K. M. MEHTA, J. ( 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 Indias 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. 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 ). 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 ). 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. 3. 2003 was rejected by the respondents by their communication dated 22nd September, 2003 (page 121 ). 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 . 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 Honble Supreme Court in the case of State of W. B. Vs. Pantha Chatterjee (2003) 6 SCC 469 and the judgement of the Honble 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 ). 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. 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. 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. 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. 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" ). 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. 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. 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. 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. (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 Honble Supreme Court in West Bengals 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 BENGALs CASE: 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 . 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. It may be noted that before the Honble 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 Honble President of India. 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. (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. 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. Against the judgment of Division Bench, the matter went to the Honble Supreme Court. The Honble 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: (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 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. "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. (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 ) THE Honble 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. 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. 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 Indias 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. 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: 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. In support of the aforesaid contention that Article 21 of the Constitution provides right to dignity, the learned counsel has relied upon following judgments: In the case of Francis Coralie Mullin Vs. In support of the aforesaid contention that Article 21 of the Constitution provides right to dignity, the learned counsel has relied upon following judgments: 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. "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 Mullins 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. 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. "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 42 of the Constitution provides provision for just and humane conditions of work and maternity relief. Article 43 of the Constitution provides living wage etc. for workers. Article 46 provides promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker Sections. ( 9 ) RELYING on the scheme of the Act and the judgement of the Honble Supreme Court, the learned counsel for the petitioners has made the following submissions: The petitioners have also contended that they have made out a strong case as pointed out following factors which support their case. (i) what the petitioners have pleaded in the petition and what the petitioners have averred regarding the facts of their case are taken from the records, correspondence and the affidavits filed by the respondents. (ii) the 610 petitioners of the present petition belong to No. 2 Battalion - "b" for Kachchh-Bhuj. The details of each petitioner are given in Annexure-B (page 38 onwards ). The said annexures shows the names of all the petitioners, their sanad number, the designation, the birth date, age, date of recruitment, training and the percentage of presence every year. This table is certified by the Company Commander. This table at Annexure-B is important particularly for three things: (i) the designation of each petitioner which he is holding, (ii) from which year they are working, and (iii) percentage of their presence throughout the year for each of these years which is almost 84% to 90%. This table is certified by the Company Commander. This table at Annexure-B is important particularly for three things: (i) the designation of each petitioner which he is holding, (ii) from which year they are working, and (iii) percentage of their presence throughout the year for each of these years which is almost 84% to 90%. (iii)The table at Annexure-B would show that all the petitioners except 48 have been recruited from 1980 onwards and before 1995 and all have therefore put in more than 10 years of service. The 48 persons in the table were recruited after 1995 as under:39 in 1995 1 in 1996 2 in 1997 5 in 1999 and 1 in 2000 - 48 (iv) the method of recruitment of the petitioners is in detail described in para 8 on page 17 and it is not disputed by the respondents. Two specimen copies of the appointment orders are given in Annexure-A (Page 36 ). This will show that all the petitioners have been regularly recruited as per the procedure adopted by the Government after inviting names, test, interview, fulfillment of physical and other standards, training and regular appointment orders. Thus, it is also admitted by the respondents that after fulfilling the educational and physical standards, the petitioners have been recruited. (Para 17 - page 109 ). Thus, the petitioners appointment as Border Wing Home Guards is perfectly legal, regular and proper after complying with the procedure and selection and their appointment is not irregular nor illegal nor contrary to the method of selection and not by way of back-door entry. (v) all the petitioners were directly appointed as Border Wing Home Guards from the respective years of recruitment. Before their recruitment as Border Wing Home Guards, they were not working as ordinary Home Guards and thus, none of them has been taken from the regular rural/urbal Home Guards. (See page 149) which shows a chart containing "a" company year of working yearly embodiment and yearly disembodiment and Number of days showing disembodiment. The learned counsel for the petitioners has relied upon the affidavit of Gajaji Kupaji Jadeja dated 2. 1. (See page 149) which shows a chart containing "a" company year of working yearly embodiment and yearly disembodiment and Number of days showing disembodiment. The learned counsel for the petitioners has relied upon the affidavit of Gajaji Kupaji Jadeja dated 2. 1. 2004 particularly para 8 and para 9 where the petitioner has reiterated earlier facts which have been set out in this behalf and other correspondent ensue between the department, and it has been reiterated that in view of scheme of Border Wing Home Guards in Gujarat which clearly contemplates steps were required which provides state units as ancillary to defence board and in checking and preventing infiltrators. (vi) the selection of the Battalions, the organisation and the strength of the 2 Battalions in Gujarat originally established are determined by the Scheme and are described on page 105 (9) their reply and page 443. Thus, battalion No. 2 to which the petitioners belong includes 6 Companies known as "a" (Alfa - 101 members), "d" (Bravo - 104 members), "c" (Charlie - 101 members), "d" (Delta - 100 members), "e" (Echo 99 members) and "f" (Foxer 105 members ). All these are described as part-time Guardmen. The total is 708. As per the Scheme, each Battalion has 6 companies, each Company has 3 Platoons, each Platoon has 3 Sections and each Section has 3 Guards. It is also specified in the Scheme that each Company will have 118 guardsmen and 10 full-time members. The scheme itself describes the number of full-time members and the number of part-time guardsmen and the various designations. (vii)The scheme specifically provides that recruitment of Border Wing Home Guards will be from border areas within 5 to 15 miles from the international borders and any deviation must be after consultation with the Central Government. The petitioners also have been recruited from the border areas of Kachchh and Bhuj. (See the Scheme at page 430 and the respondents reply on page 224, para 2 ). (viii)Pay Scale : The pay scale of the Border Wing Home Guards is also determined by the Government of India under the Scheme. The full-tile members of the Border Wing Home Guards are to be given the pay scales of the State Armed Police. (See the Scheme at page 430 and the respondents reply on page 224, para 2 ). (viii)Pay Scale : The pay scale of the Border Wing Home Guards is also determined by the Government of India under the Scheme. The full-tile members of the Border Wing Home Guards are to be given the pay scales of the State Armed Police. So far as the part-time Border Wing Home Guards are concerned, normally they are paid honorarium but during the period of embodiment (i. e. when they are actually working) and during training, they will be paid pay scales at the minimum scale appropriate to their ranks and rolls in the State Armed Police. (See page 140 Government of Indias letter dated 4. 10. 2003) addressed to Chief Secretariats of all Border States. They are equated with their ranks with the State Armed Police. (page 110 - para 19 their reply ). They are also paid the scales of 4th and 5th Pay Commissions. (page 16, para 7 and page 19 ). (ix) expenses : As per the Scheme, 75% expenses of the establishment will be borne by the Central Government and 25% by the State Government. (See Scheme - page 431 and admitted by the respondents on page 224 ). The Scheme also provides that if the Border Wing Home Guards are to be used by the State Government for their own purposes, that would be only after previous clearance from the Central Government and 100% expenses will be borne by the State Government. (x) duties : The Government of Indias Scheme of 1979 specifically provides the purpose for which the special duties to be entrusted to the Border Wing Home Guards in addition to the duties of normal Home Guards. These duties are patrolling, preventing infiltration, watching border movements, smuggling, law and order in border villages, keeping morale of the people in the border villages etc. The special duties are border duties connected with the national security and by way of working as auxiliary to Border Security Force. (See Government of Indias Scheme page 432 ). The important points in connection with the special duties of the Border Wing Home Guards are as under:a. The entire Scheme of the Government of India is not given by the respondents who in their affidavit say that such disclosure would jeopardies national security. (Page 115 - para 25 ). (See Government of Indias Scheme page 432 ). The important points in connection with the special duties of the Border Wing Home Guards are as under:a. The entire Scheme of the Government of India is not given by the respondents who in their affidavit say that such disclosure would jeopardies national security. (Page 115 - para 25 ). b. Border Wing Home Guards are to be recruited from border areas, and, therefore, no rural Home Guards are appointed in the border areas. (Page 108 - para 13 ). c. Border Wing Home Guards are used in emergencies, for example, Kargil war, infiltration of terrorists through rann and coastal areas. (Page 112 - para 20 ). d. The Border Wing Home Guards are used whenever national security demanded, such as threat of war. (Pages 116-117, para 27 ). e. The large number of correspondence from the officer to the lower strata have been produced by the petitioners on page 280 onwards which throw light on the nature and the kinds of duties performed by the Border Wing Home Guards in relation to the borders and border areas and the method of working under Army or Border Security Force, etc. (The letters are addressed by Battalion Commandant to Company Commandant ). f. The Border Wing Home Guards has been described as paramilitary force. (See letter of 4. 