1. I have heard Mr. B.N. Dutta, learned senior counsel, for the petitioners, and Mr. N.D. Chullai, learned Senior Government Advocate, appearing for the State respondents. I have also heard Mr. P. Dey, learned counsel, for the respondent Nos.6, 7 and 8. 2. In a nutshell, the case of the petitioners may be set out as under : (i) Having been appointed, as Home Guards, under the Directorate of Civil Defence and Commandant General of Home Guards, Government of Meghalaya, Shillong, the services of the petitioners were placed, as Guardsman, in the office of the Accountant General, Shillong, ('the AG's office') on various dates, some of them having been appointed as far as back as in the year 1996 and they have continued to serve on duty assigned to them at the AG's office. In their orders of appointment, it was mentioned that their appointments were against the requirement of the AG's office and their appointment would remain valid as long as the requisitioning authority requires the services of the Meghalaya Home Guard volunteers and that no claim of the petitioners for absorption, in the units of the Home Guard, would be entertained if their services were no longer required by the requisitioning, authority. The nature of appointment of the petitioners was inherently temporary in nature, such appointments are arbitrary, unfair and violative of the Constitutional guarantees as enshrined in Part-Ill of the Constitution of India as also the directive principles embodied therein. The appointments of the petitioners had been on time-scale of pay with entitlement of dearness allowances and other allowances meant for regular Home Guards born in the parent organisation of the Directorate of Civil Defence and Commandant General of Home Guards, Government of Meghalaya. In their letters of appointment, while appointing the petitioners as Guardsman, the pay scale given to them was Rs.900-15-975 EB 20-1115-20/1375, which was a revised pay scale of 1988 of the Government of Meghalaya. Pursuant to the report of the Third Pay Commission constituted by the State Government, when the pay scale of the Home Guards for the State of Meghalaya was enhanced, the AG's office requested the Commandant, Home Guards, East-Khasi Hills, Shillong, to send actual pay fixation of the Home Guards as per the recommendations of the Third Pay Commission. In response thereto, Commandant, Home Guards, East-Khasi Hills District, Shillong, issued a letter, dated 24.4.1998. In response thereto, Commandant, Home Guards, East-Khasi Hills District, Shillong, issued a letter, dated 24.4.1998. wherein a statement, showing revised pay scale, was furnished. The statement read as under : "7. Revised Scale Rs.2650-50-2950-EB-60-3430-70-4130 2. Revised DA - January 1996, to June 1996 - NIL July 1996, to December 1996 - 5% January 1997, to July 1997 - 9% August 1997, up to date - 14% 3. Revised House Rent - w.e.f August 1997 Up to date - Rs. 450 p.m. 4. Revised Medical Allowance w.e.f. August 1997, up to date Rs.300 p.m. 5. Revised Hill Allowance w.e.f. August 1997, up to date Rs. 130 p.m. 6. Revised winter Allowance w.e.f. November 1997 to February 1998 -Rs.200 p.m. 7. Revised Kit Allowance - Rs.30 p.m." (ii) Acting upon the report of Third Pay Commission, the petitioners were provided with the revised pay scale. Even due increments, from year to year, for each of the petitioners, was certified by the office of the Commandant General, Home Guards, East Khasi Hills, and continued to be drawn in the AG's office till the year 2000. However, since the year 2000, the drawing of increments has been stopped. Though the petitioners were, in the past, granted leave and leave salary, the same have also been stopped. (iii) The petitioners having drawn the regular time-scale with all allowances as admissible to regular employees, they were entitled to leave salary and other service benefits, which the Home Guards, working on permanent basis, under the State of Meghalaya, have been receiving. (iv) The GPF amounts were, for sometime, deducted from the pay and allowances of the petitioners and deposited in their respective accounts. Off late, however, the respondents have not been paying the leave salary and they have also declined to give the benefit of the revision of pay scale as was recommended in respect of other Stale Government employees, including the regular Home Guards, though, in the past, they were given such benefits. Off late, however, the respondents have not been paying the leave salary and they have also declined to give the benefit of the revision of pay scale as was recommended in respect of other Stale Government employees, including the regular Home Guards, though, in the past, they were given such benefits. The petitioners have, therefore, prayed ass under : "To admit the petition, call for records, issue rule and direct the State respondents to declare the petitioners as permanent employees of the Home Guard/Civil Defence Department and to take further appropriate steps towards regularisation of sorting out the service for the last fifteen years or more with the A.G. (A&E), Meghalaya, Shillong, and/or final absorption of the petitioners in the AG's Establishment and till such time, respondent No.5 be directed to certify annual increments of the petitioners from the date the same were last stopped." 