Kerala High Court
N.Bhuvanendran vs Union Of India on 7 April, 2014
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
MONDAY, THE 7TH DAY OF APRIL 2014/17TH CHAITHRA, 1936
WP(C).No. 32432 of 2004 (J)
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PETITIONER:
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N.BHUVANENDRAN
BHUVANENDRA VIHAR, KIZHEKKUMKARA, KULATHUR P.O.
THIRUVANANTHAPURAM.
BY ADV. SRI.K.T.SHYAMKUMAR
RESPONDENTS:
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1. UNION OF INDIA
SECRETARY, MINISTRY OF DEFENCE, NEW DELHI - 200 011.
2. UNION OF INDIA REPRESENTED BY SECRETARY
MINISTRY OF SURFACE TRANSPORT, (BORDER ROADS
DEVELOPMENT BOARD) SENA BHAVAN, NEW DELHI - 200 011.
3. THE DIRECTOR GENERAL OF BORDER ROADS,
MINISTRY OF DEFENCE, NEW DELHI - 200 011.
4. ADMINISTRATIVE OFFICER,
GENERAL RESERVE ENGINEER FORCE, DIGHI CAMP, PUNE.
BY GOVINDU P.RENUKA DEVI (CGC)
BY P.PARAMESWARAN NAIR (ASSISTANT SOLICITOR GENERAL OF INDIA
R1 TO R4 BY T. SANJAY (CGC)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
07-04-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) NO.32432/2004
APPENDIX
PETITIONER'S EXTS:
EXT.P1: COPY OF THE DISCHARGE CERTIFICATE DT.1.6.1981 ISSUED BY THE
COMMANDING OFFICER.
EXT.P2: COPY OF THE ORDER DT.14.8.1985 ISSUED BY THE CENTRAL
GOVERNMENT MINISTRY OF SHIPPING AND TRANSPORT.
EXT.P3: COPY OF THE ORDER DT.31.1.2001 ISSUED BY THE 4TH
RESPONDENT.
EXT.P4: COPY OF THE REPRESENTATION FILED BY THE PETITIONER
BEFORE THE 2ND RESPONDENT DT.11.7.2003.
EXT.P5: COPY OF THE LETTER DT.14.8.1985 ISSUED BY THE DIRECTOR
GENERAL BORDER ROADS, NEW DELHI.
EXT.P6: COPY OF THE PRINT OBTAINED FROM THE INTERNET SHOWING
THE CONSTITUTION OF GREF.
//TRUE COPY//
PA to JUDGE
"CR"
ALEXANDER THOMAS, J.
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W.P.(C) No.32432 OF 2004
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Dated this the 7th day of April, 2014
J U D G M E N T
~~~~~~~ Petitioner had worked in the General Reserve Engineering Force (GREF) under the respondents for the period from 19.12.1965 to 1.5.1981. As per Ext.P1 he was discharged from the service of GREF with effect from 1.5.1981 at his request. The petitioner avers that he has more than 15 years service in GREF and that the Apex Court in R.Viswan v.Union of India reported in (1983) 3 SCC 401 = AIR 1983 SC 658 has held that GREF is an integral part of the Armed Forces of the Union of India and had directed the Central Government to ensure that the service benefits of the GREF personnel are in par with that of the Armed Forces. The petitioner represented for grant of pension reckoning his service in GREF as 15 years of service is the minimum qualifying service for grant of pension as per the Army Pension regulations. But that his request was turned down as per the impugned orders on the ground that he is covered by the provisions of the CCS (Pension) Rules, which has prescribed a minimum 20 years of qualifying service for grant W.P.(C) No.32432/2004 2 of pension. The prayers in the petition, as amended through the application for amendment of W.P.(C), are for issue of writ of certiorari to quash the impugned Ext.P3 rejection order dated 31.1.2001 and for declaration that petitioner being an erstwhile member of the GREF is entitled to receive the pensionary benefits at par with the Army personnel for the service rendered in GREF and for mandamus to direct the respondents to consider and pass orders in accordance with law on Ext.P4 representation filed by him in the light of the aforementioned decision of the Apex Court in Viswan's case (supra) and for a mandamus to direct the respondents to grant pension to the petitioner in terms of the CCS (Pension) Rules as he had completed the minimum qualifying service of 10 years, as on the date of his discharge.
