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

p. 969

UNION OF INDIA & ORS. A v. PARUL DEBNATH & ORS. • (Civil Appeal No. 3379 of 2009)

MAY 6, 2009 .B

Andaman & Nicobar Island Home Guard Regulations, 1964: c Regulation 4 - Home Guards - Continuing for 12-23 ~. years - Claim for regularisation and equal pay for equal work - Directions given to authorities to frame scheme in accordance with principles laid down in Pantha Chatterjee's case - In such a scheme, question of 100% reservation would 0 not arise since the absorption of the respondents did not amount to new appointments which could have given rise to the question of reservation.

The respondents were appointed as Home Guards in the Andaman and Nicobar Islands Home Guard E Organisation in terms of Regulation 4 of the Andaman and Nicobar Islands Home Guard Regulations 1964. They filed Original Application before the Central Administrative Tribunal seeking directions to the appellants - administrative authorities to prepare an appropriate F Scheme for regularisation of their services as they were continuing in service ranging from 12-23 years without any break, and to give them on the principle of equal pay for equal work, salary at par with their counter parts in the regular organisation and in particular to those Home G Guards who were performing duties which were similar to the duties of the regular employees of the A&N Administration. The Tribunal directed. the authorities concerned to frame a scheme for absorption/ 969 H

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A regularisation/appointment of the respondents and other similarly situated Home Guards, keeping in view the local conditions and peculiar facts and circumstances of the case. On appeal, the High Court directed that the scheme - as suggested by the Tribunal be framed taking into B consideration the principles laid down by the Supreme Court in Pantha Chatterjee's1 case. Thereafter a scheme was framed by the appellants providing for reservation of 20% · of vacant posts to accommodate the respondents while setting apart 80% of the vacancies 'for c other candidates. The said scheme was challenged by the respondents in a writ petition which was dismissed by the single Judge of the High Court. However, on appeal, the Division Bench of the High Court held that the Scheme was not framed in accordance with the principles laid down in Pantha Chatterjee's case. It set 0 aside the scheme as also the judgment of the single Judge and directed the Government authorities to frame the scheme afresh in keeping with the principles enumerated in Pantha Chatterjee's case. Aggrieved, the Union of India and Andaman and Nicobar Island E administration filed the appeal.

Dismissing the appeal, the Court

H 1. 2003(1) Suppl. scr 427.

UNION OF INDIA & ORS. v. PARUL DEBNATH & 971 .... ORS . )r the judgment under appeal, it was the intention, of the A ,.. Tribunal and the High Court, as well as this Court, that the respondent Home Guards were to be absorbed in the regular establishment of the Andaman and Nicobar Islands and no new appointment was required to be made. [Para 22] [982-C-F] B State of West Bengal & Ors. vs. Pantha Chatterjee & Ors. 2003(1) Suppl. SCR 427=2003 (6) sec 469, relied on. ..i:~

1.2. It was the further intention of the Tribunal as well as the Courts that the absorption ·of the eligible c respondents were to be at one go and not in phases, as ··- has been sought to be suggested in the im,Pugned Scheme. In fact, such a procedure was neither directed by the Tribunal nor the High Court, nor this Court in Pantha Chatterjee's case. [Para 22] [982-F-G] · D > ~

2. In implementing the directions on the line of Pantha Chatterji's case, the question of 100% reservation would not arise since the absorption of the respondents did not amount to new appointments which could have given rise to the question of reservation. The Division Bench of the E High Court has very correctly observed that the intention ~ . of the Tribunal and the Courts was that the benefits to be given to the writ petitioners (respondents herein) should be extended to all of them uniformly and without making any discrimination. The very fact that some,of the F respondents would be regularized, while the others would have to wait till the next vacancies arose or the possibility that some of the candidates who were otherwise eligible, might not even be absorbed, was ~ never the intention when the directions were given to G ... frame a Scheme for absorption of the respondents. Such a course of action appears to have been adopted to negate the effect of the earlier orders and the respondents as a whole were deprived of the benefit of absorption and the further benefit of equal pay for equal H

