Gujarat High Court
Sodha Tagaji A. & 89 vs State Of Gujarat Thro Secretary & 2 on 19 October, 2016
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/SCA/13923/2012 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13923 of 2012
With
SPECIAL CIVIL APPLICATION NO. 6862 of 2012
With
SPECIAL CIVIL APPLICATION NO. 7160 of 2012
With
SPECIAL CIVIL APPLICATION NO. 13764 of 2012
With
SPECIAL CIVIL APPLICATION NO. 13765 of 2012
With
SPECIAL CIVIL APPLICATION NO. 13767 of 2012
With
SPECIAL CIVIL APPLICATION NO. 13924 of 2012
With
SPECIAL CIVIL APPLICATION NO. 13925 of 2012
With
SPECIAL CIVIL APPLICATION NO. 13926 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
==========================================================
1 Whether Reporters of Local Papers may be allowed to see Yes the judgment ?
2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the No judgment ?
4 Whether this case involves a substantial question of law No as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== SODHA TAGAJI A. & 89 .... Petitioners Versus STATE OF GUJARAT THRO SECRETARY & 2 .... Respondents ========================================================== Appearance:
MR SHALIN N MEHTA, SENIOR ADVOCATE WITH MS VIDHI J BHATT, ADVOCATE for the Page 1 of 129 HC-NIC Page 1 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT Petitioners (In SCAs 13923/12, 13764/12, 13765/12, 13767/12, 13924/12, 13925/12 & 13926/12) MR NIRAL R. MEHTA, ADVOCATE for the Petitioners (In SCAs 6862/12 & 7160/12) MR PRAKASH K JANI, ADDITIONAL ADVOCATE GENERAL WITH MR NIRAJ ASHAR, ASSISTANT GOVERNMENT PLEADER for the Respondents (In all SCAs) ========================================================== CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI Date : 19/10/2016 COMMON C.A.V. JUDGMENT
1. In this batch of nine petitions, a total number of 630 petitioners, belonging to the Border Wing Home Guards of Company A, B, C, D, E, F, of the Second Battalion, KutchBhuj, and of Company B of the First Battalion, Banaskantha, are before this Court. One of the prayers made by the petitioners is common in all the petitions, which is to issue a writ of mandamus, directing the respondents to superannuate the petitioners at the age of 58 years instead of at 55 years and grant all consequential benefits to those petitioners who have been superannuated at the age of 55 years.
2. In Special Civil Application Nos.13923, 13764, 13765, 13767, 13924, 13925 and 13926, all of 2012, certain additional prayers have been made, inter alia, Page 2 of 129 HC-NIC Page 2 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT to apply the Gujarat Civil Services (Discipline and Appeal) Rules, 1971, to the petitioners instead of the Bombay Home Guards Act, 1945, (Bombay Home Guards Act) read with Bombay Home Guards Rules, 1953 (Bombay Home Guards Rules). It has further been prayed that the respondents may be directed to award retiral benefits such as pension, provident fund and gratuity to all those Border Wing Home Guards (BWHG) who were made to superannuate at the age of 55 years, and to the heirs and legal representatives of those BWHG of Special Civil Application No.10862 of 2003 or Letters Patent Appeal No.712 of 2005, who have died during the pendency of the litigation, as though they had been retired at the age of 58 years.
3. Another prayer made in the said petitions is that the respondents be directed to count the date of entry into service of the petitioners as the relevant date and not 30.07.2003 (the date of filing of Special Civil Application No.10862 of 2003), for the purpose of determining the retiral benefits due and payable, considering the age of retirement to be 58 years and the said benefit may also be extended to the heirs and legal representatives of those BWHG who have died Page 3 of 129 HC-NIC Page 3 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT during the pendency of Special Civil Application No.10862 of 2003 or Letters Patent Appeal No.712 of 2005.
FACTUAL BACKGROUND:
4. In order to understand the issues in dispute in their proper context and perspective, it would be necessary to narrate briefly, the salient aspects of the previous litigation between the parties.
5. The petitioners are Border Wing Home Guards of the State of Gujarat. By a communication dated 29.06.1979, addressed by the Deputy Secretary, Government of India, to the Chief Secretary, Government of Gujarat, it was conveyed that His Excellency, the President of India, has conveyed his sanction for raising two Battalions of Border Wing Home Guards in the two border Districts of Banaskantha and KutchBhuj, in the State of Gujarat. Out of the two Batallions, one would be raised with immediate effect during the financial year 197980 and the second in the next financial year of 198081. A Scheme, known as the Border Wing Home Guards in Gujarat, was formulated for raising the two Battalions Page 4 of 129 HC-NIC Page 4 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT of Border Wing Home Guards, pertaining to the organizational setup, strength, paid establishment, uniforms, training, equipment, allowances, honoraria and transport. It is, inter alia, stated in the communication of the Government of India, that the Battalions are to be raised from the belt zone of five to fifty miles. Though preference for enrollment would be given to the members of the Home Guards Organisation already on the rolls, however, it would be ensured that they are available for duty during emergencies for both long and short durations in the event of call out. The BWHG were also required to fulfil the required qualifications and standards. It is further stipulated that the physical standards of the persons enrolled should conform to the standards laid down for the Armed Police Battalions in the State. The BWHG would be utilised for duties in terms of the roles assigned to them and in the event of any urgency for the utilisation by the State Government for their own purposes, for which prior clearance from the Ministry would be required. Accordingly, two battalions of BWHG, one each for the two border Districts of Banaskantha and Kutch, in the State of Page 5 of 129 HC-NIC Page 5 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT Gujarat, were raised. The petitioners belong to these two battalions. It is provided in the Scheme that each Battalion will consist of six Companies and each Company would have three Platoons. Each Platoon is to have three Sections each and each Section will consist of a Section Leader (NK) and Assistant Section Leader (L/NK) with ten Home Guards. The sanction of the full time paid and parttime volunteers of combatants and noncombatants has been laid down in the Scheme.
6. In addition to the roles laid down for the urban/ rural Home Guards, the BWHG would be assigned additional roles as below:
(a) In normal times and during periods of tension on the border to assist in providing local security to border villages and thereby boost the morale of inhabitants to stick to their lands and to pose as a deterrent against pilferage from across the border.
(b) To protect the lines of communication in times of emergency and to assist the local administration in tackling problem of internal security in the border areas and Page 6 of 129 HC-NIC Page 6 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT
(c) When required, to provide subunits as auxiliaries to the Border Security Force in defence of the border including patrolling along the border and in checking and preventing infiltrators.
7. Though the existing BWHG owe their existence to the above Scheme formulated by the Government of India, the framework of the existing Home Guards Act and Home Guards Rules was utilised and they were granted appointments as BWHG, within the structure of the above Act and Rules.
8. The parttime BWHG approached this Court by filing Special Civil Application No.10862 of 2003, inter alia, praying that the respondent authorities be directed to evolve fair, just and reasonable conditions of service and further, to grant service benefits like fixation of pay, leave, overtime, medical allowances, travel allowances and retiral benefits such as provident fund/ pension, gratuity, etc. to them along with arrears of the above mentioned benefits, since the time of their joining. A prayer was also made to declare the termination of the services of 428 BWHG out of the group of 610 as Page 7 of 129 HC-NIC Page 7 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT illegal and to treat such petitioners in service with consequential benefits. This prayer is not of any relevance in the present dispute.
9. The main prayers made by those 610 petitioners were, in essence, to direct the respondent authorities to declare them as permanent and fulltime members of the BWHG and to treat them as such by paying them at par with all consequential benefits and privileges. It was the case of those 610 petitioners before this Court that though they are equal to the fulltime members of the BWHG in all respects they are considered as parttime volunteers and are only granted fixed pay and dearness allowance with no other benefits of fulltime service, as admissible to full time BWHG. They further agitated that they have worked round the clock and rendered continuous service for ten to eighteen years. It was further contended that they have worked for 300 days in the last 15 years and 365 days in five years. Moreover, they have been engaged for more than 300 days and the long embodiment of the petitioners had not been denied by the respondents. In short, the petitioners of that petition had voiced a grievance that the unequal Page 8 of 129 HC-NIC Page 8 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT treatment meted out to them, as compared to the full time BWHG and the manner in which they were treated in matters of service conditions, privileges and perquisites, amounted to gross discrimination and a violation of their fundamental rights under Articles 14, 16 and 21 of the Constitution of India.
10. On the other hand, the respondents contended that there was no parity between the petitioners, who were parttime BWHG, and the fulltime (regular) BWHG, therefore, the question of unequal treatment and discrimination did not arise. Several submissions and countersubmissions were advanced and after dealing with each one of them minutely, this Court (Coram:
K.M.Mehta, J.) (as His Lordship then was), by the judgment dated 09.02.2005 passed in Special Civil Application No.10862 of 2003, issued the following directions:
"30. In this behalf I issue the following directions:
30.1 There existed master and servant relationship of the petitioners with the State Government. The petitioners are entitled to the same benefit as admissible Page 9 of 129 HC-NIC Page 9 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT to the permanent Border Wing Home Guards. Both the State Government and the Central Government are responsible for salary and other emoluments/allowances payable to the petitioners which the Central and State Governments had undertaken as per the provisions of the scheme issued on 27.6.1979 by Union Government (p. 430).
30.2 I further direct that the petitioners will be given all benefits admissible to the State Government's servants including fixation of pay, benefit of Provident Fund, Gratuity, retiring benefits, leave privileges, all admissible Government allowances and increments as given to the State Government employees under the Rules.
30.3 The petitioners will be given the arrears of service benefits and fixation of pay scale from 30.7.2003 the date on which the petition has been filed.
30.4 The respondents are further directed to absorb the Part Time personnels of BWHGs retrospectively i.e. from 30.7.2003 and the age bar, if any, stands hereby waived.
30.5 As the judgement is delivered on the basic principles of justice and equality as enshrined in the Constitution of India, the Secretaries of Home Department and Finance Page 10 of 129 HC-NIC Page 10 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT Department, both of the State of Gujarat as well as Union of India are directed to implement this order/judgement within four months from date of receipt of the writ.
30.6 It may be noted that the above directions will be applicable only to the petitioners in this petition and it will not be applicable to any other persons.
31. The petition is allowed to the above extent. No order as to costs. Direct service is permitted.
11. The respondent State Government challenged the above judgment by filing a Letters Patent Appeal. Some of the BWHG also filed cross appeals, (being Letters Patent Appeals No.479 of 2006 to 589 of 2005) against that direction of the learned Single Judge whereby arrears of service benefits had been confined to the date of the filing of the petition, that is, 30.07.2003. All the Letters Patent Appeals were heard together and decided by the Division Bench (Coram:
D.H.Waghela & J.C.Upadhyaya, JJ.) (as Their Lordships then were) by a judgment dated 06.04.2011, passed in Letters Patent Appeal No.712 of 2005 in Special Civil Application No.10862 of 2003 and connected matters.Page 11 of 129
HC-NIC Page 11 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT After considering the rival submissions, the Division Bench passed the following order:
"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 parttime BWHGs 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 socalled parttime Border Wing Home Guards could not be treated differently from the permanent staff of BWHG". As observed in Parul Debnath (supra), the BWHGs concerned were required to be absorbed in regular establishment of the Government and no new appointment was Page 12 of 129 HC-NIC Page 12 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT required to be made. The benefits to be given to the BWHGs concerned should be extended to all of them uniformly and without making any discrimination. The Apex Court frowned upon such absorption of the BWHGs as would affect their postretiral benefits. Therefore, under the peculiar facts and circumstances, the directions contained in the impugned judgments to give to the BWHGs 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 parttime BWHGs in the regular establishment of State Reserve Police Force (S.R.P.F.) conferring all the benefits of pay scale, allowances etc.; but the BWHGs 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 BWHGs 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 Page 13 of 129 HC-NIC Page 13 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT pressed expressly in consideration of the prospects of the BWHGs 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 BWHGs concerned in these appeals shall be counted and calculated on the basis of their absorption in fulltime 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 BWHGs 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 upto 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 BWHGs concerned shall have to be paid with Page 14 of 129 HC-NIC Page 14 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT interest @ 9% p.a. for the subsequent period. The other BWHGs 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."
12. The State of Gujarat a preferred Petition for Special Leave to Appeal (Civil) No.17143 of 2011, against the above judgment of the Division Bench. By an order dated 29.07.2011, the Supreme Court passed the following order:
"Issue notice confined to the question of payment of back wages. Mr. E.R. Kumar, learned counsel, accepts notice on behalf of respondent No.273 and seeks time to file counter affidavit. Let the needful be done within four weeks. Rejoinder affidavit, if necessary, may be filed within two weeks thereafter."Page 15 of 129
HC-NIC Page 15 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT
13. As seen from the above order, the Apex Court has issued notice confined only to the question of the payment of backwages. The SLP is pending final adjudication.
14. Elaborate and detailed submissions have been advanced in the present case by learned counsel on both sides and written submissions have also been submitted.
15. Mr.Shalin N.Mehta, learned Senior Advocate with Ms.Vidhi J. Bhatt, learned advocate for the petitioners has appeared for the petitioners and made submissions as recorded below. Mr.Niral R. Mehta, learned advocate for the petitioners in some of the petitions has adopted the arguments advanced by learned Senior Advocate.
