IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   ______OF 2009 (Arising out of S.L.P.(C)No.10496 of 2007)

Union of India & Ors.     ...   Appellants  Vs.

Parul Debnath & Ors.     ...   Respondents

J U D G M E N T

ALTAMAS KABIR, J.

1. Leave granted.

2. In  exercise  of  powers  conferred  by  Article  

240(1) of the Constitution of India, the President  

of India promulgated the “Andaman & Nicobar Islands  

Home Guard Regulation, 1964” (hereinafter referred  

to  as  “the  1964  Regulation”).  In  terms  of

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  

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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  

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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,  

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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  

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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  

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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).    

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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  

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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  

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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  

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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,  

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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  

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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  

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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  

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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.

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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 :-

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“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  

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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  

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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.  

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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  

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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  

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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  

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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.

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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)

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…………………………………J. (CYRIAC JOSEPH)

New Delhi Dated: 06.05.2009

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