7. 1995, page 206 and 207 ). (These letters are addressed by Battalion Commandant to Platoon Havaldar ). g. It has also been admitted by the respondents that the Border Wing Home Guards have worked as auxiliary to Border Security Force from 1986 to 1992. (See page 444 ). h. They are working under the direct control of Army in times of emergencies on the border. (See letters of 22. 1. 2002 and 31. 5. 2002 - page 439 and 440 letters addressed by Battalion Commandant to Company Commandant ). i. The petitioner Border Wing Home Guards have been posted on or near the borders for performing various kinds of border duties and the distance of the outpost at which they were posted is described on page 423. (Show the distance and station ). Training: the specific training appropriate to the Border Wing Home Guards is prescribed by the Scheme of the Government of India which requires regular and continuous training. This training is mandatory and not irregular or intermittent. (Show the distance and station ). Training: the specific training appropriate to the Border Wing Home Guards is prescribed by the Scheme of the Government of India which requires regular and continuous training. This training is mandatory and not irregular or intermittent. (See pages 330, 381, 437 and 438 ). The mandatory character of the training is emphasised by the respondents themselves on page 142 though they contradict themselves by saying that the training is not mandatory but it is irregular and intermittent. [page 381 - (vii)]. It has been reiterated by the petitioners in the affidavit of Gajaji Jadeja dated 2. 1. 2004 particularly pages 415 to 417 in which it has been stated that none of the petitioners herein to pursue their vocation right from their inception and in fact advance training as contemplated in scheme of Border Wing Home Guards in Gujarat is given to petitioners and even training given to the petitioners various topics i. e. basic training, collective training and advance training. Embodiment and Disembodiment: (i) the policy of the Government of India includes the concept of embodiment and disembodiment and the purpose of disembodiment at regular intervals was to impress upon the Border Wing Home Guards of the voluntary character of the services. There is no dispute regarding the concept of embodiment and disembodiment so far as the Scheme is concerned. (ii) the very concept of embodiment and disembodiment is peculiar to the Border Wing Home Guards who are to be engaged for a long period but this concept is alien to the normal rural/urban Home Guards working in the State who are called out for duty for very short period, sometimes a day or two or a few days for performing civic duties. (iii)The policy also includes the minimum number of days the Border Wing Home Guards are to be disembodied but this was not done continuously, and therefore, letters were written to the officers to comply with the standards of disembodiment. These letters are at Annexure-C letters of 3. 2. 1993 and 5. 9. 1997 addressed by Battalion Commandant to Company Commandant ( page 83, 84 ). These letters are very important for the purposes of the petitioners case as they point out that the petitioners were not disembodied for long even though policy might have required it. These letters are at Annexure-C letters of 3. 2. 1993 and 5. 9. 1997 addressed by Battalion Commandant to Company Commandant ( page 83, 84 ). These letters are very important for the purposes of the petitioners case as they point out that the petitioners were not disembodied for long even though policy might have required it. (iv) even during emergencies, the period of regular disembodiment has been drastically reduced to 10 days. (see page 369 - letter dated 21/25. 9. 2002) addressed by Battalion Commandant to Company Commandant ). The petitioners case is based upon the facts of the present case, viz, that though the embodiment and disembodiment are part of the Government of Indias Scheme, the petitioners were not disembodied for very long periods and were required to work continuously on full-time basis for very very long period. The petitioners have substantiated this on the following data: the table at Annexure-B shows the name of employee, serial no, designation, date of birth, date of employment, year of training and also No. of percentage of presence of each of the petitioners. The table reveals that in no. of cases present is more than 90%. The respondents table at page 92 onwards showing the company-wise embodiment. The respondents table on pages 149 to 160. (This table shows the name of company, yearly embodiment, yearly disembodiment and no. of days of disembodiment ). The petitioners chart prepared on the basis of the respondents table from 1985 to 2003. (Page 362/363) (For Company `a, Year, Present of Embodiment and Present of Disembodiment ). The petitioners continuous engagement every year. (See pages 226 to 228 ). This shows year, specification of the emergent situation, requisition for Central and State Government. All these tables show that the petitioners have worked for 300 days in last 15 years and 365 days in 5 years. This is admitted by the respondents on page 233 by saying that simply because for some time they have been engaged for more than 300 days does not change the character of their services. The long time embodiment of the petitioners has not been denied by the respondents. (See pages 381, 387 and 388 ). The respondents have stated that for various reasons such as emergencies and disturbances, the petitioners were required for long period. The long time embodiment of the petitioners has not been denied by the respondents. (See pages 381, 387 and 388 ). The respondents have stated that for various reasons such as emergencies and disturbances, the petitioners were required for long period. The concept of embodiment and disembodiment is in relation to a Company, and the respondents have given data regarding company-wise embodiment and disembodiment. When it was pointed out that the petitioners have been working through out the year for large number of years, the respondents have come forward with a new defence that though the company might have embodied, the individuals may have been disembodied but they have not even cared to give some examples out of 610 petitioners to show that these people were disembodied for a long period. They simply makes a sweeping statement that individuals may have been disembodied. The complete date are with them and they could have easily disproved the petitioners case. On the other hand, the petitioners have shown in their table "b" (page 38) the percentage-wise presence of each petitioner in a year and they have not disproved it by giving some data regarding even few petitioners. The petitioners averment is that they have been paid for all this period. Now if the respondents contention is that the individual guardsmen might have been disembodied and were disembodied, naturally they would not have been paid for the days of embodiment. As against this, the petitioners say is that they have been paid. If the Governments contention is right, the respondent Government would have come out with the audited statement showing how many guardsmen were not actually paid for how many days. These auditors statements are required to be submitted to the Central Government under the Scheme but the respondents have not done any of these things. No common man would say that he has been paid though he is not actually paid. It is the duty of the respondents to show that the Government has not paid to the individual guardsmen during the period of disembodiment and if they have been disembodied and yet paid, the serious question arises to whom the payment was paid. The petitioners have made specific averments and allegations regarding this on page 418 (para 20) and page 427 on para 32 and respondents have not denied it. The petitioners have made specific averments and allegations regarding this on page 418 (para 20) and page 427 on para 32 and respondents have not denied it. Even their own letters show that because of the petitioners long embodiment, the petitioners were not able to discharge their domestic duties and, therefore, the letters pointed out that at least the petitioners should be allowed to go home for doing their domestic duties. Reference of these letters dated 3. 1. 98, 8. 7. 98 28. 12. 98 and 18. 12. 2001 are made on pages 270 and 271. Petitioners have also referred to letter dated 13. 4. 98 addressed to Deputy Commandant to Company Commandant (Page 340) and letter dated 4. 7. 