IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 10862 of 2003 For Approval and Signature: HON'BLE MR.JUSTICE K.M.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- GAJAJI GOPALJI JADEJA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 10862 of 2003 MR GIRISH PATEL, LD. SR. COUNSEL WITH MR. SHALIN N MEHTA for Petitioner No. 1-299, 301-610 MR JS BRAHMBHATT for Petitioner No. 300 MR. KAMAL TRIVEDI, LD. ADDITIONAL ADVOCATE GENERAL WITH MS. SANGEETA VISHEN, AGP, for Respondent No. 1-2 MR JITENDRA MALKAN, CENTRAL GOVERNMENT STANDING COUNSEL for Respondent No. 3 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE K.M.MEHTA Date of decision: 09/02/2005 C.A.V. JUDGEMENT 1. The petitioners - 610 in number, formally appointed by the Gujarat State under the Bombay Home Guards Act, 1947 and the Bombay Home Guards Rules, 1953, but really forming a special wing, known as Border Wing Home Guards (for short "BWHG") constituted under and governed by the Government of India's Scheme of 29.6.1979 for all border States for border duties, have filed this petition under Article 226 of the Constitution of India, praying before this Court that this Court may direct the respondent authorities namely State of Gujarat, through the Commandant General, Home Guards Headquarters, Ahmedabad respondent No.1, the Commandant No.2 Battalion, Border Wing Home Guards, Bhuj - Kachchh respondent No.2, Union of India - respondent No.3, to evolve fair, just and reasonable conditions of service for the petitioners herein and to further grant service benefits like fixation of pay, leave, over time, medical allowance, travelling allowance, retiral benefits like provident fund, pension, gratuity etc. to the petitioners along with arrears of the above-mentioned benefits since the time of their joining. 2. The petitioners further prayed that this Court may be pleased to declare the action of the respondents No.1 and 2 herein of terminating the services of 428 Border Wing Home Guards personnel out of the present group of 610, as illegal, bad and unconstitutional and to direct the respondents No.1 and 2 herein to reinstate all such petitioners in service with all consequential benefits from the date of their termination. The petitioners further prayed that this Court may issue a wit of mandamus or any other appropriate writ, order or direction to direct the respondent authorities to declare the petitioners as permanent and full-time members of the Border Wing Home Guards and to further treat them as such by paying all consequential benefits and other reliefs in this behalf. 3. It may be noted that, in this case, originally petition has been filed by the petitioners on 30th July, 2003, with voluminous record. The petitioners have filed affidavits on 30.10.2003, 28.10.2003, 25.11.2003, 2.1.2004, 19.7.2004 and 16.12.2004 from time to time. I have gathered facts from these affidavits of the petitioners. 4. As regards respondents, they have also filed affidavit in reply from time to time i.e. respondent Nos. 1 and 2 have filed affidavit in reply dated 29.9.2003, 7.10.2003, 4.11.2003, 3.12.2003, 13.7.2004, and 20.10.2004. 5. As regards respondent No. 3, an affidavit-in-reply has been filed by one Shri Pratap Singh, Assistant Director General, DGCD, New Delhi dated 6th December, 2004. BACKGROUND OF THE MATTER: 6. It may be noted that, almost on identical grounds, some of the petitioners had originally filed a petition before this Court being Special Civil Application No.9113 of 2001 along with other petitions. However, during the pendency of the petition, the learned advocate for the petitioners stated that the petitioners would like to make representation to the State Government through Commandant of Home Guards for ventilating their grievances and he seeks permission to withdraw all these petitions. However, liberty was reserved to the petitioners, if ultimately the petitioners find that the decision of the State Government is not acceptable to the petitioners. In view of the same, this petition was disposed of by this Court by order dated 28.1.2003 (page No. 119). 6.1 It appears that thereafter the petitioners made a detailed representation dated 31.3.2003 to the respondent authorities. However, during the pendency of the representation, when the respondent authority did not decide the same, however it appears that the respondent authority has tried to terminate the services of some of the Border Wing Home Guards out of group of 610, the petitioners filed present petition somewhere in July 2003. During the pendency of the petition, it appears that the representation of the petitioners dated 31.3.2003 was rejected by the respondents by their communication dated 22nd September, 2003 (page 121). 6.2 It may be noted that, as indicated above, when the aforesaid petition was pending and the affidavits and all these facts have been shown and this Court (Coram: K.S.Jhaveri, J.) has passed the order dated 22.7.2004 (see: page 458) directing the State Government to constitute a High Level Committee consisting of top Secretaries and Officers both of the State Government and the Central Government and to consider the grievances of the petitioners regarding equal treatment with the regular employee and also similar service conditions. While passing this order, the learned Judge relied upon the decision of the Apex Court in the case of Gujarat Agricultural University Vs. Labhu Bechar and others reported in 2001(3) SCC 574. 6.3 It appears that on 9.9.2004 the said Committee has also recorded/reviewed decision and rejected the contention of the petitioners without considering the basic facts of the case of the petitioner and without considering the judgement of the Hon'ble Supreme Court in the case of State of W.B. Vs. Pantha Chatterjee (2003) 6 SCC 469 and the judgement of the Hon'ble Supreme Court in the case of Gujarat Agricultural University Vs. Labhu Bechar and others (supra). The said decision of the Committee is also produced before this Court (page 462). 