1. Rule. Expedite.
2. Mr. Niral Mehta, learned advocate appearing for the petitioner has submitted that the petitioner cannot be denied the benefits as admissible to members of the permanent staff of Border Wing Home Guard and further that the part-time Border Wing Home Guards cannot be treated differently from the permanent staff of Border Wing Home Guard. He submitted that this court may by way of interim relief direct the respondents to continue the petitioner in service till the age of 58 years instead of the prescribed age of 55 years under the Rules.
3. In this context, Mr. Mehta has placed reliance on a decision of this Court in the case of Gajaji Gopalji Jadeja vs. State of Gujarat reported in 2005(2) GLH 235 which was SCA/6862/2012 2/5 ORDER carried in appeal before the Division Bench of this Court and thereafter before the Apex Court but the order was not disturbed. Paras 26.10 to 26.16 of the said decision read as under:
"26.10 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.
26.11 Liberty and equality are words of passion and power. They were the watchwords of the French Revolution; they inspired the unforgettable words of Abraham Lincoln's 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."
26.12 The Hon'ble 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:
SCA/6862/2012 3/5 ORDER "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."
26.13 The said principle has been reiterated by the Hon'ble 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 Hon'ble 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."
26.14 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."
26.15 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 SCA/6862/2012 4/5 ORDER of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond one's control. The Directive Principles of our Constitution practically lay down the same principle. As the government's 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."
26.16 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."
4. Mr J.K. Shah, learned AGP appearing for the respondents supported the stand of the respondents and submitted that this court may not interfere at this stage as it would amount to acting in contravention of the rules. He has placed reliance on a decision of the Apex Court in the case of State of West Bengal vs. Subhash Kumar Chatterjee and Others reported in 2010(11) SCC 694.
5. This Court is of the opinion that granting interim relief as prayed for in the petition shall amount to travelling beyond the scope of the petition at admission stage and thereby allowing the petition at this stage. The relief claimed for in the present petition can be granted at final hearing stage in view of the fact that this court is of the view that any change SCA/6862/2012 5/5 ORDER in the statutory rules qua retirement age etc are beyond the scope of this court under Article 226 of the Constitution of India more particularly at interim stage.
6. The Apex Court in the case of State of West Bengal (supra) has held that neither the Government can act contrary to rules nor the court can direct the Government to act contrary to rules. It is further held that no mandamus lies for issuing directions to a Government to refrain from enforcing a provision of law and that no court can issue mandamus directing the authorities to act in contravention of the rules as it would amount to compelling the authorities to violate and that such directions may result in destruction of the rule of law.
7. Rule 9 of The Bombay Home Guards Rules, 1953 states the age of retirement as 55 years. Therefore this Court is not in a position to grant any relief as prayed for at this stage. Interim relief is accordingly refused. However, if ultimately the petitioners succeed in this petition, the respondents are directed to consider the age of the petitioners and grant admissible benefits as if they have retired at the age of 58 years.
(K.S. JHAVERI, J.) Divya//