with Rule 17 of the Rules, in the nature of honorarium, as they were not regular government employees. According to the Appellants, there were four BWHG Battalions in Gujarat, each Battalion having six Companies. Each Company had an authorized strength of 118 part time volunteers. All the 610 original Petitioners had submitted their applications in the prescribed form and they were appointed as members of the Home Guards Organization. It was denied that they were working full time, round the clock and throughout the year, except during emergencies. They were paid honoraria, according to their designation and in terms of letter dated 10.4.2003 of Assistant Director General (Civil Defence), Organization of Home Guards (Government of India). That letter was addressed to the Chief Secretaries of Assam, Gujarat, Meghalaya, Punjab, Rajasthan, Tripura and West Bengal and read as under:
I am directed to say that the amendments made vide to this Ministry''s letter of even number dated 19.2.2003 may now be read as under:
On embodiment or during the periods of training, Border Wing Home Guards volunteers would receive honoraria equivalent to the prescribed pay and allowances at the minimum scale appropriate to their ranks and trades in the State Armed Police.
3.1. It is stated on oath by the Battalion Commandant, Ist Battalion, Border Wing Home Guards at Palanpur, in his affidavit-in-reply, that the home guards were acting as auxiliaries to the police force and none of the original Petitioners were physically stationed on the international border, that they were disembodied from time to time and were free to pursue their vocation. They have been equated with State Armed Police personnel so that honoraria given to them can be equated with their ranks as well as for sanctioning travelling allowance. They were not recruited under the Gujarat Civil Service (Classification and Recruitment) Rules, 1967 but were appointed on the basis of the Home Guards Act and the Rules framed there under. Under Rule 9 of the Rules, a home guard may continue as such till he attains the age of 55 years and hence he would not be eligible for retiral benefits like pension and gratuity. It is averred that BWHG strength is made up from the existing allotted strength of home guards of the State and there is no element of permanency or regularity attached to being appointed as BWH Gs. It is admitted that in the event of grave emergencies, like communal riots, post Babri Masjid demolition or other communal riots, Kargil conflict and its aftermath, cyclone at Kandla and the Kutchch earthquake, where all the agencies were moblized to render service and humanitarian aid, BWH Gs were deployed for a longer duration.
4. Learned Advocate General Mr. Kamal Trivedi, appearing for the Appellants, submitted that four Battalions of Border Wing Home Guards were raised in the State and each Battalion comprised of six Companies. Such Company would have 128 personnel, out of whom ten were appointed as permanent full-time BWH Gs and remaining were called ''Part-time BWH Gs''. All the members of BWH Gs were governed by the Bombay Home Guards Act and the Rules made there under. The BWH Gs, as distinguished from the other rural or urban home guards, were enrolled pursuant to sanction of the President of India for raising of two BWHG battalions in the two border districts of Banaskantha and Kutch in the State of Gujarat, vide secret letter dated 29.6.1979 received from the Government of India, Ministry of Home Affairs. That letter contained a distinct scheme for raising and deployment of two battalions of BWH Gs with specific directions about eligibility, enrollment, expenditure, role and organizational set up of the battalions. Referring to the scheme contained in the secret letter dated 29.6.1979, learned Advocate General submitted that the nature of duties envisaged for part-time and full-time BWH Gs were not comparable and the cadres and designations were also different for the two. He submitted that the doctrine of "equal pay for equal work" required equivalence in duties and responsibilities which were not established in the facts of the cases. He submitted that the enrollment and the so-called employment of part-time home guards was exclusively governed by the statutory rules and there were no posts of permanent BWH Gs which could be filled up by regularizing the services of part-time BWH Gs. He further submitted that the directions in the impugned judgment would cause direct increase in the number of posts with huge financial implications and such burden could not be imposed on the State particularly when part-time BWH Gs were not regularly recruited after public notice and proper selection procedure conforming Article 16 of the Constitution. He further submitted that part-time BWH Gs were not exploited as alleged, inasmuch as they were paid wages and dearness allowance at the minimum of the scale equivalent to similar posts in the State Armed Police. He also submitted that appointment of all BWH Gs were subject to the Rules of 1953 and they were required to be deployed according to the requirements, but in fact they were not being deployed exclusively in the border areas to work with or under the Boarder Security Force.