6.4 It may be noted that on behalf of the petitioners Shri Girish Patel, learned Senior Advocate with Shri Shalin Mehta have argued the matter at length. Thereafter Mr.Kamal B.Trivedi, learned Additional Advocate General and learned Sr. Advocate with Sangeeta Vishen, learned Advocate has also appeared on behalf of respondents No.1 and 2 and also argued elaborately and thereafter again learned Senior Counsel on behalf of petitioners replied to the said contentions. The petitioners have also filed written submissions and respondents have also filed written submissions. In view of the various contentions raised by the petitioners as well as the respondents and the affidavits filed from time to time, I will take up the contention of the petitioners and thereafter the contention of the respondents and thereafter further rejoinder of the petitioners in this behalf. Mr. Malkan, learned senior Standing Counsel appears on behalf of respondent No. 3. CONTENTION OF THE PETITIONERS: 7. It has been contended by the petitioners that the petitioners have been working round the clock for 10 to 18 years continuously for more than 300 days during the last more than 10 years and for 365 days during 5 years are simply treated as part-time "volunteers" like ordinary rural/urban Home Guards and entitled to only a fixed pay and dearness allowance but nothing else - no leave, no permanency rights, no security of job, no retirement benefits even after 20 years of almost continuous service, no gratuity, no pension, no social security. 7.1 The petitioners contended that the petitioners are treating as only part-time so-called "volunteers" entitled only to fixed pay, dearness allowance and nothing else, even after round the clock continuous service for 10 to 18 years amounts to denial of right to live with dignity under Article 21 read with Articles 39A(2), 41, 42, 43 and 46 of the Constitution of India. The petitioners further contended that though they are equal to full time members of Border Wing Home Guards in all respects, they are treated unequally, amounting to gross discrimination, violative of right to equality under Articles 14 and 16 of the Constitution of India. 7.1A The petitioners further contended that by treating them equally with ordinary rural/urban Home Guards though completely and qualitatively different in all respects amounts treating unequals equally and violation of Articles 14 and 16 of the Constitution of India. 7.2 It is the case of the petitioners that though the petitioners are appointed under the provisions of Bombay Home Guards Act, 1947 and the Bombay Home Guards Rules, 1953, really they are governed by the Government of India Scheme dated 29.6.1979 for all border States in India namely; Gujarat, Rajasthan, West Bengal, Tripura and Assam. For that purpose, they have relied upon the scheme introduced by Government of India dated 29th June, 1979, which is on page 430 of the petition (hereinafter referred to as " the Scheme"). 7.3 It is the case of the petitioners, that a bare perusal of the scheme will clearly establish that all the important aspects of the Border Wing Home Guards viz., the origin, the constitution, the organisation, method of recruitment, tests, standards, training, duties, financial structure etc. are determined by the Scheme itself. However, for implementing the scheme, the statutory framework of the State Act viz. (In present case) Bombay Home Guards Act, 1947 and the Bombay Home Guards Rules, 1953, was used. Thus, the substance is derived from the Scheme itself while the form used is of the State Act. Originally rural/urban Home Guards who have been appointed under the Bombay Home Guards Act, 1947 and the Bombay Home Guards Rules, 1953, who numbered about 45,000 as determined by the State Government are different from the Border Wing Home Guards though formed under the same Act. 7.4 The learned counsel relied upon the provisions of the Scheme and also Appendix to the said letter which provides Organisational set-up, Strength of a Section, Uniforms, Office Furnitures and Equipment, Training Grants/Training Equipment, All Arms and Ammunition, Scales pertaining to authorisation of Ammunition, Scale of POI Admissible for Planning, Basic Training, Refresher Training, Weapon Training, Advanced Training, Collective Training etc. 7.4A The petitioners' independent contentions is briefly as under: (i) The petitioners have given all the possible details about the nature of work and duties of each of the 610 petitioners, viz, how they are appointed, when they are appointed, the duties performed by them, how many years they have been working and how they have been working during each year. Thus, the petitioners have made out a strong case giving all the details of each of the petitioners. (ii) The facts presented by the petitioners are collected from the records, correspondence and the affidavits of the respondents in the present case and, therefore, they are not disputed questions of facts at all because all these facts are taken from their record and the respondents. (iii) The petitioners' entire case is based upon the nature of the Scheme of Border Wing Home Guards and how it has been implemented or not implemented in their case, by referring to the facts of the case of 610 petitioners. In this regards, the question of going beyond the statutory framework of Bombay Home Guards Act, 1947 is already answered by the Hon'ble Supreme Court in West Bengal's case where even on the basis of the Scheme but considering the facts, the Court said that the voluntary character of the services of Border Wing Home Guards is completely lost. WEST BENGAL'S CASE: 7.5 The petitioners contended that the petitioners' case is fully covered by the judgment of the Apex Court in the case of State of West Bengal Vs. Pantha Chatterjee reported in 2003(6) SCC 469. 