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.... :< A work', as was indicated in Pantha Chatterjee's case. As a direct consequence of the disparity in the pay structure ... of the resp~:mdents, who were to be absorbed in stages, their post-retiral benefits would be affected and would not be uniform, which was also not intended when directions B were given for framing of Scheme to a absorb the respondents. (Para 22] [982-G-H; 983-A-D]

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

commented upon by the Division Bench of the High Court, denies to the. respondents any benefit other than c those specified in the· Scheme, thereby creating a class within the class,. which is not only contrary to Article 16 of the Constitution but is also contrary to the directions given by the High Court regarding absorption of the existing Home Guards. Even clause (i) is arbitrary and D discriminatory in nature as it contemplates a situation .... where some of the respondents who were otherwise ~

eligible, may not at all be absorbed in the regular administration which would disentitle them to the benefits of the directions given by the Central E Administrative Tribunal and the High Court. (Para 23] (983- D-F]

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

Divisional Manager, Aravali Golf Club and another vs. ... H Chander Hass and another 2008 sec 683; Moo/ Raj

UNION OF INDIA & ORS. v. PARUL DEBNATH & 973 ORS. -o(

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

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

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

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

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

The Judgment of the Court was delivered by

ALTAMAS KABIR, J. 1. Leave granted.

., 2. In exercise of powers conferred by Article 240(1) of the G .... Constitution of India, the President of India promulgated the "Andaman & Nicobar Islands Home Guard Regulation, 1964" (hereinafter referred to as "the 1964 Regulation"). In terms of Regulation 16 of the said Regulation, the then Chief H

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).._ A Commissioner (now Lieutenant Governor), A&N Islands, ~ framed the "Andaman & Nicobar Home Guard Rules, 1965" f (hereinafter referred to as "the 1965 Rules") for providing a --"

voluntary organization named as "A&N Islands Home Guard Organization" for use in emergency and for other purposes in B the Union Territory of the Andaman & Nicobar Islands. ,

3. The respondents herein were appointed on different dates as members of the said Home Guard Organization under "-""- Regulation 4 of the said Regulation for periods of three years and since then they were continuously made to perform duties c of a regular nature. They were also deployed to work under the operational control and supervision of the A&N Police and the overall control of the A&N Administration, without any break. From the tabulated statement forming part of the writ petition filed by the respondents, it appears that the respondents have D been working for periods ranging from 12 years to 23 years. Inasmuch as, the respondents claimed to be performing works _.~ of a permanent nature, but were treated differently from the regular employees of the same organization, they claimed equal pay for equal work with the regular Home Guards or for E , regularization of their services. 1

4. Aggrieved by the differential treatment meted out to them in comparison to their counterparts in the regular administration, the respondents filed two Original Applications, ..,,,. ;:.. F being OA No.122/A&N/1999 (Parul Debnath & Ors. Vs. Union of India & Ors.) and O.A. No.28/AN/2002 (S. Selva Raj & Ors. Vs. Union oUndia & Ors.), before the Central Administrative Tribunal, Calcutta Bench, Circuit Bench at Port Blair, for directions to be issued to the respondents herein to prepare an appropriate/ reasonable scheme- for regularization of the G services of the Home Guards, who had been working for several ·:!' years and to give them equal pay for equal work in relation to •./

their counterparts in the regular organization and in particular to those Home Guards who were performing duties which were similar to the duties of the regular employees of the A&N H