3. The Government of Meghalaya has resisted the writ petition, its case being, in brief, thus : The petitioners were appointed against the requirement of Guardsman in the AG's office, Shillong, and while appointing them, it had been made clear to the petitioners that their appointments would remain valid as long as the requisitioning authority requires the services of the petitioner and should their service be no longer required by the requisitioning authority, no claim by the petitioners for their absorption, in any of the units of the Home Guards, in the Civil Defence, would be entertained by the Government of Meghalaya. The Department of Home Guard and Civil Defence is only a nominating agency, which caters to the needs of the requisitioning authorities like the AG's office. The petitioners'appointments are valid so long as the requisitioning authority requires the services of the petitioners. Hence, the question of absorption of the petitioners, in any of the Department of the State Government, does not arise at all. The writ petitioners have wilfully accepted the conditions of their appointments, they are volunteers, their deployment falls directly under the requisitioning authority and leave, financial benefits, etc., are given by the requisitioning authority/agency, and the Department of Home Guards and Civil Defence is only a nominating agency. However, the State Government has no objection if the requisitioning authority opts to pay to the petitioners the scale of pay as available to regular Home Guards under the State Government. However, the State Government has no objection if the requisitioning authority opts to pay to the petitioners the scale of pay as available to regular Home Guards under the State Government. The District Commandant, Home Guards, East Khasi Hills District, Shillong, had merely kept the request of the AG's office as regards the revision of pay scale as a good gesture. Though the District Commandant had certified, in the past, the increments, which the petitioners, eventually, received, the same was stopped by the District Commandant as the service of the Home Guards are purely on temporary basis. So long as the requisitioning authority required the services of the petitioners, they would be continued to remain in service and whenever the AG's office decides not to retain the petitioners, the engagement of the petitioners would be terminated. The services of the petitioners fall under the service conditions of requisitioning authority. The practice of leave, which used to be sanctioned by the District Training Centre, Shillong, has been stopped and the requisitioning authority has been given the power to grant leave. The writ petition is wholly without merit and may, therefore, be dismissed. 4. As far as the Accountant General (Audit), who stands impleaded as respondent No. 8 and respondent Nos.6 and 7, namely. Accountant General (A&E), Meghalaya, and Senior Audit Officer (Estate), Office of the Principal Accountant General (Audit), Meghalaya, are concerned, their case is, in brief, thus: The Office of the Accountant General (A&E), Meghalaya, had requisitioned the services of Home Guards from the Government of Meghalaya for guarding Lyndhurst Estate, Laitmukhrah, Shillong. The State Government, then, deputed four Home Guards. They are employees of the Government and their pay scales are as per the pay scale of the State Government employees and since their services are utilised by the AG's office, their pay scales were given by the Accountant General. After transfer of the estate to Accountant General (Audit) office, their pay and allowances are paid by the office of the Accountant General (Audit), Meghalaya, Shillong. The petitioners are temporary employees of the State Government and as per their appointment letters, their appointments would be valid as long as the requisitioning authority requires their services. 5. Appearing on behalf of the petitioners, Mr. The petitioners are temporary employees of the State Government and as per their appointment letters, their appointments would be valid as long as the requisitioning authority requires their services. 5. Appearing on behalf of the petitioners, Mr. Dutta, learned senior counsel, submits that the petitioners are Government servants, though they may not be regular employees, and the fact that they had been given, in the past, leave and leave salary, increments and the'benefit of revision of pay scale, it clearly shows that their employment was permanent in nature at par with other Home Guard personnel of the grade of the petitioners. 6. Mr. Dutta also submits that as the petitioners have already served for twenty years, they are not only entitled to absorption, but also entitled to receive the benefit of revision of pay as recommended by the 4th Pay Commission and accepted by the Government in respect of their other employees including regular Home Guards in the State. 7. Mr. Dutta further submits that as some of the petitioners have already completed the qualifying period of service, which entitles a regular employee to receive pension, the petitioners are also entitled to receive pension and this court may pass necessary directions accordingly. 8. Opposing the writ petition, Mr. Chullai, learned Senior Government Advocate, submits that the petitioners were volunteers, their service was temporary in nature as can be seen from their orders of appointment, which made it clear to the petitioners at the time, when they were appointed, that they would be kept in employment as long as their service is required by the AG's office as the requisitioning authority. 