Holding

The scheme was not framed in accordance with the Tribunal’s directions or the Pantha Chatterjee principles; the Home Guards must be absorbed in one go without reservation, and the appeal is dismissed.

Summary

The respondents, Home Guards in the Andaman & Nicobar Islands, had served continuously for 12‑23 years and sought regularisation and equal pay with regular employees. The Central Administrative Tribunal directed the government to frame a scheme for their absorption, invoking the principles laid down in State of West Bengal v. Pantha Chatterjee. The government framed a scheme reserving only 20% of vacancies for the Home Guards and implementing absorption in phases, which the respondents challenged. The Calcutta High Court set aside the scheme, holding it contrary to the Pantha Chatterjee principles, and the Union of India appealed. The Supreme Court affirmed the High Court, observing that the scheme was not framed in accordance with the Tribunal’s directions or the Pantha Chatterjee precedent, that phased absorption created a class within a class violating Articles 14 and 16, and that the question of reservation did not arise as the absorption was not a new appointment. Consequently, the appeal was dismissed and the government was directed to implement the High Court’s scheme within three months.

Issues considered

The scheme for regularisation of Home Guards complies with the directions of the Central Administrative Tribunal and the principles of State of West Bengal v. Pantha Chatterjee.
Whether a phased absorption with a 20% reservation violates Articles 14 and 16 of the Constitution.
Whether the creation of supernumerary posts for regularisation is within the court's jurisdiction.
Whether the Home Guards are entitled to equal pay for equal work with regular employees.

Legislation cited

Constitution of Indias. Article 14, s. Article 16, s. Article 240(1)

Subjects

regularisationequal pay for equal workhome guardreservationArticle 14Article 16Central Administrative Tribunalschemeabsorptionsupernumerary posts

Judgment

(2009) 9 S.C.R. 969

UNION OF INDIA & ORS. A
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:
c
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 E
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 F
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 G
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/
969 H
970 SUPREME COURT REPORTS (2009] 9 S.C.R.

A 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
B consideration the principles laid down by the Supreme
Court in Pantha Chatterjee's1 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
c 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
E administration filed the appeal.

Dismissing the appeal, the Court

HELD: 1.1. The Division Bench of the High Court in
F 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
G 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

H 1. 2003(1) Suppl. scr 427.
UNION OF INDIA & ORS. v. PARUL DEBNATH & 971
.... ORS .
)r
the judgment under appeal, it was the intention, of the A
,.. 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] B
State of West Bengal & Ors. vs. Pantha Chatterjee & Ors.
2003(1) Suppl. SCR 427=2003 (6) sec 469, relied on.
..i:~

1.2. It was the further intention of the Tribunal as well
as the Courts that the absorption ·of the eligible c
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] · D
>
~

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 E
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 F
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 G
... 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 H
972 SUPREME COURT REPORTS (2009) 9 S.C.R.
....
:<
A work', as was indicated in Pantha Chatterjee's case. As a
direct consequence of the disparity in the pay structure ...
of the resp~:mdents, 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
B were given for framing of Scheme to a absorb the
respondents. (Para 22] [982-G-H; 983-A-D]

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

commented upon by the Division Bench of the High
Court, denies to the. respondents any benefit other than
c those specified in the· Scheme, thereby creating a class
within the 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
D 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
E Administrative Tribunal and the High Court. (Para 23] (983-
D-F]

4. 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,
F
in order to meet certain special exigencies such a course
of action has been resorted to by this Court and 'this is
one such case where such a direction does not need any
intervention. In such circumstances, there is no reason
to interfere with the judgment impugned. The appellants
G and those concerned are directed to implement the .,.
..,
directions given by the Division Bench. [Para 24, 25 and
26] [983-G-H; 984-A-B]

Divisional Manager, Aravali Golf Club and another vs. ...
H Chander Hass and another 2008 sec 683; Moo/ Raj
UNION OF INDIA & ORS. v. PARUL DEBNATH & 973
ORS.
-o(

;,i.
Upadhyay vs. State of Himachal Pradesh 1994 (supp.) 2 SCC A
316; State of Manipur and another vs. KSH. Moir11ngninthou
'·
Singh and others 2007 (10) SCC 544; Secretary, State of
Kamataka and others vs. Uma Devi and others 2006 (4) SCC
1 and Baburam vs. C.C. Jacob and others 1999 (3) SCC 362,
referred to. B

Case Law Reference:
.Ji.__.
2008 sec 683 referred to Para 13

1994 (supp.) 2 sec 316 referred to Para 14
c
2001 (10) sec 544 referred to Para 14
2006 (4) sec 1 referred to Para 14
1999 (3) sec 362 referred to Para 19
D
,. CIVIL APPELLATE JURISDICTION : Civil Appeal No.
. 3379 of 2009 .

From the Judgment & Order dated 22.01.2007 of the High
Court of Calcutta Circuit Bench at Port Blair, in MAT No. 025
of 2006. E

S.K. Dubey, S. Wasim A. Qadri, Subhash Kaushik, Tiwari,
~ D.S. Mahra for the Appellants.
4,
,{_
Bimal Kumar Da·s, Yadunandan Bansal and Rauf Rahim
F
for the Respondents.

The Judgment of the Court was delivered by

ALTAMAS KABIR, J. 1. Leave granted.

., 2. In exercise of powers conferred by Article 240(1) of the
G
.... 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
H
974 SUPREME COURT REPORTS [2009] 9 S.C.R.

