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PETITIONER: R. VISWAN & OTHERS

       Vs.

RESPONDENT: UNION OF INDIA & OTHERS

DATE OF JUDGMENT06/05/1983

BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. CHANDRACHUD, Y.V. ((CJ) REDDY, O. CHINNAPPA (J) ERADI, V. BALAKRISHNA (J) MISRA, R.B. (J)

CITATION:  1983 SCR  (3)  60        1983 SCC  (3) 401  1983 SCALE  (1)497

ACT:      Army Act, 1950-S. 21-Constitutional validity of-Whether saved by Art. 33.      Army Act,  1950-Sub-ss. (1)  and (4)  of s.  4-’Force’- Meaning of.      General Reserve Engineering Force. (GREF)-Whether it is ’force’ within the meaning of sub-ss. (1) and (4) of s. 4 of Army Act, 1950-Whether members of GREF are members of ’Armed Forces’ within  the meaning  of  Art.  33  of  Constitution- Whether S.R.  Os. 329  and 330  applying provisions  of Army Act, 1950 and Army Rules 1954 to members of GREF in exercise of power under sub-ss. (1) and (4) of s. 4 of Army Act, 1959 ultra vires  Art. 33  of Constitution-Whether application of Central Civil  Services (Classification, Control and Appeal) Rules, 1965 as also provisions of Army Act and Army Rules to members of GREF violative of Art. 14 of Constitution.

HEADNOTE:      The petitioners  who belonged  to the  General  Reserve Engineering Force  (GREF) were  charged under  s. 63  of the Army Act,  1950 on  allegations inter  alia  that  they  had assembled in front of the Chief Engineer and shouted slogans demanding  release   of  personnel   placed  under   arrest, participated in  a black  flag demonstration  and associated themselves with  an illegal  association. They were tried by Court Martial  in accordance  with the  prescribed procedure and, on being convicted, were dismissed from service.      The petitioners  submitted that  their  convictions  by Court  Martial   were  illegal   and  raised  the  following contentions in  support of  their plea:  that the GREF was a civilian construction  agency and  not a  ’force’ raised and maintained under the authority of the Central Government and consequently, the members of GREF were not "members of Armed Forces or  the Forces charged with the maintenance of public order" within the meaning of Art. 33 of the Constitution and therefore the application of s. 21 of the Army Act read with rs. 19  to 21 or the Army Rules to them was unconstitutional since it restricted their fundamental rights in a manner not permitted by  the Constitution;  that S.R.  Os 329  and  330

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which were  notifications having  the effect of applying the provisions of the Army Act and the Army Rules to the members of the  GREF were  ultra vires  the powers  of  the  Central Government under  sub-ss. (1)  and (4)  of s.  4 of the Army Act; that s. 21 of the Army Act was unconstitutional as it 61 was not  justified by  the terms of Art. 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  Forces charged  with the  maintenance  of  public order, be  restricted or  abrogated and Parliament could not have left  it to  the Central  Government to  determine  the extent of such restriction or abrogation as was sought to be done under  s. 21;  that the  petitioners were  entitled  to exercise their  fundamental rights  under cls.  (a), (b) and (c) of  Art. 19  (1) without any of the restrictions imposed by rs.  19 to  21 of the Army Rules and therefore they could not be  charged under  s. 63  of the  Army Act  on the facts alleged against them; that their trial was not in accordance with law;  and that the application of the provisions of the Army Act  and the  Army Rules  to the  members of  GREF  for purposes of  discipline was  discriminatory and violative of Art. 14  inasmuch as  the members  of the GREF were governed both by  the Central  Civil Services (Classification Control and Appeal)  Rules, 1965  and the provisions of the Army Act and the Army Rules in matters of discipline.      Dismissing the petitions, ^      HELD 1.  (a) The  functions  and  duties  of  GREF  are integrally  connected   with  the   operational  plans   and requirements of the Armed Forces. There can be no doubt that without the  efficient and  disciplined operational  role of GREF the military operations in border areas during peace as also in times of war will be seriously hampered and a highly disciplined and  efficient GREF  is absolutely essential for supporting the operational plans and meeting the operational requirements of  the Armed  Forces. The  members of the GREF answer the  description of  "members of  the  Armed  Forces" within  the   meaning  of   Art.  33  and  consequently  the application of  s. 21 of the Army Act to the members of GREF is protected  by that  Article and the fundamental rights of the members of GREF must be held to be validly restricted by s. 21  read with rs. 19 to 21 of Army Rules. The petitioners were therefore  liable to be charged under s. 63 of the Army Act for  the alleged  violations of  rs. 19  to 21 and their convictions and  subsequent dismissals  must be  held to  be valid. [88 F-89 B]      (b) The fact that the members of the GREF are described as civilian  employees and they have their own special rules of  recruitment  and  are  governed  by  the  Central  Civil Services (Classification, Control and Appeal) Rules, 1965 is not determinative  of the  question whether they are members of the  Armed Forces.  The question  whether the  members of GREF can  be said  to be members of the Armed Forces for the purpose of  attracting the  applicability of  Art.  33  must depend  essentially   on  the   character   of   GREF,   its organisational set  up, its functions, the role it is called upon to  play in  relation to the Armed Forces and the depth and intimacy  of  its  connection  and  the  extent  of  its integration with the Armed Forces. The history, composition, administration, organisation  and role  of GREF clearly show that GREF  is an  integral part of the Armed Forces and that the members  of GREF  can legitimately be said to be members of the  Armed Forces  within the  meaning of  Art. 33. It is

