ORDER
Hanumanthappa, J.
1. The common Question of Law involved in these two Petitions pertain to the validity of definition of Rule 2(g) of the Karnataka Engineering Colleges and Technical Institute (Selection of Candidates for Admission) Rules, 1986, hereinafter referred to as the Rules, for short.
2. A few facts which are necessary to dispose of these Petitions are as follows:
Parents of the petitioners in both the petitions i.e., Sri S.R.Ujjankop – the first petitioner in W.P. No. 12167/1989 and Sri A.R.K.Sharma, father of petitioner in W.P.No. 12793/1989, were working in General Reserve Engineering Force and subsequent to 1987 they were discharged from service. Both the petitioners, on their completion of Pre-University Course, sought admission to First Year Engineering Course, in the seats reserved by the Government for ex-defence quota. On submitting their applications, the Selection Board viz., the Director of Technical Education selected both the petitioners for admission to first year Bachelor of Engineering Course for the academic year 1989-90. The duration of the above said course is 4 years. Accordingly, the petitioner in W.P.No. 12167/1989 was informed that he has been allotted a seat in B.V.B. Engineering College, Hubli, and the petitioner in W.P.No. 12793/1989 was allotted a seat in Bachelor of Engineering Course in Basaveshwara Engineering College, in Bagalkot. On receipt of intimation both the petitioners approached their respective colleges with all the relevant certificates. But to their surprise both the above said College authorities informed the petitioners that unless they produce a certificate issued by the Sainik Welfare Board to the effect to that their parents were part of Ex-Defence personnel, they will not be admitted. On such a demand, both the petitioners made attempts to secure the certificates, as directed, from the Sainik Welfare Board. The Sainik Welfare Board refused to issue certificates on the ground that parents of the petitioners served not in regular Army but only in General Reserve Engineering Force (GREF) and therefore they cannot avail of such a benefit. Due to the stand taken by The Sainik Welfare Board, the students had to lose their precious time. Accordingly, with great difficulty the petitioner in W.P.No. 12793/1989 got himself admitted to R.V. Engineering College, Bangalore by paying capitation fees, though he was initially admitted in Basaveshwara College of Engineering, Bagalkot under quota reserved for ‘Ex-Defence’ personnel. Likewise, the second petitioner in W.P.No. 12167/1989 got herself admitted in Gogte Engineering College, Belgaum, by paying capitation fees. Hence, both the petitioners filed two Writ Petitions separately seeking more or less similar reliefs:-
1) strike down the exclusion of personnel who served in General Reserve Engineering Force from the definition of Ex-Serviceman in Rule 2(g) of Karnataka Engineering Colleges and Technological Institute (Selection of Candidates for Admission) Rules, 1986, as unconstitutional; and ISSUE a writ of mandamus directing the respondents to admit both the petitioners for Bachelor of Engineering Course in the quota reserved for defence personnel.
3. Subsequent to filing of these Writ Petitions, in view of the developments that took place, both the petitioners sought for amendment of the prayer. When matter was taken up TOP arguments both the Counsel submitted that since the students are nearing completion of their education carrier and the action of the respondents in not admitting both the petitioners was quite arbitrary and illegal, as such, whatever capitation fee paid by these two petitioners to their respective Colleges be ordered to be refunded by the respondents, as according to the petitioners, had the respondents taken correct stand, they would have been admitted in the quota reserved for ‘Defence Personnel’ in which event they would not have been called upon to pay capitation fees and seek admission in private colleges.
4. Learned Counsel for the petitioners also submits that apart from the reimbursement of the capitation fees respondents are also liable to reimburse the fee paid by the petitioners for all these years, which was on the higher side.
5. Shriyuths Krishna Bhat and B.K. Sampath Kumar, learned Counsel for petitioners, in support of their contentions submit that 1) exclusion of GREF from the definition of ‘Armed Forces’ in Rule 2(g) of the Rules, runs contrary to Government orders of both State and Central, issued in the matter of clarifying the status and position of those served in GREF subsequent to 30.6.1987. Whereas, Sri Devadas, learned High Court Government Advocate, supports the action of the respondents. He maintains that services rendered by regular armed forces and GREF are altogether separate and distinct: As such, it is not proper to equate both the personnel as one. According to him, when both the petitioners who served in GREF did not satisfy the requirement of personnel of armed forces, authorities were right in refusing to issue certificate to the parents of the students in both the Petitions. He also submits that any notifications issued in the form of executive order either by the State or Central Government might alter the importance attached to a Rule particularly Rule 2(g) of the Rules, which clearly defined the different categories of personnel excluding GREF. Such a definition is neither arbitrary nor unreasonable. But according to him, it stand to reason. For these reasons he submits that both the Petitions be dismissed on the ground that there is no merit
6. In order to appreciate rival contentions of both sides it is proper to extract here Rule 2(g) of the Rules and to compare the same with the Nbtifications and other orders issued by the Government time and again. In respect of status of those who worked in GREF, Rule 2(g) of the Rules, reads as under: –
(g) ‘Ex-Serviceman’, means a person, who has served in any rank (Whether as a combatant or as non-combatant) in the Armed Forces of the Union, including the Armed Forces of the Former Indian States, but excluding the Assam Rifles, Defence Security Corps, General Reserve Engineering Force, Lok Sahayak Sena and Territorial Army, for a continuous period of not less than six months after attestation and
xxxxx”
Apart from Rule 2(g) of the Rules, the Quartermaster General’s Branch, Canteen Services, in his letter dated 19th November 1987, observed as follows:-
‘Ex-Serviceman’ means a person who has served in any rank (Whether as a combatant) in the Regular Army, Navy and Air Force of the Indian Union but does not include a person of the who has served in the Defence Security Corps, the General Reserve Engineering Force, the Lok Sahayak Sena and the para military forces”.
