Jammu & Kashmir High Court
Mohinder Singh Malik And Anr. vs Union Of India (Uoi) And Anr. on 20 March, 2002
Equivalent citations: 2003(3)JKJ73
Author: H.K. Sema
Bench: H.K. Sema
JUDGMENT S.K. Gupta, J.
1. We have heard Mr. R.S. Thakur, learned counsel for the appellant and Mr. S.S. Nanda, Advocate for the respondent in extenso.
2. This appeal has been preferred against the judgment and order dated 28.9.2001 passed by the learned Single Judge in SWP No. 2174/2001, dismissing the writ petition.
3. Setting in the facts of the case in resume are that appellant/writ-petitioner joined as Deputy Superintendent of Police, later designated as Assistant Commandant in the Border Security Force, pursuant to his selection on the basis of a Combined test held of the said post in various Organisations of Armed Forces including Central Industrial Security Force. Appellant at the relevant time was holding the post of Commandant. It was for the first time in 1978 by a Notification issued by the Ministry of Home Ministry of Home affairs, G.S.R. 1462 dated 9.12.1978, Border Security Force (Seniority, Promotion and Superannuation Officers) Rules, 1978 were promulgated. Since point in issue between the parties relates to the age of retirement of a Commandant in the Border Security Force, it is relevant to notice Rule 9 of the said Rules and reads as under:
"9. SUPERANNUATION Retirement age for officers holding ranks higher than that of a Commandant shall be fifty-eight years, and for officers of the other ranks it shall be fifty-five years:
Providing that the Central Government and for reasons to be recorded in writing extend the retirement age of-
(a) An officer of the rank higher than of Commandant for a period of one year at a time, but not in any case beyond the age of sixty years.
(b) Officers of the other ranks for a period of one year at a time but not in any case beyond the age of fifty eight years."
4. By another Notification of the Ministry of Home Affairs, G.S.R. 273 (E), dated 27.5.1998, purportingly issued in exercise of the powers conferred by Sub-section (2) of Section 141 of the Border Security Force Act, 1968, Rule 9 of the 1978 Rules was amended so as to provide for the age of superannuation of the officers holding a rank higher than that of Commandant as 'sixty years', and of the officers of others ranks as 'fifty seven years' by the afore-said Notification, the retirement age of the Commandant and the other ranks below him was fixed at 'fifty seven years' instead of 'sixty years', as in the case of Chief Law Officer and the Law Officers of the Border Security Force, vide Notification No. G.S.R 274 (E) dated 27.5.1998 as also in the case of Medical Officers cadre by the Notification of Ministry of Home Affairs G.S.R. 275 (E) dated 27.5.1998, by amendment of the Rules of 1968 in exercise of the power conferred by Clause (b) and (c) of Sub-section (2) of Section 141 of Border Security Force Act, 1978.
5. Appellant also claimed that his age of superannuation should have been 60 years instead of 57 years as in the case of other central civil servants, looking after the affairs of Union of India. It is further claimed by the appellant that Assistant Commandant in the Border Security Force has been classified into General Central Service, Group-'A' (Gazetted) and that means the officers higher-up in the hierarchy including Commandant, fall into that classification and are thus officers of the General Central Service Group A (Gazetted), Non-Ministerial and referred to the extract of the Border Security Force (Assistant Commandants Recruitment) Rules, 1985 Schedule Rule 3 & 4. It is also contended by the appellant that the Border Security Force has been declared by law to be General Central Civil Service, and the members of the Force are governed in all service matters including remunerations, advances, gratuity, medical reimbursement, voluntary retirement, leave, leave travel concession, retirement benefits etc., by the civil Service Rules and Regulations and Fundamental Rules, Supplementary Rules, Central Civil Services (Classification Control and Appeal) Rules etc. apply to them. Rule 7 of Central Civil Services (Classification, Control and Appeal) Rules 1965 defines the General Central Service. It clearly envisages that Central Civil post of any class - not included in any other Central Service, shall be included in the General Central Service of the corresponding class and a Government servant appointed to any such post shall be deemed to be a member of that service un-less he is already a member of any other Central Civil Service of the same class. Appellant also pleaded that the members of the Border Security Force are holding civil posts and as such, entitled to be treated for the purposes of age of superannuation in the same manner as other Central Government servants. They are governed by the fundamental rules as are applicable to other Government servants and in particular Rule 56 relating to the age of their superannuation.