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undoubtedly a  departmental construction agency as contended on behalf of the petitioners but it is distinct from other 62 construction agencies  such  as  the  Central  Public  Works Department in  that it  is a  force  intended  primarily  to support the Army in its operational requirement. [87 D-H, 83 G]      Ous Kutilingal  Achudan Nair and Ors. v. Union of India and Ors., [1976] 2 S.C.R. 769, referred to.      (c) The  Central Government  is empowered  under sub-s. (1) of  s. 4  of the Army Act to apply any of the provisions of that Act to any force raised or maintained in India under the authority of that Government. When the provisions of the Army Act  are applied to any force under sub-s. (1) of s. 4, the Central  Government can,  by notification  issued  under sub-s.  (4)   thereof,  direct   by  what   authority,   the jurisdiction, powers and duties incident to the operation of those provisions  shall be exercised or performed in respect of that  force. The word ’force’ is not defined any where in the Army  Act but  sub-s. (2)  of s.  4 clearly contemplates that ’force’  referred to  in sub-s.  (1) of  s. 4 must be a force organised  on similar  lines as  the  army  with  rank structure. There  can be  no doubt  that  GREF  is  a  force organised on  army pattern with units and sub-units and rank structure. It  is clear  from the letter dated June 16, 1960 addressed by  the Secretary,  Border Roads Development Board to the  Director General  Border Roads  that GREF is a force raised and  maintained under  the authority  of the  Central Government. The  Central Government  therefore had the power under sub-ss.  (1) and  (4) of  s. 4  to issue notifications S.R.O. 329  and S.R.O. 330 applying some of the Army Act and the Army Rules to the GREF. [82 B-H]      (d) There  is  no  substance  in  the  contention  that applying the  provisions of  the Army Act and the Army Rules to  the  members  of  GREF  for  purpose  of  discipline  is discriminatory and  violative of  Art. 14. The nature of the proceedings which  may be  taken  under  the  Central  Civil Services (Classification,  Control and Appeal) Rules against an erring  employee is  different from  the  nature  of  the proceedings  which  may  be  taken  against  him  under  the provisions of  the Army Act read with Army Rules, the former being disciplinary  in  character  while  the  latter  being clearly penal.  There is  no  overlapping  between  the  two because ss.  20 and  71 of  the Army  Act  which  deal  with dismissal, removal  or reduction  in rank have not been made applicable to  the  members  of  GREF  by  S.R.O.  329.  The respondents have  positively stated  in their affidavit that clear and  detailed administrative guidelines have been laid down for  the purpose  of guiding the disciplinary authority in exercising  its discretion whether to take action against an  employee   of  GREF   under   Central   Civil   Services (Classification, Control and Appeal) Rules or the Army Rules and therefore  it is not possible to say that the discretion vested  in  the  authorities  is  unguided  or  uncanalised. Moreover, the  decision in Northern India Caterers v. Punjab on which  this contention  is based  has been  overruled  in Maganlal  Chhaganlal   v.  Municipal   Corporation,  Greater Bombay. In any event, the provisions of the Army Act and the Army Rules  as applied  to the members of GREF are protected by Art.  33 against  invalidation on the ground of violation of Art. 14. [90 G-92 B] 63      Northern India Caterers v. Punjab, [1976] 3 S.C.R. 399; and Maganlal  Chhaganlal v.  Municipal Corporation,  Greater Bombay, [1974] 2 S.C.C. 402, referred to.

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    (e) The  contention that  the trial  of the petitioners was not  in accordance with law was strongly resisted by the respondents and  having regard to the averments made by them on  this   point  it  is  not  possible  to  hold  that  the convictions of the petitioners by the Court Martial were not in accordance  with law. In any event, the allegation of the petitioners in this behalf raised disputed questions of fact which it is not possible to try in a writ petition. [90 A-F]      (f) The  alleged disparity  between the  Army personnel posted in  GREF units and officers and men of GREF in so far as the  terms and  conditions of  service  such  as  salary, allowances and  rations has  no real bearing on the question whether the  members of  GREF can  be said  to be members of Armed Forces.  Since the  members of  GREF  are  drawn  from different  sources   it  is  possible  that  the  terms  and conditions of  service of  the personnel coming from the two sources may  be different. In case it is found that there is any  disparity  the  Central  Government  may  consider  the advisability of taking steps for its removal. [89 C-H]      2. Section  21 of  the Army  Act empowers  the  Central Government to  make rules restricting "to such extent and in such manner  as may be necessary" three categories of rights of any person subject to the Army Act. These rights are part of the  fundamental rights  under cls.  (a), (b)  and (c) of Art. 19(1)  and under the constitutional scheme, they cannot be restricted by executive action unsupported by law. But s. 21 is  saved by  Art. 33 which carves out an exception in so far as the applicability of fundamental rights to members of the Armed Forces and the Forces charged with the maintenance of  public  order  is  concerned.  On  a  plain  grammatical construction of  its language, Art. 33 does not require that Parliament itself  must by  law restrict  or abrogate any of the fundamental rights in order to attract the applicability of that  Article. What  it says  is only  this and  no more, namely that  Parliament may by law determine the permissible extent to  which  any  of  the  fundamental  rights  may  be restricted or  abrogated in their application to the members of  the  Armed  Forces  and  the  Forces  charged  with  the maintenance  of  public  order.  Parliament  itself  can  by enacting a  law restrict  or abrogate any of the fundamental rights in  their application  to the members of these forces as in  fact it  has done by enacting the Army Act But having regard to the varying requirement of army discipline and the need for  flexibility in  this sensitive  area it  would  be inexpedient  to   insist  that   Parliament  itself   should determine what particular restrictions should be imposed and on which  fundamental  rights  in  the  interest  of  proper discharge of  duties by  the members  of  these  Forces  and maintenance of  discipline among  them The  extent  of  such restrictions would  necessarily depend  upon the  prevailing situation  at  a  given  point  of  time  and  it  would  be inadvisable to  encase it  in a rigid statutory formula. The Constitution makers  were obviously  anxious  that  no  more restrictions should  be placed  on the fundamental rights of the members  of these  Forces than  are absolutely necessary for ensuring proper discharge of 64 their duties  and the  maintenance of discipline among them. They therefore,  decided to  introduce a  certain amount  of flexibility in  the imposition  of such restrictions and, by Art. 33,  empowered Parliament  to determine the permissible extent to  which any  of the  fundamental  rights  in  their application to the members of these Forces may be restricted or  abrogated   so  that,  within  such  permissible  extent determined  by   Parliament,   any   appropriate   authority

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authorised by  Parliament may  restrict or abrogate any such fundamental rights.  Parliament was  therefore,  within  its power under  Art. 33  to enact  s.21. The  extent  to  which restrictions may  be imposed on the fundamental rights under cls. (a),  (b) and (c) of Art. 19(1) is clearly indicated in cls. (a), (b) and (c) of s. 21 and the Central Government is authorised  to  impose  restrictions  on  these  fundamental rights only to the extent of the rights set out in cls. (a), (b) and  (c) of  s. 21  and  no  more.  The  guidelines  for determining as  to which  restrictions should  be considered necessary by  the Central  Government within the permissible extent determined  by Parliament  is  provided  in  Art.  33 itself, namely,  that the restrictions should be such as are necessary for  ensuring the proper discharge of their duties by the  members of  the Armed  Forces and the maintenance of discipline among  them The  Central Government  has to  keep this guideline before it in exercising the power of imposing restrictions under  s. 21.  Once the  Central Government has imposed restrictions  in exercise  of this  power, the Court will not  ordinarily interfere  with  the  decision  of  the Central Government  that  such  restrictions  are  necessary because that  is a  matter left by Parliament exclusively to the Central  Government which  is best in a position to know what  the   situation  demands.  Section  21  must,  in  the circumstances, be held to be constitutionally valid as being within the power conferred under Art. 33. [83 B-D, 78 -81 C]      Ram Swarup  v. Union  of India,  [1964] 5  S.C.R.  931, referred to.

