BHAGWATI, J. - (1.) THESE Writ Petition raise a short but interesting question of law relating to the interpretation of Article 33 of the Constitution. The question is whether S. 21 of the Army Act, 1950 read with Ch. IV of the Army Rules, 1954 is within the scope and ambit of Article 33 and if it is, whether central government Notifications Nos. SRO 329 and 330 dated 23/09/1960 making inter alia S. 21 of the Army Act, 1950 and Ch. IV of the Army Rules, 1954 applicable to the General Reserve Engineering Force are ultra vires that Article since the General Reserve Engineering Force is neither an Armed Force nor a Force charged with the maintenance of public order. It is a question of some importance since it affects the fundamental rights of a large number of persons belonging to the General Reserve Engineering Force and in order to arrive at a correct decision of this question, it is necessary first of all to consider the true nature and character of the General Reserve Engineering Force. 406
(2.) IN or about 1960 it was felt that economic development of the North and North-Eastern border areas were greatly handicapped by meagre and inadequate communications and defence of these areas also required a network of roads for effective movement and deployment of Armed Forces. This was rendered all the more necessary because the relations of INdia with its neighbours were in a state of potential conflict and part of the INdian territory was under foreign occupation and there were also hostile forces inciting some S. of the people to carry on a campaign for secession. The government of INdia therefore, with a view to ensuring coordination and expeditious execution of projects designed to improve existing roads and construct new roads in the border areas in order to improve the defence preparedness of the country, created several posts in the Directorate General of Works, Army Headquarters for work connected with the development of border roads as per letter dated 9/04/1960 addressed by the Under-Secretary to the government of INdia, Ministry of Defence to the Chief of the Army Staff. On 18/04/1960, within a few days thereafter, the government of INdia sanctioned the post of Director General, Border Roads in the rank of Major General in the Directorate General of Works, Army Headquarters; vide letter dated 18/04/1960 addressed by the Under-Secretary to the government of INdia, Ministry of Defence to the Chief of the Army Staff. The Director General, Border Roads was placed in charge of this new organisation which started originally as part of the Directorate General of Works, Army Headquarters. But sub-sequently, for reasons of high policy, it was decided that this organisation should not continue as part of the Directorate General of Works, Army Headquarters but should be under the Border Roads Development Board set up by the government of INdia as a separate self-contained authority under the chairmanship of the Prime Minister with the Defence Minister as Deputy Chairman, the Financial Adviser (Defence) as Financial Adviser and a few other members nominated by the Prime Minister. The budget of the Border Roads Development Board formed part of the budget of the Ministry of Shipping and Transport but the financial control was vested in the Ministry of Finance (Defence). The government of INdia by a letter dated 16/06/1960 addressed by the secretary of the Border Roads Development Board to the Director General, Border Roads conveyed the sanction of the President to "raising and maintenance of a General Reserve Engineering Force for the construction of roads in the border areas and such other task as may be entrusted to it by the Border Roads Development Board". It was directed that the General Reserve Engineering Force will be "under the over all command of the Director General, Border Roads under whom will be Regional Chief Engineers/ INdependent Deputy Chief Engineers who will exercise command over 407 the units of the Force placed under their control". The General Reserve Engineering Force (hereinafter referred to as GREF) was thus raised under the authority of the government of INdia and it was placed under the overall command of the Director General, Border Roads. Ever since then the Director General, Border Roads, has always been an army officer of the rank of Major General and he functions under the directions of the Border Roads Development Board. The General Reserve Engineering Force (GREF) is organised on Army pattern in units and sub-units with distinctive badges of rank and a rank structure equivalent to that in the army. The officers and other personnel of GREF are required to be in uniform right from Class IV to Class I personnel. Though GREF is undoubtedly a departmental construction agency, it is maintained by the government of India to meet the operational requirements of the Army whose operational planning is based on the availability of the units of GREF for operational purposes. In fact GREF provided support to the Army during Indo-China conflict of 1962 and Indo-Pakistan conflicts of 1965 and 1971 and also assisted the Army in the maintenance of public order during the disturbances in Mizoram in 1966 and in Assam in 1980-81. The personnel of GREF are primarily drawn from two sources and they consist of (1) officers and men belonging to the Army and (2) officers and men recruited through the Union public service commission in case of officers and departmentally in case of other ranks. A 10 per cent quota is reserved for recruitment of ex-servicemen. The