6. According to the appellant, Border Security Force is a para-military force, as defined in Rule 2 (d) of the Ex-Servicemen (Re-employment in Central Civil Services and Post) Rules, 1979, and cannot be treated as a part & parcel of Armed Forces. The appellant being a member of the Border Security Force is holding a Civil post in connection with the affairs of the Union of India. It is also maintained that the police servants are performing the same duties in various States as are performed by the members of the Border Security Force, but are treated as Civil Servants holding Civil posts under the rules applicable in those States. Appellant is governed by the Central Services Rules so far as pension, pay, leave and other conditions of service are concerned and a different age of superannuation in the case of the petitioner, therefore, cannot be prescribed and fixed.
7. It is specifically said that since the age of superannuation in other police organisations like Central Industrial Force raised under the Central Industrial Force Act 1968, Central Armed Police Force under the Ministry of Home Affairs, Railway Protection Force, which too is a Central Armed Police Force under the Ministry of Railways charged with the similar duties is 60 years, therefore, the age of retirement should be the same in case of men of force serving in the Border Security Force. Border Security Force is headed by an Officer of the Indian Police Service, as the Director General of the Force on deputation and continue to serve in the Force till attains the age of 'sixty years'. This classification as between a Commandant and higher ranks for the purpose of the age of superannuation is unjust, un-fair and un-reasonable. Appellant further submitted that 110 such classification is maintained in any Civil Service, including a police force. The recommendations of the Fifty Pay Commission, particularly with regard to the enhancement of the age of retirement, have been made applicable to men of force and therefore, appellant urged to be treated as a member of civil Service of the Union holding a civil post. According to the appellant, no classification exist for the purpose of age of retirement in either of the above Forces and referred to various Rules, notifications, applicable to respective Services of the Union, It is also contended by the appellant that the Border Security Force is similarly circumstanced and as such, cannot be discriminated against the provisions of Rule 9 of the Rules prescribing the age of retirement of the Commandant and the lower ranks in the Border Security Force as 57 years is un-constitutional, violative of Articles 14 & 16 and as such, liable to be struck down. The age of superannuation of the Border Security personnel, whatever be their ranks, deserve to be fixed at 60 years and thus, the appellant be treated not to retire unless upon attaining that age. Appellant/Writ-petitioner taking the grievance of the communication dated 27.10.2000 intimating the date of his retirement as 30th Sept. 2001, filed the writ petition praying for the following reliefs:
"Writ, order or direction in the nature of certiorari or any other appropriate writ, the relevant record may be called for and Rule 9 of the Border Security Force (Seniority, Promotion and Superannuation of Officers) Rules 1978, as amended by the notification of the Ministry of Home Affairs, GSR 273 (E) dated 27.5.1998, may be struck down and the communication No. 22/77/2000-Pers/BSF/134041, dated 27.10.2000, quashed and by another appropriate writ, order or direction the concerned respondents be directed not to retire the petitioner, unless he attains the age of 60 years".
8. The learned Single Judge, after hearing learned counsel for both the sides and consideration various notifications and rules placed on the record, dismissed the writ petition in terms of the following order:
"(i) That the petitioner is a member of Armed Force, which force has been described in the preamble to the Act;
(ii) That the petitioner is to be governed by specific Rule 9 referred to above. Merely because some Civil Services Regulations have been made applicable to the men of the Force, would not lead to the conclusion that all Civil Service Regulations including the Regulation dealing with the superannuation should be made applicable to the petitioner;
(iii) That if in the case of some men of the Force, the age of superannuation is higher, then that cannot be made a ground to contend that similar benefit should be given to the petitioner. There exists a reasonable classification and there is a purpose behind this classification.
In view of the above and in view of the pronouncement of the Supreme Court in the case of SS Ranade (Supra) no case is made out for interference. This petition, as such if found to be without merit and is dismissed."
9. Mr. R. S. Thakur, learned counsel appearing for the appellant has raised two contentions before us in his debate, firstly, that the members of the Border Security Force are the members of General Central Civil Services and therefore, the age of superannuation of the Commandant and the ranks below of the Force, cannot but be such age as prescribed of the members of the Force; secondly Rule 9 of the Border Security Force (Seniority, Promotion and Superannuation of Officers) Rules, as amended by GSR 273 (E) dated 27.5.1998 are un-constitutional being in direct conflict with the Fundamental Rules (Rule 56-A) relating to the age of superannuation framed under Article 309 of the Constitution of India and for these reasons liable to be quashed.