JUDGMENT:      ORIGINAL JURISDICTION  :  W.P.  (CRL)  Nos.  815,  843, 632/80, 844, 5116/81, 1301-04, 1383, 3460, 4510, 4511, 4512, 4551/80 & 3861, 3848, 8317/81 and 59 of 1982.      (Under article 32 of the Constitution of India)                             AND      Special Leave Petition (Crl.) Nos. 2061-65 of 1980.      From the Judgment and Order dated the 19th May, 1980 of the Delhi High Court in Criminal Writ Petition Nos. 24-27/80 & 30/80.      K.K.Venugopal, Miss  Mridula Roy, D. P. Mukherjee, A.K. Ganguli &  G.S. Chatterjee,  with him for the Petitioners in WPs. 815, 5116, 843, 844, 8317. 65      M. K. Ramamurthy, Janardhan Sharma and P. Gaur with him for the Petitioners in WPs. 3460, 1383, 4510, 4551, 1301-04, 4511, & SLPs. 2061-65.      Miss Kailash Mehta for the Petitioners in WP. 3861.      M.M.L. Srivastava for the Petitioner in WP. 3848.      Chandramouli-Petitioner in person-in WP.632.      Nemo in WP. 59.      R.K. Mehta for the Petitioner in WP. 4512/80.      L.N. Sinha,  Attorney General,  M.K.Banerji, Additional Solicitor General,  K.M. Abdul  Khader, Girish  Chandra  and Miss A. Subhashini with them for the Respondents.      The Judgment of the Court was delivered by      BHAGWATI, J.  These writ  petitions raise  a short  but interesting question  of law  relating to the interpretation of Article  33 of  the Constitution. The question is whether section 21  of the Army Act 1950 read with Chapter 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 23rd September 1960 making inter alia section 21  of the  Army Act 1950 and Chapter IV of the Army

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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.      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 net work of roads for effective movement  and deployment of Armed Forces. This was rendered all the more necessary 66 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 inviting  some sections  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 is order to improve the defence  preparedness of  the country,  created  several posts  in  the  Directorate  General  of  Works.  Army  Head Quarters for  work connected  with the development of border roads as  per letter  dated 9th  April 1960 addressed by the Under Secretary  to the  Government of  India,  Ministry  of Defence to  the Chief of the Army Staff. On 18th April 1960, within a  few  days  thereafter,  the  Government  of  India sanctioned the  post of  Directorate General Border Roads in the rank  of Major-General  in the  Directorate  General  of Works, Army Head Quarters; vide letter dated 18th April 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  Head  Quarters.  But subsequently, for  reasons of  high policy,  it was  decided that this  Organisation should  not continue  as part of the Directorate General  of Works, Army Head Quarters but should be under  the Board  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  16th  June  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  tasks 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 67

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    Over  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 over all 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 arc  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 pro- vided 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 Mijoram in 1966 and in Assam in 1980-81. The personnel  of GREF  are primarily drawn from two sources and they  consist of  (I) 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 ten 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: G Posts                                       Army     GREF Brig/Col/Chief Engineer Gr. I & II           75%     25% Lt. Col./Superintending Engineer             50%     50% Major/Executive Engineer                     42%     58% Capt./Asstt. Executive Engineer              20%     80% Assistant Engineer                            -     100% 68 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  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

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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 carried out  after the  Indo-Pakistan Conflict  of 1971, the Army Headquarters  defined the role and organisation of GREF units in  a secret  document dated  24th January 1973. It is clear  from  this  document  that,  according  to  the  Army Headquarters, 69 a minimum  of 17  Border Roads  Task Forces  and 34  Pioneer Companies are  permanently required  for providing  engineer 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 work load  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  work-load.  What  should  be  the composition of  the Border Roads Task Forces is laid down in the document  dated 24th January 1973 and this document also sets out  the tasks  to be  carried 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  all  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 70 upto the  border but  also beyond the border upto 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   hostilities,  be   quickly  deployed   on  their operational tasks.  The Border  Roads Tasks Forces alongwith

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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 function  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 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  as  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 than  2 percent  of the total work was executed by GREF units for  other ministries  or departments. Even during the years 1970-71 to 1980-81, 71 the percentage  of work  carried out by GREF units on behalf of other  ministries of  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 kms.  of roads  out of  the funds  of the Border Roads Organisation and  310 kms.  of ditch-cum-bunds  out of funds provided as  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 kms.  of sensitive broader  area  roads  and  376  kms.  of  National Highways in  border areas  and the  agency work entrusted by other ministries  was limited  only to 702 kms. 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.      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

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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 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 72 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 sub- sections (1)  and (4) of Section 4 of Army Act 1950 issued a Notification bearing  SRO  329  dated  23rd  September  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 Section 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   of  labour  unions,  or  and  society,           institution  or   association  or   any  class  of           institution 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           documents.      The other  sections which are made applicable deal with special privileges, offences, punishments, penal deductions, arrest and proceedings before trial, Court-Martial and other incidental matters.  These section 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 of conferred by  Section 21, sub-section (4) of Section 102 and section

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73 191 of the Army Act 1950 issued another Notification bearing SRO 330  on the  same  day,  namely,  23rd  September  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 petitions 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 cognizance 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 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  of  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 committee 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  from  whatever  or  communicate           directly or  indirectly to the Press any matter in           rela- 74           tion to  a political  question  or  on  a  service           subject or  containing any service information, or           publish or  cause to  be  published  any  book  or           letter  or  article  or  other  document  on  such           question or  matter or containing 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.      These rules  obviously owe  their genesis to Section 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 SRO Nos. 329 and 330 dated 23rd September,  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

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    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.           xxx      xxx      xxx      xxx      xxx 75           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 Service (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 Army Act 1950 and the  Army Rules  1954 as  laid down  in SROs 329 and 330 dated 23rd September 1960.      The material  facts in all the writ petitions 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 petitions. 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,  petitioner  Nos.  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 Nos. 2 to 23 are concerned, they were charged before the  Court-Martial for  offences under  section 63 of the Army  Act 1950  in that  they alongwith  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  their belts 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. 329  and 330  dated 23rd  September  1960 since these Notifications had the effect 76 of applying the provisions of the Army Act 1950 and the Army

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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.  329  and  330  dated  23rd September 1960  were ultra  vires the  powers of the Central Government under  sub-sections (1)  and (4)  of Section 4 of the Army  Act 1950.  The petitioners  also urged that in any event the  application of  Section 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 was not "members of the Armed Forces or 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 well 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 Section 21  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- Section 21.  Section 21  was  therefore,  according  to  the petitioners, unconstitutional and void and alongwith Section 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  Art.  19  (1)  without  any  of  the restriction imposed by Rules 19 to 21 of the Army Rules 1954 and if  that be  so, they could not be charged under section 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 self  same  contentions  were  repeated  on  behalf  on  the petitioners in 77 the other  writ  petitions.  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 Art. 33 and the Central Government was therefore entitled  to issue  SROs. 329  and 330  dated 23rd September 1960  making the  provisions of  the Army Act 1950 and the  Army Rules  1954 and  particularly Section  21  and Rules 19  to 21  applicable to  the  members  of  GREF.  The respondents  defended   the  validity   of  Section  21  and contended  that  it  was  a  proper  exercise  of  power  by Parliament under Art. 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