98 addressed by Battalion Commandant to Company Commandant (Page 372 ). The petitioners case is that they have continued to work on full-time basis from year to year - 300 days for last 10 to 15 years and for 5 years for 360 days. Therefore, there was no scope for the petitioners for going back to their home and assume their normal occupation or business. The Scheme theoretically does envisage this that Home Guards should be called for duty on some occasions and afterwards they can always go back for their personal work. This is why an undertaking was required for normal rural/urban Home Guards when they were appointed as Home Guards. Such normal rural/urban Home Guards are expected to discharge civic duties as citizens, and therefore, even persons serving in private jobs may also volunteer to work as Home Guards and the volunteers only because such rural/urban Home Guards are called for duties on few occasions on a very few days, such as traffic duties and sometimes for local disturbances. In such a case, it is understandable that as soon as their work is over, they go back to resume their private work but in the case of the petitioners, they were required to perform duties round the year on full-time duties for large number of year. It would be practically impossible for them to go back to their villages and to resume their normal occupation because the Border Wing Home Guards are required to work even for very long period. It would be practically impossible for them to go back to their villages and to resume their normal occupation because the Border Wing Home Guards are required to work even for very long period. The letter pointed out by the petitioners regarding minimum number of days at page 83 shows that the minimum number of days of disembodiment should be 10 days in 3 months. Even this was not complied with but even if the persons are required to be disembodied for minimum number of 10 days in 3 months, it is inconceivable that they would be able to resume their occupation for 10 days in 3 months. These 10 days really meant for discharging their family duties and not for normal occupation which is impossible. All these important points mentioned above would clearly show that the petitioners have made out a very strong case giving full details about the age of the petitioners and this goes to prove beyond any reasonable doubt that though the scheme of the Government of India 1979 was never fully implemented in practice, the petitioners were appointed as per the policy, performed their duties as per the policy, worked continuously, were paid as per the policy, they were required to continue to work on full-time basis for 10 to 18 years and thus so far as the embodiment and disembodiment is concerned, they were not disembodied and thus the so-called voluntary character of their duties is completely destroyed. The petitioners only prayer is that just as the Calcutta High Court and the Supreme Court have looked to the substance of the case of the part-time Border Wing Home Guards in West Bengal and not to the formal statutory framework of the West Bengal Home Guards Act. Similarly, this Court should look to the substance of the petitioners case and to the similar statutory framework of the Bombay Home Guards Act, 1947. What the petitioners pray is justice according to the Constitution by piercing through the form and the structure and not merely justice according to form and technicalities. While given constitutional justice to the petitioners on the ground of fundamental rights, the financial considerations are never accepted by the Supreme Court as constraints and obstacles in the granting of justice. What the petitioners pray is justice according to the Constitution by piercing through the form and the structure and not merely justice according to form and technicalities. While given constitutional justice to the petitioners on the ground of fundamental rights, the financial considerations are never accepted by the Supreme Court as constraints and obstacles in the granting of justice. In this situation, both the Central Government and the State Government did not stick strictly to the Scheme of the Government of India and continue to require the services of the petitioners for all these years on full-time basis and now they cannot be permitted to get out or escape because of their own failure, just as the Supreme Court has stated that the Central Government cannot take advantage of its own failure. SUBMISSIONS OF MR. KAMAL TRIVEDI, LEARNED ADDITIONAL ADVOCATE GENERAL ON BEHALF OF THE RESPONDENTS: ( 10 ) MR. KAMAL B. Trivedi, learned Addl. Advocate General and Senior Advocate along with Ms. Sangeeta Vishen, learned AGP appeared on behalf of the respondents No. 1 and 2. Though I briefly narrated his submissions, however, now I am dealing with his submissions in detail. The learned counsel for the respondents has relied upon Bombay Home Guards Act, 1947. He submitted that the Bombay Home Guards Act, 1947, was enacted to provide for the constitution of Home Guards. The object of the Act is to provide for a voluntary organisation for use in emergencies and for other purposes in the State. He has relied upon Sec. 2 of the Act which provides Constitution of Home Guards and appointment of Commandant (Commandant General and Commandant ). He has also relied upon sec. 2 (1) of the said Act. Sec. 3 provides that the Commandant General may appoint as members of the Home Guards such number of persons, who are fit and willing to serve, as may from time be determined by the State Government, and may appoint any such member to any office of command in the Home Guards. Sec. 4 provides the Commandant may at any time call out a member of the Home Guards for training or to discharge any of the functions or duties assigned to the Home Guards in accordance with the provisions of this Act. Sec. 4 provides the Commandant may at any time call out a member of the Home Guards for training or to discharge any of the functions or duties assigned to the Home Guards in accordance with the provisions of this Act. Section 8 provides that the State Government may make rules consistent with this Act providing for the exercise by any officer of the Home Guards of the powers conferred by Section 4 on the Commandant and the Commandant General providing certain eventualities. In exercise of the powers conferred by Sec. 8 of the Act, the then Government framed the rules known as Bombay Home Guards Rules 1953. The learned counsel has also relied upon Rule 3 of the Bombay Home Guards Rules, 1953 which provides appointment of member of Home Guards. Rule 4 provides application for appointment. Rule 6 provides Form of the application and Rule 16 provides Functions and duties of members of the Home Guards. 10. 2 after relying upon the same, learned counsel has submitted a chart showing the Set Up of Border Wing Home Guards: Commandant General ( 21 ) WHAT are the disputes have been narrated by me while considering the arguments. However, it may be noted that in this case the petitioners have raised only basic facts. Normally they were appointed under the provisions of Bombay Home Guards Act and Rules. The terms and conditions of the petitioner are governed by the scheme issued by the Central Government. These two basic facts are undisputed. They have also narrated the detailed procedure of appointment and also training and the work which they have done. The have also stated that the persons who are selected for Border Wing Home Guards constituted from the areas of the border only and they work near the border. These are the basic facts which have been set out by the petitioners. All other facts have been set out by the respondents in their affidavits in reply which the petitioners have relied on subsequently in the subsequent affidavits which they have filed. What is the independent case of the petitioners I have set out and also set out various facts which show that the petitioners have prima facie a strong case. They have worked since long time. They have worked throughout the year and even the number of days for which they have worked, details have been shown. What is the independent case of the petitioners I have set out and also set out various facts which show that the petitioners have prima facie a strong case. They have worked since long time. They have worked throughout the year and even the number of days for which they have worked, details have been shown. Same has been shown by me while considering the arguments of Mr. Patel, learned advocate for the petitioners. ( 22 ) IN a writ petition, theoretically, the High Court has jurisdiction to determine the questions both of fact and law. It is true that usually the High Court is reluctant to go into questions of fact which require oral evidence for their determination. If the oral evidence and other documentary evidence require the parties are relegated to the original civil suit or a Central Administrative Tribunal in this case. However, in this case the petitioners have filed voluminous affidavit. The respondents have also filed various affidavits. Therefore, the facts of the case are in a narrow compass. It does not require any oral evidence or producing any other evidence to establish the facts of the case. Therefore, when enquiry into the questions of fact arises in a writ petition it is a question of High Courts discretion whether or not it will enter into such such questions; it is not that the Court does not have jurisdiction to do so. ( 23 ) HERE I am concerned with large number of people who are serving as Border Wing Home Guards and it will not be proper for me to relegate all these persons in ordinary proceedings where more time will be taken and it will be more expensive for the petitioners. In view of the same, I am of the view that the present petition cannot be dismissed only on the ground that it raises a disputed question of fact. In my view, this petition raises mixed question of fact and law and therefore under Article 226 of the Constitution this Court has jurisdiction to decide this petition. I, therefore, reject the contention of the learned counsel for the respondents that this petition should be rejected on the ground that this petition raises a disputed question of fact. STATE OF W. B. VS. I, therefore, reject the contention of the learned counsel for the respondents that this petition should be rejected on the ground that this petition raises a disputed question of fact. STATE OF W. B. VS. PANTHA CHATTERJEE (supra): ( 24 ) THE learned counsel for the petitioners has heavily relied on the judgement in the case of State of West Bengal Vs. Pantha Chatterjee (supra ). In that case part time Border Wing Home Guards being dissatisfied with the pitiable conditions of service under which they had been working and the nominal emoluments paid to them, approached the Calcutta High Court by filing writ petition under Article 226 of the Constitution of India. Their scheme issued by the Central Government was dated 15. 10. 