SUBMISSIONS ADVANCED ON BEHALF OF THE PETITIONERS:
16. It is submitted by Mr.Shalin N. Mehta, learned Senior Advocate for the petitioners, that the present petitions are filed essentially to assail the denial by the respondent authorities of certain service benefits to the petitioners that flow from the Page 16 of 129 HC-NIC Page 16 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT Judgment dated 09.02.2005, rendered by this Court in Special Civil Application No.10862 of 2003, as affirmed by the judgment dated 06.04.2011, passed by the Division Bench in Letters Patent Appeal No.712 of 2005 and connected matters. It is submitted that the subjectmatter of these petitions is, therefore, a new and independent cause of action, as it is essentially regarding the improper implementation of the above judgments by the respondents. The petitions are, therefore, maintainable under Article 226 of the Constitution of India and are not barred by the principles of resjudicata or constructive res judicata as contended by the respondents. It is submitted that resjudicata or constructive res judicata applies in a case where the petitioners approach the Court a second time for additional benefits, after the judgment is delivered in the first round of litigation. This is not the case here. The petitioners herein are not seeking any benefit that has not already been awarded by the Court in the above two decisions dated 09.02.2005 and 06.04.2011. 16.2 Regarding the age of retirement of the petitioners, it is submitted that after the two Page 17 of 129 HC-NIC Page 17 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT decisions dated 09.02.2005 and 06.04.2011, the age of retirement would be 58 years and not 55 years. It is contended that in the decision of this Court dated 09.02.2005, it has been held that the petitioners were given a wrong nomenclature of parttimers by the State Government because the record clearly showed that they had worked as fulltimers for more than twenty years. In this context, learned Senior Counsel has relied upon the directions issued in the judgment dated 09.02.2005 of this Court at Paragraph 30.1 and 30.2, which have already been reproduced above. It is contended that as per the said directions, the petitioners are entitled to the same benefits as are admissible to the permanent BWHG who are fulltime (regular) BWHG. These fulltime BWHG retire at the age of 58 years and not 55 years. As per the directions issued in Paragraph 30.2 of the judgment of this Court, the petitioners are entitled to all the service benefits admissible to State Government servants. Government servants in the State of Gujarat retire at the age of 58 years and not 55 years, therefore, the age of superannuation of the petitioners ought to be 58 years and not 55 years. Page 18 of 129 HC-NIC Page 18 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT Learned Senior Counsel has referred to an interim order dated 03.05.2013 passed by the Division Bench in Civil Application No.8643 of 2012 in Letters Patent Appeal No.961 of 2012 in Special Civil Application No.6862 of 2012 with Letters Patent Appeal No.961 of 2012 and connected matters wherein it is stated by the learned Government Pleader that the BWHG who are appointed after the regular recruitment process would continue in service upto the age of 58 years and their age of superannuation is 58 years.
16.3 Learned Senior Counsel then referred to Rule 9 of the Bombay Home Guards Rules which prescribes the age of superannuation as 55 years for Home Guards and has submitted that this age of superannuation cannot apply to the petitioners who are Border Wing Home Guards and thus Government servants, by virtue of the judgments of this Court. Moreover, the petitioners owe their existence to the Border Wing Home Guards Scheme floated by the Government of India on 29.06.1979. There is no mention in the Scheme regarding the Bombay Home Guards Act and Rules. The Scheme does not provide, in detail, the manner of appointing BWHGs, therefore, the State of Gujarat has used the framework Page 19 of 129 HC-NIC Page 19 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT of the Bombay Home Guards Act for appointing BWHG under the Scheme. This is not to say that the petitioners, who are appointed under the Scheme, become Home Guards only because the framework of the Bombay Home Guards Act has been used in recruiting them. It is contended that this line of argument was canvassed earlier by the State Government before this Court. In the judgment dated 09.02.2005, this Court has recorded this argument of the State Government in Paragraphs 10.1, 10.2 and 10.4. The said argument has been negatived in Paragraphs 26, 26.1, 26.2, 26.3, 26.4, 26.5, 26.6, 26.7 and 26.8 of the said decision. The same contention, therefore, cannot be advanced for the second time by the State Government. It is argued that for the same reason, Rule 9 of the Bombay Home Guards Rules, which prescribes the age of superannuation as 55 years in respect of the Home Guards, cannot be pressed into service for the petitioners. Learned Senior Counsel would further contend that the petitioners are not members of the Home Guards but are members of the BWHG Organization and are, thus, now equated with Government servants. The Border Wing Home Guards Organization, consisting Page 20 of 129 HC-NIC Page 20 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT of BWHGs, is a force distinct from the Home Guards Organization which consists of urban and rural Home Guards which are more than 45000 in number in the State of Gujarat.
16.4 It is next contended that by the decision of this Court dated 09.02.2005, the Court has equated the petitioners with the fulltime staff of the BWHGs and State Government servants. Having now acquired the status of State Government servants, the service conditions of the petitioners are required to be governed and regulated by the Rules framed by the State Government, such as the Gujarat Civil Service Rules. The decision of the State Government not to apply the said Rules to the petitioners is a result of a misreading and misinterpretation of the decision of the learned Single Judge of this Court dated 09.02.2005 and of the Division Bench dated 06.04.2011. 16.5 It is further elaborated by learned Senior Counsel that the Bombay Home Guards Act was enacted to provide a volunteer organization for use in emergencies and for other purposes in the State. A member of this organization would render voluntary service as and when Page 21 of 129 HC-NIC Page 21 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT his services are requisitioned by the organization.
Unlike Home Guards, the petitioners have been recruited for, among other duties, protecting the borders and have worked round the clock.
16.6 Learned Senior Counsel further contends that under service jurisprudence, the qualifying service of a Government servant for pension and other retirement benefits commences from the date he takes charge of the post to which he is first appointed either substantively, or in an officiating or temporary capacity. Thus, the service rendered by a Government servant which is considered as duty under the Rules regulating the conditions of service, during which period he has drawn pay and allowances, is treated as qualifying service for calculating pension and other retirement benefits.
16.7 Referring to the judgment dated 09.02.2005, it is underlined that this Court has equated the petitioners with Government servants and has held that they have been given a wrong nomenclature of part timers, therefore, directions to absorb them with retrospective effect from 30.07.2003, were issued. Page 22 of 129 HC-NIC Page 22 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT 16.8 Learned Senior Counsel has strongly submitted that the petitioners were in service right from the initial dates of their joining service and have been made permanent by absorbing them with effect from 30.07.2003. The service rendered by them before this date, therefore, is required to be counted as qualifying service for the purpose of calculating the retiral benefits payable to them. That, the date of absorption, namely, 30.07.2003, on which date the petitioners became permanent, has nothing to do with the counting of their qualifying service for pension and other retiral benefits. It may, perhaps, be material for the determination of the seniority in the organization in which they are made permanent by way of absorption. The respective dates of entry into service at the initial stage, therefore, are required to be considered notionally. However, the State Government has misinterpreted and misread the directions issued by this Court by counting the service of the petitioners only from 30.07.2003. The entire period of service before that date has been wiped out by this wrong interpretation. Learned Senior Counsel has referred to Paragraph 30.3 of the judgment Page 23 of 129 HC-NIC Page 23 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT dated 09.02.2005 and submitted that it is clearly reflected therein, that it is the arrears of service benefits and fixation of pay, for which the date 30.07.2003 has been fixed. Nowhere has it been mentioned that the entire service of the petitioners prior to that date is not to be counted for retiral benefits. Referring to Paragraph 30.4, it is submitted that the respondents were directed to absorb the petitioners retrospectively with effect from 30.07.2003 (the date of the filing of the petition), but this direction cannot be taken to mean that the service rendered by the petitioners prior to that date is to be discarded or ignored for the purpose of calculating their retiral benefits. Both the directions have nothing to do with the past service rendered before 30.07.2003.
16.9 It is next submitted that the word `absorb' contained in Paragraph 30.4 of the judgment dated 09.02.2005 is being misconstrued by the State Government to mean `appoint'. The State Government is treating the said date as the date of fresh appointment of the petitioners, thereby depriving them of their long years of service rendered prior to Page 24 of 129 HC-NIC Page 24 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT 30.07.2003, for the purpose calculating retiral benefits. The present is not a case of fresh appointment, but a case of absorption in the regular establishment, which means that the service from the date of entry till 30.07.2003 is to be counted for notional purposes and services from 30.07.2003, for actual monetary benefits.
16.10 Learned Senior Counsel has further submitted that judgments cannot be read like statutes and the real intention of the Court has to be gathered from a holistic reading of the entire judgment. A bare reading of the judgment dated 09.02.2005 of this court and 06.04.2011 of the Division Bench, clearly reveals that the petitioners never intended to give up their service from their entry into the Border Wing Home Guards Organization till 30.07.2003. It was also not the Court's intention to deprive them of such long service rendered prior to 30.07.2003. In the case of most of the petitioners, the service rendered prior to 30.07.2003 would be more than fifteen years. Length of service apart, even if the nature of service rendered by the petitioners prior to 30.07.2003 is examined, it is not possible to arrive at the conclusion that such Page 25 of 129 HC-NIC Page 25 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT service was either adhoc or irregular. 16.11 It is further emphasised that the appointment of the petitioners was made in consonance with Articles 14 and 16 of the Constitution of India. Their appointments were on sanctioned posts because the Scheme dated 29.06.1979 provided the sanction for appointment. Thus, for all intents and purposes, the entire service of the petitioners is regular in nature. It is submitted that in service jurisprudence, regular service cannot be ignored for the purpose of calculating retiral benefits. As the service of the petitioners was neither adhoc, irregular or illegal, the entire service period of the petitioners is required to be counted for the purpose of retiral benefits.
16.12 With regard to the prayer made at Paragraph 24D regarding the award of gradepay, learned Senior Counsel states, upon instructions, that he would not be pressing this prayer.
16.13 Summing up his submissions, learned Senior Counsel for the petitioners would contend that a holistic reading of the judgments dated 09.02.2005 and Page 26 of 129 HC-NIC Page 26 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT 06.04.2011 clearly reveals that the intention of the Courts was to grant full parity with the State Government servants to the petitioners and, more specifically, all the benefits, privileges that have been conferred upon fulltime BWHG and State Government service would be admissible to them. The age of retirement is also one of the benefits and privileges that can legally and rightfully be claimed by the petitioners pursuant to the above two judgments of this Court. Once the Courts have stated that the petitioners were given a wrong nomenclature of part timers and are to be treated as fulltime BWHG in all respects, there can be no further discrimination regarding the age of retirement or counting of the years of service prior to their absorption as per the judgments of this Court. All Rules that govern the permanent BWHG, therefore, would be applicable to the petitioners, as well.
17. In support of his submissions, learned Senior Counsel has placed reliance upon the following judgments:
(1) State of W.B. And Others v. Pantha Chatterjee And Others - (2003)6 SCC 469 Page 27 of 129 HC-NIC Page 27 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT (2) Union of India And Others v. Parul Debnath And Others - (2009)14 SCC 173 (3) State of Haryana And Others v. M.P. Mohla - (2007)1 SCC 457 (4) State of Gujarat & Anr. v. Mahendrakumar Bhagvandas & Anr. 2011 (2) GLR 1290 (5) Ramesh Chand Daga v. Rameshwari Bai - (2005)4 SCC 772 SUBMISSIONS ADVANCED ON BEHALF OF THE RESPONDENTS:
18. The petitions have been strongly opposed by Mr.Prakash K. Jani, learned Additional Advocate General appearing with Mr.Niraj Ashar, learned Assistant Government Pleader, for the respondents, by submitting that:
1) Pursuant to the Scheme formulated by the Government of India dated 29.06.1979, the process of raising Border Wing Home Guards Battalions in the State of Gujarat commenced. In exercise of powers under the Bombay Home Guards Act read with the Bombay Home Guards Rules, two Battalions of BWHG for District KutchBhuj and Banaskantha, came to be formed. The petitioners have been appointed under the provisions Page 28 of 129 HC-NIC Page 28 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT of the Bombay Home Guards Act (now Gujarat Home Guards Act) and Bombay Home Guards Rules (now Gujarat Home Guards Rules). They are, therefore, governed by the provisions of the said Act and Rules. The petitioners have accepted their appointment orders under the Act and the Rules and cannot now be permitted to change the terms and conditions of appointment. It was open to the petitioners to refuse appointment at the threshold on the ground that the age of retirement at 55 years, as prescribed in Rule 9 of the Bombay Home Guards Rules is not acceptable to them. Having accepted the orders of appointment and having been a part of the setup of Home Guards since their initial entry, it is not permissible for them to challenge and contend that their age of retirement should be 58 years.
2) That the some of the petitioners were appointed 10 to 15 or may be 20 years ago. Having accepted the appointment and enjoyed the terms and conditions of appointment, they cannot now pray that the age of retirement should be enhanced to 58 years, contrary to Rule 9 of the Bombay Home Guards Rules. The petitioners are raising this challenge at the fag end Page 29 of 129 HC-NIC Page 29 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT of their services. The petitioners are nearly on the verge of retirement, therefore, the petitions are required to be rejected on the principle of delay, latches and acquiescence. The case of the petitioners is akin to the cases of those employees who question their date of birth as wrongly recorded in their service record only at the time of retirement.
3) It is next submitted that it is the function of the employer to determine the age of retirement. When Rule 9 of the Home Guards Rules prescribes the age of retirement at 55 years, this age remains the same for all Home Guards recruited under the Bombay Home Guards Act and Rules. An employee who has accepted the terms of appointment cannot question and seek relief that the age of retirement should be 58 years. No fundamental or legal rights of the petitioners accruing under the Act or the Rules have been violated. In fact, the petitioners are praying for the enhancement of the age of retirement contrary to the Rules. That the petitioners have not been appointed by following any procedure under the Gujarat Civil Service Rules. They have also not been appointed by following the procedure as required to appoint Police Page 30 of 129 HC-NIC Page 30 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT Constables in the Police Department or a Constable in the State Reserve Police Force. The comparison made by the petitioners with the persons who are appointed under the above Rules is, therefore, misplaced.
4) It is submitted that the method and process of recruitment of the petitioners and the method and process of recruitment of Police Constables in the State Reserve Police are different. The functions, duties and responsibilities of the Home Guards and Police Constables working in the State Police and the State Reserve Police are separate and distinct.
5) It is contended that in the earlier writ petition filed by the petitioners, being Special Civil Application No.10862/2003, the petitioners had an opportunity to raise this very issue. They had raised several other issues in the petition but have not raised this issue. This Court has not granted all the reliefs prayed for by the petitioners in that petition. In view of the aforesaid, it is not open to the petitioners to raise the same issues again by filing the present petitions. If the petitioners felt that the relief, as claimed by them has not been fully Page 31 of 129 HC-NIC Page 31 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT granted by this Court in the previous litigation, it was open to them to challenge the judgment of this Court to the extent to which the relief was not granted. The petitioners have not taken any such steps. The present petitions are partly barred by the principles of resjudicata and constructive res judicata. The petitioners could have taken appropriate steps for filing an appeal before the Division Bench or the Supreme Court regarding the relief that was not granted. A second writ petition for the same subject is not maintainable on the above principles of law.
6) That, even in the contempt proceedings before the Division Bench, it was recorded that it was open to the petitioners to file an application for clarification of the order of this Court but it was not observed that it is open for the petitioners to file separate writ petitions which has been done.
7) That, the prayer of the petitioners seeking a deemed date of appointment is not maintainable on merits on the principles of resjudicata and constructive resjudicata. If the petitioners are to be considered at par with the State Police as Head Page 32 of 129 HC-NIC Page 32 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT Constables or Constables of the State Reserve Police Force, it would amount to getting backdoor entry into Government service.