2. It is seen from Ext.P1 dated 1.6.1981 that the petitioner was working as Mason in GREF from 19.6.1965 and that he has been discharged from the service of the GREF with effect from 1.5.1981 at his own request and that his conduct during the service was satisfactory. As per Ext.P2 proceedings dated 14.8.1985, the Government of India has notified that the President of India is pleased to declare GREF to be an integral W.P.(C) No.32432/2004 3 part of the Armed Forces of India. Petitioner's representation for grant of pensionary benefits was rejected as per Ext.P3 on the ground that as per the provisions of CCS (Pension) Rules, minimum 20 years of qualifying service is required for the grant of pension and that since he has served in GREF only for the period from 19.12.1965 up to 1.5.1981, he is not entitled to pension as per the provisions of CCS (Pension) Rules. The petitioner had subsequently represented before the Government of India as per Ext.P4 pointing out that the President of India has already declared GREF to be an integral part of the Armed Forces of India as per Ext.P2 pursuant to the judgment of the Supreme Court in R.Viswan's case and therefore all service benefits especially that of pension should be given to GREF personnel at par with Armed Forces personnel and further that as 15 years of service is the minimum qualifying service for the grant of pension as per the Army Pension Regulations, the petitioner is entitled to the grant of pensionary benefits at par with Armed Forces personnel in the light of the judgment of the Supreme Court in R.Viswan's case.
W.P.(C) No.32432/2004 4
3. The background which led to the pronouncement of the judgment of the Apex Court in the case between R.Viswan v. Union of India (supra) has to be examined. On 23.9.1960, the Government of India issued two notifications, viz., SRO Nos.329 and 330, the former under sub sections (1) and (4) of Section 4 of the Army Act making various provisions of the Army Act, including Section 21 thereof applicable and the latter SRO 330 was issued under Sections 21, 102(4) and 191 of the Army Act making various provisions of the Army Rules including Rules 19, 20 and 21 thereof applicable to the GREF. However, it was also provided that the terms and conditions for appointment of directly recruited personnel of GREF would be governed by the provisions of the CCS (CCA) Rules, 1965 but that for the purpose of discipline, they would be subject to certain provisions of the Army Act, 1950 and the Army Rules framed thereunder and that they might 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 the Union of India.
W.P.(C) No.32432/2004 5
4. The petitioners before the Apex Court were members of GREF and some of them had deserted from the service and warrants were issued for their arrest under the Army Act but they could not be apprehended. Others were tried by the Court Martial for the offence under Section 63 of the Army Act in accordance with the procedure prescribed under the Army Act and Rules, as applicable to the GREF, and on being convicted, they were dismissed from service. They had filed the Writ Petitions which led to R.Viswan's case, contending that Section 21 of the Army Act read with Chapter IV of Army Rules, was beyond the scope and ambit of Article 33 of Constitution of India and so the impugned modifications as per SRO 329 and 330, making inter alia those provisions of the Army Act and Rules applicable to GREF, were ultra vires under Article 33 as GREF was neither an Armed Force nor a Force charged with the maintenance of public order and therefore they contended that in these circumstances they were entitled to their rights conferred under clauses (a), (b) and (c) of Article 19(1) of the Constitution of India. So, it was contended that their convictions under Section 63 of the Army Act by the Court Martial were ultra W.P.(C) No.32432/2004 6 vires and void and that consequently they continued to be in the service of GREF.