posting of Army officers and men in GREF is done, not on any ad hoc basis, but in accordance with a well thought out manning policy laid down by the government of India for the purpose of maintaining at all times and at all levels the special character of GREF as a force designed to meet the operational requirement of the Army. The manning policy laid down by the government of India in respect of officers is as under : JUDGEMENT_401_3_1983Html1.htm So far as officers and men recruited through the Union public service commission or departmentally are concerned, all of them are given training at the GREF Centre, immediately after recruitment. The GREF Centre is organised on lines similar to an Army Regimental 408 Centre and also functions in the same manner. It is located at a place adjoining an Engineer Regimental Centre, initially at Roorkee and now at Pune, so that it can, if necessary, draw upon the resources of the Engineer Regimental Centre. The new recruits are Imparted training in the following three military disciplines: (a) Discipline, which includes drill, marching and saluting. (b) Combat training, including physical training, i.e. standing exercises, beam exercises, rope work, route marches etc., harbour deployment drills, camp protection etc. (c) Combat Engineering Training, including field engineering, handling of service explosives, camouflage, combat equipment, bridging, field fortifications, wire obstacles etc. GREF personnel are not trained In the use of arms, since the role to be performed by GREF is such that its personnel are not required to use arms and they need arms only for static protection and for use during emergency. Therefore in GREF issue of arms is restricted only to Army personnel and ex-servicemen apart from certain units like the Provost Units (GREF Police) which having regard to the nature of their duties, have necessarily to be armed. The tasks which are to be carried out by GREF comprise not only maintenance of strategic roads but also support for the operational plans of the Army in place of Army Engineer Regiments. We shall presently elaborate these tasks in order to highlight the true character of GREF, but before we do so, we may point out that the role and organisation of GREF units have been reviewed from time to time in consultation with the Army Headquarters and as a result of a major review caried out after the Indo-Pakistan conflict of 1971, the Army Headquarters defined the role and organisation of GREF units in a secret document dated 24/01/1973. It is clear from this document that, according to the Army Headquarters, a minimum of 17 Border Roads Task Forces and 34 Pioneer Companies are permanently required for providing engineering support to the Army and over the years, this minimum requirement has been fulfilled and 17 Border Roads Task Forces and 34 Pioneer Companies have been made permanent. These 17 Border Roads Task Forces and ,34 Pioneer Companies have to be maintained as essential units of GREF for meeting the operational requirement of the Army, even if sufficient workload is not available in border areas at any given point of time. There are, in fact, at present 21 Border Roads Task Forces and 34 Pioneer Companies, that is, four Border Roads Task Forces more than the minimum required by the Army authorities. The requirement of these four additional Border Roads Task Forces is reviewed from time to time depending on the workload. What 409 should be the composition of the Border Roads Task Forces is laid down in the document dated 24/01/1973 and this document also sets out the tasks to be earned out by the Border Roads Task Forces which may be briefly summarised as follows; (a) Maintenance of line of communication in rear areas of the theatre of operations including roads constructed by the Border Roads and roads maintained by CPWD, State PWD and MES; (b) Improvement and maintenance of operational roads and tracks constructed by combat engineers ; (c) Construction and maintenance of AICs and helipads; (d) Improvement and repairs to airfields; (e) Construction of accommodation and allied facilities for maintenance areas required for sustaining operations; (f) Construction of defence works and obstacles; and (g) Water supply in difficult terrain and deserts. These tasks are required to be carried out by the Border Roads Task Forces during operations with a view to providing engineering support to the Army in its operational plans. The Border Roads Task Forces have to perform these tasks not only within the country up to the border but also beyond the border up to the extent of advance into enemy's territory. Even during peace time the Border Roads Task Forces have to be suitably positioned in the likely area of operations so that they can, in the event of hosilities, be quickly deployed on their operational tasks. The Border Roads Task Forces along with the Pioneer Companies attached to them are also included in. the order of Battle of the Army so that the support of these units to the Army is guaranteed and can be requisitioned at any time. These units of GREF are further sub-allotted to the lower army formations such as Command, Corps and Division and they appear on the Order of Battle of these formations. Their primary functions is to carry out works projected by the General Staff, Army Headquarters to meet the operational requirements and these works include, inter alia, construction and maintenance of roads, operational tracks, airfields, ditch-cum-bund (water obstacles on the border) and field fortifications