-i

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

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

5. The Tribunal disposed of the said Original AppHcations

.. by passing a common order dated 16th September, 2002, inter alia, with-a direction to the respondents, and in particular the Union of India, the Respondent No.1 before the Tribunal, to 8 consider the framing of an appropriate Scheme, in consultation with the A&N Islands Administration, for absorption/ .J..~. regularization/ appointment of persons like the respondents lllS' herein wh_o had been working as Home Guards for a number of years. While framing the Scheme, the Respondent No.1 was directed to keep in view the observations made in paragraph c 7 of the order to suit local conditions, keeping in mind the particular facts and circumstances of the case. It was provided that the said action should be taken by the appellants herein within six months from the date of receipt of a copy of the order. D •• 6. The said order dated 16th September, 2002, of the Central Administrative Tribunal, was challenged by way of two writ petitions, being WPCT No.73 of 2003 (Union of India & Ors. Vs. Parul Debnath & Ors.) and WPCT No.158 of 2003 - (Union of India & Ors. Vs. S. Selva Raj & Ors.), before the E f Division Bench of the Calcutta High Court, Circuit Bench at Port Blair. The said two writ petitions were disposed of by a common judgment and order dated 16.12.2003. While disposing of the _. .. w writ petitions, the High Court, apart from considering the nature of the work performed by the respondents, also took into F consideration the decision of this Court in State of West Bengal & Ors. vs. Pantha Chatterjee & Ors. [2003 (6~SCC 469], where'n in a similar situation certain directions had been given by this Court for framing a Scheme for similar purposes, and direct~d the appropriate authority to frame a Scheme as G ~ directed by the Tribunal and while doing so to take into consideration the principles laid down in Pantha- Chatterjee's case (s.upra).

7Copy pinpoint7. f\fter the orders passed by the Circuit Bench of the c Calcutta. t-iigh Court at Port Blair in WPCT No. 73 of 2003 and H

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i ' 976 SUPREME COURT REPORTS [200~] 9 S.C.R. ,,_ " A WPCT No.158 of 2003, one Manoj Kumar Singh and others, who were similarly situated as the respondents herein; moved • -· a writ -petition, being WP No.22 of 2004, before the'. Single Bench of the Calcutta High Court, which was disposed of on 18th March, 2004, with a direction upon the respond~nts to consider the case of the writ petitioners in accordance with the -- ,,.... B -> ratio of Pantha Chatterjee's case (supra). Special Leave Petitions filed by the Union of India against the orders ppssed by the Circuit Bench of the Central Administrative Tribunal, ·--+- >:___ Calcutta Bench, as well as the Single Judge of the High Court, )

( c being SLP(C) No.14859 of 2004 and SLP(C) No.CC 7017/ 2004, were dismissed at lhe threshold on 9th August, 2004 and 30th August, 2004, respectively. Thereafter, on 5th April, 2005, .. a Scheme was framed by the appellants herein, which provided for reservation of 20% of the vacant posts to accommodate the respondents in a phased manner, while setting apart 80% of D the vacancies for other candidates. The Scheme, as framed, was challenged by the respondents herein in Writ Petition . ~

No.195 of 2005 before the learned Single Judge, who by his judgment and order dated 28th July, 2006, dismissedthe said writ petition upon holding that the Scheme had been Cramed E by the Government Authorities having due rega(d to the principles laid down in Pantha Chatterjee's case (s~pra).

8Copy pinpoint8. The matter was taken to the Division Bench jn appeal, w ;. being MAT No.25 of 2006. On being convinced that the Scheme .,.... F had not been framed in accordance with the views expressed in Pantha Chatterjee's case (supra), the Division s·ench by judgment and order dated 22nd January, 2007, not only set aside the Scheme framed on 5th April, 2005, but \also set aside ' -

the order of the learned Single Judge dated 28th July, 2006, G whereby the writ petition had been dismissed. The Division r Bench directed the Government Authorities to frame the ~

Scheme afresh in keeping with the principles enunciated in Pantha Chatterjee's case (supra).

9Copy pinpoint9. The instant appeal has been filed by the Union of India, H

UNION OF INDIA & ORS. v. PARUL DEBNATH & 977 ORS. [ALTAMAS KABIR, J.] ... ), the Lieutenant Governor, A&N Islands, Port Bl~ir and other A authorities of the Islands' Administration, alleging that the Division Bench of the High Court had erroneously reversed the judgment of the Single Judge despite the fact that the Scheme had been framed as per the directions of the Court in keeping with the principles set out in Pantha Chatterjee's case (supra). B

10Copy pinpoint10. Appearing in support of the Appeal, Mr. S.K. Dubey, ~ -· learned Senior Advocate, drew the attention of the Court to the observations made in paragraphs 7 and 8 of the order of the Central Administrative Tribunal holding that having regard to earlier orders passed by the Delhi High Court for preparation c of a Scheme to cover Home Guards in similar situations, it would be appropriate for the Union of India to contact the Government of NCT Delhi to examine the matter and, if . necessary, modify the Scheme to suit local co.nditions. Mr. Dubey pointed out that the claim of the respondents herein for D > .i pay parity on the principle of 'equal pay for equal work' had been negated having regard to the provisions of the 1.964 Regulation and the Rules framed thereunder in 1965. ·In addition, the question ·of regularization of the services of the· respondents would not also arise as they w~re not working E against sanctioned posts. ']\ ~