9. Drawing attention of this court to the letter, dated 30.7.1990, which the petitioners rely upon to contend that they were given the revision of pay scale, learned Government Advocate submits that this letter was meant for regular employees. The learned Government Advocate does not, however, contend that the petitioners had not been given, in the past, the benefit of pay revision. The learned Government Advocate also submits that as the petitioners were not entitled to leave salary, increments and other service benefits, their leave salary had to be discontinued. 10. As regards the claim of the petitioners that they are entitled to pension also, learned Government Advocate submits that since the petitioners are not permanent employees, the question of giving them pension does not arise. 10. As regards the claim of the petitioners that they are entitled to pension also, learned Government Advocate submits that since the petitioners are not permanent employees, the question of giving them pension does not arise. There is, according to the learned Government Advocate, no merit in the writ petition and the same needs to be dismissed. 11. As far as Mr. Dey, learned CGC, is concerned, he has submitted that the petitioners are essentially State Government employees and their services have been lent to theAG's office, the petitioners'services being terminable, when theAG's office does not need Home Guards. As regards the nature of employment and the financial and other entitlements of the petitioners, learned CGC submits that it is primarily for the State Government to decide the petitioners' pay scale, the question of their increment, leave salary, etc. because the petitioners are the employees of the State Government and their services are merely being lent to the AG's office with the promise that they would be continued so long as their services are required by the AG's office. 12. In the light of the rival submissions made before this court, as indicated above, it is clear that the controversy, in this writ petition, raises some significant issues of not only of the law of contract but also of service jurisprudence and the Constitution. II may be noted that every employment made by the Government is at the pleasure of the Government. The result is that until the time a Government appointment takes place, the nature of appointment is contractual and once an employee is appointed, he receives a 'status' and as this 'status' is dependant on the doctrine of pleasure, the condition of his employment can be changed unilaterally. A reference, in this regard, may be made to Roshan Lal Tandonkunj Behari v. Union of India, AIR 1967 SC 1889 , wherein, while distinguishing the nature of jural relationship between master and servant, on the one hand, and the relationship between the Government and its employees, on the other, Ramaswamy, J, speaking for the Constitution Bench, pithily puts thus: "It is 'true that the origin of Government service is contractual. There is an offer and acceptance in every case. There is an offer and acceptance in every case. But once appointed to his post or office the Government servant acquires a 'status' and his rights and obligations are no longer determined by consent of both parities, but by statute or statutory rules which may be framed and altered unilaterally by the Government. In other words, the legal position of a Government servant is more one of status' than of contract. The hall-mark of'status'is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. The emolument of the government servant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee. It is true that Art. 311 imposes constitutional restrictions upon the power of removal granted to the President and the Governor under article 310. But it is obvious that the relationship between the Government and its servant is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status'. It is much more than a purely contractual relationship voluntarily entered into between the parties. The duties of 'status' are fixed by the law and in the enforcement of these duties society has an interest. In the language of jurisprudence 'status' is a condition of membership of a group of which powers and duties are exclusively determined by law and not by agreement between the parties concerned. The matter is clearly stated by Salmond and Williams on Contracts as follows: 'so we may find both contractual and 'status' obligations produced by the same transaction. The one transaction may result in the creation not only of obligations defined by the parties and so pertaining to the sphere of contract but also and concurrently of obligations defined by the law, itself, and so pertaining to the sphere of 'status'. Aeon tract of service between employer and employee, while for the most part pertaining exclusively to the sphere of contract, pertains also to that of'status' so far as the law itself has seen fit to attach to this relation compulsory incidents, such as liability to pay compensation for accidents. Aeon tract of service between employer and employee, while for the most part pertaining exclusively to the sphere of contract, pertains also to that of'status' so far as the law itself has seen fit to attach to this relation compulsory incidents, such as liability to pay compensation for accidents. The extent to which the law is content to leave matters within the