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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 in  the circumstances the petitioners were rightly charged under Section 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.      Now the first question that arises for consideration on these rival contentions is as to the constitutional validity of Section  21. That section empowers the Central Government by notification  to make  rules restricting  "to such extent and in  such manner as may be necessary" three categories of rights of  any person  subject to the Army Act 1950, namely, (a) the  right 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 institution or associations; (b) the right  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;  and  (c)the  rights  to communicate with  the press  or to  publish or  cause to  be published any  book, letter  or other document. These rights which are  permitted  to  be  restricted  are  part  of  the Fundamental Rights under clauses (a), (b) and (c) of article 19(1) and  under the  constitutional scheme,  they cannot be restricted by  executive action  unsupported by  law. If any restrictions are to be imposed, that can be done only by law and such law must satisfy 78 the requirements  of clause  (2), (3)  or (4)  of article 19 according as  the right  restricted falls within clause (a), (b) or  (c) of  article 19(1). The restrictions imposed must be reasonable  and in  case of  right under  clause  (a)  of article  19(1),  they  must  be  "in  the  interest  of  the sovereignty and  integrity of  India, the  security  of  the state, friendly relations with foreign states, public order, decency or  morality, or  in relation  to contempt of court, defamation or  incitement to  an  offence"  as  provided  in clause (2)  of article 19, in case of right under clause (b) of article  19(1), they  must be  "in the  interest  of  the sovereignty and  integrity of  India  or  public  order"  as provided in  clause (3)  of article  19 and in case of right under clause  (c) of  article 19(1),  they must  be "in  the interest of the sovereignty and integrity of India or public order or  morality" as provided in clause (4) of article 19. Then only  they would  be valid;  otherwise  they  would  be unconstitutional and  the law  imposing them  would be void. Now here  we find that Section 21 does not itself impose any restrictions  on   the  three  categories  of  rights  there specified.  If  Section  21  had  itself  imposed  any  such restrictions, it  would have  become  necessary  to  examine whether such  restrictions are  justified under  clause (2), (3) or  (4) of article 19, as may be applicable. But Section 21  leaves   it  to   the  Central   Government  to   impose restrictions on  these three  categories of  rights  without laying down  any guidelines  or indicating  any  limitations which would  ensure that  the restrictions  imposed  by  the Central Government are in conformity with clause (2), (3) or (4) of article 19, whichever be applicable. It confers power on the  Central Government  in very  wide terms by providing that the Central Government may impose restrictions on these three categories  of rights  "to such  extent  and  in  such manner as  may be  necessary."  The  Central  Government  is constituted  the   sole  judge   of  what  restrictions  are

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considered necessary  and the  Central  Government  may,  in terms of the power conferred upon it, impose restrictions it considers necessary, even though they may not be permissible under clauses  (2), (3)  and (4)  of article  19. The  power conferred on  the Central  Government to impose restrictions on these  three categories  of rights  which are part of the Fundamental Rights under clauses (a), (b) and (c) of article 19(1) is  thus a  broad uncanalised  and unrestricted  power permitting violation of the constitutional limitations. But, even so,  section 21  cannot be condemned as invalid on this ground, as  it is  saved by  article 33  which  permits  the enactment of  such a  provision. Article  33 carves  out  an exception in  so far  as the  applicability  of  Fundamental Rights to members of the Armed Forces and the Forces charged with the maintenance of public order is 79 concerned. It  is elementary  that a  highly disciplined and efficient  armed  force  is  absolutely  essential  for  the defence of  the country. Defence preparedness is in fact the only sure  guarantee against  aggression. Every  effort  has therefore to  be made to build up a strong and powerful army capable  of  guarding  the  frontiers  of  the  country  and protecting it  from aggression.  Now obviously  no army  can continuously maintain  its state of preparedness to meet any eventuality  and   successfully  withstand   aggression  and protect the  sovereignty and integrity of the country unless it is  at all  times possessed  of high  morale  and  strict discipline. Morale  and discipline  are indeed the very soul of an  army and no other consideration, howsoever important, can outweigh  the need to strengthen the morale of the armed forces  and   to  maintain   discipline  amongst  them.  Any relaxation in  the matter of morale and discipline may prove disastrous  and  ultimately  lead  to  chaos  and  ruination affecting the well being and imperilling the human rights of the entire  people of  the country.  The constitution makers therefore  placed   the  need   for  discipline   above  the fundamental rights so far as the members of the Armed Forces and the  Forces charged with the maintenance of public order are concerned and provided in Article 33 that Parliament may by law  determine the extent to which any of the Fundamental Rights in  their application  to members of the Armed Forces and the Forces charged with the maintenance of public order, may be  restricted or  abrogated so  as to ensure the proper discharge of  their duties and the maintenance of discipline among them.  Article 33  on a plain grammatical construction of its language does not require that Parliament itself must by law restrict or abrogate any of the Fundamental Rights in order to  attract the applicability of that Article. What it says is  only this  and no more, namely, that Parliament may by law  determine the permissible extent to which any of the Fundamental Rights  may be  restricted or abrogated in their application to  the members  of the  Armed  Forces  and  the Forces  charged   with  the  maintenance  of  public  order. Parliament itself can, of course, by enacting a law restrict or  abrogate   any  of   the  Fundamental  Rights  in  their application to  the members  of the  Armed  Forces  and  the Forces charged  with the  maintenance of public order as, in fact, it  has done  by enacting  the  Army  Act,  1950,  the provisions  of  which,  according  to  the  decisions  of  a Constitution Bench  of this  Court in Ram Swarup v. Union of India(1) are protected by article 33 even if found to affect one or more of the Fundamental Rights. But 80 having regard  to varying requirement of army discipline and the need for flexibility in this sensitive area, it would be