8) As the issues arising in these petitions are a separate cause of action, the petitioners are estopped from raising the plea that they have raised in the present petitions. Therefore, the prayers made by them in these petitions may not be granted.
9) Learned Additional Advocate General has further contended that there is a difference between the regularly appointed BWHG and the petitioners, who are appointed as parttime BWHG. The agelimit of regularly appointed fulltime BWHG is 18 to 25 years and the educational qualification is 8th Standard Pass, whereas the BWHG such as the petitioners can be appointed upto the age of 50 and their educational qualifications are only 4th Standard pass. Besides, there are many other differences in the two categories, therefore, the petitioners cannot claim the benefits that are being granted to fulltime regular BWHG. It is submitted by the learned Additional Advocate General that the age of retirement Page 33 of 129 HC-NIC Page 33 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT of fulltime BWHG is 58 years and they are subject to Gujarat Civil Service (Discipline and Appeal_ Rules as they have not been appointed in the same manner.
10) Regarding the interim orders referred to by the learned Senior Counsel for the petitioners, it is submitted that the interim orders cannot be cited as precedents after the final judgment is delivered.
Therefore, the emphasis on interim orders is besides the point.
19. On the basis of the above submissions, it is prayed that the petitions be rejected.
20. In support of the above submissions, learned Additional Advocate General has relied upon the following judgments:
(1) Jiban Krishna Mondal And Others v. State of West Bengal And Others (2015)12 SCC 74 (2) State of U.P. v. Nawab Hussain - AIR 1977 SC 1680 (3) Pondicherry Khadi & Village Industries Board v. P. Kulothangan And Another - (2004)1 SCC 68 (4) Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas and Anr. 2008(2) GLH 557 :
(2008)11 SCC 753 Page 34 of 129 HC-NIC Page 34 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT (5) R.N. Gosain v. Yashpal Dhir - AIR 1993 SC 352 (6) Cauvery Coffee Traders, Mangalore v. Hornor Resources (International) Company Limited - (2011)10 SCC 420 (7) State of Punjab v. Dhanjit Singh Sandhu -
AIR 2014 SC 3004 (8) Shiv Kumar Sharma v. Santosh Kumari - (2007)8 SCC 600 (9) K.Nagaraj And Others v. State of Andhra Pradesh And Another - (1985)1 SCC 523 (10) Dilip Kumar Garg And Another v. State of Uttar Pradesh And Others - (2009)4 SCC 753 (11) Sureshchandra Singh And Others v. Fertilizer Corpn. of India Ltd. And Others - (2004)1 SCC 592 (12) Tata Cellular v. Union of India - AIR 1996 SC 11(1) (13) Brij Mohan Lal v. Union of India And Others - (2012)6 SCC 502
21. In the context of the above submissions, the judgments relied upon by learned counsel for the respective parties may now be noticed. DISCUSSION ON JUDGMENTS:
22. The first judgment relied upon by Mr.Shalin N. Mehta, learned Senior Advocate for the petitioners, is that of the Supreme Court rendered in the case of Page 35 of 129 HC-NIC Page 35 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT State of W.B. And Others v. Pantha Chatterjee And Others (supra). The genesis of that case was that parttime Border Wing Home Guards had preferred writ petitions before the Calcutta High Court, alleging that they were being discriminated visavis the regular Border Wing Home Guards of the State of West Bengal and the Border Security Force Personnel as they had been performing similar duties and discharging similar responsibilities. The learned Single Judge of the Calcutta High Court allowed the writ petitions and held that the parttime Border Wing Home Guards are entitled to the same benefits as admissible to the permanent Border Wing Home Guards. Certain directions were issued by the learned Single Judge. The Division Bench, in appeal, upheld the findings recorded by the learned Single Judge. The State of West Bengal challenged the judgment of the Division Bench before the Supreme Court. The Supreme Court observed that:
"12. There is no dispute about the fact that there has been disparity in emoluments and other working conditions, between the part time BWHGs and the BWHGs on the permanent staff although both have been deployed for performing the same nature of Page 36 of 129 HC-NIC Page 36 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT duties and have been working for the same duration in the same conditions but one of them with and the other without the necessities of the job, facilities and benefits of the service. It is true and rightly held that BWHG could not compare themselves with BSF personnel but the difference between the permanent staff and the part time staff which had been made in the scheme was obliterated and rendered ineffective. There is no real distinction between the two, namely, the permanent BWHG and the part time BWHG in absence of non release of the latter after three months of the appointment, as per the Scheme. It has not been indicated by the appellants or the Union of India that the petitioners were ever disengaged of their assignment temporarily or the State Government had availed of their services after due and prior permission of the Central Government, or they were ever freed to resume their old vocational pursuits. It is in the affidavit of the authorities that BWHGs are under operational command of B.S.F. authorities, when deployed for patrolling along Indo Bangladesh border. In the background of what has been indicated above, in our view the findings arrived at by the High Court cannot be faulted with.Page 37 of 129
HC-NIC Page 37 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT
13. On the first date of hearing in this matter the learned Additional Solicitor General appearing for the Union of India urged that the State of West Bengal could not argue the matter in a manner so as to fasten the liability upon the Central Government, since the Union of India was impleaded only as a proforma respondent. Therefore, it was not open for the appellant to take the Govt. of India by surprise and seek relief which may saddle the Central Government with financial liability or to say, that the petitionersrespondent are the employees of the Central Government. We find that in the appeal this aspect was considered by the High Court visavis these two parties viz. State of West Bengal and the Central Government. In any case so as to be able to argue the matter on merits and to have further instructions in that connection, from the Central Government, as prayed by the learned Additional Solicitor General the matter was adjourned. After having received the necessary instructions, the learned Addl. Solicitor General took up the stand that the petitioners will not be entitled to relief as granted by the High Court for the following reasons:
1. The petitioners have been members of a voluntary organization;Page 38 of 129
HC-NIC Page 38 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT
2. They were recruited under the State Home Guard Act by the State machinery;
3. Master and servant relationship of the petitioners existed only with the State Government;
4. Central Government was liable to bear the financial liability as provided under the Scheme.
14. Surprisingly, the point of it being a voluntary organization is beaten time and again by the State as well as by the Centre, despite their own admission that voluntary character of the Scheme was lost due to continuous deployment of the petitioners for long number of years and their non relieving after three months to enable them to go back to their vocational engagement....."
After the above observations, the Supreme Court held as below:
"16. In the present case we have seen that there has not been any dispute about the nature of duties of the two sets of BWHGs. 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 parttime and Page 39 of 129 HC-NIC Page 39 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT the permanent BWHGs 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 parttime BWHGs 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 BWHGs. The decisions reported in (1992) 2 SCC p.29, Karnataka State Private College Stopgap Lecturer's Association vs. State of Karnataka & ors. and (1999) 8 SCC 560, Government of India & ors. vs. Court Liquidator's Employees Association & ors. may also be beneficially referred to.
... ... ...
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.
23. This judgment has been pressed into service by Page 40 of 129 HC-NIC Page 40 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT the learned Senior Counsel for the petitioners to buttress his submissions that this Court and the Division Bench of this Court intended to give full parity in all respects to the petitioners with the fulltime Border Wing Home Guards and the Government servants, therefore, all the benefits available to the latter, including the age of retirement, are required to be conferred on the petitioners. This judgment has also been relied upon extensively by this Court and the Division Bench while rendering their respective judgments.
24. The next judgment relied upon on behalf of the petitioners is in the case of Union of India And Others v. Parul Debnath And Others (supra). In this case, the respondents before the Supreme Court were BWHG appointed as members of the Home Guards Organization under the Andaman and Nicobar Home Guard Rules, 1965. Though they were deployed for a period of three years, they were continuously made to perform duties of a permanent nature. Their grouse was that they were treated differently from regular employees of the same organization. They, therefore, claimed equal pay for equal work with the regular Home Guards Page 41 of 129 HC-NIC Page 41 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT and the regularization of their services. These Border Wing Home Guards approached the Central Administrative Tribunal, Calcutta Bench, for directions to be issued to prepare an appropriate/ reasonable Scheme for regularization of their services and to give them equal pay for equal work in relation to their counterparts in the regular organization, as they were performing similar duties which were similar to the duties of the regular employees of the Andaman and Nicobar Administration. The Tribunal disposed of the applications by directing the Union of India to consider the framing of an appropriate Scheme in consultation with the Andaman and Nicobar Administration for the absorption / regularization / appointment of persons such as the respondents, who had been working as Home Guards for a number of years.
The order of the Tribunal was challenged before the Division Bench of the Calcutta High Court, which disposed of the petitions by taking into consideration the judgment in the case of State of W.B. And Others v. Pantha Chatterjee And Others (supra), wherein, directions had been issued by the Apex Court for the framing of a Scheme for similar purposes and directed Page 42 of 129 HC-NIC Page 42 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT the appropriate authority to frame the Scheme, as directed by the Tribunal, taking into consideration the principles laid down in State of W.B. And Others v. Pantha Chatterjee And Others (supra). Ultimately, after some intervening litigation, a Scheme was framed, which was challenged by the respondents before the learned Single Judge of the Calcutta High Court, who dismissed the writ petition by holding that the Scheme had been framed by Government authorities with due regard to the principles laid down in State of W.B. And Others v. Pantha Chatterjee And Others. The Division Bench, in appeal, came to the conclusion that the Scheme had not been framed in accordance with the view expressed in State of W.B. And Others v. Pantha Chatterjee And Others (supra), therefore, the order of the learned Single Judge was set aside and a direction was issued to the Government authorities to frame the Scheme afresh, keeping in mind the principles enunciated in State of W.B. And Others v.
Pantha Chatterjee And Others (supra). This judgment of the Division Bench of the Calcutta High Court was challenged before the Supreme Court. Before the Apex Court, the stand of the respondent Border Wing Home Page 43 of 129 HC-NIC Page 43 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT Guards was as under:
"31. Mr.Das 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 : "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)."
32. 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.
Page 44 of 129 HC-NIC Page 44 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT
33. 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 installments, 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.
34. 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)."
Considering the above stand, the Supreme Court held as below:
"40. Firstly, we are in agreement with Mr. Das and the Division Bench of the High Court that the intention of the earlier Page 45 of 129 HC-NIC Page 45 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT 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).
41. 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 & 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% Page 46 of 129 HC-NIC Page 46 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT 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.
42. In our view, the Division Bench has very correctly observed that the intention of the Tribunal and the Courts was 22 that the benefits to be given to the writ petitioners (respondents herein) should be extended to all of them uniformly and without making any discrimination. The very fact that some of the respondents would be regularized, while the others would have to wait till the next vacancies arose or the possibility that some of the candidates who were otherwise eligible, might not even be absorbed, was never the intention when the directions were given to frame a Scheme for absorption of the respondents. In our view, such a course of action appears to have been adopted to negate the effect of the earlier orders so that the respondents as a whole were deprived of the benefit of absorption and the further benefit of `equal pay for equal work', as was indicated in Pantha Chatterjee's case (supra).
43. As a direct consequence of the disparity in the pay structure of the respondents, who were to be absorbed in Page 47 of 129 HC-NIC Page 47 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT stages, their postretiral 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.
44. 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."
25. This judgment has been extensively relied upon by learned Senior Counsel for the petitioners to bring home the point that the absorption of the petitioners as regular BWHG, as per the directions contained in Paragraph 30.4 of the judgment of this Court dated Page 48 of 129 HC-NIC Page 48 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT 09.02.2005, cannot be taken to mean that the petitioners would be given fresh appointments with effect from 30.07.2003. It is submitted that only the arrears of service benefits have been restricted, to be paid from that date, but that does not mean that the service of the petitioners prior to that date is to be wiped out. This judgment has also been relied upon in support of the contention that it is the intention of the Court in passing the order that has to be seen.
26. The third judgment relied upon on behalf of the petitioners is in the case of State of Haryana And Others v. M.P. Mohla (supra), wherein, the Supreme Court has enunciated the following principles of law:
"19. A judgment as is wellknown must be read in its entirety. The judgment of a court must also be implemented. But what would be the effect of a judgment must be considered from the reliefs claimed in the writ petition as also the implications thereof which has to be deciphered from reading the entire judgment. A judgment may also have to be read on the touchstone of pleadings of the parties.Page 49 of 129
HC-NIC Page 49 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT
20. In State of Karnataka and Others v. C. Lalitha [(2006) 2 SCC 747], this Court observed:
"23. A judgment, as is well known, is not to be read as a statute. But, it is also well known that the judgment must be construed as if it had been rendered in accordance with law."
21. It was noticed:
"26. In Gajraj Singh v. State of U.P.6 this Court held: (SCC p. 768, para 8) 'A doubt arising from reading a judgment of the Court can be resolved by assuming that the judgment was delivered consistently with the provisions of law and therefore a course or procedure in departure from or not in conformity with statutory provisions cannot be said to have been intended or laid down by the Court unless it has been so stated specifically.'"
22. We, as at present advised, do not intend to go into the question as to whether the Revised Pay Rules or the ACP Rules will apply in the case of Respondent. The dispute between the parties has to be decided in accordance with law. What, however, cannot be denied or disputed that a dispute between the parties once adjudicated must reach its logical conclusion. If a specific question which was not raised and which had not been decided by the High Court the same would not Page 50 of 129 HC-NIC Page 50 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT debar a party to agitate the same at an appropriate stage, subject, of course, to the applicability of principles of res judicata or constructive res judicata.
23. It is also trite that if a subsequent cause of action had arisen in the matter of implementation of a judgment a fresh writ petition may be filed, as a fresh cause of action has arisen."
Emphasis has been laid by learned Senior Counsel for the petitioners on Paragraph23 of the said judgment, to underline his submission that a fresh writ petition can be filed and would be maintainable if a subsequent cause of action has arisen in the matter of the implementation of a judgment. On the other hand, Mr.Prakash K.Jani, learned Additional Advocate General, has submitted that Paragraph23 of this judgment ought to be read in consonance with the preceding paragraphs.
27. The fourth judgment relied upon from the petitioners' side is that of the Division Bench of this Court in State of Gujarat & Anr. v. Mahendrakumar Bhagvandas & Anr. (supra). The relevant Page 51 of 129 HC-NIC Page 51 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT extract of this judgment is reproduced hereinbelow:
"4. ...... At the end, in Clause 15 of the government resolution, it is stipulated that the word 'permanent' as used in G.R. dated 17.10.1988 is intended to provide protection of service but not for treating such employees on regular establishment of the Government.
