Decided on April 15,1955

THE STATE Respondents


Dixit, J. - (1.) IN this application under Article 226 of the Constitution of India, the Petitioner challenges the validity of his retrenchment from the special Armed Forces of Madhya Bharat and claims that if the retenchment is vaild, then he is entitled to get pension in accordance with Notification No. 5 of 1949 dated 14 -5 -1949 issued by the Department of Defence of Madhya Bharat Government and not under the retrenchment terms contained in Notification No. 180 -VII -G(EM) dated 9 -7 -1949, of the Finance Department.
(2.) THE circumstances giving rise to this petition are that the applicant was member of the Gwalior State Armed Forces and held the rank of Lieutenant in the wireless section of that army. On the formation of Madhya Bharat under Article VI(1) (d) of the covenant when the military forces of the covenanting State became the military forces of the Madhya Bharat State Forces. Article XVI(1) of the Covenant guaranteed either the continuance in service of the permanent members of the public services of each of the covenanting State on 15 -4 -1948 or the payment of reasonable compensation. In accordance with this Article rules fixing compensation payable to retrenched army personnel, rules for determining their seniority and promotion and of pension and gratuity in the normal course were framed and published by Notification No. 5 of 1949 dated 14 -5 - 1949, Department of Defence. The Petitioner states that he became a permanent member of the Madhya Bharat State Army. This is, however, denied by the opponents who averred that in constituting the Madhya Bharat Forces "only status quo was sought to be maintained and therefore, there was no question of organization of integration and as such of those forces nor was the Petitioner permanently absorbed in that forces. The point that the applicant was or was not permanent member of the Madhya Bharat State Forces is, however, not very material here. For, subsequently on coming into force of the Constitution the armed forces of the State became a part of the armed forces of the Union. And when there after according to a scheme a selection of the members of the State armed Forces for permanent absorption in the Indian Army was made, the applicant was, however, not absorbed in the indian army. At this time the Madhya Bharat Government were proposing to constitute a Special Armed Force for the State and in manning that Force they, in consultation with the Government of India, agreed to give preference to eligible members of the State Forces who had not been absorbed in the Indian Army. A Board was then constitued "for screening out of the Indian State Forces and Non -ISF, personnel of the Madhya Bharat Force for Madhya Bharat." The Petitioner appeared before the Board and was found suitable for Special Armed Force. He took advantage of this offer of the State Government of employment in the Special Armed Forces which took into account his previous army, service and instead of retiring from the Indian Army, chose to be transferred from the Indian State Forces to the Special Armed Forces. On 5 -4 -1951 an order appointing the applicant as company commander of 2nd Battalion S.A.F. Indore, until further order was passed. Thereafter on 17 -9 -1952 he was transferred from the 2nd Battalion S.A.F., to 1st Battalion S.A.F. Gwalior. In the final scheme of integration of time police department of which the Special Armed Forces were a part, the Petitioner was offered the substantive rank of an Inspector in the S.A.F. He, however declined to accept the position and suggested that he should be ranked as Deputy Superintendent of Police. This suggestion Was turned down. When the Petitioner refused to serve as Inspector in the S.A.F., he was asked to go on leave preparator to retrenchment and on 22 -3 -1954 the Commander of S.A.F. passed an order retrenching the applicant from 1 -3 -1954 "under Clause (a)(7) of Part 1 of the retrenchment rules issued by the Finance Department on 12 -7 -1949. It must be stated that when the question of the inclusion in the S.A.F of those members of the Indian State Forces who had not been absorbed in the Iidian Army was under consideration the General Officer Commanding of the Madhya Bharat State Forces addressed a confidential letter dated 8 -6 -1951 to the Chief Secretary seeking, clarification on certain points, He wrote : There are still few points which require clarification and concerning which officers about to be transferred from I.S.F. to S.A.F. are making inquiries. (a) it is apparent that the officers are being transferred from I.S.F. to S.A.F. and therefore it will be continuation of service without break. Is this correct? (b) will the age for superannuation be 55 years and 25 years service as applicable to other Civil Servants? (c) If at any future date retrenchment takes place will the officer be entitled to receive the present retrenchment terms for the combined Service (ISF plus SAF) at that time? (d) Will officers be elgibie to be trained and transferred to Civil Police from SAF? (2) Is it permissible for officers to take the mustering out term now from ISF and enter the SAF on fresh engagement (i.e., the service would not be reckonable for pension)? Officers electing this procedure would of course enter SAF in their present rank in ISF. To this letter the Deputy Secretamy in the Police Department replied on 12 -3 -1951 as follows : 2. The state Government have considered the points mentioned in the confidential memorandum under reply with the following results: (a) The reply to your query is in the affirmative. (b) They will be entitled to the same persionary benefit as are applicable to the civilian personnel of the Madhya Bharat Government. (c) The reply to your query is in the affirmative. (d) The reply to your query is in the affirmative subject to the requirements of the officers in Civil Police and fitness of the officers concerned to be absorded therin. (3) The answer to the queru in para 2 of your letter is in the affirmative. There is no objection to ISF ifficers selected for appointment in SAF taking their mustering out terms from the Army. They can enter S.A.F. on fresh engagement terms. The terms to be offered to each individual officer would naturally vary from individual to individual and depend on the merits of each case. On 9 -3 -1951 the Commander of the S.A.F. issued an order to the effect that the Defence Department Notification No. 5 of 1949 will apply to S.A.F. personnel "who are and who will be retrenched by Madhya Bharat Government." On 20 -6 -1953 the Commandant 1st Battalion S.A.F. wrote to Shivnath Singh a letter which ran as follows: On publication of the structure of the Special Armed Force as annexure III in the Special M.B. Gazette of 29 -5 -1953, some officers referred to the portion where it says that Coy. Comds. and Cav. Wing Comd. will be Inspectors and the note (ii) of Ahnexure 'D' of Home Deptt., resolution and have expressed that under these circumastance they would prefer retrenchment under M.B. Government Gazette Notification No. 5/49 than to continue as inspectors Coy. Comds. The publication is clear. Those who do not want to continue as inspectors have still the apportunity of the benefit of the retrenchment concessions. Officers will therefore take a definite decision and inform this office of it on or before 26 -6 -53 so that any action required can be taken.
(3.) THE Petitioner contends that his retrenchment from the S.A.F. is contrary to the rules and regulations applicable to his case; that under the defence Department Notification No. 5/49 he could not be retrenched and if the retrenchment is valid, then the matter of his pension ought to be dealt with according to the said notification and not under Notification No. 180/VII G (EM) dated 9 -7 -1949 of the Finance Department, and that he has been discriminated against in as much as whereas some other members of the ISF retrenched from the S.A.F. have been given the benefit of the Defence Department Notification No. 5/49, he has been denied that benefit and that the application of the retrenched terms issued by the Finance Department entails loss of Rs. 13 in his a pension amount. On these facts the Petitioner prays : (a) this Honourable Court be pleased to issue a writ of mandamus directing the State of Madhya Bharat to deal with the case of the Petitioner according to the Defence Department Notification No. 5/49 and given him all his rights and facilities as per terms and rules contained therein. (b) further be pleased to issue a writ off prohibition against the State directing them not to deal with his case by applying Finance Department Notification No. 180/VII -G(EM) dated 9 -7 -1949. (c) further be pleased to declare that he has been wrongfully retrenched and therefore he is entided to hold the same post.;

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