1976 along with the State of West Bengal. The said scheme of Border Wing Home Guards consisted of part time Border Wing Home Guards and full time Border Wing Home Guards. In that context, the learned Single Judge of Calcutta High Court referred to the scheme and the letter of West Bengal Government and held in favour of the petitioners after referring to certain judgements. The findings of the learned Single Judge is on page 4 of the said judgement. Thereafter, the matter went to Division Bench and the Division Bench confirmed the view of the learned Single Judge and only set aside with the finding regarding finding in rem. The whole scheme has been discussed by the Honble Supreme Court in paragraphs 6, 7 and 8 of the judgement. In that case also, the Government contended that the Home Guard is a voluntary organisation made on part time basis and their appointment was for only three months. That contention has been negatived in para 9 of the judgement. In para 13 on behalf of Union of India more or less said contention has been noted by the Union of India namely the petitioners have been members of a voluntary organisation. They were recruited under the State Home Guards Act by the State machinery. Master and servant relationship of the petitioners existed only with the State Government. The Central Government was liable to bear the financial liability provided under the Scheme. They were recruited under the State Home Guards Act by the State machinery. Master and servant relationship of the petitioners existed only with the State Government. The Central Government was liable to bear the financial liability provided under the Scheme. In that context, the Honble Supreme Court has observed in para 10 that Border Wing Home Guards were required amongst others for the purposes of patrolling the border as well as with a view to check infiltration from across the border. They have to help and assist and to do patrolling etc. along with and under the supervision and direction of the Border security Force authorities and the Honble Supreme Court noticed that the duties of the permanent Border Wing Home Guards and part time Border Wing Home Guards are the same, and performed under the same situation and circumstances but there has been disparity in their emoluments and other facilities, necessities for performing their duties. In para 11 of the judgement the Honble Supreme Court has considered the entire scheme of the Act, the voluntary nature and also the question of disengagement of certain periods. In para 12 of the judgement on page 479 the Honble Supreme Court held that both part time and full time Border Wing Home Guards are working for the same duration in the same conditions but one of them with and other without the necessities of the job. The Honble Supreme Court negatived the contention of the State Government as well as Solicitor General appearing for Union of India. In paragraph 13 of the judgement the Honble Supreme Court has observed its findings. In para 16 of the judgement the Honble Supreme Court has come to some finding and in para 17 and 19 which I have already quoted earlier the Honble Supreme Court has given certain findings. In view of the judgement of the Honble Supreme Court, the following facts of petitioners case is identical with West Bengals case (supra ). (a) The petitioners are in deployment since 1985. From 1988 till the current year, all the petitioners herein have been deployed in the service of the respondent authorities for more than 300 days in every year. The same sets of petitioners who were initially deployed in 1985 are still working for more than 15 years now and their duties have never been rotated. From 1988 till the current year, all the petitioners herein have been deployed in the service of the respondent authorities for more than 300 days in every year. The same sets of petitioners who were initially deployed in 1985 are still working for more than 15 years now and their duties have never been rotated. (b) The battalion of Border Wing Home Guards is raised by the State Government and the petitioners herein are being paid by and from a particular head of expenditure of the State Government. (c) While on duty on the Kachchh border, the petitioners are under the operational control of the Border Security Force personnel. In fact, the petitioners are required to cooperate with the Border Security Force personnel while guarding /patrolling the border. (d) The work of guarding / patrolling the border is of a perennial nature. In case of the petitioners, all of them were continued after the first term of appointment of 3 years. (e) Similar necessity was felt for raising of Border Wing Home Guards battalion in the State of Gujarat so as to check infiltration of foreigners from across the Indo-Pak border. (f) The strength of the Border Wing Home Guards battalion is sanctioned by the Government of India (see para 14 of the affidavit in reply dated 29. 9. 2003 filed by respondent No. 2) (G) Preference was to be given to the Home Guards Organisation already on the rolls for constituting the Border Wing Home Guards battalion but it was to be ensured that such Home Guards were available for duty during emergency both for long and short durations. (h) The petitioners are deployed mainly for the purpose of guarding/patrolling the Kachchh border. During emergency like the communal riots in Gujarat or during and after the Kargil war when intelligence inputs were regularly received that a large number of terrorists and other anti-national elements were being readied to infiltrate through the Rann and the coastal area of Kachchh District, the petitioners were employed to assist the Border Security Force personnel for containing any infiltration during such times. During Kachchh earthquake, the petitioners had been mobilised to help non-Governmental Organisations and ordinary people in Disaster Management. (i) The petitioners are mainly deployed for the purpose of patrolling/guarding the Indo-Pak border or the Kachchh border with a view to check infiltration from across the border. During Kachchh earthquake, the petitioners had been mobilised to help non-Governmental Organisations and ordinary people in Disaster Management. (i) The petitioners are mainly deployed for the purpose of patrolling/guarding the Indo-Pak border or the Kachchh border with a view to check infiltration from across the border. (j) The duties of the petitioners who are labelled as part time Border Wing Home Guards are exactly identical to those of the permanent (full time) Border Wing Home Guards. (k) The petitioners have been in deployment of the respondents since 1985. From 1988 to till the current year, the petitioners have average more than 300 days in every year in the employment of the present respondent Nos. 1 and 2. In years like 1989, 1992, 1999, 2000 and 2001, the petitioners were not disembodied for a single day. Thus, the petitioners have been continuously engaged (barring minor artificial breaks of one month or two months at the most) by the present respondent Nos. 1 and 2 for guarding / patrolling the Kachchh border for more than a decade now. The Scheme of disembodiment itself presupposes more or less permanent character of the para-military force called Border Wing Home Guards. The purpose of disembodiment is to merely make a show that the Border Wing Home Guards are not permanent. Thus, the demobilisation or disembodiment of the petitioners are mere artificial breaks in their continuous service. It is not that their services are not required or that they are required to be retrenched. (l) The petitioners who are labelled as part time Border Wing Home Guards have in reality never been freed by the present respondent Nos. 1 and 2 to allow them to resume their old vocational pursuits. It may be noted that in the judgement of the Honble Supreme Court in the case of State of W. B. Vs. Pantha Chatterjee (supra), the Honble Supreme Court was concerned with the provisions of the Home Guards Act under which the petitioners in that case were appointed. The Honble Supreme Court was concerned with the Scheme of Border Wing Home Guards dated 15. 10. 1976 issued by the Government of India, Ministry of Home Affairs, to the Chief Secretaries to the Governments of Assam, Meghalaya, Tripura and West Bengal for creation of Border Wing Home Guards for Eastern States. The learned counsel for the petitioner has filed an affidavit dated 17. 1. 10. 1976 issued by the Government of India, Ministry of Home Affairs, to the Chief Secretaries to the Governments of Assam, Meghalaya, Tripura and West Bengal for creation of Border Wing Home Guards for Eastern States. The learned counsel for the petitioner has filed an affidavit dated 17. 1. 2005 and produced a copy of the said scheme. After perusing the said scheme and also perusing the present scheme of 1979 which is on the record of this case, if one compares both the scheme of 1976 and the scheme of 1979, it appears that both the schemes are identical in all aspects except that for the Eastern States the expenditure on the scheme is to be met by the Government of India at 100% on the authorised staffing pattern whereas in the present case for the State of Gujarat the expenditure on the scheme is to be met by the Government of India at 75% on the authorised staffing pattern. This is one of the additional reasons by which I have accepted the contention of the learned counsel for the petitioners that the judgement of the Honble Supreme Court in the case of State of W. B. Vs. Pantha Chatterjee (supra) squarely applies to the present case. The judgement of the Honble Supreme Court in the case of State of West Bengal Vs. Pantha Chatterjee (supra) would squarely apply to the case of the petitioners and therefore the directions which have been given by the Honble Supreme Court in the case of State of West Bengal Vs. Pantha Chatterjee (supra) are applicable to the case of the present petitioners. ( 25 ) WHAT is precedent: How the ratio of the Honble Supreme Court to be relied upon. It may be noted that the observations made in the case of COMMISSIONER OF INCOME TAX VS. M/s. SUN ENGINEERING WORKS (P) LTD. reported in AIR 1993 SC 43 , particularly, paragraph No. 39 on page 57 where the Honble Apex Court has observed that the judgement must be read as a whole and the observations from the judgement have to be considered in the light of the questions which were before this Court. M/s. SUN ENGINEERING WORKS (P) LTD. reported in AIR 1993 SC 43 , particularly, paragraph No. 39 on page 57 where the Honble Apex Court has observed that the judgement must be read as a whole and the observations from the judgement have to be considered in the light of the questions which were before this Court. A decision of this Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, the courts must carefully try to ascertain the true principle laid down by the decision of this Court and not to pick out words or sentences from the judgement, divorced from the context of the question under consideration by this Court, to support their reasonings. The Honble Apex Court has relied on the decision in the case of MADHAV RAO JIWAJI RAO SCINDIA BAHADUR VS. UNION OF INDIA (1971) 3 SCR 9 in support of the said conclusion. It may be noted that Full Bench of this Court (Coram: M. P. Thakkar, C. J. , A. M. Ahmadi (as they were then) and R. C. Mankad, JJ) in the case of The Ahmedabad Mfg. and Calico Printing Co. Ltd. Vs. Union of India and Ors. reported in 1983 (1) G. L. R. 1 has observed on page 12 as follows: "what is considered binding to all the Courts is the ratio decidendi of the decision which is to be gathered from the statements of principles of law applicable to the legal problems disclosed by the facts of the case decided by the Supreme Court. The Full Bench of this Court thereafter relied on the judgement of the Honble Supreme Court in the case of DALBIR SINGH VS. STATE OF PUNJAB (A. I. R. 1979 SC 1384), MADHAV RAO SCINDIA VS. UNION OF INDIA ( AIR 1971 SC 530 ) and A. D. M. JABALPUR VS. The Full Bench of this Court thereafter relied on the judgement of the Honble Supreme Court in the case of DALBIR SINGH VS. STATE OF PUNJAB (A. I. R. 1979 SC 1384), MADHAV RAO SCINDIA VS. UNION OF INDIA ( AIR 1971 SC 530 ) and A. D. M. JABALPUR VS. S. SHUKLA ( AIR 1976 SC 1207 ) and after referring to the said judgements the Full Bench has observed as follows: (pages 12 and 13)"it is, therefore, evident that the decision of the Supreme Court is only an authority for what is actually decides and the observations made in the judgement should be restricted to the context in which they are made after relating the observations to the precise issue before the Court taking care to interpret the observations in the context of the question before the Court even though the same are expressed in broad terms. "in view of the above the ratio decidendi in State of W. B. Vs. Pantha Chatterjee (supra) is considered and followed in this case. Salmond on jurisprudence, twelfth edition, Chapter 5 makes certain observation on theory of precedent (on page 141 onwards ). The importance of judicial precedents has always been a distinguishing characteristic of English law. The judgement and ratio decidendi of the Honble Supreme Court is binding. What the judgement decides generally is the ratio decidendi or rule of law for which it is authority ; what it decides between the parties includes far more than just this. The parties are bound by findings of fact and law necessary for the resolution of issues between them. Dias on jurisprudence, third edition, on page 45, Chapter three provides certain guidelines for precedent. It says that in its broadest sense a precedent is any pattern upon which future conduct may be based. A convenient nomenclature for the common law doctrine is stare decisis, which is derived from stare decisis et non quieta movere and which serves to distinguish it from the broad doctrine of precedent to be found in all developed systems. What is important is ratio decidendi of the judgement which has to be followed. The same has been referred by Salmond on jurisprudence, 12th Edition, on page 174, paragraph 29. Similarly Dias on jurisprudence also on page 63 stated what is ratio decidendi. What is important is ratio decidendi of the judgement which has to be followed. The same has been referred by Salmond on jurisprudence, 12th Edition, on page 174, paragraph 29. Similarly Dias on jurisprudence also on page 63 stated what is ratio decidendi. It stated that what is "law" in a precedent is its ruling or ratio decidendi and it is that concerns future litigants as well as those involved in the immediate dispute. The first, which is the translation of it, is the reason for (or of) deciding. Even a finding of fact may in this sense be the ratio decidendi. Secondly, it may mean "the rule of law proffered by the judge as the basis of his decision". Thirdly, it may mean the rule of law which others regard as being of binding authority. In view of the aforesaid discussion, the authority cited by the learned counsel for the respondents in connection with the fact that judgement of the Honble Supreme Court in the case of State of W. B. (supra) should not be treated as precedent and the same cannot be read like statute and other judgements in the case of State of Punjab Vs. Baldev Singh (1999) 6 SCC 172 , PGI Vs. Raj Kumar ( AIR 2001 SC 479 ), The State Financial Corporation Vs. Jagdamba Oil Mills ( AIR 2002 SC 834 ) and Union of India Vs. Chajju Ram ( (2003) 5 SCC 568 ) will have no application because I have already indicated that the basic facts, namely, the provisions of Home Guards Act and the Scheme issued earlier by the Central Government are common in both the matters. The other facts which are not similar will not have relevance. Therefore, the judgement of the Honble Supreme Court squarely applies in the present case. In view of the aforesaid judgement of the Honble Apex Court it may be stated that the question which was raised before the Honble Supreme Court and the decision given by the Honble Supreme Court in which the Honble Supreme Court has considered the decision rendered by the learned Single Judge as well as Division Bench and then confirmed the same. Therefore, the principle laid down in this case has been followed by me in this behalf. Therefore, the principle laid down in this case has been followed by me in this behalf. ARTICLE 14: EQUALITY ( 26 ) IT may be noted that the petitioners contended that the petitioners who are Border Wing Home Guards are different from ordinary Home Guards found to be functioning under the Bombay Home Guards Act, 1947. The petitioners are recruited from within 50 kilometres of the Kachchh border. The Rules of Recruitment require that all persons recruited as Border Wing Home Guards are found to be residing within 50 kilometres of the Kachchh border. There is no such area requirement for recruitment of ordinary Home Guards under the Bombay Home Guards Act, 1947 and the Rules framed thereunder. The petitioners are concerned with national security as they are a paramilitary force whereas the ordinary Home Guards are concerned with law and order. It may be noted that during conflict or tension in sensitive areas, the petitioners are deployed for short spells in such areas just as the Army personnel are posted in sensitive areas during high tension. During war, the Border Wing Home Guards come under the direct control of the Army. They are actively engaged in providing all kinds of assistance to the Army personnel including collecting information about the enemy. Duty of the petitioners on the border outposts is akin to the duty of the Army personnel or Border Security Force personnel stationed on the border. Such duty is continuous and round the clock. The Border Wing Home Guards are not allowed to leave border outposts without the permission of the authorities in command. Disembodiment or demobilisation of the Border Wing Home Guards for very short spells is resorted to so that they are in a position to go back to their respective families for completing their long-neglected domestic work. However, during disembodiment, the Border Wing Home Guards cannot be employed elsewhere. During embodiment, the Border Wing Home Guards are not in a position to take up alternative employment, whereas the Home Guards functioning under the Bombay Home Guards Act, 1947, have alternative employment and are necessarily found to be engaged in other work. When on duty on the border, the Border Wing Home Guards are equipped with machine-gun or 303 rifles. The Border Wing Home Guards are called "jawans" just as the Army personnel are called "jawans". When on duty on the border, the Border Wing Home Guards are equipped with machine-gun or 303 rifles. The Border Wing Home Guards are called "jawans" just as the Army personnel are called "jawans". The word "jawan" is not used in the case of Home Guards functioning under the Bombay Home Guards Act, 1947. Like the Army personnel, Border Wing Home Guards are given a Regiment number. No such Regiment number is given to Home Guards functioning under the Bombay Home Guards Act. Border Wing Home Guards are given Army training. The Home Guards functioning under the Bombay Home Guards Act are given police training. Border Wing Home Guards carry a badge which is labelled as "bwhg" whereas Home Guards carry a badge labelled as "hg". The monograph/insignia of Border Wing Home Guards bears the figure of a camel to signify border duty. Whereas the monograph/insignia of the Home Guards functioning under the Bombay Home Guards Act, 1947, bears the figure of lion. Like the Army personnel, Border Wing Home Guards are only allowed a maximum period of two months leave every year. However, when tension escalates on the border and where a great threat to national security is apprehended, the Border Wing Home Guards are not allowed to leave even for two months. It may be noted that the Border Wing Home Guards of Companies B, C, D, E and F have not been disembodied for a single day in seven years from the last 15 years of service. Therefore, the duty is continuous. Border Wing Home Guards are in no sense of the term "volunteers" who can leave their duty at will. I have to consider the case of the petitioners with other persons appointed by the respondents. The learned counsel for the petitioners states that both are equally appointed. Therefore, the nature of duties, functioning and characteristics all are same and therefore they cannot be discriminated. WHAT IS MEANT BY RIGHT TO EQUALITY ARTICLE 14: To consider this I will have to examine what is meant by right to equality. In this case I first quote the following paragraph on page 435 in the book on Constitutional Law of India by H. M. Seervai, Fourth Edition, Volume 1. WHAT IS MEANT BY RIGHT TO EQUALITY ARTICLE 14: To consider this I will have to examine what is meant by right to equality. In this case I first quote the following paragraph on page 435 in the book on Constitutional Law of India by H. M. Seervai, Fourth Edition, Volume 1. "four score and seven years ago our fathers brought forth on this continent a new nation conceived in liberty and dedicated to the proposition that all men are created equal. We are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure"- Abraham Lincoln: Gettysburg address. Liberty and equality are words of passion and power. They were the watchwords of the French Revolution; they inspired the unforgettable words of Abraham Lincolns Gettysburg Address; and the U. S. Congress gave them practical effect in the 13th Amendment, which abolished slavery, and in the 14th Amendment, which provided that "the State shall not deny to any person within its jurisdiction. . . . the equal protection of the laws. " Conscious of this history, our founding fathers not only put Liberty and Equality in the Preamble to our Constitution but gave them practical effect in Art. 17 which abolished "untouchability" and in Art. 14 which provides that "the State shall not deny to any person equality before the law and the equal protection of the laws in the territory of India. " Few Articles of our Constitution were more heavily drawn upon in the early days of our Constitution than Art. 14 and it is not surprising that the decisions of the U. S. Sup. Ct. on "the equal protection of the laws" in the 14th Amendment were freely cited to interpret the same words in Art. 14. However, decisions of our Sup. Ct. , and the High Courts soon put the guarantee of equality in its proper perspective. " The Honble Supreme Court in the case of AJAY HASIA VS. KHALID MUJIB reported in AIR 1981 SC 487 after referring to earlier judgements in the cases of E. P. ROYAPPA VS. STATE OF TAMIL NADU ( AIR 1974 SC 555 ) and MANEKA GANDHI VS. " The Honble Supreme Court in the case of AJAY HASIA VS. KHALID MUJIB reported in AIR 1981 SC 487 after referring to earlier judgements in the cases of E. P. ROYAPPA VS. STATE OF TAMIL NADU ( AIR 