like bunkers, fire trenches and pill boxes. If after meeting the requirements of the General Staff, Army Headquarters, there is spare capacity available with these units of GREF, they undertake construction work on behalf of other ministries, or departments, though even there, preference is given to strategic and other roads in sensitive border areas. The funds allocated for the Border Roads Organisation are non-plan funds meant exclusively to meet the requirements of the 410 General Staff, Army Headquarters and they cannot be used for carrying out the works of other ministries or departments. When works are undertaken by GREF units on behalf of other ministries or departments, they are treated a5 works on agency basis and, where applicable, agency charges are collected by the Border Roads Organisation from the ministries or departments whose work is carried out by them. GREF units undertake, as far as possible, only those tasks which are similar In nature to the tasks for which they are primarily designed to meet Army requirements. It is apparent from the further affidavit of Lt. Col. S.S. Cheema that the major portion of the work carried out by GREF units consists of tasks entrusted by the General Staff, Army Headquarters and the tasks carried out on agency basis on behalf of other ministries or departments are comparatively of much lesser value. In fact, until 1966 no work on agency basis was undertaken by GREF units and during the period 1967 to 1970 less thin 2 per cent of the total work was executed by GREF units for other ministries or departments. Even during the years 1970-71 to 1980-81, the percentage of work carried out by GREF units on behalf of other ministries or departments did not on an average exceed 15 per cent of the total work. The figures for the year 1980-81 also reveal the same pattern. During 1981-82 the work executed by GREF units for General Staff, Army Headquarters consisted of construction and maintenance of 12865 km. of roads out of the funds of the Border Roads Organisation and 310 km. of ditch cum-bunds out of funds provided by the Defence Ministry while the agency work entrusted by the Ministry of Shipping and Transport did not cover more than 519 km. of strategic roads, 216 km. of sensitive border area roads and 376 km. of National Highways in border areas and the agency work entrusted by other ministries was limited only to 702 km. of roads. It will thus be seen that the major part of the work executed by GREF units consists of tasks entrusted by the General Staff, Army Headquarters and only a small percentage of work is being done on behalf of other ministries or departments when spare capacity is available.
(3.) SO far as the personnel of GREF are concerned, they are partly drawn from the Army and partly by direct recruitment. Army personnel are posted in GREF according to a deliberate and carefully planned manning policy evolved with a view to ensuring the special character of GREF as a force intended to support the Army in its operational requirements. The posting of Army personnel in GREF units is in fact regarded as normal regimental posting and does not entitle the Army personnel so posted to any deputation or other allowance and it is equated with similar posting in the Army for the purpose of promotion, career planning etc. The tenure of Army 411 personnel posted in GREF units is treated as normal Regimental Duty and such Army personnel continue to be subject to the provisions of the Army Act, 1950 and the Army Rules, 1954 whilst in GREF. But quite apart from the 'Army personnel who form an important segment of GREF, even the directly recruited personnel who do not come from the Army are subjected to strict Army discipline having regard to the special character of GREF and the highly important role It Is called upon to play in support of the Army in its operational requirements. Since the capacity and efficiency of GREF units in the event of outbreak of hostilities depends on their all time capacity and efficiency, they are subjected to rigorous discipline even during peace time, because it is elementary that they cannot be expected suddenly to rise to the occasion and provide necessary support to the Army during military operations unless they are properly disciplined and in fit condition at all times so as to be prepared for any eventuality. The government of India has in exercise of the power conferred upon it by Ss. (1) and (4) of S. 4 of Army Act, 1950 issued a notification bearing No. SRO 329 dated 23/09/1960 applying to GREF all the provisions of that Act with the exception of those shown in Schedule A, subject to the modifications set forth in Schedule B and directing that the officers mentioned in the first column of Schedule C shall exercise or perform, in respect of members of the said Force under their command, the jurisdiction, powers and duties incident to the operation of that Act specified in the second column of Schedule C. This Notification makes various provisions of Army Act, 1950 applicable to GREF and amongst them is S. 21 which provides: 21. Subject to the provisions of any law for the time being in force relating to the regular Army or to any branch thereof, the central government may, by notification, make rules restricting to such extent and in such manner as may be necessary the right of any person subject to this Act- (a) to be a member of, or to be associated in any way with, any trade union or labour union, or any class of trade or labour unions or any society, institution or association, or