5. The Supreme Court in paragraph 8 of the above said reported decision held that GREF is a Force organised on Army pattern with units and sub-units and rank structure raised and maintained under the authority of the Central Government. The Central Government therefore had the power under sub sections (1) and (4) of section 4 of the Army Act to issue the impugned SRO applying some of the provisions of the Army Act to GREF and directing by what authority the jurisdiction, the powers and duties incident to the operation of those provisions shall be exercised or performed in respect of GREF. It was also held in paragraph 9 and 10 of that decision by the Apex Court that the history, composition, administration, organisation and role of GREF clearly show that GREF is an integral part of the Armed Forces of the Union of India and that the members of GREF can be legitimately said to the members of the Armed Forces of the Union of India within the meaning of Article 33 of the Constitution of India. It has been held further in paragraphs 10 and 11 thereof that the mere fact that the members of the GREF are W.P.(C) No.32432/2004 7 described as civilian employees and have their special rules of recruitment and are governed by the CCS (CCA) Rules, 1965 is not really determinative of the question as to whether they are members of the Armed Forces of the Union of India. It was accordingly also held that the members of the 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 Act, 1950 to the members of the GREF must be held to be protected by Article 33 of the Constitution of India and that the Fundamental Rights conferred under Part III of the Constitution of India as far as members of the GREF must be held to be validly restricted by Section 21 of the Act read with Rules 19 to 21 of the Army Rules and that the petitioners therein were liable to be charged under Section 63 of the Army Act for the alleged violation of Rules 19 to 21 and that their convictions by Court Martial as also the subsequent dismissal must be held to be valid.
6. A reading of paragraph 4 of the said Apex Court judgment clearly indicates that the tasks which are to be carried out by GREF comprise not only the maintenance of strategic W.P.(C) No.32432/2004 8 roads but also support for the operational plans of the Army in place of Army Engineer Regiments and that 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.
7. The relevant observations in paragraph 10 of R.Viswan's case reads as follows:
".................... 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 them constitute what may be designed as "Central Civil Services" within GREF, but that does not mean that they cannot 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 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 Article 33 must W.P.(C) No.32432/2004 9 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 criterion, they are found to be members of the Armed Forces, the mere fact that they are non-combatant civilians governed by the Central Civil Services (Classification, Control and Appeal) Rules, 1965, cannot make any difference. .............. It is clear from those facts and circumstances that GREF is an integral part of the Armed Forces and the members of GREF can legitimately said to the members of the Armed Forces within the meaning of Article 33."
8. Further the Supreme Court in paragraph 11 of R.Viswan's case (supra), pp 426-427 held as follows:
"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 insofar as the terms and conditions of service, such as, salary, allowances and rations are concerned. It is not necessary for us to consider whether this complaint is justified. .................... Since the members of GREF are drawn from two different sources, it is possible that the terms W.P.(C) No.32432/2004 10 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 which the other officers and men in GREF are governed by their own distinctive terms and conditions. ....................... 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." (emphasis supplied)
9. The main contention of the petitioner is that the aforementioned observations of the Apex Court in paragraph 11 of R.Viswan's case is a direction issued by the Supreme Court W.P.(C) No.32432/2004 11 in exercise of its powers under Article 142 of the Constitution of India and that the said observations and directions of the Supreme Court are binding on the Union of India and that the Central Government Authorities are bound to afford equal treatment to GREF personnel at par with Army personnel in the matter of pensionary benefits as well and that since the minimum qualifying service for pension as per the Army Pension Regulations is 15 years and therefore, the petitioner is also eligible and entitle for the grant pensionary benefits taking into account his 15 years of service in GREF, notwithstanding the provisions in CCS (Pension) Rules. The secondary contention of the petitioner is that Rule 49(2) of the CCS (Pension) Rules envisages only not less than 10 years of service for computation of pension and that, at any rate, he is entitled for the pensionary benefits in terms of Rule 49(2) of the CCS (Pension) Rules as he has more than 15 years of service in GREF. I will deal with the secondary contention first before I examine the primary contention of the petitioner.