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inexpedient  to   insist  that   Parliament  itself   should determine what particular restrictions should be imposed and on which  Fundamental  Rights  in  the  interest  of  proper discharge of  duties by  the members of the Armed Forces and the Forces  charged with  the maintenance  of  public  order maintenance  of   discipline  among   them.  The  extent  of restrictions  necessary   to  be   imposed  on  any  of  the Fundamental Rights  in their  application to  the members of the Armed Forces and the Forces charged with the maintenance of public order for the purpose of ensuring proper discharge of their  duties and  maintenance of  discipline among them, would necessarily  depend upon the prevailing situation at a given point of time and it would be inadvisable to encase it in a  rigid statutory  formula. The Constitution makers were obviously anxious that no more restrictions should be placed on the Fundamental Rights of the members of the Armed Forces and the  Forces charged with the maintenance of public order than are  absolutely necessary for ensuring proper discharge of their  duties and  the maintenance  of  discipline  among them, and  therefore they  decided to  introduce  a  certain amount of flexibility in the imposition of such restrictions and by  article 33,  empowered Parliament  to determine  the permissible extent to which any of the Fundamental Rights in their application to the members of the Armed Forces and the Forces charged  with the  maintenance of public order may be restricted or  abrogated, so  that within  such  permissible extent determined  by Parliament,  any appropriate authority authorised by  Parliament may  restrict or abrogate any such Fundamental Rights.  Parliament  was  therefore  within  its power under  article 33  to enact  Section 21 laying down to what  extent   the  Central   Government  may  restrict  the Fundamental Rights under clauses (a), (b) and (c) of article 19(1), of  any person  subject to  the Army Act, 1950, every such person  being clearly a member of the Armed Forces. The extent  to   which  restrictions   may  be  imposed  on  the Fundamental Rights under clauses (a), (b) and (c) of article 19(1) is  clearly indicated  in clauses  (a), (b) and (c) of section 21  and the  Central  Government  is  authorised  to impose restrictions  on these Fundamental Rights only to the extent of  the rights set out in clauses (a), (b) and (c) of section 21  and no  more.  The  permissible  extent  of  the restrictions which  may be imposed on the Fundamental Rights under clauses (a), (b) and (c) of Article 19 (1) having been laid down  in clauses  (a), (b)  and (c)  of section 21, the Central  Government  is  empowered  to  impose  restrictions within such permissible limit, "to such extent and 81 in such  manner as  may be  necessary."  The  guideline  for determining as  to which  restrictions should  be considered necessary by  the Central  Government within the permissible extent determined  by Parliament  is provided  in article 33 itself, namely,  that the restrictions should be such as are necessary for  ensuring the proper discharge of their duties by the  members of  the Armed  Forces and the maintenance of discipline among  them. The  Central Government  has to keep this guideline before it in exercising the power of imposing restrictions under  Section 21 though, it may be pointed out that once the Central Government has imposed restrictions in exercise of  this  power,  the  court  will  not  ordinarily interefere with  the decision of the Central Government that such restrictions  are necessary  because that  is a  matter left by  Parliament exclusively  to the  Central  Government which is  best in  a position  to know  what  the  situation demands. Section  21 must,  in the circumstances, be held to be  constitutionally   valid  as   being  within  the  power

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conferred under article 33.      That takes  us to the next question whether the Central Government was  entitled to issue SROs. 329 and 330 applying certain provisions  of the  Army Act 1950 and the Army rules 1954 to  the members  of GREF.  We will  first consider  the question of validity of SRO 329 because if that notification has been  validly issued  and the  provisions of section 21, sub-section (4)  of section  102 and section 191 of the Army Act 1950  made applicable  to the  members of  REF, SRO  330 applying certain  provisions of  the Army Rules, 1954 to the members of  GREF in  exercise of  the powers conferred under section 21, sub-section(4) of section 102 and section 191 of the Army Act 1950 would be fortiori be valid. Now SRO 329 is issued by  the Central Government under sub-sections (1) and (4) of  section 4  of the  Army Act 1950 which provide inter alia as under:      "Sec. 4(1)  The Central Government my, by notification,                apply with  or without  modifications, all or                any of  the provisions  of this  Act  to  any                force raised  and maintained  in India  under                the authority of that Government, and suspend                the operation  of any other enactment for the                time being applicable to the said force.           (2)       ...       ...       ...       ...           (3)       ...       ...       ...       ...           (4)  While any of the provisions of this Act apply                to the said force, the Central Government 82                my, by notification, direct by what authority                any jurisdiction,  powers or  duties incident                to the  operation of these provision shall be                exercised or performed in respect of the said                force.      The Central  Government is  empowered under sub-section (1) of  section 4 to apply any of the provisions of the Army Act, 1950  to any  force raised or maintained in India under the  authority   of  that   Government  and  when  any  such provisions of  the Army  Act, 1950 are applied to that force under  sub-section   (1),  the  Central  Government  can  by notification issued  under sub-section  (4), direct  by what authority, the  jurisdiction, powers  and duties incident to the operation  of those  provisions shall  be  exercised  or performed in respect of that force. SRO 329 applying certain provisions of  the Army Act, 1950 to the members of GREF and directing by  what authority,  the jurisdiction,  powers and duties incident  to the  operation of those provisions shall be  exercised   or  performed  in  respect  of  GREF,  would therefore be  within the  power of  the  Central  Government under sub-section (1) and (4) of section 4, if GREF could be said to  be a force raised and maintained in India under the authority of  the Central  Government. The question is: what is the  true meaning  and scope of the expression "any force raised and  maintained in  India under  the authority of the Central  Government."   The  word  "force"  is  not  defined anywhere in the Army Act, 1950. There is a definition of the expression "the  forces" in  section 3  (xi) but it does not help, because  the expregsion we have to construe is "force" which is  different from  "the forces".  There is however an indication to be found in sub-section (2) of section 4 which throws some  light on the sense in which the word "force" is used in sub-section (1) of section 4. Section 4, sub-section (2) clearly  contemplates that  the "force"  referred to  in sub-section (1)  of section  4 must  be a force organised on similar lines  as the  army with  rank structure.  So far as GREF is  concerned, there can be no doubt that it is a force

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organised on  army pattern with units and sub units and rank structure. Moreover,  as is clear from the letter dated 16th June,  1960   addressed  by   the  Secretary,  Border  Roads Development Board to the Director General Border Roads, GREF is a  force raised  and maintained under the 11 authority of the Central Government. The Central Government therefore had power under  sub-sections (1)  and (4) of section 4 to issue SRO 329  applying some  of the  provisions of  the Army Act, 1950  to   GREF  and   directing  by   what  authority   the jurisdiction 83 powers  and  duties  incident  to  the  operation  of  these provisions shall  be exercised  or performed  in respect  of GREF. But  the question  is, and  that is the more important question to  which we  have to  address ourselves,  whether, even if  GREF was  a force  raised and  maintained under the authority of  the Central Government, the Central Government could, in exercise of the powers conferred under sub-section (1) of section 4, validly-apply section 21 to the members of GREF. Section  21 empowers  the Central  Government to  make rules restricting  "to such extent and in such manner as may be necessary" the rights set out in clauses (2), (b) and (c) of that  section and  in exercise of this power, the Central Government has  made rules  19 to  21 to which reference has already been made by us. Now as  already pointed  out above, section 21  is protected against invalidation by Article 33, since it  lays down in clauses (a), (b) and (c) the possible extent to which the fundamental rights of any person subject to the  Army Act,  1950 may  be restricted  and every person subject to  the Army  Act 1950 would clearly and indubitably be a  member of  the Armed  Forces  within  the  meaning  of Article 33.  But if section 21 were to be applied to persons who are  not members  of the  Armed  Forces  of  the  forces charged with  the maintenance  of public  order, Article  33 would not  afford any  protection to section 21 in so far as it applies to such persons and the application of section 21 to such persons would be unconstitutional. We must therefore proceed to  consider whether  the members  of GREF  could be said to be members of the Armed Forces within the meaning of Article 33.  If they  cannot be  said to  be members  of the Armed Forces,  the application  of section  21 to them would not have  the protection  of Article 33 and would be clearly void.      The history,  composition, administration, organisation and role  of  GREF  which  we  have  described  above  while narrating the  facts clearly  show that  GREF is an integral part of  the Armed  Forces. It is undoubtedly a departmental construction  agency   as  contended   on  behalf   of   the petitioners but  it  is  distinct  from  other  construction agencies such  as Central  Public Works  Department etc., in that it is a force intended primarily to support the army in its operational  requirement. It is significant to note that the Border  Roads organisation, which is in over all control of GREF  was originally created as part of Army Headquarters and it  was only  later, for reasons of high policy, that it was separated  from Army  Headquarters and  placed under the Border Roads  Development Board.  Though the  budget of  the Border Roads organisation forms 84 part of  the budget  of Ministry  of Shipping and Transport, the financial  control is  vested in the Ministry of Finance (Defence). The entire infra-structure of GREF is modelled on the pattern  of the  Army and it is organised into units and sub-units with command and control system similar to that in the Army. The personnel of GREF right from class IV to class