5. As noted earlier, subsequent G.R. dated 18.7.1994 is expressly superseding the instructions contained in government resolution dated 3.11.1990 but does not supersede original G.R. dated 17.10.1988. It is also an admitted position that most of substantive benefits of permanent service are already accorded to the employees concerned in terms of G.R. dated 17.10.1988. Under such circumstances, it was argued that nomenclature for treating the employees concerned as permanent was clarified by the government, and hence, denial of few benefits was justified and in order. However, no ground or rational basis could be made out for grant of most of the benefits to most of the employees in terms of G.R. dated 17.10.1988 and for denial of the remaining few benefits. Once the employees concerned were, in fact, treated for all purposes as permanent employees in Page 52 of 129 HC-NIC Page 52 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT terms of G.R. dated 17.10.1988, any discrimination or denial of benefits for a segment of such employees, who were subsequently rebranded as "daily wager"
(rojamdar) by G.R. dated 18.7.1994, could not be rationally explained and could not be countenanced in the face of Articles 14 and 16 of the Constitution. Nor can the State Government legally take away the rights conferred and benefits, already accorded to the employees concerned by or under a subsequent government resolution, which expressly supersedes earlier instructions and not earlier G.R. dated 17.10.1988 by which the benefits were accorded to the employees. It also sounds absurd and baseless that employee employed on daily wage basis for 15 years would be made permanent under G.R. dated 17.10.1988 but subsequently rebranded and treated as a daily wager. The submission of learned AGP that such employees had to continue as daily wage employee, with limited benefits in terms of subsequent G.R. dated 18.7.1994 and that they were at best "permanent daily wage employees", is contradictory and has no backing of any legal provision or precedent. Therefore, there is no reason to interfere with the impugned common judgment except for the clarification made hereunder."
Page 53 of 129 HC-NIC Page 53 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT This judgment has been relied upon to strengthen the submission that after granting the petitioners parity with fulltime BWHG and conferring benefits available to the fulltime BWHG upon them, the respondents cannot rebrand them and treat them as parttime, thereby denying certain benefits to them.
28. The last judgment relied upon by Mr.Shalin N. Mehta, learned Senior Counsel for the petitioners is in the case of Ramesh Chand Daga v. Rameshwari Bai (supra), wherein the Supreme Court has held as below:
"19. A judgment, as is well known, is not to be read as a statute. A judgment, it is trite, must be construed upon reading the same as a whole. For the said purpose the attendant circumstances may also be taken into consideration. (Islamic Academy of Education v. State of Karnataka [(2003)6 SCC 697], Zee Telefilms Ltd. v. Union of India [(2005)4 SCC 649] and P.S.Sathappan v. Andhra Bank Ltd. [(2004)11 SCC 672]"
On the strength of this judgment, it is submitted that the judgment of this Court and the Division Bench are required to be read in their entirety and the intention of the Court has to be understood, without Page 54 of 129 HC-NIC Page 54 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT reading any observation out of context.
29. Per contra, Mr.Prakash K.Jani, learned Additional Advocate General, has relied upon the judgment of the Supreme Court in the case of Jiban Krishna Mondal And Others v. State of West Bengal And Others (supra). In this judgment, the Supreme Court held that Home Guards are ordinarily unpaid volunteers whose pay and allowances are determined by the State Government they they are called on duty and there is no Master and Servant relationship existing between them and the State Government. Learned Additional Advocate General sought to buttress the point that the petitioners are also volunteer Home Guards and the nature of duties performed by them is not in consonance with those performed by Police force or the civil servants, therefore, they cannot be regularized or granted parity in any manner. The relevant extract of the judgment relied upon by him is as below:
"28. A Careful perusal of genesis of Home Guards and its role will show that the Organization was always meant to be voluntary and it consisted of people from all walks of life. In fact Government Page 55 of 129 HC-NIC Page 55 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT servants were also enrolled in the Home Guards to be called as and when the need arises. A large number of State enactments i.e. Andhra Pradesh Home Guards Act, 1948, Bombay Home Guards Act, 1947, Assam Home Guards Act, 1947, Manipur Home Guards Act, 1966, Madhya Pradesh Home Guards Act, 1947, Punjab Home Guard Act, 1947, Rajasthan Home Guards Act, 1963 etc. placed before this Court in compilation by learned Attorney General during the hearing makes it clear that the provisions of all these enactments are more or less similar. The voluntary nature is a basic feature of the Home Guards.
29. Majority of the appellants has attained the maximum age and are no more members of the Home Guards. The appointment letters enclosed by the remaining category of appellants, do not suggest that they are performing duty all over the year like any Government servant. There is nothing on the record to suggest the masterservant relationship. They were appointed pursuant to Home Guard Rules, 1962 and it is made clear that their services are voluntary and will not get any pay but the duty allowance as may be fixed by the State Government from time to time.Page 56 of 129
HC-NIC Page 56 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT
30. In that view of the matter, we hold that the appellants are not entitled for regularization of service. Further, in absence of any comparison of duties, responsibilities, accountability and status, they may not be equated with the Police Constables or personnel to claim parity with the pay or scale of pay as provided to the Police personnel. The High Court by the impugned judgment and orders rightly refused to grant regularization of their services. We find no merit in these appeals and they are accordingly dismissed."
This judgment need not be discussed later on as it deals with Home Guards and not BWHGs and is, therefore not relevant in the context of the present petitions. The reliance placed upon this judgment is rather misplaced.
30. On the principle of resjudicata, learned Additional Advocate General has heavily relied upon a number of judgments, the first of which is State of U.P. v. Nawab Hussain (supra), wherein, the Supreme Court has held as below:
"8. It is not in controversy before us that the respondent did not raise the plea, in Page 57 of 129 HC-NIC Page 57 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT the writ petition which had been filed in the High Court, that by virtue of clause (1) of Art. 311 of the Constitution he (1) [1962] 1 S.C.R. 574. (2) [1963] Supp. 1 S.C.R.172 436 could not be dismissed by the Deputy Inspector General of Police as he had been appointed by the Inspector General of Police. It is also not in controversy that that was an important plea which was within the knowledge of the respondent and could well have been taken in the writ peti tion, but he contented himself by raising the other pleas that he was not afforded a reasonable opportunity to meet the Case against him in the departmental inquiry and that the action taken against him was mala fide. It was there fore not permissible for him to challenge his dismissal, in the subsequent suit, on the other ground that 'he had been dismissed by an authority subordinate to that by which he was appointed. That was clearly barred by the principle constructive res judicata and the High Court erred in taking a contrary view."
31. In Pondicherry Khadi & Village Industries Board v. P. Kulothangan And Another (supra), the Supreme Court has held as under:
"11. The principle of res judicata Page 58 of 129 HC-NIC Page 58 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT operates on the Court. It is the Courts which are prohibited from trying the issue which was directly and substantially in issue in the earlier proceedings between the same parties, provided the Court trying the subsequent proceeding is satisfied that the earlier court was competent to dispose of the earlier proceedings and that the matter had been heard and finally decided by such Court. Here the parties to the writ petition filed by the respondent in the Madras High Court and the industrial dispute were the same. The cause of action in both was the refusal of the appellant to allow the respondent to rejoin service. The Madras High Court was competent to decide the issue which it did with a reasoned order on the merits and after a contested hearing. This was not a case where the earlier proceedings had been disposed of on any technical ground as was the case in Workmen of Cochin Port Trust v. Board of Trustees of the Cochin Port Trust and Anr.,3; Smt. Pujari Bai v. Madan Gopal (dead) LRs.4. The "lesser relief of reinstatement which was the subject matter of the industrial dispute had already been claimed by the respondent in the writ petition. This was refused by the High Court. The correctness of the decision in the writ proceedings has not been challenged by the respondent. The decision was, Page 59 of 129 HC-NIC Page 59 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT therefore, final. Having got an adverse order in the writ petition, it was not open to the respondent to reagitate the issue before the Labour Court and the Labour Court was incompetent to entertain the dispute raised by the respondent and redecide the matter in the face of the earlier decision of the High Court in the writ proceedings."
32. In Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas and Anr. (supra), the Supreme Court has held :
"32. Having noticed the effect of a stray observation made by a superior court viza viz applicability of the principle of res judicata we may also notice the applicability of the principle of issue estoppel.
33. In Sheodan Singh vs. Daryao Kunwar : [1966] 4 SCR 300, this Court laid down the ingredients of Section 11 of the Code of Civil Procedure stating : "9. A plain reading of Section 11 shows that to constitute a matter res judicata, the following conditions must be satisfied, namely
(i) The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and Page 60 of 129 HC-NIC Page 60 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT substantially in issue in the former suit;
(ii) The former suit must have been a suit between the same parties or between parties under whom they or any of them claim;
(iii) The parties must have litigated under the same title in the former suit;
(iv) The court which decided the former suit must be a court competent to try the subsequent suit or the suit in which such issue is subsequently raised; and
(v) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the first suit. Further Explanation 1 shows that it is not the date on which the suit is filed that matters but the date on which the suit is decided, so that even if a suit was filed later, it will be a former suit if it has been decided earlier. In order therefore that the decision in the earlier two appeals dismissed by the High Court operates as res judicata it will have to be seen whether all the five conditions mentioned above have been satisfied."
34. The question which is, thus, required to be posed is what was in issue in the earlier suit.
35. The issue indisputably was the claim of entitlement to Gaddi by the first respondent and a plea contra thereto raised by the appellants. Once the issue of Page 61 of 129 HC-NIC Page 61 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT entitlement stood determined, the same would operate as res judicata. We may notice some precedents for appreciating the underlying principles thereof. Section 11 of the Code, thus, in view of the issues involved in the earlier suit, the provisions thereof shall apply.
36. In State of U.P vs. Nawab Hussain :
(1977) 2 SCC 806 this Court held : "3. The principle of estoppel per rem judicatam is a rule of evidence. As has been stated in Marginson v. Blackburn Borough Council1, it may be said to be "the broader rule of evidence which prohibits the reassertion of a cause of action". This doctrine is based on two theories: (i) the finality and conclusiveness of judicial decisions for the final termination of disputes in the general interest of the community as a matter of public policy, and (ii) the interest of the individual that he should be protected from multiplication of litigation. It therefore serves not only a public but also a private purpose by obstructing the reopening of matters which have once been adjudicated upon. It is thus not permissible to obtain a second judgment for the same civil relief on the same cause of action, for otherwise the spirit of contentiousness may give rise to conflicting judgments of equal authority, lead to multiplicity of actions and bring the administration of justice into disrepute. It is the cause of action which gives rise to an action, and that is why it is necessary for the courts to recognise that a Page 62 of 129 HC-NIC Page 62 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT cause of action which results in a judgment must lose its identity and vitality and merge in the judgment when pronounced. It cannot therefore survive the judgment, or give rise to another cause of action on the same facts. This is what is known as the general principle of res judicata."
37. Noticing that the same set of facts may also give rise to two causes of actions, it was held :
7. .....That, in turn, led the High Court to the conclusion that the principle of constructive res judicata could not be made applicable to a writ petition, and that was why it took the view that it was competent for the plaintiff in this case to raise an additional plea in the suit even though it was available to him in the writ petition which was filed by him earlier but was not taken. As is obvious, the High Court went wrong in taking that view because the law in regard to the applicability of the principle of constructive res judicata having been clearly laid down in the decision in Devilal Modi case, it was not necessary to reiterate it in Gulabchand case as it did not arise for consideration there. The clarificatory observation of this Court in Gulabchand case was thus misunderstood by the High Court in observing that the matter had been "left open" by this Court."
38. Yet again in Home Plantations Ltd. vs. Talaku Land Board, Peermada and another :
(1999) 5 SCC 590.
"20. ...... An adjudication is Page 63 of 129 HC-NIC Page 63 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matter of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. The first reason, therefore, has absolutely no force."
It was furthermore opined : "26. It is settled law that the principles of estoppel and res judicata are based on public policy and justice. Doctrine of res judicata is often treated as a branch of the law of estoppel though these two doctrines differ in some essential particulars. Rule of res judicata prevents the parties to a judicial determination from litigating the same question over again even though the determination may even be demonstratedly wrong. When the proceedings have attained finality, parties are bound by the judgment and are estopped from questioning it. They cannot litigate again on the same cause of action nor can they litigate any issue which was necessary for decision in the earlier litigation. These two Page 64 of 129 HC-NIC Page 64 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT aspects are "cause of action estoppel"
and "issue estoppel". These two terms are of common law origin. Again, once an issue has been finally determined, parties cannot subsequently in the same suit advance arguments or adduce further evidence directed to showing that the issue was wrongly determined. Their only remedy is to approach the higher forum if available. The determination of the issue between the parties gives rise to, as noted above, an issue estoppel. It operates in any subsequent proceedings in the same suit in which the issue had been determined. It also operates in subsequent suits between the same parties in which the same issue arises. Section 11 of the Code of Civil Procedure contains provisions of res judicata but these are not exhaustive of the general doctrine of res judicata. Legal principles of estoppel and res judicata are equally applicable in proceedings before administrative authorities as they are based on public policy and justice."
33. On the point of issue estoppel, learned Additional Advocate General has relied upon the judgment of the Supreme Court in the case of R.N. Gosain v. Yashpal Dhir (supra), wherein it has been held as below:
"10. Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which Page 65 of 129 HC-NIC Page 65 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT postulates that no party can accept and reject the same instrument and that "a person cannot say at one time that a transaction is valid any thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage". [See: Verschures Creameries Ltd. v. Hull and Netherlands Steamship Co. Ltd., (1921) 2 R.B. 608, at p.612, Scrutton, L.J].
According to Halsbury's Laws of England, 4th Edn.,Vol. 16, "after taking an advantage under an order (for example for the payment of costs) a party may be precluded from saying that it is invalid and asking to set it aside". (para 1508).