domain of contract to be determined by the exercise of the autonomous-authority of the parties themselves, or thinks fit to bring the matter within the sphere of'status' by determining for itself the contents of the relationship, is a matter depending on considerations of public policy. In such contracts, as those of service, the tendency, in modem times, is to withdraw the matter more and more from the domain of contract into that of'status'." (emphasis supplied) 13. From what have been observed, in Roshan Lal Tandonkunj Behari (supra), it becomes clear that the origin of the Government service is contractual. There is an offer and acceptance in every case including the case of a Government employee, who, once appointed to his post or office, acquires a 'status'. Consequent upon his acquiring such 'status', his rights and obligations are no longer determined by consent of both the parties, but by statute or statutory rules, which may be framed and altered unilaterally by the Government. The legal position of a Government servant is, thus, more one of'status' than a contract. The emolument of the Government servant and his terms of service are governed by statute or statutory rules, which may be unilaterally altered by the Government without the consent of the employee. 14. The question, therefore, is as to what is the distinction between contractual and regular appointment of a Government servant? When the employment is contractual in nature, it will be governed by the law of contract. Every contract is entered into by an agreement between the parties, where there is offer and acceptance. The terms of the contract during the pei'formance of contract cannot be changed unilaterally by any of the parties to the contract. Unlike, therefore, the fact that a Government employee's condition of service can be changed unilaterally by the Government, the Government is debarred from unilaterally changing the terms and conditions of contract of service of an employee, whose appointment is contractual in nature. Unlike, therefore, the fact that a Government employee's condition of service can be changed unilaterally by the Government, the Government is debarred from unilaterally changing the terms and conditions of contract of service of an employee, whose appointment is contractual in nature. The terms of appointment of a contract, whereunder a person is engaged by a Government, on contractual basis, would be binding on both, the employee as well as the Government. None of them can, therefore, escape from the rights and obligations flowing from such contracts unless the rights and obligations are, in themselves, against law or, otherwise, incapable of being specifically enforced against the unwilling party to the contract. 15. Since it is the case of the respondents that in the present case, the employment of the petitioners is contractual in nature, it logically follows that the terms and conditions of the contract cannot be unilaterally changed by the Government. The question, therefore, is as to what were the terms and conditions of employment of the petitioners? This can be discerned from the orders of appointment coupled with the conduct of the parties, because the terms and conditions of a contract can be altered or changed by the parties by mutual consent. Such a consent may be discernible from the conduct of the parties. To put it a little differently, it is open to the parties to change, modify or alter the terms and conditions of a contract by mutual consent. In order to, therefore, determine whether the terms and conditions of the contract, as were originally entered into, had or had not been changed by mutual consent during the course of the performance of the contract, the conduct of the parties concerned may be the index. 16. Since it is the order of appointment, which is the primary source of determination of the nature of employment of the petitioners, let us take note of the order of appointment of the petitioners in order to understand as to what were the terms and conditions of employment of the petitioners. Considering the fact that the orders/letters of appointment of the petitioners are same, one of such letters, namely, the letter, dated 30.7.1990, is reproduced below : "Subject to discharge without notice and without assigning any reason thereof, Shri Dhiren Ch. Ray and Shri Gulap Sena Sinha is temporarily appointed as Guardsman in the scale of pay of Rs. Considering the fact that the orders/letters of appointment of the petitioners are same, one of such letters, namely, the letter, dated 30.7.1990, is reproduced below : "Subject to discharge without notice and without assigning any reason thereof, Shri Dhiren Ch. Ray and Shri Gulap Sena Sinha is temporarily appointed as Guardsman in the scale of pay of Rs. 900-15-975 EB 20-1115-20-1375 p.m. plus other allowances as admissible under the rule with effect from 1st August 1990. Their appointments are against the requirement ofA.G. Office, Shillong, and will remain valid as long as the requisitioning authority concerned requires the service of the Meghalaya Home Guards volunteers. Should their service be no longer required, no claim for absorption in any of the unit of the Home Guard/Civil Defence will be entertained. They will be liable for discharge from their posts without assigning any reasons thereof if there are any lapse/adverse report against them." 17. From a microscopic reading of the letters of appointment, what