11Copy pinpoint11. It was urged on behalf of the appellants that if all the vacancies were to be filled up from amongst the respondents, it would amount to 100% reservation, which is contrary to F Articles 14 and 16 of the Constitution.

12Copy pinpoint12. Drawing attention to the Scheme formulated pursuant to the directions given by the Division· Bench. of the High Curt in WPCT No. 73 of 2003 and WPCT No: 158 of 2003, Mr. <- Dubey submitted that having regard ·to the compulsions of G · Articles 14 and 16 of the Constitution, it was decided to give effect to the directions of the High Court regarding absorption -of the respondents in a phased manner. Mr. Dubey submitted that such a course of action would not only enable the authorities , to implement the directions of the High Court, but to also comply H I - •

p. 978

... with the requirements of Articles 14 and 16 of the Constitution. .( A It was in keeping with such .a policy decision that in the Scheme ~ it was. provided that of. the vacancies occurring in any year, t-- including.the existing vacancies in all Group D posts under the A&N Administration and in the post of Constable in Group C " B under. the A&N Police Department, 20% thereof would be earmarked for the· Home Guards, who were enrolled and had completed at least five years of continuous services and fulfilled the eligibility conditions, including educational qualifications . -~

prescribed in the Recruitment Rules/Andaman & Nicobar Police c Manual, 1963. Mr. Dubey pointed out that in the Scheme it was also provided that the 20% quota would continue till such time ~

as all the existing Home Guards fulfilling the eligibility conditions for absorption under the Scheme were absorbed. Mr. Dubey submitted that by its order dated 22.1.2007, the Division Bench .of the High Court in MAT No.25 of 2006, erred in quashing the D Scheme, as framed, upon holding that the same was not in -\- conformity with the directions of the High Court or the directions ... inPantha.Chatterjee's case (supra). Mr. Dub~y submitted that the Di.vision Bench, while allowing the above-mentioned writ I petitions· on 16th December, 2003, directed the authorities to • E frame a Scheme and while doing so, to take into consideration ; the principles laid down in Pantha Chatterjee's case (supra). Mr. Dubey urged that there was no direction that the Scheme ,;y' . )

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

enunciated in the ·said case, but to. take the same into F consideration while framing the present Scheme.· ) "

13Copy pinpoint13. Mr. Dubey submitted that in order to strike a· balance ' between the constitutional provisions and the directions given , t,.-:-

'I- both by the Central Administrative Tribunal and the High Court, G the authorities framed the instant Scheme which they thought would ·take care of both the conditions. It was also urged that ~

the direction given for creation of supernumerary posts to provide for absorption of the existing Home Guards had been deprecated by this Court on several occasions in view of the ~

financial implications on the State Administration in the creation H-

UNION~OF INDIA & ORS. v. PARUL DEBNATH & 979

• f ...., ! ORS. [ALTAMAS KABIR, J.]

of such posts and the infrastructure to go along with it. In this regard, reference was made to the decision of this Court in Divisional Manager, Aravali Golf Club and another vs. A

Chander Hass and another [2008 (1) SCC 683], wherein, since in spite .of the fact that there were no sanctioned posts of tractor drivers against which the respondents could be B regularized, directions had been given to create such posts and to regularize the services of the claimants against the said .}_~. newly-created posts, this Court was of the view that such a direction was completely beyond the jurisdiction of the Courts. Further observations were made to the effect that the Court c cannot direct 'the creation of posts since the same is the prerogative of the executive or the legislative authorities and the Court cou.ld not arrogate to itself this purely executive or legislative function and direct creation of the posts in the organization. It was also observed that this Court has, time and D again, pointed out that the creation of a post is an executive ~ .) and legislative function as it involves economic factors .