any class of societies, institutions or associations; (b) to attend or address any meeting or to take part in any demonstration organised by any body of persons for any political or other purposes ; (c) to communicate with the press or to publish or cause to be published any book, letter or other document. The other S. which are made applicable deal with special privileges, offences, punishments, penal deductions, arrest and proceed 412 ings before trial, courts-martial and other incidental matters. These S. which are made applicable are primarily intended to impose strict discipline on the members of GREF the same kind of discipline which is required to be observed by the regular Army personnel. The government of India has also in exercise of the powers conferred by S. 21, Ss. (4) of S. 102 and S. 191 of the Army Act, 1950 issued another notification bearing No. SRO 330 on the same day, namely, 23/09/1960, directing that the Army Rules, 1954 as amended from time to time shall, with the exception of Rules 7 to 18, 168, 172 to 176, 190 and 191, be deemed to be Rules made under the Army Act, 1950 as applied to GREF. Rules 19, 20 and 21 of the Army Rules, 1954 are material for the purpose of the present Writ Petition and they provide inter alia as follows 19. Unauthorised organisations.-No person subject to the Act shall, without the express sanction of the central government- (i) take official cognisance of, or assist or take any active part in, any society, institution or organisation, not recognised as part of the Armed Forces of the Union; unless it be of a recreational or religious nature in which case prior sanction of the superior officer shall be obtained; (ii) be a member of, or be associated in any way with, any trade union or labour union, or any class of trade or labour unions. 20. Political and non-military activities.-(1) No person subject to the Act shall attend, address, or take part in, any meeting or demonstration held for a party or any political purposes, or belong to or join or subscribe in the aid of, any political association or movement. (2) No person subject to the Act shall issue an address to electors or in any other manner publicly announce himself or allow himself to be publicly announced as a candidate or as a prospective candidate for election to Parliament, the legislature of a State, or a local authority, or any other public body or act as a member of a candidate's election committe, or in any way actively promote or prosecute a candidate's interests. 21. Communications to the Press, Lectures, etc.-No person subject to the Act shall- (i) publish in any form whatever or communicate directly or indirectly to the Press any matter in relation to a political question or on a service subject or containing any service information, or publish or cause to 413 be published any book or letter or article or other document on such question or matter or contammg such information without the prior sanction of the central government, or any officer specified by the central government in this behalf ; or (ii) deliver a lecture or wireless address, on a matter relating to a political question or on a service subject or containing any information or views on any service subject without the prior sanction of the central government or any officer specified by the central government in this behalf. The Rules obviously owe their genesis to S. 21 and they impose restrictions on the fundamental rights of members of GREF. Since the Army Act, 1950 and Army Rules, 1954 are made applicable by virtue of SROs Nos. 329 and 330 dated 23/09/1960, GREF personnel when recruited, are required to accept certain terms and conditions of appointment which include inter alia the following : 5(iv) : You will be governed by the provisions of central Civil Service (Classification, Control and Appeal) Rules, 1965, as amended from time to time. Notwithstanding the above, you will be further subject to certain provisions of the Army Act, 1950, and Rules made thereunder, as laid down in SROs 329 and 330 of 1960, for purposes of discipline. It will be open to the appropriate disciplinary authority under the Army Act, 1950 to proceed under its provisions wherever it considers it expedient or necessary to do so. 5 (v) : You will be required to serve anywhere in India or outside India and when so called upon by the government or the appointing authority or your superior officer, you shall proceed on field service. 5(vi) : You shall, if required, be liable to serve in any Defence Service or post connected with the defence of India. 5(xi) : On your appointment, you will be required to wear the prescribed uniform while on duty, abide by such rules and instructions issued by your superior authority regarding discipline, turnout, undergo such training and take such departmental test as the government may prescribe. The result is that the directly recruited GREF personnel are governed by the provisions of central Civil Services (Classification, Control and Appeal) Rules, 1965 as amended from time to time but for purposes of discipline, they are subject to certain provisions of the 414 Army Act, 1950 and the Army Rules, 1954 as laid down in SROs Nos. 329 and 330 dated 23/09/1960. The material facts in all the Writ Petition which are being disposed of by this judgment are similar and hence it is not necessary to set out separately the facts of each writ petition. It will suffice to set out the facts of Writ Petition No. 815 of 1980 which was tried as the main writ petition and whatever we