1974 SC 555 ) and MANEKA GANDHI VS. UNION OF INDIA ( AIR 1978 SC 597 ), in paragraph 16 on page 499 has observed as under:"the doctrine of classification which is evolved by the Courts is not paraphrase of Article 14 nor is it the objective and end of that Article. It is merely a judicial formula for determining whether the legislative or executive action in question is arbitrary and therefore constituting denial of equality. If the classification is not reasonable and does not satisfy the two conditions referred to above, the impugned legislative or executive action would plainly be arbitrary and the guarantee of equality under Article 14 would be breached. Wherever therefore there is arbitrariness in State action whether it be of the legislature or of the executive or of an "authority" under Article 12, Art. 14 immediately springs into action and strikes down such State action. In fact, the concept of reasonableness and non-arbitrariness pervades the entire constitutional scheme and is a golden thread which runs through the whole of the fabric of the Constitution. "the said principle has been reiterated by the Honble Supreme Court in the case of KUMARI SHRILEKHA VIDYARTHI VS. STATE OF U. P. reported in AIR 1991 SC 537 . Considering Article 14 in paragraphs 29, 30, 31, 32, 33, 34, the Honble Supreme Court has observed in paragraph 35 on page 554 thus:"it is now too well settled that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Art. 14 of the Constitution and basic to the rule of law, the system which governs us. Arbitrariness is the very negation of the rule of law. Satisfaction of this basic test in every State action is sine qua non to its validity and in this respect, the State cannot claim comparison with a private individual even in the field of contract. "in book of K. K. Mathew, Democracy Equality and Freedom, 1978 Edition, on page 227 the learned author has observed as follows:"equality, therefore, involves, up to the margin of sufficiency, identity of response to primary needs. "in book of K. K. Mathew, Democracy Equality and Freedom, 1978 Edition, on page 227 the learned author has observed as follows:"equality, therefore, involves, up to the margin of sufficiency, identity of response to primary needs. And that is what is meant by justice. We are rendering to each man his own by giving him what enables him to be a man. We are, of course, therein protecting the weak and limiting the power of the strong. "the learned author has on page 230 has further observed as under:"everyone has the right to a standard of living adequate for the health and well being of himself and his family, including food, clothing, housing and medical care and the necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond ones control. The Directive Principles of our Constitution practically lay down the same principle. As the governments role in providing public housing, unemployment and old age compensation increases, notions of equal protection under the law, not merely in the sense of unbiased laws or unbiased administration of the laws, but in the sense of inalienable rights to minimum living standards, may emerge as they have in the field of education, as crucial in later years. But the suggestion that the State has an affirmative duty to raise everyone to a minimum acceptable standard of living has not assumed the dignity of a constitutional proposition in other countries. The directive principles of our Constitution, though unenforceable, lay down this principle unequivocally. "in view of the discussion on Article 14 of the Constitution which I have discussed in para 26 factually and thereafter the principle of equality which I have considered from paragraph 26. 10 onwards, in my view there is a clear discrimination between the petitioners and the permanent employees of BWHGs on all counts. Part time members of BWHGs would be treated on par with full time BWHGs and they would get all privileges of the State Armed Police as extended to the full time BWHGs. ARTICLE 21 OF THE CONSTITUTION: ( 27 ) MR. Patel, learned advocate, has also argued that in this case this Court has to consider Article 21 and judgement cited by him. I first consider the "preamble" of the Constitution of India. ARTICLE 21 OF THE CONSTITUTION: ( 27 ) MR. Patel, learned advocate, has also argued that in this case this Court has to consider Article 21 and judgement cited by him. I first consider the "preamble" of the Constitution of India. The Preamble provides that We, the people of India, having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic and to secure to all its citizens: Justice - social, economic and political; Liberty of thought, expression, belief, faith and worship; Equality of status and of opportunity; and to promote among them all Fraternity assuring the dignity of the individual and the unity and integrity of the Nation. Among these the word "justice" is very important. In the book "preamble - the Spirit and Backbone of the Constitution of India" - Anundoram Barooah Law Lectures, Seventh Series by Honble Mr. Justice R. C. Lahoti, (Honble Chief Justice of India) the learned author has observed what is meant by "justice" thus: (on page 100)"this means the reconcilement of the individual conduct with the welfare of the society as a whole. The actions of an individual are "just" only if they promote the well being of the society. The aim is to promote the common good rather than only the individual welfare. It does not mean only legal justice as is dispensed by the courts of law. Our Constitution aims at securing "social, economic, and political" justice as well. Hence we have legally enforceable Fundamental Rights and the Directive Principles provide for social and economic justice as well. A large number of the enacting provisions of the Constitution can be read to show the ideal of social and economic justice. Justice briefly speaking, is the harmonious reconcilement of individual conduct with the general welfare of the society. Every man acts according to his self-interest, but his act or conduct is said to be "just" only if it promotes the general well-being of the community. The essence of justice is the attainment of the common good as distinguished from the good of individuals or even of the majority of them. Our Constitution professes to secure to all its citizens social, economic and political justice, even though the form of government prescribed by the Constitution is a majority government which lies at the foundation of the representative system. Our Constitution professes to secure to all its citizens social, economic and political justice, even though the form of government prescribed by the Constitution is a majority government which lies at the foundation of the representative system. Ordinarily, the word "justice" indicates legal justice which is available only through the courts which decide disputes between two individuals or between an individual and the State itself, when such dispute assumes the form of a litigation. In the Preamble, the Constitution speaks of other forms of justice which a welfare State is bound to dispense to the people who made the Constitution. "the learned counsel for the petitioners submitted that Article 21 of the Constitution which provides right to life and livelihood has been recently interpreted by the Honble Supreme Court in broadway for which he has relied two or three judgements which I have already referred to in this behalf. The petitioners have relied on the judgement of the Honble Supreme Court in the case of FRANCIS CORALIE VS. UNION TERRITORY OF DELHI reported in AIR 1981 SC 746 wherein the scope of Article 21 has been expanded by the Honble Supreme Court of India to hold that right to life includes 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. That since Maneka Gandhis case ( AIR 1978 SC 597 ), article 21 has been given extended meaning. . . . has been liberally interpreted so as to mean something more than survival and mere existence or in that. . . includes all those aspects which can make man life complete and worth living. The expanded meaning of Article 21 focuses better quality of life and better right to livelihood. In view of this changed position, this Court must consider the case of Border Wing Home Guards who are working round the clock throughout the year. The details of the same has been given in the petition and also from the affidavits filed by the petitioners. It may be noted that Article 21 uses four crucial expressions, viz. , "life", "personal liberty", "procedure" and "law". Each of these four expressions has different meaning and connotation. The details of the same has been given in the petition and also from the affidavits filed by the petitioners. It may be noted that Article 21 uses four crucial expressions, viz. , "life", "personal liberty", "procedure" and "law". Each of these four expressions has different meaning and connotation. M. P. Jain, learned author of Indian Constitutional Law, on page 1271, has explained Article 21 as under:"the expression "life" in Art. 21 has been interpreted by the Supreme Court rather liberally and broadly. Over time, the Court has been giving an expansive interpretation to "life". The Court has often quoted the following observation of FIELD, J in "munn Vs. Illinois (94 U. S. 113) (1877) an American case: "by the term "life" as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an arm or leg. "it may be noted that right to live with human dignity, so the same does not connote continued drudgery. It takes within its fold some of the fine graces of civilisation which makes life worth living and that the expanded concept of life would mean the tradition, culture and heritage of the person concerned". The words "personal liberty" used in Art. 21 has also been given a liberal interpretation. It does not mean merely the liberty of the body i. e. freedom from physical restraint or freedom from confinement within the bounds of a prison. In other words, it means not only freedom from arrest or detention from false imprisonment or wrongful confinement, but means much more than that. The term "personal liberty" is not used in a narrow sense but has been used in Art. 21 as a compendious term to include within it all those variety of rights of a person which go to make up the personal liberty of a man. Art. 21 is couched in negative phraseology. The term "personal liberty" is not used in a narrow sense but has been used in Art. 21 as a compendious term to include within it all those variety of rights of a person which go to make up the personal liberty of a man. Art. 21 is couched in negative phraseology. But by its creative interpretation of Art. 21 in various cases, the Honble Supreme Court has come to impose positive obligation upon the state to take steps for ensuring to the individual a better enjoyment of his life and dignity e. g. (1) maintenance and improvement of public health; (2) providing humane conditions in prisons and