10. That there is no gain-saying the fact that Article 309 of the Constitution provides for and to regulate the recruitment and conditions of service of persons employed in Civil capacity under the Union or the State. Under Entry 2 of List-1 of the Seventh Schedule to the Constitution, the Parliament has been given power to make laws with regard to the Naval, Military and Air Force as also to any other Armed Forces of the Union. The expression 'Other Armed Forces of the Union' includes Armed Forces other than the three well known Forces of the Union (viz the Naval, Military and the Air Force). Deriving force from that source in the Constitution of India, the Parliament had enacted the Border Security Force Act, 1968 which provides for the constitution and regulation of an Armed Force of the Union for ensuring the security of the Borders of India and for matters connected therewith, in its preamble. Under Section 3 of the said Act, all Officers, Subordinate Officers, Under Officers and officers enrolled under the Act are put as subject to the Act, where-ever they may be, and all those persons are required to remain so subject until retired, discharged, released, removed from service in accordance with the provisions of this Act and the Rules. Section 4 provides for the constitution of the Force, which reads as under:
"Section 4 - CONSTITUTION OF THE FORCE:-
(1) There shall be an armed Force of the Union called the Border Security Force for ensuring the security of the borders of India;
(2) Subject to the provisions of this Act, the Force shall be constituted in such manner as may be prescribed and the conditions of service of the members of the Force shall be such as may be prescribed."
11. Section 6 provides for the enrollment to the Force. Thus, a complete enclosure is provided to preserve the Force's sensitivity and integrity. There is, therefore, no escape from the conclusion that the officers, subordinate officers, under officers and other persons enrolled under the Act remain subject to the Act so long as they remain in service.
12. The appellant/writ-petitioner being a Commandant was concededly an Officer under Rule 14A(1) (a) of the Border Security Force Rules, 1969, There is also no manner of doubt that Border Security Force being part of the Armed Forces of the Union and hence part of the defence service's bears an apparent distinction from the Civil Services of the Union and this distinction takes the defence service out of the ambit of Article 309 and Article 310 of the Constitution of India. And if that is so, various Rules and Regulations on which reliance has been placed by the appellant are basically applicable to the Civil Servants holding a civil post in connection with the affairs of the Union of India. These Rules, therefore, we are clearly of the view, do not apply to the appellant. It is also either by extension of theses Rules or by adopting these Rules that the members of the Security Forces derive some benefit. The Central Government in exercise of its powers under Section 141 of the Border Security Force Act has notified the Border Security Force Rules, 1969. So the issue with regard to superannuation of the members of the Border Security Force is basically dealt with under Rule 9 of the Rules. Rule 9 provides a hierarchy of posts. Holders of all posts upto and including the level of Commandant retire at the age of 57 years. Holders of posts above that of a Commandant retire at the age of 58 years. It is, therefore, Rule 9 of the Border Security Force (Seniority, Promotion and Superannuation) Rules, 1978, which would determine the age of superannuation. The contention raised by appellant's counsel that the Rules, which apply to the Civil Servants, would also govern the appellant, being devoid of any force, does not merit acceptance.
13. Another leg of argument put-forth by the appellant's Advocate is that the age of retirement of the Commandant and lower ranks in Border Security Force is separately provided as 57 years, different from such officers and ranks in other organisations of the Central Armed Police Forces and General Central Service, who superannuate at the age of 60 years. He further submitted that it amounts to a hostile discrimination and violative of Articles 14 and 16 of the Constitution. It is now well settled that Article 14 is applicable to employment under the State so as to invalidate the discriminatory Rules or orders relating to employment, from the stage of initial appointment to its termination. A Rule or Order will be discriminatory, if the Classification made by it is not reasonable. But Article 14 can be invoked only in case of actual discrimination as distinguished from an abstract or theoretical in-equality.