4.1. Learned Advocate General relied upon the later decision of Constitution Bench of the supreme Court in
44. The concept of "equal pay for equal work" is different from the concept of conferring permanency on those who have been appointed on ad hoc basis, temporary basis, or based on no process of selection as envisaged by the rules. This Court has in various decisions applied the principle of equal pay for equal work and has laid down the parameters for the application of that principle. The decisions are rested on the concept of equality enshrined in our Constitution in the light of the directive principles in that behalf. But the acceptance of that principle cannot lead to a position where the court could direct that appointments made without following the due procedure established by law, be deemed permanent or issue directions to treat them as permanent. Doing so, would be negation of the principle of equality of opportunity....
48... The employees before us were engaged on daily wages in the department concerned on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service....
4.2. Learned Advocate General also relied upon judgment in
4.3. Having produced, at the request of the Court, a list of vacancies on the permanent set up of Armed Police Constables (Class III) in the State since the year 1982, learned Advocate General fairly conceded that large number of vacancies were consistently there, but submitted that availability of BWH Gs was not the reason for not filling up those large number of vacancies.
5. Learned senior advocate Mr. Girish Patel, appearing for the Respondent BWH Gs, submitted that the present litigation arising from the impugned judgments affected lives of 1285 BWH Gs of Battalion No. 1 and 2 raised under the special Scheme conveyed vide letter dated 29.6.1979. These guards have actually worked round the clock, far away from their homes, for more than 20 years and for more than 300 days in a year and ironically, they are called and treated as part-time volunteers. He submitted that the original Petitioners, i.e. 1285 BWH Gs, have in fact discharged duties in border areas and other important places and during emergencies. They were distinguished from the other ordinary rural or urban home guards. These personnel were duly selected, recruited, trained, equipped and fully armed as a third line of defence in case of external aggression or internal disturbance. Thus, the BWH Gs concerned in this litigation were in a class by itself and could by no stretch be branded or treated as illegally or irregularly appointed back-door entrants in government service. It was according to the requirement of the Scheme of 1979 that recruitment of BWH Gs was restricted to border areas for their deployment nearer to their homes and the young volunteers were attracted by the opportunity to serve occasionally as a supplementary source of income. However, the State Government operated the scheme in such manner that it completely destroyed the voluntary nature of service and the opportunities for those young men to pursue any other vocation or even meet their family members at regular intervals. He submitted that, by now the BWH Gs concerned having practically invested their entire working life in service of the State, denial of even regular pay-scale and retiral benefits by the State would not only impinge upon the the letter and spirit of Articles 14 and 16 but may amount to denial of right to live in the twilight years of their later life. He submitted that, in the peculiar facts of the present cases, there was no question of illegal or irregular appointments insofar as the BWHGS were recruited under and in accordance with the special Scheme of 1979. There was no question of creation of posts as the posts were already created for the set up under the scheme, and the guards concerned were holding those sanctioned posts, only with the misnomer of "part-time". Similarly, these guards were not appointed as casual, contingent, temporary, ad-hoc, or contract-based employees and hence there was no question of regularizing their services on non-extant posts. Instead, the BWH Gs concerned were assigned designations and duties and already granted equivalence of posts in the matter of pay with the State Armed Police under the scheme of their appointment itself. Their grievance arose from the stark discrimination in denying to them regular pay scale, allowances and retiral benefits without any legal basis or justification, even after their long services ranging from 15 to 27 years and actually working shoulder to shoulder with the so-called full-time BWH Gs and the State Armed police.
5.1. It was pointed out on behalf of the BWH Gs that even during pendency of their petitions before learned single Judge, the Appellants herein were directed to constitute a high level committee to redress their grievance, but such committee rejected the claim without appreciating the grievance and without even referring to the judgment of the Apex Court in Pantha Chatterjee (supra) which was relied upon by the BWH Gs. He submitted that even after the impugned judgment, the Appellants were approached with offers to waive part of the arrears with a view to ensure some financial security for the remaining life of the BWH Gs concerned. But the Appellants only offered the scheme of absorption which allowed the BWH Gs to enter the State service afresh; completely ignoring and obliterating the past services of 15 to 27 years. Thus, learned senior advocate Mr. Patel made an impassioned appeal to the judicial conscience of the Court to consider the plight of and prospect for the BWH Gs concerned, keeping in view the Preamble, the Fundamental and inalienable human rights of the original Petitioners, the letter and spirit of the Directive Principles of State Policy and the Fundamental Duties of every citizen to abide by the Constitution and to respect the ideals enshrined in it.