protective homes; (3) improvement of the environment etc. Thus, the quality of life will also have to be important. Even right to life has been extended in this behalf. It may be noted that by creative interpretation, the Honble Supreme Court has taken into consideration certain directive principles of State policy and after considering certain directive principles of State Policy some of the essential fundamental rights include "right to life" and thus right to life has been expanded in this behalf. Reading articles 21, 38, 42, 43 and 48a together, the Honble Supreme Court has concluded in the case of CONSUMER EDUCATION and RESEARCH CENTRE VS. UNION OF INDIA ( AIR 1995 SC 922 ) in para 21 on page 938 as under:"the constitutional concern of social justice as an elastic continuous process is to accord justice to all sections of the society by providing facilities and opportunities to remove handicaps and disabilities with which the poor etc. are languishing to secure dignity of their person. The Constitution, therefore, mandates the State to accord justice to all members of the society in all facets of human activity. The concept of social justice imbeds equality to flavour and enliven practical content of "life". Social justice and equality are complementary to each other so that both should maintain their validity. Rule of law, therefore, is a potent instrument of social justice to bring about equality in results. "again in para 26 on page 940 of the said judgement the Honble Supreme Court has observed as follows:"right to life includes protection of the health and strength of the worker is a minimum requirement to enable a person to live with human dignity. "again in para 26 on page 940 of the said judgement the Honble Supreme Court has observed as follows:"right to life includes protection of the health and strength of the worker is a minimum requirement to enable a person to live with human dignity. "it may be noted that the Honble Supreme Court of India took giant leaps in protecting and safeguarding right to life in its multifacet, multidimensional and vibrant forms. It includes right to live which includes the right to enjoy pollution free water and air. State is responsible for not taking proper precautions to provide proper drinking water to the citizens. Right to livelihood as protected by Article 21 of the Constitution is only the right to earn such livelihood as is necessary for the sustenance of persons and the deprivation of which would threaten their existence. In view of the settled position that expanded the meaning of Article 21 read with Preamble and Directive Policy of the State and the fact that there is already judgement of the Honble Supreme Court which is binding on me, I am of the view that the petitioners have proved a strong case and whatever relief which the petitioners have prayed for, the same should be granted in this behalf. However, I make it clear that this judgement applies to 610 persons only. This judgement will not apply to any other petitioners. In view of the same, merely because the petitioners are employed under the provisions of the Bombay Home Guard Act and Rule and they are volunteers that aspect will not go against the petitioners while granting the relief as prayed for in this petition because as regards voluntary character, the Honble Supreme Court has rejected the said contention of the State and the Union of India. The case of the petitioners is that they are covered by the scheme framed by the Union of India. Now the scheme envisaged by the Honble Supreme Court in the case of State of West Bengal Vs. Pantha Chatterjee (supra) is almost identical to the scheme of the present case. Therefore, whatever interpretation given by the Honble Supreme Court in the case of State of West Bengal (supra) will apply to the present case and to that extent the petitioners are entitled to relief. I have also considered the judgement of the Honble Supreme Court in the case of DELHI TRANSPORT CORPN. Therefore, whatever interpretation given by the Honble Supreme Court in the case of State of West Bengal (supra) will apply to the present case and to that extent the petitioners are entitled to relief. I have also considered the judgement of the Honble Supreme Court in the case of DELHI TRANSPORT CORPN. VS. D. T. C. MAZDOOR CONGRESS reported in AIR 1991 SC 101 particularly the concurring judgement of Honble justice P. B. Sawant and Honble justice K. Ramaswamy particularly in paras 239, 240 and 241. In para 239 of the said judgement the learned Judge has expanded the scope of Article 21 and on page 188 in paragraph 243 of the said judgement the Honble Supreme Court has held as follows:"law is a social engineering to remove the existing imbalance and to further the progress, serving the needs of the Socialist Democratic Bharat under rule of law. The prevailing social conditions and actualities of life are to be taken into account to adjudging whether the impugned legislation would subserve the purpose of the society. "in the case of KARNATAKA STATE PRIVATE COLLEGE STOP-GAP LECTURERS ASSOCIATION VS. STATE OF KARNATAKA AND OTHERS reported in (1992) 2 SCC 29 , the principle of equal pay and equal work has been stated by the Honble Supreme Court. In GOVERNMENT OF INDIA AND OTHERS VS. COURT LIQUIDATORs EMPLOYEES ASSN. AND OTHERS reported in (1999) 8 SCC 560 , the Honble Apex Court has considered the parity of service. In JAIPAL AND OTHERS VS. STATE OF HARYANA AND OTHERS reported in (1988) 3 SCC 354 , the question of equal pay and equal work has been considered. The Honble Supreme Court has considered the question of part time service and full time service in the said case. In DHIRENDRA CHAMOLI VS. STATE OF U. P. reported in (1986) 1 SCC 637 , particularly para 3 on page 639 the Honble Supreme Court has observed as follows:"we therefore allow the writ petitions and make the rule absolute and direct the Central Government to accord to these persons who are employed by the Nehru Yuvak Kendras and who are concededly performing the same duties as Class IV employees, the same salary and conditions of service as are being received by Class IV employees, except regularisation which cannot be done since there are no sanctioned posts. "in GRIH KALYAN KENDRA WORKERS UNION VS. "in GRIH KALYAN KENDRA WORKERS UNION VS. UNION OF INDIA AND OTHERS reported in (1991) 1 SCC 619 the Honble Supreme Court has considered parity in employment and equal pay for equal work and also considered Articles 32, 14 and 16 of the Constitution of India. In BHAGWAN DASS VS. STATE OF HARYANA reported in AIR 1987 SC 2049 the Honble Supreme Court has considered the question of part time and full time employees. I have considered the development of Article 21 and Article 14 and the interpretation/reinterpretation of Articles 21 and 14 by the Honble Supreme Court, particularly, after 1978 decision in the case of MANEKA GANDHI (supra) much water had flowed in the development of Constitutional law. In view of the development of law of Article 21 and 14, I have considered this fact and held that the petitioners whose function, duties, responsibilities are almost identical with other persons who are permanently appointed and therefore the petitioners are to be treated as equal with other permanent persons and the Union of India and the State cannot discriminate them in this behalf. The action of the State Government as well as the Union Government treating the petitioners differently than other permanent employees is absolutely arbitrary and discriminatory and in view of the recent development of law, I am of the view that the action of the Union of India and the State is arbitrary and discriminatory in nature and the action of State and Union of India is bad in law and to that extent writ petition has to be considered. REGARDING REGULARISATION: ( 28 ) THE other contention raised by the respondents is that the petitioners did not deserve regularisation has no substance. In this case the petitioners have applied in regular course, they were interviewed, they are selected and thereafter training has been given and thereafter they have been regularly appointed and they have worked in regular working. Therefore, the appointment of the petitioners is not ad hoc, temporary or any backdoor appointment. The judgements of the Honble Supreme Court which has been cited by the learned counsel are relating to ad hoc, temporary and backdoor appointment and therefore they are applicable to the present case. The learned counsel for the respondent has tried to make distinction that certain persons are temporary and certain persons are permanent. The judgements of the Honble Supreme Court which has been cited by the learned counsel are relating to ad hoc, temporary and backdoor appointment and therefore they are applicable to the present case. The learned counsel for the respondent has tried to make distinction that certain persons are temporary and certain persons are permanent. It is no doubt true that the distinction has been made but that is only a label, the nature, work and duties same. Here there is no question of breach of contract. Here the condition of service has been proved by the petitioners. Therefore, the judgement of the Honble Supreme Court in the case of STATE OF BIHAR VS. JAIN PLASTICS AND CHEMICALS LTD. reported in (2002) 1 SCC 216 will not help the respondents. Similarly, in this case there is no question of which institution of minority and therefore the judgement of the Honble Supreme Court in the case of MANAGER, ST. THOMAS U. P. SCHOOL VS. COMMR. and SECY. TO GENERAL EDUCATION DEPTT. reported in (2002) 2 SCC 497 . In this case the nature of employment of workmen is not in dispute. The only dispute is whether the petitioners are entitled to relief as prayed for in Article 21 and Directive Principle of State. Therefore the decision in the case of U. P. STATE BRIDGE CORPORATION LTD. VS. U. P. RAJYA SETU NIGAM S. KARAMCHARI SANGH reported in (2004) 4 SCC 268 will not help the respondents. In this case I have to see whether functions and responsibilities of both the petitioners and the other persons who are employed permanently by the respondents are same or not. In my view the petitioners as well as the other persons discharging similar duties, functions and responsibilities. There is no difference. Therefore, the judgement in the case of STATE OF MADHYA PRADESH AND ANOTHER VS. PRAMOD BHARTIYA AND OTHERS reported in (1993) 1 SCC 539 will not help the respondents. In the present case petitioners have been able to prove that the distinction made by the respondents regarding service condition of the petitioners and other persons who are similarly employed is irrational and it really amounts to unlawful discrimination. Here there is no different qualification, there is no difference of function and responsibility. In the present case petitioners have been able to prove that the distinction made by the respondents regarding service condition of the petitioners and