11. In Thacker Hariram Motiram v.
Balkrishan Chatbrabhu Thacker & Ors.(supra), this Court was dealing with a similar situation. The High (Court, while deciding the second appeal in an eviction matter gave the appellant (tenant) one year's time subject to his giving an undertaking within a period of three weeks stating that vacant possession would be handed over within the aforesaid time. The appellant gave an undertaking in accordance with the said terms wherein he undertook that he would vacate and give vacant possession of the Page 66 of 129 HC-NIC Page 66 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT suit premises by December 31, 1985, i.e., to say after one year if "by that time no stay order from the Supreme Court is received as I intend to file an appeal in the Supreme Court". It was held that in view of the said undertaking the petitioner could not invoke the jurisdiction of this Court under Article 136 of the Constitution and he should abide by the terms of the undertaking, and it was observed "This undertaking filed by the appellant in our opinion is in clear variation with the oral undertaking given to the learned Judge which induced him to give one year's time. a We do not wish to encourage this kind of practice for obtaining time from the court on one plea of filing the undertaking and taking the different stand, in applications under Article 136 of the Constitution." (p.655)
12. Similarly in Vidhi Shanker v. Heera Lal (supra) and Ramchandra Jai Ram Randive v. Chandanmal Rupchand & Ors. (supra), this Court declined to exercise its discretion under Article 136 of the Constitution in cases where the petitioner had given an undertaking in the High Court and had obtained time to vacate the premises on the basis of such undertaking.
13. We are, therefore, of the opinion that the petitioner, having given an Page 67 of 129 HC-NIC Page 67 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT undertaking in pursuance to the directions given by the High Court in the Judgment dated March 6, 1992,and having availed the protection from eviction on the basis of the said undertaking, cannot be permitted to invoke the jurisdiction of this Court under Article 136 of the Constitution and assail the said judgment of the High Court. In that view of the matter, we do not consider it necessary to deal with the submissions urged by Dr. Singhvi that the respondent, being an employee of the University at the time of his retirement, was not a 'specified landlord' under section 2(hh) of the Act." This judgment has been relied upon by the learned Additional Advocate General in support of his submission that the petitioners had stated before the Division Bench that they are not pressing the grievance that they stood to lose more than rupees thirty crores 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.
34. On the point that the petitioners cannot be permitted to approbate and reprobate, the learned Additional Advocate General has relied upon the Page 68 of 129 HC-NIC Page 68 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT judgment of the Supreme Court in the case of Cauvery Coffee Traders, Mangalore v. Hornor Resources (International) Company Limited (supra), more specifically on the following paragraphs:
"33. In R.N. Gosain v. Yashpal Dhir, AIR 1993 SC 352, this Court has observed as under: "10. Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that "a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage."
34. A party cannot be permitted to "blow hot and cold", "fast and loose" or "approbate and reprobate". Where one knowingly accepts the benefits of a contract or conveyance or an order, is estopped to deny the validity or binding effect on him of such contract or conveyance or order. This rule is applied to do equity, however, it must not be applied in a manner as to violate the principles of right and good conscience. (Vide: Nagubai Ammal & Ors. v. B. Shama Rao & Ors., AIR 1956 SC 593; C.I.T. Page 69 of 129 HC-NIC Page 69 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT Vs. MR. P. Firm Maur, AIR 1965 SC 1216;
Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service, Amravati & Ors., AIR 1969 SC 329; P.R. Deshpande v. Maruti Balaram Haibatti, AIR 1998 SC 2979; Babu Ram v. Indrapal Singh, AIR 1998 SC 3021; Chairman and MD, NTPC Ltd. v. Reshmi Constructions, Builders & Contractors, AIR 2004 SC 1330; Ramesh Chandra Sankla & Ors. v. Vikram Cement & Ors., AIR 2009 SC 713; and Pradeep Oil Corporation v. Municipal Corporation of Delhi & Anr., (2011) 5 SCC
270).
35. Thus, it is evident that the doctrine of election is based on the rule of estoppel the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had."
35. Another judgment relied upon is that in the case of State of Punjab v. Dhanjit Singh Sandhu (supra), wherein it is held as below:
Page 70 of 129
HC-NIC Page 70 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT "22. The doctrine of "approbate and reprobate" is only a species of estoppel, it implies only to the conduct of parties. As in the case of estoppel it cannot operate against the provisions of a statute. (vide C.I.T. vs. Mr. P. Firm Maur, AIR 1965 SC 1216).
It is settled proposition of law that once an order has been passed, it is complied with, accepted by the other party and derived the benefit out of it, he cannot challenge it on any ground. (Vide Maharashtra State Road Transport Corporation vs. Balwant Regular Motor Service, Amravati & Ors., AIR 1969 SC 329). In R.N. Gosain vs. Yashpal Dhir, AIR 1993 SC 352, this Court has observed as under:-
"Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that "a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage."
23. This Court in Sri Babu Ram Alias Durga Prasad vs. Sri Indra Pal Singh (Dead) by Lrs., AIR 1998 SC 3021, and P.R. Page 71 of 129 HC-NIC Page 71 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT Deshpande vs. Maruti Balram Haibatti, AIR 1998 SC 2979, the Supreme Court has observed that the doctrine of election is based on the rule of estoppel the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppel in pais (or equitable estoppel), which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had.
24. The Supreme Court in The Rajasthan State Industrial Development and Investment Corporation and Anr. vs. Diamond and Gem Development Corporation Ltd. and Anr., AIR 2013 SC 1241, made an observation that a party cannot be permitted to "blow hot and cold", "fast and loose" or "approbate and reprobate". Where one knowingly accepts the benefits of a contract or conveyance or an order, is estopped to deny the validity or binding effect on him of such contract or conveyance or order. This rule is applied to do equity, however, it must not be applied in a manner as to violate the principles of right and good conscience.
25. It is evident that the doctrine of Page 72 of 129 HC-NIC Page 72 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT election is based on the rule of estoppel the principle that one cannot approbate and reprobate is inherent in it. The doctrine of estoppel by election is one among the species of estoppel in pais (or equitable estoppel), which is a rule of equity. By this law, a person may be precluded, by way of his actions, or conduct, or silence when it is his duty to speak, from asserting a right which he would have otherwise had."
36. In Shiv Kumar Sharma v. Santosh Kumari (supra), also relied upon on behalf of the respondents, the Supreme Court has held as below:
"20. In terms of Order II, Rule 2 of the Code, all the reliefs which could be claimed in the suit should be prayed for. Order II, Rule 3 provides for joinder of causes of action. Order II, Rule 4 is an exception thereto. For joining causes of action in respect of matters covered by Clauses (a),
(b) and (c) of Order II, Rule 4, no leave of the court is required to be taken. Even without taking leave of the court, a prayer in that behalf can be made. A suit for recovery of possession on declaration of one's title and/ or injunction and a suit for mesne profit or damages may involve different cause of action. For a suit for Page 73 of 129 HC-NIC Page 73 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT possession, there may be one cause of action; and for claiming a decree for mesne profit, there may be another. In terms of Order II, Rule 4 of the Code, however, such causes of action can be joined and therefor no leave of the court is required to be taken. If no leave has been taken, a separate suit may or may not be maintainable but even a suit wherefor a prayer for grant of damages by way of mesne profit or otherwise is claimed, must be instituted within the prescribed period of limitation.
Damages cannot be granted without payment of court fee. In a case where damages are required to be calculated, a fixed court fee is to be paid but on the quantum determined by the court and the balance court fee is to be paid when a final decree is to be prepared.
21. If the respondent intended to claim damages and/ or mesne profit, in view of Order II, Rule 2 of the Code itself, he could have done so, but he chose not to do so. For one reason or the other, he, therefore, had full knowledge about his right. Having omitted to make any claim for damages, in our opinion, the plaintiff cannot be permitted to get the same indirectly.
Page 74 of 129 HC-NIC Page 74 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT
22. Law in this behalf is absolutely clear. What cannot be done directly cannot be done indirectly.
23. Scope and ambit of jurisdiction of the High Court in determining an issue in an appeal filed in terms of Section 96 of the Code of Civil Procedure (which would be in continuation of the original suit) and exercising the power of judicial review under Articles 226 and 227 of the Constitution of India would be different. While in the former, the court, subject to the procedural flexibility has laid down under the statute is bound to act within the four corners thereof, in adjudicating a lis in exercise of its power of judicial review, the High Court exercises a wider jurisdiction. No doubt, the court in an appropriate case, even in a civil suit may mould a relief but its jurisdiction in this behalf would be confined to Order VII, Rule 7 of the Code of Civil Procedure. [See Bay Berry Apartments Pvt. Ltd. and Anr. v. Shobha and Ors. 2006 (10) SCALE 596 and U.P. State Brassware Corpn. Ltd. and Anr. v. Udai Narain Pandey (2006) 1 SCC 479] "
This judgment is relied upon in support of the contention that the petition, in its present form, is not maintainable and the petitioners ought to have Page 75 of 129 HC-NIC Page 75 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT approached this Court for the clarification of the judgment dated 09.02.2005, in terms of the liberty granted by the Division Bench in the contempt proceedings, by the order dated 13.07.2012, in Misc.Civil Application No.1365 of 2012 and connected matter.
37. On the issue of age of retirement, learned Additional Advocate General has referred to a judgment of the Supreme Court in the case of K.Nagaraj And Others v. State of Andhra Pradesh And Another (supra). He has submitted that though the facts of that case are converse to the facts obtaining in the present cases, however, the same principle of law would apply. The relevant observations of the Supreme Court relied upon by him are as below:
"28. On the basis of this data, it is difficult to hold that in reducing the age of retirement from 58 to 55, the State Government or the Legislature acted arbitrarily or irrationally. There are precedents within our country itself for fixing the retirements age at 55 or for reducing it from 58 to 55. Either the one or the other of these two stages is regarded Page 76 of 129 HC-NIC Page 76 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT generally as acceptable, depending upon the employment policy of the Government of the day. It is not possible to lay down an inflexible rule that 58 years is a reasonable age for retirement and 55 is not. If the policy adopted for the time being by the Government or the Legislature is shown to violate recognised norms of employment planning, it would be possible to say that the policy is irrational since, in that event, it would not bear reasonable nexus with the object which it seeks to achieve. But such is not the case here. The reports of the various Commissions, from which we have extracted relevant portions, show that the creation of new avenues of employment for the youth is an integral part of any policy governing the fixation of retirement age. Since the impugned policy is actuated and influenced predominately by that consideration, it cannot be struck down as arbitrary or irrational. We would only like to add that the question of age of retirement should always be examined by the Government with more than ordinary care, more than the State Government has bestowed upon it in this case. The fixation of age of retirement has minute and multifarious dimensions which shape the lives of citizens. Therefore, it is vital from the point of view of their wellbeing that the Page 77 of 129 HC-NIC Page 77 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT question should be considered with the greatest objectivity and decided upon the basis of empirical data furnished by scientific investigation. What is vital for the welfare of the citizens is, of necessity vital for the survival of the State. Care must also be taken to ensure that the statistics are not perverted to serve a malevolent purpose"
38. Another judgment relied upon on the issue of the age of retirement is Sureshchandra Singh And Others v. Fertilizer Corpn. of India Ltd. And Others (supra), more specifically, the following paragraphs:
"6. It is also to be noted that the OM dated 19th May 1998 itself does not raise the retirement age to sixty years. It is only an administrative direction and Court cannot issue a writ to enforce such administrative instructions that is not having the force of law. The Appellants do not have any right to continue in service till the age of sixty years. The decision of the Board of Directors is not arbitrary or unreasonable or unrelated to the question of enhancement in age of retirement. Hence the first contention stands rejected.
7. The Appellants assail the decision Page 78 of 129 HC-NIC Page 78 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT of the Board on the ground of violation of principles of equality. It is alleged that the Board level employees were allowed to continue in service till the age of sixty and the employees like appellants who were below the Board level were forced to retire at the age of fiftyeight. In reply respondents submitted that board level employees could not be equated and compared with the other employees. Whole time directors, who are two in numbers, are directly appointed by the President of India for a fixed term of five years that could be reviewed even earlier; and that other members of the board are government servants and are nominees or representatives from various ministries and are appointed by the President of India for a term of three years. In these circumstances we find that board of directors themselves form a different class and cannot be compared with other employees in regard to conditions of service applicable to them. Allegation of discrimination is also raised by the Appellants vis`vis employees of other corporations. Each Public Sector Undertaking is an independent body/entity and is free to have its own service conditions as per law. However, all employees in the FCIL who are working in its various Units and Divisions retire at the age of fifty eight as per the Page 79 of 129 HC-NIC Page 79 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT relevant rules; and that even the future employees will retire at the age of fifty eight. We also find that since the employees of different corporations could not be treated alike since every corporation will have to take into account its separate circumstances so as to formulate its policy and consequently the argument that there is discrimination of Appellants vis`vis employees of other corporation also cannot be accepted. Thus, appellants have failed on all grounds. The Appeals stand dismissed."
39. On the point that the Court should nor ordinarily interfere in policy decisions, learned Additional Advocate General has relied upon the judgment in the case of Dilip Kumar Garg And Another v. State of Uttar Pradesh And Others (supra), wherein, the Supreme Court has held as below:
"15. In our opinion Article 14 should not be stretched too far, otherwise it will make the functioning of the administration impossible. The administrative authorities are in the best position to decide the requisite qualifications for promotion from Junior Engineer to Assistant Engineer, and it is not for this Court to sit over their decision like a Court of Appeal. The Page 80 of 129 HC-NIC Page 80 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT administrative authorities have experience in administration, and the Court must respect this, and should not interfere readily with administrative decisions. (See Union of India vs. Pushpa Rani and others 2008 (9) SCC 242 and Official Liquidator vs. Dayanand and others 2008 (10) SCC 1).
16. The decision to treat all Junior Engineers, whether degree holders or diploma holders, as equals for the purpose of promotion is a policy decision, and it is wellsettled that this Court should not ordinarily interfere in policy decisions unless there is clear violation of some constitutional provision or the statute. We find no such violation in this case.
17. In Tata Cellular vs Union of India, AIR 1996 SC 11 SC, it has been held that there should be judicial restraint in administrative decision. This principle will apply all the more to a Rule under Article 309 of the Constitution."
40. On the scope of judicial review, learned Additional Advocate General has relied upon the judgment in the case of Tata Cellular v. Union of India (supra), wherein, it has been held as below: Page 81 of 129
HC-NIC Page 81 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT "90. Judicial review is concerned with reviewing not the merits of the decision in support of which the application of judicial review is made, but the decision making process itself.
91. In Chief Constable of the North Wales Police v. Evans, (1982) 3 All ER 141 at 154 Lord Brightman said :
"Judicial review, as the words imply, is not an appeal from a decision, but review of the manner in which the decision was made.