5.2. Learned advocate Mr. Shalin Mehta, also appearing for Respondent BWH Gs, submitted that, by virtue of latest decision of the Apex Court in Union of India v. Parul Debnath (2009) 7 SCC 255 after the Constitution Bench decision in Secretary, State of Karnataka v. Uma Devi (supra), the ratio and decision in Pantha Chatterjee''s case (supra) holds the field and absorption in government service of BWH Gs with retrospective effect was the appropriate relief which could be and ought to be granted in the facts of the present cases. Relying upon
8.1 ...just as some of the Petitioners are guardsmen, there are guards in the full-time staff and yet both are treated unequally. Similarly, there are Nayaks both part-timers as well as full-timers and both are working in the same way and yet they are treated unequally. Similarly, there are Havaldars in both part-timers as well as full-timers and yet they are treated unequally. This is a gist of the Petitioners'' grievance and this is what the Petitioners'' demand i.e. de facto the Petitioners are working like full-time staff of the Border Wing Home Guards, the Petitioners must be given same treatment de jure.
He further submitted that the BWH Gs concerned have the fundamental right to live with dignity and minimum means of livelihood after being retired upon reaching the age of superannuation and the State, in whose service they had already spent a large part of their lives, was duty bound to ensure that they were not just left to starve. Learned Counsel relied upon following observations of the Apex Court in its recent decision in
22. In Y.A. Mamarde v. Authority under the Minimum Wages Act, this Court while interpreting the provisions of the Minimum Wages Act, 1948, observed:
The anxiety on the part of the society for improving the general economic condition of some of its less favored members appears to be in supersession of the old principle of absolute freedom of contract and the doctrine of laissez faire and in recognition of the new principles of social welfare and common good. Prior to our Constitution, this principle was advocated by the movement for liberal employment in civilized countries and the Act which is a pre-constitution measure was the offspring of that movement. Under our present Constitution, the State is now expressly directed to Endeavour to secure to all workers (whether agricultural, industrial or otherwise not only bare physical subsistence but a living wage and conditions of work ensuring a decent standard of life and full enjoyment of leisure. This Directive Principle of State Policy being conducive to the general interest of the nation as a whole, merely lays down the foundation for appropriate social structure in which the labour will find its place of dignity, legitimately due to it in lieu of its contribution to the progress of national economic prosperity.
23. The preamble and various Articles contained in Part IV of the Constitution promote social justice so that life of every individual becomes meaningful and he is able to live with human dignity. The concept of social justice engrafted in the Constitution consists of diverse principles essentially for the orderly growth and development of personality of every citizen. Social justice is thus an integral part of justice in the generic sense. Justice is the genus, of which social justice is one of its species. Social justice is a dynamic devise to mitigate the sufferings of the poor, weak, dalits, tribals and deprived sections of the society and to elevate them to the level of equality to live a life with dignity of person. In other words, the aim of social justice is to attain substantial degree of social, economic and political equality, which is the legitimate expectation of every section of the society.
24. In a developing society like ours which is full of unbridgeable and ever widening gaps of inequality in status and of opportunity, law is a catalyst to reach the ladder of justice....
30 ... The stock plea raised by the public employer in such cases is that the initial employment/engagement of the workman-employee was contrary to some or the other statute or that reinstatement of the workman will put unbearable burden on the financial health of the establishment. The courts have readily accepted such plea unmindful of the accountability of the wrongdoer and indirectly punished the tiny beneficiary of the wrong ignoring the fact that he may have continued in the employment for years together and that micro wages earned by him may be the only source of his livelihood.