clearly surfaces is that there are three discernible conditions of the contract at hand, namely (ii) contract, in the present case, was a contingent contract in the sense that the petitioners were to remain under contractual employment so long as their services were required by the AG's office. Should, therefore, the AG's office did not require the services of the Home Guards, the petitioners' services were to be terminated. There was, thus, no permanency attached to the nature of employment of the petitioners; (ii) the petitioners were appointed on a time-scate and this time-scale was, admittedly, time-scale of the regular Home Guards in the employment of the State Government. Consequently, as the petitioners were given the pay scales of regular Home Guards in the employment of the State Government, the petitioners were to continue to receive such pay scales as were available to the regular Home Guards in the State Government; and (iii) the very appointments of the petitioners promised to them that they would be entitled to allowances, as would be available to a regular Home Guard in the employment of the State Government. This, again, shows that the petitioners were promised that they would be paid the allowances, which are, otherwise, available to the regular Government employees of their grade. 18. Though Mr. This, again, shows that the petitioners were promised that they would be paid the allowances, which are, otherwise, available to the regular Government employees of their grade. 18. Though Mr. Dutta has sought to contend, during the course of hearing of this writ petition, that the appointments of the petitioners were regular, the fact of the matter remains that the petitioners themselves have, in this writ petition, prayed for a direction to absorb them. In such circumstances, they cannot be treated to have been appointed on regular basis; otherwise also, their appointments, as have already been noticed hereinbefore, were conditional and were permanent only to the extent that they were to remain in employment as long as the AG's office required their services subject to further condition that thy would be paid, as long as their contract remains alive, not only the time-scale, but also the allowance as may be admissible to the regular Government employees of the grade of the petitioners. 19. From the terms and conditions of the petitioners' contract of employment, what flows is that though the petitioners were employed by the State Government as Home Guards on contractual basis, the terms of the contract of employment promised to them that they would be treated at par with the regular employees so long as the petitioners remain working under the contract of employment and it is for this reason that the petitioners were not given a lump-sum amount or fixed amount as consideration of their services; rather, they were given not only time-scale, which were available with the Government in respect of its other regular employees as Home Guards, but also such allowances, which were available to other regular Home Guards. The conduct of the parties to a contract being also the index of the conditions of contract, it can also be gathered that the petitioners were, indeed, paid, in the past, the leave salary and also the increments and these increments were paid by the State treasury. The Government cannot, therefore, say that they were ignorant of the fact that the petitioners were being paid leave salary, the benefits of increment and also other service benefits in the manner as were being payable to those employees, who were regularly appointed as Home Guards. 20. Though the State has contended that the petitioners are volunteers, the fact remains that the petitioners did not work free of cost. 20. Though the State has contended that the petitioners are volunteers, the fact remains that the petitioners did not work free of cost. Though their nature of duties were same as those of a volunteer Home Guard, their nature of appointments was nevertheless contractual as the State Government had promised to them the benefit of all such allowances and pay-scales as were made available to a regularly employed Home Guard under the State Government. This is also discernible from the fact that the petitioners were given the benefit of Third Pay Commission. It is the specific case of the petitioners that they received the benefit of Third Pay Commission. No statement, on oath, has been made by the respondents contending or showing that the petitioners have not received the benefit of Third Pay Commission. This is also reflective of the fact that the condition of contract had promised to the petitioners that they would be treated at par with the other regular State Government employees so long as they serve as Home Guards in terms of their appointment orders. 