Judicial Review is concerned, not with the decision, but with the decision making process. Unless that restriction on the power of the Court is observed, the Court will, in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power."
In the same case Lord Hailsham Commented on the purpose of the remedy by way of judicial review under RSC Ord 53 in the following terms :
"This remedy, vastly increased in the extent, and rendered, over a long period in recent years, of infinitely more convenient access than that provided by the old prerogative writs and actions for a declaration, is intended to protect the individual against the abuse of power by a wide range of authorities judicial, quasi judicial, and, as would originally have been thought when I first practised at the Bar, administrative. It is not intended to take away from those authorities the powers and discretions properly vested in them by law to Page 82 of 129 HC-NIC Page 82 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT substitute the Courts as the bodies making the decisions. It is intended to see that the relevant authorities are their powers in a proper manner. (p. 1160) R v. Panel on Takeovers and mergers, ex p Datafin plc. Sir John Donladson MR commented : 'an application for judicial review is not an appeal'. In Lonrho plc v. Secretary of State for Trade and Industry. Lord Keith said : 'Judicial review is a protection and not a weapon'. It is thus different from an appeal. When hearing an appeal the Court concerned with the merits of the decision under appeal. In Re Amin Lord Fraser observed that :
"Judicial review is concerned not with the merits of a decision but with the manner in which the decision was made ..... Judicial review is entirely different from an ordinary appeal. It is made effective by the Court quashing an administrative decision without substituting its own decision, and is to be contrasted with an appeal where the appellate tribunal substitutes its own decision on the merits for that of the administrative officer."
92. In R. v. panel on Takeovers and Mergers, ex p Guinness plc., (1990) 1 QB 146, Lord Donaldson MR referred to the judicial review jurisdiction as being supervisory or 'longstop' jurisdiction. Unless that restriction on the power of the Page 83 of 129 HC-NIC Page 83 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT Court is observed, the Court will, under the guise of preventing the abuse of power, be itself guilty of usurping power.
93. The duty of the Court is to confine itself to the question of legality. Its concern should be;
1. whether a decisionmaking authority exceeded its powers?
2. committed an error of law.
3. committed a breach of the rules of natural justice.
4. reached a decision which no reasonable Tribunals would have reached or.
5. abused its powers."
41. On the point of judicial review of policy matters, the judgment of the Supreme Court in the case of Brij Mohan Lal v. Union of India And Others (supra), has been pressed into service wherein it has been held as below:
"96. It is a settled principle of law that matters relating to framing and implementation of policy primarily fall in the domain of the Government. It is an established requirement of good governance that the Government should frame policies Page 84 of 129 HC-NIC Page 84 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT which are fair and beneficial to the public at large. The Government enjoys freedom in relation to framing of policies. It is for the Government to adopt any particular policy as it may deem fit and proper and the law gives it liberty and freedom in framing the same. Normally, the Courts would decline to exercise the power of judicial review in relation to such matters. But this general rule is not free from exceptions. The Courts have repeatedly taken the view that they would not refuse to adjudicate upon policy matters if the policy decisions are arbitrary, capricious or mala fide.
... ... ...
100. Certain tests, whether this Court should or not interfere in the policy decisions of the State, as stated in other judgments, can be summed up as:
(I) If the policy fails to satisfy the test of reasonableness, it would be unconstitutional.
(II) The change in policy must be made fairly and should not give impression that it was so done arbitrarily on any ulterior intention.
(III) The policy can be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness etc. (IV) If the policy is found to be against Page 85 of 129 HC-NIC Page 85 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT any statute or the Constitution or runs counter to the philosophy behind these provisions.
(V) It is dehors the provisions of the Act or Legislations.
(VI) If the delegate has acted beyond its power of delegation.
... ... ...
103. The correct approach in relation to the scope of judicial review of policy decisions of the State can hardly be stated in absolute terms. It will always depend upon the facts and circumstances of a given case. Furthermore, the Court would have to examine any elements of arbitrariness, unreasonableness and other Constitutional facets in the policy decision of the State before it can step in to interfere and pass effective orders in such cases.
104. A challenge to the formation of a State policy or its subsequent alterations may be raised on very limited grounds.
Again, the scope of judicial review in such matters is a very limited one. One of the most important aspects in adjudicating such a matter is that the State policy should not be opposed to basic Rule of Law or the statutory law in force. This is what has been termed by the courts as the philosophy of law, which must be adhered to by valid Page 86 of 129 HC-NIC Page 86 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT policy decisions.
... ... ...
119. The power of judicial review to examine the validity of a legislation falls within a very limited compass. It is treated by the Courts with greater restraint and on a much higher pedestal than examination of the correctness or validity of State policies. In the present case, the Union of India had framed a policy, which was termed as the FTC Scheme. This was a conscious policy decision taken by the appropriate Government, the implementation whereof in regard to financial infrastructure, capital or recurring expenditure was primarily that of the Union of India. Some of the State Governments framed Rules to fill up the posts of Judges who were to preside over the FTCs, while others just took a policy decision with respect to the existing statutory Rules for recruitment to the regular Higher Judicial Services cadre of that State."
DISCUSSION:
42. This Court has heard learned counsel for the respective parties at length, perused the averments made in the petitions, the other pleadings and the Page 87 of 129 HC-NIC Page 87 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT documents on record. It has further given deep thought and accorded anxious consideration to the rival submissions and the judgments cited at the Bar.
43. The first issue that is required to be determined is regarding the maintainability of the present petitions and whether they are barred by the principles of resjudicata and constructive res judicata. A number of judgments on this point have been relied upon, as reproduced earlier. At the same time, it also falls for consideration whether the petitioners are barred from raising the pleas that they have, on the basis of the principle of issue estoppel. Also, whether the averments made in the previous petition (Special Civil Application No.10862/2003) and the present ones amount to the petitioners approbating and reprobating in the same breath?
44. To answer these questions, reference may be made to the averments and prayers made in the previous petition filed by the petitioners (Special Civil Application No.10862/2003) and the judgment of this Court dated 09.02.2005 passed in that petition, in Page 88 of 129 HC-NIC Page 88 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT juxtaposition with the averments made in the present petitions. Not only are the averments and prayers required to be considered in the context in which the previous and present petitions have been filed but they are also required to be understood in proper context and perspective. In addition, the situation prevailing at the time when the previous petition was filed and that prevailing when these petitions were preferred has to be kept in mind.
45. As has been noted earlier, the petitioners are BWHG who were initially appointed under a specifically formulated Scheme of the Government of India, dated 29.06.1979. The Scheme was for raising two BWHG battalions in the State of Gujarat, for the two border Districts of Banaskantha and KutchBhuj. BWHG were classified as fulltime and parttime. The petitioners, almost all of whom were parties to the previous petition, fell under the nomenclature of "parttime". Fulltime BWHG were given different pay scales and benefits as per the rank, as are given to fulltime State Armed Police Personnel, whereas the petitioners were paid only a fixed basic pay plus Dearness Allowance sans any other benefits of the Page 89 of 129 HC-NIC Page 89 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT State Armed Police which are given to fulltime BWHG. The petitioners were recruited under a regular recruitment process, underwent a physical test and passed written and oral tests before they were selected as BGHGs. It was their case in the first round of litigation that though they were described as "parttime" BWHG, they were engaged in fulltime duty round the clock and throughout the year. The petitioners also underwent medical tests, and rigorous advanced training which included an emphasis on developing leadership qualities and training in drill, weapon training, patrolling protection of vital installations, firefighting and civil defense subjects. The petitioners are deployed on the border and performed duties such as patrolling along the border and checking and preventing infiltrations, along with the Border Security Force personnel. The petitioners had pleaded before the Court in the previous round of litigation, that the respondents be directed to evolve fair, just and reasonable conditions of service for them, including the grant of service benefits such as pay fixation, leave, over time, medical allowances, travelling allowances and Page 90 of 129 HC-NIC Page 90 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT retiral benefits like pension, gratuity, provident fund, etc. They also claimed the arrears of the above mentioned benefits since the time of their joining. The petitioners further prayed that they may be declared as permanent, fulltime members of BWHGs and be treated accordingly in all respects.
46. Voluminous data was produced before this Court regarding the conditions of service, nature of duties and service and length of service performed by the parttime BWHGs, which is reflected in the detailed judgment dated 09.02.2005. The petitioners relied heavily upon the judgment of the Supreme Court in the case of Pantha Chatterjee (supra) and contended that, like the BWHG of the State of West Bengal in that case, they, too, were similarly situated. Both were appointed under the respective Home Guards Acts of the States of West Bengal and Gujarat and were described as parttime BWHG. In both cases, the framework of the respective Acts was used though they were appointed under Scheme framed by the Government of India. They performed continuous duties along the borders for periods as long as fourteen years in the West Bengal case and eighteen years in the case of the Page 91 of 129 HC-NIC Page 91 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT petitioners; therefore, they were claiming the same benefits as granted to the BWHG of West Bengal. In West Bengal, the respondents admitted the case of the BWHG but in the case of the present petitioners, their claims were disputed by the respondents. After examining the case of the petitionerBWHGs of Gujarat from all possible angles including those of equal pay for equal work, regularisation and Articles 14, 16 and 21 of the Constitution of India, this Court held, on the basis of the material on record that:
"29.3 In this case the petitioners have produced enough material relating to the fact that the petitioners' qualification, method of recruitment, experience in performance, training undertaken and other facilities are same that of the persons who are employed by the respondents and therefore they are entitled to relief which they have prayed for in this behalf....."
Then, again in para 29.5, it held that:
"29.5 I have also considered that there is no qualitative difference as regards liability and responsibility between the petitioners and other employees who are employed by the respondents, their functions Page 92 of 129 HC-NIC Page 92 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT and duties are same and identical. The petitioners have been able to prove that the action of the respondents results into hostile discrimination between the petitioners and other persons who are employed by the respondents and the petitioners are entitled to relief....."
In Para 29.9, the Court stated:
"29.9. The learned counsel for the respondents has contended that there cannot be any parity between parttime and full time (regular) Border Wing Home Guards. It may be noted that I have already discussed this point that merely because the State Government or the Central Government observes that the petitioners are parttime employees that will not treat these employees as part time. The real factual aspect of the matter I have stated and considered that the petitioners have worked round the year and more than 12 to 15 hours a day entirely in border area. There was hardly any break and whichever break is there, which is very normal to fulfill the family duties and merely because calling the petitioners as parttime, it is a wrong nomenclature given by the respondents. The reality is quite different and therefore there is no question of considering parity Page 93 of 129 HC-NIC Page 93 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT between the parttime and full time BWHGS and whatever the full time BWHGS get, the petitioners must also get the same in this behalf. In view of the same, the petitioners have proved and substantiated a clearcut basis of equivalence and resultant hostile discrimination that the question of considering the petitioners as part time is a hostile discrimination and therefore they are entitled to relief in this behalf. Therefore, the contention that there is no question of comparison between the petitioners and full time (regular) BWHGs is not accepted because the petitioners have worked as full time employees. The contention of the learned counsel for the respondents that there is no question of equal pay for equal work will have no relevance."
In light of the above observations, this Court issued the directions already reproduced earlier in this judgment.
47. From the above material on record, it is evident that the petitioners were claiming full parity, in all respects, with the fulltime BWHG, which was granted by the Court. The only restriction imposed by the Court was regarding the claim for the arrears of Page 94 of 129 HC-NIC Page 94 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT service benefits, which were limited from 30.07.2003, the date of the filing of the previous petition.
48. The judgment of this Court has been confirmed by the Division Bench, by its judgment dated 06.04.2011, with certain clarifications regarding the arrears of service benefits admissible with effect from 30.07.2003 and the amount of difference of salary and allowances and the calculation regarding the same.
49. The salient observations made by the Division Bench have already been reproduced earlier in this judgment. The Division Bench also relied upon the judgment of the Supreme Court in Pantha Chatterjee's case and stated that "The socalled parttime Border Wing Home Guards could not be treated differently from the permanent staff of BWHG". It stated that the benefits given to fulltime BWHG were to be conferred upon the petitioners uniformly and without any discrimination. It further stated that the petitioners could not be treated differently. The Division Bench directed that:
"9. .....Therefore, under the peculiar facts and circumstances, the directions Page 95 of 129 HC-NIC Page 95 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT contained in the impugned judgments to give to the BWHGs 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......"
50. The clarifications made by the Division Bench were regarding the claim of some of the petitioners of the earlier petition who had filed crossappeals, for the arrears of service benefits from the initial dates of their appointment and not only from the date of the filing of the petition.
51. In the SLP before the Supreme Court notice has been issued on 29.07.2011, specifically confined to the question of the payment of backwages. CONCLUSIONS:
51. In the above context and background, would the principles of resjudicata, constructive resjudicata and issue estoppel apply to the present petitions? In the considered view of this Court, the answer would be in the negative, as will be discussed hereafter.Page 96 of 129
HC-NIC Page 96 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT
53. In State of U.P. v. Nawab Hussain (supra), the Supreme Court has dealt with the principle of constructive resjudicata as the plea not raised in the petition could well have been raised and the subsequent suit raising that plea was barred by res judicata.
54. In Pondicherry Khadi & Village Industries Board v. P. Kulothangan And Another (supra), the Supreme Court held that the Courts are prohibited from trying the issue which was directly and substantially in issue in the earlier proceedings between the same parties, provided the Court trying the subsequent proceeding is satisfied that the earlier Court was competent to dispose of the earlier proceedings and that the matter had been heard and finally decided by such Court.
55. The effects of resjudicata and issue estoppel were noticed by the Supreme Court in the case of Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas and Anr. (supra) after referring to several judgments and it was held, in Paragraph30 of the judgment, that resjudicata debars a Court from Page 97 of 129 HC-NIC Page 97 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT exercising its jurisdiction to determine the lis if it has attained finality between the parties whereas the doctrine of issue estoppel is invoked against the party. If such an issue is decided against him, he would be estopped from raising the same issue in later proceedings.
56. In R.N. Gosain v. Yashpal Dhir (supra), the Supreme Court held that law does not permit a person to both approbate and reprobate.
57. In Cauvery Coffee Traders, Mangalore v. Hornor Resources (International) Company Limited (supra), placing reliance on its earlier decision in the case of R.N. Gosain v. Yashpal Dhir (supra), the Supreme Court held that a party cannot be permitted to "blow hot and cold", fast and loose or approbate and reprobate as the law of election, based on the rule of estoppel, precludes a person by his actions or conduct, or even silence, when it is his duty to speak, from asserting a right which he otherwise would have had.