10. The following provisions of the CCS (Pension) Rules, 1972 are relevant in this context. Rule 35 of the CCS (Pension) W.P.(C) No.32432/2004 12 Rules stipulate that a superannuation pension shall be granted to a government servant, who is retired on his attaining the age of compulsory retirement. Rule 36 envisages that retiring pension shall be granted to a government servant who retires or is retired in advance of the age of compulsory retirement in accordance with the provisions of Rule 48 or 48A of the CCS (Pension) Rules etc. Rule 48 further stipulate about retirement on completion of 30 years of qualifying service. Rule 48A envisages retirement on completion of 20 years of qualifying service whereby the government servant who was completed 20 years of qualifying service may by giving notice of not less than three months in writing to the appointing authority retired from service. Rule 49 of the CCS (Pension) Rules deals with the amount of pension to be granted. It is by now well established that the CCS (Pension) Rules do not provide that a person who has resigned before completing 20 years of service is entitled to the pensionary benefits and Rule 49 only prescribes the procedure for calculation and quantification of the pension amount and it does not prescribed the minimum qualifying service. Reference in this regard may be made to the decisions W.P.(C) No.32432/2004 13 of the Apex Court in the cases between Union of India v.Madhu E.V. reported in 2012 (5) SCC 474, Raj Kumar v. Union of India reported in 2006(1) SCC 737 and Union of India v. Rakesh Kumar reported in 2001(4) SCC 309. Therefore, the 10 years envisaged in Rule 49(2) of the CCS (Pension) Rules is not the minimum qualifying service for entitlement of pensionary benefits and merely because the petitioner has more than 10 years service in GREF will not make him eligible or entitle for benefits of pension under the CCS (Pension) Rules.
12. So, in the case of a person for whom the duration between the date of commencement of his service and the date on which he is to attain the superannuation age is 20 years or more and who choose to discharge from service at a point of time much before completing 20 years of service, then such an incumbent cannot be said to be eligible to get the retiral benefits envisaged under the CCS (Pension) Rules because the applicable provisions in his case would be Rule 48A of the CCS (Pension) Rules which insists for not less than 20 years of service before seeking retirement. So, merely because the petitioner had more W.P.(C) No.32432/2004 14 than 10 years of service envisaged under Rule 49(2), will not make him entitle for the pensionary benefits under the CCS (Pension) Rules in view of the aforementioned well settled legal position in this regard. The reference of 10 years service in Rule 49(2) is in respect of incumbents for whom the total duration between the date of commencement of their date and the date on which they are to attain the superannuation age is only 10 years.
12. Before I advert to the primary contention of the petitioner based on paragraph 11 of R.Viswan's case, I propose to deal with two objections canvassed by the learned Central Government counsel appearing for the respondents. The first objection of the respondents is that the petitioner resigned from the service of GREF on 1.5.1981 after 15 years 4 months and 11 days. Apart from this factual plea, the respondents has not raised any legal ground to contend that the petitioner is disentitled to any way from claiming pensionary benefits solely on account of his resignation. But, the learned Central Government counsel at the time of arguments contended that Rule 26(1) of the CCS (Pension) Rules stipulated that resignation W.P.(C) No.32432/2004 15 from a service of work unless it is allowed to be withdrawn in public interest by the appointing authority, entails forfeiture of past service. On the basis of this Rule, the learned Central Government counsel contends that the petitioner is legally disentitled from claiming any pensionary benefits due to his resignation from service. I propose to overrule this contention due to the reasons more than one. Firstly it is stated by the GREF authorities themselves in Ext.P1 that the petitioner's service was terminated with effect from 01.05.1981 at his own request and Ext.P1 certificate is signed as a discharge certificate. So I am inclined to take the view that termination from service of the petitioner on 01.05.1981 was discharge from his service at his own request. In Ext.P3 it is clearly stated by the GREF authorities that the petitioner was discharged from service with effect from 01.05.1981. The ground of rejection stated in Ext.P3 is not in view of the alleged resignation of the petitioner from service, entails forfeiture of past service etc. The petitioner's claim for pensionary benefits has been rejected therein solely on account of he is not having the minimum length of qualifying service of 20 years stipulated in the relevant W.P.