14Copy pinpoint14. In support of his submissions regarding phase- wise absorptiofl, Mr. Dubey referred to the decision of this Court in the case of Moo/ Raj Upadhyaya vs. State of Himachal E --<. Pradesh [1994 (Supp.) 2 SCC 316), in which, in a similar situation, a Bench of three Judges of this Court observed that ...,:._ having regard to the additional financial implications that may ~ be incurred by the proposed Scheme for regularization, as modified,· the State should not be burdened with the financial F implications arising out of payment of arrears for the period mentioned therein. It also approved the Scheme which included the decision to regularize the daily-wage/muster-roll workers in a phased manner on the basis of seniority-cum-suitability. Mr. Dubey also referred to another decision of this Court in Gujarat G ''· Agricultural University vs. Rathod Labhu Bechar and others [2001 (3) SCC 574], wherein also this Court permitted the regularization of a large number of daily-rated labourers to be effected in a phased manner. Mr. Dubey lastly referred to the decision of this Court in State of Manipur and another vs. KSH. H

p. 980

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

15Copy pinpoint15. Mr. Dubey submitted that the judgment and order of the learned Single Judge did not warrant any interference by ··+- the Division Bench, and, accordingly, the judgment under c appeal was liable to be set aside and the scheme as framed was liable to be approved.

16Copy pinpoint16. Mr. Dubey's submissions were hOtly contested by Mr. B.K. Das, learned Advocate, who contended that the Scheme, D as framed, was only.meant to pay lip-service to.the directions given by the Tribunal as well as the High Court and had been rightly quashed by the Division Bench in MAT No.25 of 2006. ..-¥ He urged that the directions as given by the Division Bench while disposing of the writ petitions spe~ifically directed the E authorities to frame a Scheme in keeping with the principles enunciated in Pantha Chatterjee's case (supra) since the , decision of the Tribunal was justified. Since the said direction is relevant for disposal of this appeal, the same is extracted );-' hereinbelow :- ;.

F "The appropriate authority shall frame a Scheme as directed by the learned Tribunal, if necessary, by issuing an appropriate Notification for the purposes mentioned in the order appealed against. When the ~cheme is to be formulated, the appropriate authority shall take into G consideration the· principles laid down in the decision in ;>.. Pantha Chatterjee (supra)." \

17Copy pinpoint17. Mr. Das submitted that from the above directions, it ' ·would be crystal clear that it was the intention of the High Court H that the Scheme as contemplated should be formulated after '

'' UNION OF INDIA & ORS. v. PARUL DEBNATH & 981 ORS. [ALTAMAS KABIR, J.] - ~ taking into account the principles laid down in Pantha A Chatterjee's case (supra). He submitted that otherwise, if that were not the intention, reference to Pantha Chatterjee's case (supra) was redundant. Referring to the Scheme, as framed, Mr. Das urged that it was the intention, both of the Central Administrative Tribunal as also of the High Court, that all the B respondents had to be absorbed together and not in instalments, as has been sought to be done in the Scheme as ~- framed by the authorities. Furthermore, the directions given being for absorption, it only required regularization of the services of the respondents and not new appointments and c hence the question of reservation on any count is not applicable in the facts of the instant case.

18Copy pinpoint18. Mr. Das submitted that the Scheme as framed was not in keeping with the directions given by the Division Bench and it had been wrongly claimed on behalf of the appellants that in D ·> ,l the absence of any specific directions, they were not required to fr~me the Scheme on the basis of the observations made in Paf]tha Chatterjee's case (supra). Mr. Das urged that if every portion of the Scheme were to be analyzed carefully, it would be evident that the same had been framed in a manner which was contrary to the directions given by the Division Bench while disposing of the writ petitions and not also in keeping with the '... views expressed in Pantha Chatterjee's case (supra). Mr. Das urged that in the Scheme an attempt had been made to create a divide within the same class of Home Guards whose cases fall within the scope of the directions given by the Division Bench, which was not its intention.