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I have  to be in uniform with distinctive badges of rank and they have  a rank  structure equivalent to that of the Army. GREF is  primarily intended  to carry  out defence and other works projected  by the General Staff, Army Headquarters and it is  only where  spare capacity  is  available  that  GREF undertakes works  of  other  ministries  or  departments  on agency  basis   and  there  also,  preference  is  given  to strategic and  other roads  in sensitive  areas.  The  funds which are  provided to  the Border  Roads  organisation  are meant exclusively  for carrying  out the  works entrusted by the General Staff, Army Headquarters and so far as the works carried out  for other  ministries or  departments on agency basis  are   concerned,  the   funds  of  the  Border  Roads organisation are  not permitted  to be used for carrying out those  works  and  they  are  paid  for  by  the  respective ministries  or  departments  and  where  applicable,  agency charges for  executing the  works are  also  collected.  The statistics given  in the  earlier part  of the judgment show that the  major portion  of the  work executed by GREF units consists of  tasks entrusted  by  the  General  Staff,  Army Headquarters and  only a  small percentage  of the  work  is being done  on behalf  of other  ministries or  departments. GREF units carry out essentially those tasks which are other wise carried  out by  Army Engineering  Regiments  and  they provide engineering  support to  the Army  both during peace time as also during hostilities. It was found necessary as a result of  a major  review carried  out by Army Headquarters after 1971  that a minimum of 17 Border Road Task Forces and 34 Pioneer  Companies  would  be  permanently  required  for providing engineering support to the Army and accordingly 17 Border Road  Task Forces  and 34 Pioneer Companies have been made permanent and their composition has been reorganised in accordance   with    the   recommendations   of   the   Army Headquarters. These  17  Border  Road  Task  Forces  and  34 Pioneer Companies are being maintained as essential units of GREF for  meeting the  operational requirements of the Army, even if  sufficient work  is not  available for  them at any given point of time.     The  operational  planning  of  the Army is  in fact  based on  availability of  these 17 Border Road  Task  Forces  and  34  Pioneer  Companies  and  during operations,  they  have  to  carry  out  tasks  which  would otherwise have been done by equal number of Army Engineering 85 Regiments. It  may be  pointed out that these 17 Border Road Task  Forces   and  34   Pioneer  Companies   have  replaced corresponding  number  of  Army  Engineering  Regiments  and Pioneer Companies  in the  Army. The  tasks required  to  be carried out by the Border Road Task Forces have already been described in  some  details  in  the  opening  part  of  the Judgment while  narrating the  facts and  we need not repeat the same  over again.  Suffice it  to state that these tasks are required  to be  carried out  by the  Border  Road  Task Forces  during   operations  with   a  view   to   providing engineering support  to the  Army in  its operational plans. The Border  Road Task Forces have to perform these tasks and provide engineering  support to  the Army  not only upto the border but  even beyond upto the exent of advance into enemy territories. Even in peace time, the Border Road Task Forces have to  undertake works  projected by  General Staff,  Army Headquarters to  meet  their  operational  requirements  and these work  include construction  and maintenance  of roads, operational tracks,  ditch-cum-bund (water  obstacles on the broder), field  fortifications like  bunkers, fire  trenches and  pill   boxes,  helipads   and  airfields.  It  is  also significant to  note that  the Border Road Task 1 Forces and

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Pioneer Companies attached to them are included in the order of Battle  of the  Army which  implies that support of these units to  the Army is guaranteed and can be requisitioned at any time  The Border  Road Tack Forces are also sub-allotted to lower  army formations  and they  appear on  the order of Battle of  these formations.  GREF units consisting of these Border Road  Task Forces  and Pioneer  Companies are  placed under the direct control of the Army during emergencies when the entire  control of  this Force is entrusted to the Chief of the  Army Staff. Even during peace time, the Chief of the Army Staff  exercises control  over the  discipline  of  the members of  GREF units  through  the  applicability  of  the provisions of  the Army  Act  1950.  The  Director  General, Border Roads  who is  in over-all  control of  GREF units is always an  army officer of the rank of Major General and his confidential reports  are written  by the  Chief of the Army Staff. The  signal communication  of GREF is also integrated with  the   Army  communication   set  up  not  only  during operations but  also in  normal peace  time. It  is  also  a factor of  vital significance  which emphasises  the special character of  GREF as a force intended to provide support to the Army in its operational plans and requirements that Army personnel are  posted in GREF units according to a carefully planned manning  policy so  that GREF  units can in times of war or  hostilities be  able to provide effective support to the Army. The tenure of office of the Army 86 personnel in  GREF units  is regarded  as normal  regimental duty and  is equated  with similar  appointments in the Army for the  purpose of promotion, career planning etc. Even the directly recruited  personnel of  GREF are given training at the GREF  Centre before  they are  posted and  the  training given  is  in  three  military  disciplines  which  we  have described in detail in the opening part of the Judgment. The training includes  not only drill, marching and saluting but also combat  training including  physical training  such  as standing Exercises, beam exercises. rope work, route marches etc.  and   combat  engineering   training  including  field engineering, handling  of  service  cxplosives,  camouflage, combat  equipment,   bridging,  field  fortifications,  wire obstacles etc.  Moreover, the  directly recruited  personnel are taken  up only  after they  voluntarily accept the terms and  conditions  of  employment  which  include  inter  alia conditions 5  (1v), (v).  5 (vi)  and 5 (xi) which have been reproduced  in   full  while   narrating  the  facts.  These conditions make it clear the directly recruited personnel my be required to serve anywhere in India and outside India and when directed,  they would  have to proceed on field service and if  required, they  would also be liable to serve in any Defence Service or post connected with the defence of India. It is  also stipulated  in these  conditions that  on  their appointment, the  directly recruited personnel would have to wear the  prescribed uniform  while on  duty and  that  they would be  subject to the provisions of the Army Act 1950 and the Army  Rules 1954  as laid  down in SROs. 329 and 330 for purpuoses of  discipline. It  is abundantly clear from these facts and circumstances that GREF is an integral part of the Armed Forces  and the  members of  GREF can  legitimately be said to be members of the Armed Forces within the meaning of article 33.      The petitioners however tried to combat this conclusion by pointing  out that  the services constituted under Border Roads Engineering Service Group A, Rules 1977 and the Border Roads Engineering Service Group B, Rules, 1977 both of which were made  by  the  President  in  exercise  of  the  powers