(C) No.32432/2004 16 provisions of CCS (Pension) Rules. Therefore Ext.P3 itself makes ti clear that his discharge from service or resignation from service was not a ground for rejection of his claim for pensionary benefits. Thirdly it is clearly stated in paragraph 2 of the counter affidavit of respondents 1 to 4 that the petitioner had voluntarily retired from service in the year 1981. Fourthly it has been held in the decisions referred to as in those reported in 2012(5) SCC 474, 2006 (1) SCC 737, 2001 (4) SCC 309 etc that resignation by itself may not stand in the way of the claim for pension, provided he is otherwise eligible for the same as per the rules. So it is not clear that resignation by itself would not disentitle claim for pensionary benefits. Finally it has been held by this Court in the case between Varghese V.State of Kerala reported in 2014(1) KLT 1077 that Rule 29(a) Part III Kerala Service Rules which stipulate that resignation from the public service which entails forfeiture of past service is unconstitutional and ultra-vires in so far as the denial of pension to persons who resigned from service not on account of any disciplinary proceedings or intended disciplinary proceedings. In the instant case it is common ground that the petitioner was not any W.P.(C) No.32432/2004 17 constrained to seek discharge or resignation from the service on account of any disciplinary proceedings or contemplated disciplinary proceedings and that his service was to the satisfaction of the GREF authorities as it can be seen from Ext.P1. Therefore, even if the discharge of the petitioner from service is treated as voluntary exit from service, the same by itself will not be a bar for the claim of pensionary benefits, if the petitioner can sustain that claim on some other tenable basis. It is also to be noted that the present oral argument advanced by the respondents has not in any way been raised in the written pleadings of the respondents and the impugned order also makes it clear that the rejection of the claim of the petitioner for pensionary benefits is solely on account of he is not possessing the requisite minimum qualifying service and not on account of the alleged resignation of the petitioner from service. On the other hand, it is categorically stated in para 2 of the counter affidavit that the petitioner had voluntarily retired from service.
13. The second objection raised by the learned Central Government counsel is that the petitioner claim for pensionary benefits is not to be entertained by this Court in exercise of W.P.(C) No.32432/2004 18 discretionary jurisdiction, taking into account the long delay on his part in making claims in that regard. It is true that the petitioner was discharged from the service on 1.5.1981 and that his representation referred to Ext.P3 rejection order is submitted on 23.12.2000 and his further representation is Ext.P4 is dated 11.07.2003. The petitioner approached this Court by filing this present writ petition on 04.11.2004. The question of delay in laches in writ proceedings has to be seen and considered on case to case basis and such questions which are bearing on rejecting the claim has to be considered on the facts and circumstances of each case. The plea that the writ petition is liable to be dismissed on account of delay and laches has not been specifically adverted to anywhere in the counter affidavit of the respondents 1 to 4. The only plea taken in paragraph 3 of the counter affidavit is that the relevant records in respect of the service of the petitioner who had voluntarily retired 23 years ago has already been destroyed by the office concerned etc. The date of entry of the petitioner in the GREF service, his date of discharge therefrom and the fact that his service was satisfactory to the GREF authorities are all evident from Exts.P1 and P3. So if at all W.P.(C) No.32432/2004 19 it is held that the petitioner is entitled to for consideration pensionary benefits, the basic factual aspects regarding the date of entry, date of discharge and satisfactory service are well known to the respondents and the non availability of records by itself will not or cause any serious impediment for the administrative authorities for considering his case. That apart in the case between Rajan.C V. Secretary, Ministry of Defence & Others reported in 2009 (1) KHC 151, this Court has taken overall view that the claim for pensionary benefits of defence personnel should be treated at different level by the Court while exercising under Article 226 of the Constitution of India, and that the delay in approaching this Court in that case was not taken as a ground for rejecting the pensionary claims on merits. Many a time personnel of armed services and other related services who have been working into rough and harsh places may be disabled from litigating their claims in time. Low paid employees like the petitioner would not be able to think of any serious litigation as they may not be aware of their legal rights and they may have several disabilities in seeking litigative remedies. More importantly the observations of the Apex Court W.P.(C) No.32432/2004 20 in paragraph 11 R.Viswan's case has been rendered as early as on 6.5.1983. Ext.P2 proceedings notifying the decision of the President of India declaring GREF to the integral part of Armed Forces has been rendered on 14.08.1985. Therefore the cause of action of the petitioner for pensionary claims is based on paragraph 11 of R.Viswan's case is rather of the nature of a continuing one. As the directions for the Hon'ble Supreme Court issued in R.Viswan's case can be traced to be extra ordinary power of the Supreme Court under Article 142 of the Constitution of India, the tenability of the claims of the petitioner based on that GREF has to be considered on merits. Therefore, I am not inclined to accept the plea of the learned Central Government counsel to reject the writ petition solely on the basis of laches. So, I am inclined to consider and examine the sustainability of the contentions of the petitioner on merits.