say in regard to the facts of this writ petition must apply equally in regard to the other Writ Petition. The petitioners in Writ Petition No. 815 of 1980 are 24 in number and at all material times they were members of GREF. Out of them, petitioners 1 and 24 were deserters from service and warrants were issued for their arrest under the provisions of the Army Act, 1950 but the police authorities were not able to apprehend them. So far as petitioners 2 to 23 are concerned, they were charged before the court Martial for the offences under S. 63 of the Army Act, 1950 in that they along with some other GREF personnel assembled in front of HQ Chief Engineer (Project), Vartak shouting slogans and demanding release of HQ CE (P), Vartak personnel placed under arrest, removed thenbelts and threw them on the ground in the vicinity of OC's office, participated in a black flag demonstration and failed to fall in line though ordered to do so by Brig. Gosain, Chief Engineer (Project), Vartak and also associated themselves with an illegal association called "All India Border Roads Employees Association". These 22 petitioners were tried by the court Martial in accordance with the procedure prescribed by the Army Act, 1950 and the Army Rules, 1954 as applicable to the members of GREF and on being convicted, they were dismissed from service. The petitioners thereupon preferred Writ Petition No. 815 of 1980 challenging the validity of SROs Nos. 329 and 330 dated 23/09/1960 since these Notifications had the effect of applying the provisions of the Army Act, 1950 and the Army Rules, 1954 to the members of GREF and restricting their fundamental rights. The petitioners contended that GREF was not a Force raised and maintained under the authority of the central government and SROs Nos. 329 and 330 dated 23/09/1960 were ultra vires the powers of the central government under Ss. (1) and (4) of S. 4 of the Army Act, 1950. The petitioners also urged that in any event the application of S. 21 of the Army Act, 1950 read with Rules 19 to 21 of the Army Rules. 1954 to the members of GREF was unconstitutional since it restricted the fundamental rights of the members of GREF in a manner not permitted by the Constitution and such restriction of the fundamental rights was not protected by Article 33, because the members of GREF were-hot "members of the Armed Forces or 415 the Forces charged with the maintenance of public order" within the meaning of that Article. There was also one other contention advanced on behalf of the petitioners which, if welt founded would render it unnecessary to examine whether GREF was a Force raised and maintained under the authority of the central Government and the members of GREF were members of the Armed Forces or the Forces charged with the maintenance of public order and that contention was that S. 31 of the Army Act, 1950 was In any event not justified by the terms of Article 33, since under that Article it was Parliament alone which was entrusted with the power to determine to what extent any of the fundamental rights shall, in application to the members of the Armed Forces or the Forces charged with the maintenance of public order, be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline amongst them and Parliament could not leave it to the central government to determine the extent of such restriction or abrogation as was sought to be done under S. 21. S. 21 was therefore, according to the petitioners, unconstitutional and void and along with S. 21 must fall Rules 19 to 21 of the Army Rules, 1954. The petitioners contended that in the circumstances they were entitled to exercise their fundamental rights under clauses (a), (b) and (c) of Article 19(1) without any of the restrictions imposed by Rules 19 to 21 of the Army Rules, 1954 and if that be so, they could not be charged under S. 63 of the Army Act, 1950 on the facts alleged against them and their convictions by the court Martial were illegal and void and consequently they continued in service of GREF. The selfsame contentions were repeated on behalf of the petitioners in the other Writ Petition. The respondents disputed the validity of these contentions and submitted that GREF was a Force raised and maintained under the authority of the central government and having regard to the special character of GREF and the role which it was required to play in support of the Army operations, the members of GREF could legitimately be regarded as members of the Armed Forces within the meaning of Article 33 and the central government was therefore entitled to issue SROs Nos. 329 and 330 dated 23/09/1960 making the provisions of the Army Act, 1950 and the Army Rules, 1954 and particularly S. 21 and Rules 19 to 21 applicable to the members of GREF. The respondents defended the validity of S. 21 and contended that it was a proper exercise of power by Parliament under Article 33 determining the extent to which the fundamental rights may, in their application to the members of the Armed Forces including GREF, be restricted or abrogated and it was not outside the power conferred on Parliament by that Article and, read with Rules 19 to 21, it validly restricted the fundamental rights of the members of GREF. The respondents submitted that 416 in the circumstances the petitioners were rightly charged under S. 63 of the Army Act, 1950 and their convictions by the court Martial and subsequent dismissals were valid. The respondents thus sought to sustain the validity of the action taken by the authorities against the petitioners.;