other persons who are similarly employed is irrational and it really amounts to unlawful discrimination. Here there is no different qualification, there is no difference of function and responsibility. In this case the qualifications, duties, functions are similar to the other persons who are employed as permanent staff as alleged by the respondents. Therefore, the petitioners are entitled to the relief as prayed for and the judgment in the case of SITA DEVI AND OTHERS VS. STATE OF HARYANA AND OTHERS reported in (1996) 10 SCC 1 will not help the case of the respondents. EQUAL PAY FOR EQUAL WORK: ( 29 ) THE respondents have relied on several judgements on equal pay and equal work. Here in this case I have already narrated that the work done by the Border Wing Home Guards - petitioners and other persons who are permanent, the nature of responsibility, duty and functions are similar and identical and which has been considered by the Honble Supreme Court in similar circumstances where the Honble Supreme Court has granted similar relief and in view of the same the judgements of the Honble Supreme Court in the case of UNION TERRITORY, CHANDIGARH VS. KRISHAN BHANDARI reported (1996) 11 SCC 348 ; UNION OF INDIA VS. S. K. SAREEN reported in (1998) 1 SCC 177 will not help the respondents. In my view the petitioners have very ably proved that their work is equal to the work of other permanent persons and therefore they are entitled to the benefit of equal pay for equal work. They have also demonstrated that the distinction made by the respondents are hostile discrimination between the petitioners and the respondents. The petitioners have filed voluminous affidavits to prove their case and the petitioners have been able to establish their case. The petitioners have also shown the nature of work, sphere of work and other special circumstances, if any, have to be taken into consideration and they both are similar in this behalf. In view of the same, the judgement of the Honble Supreme Court in the case of UNION OF INDIA AND OTHERS VS. RAM GOPAL AGARWAL AND OTHERS reported in (1998) 2 SCC 589 will not help the respondents. In view of the same, the judgement of the Honble Supreme Court in the case of UNION OF INDIA AND OTHERS VS. RAM GOPAL AGARWAL AND OTHERS reported in (1998) 2 SCC 589 will not help the respondents. Similarly, judgement in the case of UNION OF INDIA AND OTHERS VS. PRADIP KUMAR DEY reported in (2000) 8 SCC 580 will not help the respondents. 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. Similarly, judgement of the Honble Supreme Court in the case of STATE OF HARYANA AND ANOTHER VS. HARYANA CIVIL SECRETARIAT PERSONAL STAFF ASSOCIATION reported in (2002) 6 SCC 72 will not help the respondents. I have already considered the affidavit filed by the petitioners and the affidavit-in-reply produced by both the sides and I have also considered the nature of duties and functions and I find that both the petitioners and other persons are performing same duties, functions and responsibilities and therefore the petitioners are entitled to relief. The petitioners have also made necessary averments in the petition though the respondents have denied the same but the denial is simply for the sake of denial but that does not take the petitioners case away. 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 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. Therefore, the judgement of the Honble Supreme Court cited by the respondents in the case of STATE OF ORISSA AND OTHERS VS. BALARAM SAHU AND OTHERS reported in AIR 2003 SC 33 will not help the respondents. Similarly, the judgement of the Honble Supreme Court in the case of STATE OF HARYANA AND ANOTHER VS. TILAK RAJ AND OTHERS reported in AIR 2003 SC 2658 is not applicable to the present case. BALARAM SAHU AND OTHERS reported in AIR 2003 SC 33 will not help the respondents. Similarly, the judgement of the Honble Supreme Court in the case of STATE OF HARYANA AND ANOTHER VS. TILAK RAJ AND OTHERS reported in AIR 2003 SC 2658 is not applicable to the present case. The judgements of the Honble Supreme Court in the case of ASHWANI KUMAR SINGH VS. U. P. PUBLIC SERVICE COMMISSION AND OTHERS reported in AIR 2003 SC 2661 and GOVERNMENT OF W. B. VS. TARUN K. ROY AND OTHERS reported in (2004) 1 SCC 347 will not help the case of the respondents. In my view both the petitioners and other persons appointed by the respondents are similarly situated and the respondents have failed to show that there is a difference in classification based on dutyship. In my view the duties and functions both of the petitioners and other persons employed by the respondents are similar. The petitioners are therefore entitled to the pay scale which the other persons employed by the respondents are getting. The judgements of the Honble Supreme Court cited by the respondents are not applicable to the present case. The learned counsel for the respondents has raised contention regarding characteristics of the engagement of petitioners as Border Wing Home Guards. The said facts have been taken into consideration by the scheme of the Central Government and the Honble Supreme Court has considered the said scheme and thereafter given the finding that the petitioners are entitled to relief as prayed for in the said petition. Therefore, the contention of the learned counsel for the respondents that the petitioners are not the members of Para military Force and they are just like Rural Home Guards and Urban Home Guards and they are not posted at the actual international border, their placement is as per exigency of requirement, they are entitled to ad hoc honoraria, has no relevance. In fact the argument regarding disembodiment of Home Guards which is always company-wise as well as individual wise may not be relevant because the Honble Supreme Court has considered these facts and answered against the Union of India. In fact the argument regarding disembodiment of Home Guards which is always company-wise as well as individual wise may not be relevant because the Honble Supreme Court has considered these facts and answered against the Union of India. As regards the petitioners do not deserve regularisation, it may be noted that the Government has issued advertisement, the petitioners have applied for the same, examinations were taken, interviews were taken and thereafter the petitioners have been selected and thereafter training has been given to them. In view of the same, the petitioners are regularly recruited as per the provisions of the Act and there is no backdoor entry or ad hoc appointment or temporary appointment. They fulfill the qualification and therefore the question of regularisation will not apply in this case because the judgements which have been cited by the learned counsel for the respondents, namely, Delhi Development Horticulture Employees Union (supra), State of UP Vs. U. P. Madhyamik Shiksha Parishad (supra), State of U. P. Vs. Ajay Kumar (supra), K. D. Vohra Vs. Kamleshbhai (supra), all these cases deal with the employees who are appointed on temporary basis but this situation is not in the present case and therefore these judgements will not apply in the present case. The learned counsel for the respondents has contended that there cannot be any parity between part-time 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 part-time 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 fulfil the family duties and merely because calling the petitioners as part-time, it is a wrong nomenclature given by the respondents. The reality is quite different and therefore there is no question of considering parity between the part-time and full time BWHGS and whatever the full time BWHGS get, the petitioners must also get the same in this behalf. The reality is quite different and therefore there is no question of considering parity between the part-time 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 clear-cut-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. As regards policy/practice of disembodiment, I have discussed the same and even the Honble Supreme Court has also considered the same and in spite of the same, the Honble Supreme Court has given relief to the petitioners and therefore the ground of disembodiment will not help the respondents. The respondents have tried to distinguish the judgement of the Honble Supreme Court which I have already considered and therefore that argument is not applicable. In view of the same all the contentions raised by the respondents are not correct and all the contentions raised by the petitioners are correct and therefore the petitioners are entitled to relief. In view of the same, the petitioners are entitled to the following reliefs. ( 30 ) IN this behalf I issue the following directions: There existed master and servant relationship of the petitioners with the State Government. The petitioners are entitled to the same benefit as admissible 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 ). I further direct that the petitioners will be given all benefits admissible to the State Governments 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. 6. 1979 by Union Government (p. 430 ). I further direct that the petitioners will be given all benefits admissible to the State Governments 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. 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. 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. 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 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. 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. ( 32 ) BEFORE parting, I would like to quote the following: "gandhis TALISMAN" i will give you a talisman. Whenever you are in doubt or when the self becomes too much with you, apply the following test: recall the face of the poorest and weakest man whom you have seen and ask yourself if the step you contemplate is going to be of any use to him. Will he gain anything by it? Will it restore him to control over his own life and destiny? In other words, will it lead to Swaraj for the hungry and spiritually starving millions? then you will find your doubts and yourself melting away.- As displayed in Gandhi Smriti - Birla House, new Delhi - (from Working A Democratic Constitution - A History of the Indian Experience by Granville Austin 2003 Edition) This Court is extremely grateful to the learned senior advocate Mr. Girish Patel with Mr. Shalin Mehta, learned advocate for the petitioners and Mr. Kamal B. Trivedi, learned Additional Advocate General with Ms. Sangeeta Vishen, learned AGP and Mr. Girish Patel with Mr. Shalin Mehta, learned advocate for the petitioners and Mr. Kamal B. Trivedi, learned Additional Advocate General with Ms. Sangeeta Vishen, learned AGP and Mr. Malkan,learned Senior Standing Counsel who have very ably assisted this Court to go through the voluminous record of the case and decide the complicated and interesting question of law in this matter. .