14. Regarding the primary contentions of the petitioner based on paragraph 11 of the R.Viswan's case, the issue to be adjudicated is as to whether the GREF personnel are to be treated bar with armed forces personnel in the matter of award of pensionary benefits. Certainly, there is disparity in the W.P.(C) No.32432/2004 21 service conditions as regards retiral benefits. The provisions of the CCS(Pension) Rules stipulate the minimum period of 20 years under Rule 48(a) for treating a voluntary exit of the incumbent for eligibility for the grant of pension under the CCS (Pension) Rules. Whereas it is admitted by the learned Central Government counsel that for armed forces personnel, the minimum qualifying period for grant of pensionary benefit is 15 years for Persons Below Officers Rank (PBOR). So the question is as to whether the GREF personnel like the petitioner and the armed forces personnel in the PBOR category are to be treated alike on the issue of grant of pensionary benefits is concerned. In the case between P.Chandramouly V. Union of India and Another reported in 1994 Suppl.SCC 104, the Hon'ble Apex Court has reiterated the applicability of the relevant rules of the Army Act as far as the GREF personnel is concerned, based on the ratio of R.Viswan's case. In the case between Union of India V. All Kerala EX-GREF and Family Welfare Organization reported in 1998 (2) KLT 613, the Division Bench of this Court has held that in view of the R.Viswan's case, retired GREF personnel are entitled for canteen facilities, W.P.(C) No.32432/2004 22 extended to retired armed forces personnel.
15. The arduous conditions under which GREF personnel are constrained to work are also relevant aspects in this issue. It is clear from materials like those available from Ext.P6 that the the GREF personnel are working in remote areas, highly snow clad mountains, impenetrable rain forests, scorching deserts, insurgency infested, stifle torn areas and that recently GREF has been entrusted with works in high risk areas like Libya, Iraq and Afghanistan etc. It can be further seen from Ext.P6 that GREF personnel are deployed successively in in-accessible areas, high altitude mountains, harsh and uncongenial climatic and ground conditions inhospitable terrain in the far-flung and secluded areas, where adequate schooling, communication and medical facilities are not available and that most of the GREF personnel are devoid of basic civic amenities during their entire service apart from a sense of seclusion and isolation, while working in the Border Road Organisation. GREF personnel are deployed for road maintenance works in hgh altitude areas where temperature dips to sub-zero level (-40o C) with heavy snow fall, snow blizzards, snow avalanches and rarified atmosphere and W.P.(C) No.32432/2004 23 that this affects the efficiency of both man and machinery besides affecting health adversely and that this deployment in a rarified atmosphere with extremely low levels of oxygen roots high altitude area included diseases like pulmonary edema, blood pressure, heart problems, snow blindness etc. The fifty fourth report of the Parliament's standing committee on the functioning of GREF is also quoted therein which reads as follows:-
"The committee is aware of the fact that Border Roads Organization personnel have to work under harsh and rough climatic conditions in hostile remote areas of borders. Sometimes their lives are in danger or in miserable conditions. However, the concessions and facilities extended to these personnel are not adequate. It is pity that since inception GREF has not been paid any special attention to make the service conditions attractive....."
It is also stated therein that on an average about 300 uniformed personnel and CPLs lay down their life due to accidents and other reasons and that these casualties have occurred mostly during peacetime activities and that the sacrifices made by the GREF personnel to the nation is unparallel. It is also stated in Ext.P6 that the true nature of the extreme sacrifices being made by GREF personnel will be known only when we understand W.P.(C) No.32432/2004 24 their hard work and dedication in keeping road communication through during heavy snowfall in Himalayan belts, torrential rains in North East and during the time when the Mercury touches its peak in the deserts of Rajasthan and that undertaking works in insurgency prone areas of North East, Jammu and Kashmir etc is an added hazard being faced by the GREF personnel and that many places there are totally dependent on air dropping facility for transporting equipments and food items as well as manpower and that they can be described as "soldiers of peace".