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conferred under  article 309  and brought  into  force  with effect from  20th September  1977, were expressly designated as Central  Civil Services  and that  in reply  to Unstarred Question No.  1100, the  Minister for Defence stated on 18th June, 1980  that "GREF as at present organized is a civilian construction force"  and similarly  in  reply  to  Unstarred Question No.  6002, the  Minister of Defence observed on 1st April 1981  that "the  civilian employees  serving with  the Border Roads organisation and 87 GREF are  not under  administrative control  of Ministry  of Defence but  are under  the administrative  control  of  the Border Roads  Development Board"  and so  also  Minister  of Defence stated  on 25th February 1983 in answer to Unstarred Question No.  938 that  "the members  of the General Reserve Engineer Force of the Border Roads organisation are civilian employees  of   the  Central  Government".  The  petitioners contended on the basis of these statements that GREF was not an Armed  Force but  was a  civilian construction agency and the members  of GREF  could  not  possibly  be  regarded  as members of  the Armed  Forces so as to fall within the scope and ambit  of article  33. This  contentions though  it  may appear at first blush attractive, is in our opinion not well founded and must be rejected. It is undoubtedly true that as stated by  the Minister  of  Defence,  GREF  is  a  civilian construction force  and the  members of  GREF  are  civilian employees under  the administrative  control of  the  Border Roads Development  Board  and  that  the  engineer  officers amongst hem  constitute what  may be  designed  as  "Central Civil Services,  within GREF,  but that  does not  mean that they cannot be at the same time form an integral part of the Armed Forces.  The fact  that they are described as civilian employees  and   they  have   their  own  special  rules  of recruitment and  are governed  by the  Central Civil Service (Classification, Control  and Appeal)  Rules,  1965  is  not determinative of  The question  whether they  are members of the Armed  Forces lt  may be  noted that even the members of the Civil  General  Transport  Companies  constituted  under Government of  India, War  Department, notification No. 1584 dated 29th June, 1946 as also the members of the independent Transport Platoons have been treated as members of the Armed Forces for  the purpose  of application of the provisions of the Army  Act 1950  by SRO  122 dated 22nd July 1960 and SRO 282 dated  17th  August  1960.  So  also  when  personal  of Military Engineer  Service have  to function  in operational areas under  the  army,  they  too  are  brought  under  the provisions  of   the  Army  Act  1950  for  the  purpose  of discipline. The  question whether the members of GREF can be said to  be members  of the  Armed Forces for the purpose of attracting the  applicability  of  article  33  must  depend essentially on the character of GREF, its organisational set up, its  functions, the  role it  is called  upon to play in relation to  the Armed  Forces and the depth and intimacy of its connection  and the  extent of  its integration with the Armed Forces and if judged by this creterian, they are found to be  members of  the Armed Forces, the mere fact that they are non-combatant civilians 88 governed  by  the  Central  Civil  Services  (Classification Control and  Appeal) Rules 1965, cannot make any difference. This view  which we  are taking  on  principle  finds  ample support from  the decision  of this  Court in Ous Kutilingal Achudan Nair  & Ors.  v. Union  of India & Ors.(1) where the question  was  whether  certain  employees  in  the  Defence Establishment such  as cooks,  chowkidars, laskers, barbers,

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carpenters, mechanics,  boot-makers, tailors  etc. who  were noncombatant  civilians   governed  by   the  Civil  Service Regulations for  purpose of  discipline, leave, pay etc. and were eligible  to serve  upto the age of 60 years unlike the members  of  the  Armed  Forces,  could  be  validly  called "members of the Armed Forces" covered by article 33, because it Was  only if they were members of the Armed Forces within the meaning  of that  article that  the restrictions imposed upon their  right to  form association  could be  sustained. This Court  speaking through  Sarkaria,  J.  held  that  the employees in  question were  members of the Armed Forces and gave the following reasons in support of its view:           "The members of the Unions represented by the      appellants fall  within this category. It is their      duty to follow or accompany the Armed personnel on      active service,  or  in  camp  or  on  the  march.      Although they  are non-combatants  and are in some      matters governed by the Civil Service Regulations,      yet they  are integral  to the  Armed Forces. They      answer the  description of  the  "members  of  the      Armed Forces"  within the contemplation of Article      33." Here also  it is indisputable on the facts and circumstances mentioned above  that the  functions and  duties of GREF are integrally  connected   with  the   operational  plans   and requirements of  the Armed  Forces and  the members  of GREF are, to use the words of Sarkaria, J. "integral to the Armed Forces". There  can be  no doubt that with out the efficient and  disciplined  operational  role  of  GREF  the  military operations in  border areas during peace as also in times of war will  be seriously hampered and a highly disciplined and efficient GREF  is absolutely  essential for  supporting the operational plans  and meeting  the operational requirements of the  Armed Forces.  It must  therefore be  held that  the members of  GREF answer  the description  of "members of the Armed  Forces"   within  the   meaning  of  article  33  and consequently the application of section 21 of the Army 89 Act 1950 to the members of GREF must be held to be protected by that Article and the Fundamental Rights of the members of GREF must  be held  to be  validly restricted  by section 21 read with  Rules 19 to 21 of the Army Rules 1954. If that be so, the  petitioners were liable to be charged under section 63 of  the Army Act 1950 for the alleged violations of Rules 19 to  21 and  their convictions  by Court  Martial as  also subsequent dismissals must be held to be valid.      Before we  part with  this point, we may point out that an anguished  complaint was  made before us on behalf of the petitioners that there is considerable disparity between the Army personnel  posted in  GREF units and the other officers and men  of GREF  in so  far as  the terms and conditions of service,  such   as,  salary,  allowances  and  rations  arc concerned. It  is not  necessary for  us to consider whether this complaint  is justified; it is possible that it may not be wholly unjustified but we may point out that in any event it has  no real  bearing. It all on the question whether the members of  GREF can  be said to be members of Armed Forces. Since, the  members of  GREF are  drawn from  two  different sources, it  is possible  that the  terms and  conditions of service of  the personnel coming from the two sources may be different. The Army personnel posted in GREF units naturally carry their  own terms  and conditions  of service while the other officers  and men  in GREF  are governed  by their own distinctive  terms   and  conditions.  It  is  difficult  to appreciate  how  differences  in  terms  and  conditions  of