21. The question, therefore, is as to whether the petitioners are entitled to the benefit of the 4th Pay Commission? In this regard, as already pointed out above, since the employment of the petitioners is contractual in nature, the terms of contract cannot be unilaterally changed by the State Government. Considered in this light, it becomes clear that the petitioners are, unless otherwise debarred by law, entitled to receive the benefit of 4th Pay Commission too, because the promise, made to them, at the very commencement of the contract, was that they would be given time-scale and allowances as would be available to a regularly appointed Home Guard under the State Government. Not only that the contract of employment, in the present case, did promise to the petitioners that they would be paid time-scale and allowances of a regularly appointed Home Guard, the subsequent conduct of the parties too, as depicted above, clearly shows that the State Government did act upon its said promise by making available to the petitioners not only the pay and allowances of the Third Pay Commission but also other allowances. Having treated the petitioners so long at par with the regularly employed Home Guards under the State Government so far as the salary and other allowances of the petitioners are concerned, it logically follows that so long as the contract of employment, in the present case, subsists, the petitioners would remain entitled to receive not only the same pay scale as the regularly employed Home Guards under the State Government, but would also receive all such allowances as would be available to the regular Home Guards. 22. The question, now, is as to how long the petitioners would remain under contractual employment? In this regard, the order of appointment stated that the petitioners would remain under contractual ejmployment so long as their services are required by the AG's office. It needs to be noted that the requirement of the AG's office was not persona specific. Consequently, as long as the AG's office requires the services of the petitioners, as Home Guards, the petitioners were promised to be kept in employment. 23. It is, therefore, neither open to the AG's office nor to the State Government to replace the petitioners by any other set of similar or other employees. The petitioners can be removed unless, otherwise, indicated by law, only when the AG's office makes it clear to the State Government that they no longer require the services of Home Guards, for, such a decision of the AG's office would mean not only that the services of the petitioners are no longer required but that they also do not require the services of a regular Home Guard. Does it mean that the petitioners can never be removed from their contractual employment? The test has to be the test of effective performance of contract. 24. It may be noted that a contract may get frustrated if it cannot be performed. This would be possible if any of the petitioners becomes physically disabled or unfit to remain in employment, because of sickness, physical incapacity or disciplinary reasons. The contract, which he has entered into, would, in such circumstances as aforementioned, would get frustrated. In order to, however, determine as to what shall be the period of such employment, it may be noted that the index would be, in a case of present natUre, the period for which a regular employee remains in service with the Government. The contract, which he has entered into, would, in such circumstances as aforementioned, would get frustrated. In order to, however, determine as to what shall be the period of such employment, it may be noted that the index would be, in a case of present natUre, the period for which a regular employee remains in service with the Government. The retirement age, which the Government fixes, is, ordinarily, the index of the age up to which a person's service can be utilised effectively by the Government. Since, ordinarily, a State Government's retirement age in respect of a Home Guard is 58 years, it follows that unless any of the petitioners is afflicted by any disease or becomes unfit, for any other reason to be retained in employment, he would be continued to remain in service up to the age of 58 years, because the other regularly employed Home Guards remain capable of performing their job up to the age of 58 years. There is, therefore, no reason to infer that the petitioners would become unfit before they reach the age of 58 years. This period can be shortened only when a person is, otherwise, found to have become, physically or for any other discernible reason, unfit to remain in service. 25. What, now, needs to be pointed out is that though the petitioners have claimed that they be directed to be regularised in the post of Home Guard, there is no pleading and there is not even an iota of material on record to show that the petitioners had undergone any selection process before they came to be appointed, on contractual basis, as Home Guards in the AG's Office. Their appointments, though by the State, were in denial of equality of opportunity as enshrined in article 16 which is a facet of article 14: In the case of State ofKarnataka v. Urna Devi, (2006) 4 SCC 1 , adherence to the requirements of article 16 and holding of a selection process enabling all eligible.and willing candidates to participate in a selection process, in public employment, has been held to be a basic feature of the Constitution. In such circumstances, when the petitioners have come to be appointed, without any selection process, their appointments are not merely irregular, but are wholly illegal, for, no appointment, running contrary to the Constitutional guarantees, be termed as a mere regular appointment and not an illegal appointment. In Urna Devi (supra), while the Supreme Court firmly laid down that regularisation of a casual or contractual employee is not possible if the appointment has not been made according to the rules or if the person employed is not eligible or does not satisfy the prescribed qualification, it may, an