16. In the case between Pushpa Vanti V. Union of India and Others reported in 2011(1) SCC 193 the Apex Court had considered the case of pensionary claims made by the widows of armed forces personnel and observed that the Indian armed forces are bravely defending the borders of the country, often standing on guard at a height of 20,000 feet and in minus 30o C temperature, day and night so that the people of India can live, work and sleep in peace and that there is widespread discontent among serving and former members of the armed forces and their widows and family members regarding their W.P.(C) No.32432/2004 25 service conditions etc. Taking note of the situation the Apex Court quoted the words of 'Chankya' in paragraph 6 of the said judgment which reads as follows:-
"The great Prime Minister of Magadha, Chankya, told Emperor Chandragupta Maurya:
Pataliputra rests each night in peaceful comfort, O King, secure in the belief that the distant borders of Magadha are inviolate and the interiors are safe and secure, thanks only to the Mauryan Army standing vigil with naked swords and eyes peeled for action, day and night, in weather fair and foul, all eight praharas (i.e. round the clock), quite unmindful of personal discomfort and hardship, all through the year, year after year. To this man, O Rajadhiraja, you owe a debt: please, therefore, see to it, suo motu, that the soldier continuously gets his dues in every form and respect, be they his needs or his wants, for he is not likely to ask for them himself. The day the soldier has to demand his dues will be a sad day for Magadha; for then, on that day, you will have lost all moral sanction to be king!".
Thereupon, the Apex Court in the aforementioned decision directed the formation of a grievance redressal commission for considering the grievances of such personnel. Taking note of the seriousness of the situation, the Government of India acted immediately and considered the situation in all its seriousness and gravity and later submitted before the Apex Court that the grievances of the petitioner therein are duly redressed. Those aspects are dealt with in the subsequent decision of the Supreme W.P.(C) No.32432/2004 26 court in the case between Pushpa Vanti V.Union of India and Others reported in 2011 (14) SCC 604. The Central Government submitted before the Apex Court that for looking after the welfare of Ex-armed forces personnel a scheme has been put in place by the Union of India which was made available for the perusal of the Apex Court. In view of the framing of the said scheme for the welfare of ex-service man, the Supreme Court recalled the earlier order dated 15.11.2010 reported in 2011(1) SCC 193 that ordered the formation of the redressal commission. The observations of the Supreme Court in 2011(1) SCC 193 in paragraph 6 quoted above are relevant for all those who are concerned for the welfare of our nation. In view of the directions issued by the Supreme Court, the Government of India also acted very vigilantly and had taken urgent steps for redressing the grievances of the Ex-armed forces personnel.
17. Regarding the issue of disparity of pensionary benefits, and I am of the considered opinion that the observations and directions of the Hon'ble Supreme Court in paragraph 11 of the R.Viswan's case directing the Central W.P.(C) No.32432/2004 27 Government to consider the advisability of taking steps for ensuring that disparity between the terms and conditions of service of army personnel in GREF and other officers and men in GREF is removed etc. is essentially in the nature of a direction issued in exercising of the Hon'ble Apex Court in extra ordinary jurisdiction under Article 142 of the Constitution of India and has to be given all due deference and seriousness by the Government of India. Moreover, it is to be seen that SRO Nos.329 and 330 were already issued on 23rd September, 1960 by the Government of India for notifying GREF at an integral part of the armed forces for the purpose of Article 33 of the Constitution of India. Later in deference to the judgment dated 06.05.1983 of the Apex Court in R.Viswan's case, the Union of India has issued Ext.P2 notification dated 14.08.1985 notifying that the President of India is pleased to declare GREF to be an integral part of the armed forces of India. Ext.P2 notification cannot be held to have restrictive application only in regard for the limited purposes of the applicability of Article 33 of the Constitution of India. If that be so, SRO NO.329 and SRO NO.330 were already notified and put in place as early as on 23.09.1960 long prior to the W.P.(C) No.32432/2004 28 R.Viswan's case. Since Ext.P2 is issued the compliance with R.Viswan's case, the declaration of the President of India notified in Ext.P2 declaring the GREF to be an integral part of the armed forces of India, should be treated as one issued not only for the purpose of Article 33 of the Constitution of India but also one in reference to the observations and directions of the Apex Court in paragraph 11 of the R.Viswan's case. Taking into account the adverse nature of the conditions under which the GREF personnel have to work, I am prima facie of the considered opinion that the disparity between the terms and conditions of service on the issue of the pensionary benefits of army personnel and GREF personnel has to be removed without any further delay. The disparity in the terms and conditions of service of GREF personnel and army personnel in the matter of minimum qualifying service for pension, prima-facie, borders on unconstitutionality. However, I am not pronouncing any final view on this matter and I am inclined to remit the matter for the serious consideration of the Union of India. In this view of the matter, the impugned Ext.P3 rejection order dated 31.1.2001 is quashed, in order to facilitate proper re-consideration of the W.P.(C) No.32432/2004 29 entire matter at the hands of the respondents.