14. The Officers and other members of the Border Security Force have been classified in accordance with their ranks and placed in different categories under Rule 14-A of the Rules. Their age of superannuation would depend upon the ranks picked up in terms of Rule 9 of the Rules, Border Security Force is a combatant force and required to maintain and preserve efficiency, integrity and high standards and 'be in a fighting fit condition'. The appellant therefore, belongs to a separate category as indicated above, and has been classified. Parliament has classified personnel of the Armed Forces into different categories on the basis of requirement of the Armed Forces having direct nexus with the object sought to be achieved. Article 16 does not bar reasonable classification of employees. Rational classification, therefore, can be made consistent with the purpose of such classification.
15. It was next contended on behalf of the appellant that there are some categories in the Force, which continue upto the age of 60 years and similar benefit should be given to the appellant. This plea of the appellant, however, cannot accepted, because he has been separately categorized and differently classified under the Rules. On the basis of requirement of the Armed Forces, the Legislature has classified Officers. This classification cannot be said to be arbitrary or irrational, but founded on intelligible differential consistent with the object sought to be achieved.
16. The Constitution Bench of the Apex Court in Jagannath Prasad Sharma v. State of U.P., AIR 1961 SC 1245, held that equal protection of laws does not postulate equal treatment of all persons without distinction, it merely guarantees the application of same laws alike and without discrimination to all persons similarly situated. In State of Mysore v. P. Narasinga Rao, AIR 1968 SC 249, the Apex Court considered the validity of the Rules and it was inter-alia held that:
"It is well settled that though Article 14 forbids class legislation, it does not forbid reasonable classification for the purpose of legislation and when any impugned rule or statutory provision is assailed on the ground that it contravenes Article 14, its validity can be sustained it two tests are satisfied, namely, classification on which it is founded must be based on an intelligible differential which distinguishes persons or things grouped together from others left out of the group; and the second test is that the differential in question must have a reasonable relation to the object sought to be achieved and in other words there must be some rational nexus between the basis of classification and the object intended to be achieved. It was also held that Articles 14 and 16 from part of the same constitutional code of guarantees and supplement each other and in other words Article 16 is only an instance of the Application of the general rule of equality laid down in Article 14 and it should be construed, as such and, therefore, there is no denial of equality of opportunity unless the persons who complaint of discrimination is equally situated with the person or persons who are alleged to have been favoured."
17. Similar view was expressed in Union of India and Ors. v. No. 664950 IM Havildar/clerk SC Bagari, (1999) 3 SCC 709.
18. Situated thus, broadly speaking, if there is rational classification consistent with the purpose for which such classification was made, equality is not violated.
19. Further argument of Mr. Thakur, appellant's counsel, that the members of the Indian Police Service sent on deputation as Director General of the Border Security Force and while serving in the Force, their age of superannuation is not the same as in the case of appellant, and the appellant should also be treated in the same manner, cannot be accepted. This is because Rule 1(3) Proviso of the Border Security Force Rules, 1969, is a complete answer and is re-produced in verbatim as under:
"(3) These rules shall apply to all persons subject to the Act:
Provided that the provisions of Chapter IV thereof shall not apply to persons belonging to the All India Services and other Government servants who are on deputation with the Border Security Force."
20. As regards the applicability of the recommendation of the 5th Pay Commission to the men of forces, the texture of the Resolution dated 30th September, 1997 issued by the Ministry of Personnel, Public Grievances and Pensions (Department of Pension and Pensioners' Welfare) (Annexure-G at page 51 to the appeal) unequivocally demonstrates that it was primarily meant for Central Government Civil employees and not the Border Security Force personnel. They are not the civil servants, but part of the Armed Forces of the Union and subject to the Act and the Rules, 1969.
21. Fro reasons we have set out above, we are of the considered view that unless the Rules are demonstrably capricious or arbitrary and not informed by reasons whatsoever or they suffer from the vires of discrimination or infringe any statute or provisions of the Constitution, the Rules cannot be struck down. The appellant is a member of the Force and subject to the Act and governed by Rule 9 of the Rules, so far as the issue of age of superannuation is concerned. The Civil Service Regulations are not applicable in case of Armed Forces of the Union. There is a rational classification with a purpose behind such classification. The judgment and order impugned propounded by the learned Single Judge, in our view, does not suffer from any legal infirmity inviting interference in appeal.
22. Having considered the facts and circumstances discussed above, the inevitable conclusion reached is that, there is no merit in this appeal, which is dismissed. No order as to costs.