UNION OF INDIA & ORS. v. PARUL DEBNATH & ORS

Citation: [2009] 9 S.C.R. 969

Court: Supreme Court of India

Bench: ALTAMAS KABIR, CYRIAC JOSEPH

Case summary

UNION OF INDIA & ORS. v. PARUL DEBNATH & ORS.pdf

Judgment text

(2009) 9 S. C. R. 969 UNION OF INDIA & ORS. v. PARUL DEBNATH & ORS. (Civil Appeal No. 3379 of 2009) MAY 6, 2009 . B [ALTAMAS KABIR AND CYRIAC JOSEPH, JJ. ] Andaman & Nicobar Island Home Guard Regulations, 1964: Regulation 4 - Home Guards - Continuing for 12-23 years - Claim for regularisation and equal pay for equal work ~. - Directions given to authorities to frame scheme in accordance with principles laid down in Pantha Chatterjee's case - In such a scheme, question of 100% reservation would 0 not arise since the absorption of the respondents did not amount to new appointments which could have given rise to the question of reservation. The respondents were appointed as Home Guards in the Andaman and Nicobar Islands Home Guard Organisation in terms of Regulation 4 of the Andaman and Nicobar Islands Home Guard Regulations 1964.

They filed Original Application before the Central Administrative Tribunal seeking directions to the appellants administrative authorities to prepare an appropriate Scheme for regularisation of their services as they were continuing in service ranging from 12-23 years without any break, and to give them on the principle of equal pay for equal work, salary at par with their counter parts in the regular organisation 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. The Tribunal directed. the authorities concerned to frame a scheme for absorption/ regularisation/appointment of the respondents and other similarly situated Home Guards, keeping in view the local conditions and peculiar facts and circumstances of the case.

On appeal, the High Court directed that the scheme as suggested by the Tribunal be framed taking into consideration the principles laid down by the Supreme 1 Court in Pantha Chatterjee's case. Thereafter a scheme was framed by the appellants providing for reservation of 20% · of vacant posts to accommodate the respondents while setting apart 80% of the vacancies 'for other candidates. The said scheme was challenged by the respondents in a writ petition which was dismissed by the single Judge of the High Court. However, on appeal, the Division Bench of the High Court held that the Scheme was not framed in accordance with the principles laid down in Pantha Chatterjee's case. It set 0 aside the scheme as also the judgment of the single Judge and directed the Government authorities to frame the scheme afresh in keeping with the principles enumerated in Pantha Chatterjee's case. Aggrieved, the Union of India and Andaman and Nicobar Island administration filed the appeal.

Dismissing the appeal, the Court HELD: 1. 1. The Division Bench of the High Court in the judgment :under appeal rightly hetd that the intention of the earlier Division Bench was that the Scheme was to be framed not only in·terms of the directions given by the Central A~ministrative Tribunal, but also in the light -of the views expressed by this Court in Pantha Chatterjee's case. A glance at the impugned Scheme makes it very clear that the same was not framed in terms of the directions given by the Division Bench and certainly not in keeping with the decision in Pantha Chatterjee's ca_se. As has been very rightly pointed out in 1. 2003(1) Suppl. scr 427. ORS. .... )r the judgment under appeal, it was the intention, 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. [Para 22] [982-C-F] State of West Bengal & Ors.

vs. Pantha Chatterjee & Ors. .. i:~ 2003(1) Suppl. SCR 427=2003 (6) sec 469, relied on. 1. 2. It was 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 im,Pugned ··- Scheme. In fact, such a procedure was neither directed by the Tribunal nor the High Court, nor this Court in Pantha Chatterjee's case. [Para 22] [982-F-G] · > ~ 2. In implementing the directions on the line of Pantha Chatterji's case, 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. The Division Bench of the High Court 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. 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. Such a course of action appears to have been adopted to negate the effect of the earlier orders and the respondents as a whole were deprived of the benefit of absorption and the further benefit of equal pay for equal .... : ratio of Pantha Chatterjee's case (supra). Special Leave Petitions filed by the Union of India against the orders ppssed 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 lhe threshold on 9th August, 2004 and 30th August, 2004, respectively. Thereafter, on 5th April, 2005, .. 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, dismissedthe said writ petition upon holding that the Scheme had been Cramed by the Government Authorities having due rega(d to the principles laid down in Pantha Chatterjee's case (s~pra). 8. The matter was taken to the Division Bench jn appeal, w ;. . ,.... 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 s·ench 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 r ~ 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 Bl~ir 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 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 co. nditions. Mr. Dubey pointed out that the claim of the respondents herein for > . i pay parity on the principle of 'equal pay for equal work' had been negated having regard to the provisions of the 1. 964 Regulation and the Rules framed thereunder in 1965. ·In addition, the question ·of regularization of the services of the· respondents would not also arise as they w~re 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 .. 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 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 ·> ,l the absence of any specific directions, they were not required to fr~me the Scheme on the basis of the observations made in Paf]tha 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 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 a\loid 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. 21. Having considered the submissions made on behalf of the respective parties, we are inclined to accept Mr. Das's -4submissions, 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 1keeping 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 'F 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 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 'equar 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 -1. ~ affected and 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 -,. , .. I\ 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.

On the question of creation of supernumerary posts, it may be indicated that while it is no doubt true that creation of po~ts 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 A 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. 8 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. C R. P. Appeal dismissed.