31. It need no emphasis that if a man is deprived of his livelihood, he is deprived of all his fundamental and constitutional rights and for him the goal of social and economic justice, equality of status and of opportunity, the freedoms enshrined in the Constitution remain illusory. Therefore, the approach of the courts must be compatible with the constitutional philosophy of which the Directive Principles of State Policy constitute an integral part and justice due to the workman should not be denied by entertaining the specious and untenable grounds put forward by the employer-public or private.
42. That being the legal position, under Article 38 of the Constitution, a duty is cast on the State, which includes the judiciary, to secure a social order for the promotion of the welfare of the people. Article 38(1) runs as follows:
38. State to secure a social order for the promotion of welfare of the people-
(1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.
This is echoing the Preambular promise. Therefore, it is clearly the duty of the judiciary to promote a social order in which justice, economic and political informs all the institutions of the national life. This was also made clear in Kesavananda Bharati by Justice Mathew at page 1952, para 1728 and His Lordship held that the Directive Principles nevertheless are:
.1714...fundamental in the governance of the country and all the organs of the State, including the judiciary, are bound to enforce those directives. The Fundamental Rights themselves have no fixed content: most of them are mere empty vessels into which each generation must pour its content in the light of its experience.
6. Considering the rival contentions, it clearly appears that, in the matter of engagement of BWH Gs concerned, statutory structure is provided by the Bombay Home Guards Act, 1947 and the Rules made there under, while the mandate and the conditions of service have come through the Scheme of the Central Government in the year 1979. The Act provides for training, deployment and control of home guards, whereas the Rules provide for appointment of members of home guards and limits of age for appointment and continuance as a member. The Rules also provide for discharge, resignation, discipline, training, functions and duties, remuneration and compensation for the home guards. In short, membership of the voluntary organization of home guards carries with it most of but not all the incidents of service. In the facts of the present cases, it is not the ordinary home guards enrolled under the Act or the Rules which are under consideration, but it is only the Border Wing Home Guards concerned, whose facts of deployment and grievances are different, whose cases have to be considered. And what they really sought was not the designation of full-time permanent home guards, but parity with the State Armed Police in all respects, according to their equivalent rank and designations.
6.1 Admittedly, two battalions of BWH Gs were raised pursuant to and in accordance with the letter dated 29.6.1979 of the Central Government. According to that letter, battalions were to be raised from within the belt zone of between 5 to 50 miles along the border as far as practicable and no rural home guards were to be raised or retained within the areas covered by the belt. It was to be ensured that the BWH Gs were available for duty during emergencies both for long and short durations in the event of call out. They had to fulfill the required qualifications/standards and conform to the standards laid down for the armed police battalions in the State. In order to ensure rapid mobilization, the enrollment was to be from inhabitants of the border districts; and for speedy raising of the battalions, permanent staff as authorized was to be taken on loan from retired defence services or police personnel. In the event of other urgent utilization by the State Government for its own purposes, it could be resorted only after prior clearance of the Ministry of Home Affairs, Government of India; and the expenditure for such deployment had to be borne by the State at 100%. Otherwise, the expenditure on the Scheme was to be met by Government of India at 75% on the authorized staffing pattern and other items as laid down in the Scheme and the remaining 25% was to be met by the State Government. The BWH Gs were to be assigned additional roles during periods of tension on the border to assist in providing local security to border villages, to protect the lines of communication in times of emergency and to provide sub-units as auxiliaries to the Border Security Force in defence of the border including patrolling along the border and checking and preventing infiltrators. The sanctioned strength of full-time paid and part-time volunteers of combatants and non-combatants were to be as prescribed in the scheme. The full-time establishment at Platoon H. Qs. and Battalions H. Qs. were to be paid at the scales of pay and allowances admissible to the State Armed Police , while the remainder on part-time were to be given honoraria at fixed monthly rates. However, on embodiment or during the periods of training, part-time BWH Gs were to receive pay and allowances appropriate to their ranks and trades at par with the State Armed Police. This requirement of pay and allowances appropriate to the rank and trade at par with the State Armed Police was reiterated (with qualification of minimum of the pay-scale) in the letter dated 10.4.2003 reproduced hereinabove. The scheme also prescribed a rigorous training schedule and syllabus and provided for advanced collective training. It is not the case of the Appellants that the BWH Gs were enrolled or appointed de hors the Act and the Rules, or in violation of the provisions of the Scheme.