one-time measure, an exception in respect of those appointments, which were merely irregular and not illegal if the appointment was of a duly qualified person in a duly vacant post and if such person have been continued for more than ten years without intervention by orders of the court or of the Tribunals, then, such persons can be regularised. This becomes clear from a bare reading of para 53 of Uma Devi (supra), which read as under : "53. One aspect needs to be clarified. There may be cases, where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa (supra), R.N. Nanjundappa (supra) and B.N. Nagrajan (supra) and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in light of the principles settled by this court in the cases above referred to and in the fight of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme." 26. From the above observations, made in Uma Devi (supra), it is abundantly clear that the one time exception to the general principle of not permitting regularisation has been carved out only in respect of irregular appointments and not illegal appointments. If an appointment has been made of an unqualified person to a post, such appointment is not merely irregular but illegal. Similarly, if appointment has been made against non-sanctioned post, the appointment is, again, not irregular, but is illegal. If appointment has been made in denial of constitutional obligation of the State to provide equal opportunity of employment as envisaged by article 16, which is a facet of article 14, cannot be branded as mere irregular appointments, because such appointments, being in breach of fundamental structure of the Constitutional governance cannot be regarded as mere irregular appointments. 27. In the light of the law, laid down in Uma Devi (supra), since no public employment shall be made without giving all eligible candidates a fair chance to participate in the selection process. It logically follows that appointment of the present petitioners having been made without holding any selection process and that too, not against any sanctioned vacant post, their appointments were merely contractual and cannot be equated with regular appointees. They may not have been entitled to have same pay and allowances as a regularly appointed Home Guard, but the contract of employment of the petitioners being what they are, it is too late, in the day for the State, to turn back and say that it is not bound by the terms of the contract, whereunder the petitioners have been employed. 28. There can be no doubt, as has been held in Nandganjsihori Sugar Co. Ltd., Rae Bareil and Others v. Badri Nath Dixit and Others, (1991) 3 SCC 54 , that the courts do not ordinarily, enforce performance of contracts of a personal character, such as, a contract of employment. The remedy is to sue for damages. 28. There can be no doubt, as has been held in Nandganjsihori Sugar Co. Ltd., Rae Bareil and Others v. Badri Nath Dixit and Others, (1991) 3 SCC 54 , that the courts do not ordinarily, enforce performance of contracts of a personal character, such as, a contract of employment. The remedy is to sue for damages. The grant of specific performance is entirely discretionary and must be refused, when not warranted by the end.s of justice. A relief for specific performance of a contract can be granted only on sound legal principles. A three-Judge Bench, in Integrated Rural Development Agency v. Ram Pyare Pandey, (1995) Supp (2) SCC 495, observed, in this regard, as under : "Delivering the judgment of three-member bench of this court in Nanjganj Sihori Sugar Co. Ltd., Roe Bareli v. Badri Nath Dixit Thommen, J, stated the law, thus : "a contract of employment cannot ordinarily be enforced by or against an employer. The remedy is to sue for damages. (See section 14 read with section 41 of the Specific Relief Act: see Indian Contract and Specific Relief Acts by Pollock and Mulla, 10th edn., p. 983. The grant of specific performance is purely discretionary and must be refused when not warranted by the ends of justice. Such relief can be granted only on sound legal principles. In the absence of any statutory requirement, courts do not ordinarily force an employer to recruit or retain in service an employee not required by the employer. There are, of course, certain exceptions to this rule such as in the case of a public servant dismissed from service in contravention of article 311 of the Constitution; reinstatement of a dismissed worker under the Industrial Law; a statutory body acting in breach of statutory obligations, and the like - S.R. Tewari v. District Board, Agra; Executive Committee ofU.P. Warehousing Corpn. v. Chandra Kiran Tyagi, Executive Committee of Vaish Degree College, Shamli v. Lakshminarain, see Halsbury's Laws of England, 4th edn., vol. 44, paras 405 to 420." Similarly in Ridge v. Baldwin, Lord Reid stated the law emphatically, thus : "the law regarding master and servant is not in doubt. There cannot be specific performance of a contract of service and the master can terminate the contract with his servant at any time and for any reason or for none. 44, paras 405 to 420." Similarly in Ridge v. Baldwin, Lord Reid stated the law emphatically, thus : "the law regarding master and servant is not in doubt. There cannot be specific performance of a contract of service and the master can terminate the contract with his servant at any time and for any reason or for none. But if he does so in a