58. In State of Punjab v. Dhanjit Singh Sandhu (supra), the Supreme Court has reiterated the Page 98 of 129 HC-NIC Page 98 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT principles of estoppel and approbation and reprobation.
59. The principles of law enunciated by the Supreme Court in the above judgments reflect the settled position of law on those subjects and this Court cannot but bow down to them. What is, however, of prime importance is to ascertain whether these principles of resjudicata, constructive resjudicata, issue estoppel and approbation and reprobation are legally and factually applicable, or relevant, to the present cases.
60. As has been stated earlier, the petitioners had made a prayer to be granted all the service benefits available to the fulltime BWHGs who were at par with the State Armed Police. The Court has granted all those benefits, except for restricting the arrears of the service benefits to the date of the filing of the petition. The Court held that parttime BWHG were to be given complete parity with the fulltime ones and would be absorbed with effect from 30.07.2003. These directions were confirmed by the Division Bench, with certain clarifications, as noted above. Page 99 of 129 HC-NIC Page 99 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT
61. In the present petition, it is the specific case of the petitioners that the implementation by the respondents, of the judgment dated 06.04.2011 passed by the Division Bench, is faulty and flawed in certain respects, inasmuch as the petitioners, though now absorbed and treated as fulltime BWHG after the said judgment, are still being discriminated against and treated differently, insofar as their age of retirement and the applicability of the Gujarat Civil Services Rules are concerned. Their retiral benefits are being calculated as though they have joined only on 30.07.2003 and not from the date of their initial appointments. It has been strenuously argued before this Court that long years of their service have not been considered for the sake of retiral benefits, which are required to be counted notionally. It is the case of the petitioners that the judgments of this Court and the Division Bench have not been implemented in their true spirit and all the benefits that the Courts actually intended to confer upon the petitioners have not been granted by the respondents. According to the petitioners, the misinterpretation of the above judgments has led to their faulty Page 100 of 129 HC-NIC Page 100 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT implementation. The age of retirement of the petitioners is still being considered as 55 years, in spite of the fact that two Courts have granted them full parity with fulltime BWHG and Armed Police Personnel. Parity in all respects includes that in the age of retirement and consequential benefits. As per the case of the petitioners, the long years of service put in by them in hard service conditions are required to be counted notionally for the calculation of their retiral benefits, as it was never the intention of this Court and the Division Bench to wipe away those years for this purpose, as is being wrongly construed by the respondents. Under the circumstances, it is emphatically submitted on behalf of the petitioners that the present are not cases where the principles of resjudicata, constructive resjudicata, issue estoppel or the principle of approbation and reprobation would apply so as to bar the Court from entertaining the petitions. These are, according to learned Senior Counsel for the petitioners, cases where the judgments of this Court and the Division Bench have suffered faulty implementation at the hands of the respondents, which situation this Court can Page 101 of 129 HC-NIC Page 101 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT certainly rectify under its extraordinary jurisdiction under Article 226 of the Constitution of India, so as to ensure the implementation of the judgments in their intended letter and spirit.
62. In the above context, learned Senior Counsel for the petitioners has relied upon the judgment in the case of State of Haryana And Others v. M.P. Mohla (supra), the relevant paragraphs of which have been extracted earlier. The Supreme Court has stated in the said judgment that a judgment must be read in its entirety and must be implemented. The effect of a judgment must be considered from the reliefs claimed in the writ petition and the implications thereof must be deciphered from the reading of the entire judgment. It has been further explained that a judgment has to be read on the touchstone of the pleadings of parties. After noticing two previous judgments of the Apex Court in support of the above proposition, the Supreme Court has succinctly summed upon the legal principle by stating that "if a subsequent cause of action has arisen in the matter of implementation of a judgment a fresh writ petition may be filed, as a fresh cause of action has arisen" (Paragraph 23 of the judgment). Page 102 of 129 HC-NIC Page 102 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT
63. The same principle, in a somewhat different context, has been stated by the Apex Court in Ramesh Chand Daga v. Rameshwari Bai (supra), by stating that a judgment must not be read as a statute but must be construed upon reading the same as a whole and for this purpose the attendant circumstances must also be taken into consideration.
64. After deeply and carefully perusing the averments made by the BWHGs in the previous petition, the judgments of this Court and the Division Bench and the judgments of the Supreme Court in the case of State of Haryana And Others v. M.P. Mohla (supra) and Ramesh Chand Daga v. Rameshwari Bai (supra), there is no doubt left in the mind of the Court that what the petitioner BWHGs had prayed for before the Court was complete parity in all respects with regard to their service conditions with the fulltime BWHG and the State Armed Police Personnel. The detailed judgments of this Court and the Division Bench are absolutely clear on the point that the petitioners must be granted full parity in all respects. It has been stated by the Courts, time and again, that the petitioner cannot be treated differently from the Page 103 of 129 HC-NIC Page 103 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT fulltime BWHG and must be given the same pay, parity in service conditions, privileges and perquisites. There can be no two opinions about this. The only restriction placed by the Court in the judgment dated 09.02.2005 (and confirmed by the Division Bench) is that the petitioners BWHG were directed to be absorbed with effect from 30.07.2003 and would be given the arrears of service benefits and fixation of pay with effect from the same date. [Paragraphs 30.3 and 30.4 of the judgment].
65. This position is amply clear from Paragraph 30.2 of the judgment dated 09.02.2005, whereby the Court has directed that the petitioners be given all the benefits of pay, provident fund, gratuity, retiral benefits, leave privilege allowances and increments admissible to State Government employees under the Rules.
66. The intention of the Court, therefore, is crystal clear and is a natural conclusion to the elaborate discussion contained in the body of the judgment regarding equality under Article 14 of the Constitution, discrimination against the petitioners, Page 104 of 129 HC-NIC Page 104 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT their rights under Articles 16 and 21 of the Constitution and equal pay for equal work. All the above facets were established by the petitioners. These directions have not been disturbed by the Division Bench. Certain further clarifications were made by the Division bench regarding the manner in which the arrears of service benefits are to be calculated. This issue is under consideration before the Supreme Court. It may be clarified that this aspect does not form a part of the present proceedings.
67. Though the respondents have partlyimplemented the above judgments, however, as stated by the petitioners, they have not done so fully, properly or holistically, as intended by the Courts. The respondents are treating the petitioners as fresh appointees with effect from 30.07.2003, the date from which they are directed to be absorbed. Their long years of past service, performed in the most arduous conditions, have been set at naught as they are not being counted for any purpose, whatsoever. Could this have been the intention of the Courts? A careful and indepth study of the entire material on record and Page 105 of 129 HC-NIC Page 105 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT both the judgments does not support this train of thought. Full and complete parity, in all respects, with all service benefits, is clearly what the Courts intended to grant and directed that it be granted, leaving aside the aspect of arrears. A holistic reading of both the judgments of this Court and the Division Bench in their entirety clearly brings out the intention of the Courts in this regard. Full parity in service benefits has been directed to be conferred upon the petitioners and the respondents have been directed to implement the mandate of the Courts. Instead of implementing the directions in true letter and spirit, as per the intention of the Courts, the respondents have done it in a faulty and piece meal manner, creating a further disparity when the Courts granted parity. An ironic situation has arisen in which the petitioners, who are now to be considered at par with fulltime BWHG, State Armed Police Personnel and Government Employees, are made to retire at the age of 55 years, whereas the fulltime BWHG and State Armed Police Personnel superannuate at 58 years. After granting full parity in all respects in service conditions, benefits and privileges, it could never Page 106 of 129 HC-NIC Page 106 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT have been intended by the Courts that there should be disparity in certain glaring aspects regarding service conditions such as the age of retirement. Indeed, this is not the case, as is clear from a reading of both the judgments in their entirety, in the background of the attendant circumstances in which they were delivered. On the contrary, both the Courts have gone into minute detail and examined every aspect of the matter. In Paragraph9 of the judgment dated 06.04.2011, the Division Bench has categorically stated that the State Government, being in the position of the employer, 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 BWHG. It has further gone on to state that the socalled parttime BWHG cannot be treated differently from the permanent staff of BWHG. When the permanent BWHGs are made to superannuate at the age of 58 years, no different treatment can be meted out to the petitioners in this regard. The age of retirement and the consequential retiral benefits are one of the privileges and perquisites of Government service, looked forward to Page 107 of 129 HC-NIC Page 107 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT by an employee who has dutifully rendered service to the state Government all his working years. If the age of retirement of the fulltime BWHG and Armed Police Personnel is 58 years, then it follows that as per the directions of both the Courts, parity would also include the age of retirement which has to be the same for the petitioners, who are now to be treated equally with the fulltime BWHG. Instead, they are being made to retire at the age of 55 years, which constitutes discrimination against them. The Courts have struck down the discrimination meted out to the petitioners but the respondents are perpetrating it in another form. Had it been the intention of the Courts that the petitioners should have a different age of retirement, it would have been so specified in the judgments, wherein several directions have been given covering all relevant issues. By not implementing the judgments as directed and intended by the Courts, the respondents have given rise to a greater and more glaring disparity, leading to multiplicity of litigation. It is to rectify this situation that the petitioners have filed the present petitions which, in the view of this Court, are maintainable. Page 108 of 129 HC-NIC Page 108 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT
68. In this view of the matter, and in consonance with the principles of law enunciated by the Supreme Court in the case of State of Haryana And Others v. M.P. Mohla (supra), the present petitions cannot be said to be barred by the principles of resjudicata, constructive resjudicata or issue estoppel. Neither can it be accepted that the petitioners are approbating and reprobating in the same breath. Full and substantial justice, as was meted out by the Courts, has not been given to the petitioners by the partial and faulty implementation of the above judgments by the respondents. The present cases have been preferred for the full implementation of the above judgments in letter, spirit and substance as intended by the Courts. The principles of res judicata, constructive resjudicata and issue estoppel, therefore, are not at all involved, or even relevant, in the context of the present litigation.
69. It has been submitted on behalf of the respondents that in the previous round of litigation, the petitioners had accepted that they are governed by the Bombay Home Guards Act and Rules. As per Rule 9, the age of retirement of Home Guards is 55 years. It Page 109 of 129 HC-NIC Page 109 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT is contended that having been appointed under the said Act and Rules, the petitioners cannot claim a different age of retirement.
70. It cannot be forgotten that the averments made in the previous petition were made before the judgments dated 09.02.2005 and 06.04.2011 were delivered by this Court and the Division Bench. They reflected the position that prevailed at that point of time, with which the petitioners were aggrieved and dissatisfied. They had prayed for all the benefits available to fulltime BWHG and were granted all those benefits. The averments that they were governed by the Bombay Home Guards Act and Rules as the framework of that Act and Rules was used by the respondents, cannot create an estoppel against the petitioners, now that they have been granted the parity that they had claimed, by the Courts.
71. The Scheme of BWHGs in Gujarat was formulated by the Government of India on 29.06.1979. This was the mandate of the Central Government. However, to implement it, a statutory structure was required which the respondents found in the Bombay Home Guards Act Page 110 of 129 HC-NIC Page 110 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT and Rules. The said Act and Rules provided the statutory structure, as stated by the Division Bench in its judgment (Paragraph6). The Division Bench has further noted that the petitioners were not ordinary Home Guards enrolled under the Bombay Home Guards Act and Rules but BWHGs seeking parity with the State Armed Reserve Police in all respects. When, in substance, full parity, in all respects has been granted to the petitioners by both Courts, the respondents cannot invoke the structural framework of the Bombay Home Guards Act and Rules that they had utilised to implement the Scheme, in order to defeat or nullify the directions of the Courts. The respondents cannot be permitted to invoke the same position that prevailed pre 09.02.2005 when the judgment of this Court was delivered as that situation no longer exists after the judgment of the Division Bench.
72. Reference may be made to the Bombay Home Guards Act and the Rules framed in exercise of the power under Section 8. The Act is a statute providing for the "constitution of Home Guards". The petitioners are not Home Guards but are Border Wing Home Guards. Much Page 111 of 129 HC-NIC Page 111 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT has been stated by the learned Additional Advocate General regarding the difference in the duties and recruitment modes of the petitioners and the permanent BWHG and State Reserved Police Personnel. These differences, which are created by the different procedures adopted by the respondents, are no longer relevant. It has been held by the Courts in the previous round of litigation that the petitioners cannot be equated with volunteer Home Guards recruited under the Act and Rules, as they are a specially trained and equipped force, directed to be raised by the Government of India in order to supplement the BSF Personnel in guarding the borders. They are also required to aid the regular Armed Police force. All contentions regarding the voluntary and parttime nature of the service of the petitioners, which were laboriously raised by the respondents in the previous litigation, have been categorically negatived by both the Courts. The comparison of the petitionerBWHGs to ordinary Home Guards has also been rejected by both the Courts. Once again, before this Court, the very same objections have been raised by the learned Additional Advocate General. As these contentions have Page 112 of 129 HC-NIC Page 112 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT already been negatived in the previous round of litigation, the attempt to resurrect them in the present petitions is rather misplaced. Once the Courts have disallowed certain contentions, it does not behove the respondents to bring them up, time and again, in some form or the other.
73. The mode and manner of appointment of the petitioners and the statutory framework used by the respondents for this purpose is no longer relevant, after two Courts have granted full parity to them with the fulltime BWHG. The petitioners are, therefore, wellwithin their rights in filing the present petitions for the proper implementation of the judgments of the Courts. As stated by the Supreme Court in State of Haryana And Others v. M.P. Mohla (supra), this would constitute a fresh cause of action.
74. Learned Additional Advocate General has referred to the order dated 13.07.2012 of the Division Bench passed in the contempt petition, wherein liberty had been granted to the petitioners to move the Court for clarification of certain issues. This order does not Page 113 of 129 HC-NIC Page 113 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT preclude the petitioners from filing a fresh petition. What can be prayed for in a Misc. Civil Application can as well be prayed for in a petition under Article 226 of the Constitution of India.