19~ Reference was made to the decision of this Court in Baburam vs. C.C. Jacob and others [1999 (3) SCC 362], ~ G wherein it was laid down that the prospective declaration of law by the Supreme Court under Article 141 of the Constitution is to a\loid reopening of settled issues and to prevent multiplicity of proceedings. Accordingly, once the matter relating to the regularization of the services of the Home Guards had been H

982 SUPREME COURT REPORTS [2009] 9 S.C.R. ,,>

A decided finally in Pantha Chatterjee's case (supra), it was no { - longer open to the Central Government to frame a Scheme to defeat the said decision.

20. It was urged by Mr. Das that the decision of the Division Bench did not warrant any interference. B

21. Having considered the submissions made on behalf of the respective parties, we are inclined to accept Mr. Das's -4- submissions, which were in support of the decision of the Division Bench of the Circuit Bench of the Calcutta High Court c at Port Blair.

22. Firstly, we are in agreement with Mr. Das and the Division Bench of the High Court that the intention of the earlier Division Bench while disposing of the two writ petitions filed D by Manoj Kumar Singh and others was that the Scheme was to be framed not only in terms of the directions given by the ¥

Central Administrative Tribunal, but also in the light of the views " expressed in Pantha Chatterjee's case (supra). A glance at the Scheme framed makes it very clear that the same had not been framed in terms of the directions given by the Division Bench E and also this Court and certainly not in 1keeping with the decision in Pantha Chatterjee's case (supra). As has been very rightly pointed out in the judgment under appeal, it was the intention, .,.. ).. both of the Tribunal and the High Court, as well as this Court, that the respondent Home Guards were to be absorbed in the 'F regular establishment of the Andaman & Nicobar Islands and no new appointment was required to be made. It was, therefore, the further intention of the Tribunal as well as the Courts that the absorption of the eligible respondents were to be at one go and not in phases, as has been sought to be suggested in the proposed Scheme. In fact, such a procedure had neither been directed by the Tribunal nor the High Court, nor this Court in Pantha Chatterjee's case (supra). As a result, the question of 100% reservation would not arise since the absorption of the respondents did not amount to new appointments which could have given rise to the question of reservation. In our view, the

UNION OF INDIA & ORS. v. PARUL DEBNATH & 983 ORS. [ALTAMAS KABIR, J.] Division Bench has very correctly observed that the intention of the Tribunal and the Courts was that the benefits to be given to the writ petitioners (respondents herein) should be extended to all of them uniformly and without making any discrimination. The very fact that some of the respondents would be regularized, while the others would have. to wait till the next vacancies arose or the possibility that some of the candidates who were otherwise eligible, might not even be absorbed, was never the .. - intention when the directions were given to frame a Scheme for absorption of the respondents. In our view, such a course of action appears to have been adopted to negate the effect c of the earlier orders so that the respondents as a whole were deprived of the benefit of absorption and the further benefit of 'equar pay for equal work', as was indicated in Pantha Chatterjee's case (supra). As a direct consequence of the disparity in the pay structure of the respondents, who were to D -1. be absorbed in stages, their post-retiral benefits would be ~ affected and would not be uniform, which was also not intended when directions were given for framing of Scheme to absorb the said respondents 23. Clause (h) of the Scheme, which has been commented upon by the Division Bench of the High Court, E denies to the respondents any other benefit other than those specified in the Scheme, thereby creating a class within a class, which is not only contrary to Article 16 of the Constitution but is -,., ..I\ also contrary to the directions given by the High Court regarding absorption of the existing Home Guards. Even clause (i) is arbitrary and discriminatory in\ nature as it contemplates a F situation where some of the respondents who were otherwise eligible, may not at all be absorbed in the regular administration which would disentitle them to the benefits of the directions given by the Central Administrative Tribunal and the High Court. G "'· 24. On the question of creation of supernumerary posts, it may be indicated that while it is no doubt true that creation of po~ts is the prerogative of the executive, in order to meet certain special exigencies such a course of action has been resorted to by this Court and in our view this is one such case H

p. 984

A where such a direction does not need any intervention.

25. In such circumstances, we see no reason to interfere with the judgment impugned and the appeal is accordingly dismissed. 8 26. The appellants and those concerned are directed to implement the directions given by the Division Bench in the impugned judgment within three months from the date ·of communication of this order.

C R.P. Appeal dismissed.