7.6 It may be noted that this case i.e. Pantha case (supra) arose out of Part-time Border Wing Home Guards of West Bengal. When they dissatisfied with the condition of service under which they had been working and the nominal emoluments paid to them, preferred petition before the Calcutta High Court complaining that they were being discriminated vis-a-vis other regular Border Wing Home Guards of West Bengal and the Border Security Force Personnel, as the respondent writ petitioners had also been performing similar duties and discharging same responsibilities. 7.7 It may be noted that before the Hon'ble Supreme Court, the Government of India has addressed a letter dated 15th October, 1976, and framed a scheme for Border Wing Home Guards Battalion. The scheme was sanctioned by Hon'ble President of India. 7.8 It may be noted that from the facts of the case, the said scheme which has been of 1976 in almost identical with the present scheme which I am referring of 1979. In view of the same, originally, the petitioners filed a petition before the Calcutta High Court. As found from para 4 of the said judgment, the learned Single Judge has given following findings: (i) part-time members of the Border Wing Home Guards would be treated on a par with the whole-time staff of the Border Wing Home Guards. (ii) they would get all the privileges of the State armed police as extended to the full-time Border Wing Home Guards. (iii) all the benefits available to the West Bengal government servants, for example, fixation of pay, benefit of provident fund, gratuity, retrial benefits, allowances and leave etc. shall also be made admissible to the petitioners. (iv) arrears of service benefits were also directed to be given to them since the time of their joining, and (v) they were also directed to be absorbed irrespective of age bar which would stand waived. The judgment was to operate in rem covering all the part-time members of the Border Wing Home Guards. 7.8A Being aggrieved and dissatisfied with the said judgment, the State of West Bengal filed appeal before the Division Bench of Calcutta High Court. The Division Bench has confirmed the findings of the learned Single Judge, but only modified the order of the learned Single Judge to the effect that the judgment was in rem and levy of costs of Rs.1000/- for each petitioner, was set aside. 7.8B Against the judgment of Division Bench, the matter went to the Hon'ble Supreme Court. 7.8C The Hon'ble Supreme Court examined the scheme and also provisions of the Bombay Home Guards Act, 1947, and the Rules, and in para 17 the court after considering the scheme on page 481 and page 482 observed as under: 7.8C(i) "para.17 On the basis of the Scheme, as promulgated by the Government of India, the State Government with the sanction of the Governor of West Bengal raised the battalion of Border Wing Home Guards, as indicated earlier and they were to be paid from a given head of expenditure of the State Government. The Scheme, however, makes it clear that the expenditure incurred would be reimbursed by the Central Government. The Central Government should not and cannot get out of this undertaking. It is no doubt true that the State of West Bengal being in the position of an 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 the Border Wing Home Guards but this burden of expenditure must be ultimately borne by the Central Government. The petitioners have been guarding the borders of the country assisting BSF in checking the infiltration from across the border. The petitioners have been working and discharging their duties under the control of the authorities of the Border Security Force. We also find that the Central Government cannot shed its responsibility by raising a lame plea that it was because of the State Government that voluntary character of the engagement of the writ petitioners, as per the Scheme, was lost. In our view, the primary responsibility for deployment for such a long duration squarely lies upon the Central Government. The deployment was envisaged to be for a period of 3 months, to be continued, only if necessary as may be assessed by the authorities of the Border Security Force. The authority to continue the deployment beyond the period of 3 months was entrusted to the responsible authorities of the Border Security Force by the Central Government itself. There is no dispute that the writ petitioners were continued accordingly. In such a situation the State Government hardly had any choice in the matter to cease or withdraw the deployment engaged in the job of patrolling of borders under operational control of BSF." 7.8D Ultimately in para 19 on page 482 the Apex Court issued following directions and dismissed the appeal. "para 19. ... In this regard we make the specific directions to the effect that: (i) The State Government shall carry out the order passed by the High Court and clear all the consequential monetary benefits to the respondent writ petitioners within a period of 3 months from today with statement of account to be forwarded to the Central Government for reimbursement. (2) The Central Government within two months of the receipt of the said reimbursement statement shall reimburse the amount to the State of West Bengal. (3) In case there is any dispute or confusion in regard to the actual amount payable on account of reimbursement or otherwise, the same shall be sorted out between the State of West Bengal and the Central Government at the