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service between  GREF personnel  coming from  two  different streams can  possibly have  any impact  on the  character of GREF as  a  force  integral  to  the  Armed  Forces.  It  is immaterial  for  the  purpose  of  determining  whether  the members of  GREF are  members of the Armed Forces as to what are the  terms and  conditions of  service of the members of GREF and  whether they  are identical  with those  of  Armed personnel appointed  on the same or equivalent posts in GREF units. But, we may observe that in case it is found that the terms and  conditions of service of officers and men in GREF directly recruited  or taken  on deputation  are in  any way less favourable  than those  of Army  personnel appointed to the same or equivalent posts in GREF, the Central Government might well  consider the  advisability of  taking steps  for ensuring that  the disparity,  if any, between the terms and conditions of  service, such as, salary, allowances, rations etc. Of  Army personnel  posted  in  GREF  units  and  other officers and men in GREF is removed. 90      It may  be pointed out that a faint attempt was made on behalf of  the petitioners to contend that their convictions by Court  Martial were  illegal since their trial was not in accordance with  law. This  contention was strongly resisted on behalf  of the  respondents and it was positively averred in the  affidavit of  Lt. Col.  Shergill  that  disciplinary action was initiated and punishment awarded by the competent disciplinary authority  after the  offences were  proved  in accordance with  law and  all possible  help and opportunity was extended to the petitioners and others who were tried to defend themselves  with the  help of  defending officers  of their choice  or of  civil lawyers. Lt. Col. Shergill stated in the clearest terms in his affidavit in reply that "out of 357 personnel  kept under  military custody,  287 have  been released on  the basis  of their  unconditional apology  and those who  failed to  do so,  have  been  tried  by  GCM/SCM summarily and  awarded  punishment,  on  the  basis  of  the gravity of  the offence  proved  against  them.  During  the trial, all  possible help  was provided  under the rules and they were  allowed to meet/employ lawyers of their choice to defend the case. In all the cases, defending officers as per their choices  have also  been  detailed  from  departmental side. The  trials were  held strictly in accordance with the procedure laid  down in the rules, and there is no denial of natural justice."  Having regard  to this positive statement made on oath by Lt. Col. Shergill, it is not possible for us to hold that the convictions of the petitioners by the Court Martial were  not in  accordance with law. In any event, the allegations  of   the  petitioners  in  this  behalf  raised disputed questions  of fact  which it is not possible for us to try in a writ petition. We cannot in the circumstances be called upon  to quash  and set  aside the convictions of the petitioners  by   the  Court  Martial  or  their  subsequent dismissals from  service on the ground that they were not in accordance with law.      There was  also one other contention advanced on behalf of the  petitioners and it raised a question of violation of Article 14  of the Constitution. The contention was that the members of  GREF were  governed both  by the  Central  Civil Services (Classification, Control and Appeal) Rules 1965 and the provisions  of the Army Act 1950 and the Army Rules 1954 in matters  of discipline and therefore whenever a member of GREF was  charged with  misconduct amounting  to an  offence under the  Army Act  1950, it  was left  to the unguided and unfettered discretion  of the authorities whether to proceed against  the  employee  under  the  Central  Civil  Services

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(Classification, Control and Appeal) Rules 1965 or under the Army 91 Act 1950  and the  Army Rules  1954 and  SROs. 329  and  330 applying the  provisions of  the Army Act, 1950 and the Army Rules 1954  to members  of GREF  for purposes  of discipline were therefore  discriminatory and  violative of Article 14. We do  not think  there is any substance in this contention. In the  first place, the nature of the proceedings which may be taken  under the  Central Civil Services (Classification, Control and Appeal) Rules 1965 against an erring employee is different from  the nature  of the  proceedings which may be taken against  him under the provisions of the Army Act 1950 read with the Army Rules 1954, the former being disciplinary in character  while the  latter being  clearly penal.  It is significant to  note that  Section 20  of the  Army Act 1950 which deals  with dismissal,  removal or  reduction  of  any person subject  to that  Act and  clauses (d), (e), (f), (g) and (k)  of Section  71  which  provide  for  punishment  of cashiering,  dismissal,  reduction  in  rank  forfeiture  of seniority and  forfeiture of  pay and  allowances, have  not been made  applicable to the members of GREF by SRO 329 with the result  that, so  far  as  disciplinary  proceeding  are concerned, there is no overlapping between the provisions of the Central  Civil  Services  (Classification,  Control  and Appeal) Rules  1965 and  the provisions of the Army Act 1950 and the  Army Rules  1954 as applied to the members of GREF. Secondly, it  is not  possible to  say that  the  discretion vested in  the authorities whether to take action against an erring  member   of  GREF   under  Central   Civil  Services (Classification Control  and Appeal) Rules 1965 or under the Army Act  1950 and  the  Army  Rules  1954  is  unguided  or uncanalised. It has been denied in the affidavit of Lt. Col. Shergill that unguided discretion any power is vested in the disciplinary authority  to proceed  against an  employee  of GREF   either    under   the    Central    Civil    Services (Classification, Control  and Appeal) Rules 1965 or the Army Act 1950  and the Army Rules 1954 or to switch over from one proceeding to  the other at the any stage. Lt. Col. Shergill has stated  positively  in  his  affidavit  that  clear  and detailed administrative  guidelines have  been laid down for the  purpose   of  guiding  the  disciplinary  authority  in exercising its  discretion whether to take action against an employee  of   GREF  under   the  Central   Civil   Services (Classification, Control  and appeal) Rules 1965 of the Army Act 1950  and the  Army Rules 1954 and these guidelines have been set  out in  full in  Annexure R-5  to  his  affidavit. Thirdly, the  decision in  Northern India  Caterers Ltd.  v. Punjab(1) on  which the  contention of  the  petitioners  is based has been over-ruled by this 92 Court  in   Maganlal  Chhaganla  v.  Municipal  Corporation, Greater  Bombay(2)   where  it   has  been  held  that  "the contention that the mere availability of two procedures will vitiate one  of them,  that is, the special procedure is not supported by  reason or  authority." And  lastly, it  may be noted that  in any event the provisions of the Army Act 1950 and the  Army Rules  1954 as  applied to the members of GREF are protected  by Article  33 against  invalidation  on  the ground of  violation of  Article 14.  The present contention urged on  behalf of  the petitioners  must also therefore be rejected.      We may  make it  clear it  is only  in  regard  to  the members of  GREF that  we have  taken the view that they are members of  the Armed  Forces within  the meaning of Article

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33. So  far as  casual labour employed by GREF is concerned, we do  not wish  to express  any opinion  on  this  question whether they  too are  members of  the Armed  Forces or not, since that  is not a question which arises for consideration before us. The writ petitions are accordingly dismissed with no order  as to costs. The special leave petitions will also stand rejected. H.L.C.                                  Petitions dismissed. 93