18. Pension is not to be treated as a bounty but it is an essential component of right to livelihood of a retired personnel and it is intimately connected with the right to live with full human dignity as far as retired personnel are concerned. Therefore the matter is remitted to the competent authority among the respondents who shall consider the issue as to the disparity in the stipulation regarding minimum qualifying service for grant of pensionary benefits between army personnel and GREF personnel, in the light of the decision of the Apex Court in R.Viswan's case (paragraph 11) and also after considering the aspects adverted to above and all other aspects which are relevant to the issue. For effecting for the consideration in this regard, the petitioner is given liberty to submit detailed representation regarding the sustainability of his claims and contentions in this regard and he may submit such representation along with a certified copy of the judgment within two weeks from the receipt of the certified copy of the judgment.
19. Like in the case of Puspa Vanti's case referred to above, this Court trusts that the competent authority in the W.P.(C) No.32432/2004 30 Union of India will rise up to the occasion and bestow their serious consideration on the disparity faced by the GREF personnel and take emergent steps for implementing the directions and observations of the Supreme Court in paragraph 11 of the R.Viswan's case in its true spirit. Even if final decision is taken by the Union of India that the retired GREF personnel like the petitioner should also require only the minimum 15 years of qualifying service for pension as in the case of persons retired in armed forces personnel in the PBOR category, then necessary steps may also be taken to formally notify the said decision by exercising the powers under Rule 88 of the CCS (Pension) Rules, so that the requirements of 20 years minimum service stipulated in Rule 48(a) is duly reduced to 15 years as far as the Ex-GREF personnel like the petitioner is concerned. The decision on the above the claims of the petitioner should be considered by the competent authority of the Union of India as early as possible at any rate within the outer time limit of five months from the date of receipt of certified copy of this judgment.
W.P.(C) No.32432/2004 31
20. The competent authority among the respondents shall thereafter immediately intimate the pension sanctioning authority of the petitioner about the decision so taken, as directed above, without any delay, at any rate within two weeks from the date on which such decision is so taken, without waiting for the issuance of any formal notification of such decision. Depending on the decision so taken by the Union of India, the claims of the petitioner for pensionary benefits may be considered and decision thereon may be taken by the pension sanctioning authority within two months from the date on which the aforementioned decision is taken by the Union of India. In this consideration it is made clear that the claims of the petitioner are not liable to be rejected solely on the ground of delay or laches or on the ground that the petitioner had purportedly resigned from service. It is also made clear that the claim of the petitioner shall not be rejected due to non- availability of the records relating to the petitioner's service and based on the decision so taken by the Union of India, as aforesaid, the pension sanctioning authority can easily consider the claim of the petitioner for pension as his date of entry in W.P.(C) No.32432/2004 32 GREF service, date of discharge from GREF and his satisfactory performance in service are all evident from the exhibits produced by the respondents themselves in this Writ Petition. It is further made clear that in case the decision of the Union of India is in favour of Ex-GREF personnel, then the pension sanctioning authority will be at liberty to limit the grant of pensionary benefits to the petitioner from a cut off date like the date of the petitioner's application dated 23.12.2000 referred to in the impugned Ext.P3 or such other cut off date, that the authorities may deem to be reasonable in the facts of this case.
With the above observations and directions, the Writ Petition (Civil) stands finally disposed. There will be no order as to costs.
Sd/-
ALEXANDER THOMAS, JUDGE.
ps & RAV /9/4/14 //True copy// PA to Judge