6.2 Thus a special force of BWH Gs was created for a special purpose. But in fact, and in effect, the BWH Gs concerned were, for the most part, deployed by the State Government, practically continuously as an auxiliary to the police force, without complying with the requirements of disengagement or disembodiment. They were enrolled between the years 1982 to 1995 and most of them were continuously deployed throughout the period and thereafter, -according to the figures stated on oath-and not denied in reply. It transpired from the letters dated 03.2.1993 and 05.9.1997 of the Battalion Commandant to the Company Commanders that the instructions to demobilize the guardsman at least for 40 days in a year and at least for 10 days in each quarter were being flouted. The Appellants'' own figures on affidavit revealed that the periods of disembodiment were negligible or nil except in early 1980s. Therefore, the inescapable conclusion was that services of the BWH Gs concerned were utilized in substitution of or as auxiliary to the State Armed Police. The figures of consistently large and increasing number of vacancies on the regular set up of the State Armed Police (Class III), particularly since the year 2000, bear testimony to the fact that the BWH Gs concerned were, directly or indirectly and wittingly or unwittingly, deployed where the State Armed Police, if their vacancies were filled up, would have been employed on regular basis. The table of strength and vacancies of State Armed Police (Class III), as submitted by the Appellants, revealed the following figures:
Year Sanctioned Strength Vacancies
2000 9662 1235
2001 9662 1034
2002 9662 1091
2003 9742 1272
2004 9742 1576
2005 10589 2732
2006 10589 3117
2007 11436 4328
2008 13130 2937
2009 13242 3839
2010 16335 3342
6.3. The above facts and figures leave no room for doubting the factual proposition that the BWH Gs concerned were by no stretch employed as part-time volunteers and their enrollment under the aforesaid Scheme was utilized by the State Government itself as a readily available trained and equipped mobile force in addition to or in aid of its depleted regular armed police force. Section 5 of the Act provides that a member of the Home Guards, when called out u/s 4, shall have the same powers, privileges and protection as an officer of police appointed under any Act for the time being in force.
6.4 The nomenclature under the Scheme, of part-time and full-time BWH Gs, was clearly meant to have a full-time establishment to which the home guards enrolled on part-time basis were to report on embodiment. But, in fact, the idea of embodiment and disembodiment at certain intervals, according to the exigencies, appeared to have been abandoned and there appeared no justification for the prefix or appellation of "part-time". Otherwise also, the words "part-time" did not carry in the Scheme its usual meaning of engagement or service for a few hours every day. The words "part-time" signified in the context engagement or service for part or parts of the year interspersed with disengagement or disembodiment. No sooner the BWH Gs concerned were continuously and consistently deployed on various assignments at various places for years together, without being disembodied or relieved for any significant period, the appellation of "part-time" became false, perverse and baseless. It was shown from the data and record of the Respondents that, by now, most of the BWH Gs had served for the last 15 to 27 years with more than 300 days of attendance per year in 15 years and for nearly 365 days a year in five years. Therefore, the Appellants clearly appeared to have actually used and availed the services of BWH Gs in substitution of the State Armed Police, away from the original intention of the Scheme under which they were enrolled. Under such circumstances, it is difficult to hold that the State could legally deny complete equality in the matter of employment, in the face of Articles 14 and 16 of the Constitution, to the BWH Gs concerned.
7. In
22. 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 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 and 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 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... 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 would not be uniform, which was also not intended when directions were given for framing of Scheme to absorb the said Respondents.
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 Courtand in our view this is one such case where such a direction does not need any intervention.
(underlines added)
The appeal was accordingly dismissed by the Apex Court. And, as held in Parul Debnath (supra), 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.