earliest but that would not be the cause of delay in payment as indicated above. (4) That there shall be no delay in payment to be made as scheduled above by the State of West Bengal to the petitioners nor by the Central Government to the State of West Bengal on account of reimbursement which may be subject to final settlement; in case of any dispute or doubt about the same, to be sorted out sooner or later between them." 8.1 The Hon'ble Supreme Court in West Bengal case has considered that the part-time Home Guards were working in the same way as the full-time staff and did not say that a lower grade of part-time Border Wing Home Guards would be doing the same duties as a higher full-time staff. What the Supreme Court did was that the full-time staff Border Wing Home Guards was performing duties appropriate to their ranks as per the Scheme for the whole year and the full-time basis. Similarly, the part-time Border Wing Home Guards were performing duties as per their ranks on a full-time basis and for all these years. The part-time Home Guards like the petitioners demand the same pay scales and benefits which are given to the appropriate ranks in the full-time staff corresponding to the people in the State Armed Police, as prescribed by the Scheme. For example, just as some of the petitioners are guardsmen, there are guards in the full-time staff and yet both are treated unequally. Similarly, there are Nayaks both part-timers as well as full-timers and both are working in the same way and yet they are treated unequally. Similarly, there are Havaldars in both part-timers as well as full-timers and yet they are treated unequally. This is a gist of the petitioners' grievance and this is what the petitioners' demand i.e. de facto the petitioners are working like full-time staff of the Border Wing Home Guards, the petitioners must be given same treatment de jure. 8.2 The facts of the present case and the facts of West Bengal case are almost identical both involve the question of respective similar Home Guards Act, the same Government of India's scheme for border States, the non-implementation of the Scheme, continuance of the petitioners for full-time duties and for long period and, therefore, and the same treatment as that of full-time staff. 8.3 The present petition is in relation to 610 petitioners and similarly situated Border Wing Home Guards in other related petitions to be jointly heard. The reliefs the petitioners claim are to be confined only to these petitioners. The petitioners do not pray and claim any benefit for 45,000 Home Guards in general because the petitioners' case is that they are completely different from the normal rural/urban Home Guards numbering about 45,000 in the State. ARTICLE 21: 8.4 The learned counsel for the petitioners has relied upon the provisions of Article 14 and Article 21 of the Constitution of India and also certain directive principles. Learned counsel for the petitioners has stated that Article 21 of the Constitution of India, namely; right to lift has been expanded by the Supreme Court in several cases that citizen has to live with one dignity. He further submitted that once the petitioners contended and proved that there is a violation of Article 14 and also Article 21 of the Constitution of India i.e. right to life as expanded by the Supreme Court in various cases, there is no limitation on the power of the High Court under Article 226 of the Constitution of India, and the relief which has been prayed by the petitioners is complete relief and this Court may give justice to the petitioners. 8.5 In support of the aforesaid contention that Article 21 of the Constitution provides right to dignity, the learned counsel has relied upon following judgments: 8.6A In the case of Francis Coralie Mullin Vs. The Administrator, Union Territory of Delhi and others reported in AIR 1981 SC 746, particularly para 6 and 7 on page 752 and 753 which reads as under: "para.6 Now obviously, the right to life enshrined in Article 21 cannot be restricted to mere animal existence. It means something much more than just physical survival. "para.7 But the question which arises is whether the right to life is limited only to protection of limb or faculty or does it go further and embrace something more. We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings." 8.6B In the case of Bandhua Mukti Morcha Vs. Union of India and others reported in AIR 1984 SC 802 particularly para 10 where the Apex Court has relied upon earlier judgment of Frances Mullin's case (supra) which I have referred where the Apex Court has further stated in para 10 on page 811 and 812 as under: "para.10 .... This right to live with human dignity enshrined in Article 21 derives its life breath from the Directive Principles of State Policy and particularly Clauses (e) and (f) of Articles 39 and Articles 41 and 42 and at the least, therefore, it must include protection of the health and strength of workers, men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief. These are the minimum requirements which must exist in order to enable a person to live with human dignity and no State - neither the Central Government nor any Statement Government has the right to take any action which will deprive a person of the enjoyment of these basic essentials." 8.7 The learned counsel for the petitioners has relied on Article 39 of the Constitution of India which provides that certain principles of policy to be followed by the State that the State shall, in particular, direct its policy towards securing (a) that the citizens, men and women equally, have the right to an adequate means to livelihood, Article 41 of the Constitution provides right to work, to education and to public assistance in certain cases. Article