manner not warranted by the contract he must pay damages for breach of contract. So the question in a pure case of master and servant does not at all depend on whether the master has heard the servant in his own defence: it depends on whether the facts emerging at the trial prove breach of contract. But this kind of case can resemble dismissal from an office where the body employing the man is under some statutory or other restriction as to the kind of contract which it can make with its servants, or the grounds on which it can dismiss them." 29. From the observations made above, it is clear that as far as a State and its instrumentalities are concerned, they cannot behave as an ordinary employer. There must be a sense of responsibility in them. In the present case, the petitioners are not being threatened with termination of their service. In fact, their contracts of employment are hot sought to be terminated. What is sought to be done is a change in the terms of the contract. When the contract of employment survives and the employer is the State, as in the present case, the State cannot, arbitrarily and because it is in control of the situation and it holds the bargaining power, deny to adhere to the terms of the contract, which it has with the petitioners. To the extent, therefore, that the contract of employment, in the present case promises the petitioners payment of salary and allowances of par with the regularly appointed Home Guards, such terms of the contract cannot be unilaterally and arbitrarily changed and/or modified by the State merely because it (State) holds the bargaining power. Such an act, on the part of the State, would amount to exploitation. 30. Such an act, on the part of the State, would amount to exploitation. 30. What emerges from the above discussion is that the nature of employment of the petitioners was contractual and has remained contractual and they cannot be, in the light of the decision, in State of Karnataka v. Uma Devi, (2006) 4 SCC 1 , absorbed as regular Home Guards, but their services cannot be replaced by another set of similar employees. So long as the AG's office requires the services of Home Guards, the petitioners shall be allowed to continue up to the age of 58 years unless, on the ground of health or on some other discernible grounds, such as, on the ground of breach of discipline, the employment can be terminated. As the contract of employment is between the State " Government and the petitioners, it is the State, which is liable to pay and continue to pay to the petitioners their pay and allowances as long as the contractual employment of the petitioners survive. How the State Government arranges its finance is for the State Government to decide. Whether the money, which are payable, in the form of salary and other allowances, to the petitioners, would be paid from the State exchequer and, then, recovered from the Union of India or otherwise, it is really for the State Government and the Union of India to decide. As far as the petitioners are concerned, their contract of employment is with the State Government as has been rightly pointed out by Mr. Dutta and it is the State Government, which would remain liable to pay the salary and allowances which the petitioners are entitled to receive. Reliance placed by Mr. Dutta to the case of Manager, Mis. Pyarchand Kesarimal Porwal Bidi Fqctory v. Onkar Laxman Thenge and Others, AIR 1970 SC 823 , is jot entirely misplaced inasmuch the Supreme Court, in Onkar Laxman Thenge (supra), has clearly laid down that when an employer lends the service of his employee to the third person, the employee still continues to be in the employment of his employer. 31. Coming to the question of leave salary, etc., of the "petitioners, it needs to be noted that the contract of employment, in the present case, promises only pay and allowances at par with the regularly employed Home Guards. 31. Coming to the question of leave salary, etc., of the "petitioners, it needs to be noted that the contract of employment, in the present case, promises only pay and allowances at par with the regularly employed Home Guards. Besides, therefore, the pay and allowances, as may be available to a regularly employed Home Guard, the petitioners are not entitled, in the present writ petition, to claim any other relief. 32. Because of what have been discussed and pointed above, this writ petition partly succeeds. While the prayer for regularisation of the contract of the services of the petitioners is hereby declined and rejected, the respondents are held liable to pay and continue to pay the pay and allowances to the petitioners as are payable to the regularly employed Home Guards, unless otherwise, the contract of employment is validly terminated or expires by efflux of time on the petitioners' attaining the age of superannuation. It is further ordered that the respondents shall, as directed hereinbefore, pay all allowances to the petitioners and arrears, which may have accrued, in this regard, shall be made available to the petitioners within a period of three months from today. As far as the claim of the petitioners for leave salary, etc., is concerned, the same is hereby declined and rejected as not sustainable in law. 33. With the. above abservations and directions, this writ petition shall stand disposed of. 34. No order as to costs. 35. Furnish a copy of this order to the learned counsel for the respondents. _____________