8. Even Constitution Bench decision of the Apex Court in Secretary, State of Karnataka v. Uma Devi (20060 4 SCC 1 (supra) carved an exception (para 53) for duly qualified but irregularly appointed employees who were continued for ten or more years without intervention of Courts or Tribunals. It was opined that the question of regularization of services of such employees may have to be considered on merits and the Union of India, the State Governments and their instrumentalities should take steps to regularize, as a one-time -measure, the services of such irregularly appointed employees who had worked for ten years or more in duly sanctioned posts, but not under the cover of orders of Courts or Tribunals. From the standpoint of industrial law, employment of workmen as casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen, amounts to unfair labour practice, prohibited u/s 25-T and punishable with imprisonment u/s 25-U of the Industrial Disputes Act, 1947. In the facts of the present cases, the Appellants clearly failed to devise and implement a fair scheme for absorption of the BWH Gs concerned in spite of three chances to do so offered by the BWH Gs and orders of the Court.
9. Respectfully following the directly applicable ratio of the decisions of the Apex Court in Pantha Chatterjee (supra) and Parul Debnath (supra), in the facts of the present cases, it has to be held that "once the scheme as framed failed to be implemented as such by those at the helm of affairs and the part-time BWH Gs were continued under the authority of those vested with such power to continue them, it is not open to the State Government or the Central Government to deny them the same benefits as admissible to members of the permanent staff of Border Wing Home Guard". And, the State Government, being in the position of employer of the Respondent-Petitioners, owes the primary responsibility of making all the payments on account of salary, allowances and other perquisites to them as admissible to the permanent staff of Border Wing Home Guards. "The so-called part-time Border Wing Home Guards could not be treated differently from the permanent staff of BWHG". As observed in Parul Debnath (supra), the BWH Gs concerned were required to be absorbed in regular establishment of the Government and no new appointment was required to be made. The benefits to be given to the BWH Gs concerned should be extended to all of them uniformly and without making any discrimination. The Apex Court frowned upon such absorption of the BWH Gs as would affect their post-retiral benefits. Therefore, under the peculiar facts and circumstances, the directions contained in the impugned judgments to give to the BWH Gs concerned all benefits available to the State Government''s servants and absorb them in its service with effect from 30.7.2003, the date of filing of the petition, are not required to be interfered in these appeals. In fact, the State Government has itself made a Scheme dated 06.4.2009 for absorption of the part-time BWH Gs in the regular establishment of State Reserve Police Force (S.R.P.F.) conferring all the benefits of pay scale, allowances etc.; but the BWH Gs could not avail of that Scheme due to pendency of these proceedings and their claims based on very long past service. It was pointed out on behalf of 1285 BWH Gs concerned that they stood to lose more than 30 crore rupees of arrears on account of the appointed date of absorption ignoring their services for the period prior to the year 2002, and the calculation of their retiral benefits will also be affected. That point and grievance was not pressed expressly in consideration of the prospects of the BWH Gs getting all the benefits, with arrears, immediately with effect from the aforesaid date. In view of the unnecessarily prolonged pendency of these appeals, it has to be clarified and directed, in the interest of justice, that the arrears payable to all the 1285 BWH Gs concerned in these appeals shall be counted and calculated on the basis of their absorption in full-time permanent service on the equivalent posts with effect from 30.7.2003 and the amounts of difference of salary and unpaid allowances due at the end of every year, i.e. 30.7.2004, 30.7.2005, 30.7.2006 et. al, shall be capitalized and paid with interest @ 7.5% p.a. The current wages of the BWH Gs concerned shall be calculated on the basis of their absorption in service of the State since 30.7.2003 and paid accordingly with all the increments and admissible allowances at par with the State armed police. The total amounts due as aforesaid towards increments, unpaid allowances and arrears with interest due up to the date of payment as also the benefits at par with the State armed police shall be paid within two months from the date of this order, failing which, the total amount due as on 01.06.2011 to each of the BWH Gs concerned shall have to be paid with interest @ 9; p.a. for the subsequent period. The other BWH Gs whose petitions and appeals are already disposed by earlier orders and who have availed the benefit of the Scheme of their absorption in regular service shall not be, as declared on their behalf by learned senior Advocate Mr. Y.N. Oza, entitled to any relief on the basis of this judgment. Accordingly, subject to the clarifications and directions as aforesaid, all the appeals are dismissed and all the civil applications made therein are disposed as not surviving, with no order as to costs.
Upon this judgment being pronounced today, learned Advocate General requested for staying operation of the order for a period of two months for approaching the higher forum. Since time of two months is already allowed for compliance with the aforesaid order, the request is rejected.