75. Regarding the contention of the respondents that the fixation of the age of retirement of an employee is a policy matter and the sole discretion of the employer, it can be said that generally, and in normal circumstances, it may be so. However, in the present cases, the Statute under which the petitioners were recruited, namely the Bombay Home Guards Act, is no longer adequate or suitable to govern their service conditions after the directions issued by the Courts. The petitioners are not volunteer, parttime Home Guards but permanent fulltime BWHG, performing very different duties. Their service conditions have to be the same in all respects as the fulltime BWHG and State Reserve Police Personnel with whom they have been equated. This includes the age of retirement and the Service Rules as well. The present are not cases where the respondents had evolved a policy for the so called parttime BWHG and the Court is attempting to interfere in such policy. The fact is that, no policy, Page 114 of 129 HC-NIC Page 114 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT whatsoever, has ever been evolved by the State Government for the socalled parttime BWHG who are now rightly divested of the misnomer of "parttime" by the Courts. The BWHG owed their existence to the Scheme of the Central Government, to implement which, the structural framework of the Bombay Home Guards Act and Rules was used by the respondents. The Courts have clearly stated that the petitioners are not Home Guards. After the verdict of the Courts, the continuance of the petitioners under the Home Guards Act is, in itself, not in consonance with the directions of the Courts. The State Government has evolved a policy for the fulltime BWHG who are governed by the Gujarat Civil Service Rules. When the petitioners have been equated with fulltime BWHG, it is incumbent upon the State Government to cover the petitioners under the same policy and Rules as are applicable to the fulltime BWHG. It is for the State Government to implement the directions of the Court in full letter and spirit. If such implementation demands the evolution of a policy, then the State Government must do so. Otherwise, it would seem that it is reluctant to implement the judgment of the Division Page 115 of 129 HC-NIC Page 115 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT Bench in letter and spirit. There is no bar on the Court to direct the State Government to act in this regard as it is not a matter of interference in a policy decision but of exhorting the State Government to apply the same policy and Service Rules to similarly situated BWHG.
76. After the rendition of the judgment of the Division Bench, which has not been disturbed by the Supreme Court in the pending SLP insofar as service conditions are concerned, it was incumbent upon the respondents to have included the petitioners under the same umbrella of policy and Rules as are applicable to the fulltime BWHG, insofar as the benefits, privileges, perquisites and conditions of service are concerned. As a model employer, the State Government must implement the directions of the Courts in true letter and spirit and not in a manner that results in creating further disparity and discrimination, especially after the Courts have granted full parity to the petitioners. The petitioners have now been equated with the fulltime BWHG, therefore, there remains no difference between the two, especially after their absorption. There can be no disparity in Page 116 of 129 HC-NIC Page 116 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT matters of policy for the same class of persons. The same set of service Rules and retirement policy has to govern them. After absorption as permanent fulltime BWHG, the petitioners would be entitled to all the service benefits, privileges and perquisites of the service in which they have been absorbed. The petitioners cannot be treated differently, as a class apart, insofar as the age of retirement is concerned. In any case, after the absorption of the petitioners, the respondents cannot be permitted to create a class within a class as they are attempting to do, having a different age of retirement for the petitioners from the other BWHG. All BWHG are now a single class and have to be treated equally. A segment of the same class cannot be treated differently or unequally. Unequal treatment in matters of superannuation and Service Rules would violate the fundamental rights of the petitioners, guaranteed under Articles 14 and 16 of the Constitution of India. The respondents are bringing in the very same inequality and discrimination from the backdoor, which the Courts had expelled, outright, by the judgments dated 09.02.2005 and 06.04.2011.
Page 117 of 129 HC-NIC Page 117 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT
77. After the mandate of the Courts, the say of the respondents that this Court should not interfere as the age of retirement is a policy decision, reveals a certain reluctance on their part to implement the judgments of the Courts in their proper spirit. This Court cannot permit a situation to exist wherein the faulty implementation of the directions of the Courts causes injustice to the petitioners and the intention and directions of the Courts are not properly interpreted and implemented. That would amount to nullifying the directions issued by the Courts regarding full parity to the petitioners. Full and substantial justice as directed, should prevail and not partial implementation amounting to discrimination, as is being done by the respondents.
78. There is no question of the "backdoor" entry of the petitioners into Government service, as contended by the learned Additional Advocate General. The petitioners have been recruited after following the prescribed procedure under the Scheme. This aspect has been highlighted in both the previous judgments and one need not elaborate any further in this regard. Such an argument is no longer available or open to the Page 118 of 129 HC-NIC Page 118 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT respondents.
79. The respondents are, unfortunately, treating the petitioners as if they are fresh appointees with effect from 30.07.2003, which is the date from which the Court has directed that they be absorbed. There is a difference between absorption and fresh appointment. Absorption connotes assimilation, where one is taken in and becomes one with an existing entity. In the present context, the petitioners were directed to be absorbed as fulltime BWHG in an already existing service, in which they were assimilated in all respects. The appointment of a person connotes fresh induction into service. A fresh appointee would be a new hand with no previous experience. The petitioners have been working with effect from 198081 onwards. By the time they filed the previous petitions on 30.07.2003, they had already put in more than 1018 years of service. That being so, the Court, while passing the judgment dated 09.02.2005, directed them to be absorbed with effect from 30.07.2003. Though the arrears of service benefits were curtailed to 30.07.2003, it was never intended by the Court that the long years of past service of the petitioners are Page 119 of 129 HC-NIC Page 119 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT to be excluded for retiral benefits, or to be set at naught. The Courts have specifically mentioned that retiral benefits are to be conferred on the petitioners. The retiral benefits of an employee are calculated taking into consideration the years of service put in by him. A large chunk of the service of the petitioners cannot be ignored in calculating their retiral benefits. Had it been the intention of the Court to curtail the retiral benefits from 30.07.2003, it would have been so specified, as has been done in the case of the arrears of service benefits. Each and every benefit conferred by the Courts need not be specifically mentioned. When the Courts have stated that all service benefits, privileges and perquisites are to be granted to the petitioners, it necessarily follows that the years of service put in by them prior to 30.07.2003 are to be counted, notionally, only for the sole purpose of the calculation of their retiral benefits. Some of the petitioners (about 58, the Court is informed) will be deprived of all retiral benefits due to the faulty implementation of the judgments by the respondents. The argument of the respondents that most of the petitioners will receive retiral benefits Page 120 of 129 HC-NIC Page 120 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT even if their previous service is not considered, cannot be permitted to defeat the ends of justice. There will be a marked difference in the amount of retiral benefits and gratuity, depending on the number of years' service that is counted. The Courts have nowhere stated that the years of service before 30.07.2003 shall not be counted notionally. They have only specified that the arrears of service benefits will be admissible only with effect from 30.07.2003. This direction has become final.
80. Learned Additional Advocate General has relied upon the case of Tata Cellular v. Union of India (supra) on the point of judicial review. The celebrated principles of law enunciated by the Supreme Court in the above judgment cannot be disputed, however, they are not applicable or relevant in the facts of the present cases as the Court is not embarking upon a judicial review of any decision taken by respondents. Rather, it is examining the plea of the petitioners for the full and proper implementation of the judgments dated 09.02.2005 and 06.04.2011.
81. A submission has been advanced on behalf of the Page 121 of 129 HC-NIC Page 121 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT respondents that the case of the petitioners is akin to cases regarding the change of the date of birth, at the fag end of the service career of an employee. This analogy is not at all appropriate, on the facts and in the circumstances of the present cases, as have been discussed hereinabove.
82. Mr.P.K.Jani, learned Additional Advocate General, has relied upon the judgment of the Supreme Court in K.Nagaraj And Others v. State of Andhra Pradesh And Another (supra), in order to submit that the age of superannuation is a policy decision pertaining to the executive sphere and it would not be proper for the Court to adjudicate such issues. That was a case where the age of retirement was reduced from 58 years to 55 years. However, in the present case, the converse is the situation. In the cases in hand, it is not as though the age of superannuation fixed earlier has been reduced. The present are cases where the petitioners are claiming that they must be superannuated at the same age that the fulltime BWHGs are made to retire at, as they have now been absorbed as such. This judgment would not be applicable in the facts of the present case.
Page 122 of 129 HC-NIC Page 122 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT
83. In Sureshchandra Singh And Others v. Fertilizer Corpn. of India Ltd. And Others (supra), the Supreme Court was dealing with a case where a policy decision was taken not to enhance the age of retirement to 60 years. It was held that each Public Sector Enterprise is an independent body / entity and is free to formulate its own service conditions, hence, equality in retirement age cannot be claimed against employees of other Corporations. This judgment would not be helpful to the respondents in the present case as the petitioners are not claiming parity with employees of another department or service but are seeking parity with the fulltime BWHGs of whom they are very much a part, after their absorption.
84. Both the Courts have treated the petitioners at par with fulltime BWHG and the State Reserve Police personnel insofar as service conditions and benefits are concerned. It has been categorically held that the term "parttime" with respect to the service of the petitioners is nothing but wrong nomenclature as they have rendered fulltime service. The petitioners have, in fact, rendered fulltime service and the misnomer "parttime" can no longer be applied to them. In that Page 123 of 129 HC-NIC Page 123 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT view of the matter, the long years of the fulltime service of the petitioners cannot be ignored for the notional calculation of their retiral benefits.
85. As has been held by the Supreme Court in Ramesh Chand Daga v. Rameshwari Bai (supra), judgments of Courts cannot be read as statutes and their real purpose must be construed upon reading them as a whole. The same principle applies in the present case.
86. If the respondents are permitted to implement the judgments of this Court only partially, as they are doing, it would amount to putting back the clock and undoing what has been done by the Courts after long years of litigation.
87. In State of Gujarat & Anr. v. Mahendrakumar Bhagvandas & Anr. (supra), a Division Bench of this Court, while dealing with a case of dailyrated employees who were regularised and made permanent in service but were denied service benefits available to regular and permanent employees, made certain pertinent observations which are squarely applicable in the present case. The Division Bench held: Page 124 of 129
HC-NIC Page 124 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT "5. As noted earlier, subsequent G.R. dated 18.7.1994 is expressly superseding the instructions contained in government resolution dated 3.11.1990 but does not supersede original G.R. dated 17.10.1988. It is also an admitted position that most of substantive benefits of permanent service are already accorded to the employees concerned in terms of G.R. dated 17.10.1988.
Under such circumstances, it was argued that nomenclature for treating the employees concerned as permanent was clarified by the government, and hence, denial of few benefits was justified and in order.
However, no ground or rational basis could be made out for grant of most of the benefits to most of the employees in terms of G.R. dated 17.10.1988 and for denial of the remaining few benefits. Once the employees concerned were, in fact, treated for all purposes as permanent employees in terms of G.R. dated 17.10.1988, any discrimination or denial of benefits for a segment of such employees, who were subsequently rebranded as "daily wager"
(rojamdar) by G.R. dated 18.7.1994, could not be rationally explained and could not be countenanced in the face of Articles 14 and 16 of the Constitution. Nor can the State Government legally take away the rights conferred and benefits, already accorded to Page 125 of 129 HC-NIC Page 125 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT the employees concerned by or under a subsequent government resolution, which expressly supersedes earlier instructions and not earlier G.R. dated 17.10.1988 by which the benefits were accorded to the employees. It also sounds absurd and baseless that employee employed on daily wage basis for 15 years would be made permanent under G.R. dated 17.10.1988 but subsequently rebranded and treated as a daily wager. The submission of learned AGP that such employees had to continue as daily wage employee, with limited benefits in terms of subsequent G.R. dated 18.7.1994 and that they were at best "permanent daily wage employees", is contradictory and has no backing of any legal provision or precedent. Therefore, there is no reason to interfere with the impugned common judgment except for the clarification made hereunder."
88. If the manner in which the respondents are implementing the judgments of this Court is permitted to continue, it would amount to "rebranding" the petitioners as parttime BWHG and treating them as they were treated before they were granted parity by the Courts, which situation cannot be permitted to be perpetrated. At the cost of repetition, when the Courts have granted parity to the petitioners with the Page 126 of 129 HC-NIC Page 126 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT fulltime BWHG and directed that they be given all service benefits that are admissible to the fulltime BWHG and State Reserve Police personnel, the petitioners cannot be discriminated against in the matter of their age of retirement and the Service Rules governing them. The respondents cannot seek to create a class within a class and treat it unequally. Subject to the clarifications in the judgment of the Division Bench dated 06.04.2011, the petitioners are required to be granted all other benefits at par with fulltime BWHG, which includes the age of retirement. It follows that once the petitioners have been absorbed, they cannot be governed by different rules than full time BWHG. This would create a disparity in the face of the parity granted by the Courts and result in undermining the above judgments of the Courts.
89. The cumulative effect of the above discussion in the context of the judgment of the Court dated 09.02.2005 and the Division Bench dated 06.04.2011, is that this Court considers it just and proper to issue the following directions:
1) The petitioners shall be made to Page 127 of 129 HC-NIC Page 127 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT
superannuate from service at the same age as the fulltime BWHG and State Reserve Police personnel with whom they have been equated by the Courts - who retire at the age of 58 years, with full retiral benefits as directed by the Courts in the earlier judgments.
2) The petitioners shall be governed by the same service rules as the fulltime BWHGs as they have now been absorbed as permanent, fulltime BWHGs.
3) Those BWHGs who have been made to retire at the age of 55 years after the passing of the judgment by the Division Bench, be given the notional benefit of calculating the age of retirement as 58 years, which shall be counted for their retiral benefits. The heirs and legal representatives of those BWHGs who have died during the pendency of Special Civil Application No.10862 of 2003 and Letters Patent Appeal No.712 of 2005 shall be given similar notional benefits.
4) The years of service put in by the petitioners before 30.07.2003 shall be counted only notionally, for the purpose of the calculation of their retiral benefits such as pension, gratuity, etc. This shall also be the case for those BWHG who were Page 128 of 129 HC-NIC Page 128 of 129 Created On Thu Oct 20 00:28:49 IST 2016 C/SCA/13923/2012 CAV JUDGMENT made to retire at the age of 55 years after the above judgments of the Courts and the heirs and legal representatives of those who died during the pendency of Special Civil Application No.10862 of 2003 and Letters Patent Appeal No.712 of 2005.
90. The petitions are allowed in the above terms. Rule is made absolute, in each petition, accordingly. Parties to bear their own costs.
(SMT. ABHILASHA KUMARI, J.) Ms.Snusha Joshi, learned Assistant Government Pleader, has prayed that the implementation of the judgment be kept in abeyance for a period of four weeks.
In view of the detailed discussion in the judgment and the reasons stated therein, the request is declined.
(SMT. ABHILASHA KUMARI, J.) (sunil) Page 129 of 129 HC-NIC Page 129 of 129 Created On Thu Oct 20 00:28:49 IST 2016