).._
A Commissioner (now Lieutenant Governor), A&N Islands, ~
framed the "Andaman & Nicobar Home Guard Rules, 1965" f
(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
B 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
c 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
D been working for periods 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
E , regularization of their services.
1
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, ..,,,. ;:..
F 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 oUndia & 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
G
services of the Home Guards, who had been working for 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
H
-i

UNION OF INDIA & ORS. v. PARUL DEBNATH & 975

.
t' ORS. [ALTAMAS KABIR, J.]
...
Administration. A

5. The Tribunal disposed of the said Original AppHcations

.. 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 8
consider the framing of an appropriate Scheme, in consultation
with the A&N Islands Administration, for absorption/
.J..~. regularization/ appointment of persons like the respondents
lllS' herein wh_o 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
c
7 of the order to suit local conditions, 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.
D
•• 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 E
f 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
_. ..
w
writ petitions, the High Court, apart from considering the nature
of the work performed by the respondents, also took into F
consideration the decision of this Court in State of West Bengal
& Ors. vs. Pantha Chatterjee & Ors. [2003 (6~SCC 469],
where'n in a similar situation certain directions had been given
by this Court for framing a Scheme for similar purposes, and
direct~d the appropriate authority to frame a Scheme as
G
~ directed by the Tribunal and while doing so to take into
consideration the principles laid down in Pantha- Chatterjee's
case (s.upra).

7. f\fter the orders passed by the Circuit Bench of the
c
Calcutta. t-iigh Court at Port Blair in WPCT No. 73 of 2003 and H
?-
,_ l

i
'
976 SUPREME COURT REPORTS [200~] 9 S.C.R.
,,_
"
A 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 respond~nts to
consider the case of the writ petitioners in accordance with the
-- ,,....
B ->
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, )

(
c 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, ..
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
D
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
E 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 .,....
F 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,
G 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,
H
UNION OF INDIA & ORS. v. PARUL DEBNATH & 977
ORS. [ALTAMAS KABIR, J.]
...
),
the Lieutenant Governor, A&N Islands, Port Bl~ir and other A
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). B

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
c
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 D
> .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 E
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 F
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 G
· 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 H
I - •
978 SUPREME COURT REPORTS [2009] 9 S.C.R.
...
with the requirements of Articles 14 and 16 of the Constitution. .(
A
It was in keeping with such .a policy decision that in the Scheme ~
it was. provided that of. the vacancies occurring in any year, t--
including.the existing vacancies in all Group D posts under the
A&N Administration and in the post of Constable in Group C
"
B 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
c 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
D
Scheme, as framed, upon holding that the same was not in -\-
conformity with the directions of the High Court or the directions ...
inPantha.Chatterjee's case (supra). Mr. Dub~y submitted that
the Di.vision Bench, while allowing the above-mentioned writ
I
petitions· on 16th December, 2003, directed the authorities to •
E 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
,;y'
.
)

would have to be formulated in keeping with the principles .;.

enunciated in the ·said case, but to. take the same into
F 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 ,
t,.-:-

'I-
both by the Central Administrative Tribunal and the High Court,
G the authorities framed the instant Scheme which they thought
would ·take care of both the conditions. It 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
H-
UNION~OF INDIA & ORS. v. PARUL DEBNATH & 979

• f
....,
!
ORS. [ALTAMAS KABIR, J.]

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.
A

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 B
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 c
cannot direct 'the creation of posts since the same is the
prerogative of the executive or the legislative authorities and
the Court cou.ld 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
D
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
absorptiofl, Mr. Dubey referred to the decision of this Court in
the case of Moo/ Raj Upadhyaya vs. State of Himachal E
--<. 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 F
implications arising out of payment of arrears for the period
mentioned therein. It 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 G
''· 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. H
980 SUPREME COURT REPORTS (2009) 9 S.C.R.

A Moirangninthou Singh and others [2007 (1·0) SCC 544). .•:
wherein following the decision in the case of Secretary, State
of Kamataka and others vs. Uma Devi and others [2006 (4)
sec 1], it was held that in the absence of sp·ecific rules, the
Court did not have power to direct regularization of the services
B of the Home Guards under the Manipur Home Guards Act,
1966.

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
c 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,
D 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 spe~ifically directed the
E 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 :- ;.

F "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 ~cheme is to be
formulated, the appropriate authority shall take into
G 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
H that the Scheme as contemplated should be formulated after
'
'' UNION OF INDIA & ORS. v. PARUL DEBNATH & 981
ORS. [ALTAMAS KABIR, J.]
-
~
taking into account the principles laid down in Pantha A
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 B
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 c
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 D
·>
,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 E
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 F
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],
~
G
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
H
982 SUPREME COURT REPORTS [2009] 9 S.C.R. ,,>

A 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.
B
21. Having considered the submissions made on behalf
of the respective parties, we are inclined to accept Mr. Das's -4-
submissions, which were in support of the decision of the
Division Bench of the Circuit Bench of the Calcutta High Court
c 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
D 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
E
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
G 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
H have given rise to the question of reservation. In our view, the
UNION OF INDIA & ORS. v. PARUL DEBNATH & 983
ORS. [ALTAMAS KABIR, J.]
Division Bench has very correctly observed that the intention A
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 B
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 c
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 D
-1.
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 23. Clause (h) of the Scheme, which has
been commented upon by the Division Bench of the High Court,
E
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 F
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.
G
"'· 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 H
984 SUPREME COURT REPORTS [2009) 9 S.C.R.

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.