7. At Annexure-B which was issued in exercise of the powers conferred under Sub-section (1) & (4) of Army Act, 1950, which is an extract from the Gazette of India reads as under:-
(1) Applies to the General Reserve Engineer Force raised and maintained in India under the authority of the Central Govt. all the provisions of the said Act with the exception of those shown in Schedule ‘A’ subject to the modifications put in Schedule ‘B’ and
(2) Directs 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 and jurisdiction, powers and duties incident to the operation of the said Act specified in the second column thereof.
xxxxx
(i) In Section 3:-
(a) For Clause (v) the following clause shall be substituted namely:-
(v) xxxxx
(b) In Clause (xii) after the words “or the Territorial Army” of a person belonging to the General Reserve Engineer Force holding therein a position equivalent to that of Junior Commissioned Officer of the “Regular Army” shall be inserted.”
Annexure-C also further clarifies the position, which reads as under:-
“Sub: DECLARATION OF ALL PERSONS SUBJECT TO ARMY ACT AS ON ACTIVE SERVICE.
1. Orders have been issued vide Govt. of India, Ministry of Defence Gazette Notification No. 6-E dated 28 Nov.62 (Army Order 517/62- refers) that all persons subject to Army Act, shall wherever they may be serving, be deemed to be active service within the meaning of Section 9 of the Army Act read in conjunction with Clause (i) of Army Act Section 3.
2. Since Army Act Sections 3 and 9 are both applicable in the case of GREF personnel. HQ DGER were requested to confirm if the provisions of aforesaid Gazette Notification will equally apply in the case of GREF personnel, it has been clarified vide DGER letter No. 69589/DGER/Pers 1(b) dated 9 Mar 65 that GREF Personnel being subject to Army Act, the provisions of Ministry of Defence Gazette Notification No. 6-E dated 28 Nov.62 will equally apply to them”
8. In Writ Petition No. 12793/1989 the petitioner has produced a letter written by the Government of India, Ministry of Shipping and Transport, New Delhi to the Director General Border Roads, New Delhi, in the matter of status of GREF which reads as follows:-
“To
The Director General Border Roads,
Kashmir House,
DHO PO New Delhi – 110001.
Subject: Status of General Reserve Engineer Force.
Sir,
The matter regarding the status of General Reserve Engineer Force has been under consideration of the Government for quite some time. This question was considered by the Supreme Court in the Writ Petition Case of R.Viswan and others v. Union of India and others. After examination of all the aspects of this matter the Court came to the conclusion that “GREF is an integral part of Armed Forces”, for the purpose of Article 33 of the Constitution of India.
2. Accordingly the President is pleased to declare General Reserve Engineer Force to be an integral part of Armed Forces of India. This issues in consultation with Ministry of Law and Judge Advocate General, Army Headquarters.”
Likewise, at Annexure-D, the Ministry of Shipping and Transport, has clarified regarding reservation for members of GREF in plots and Houses Allotted by State Government, the relevant portion of which reads as under:-
“In its judgment of May, 1988, the Supreme Court held that going by the rule and functions performed by the GREF and its organisational pattern (on the Army lines) GREF is an integral part of the Armed Forces and its members are “the members of Armed Forces”.
9. Another letter produced at Annexure-E also clarifies regarding entitlement of GREF in plots and Houses allotted by the State Government. It reads as under:-
Copy of Govt. of Karnataka (Housing and Urban Development Department of Housing) Bangalore – 1 tetter No. HUD.211 KHD 84 dated 05-06 Sep’84 addressed to Secy. BRIB.
Sub: Reservation for Members of GREF in plots and House allotted by the State Governments.
1. I am to refer to your No. F.85(24)/77 – Estt dated 07 Jul ’84 on the above subject and to state that as per the regulations for allotment of houses constructed by the Karnataka Housing Board: Bangalore the Defence Personnel including Ex-Servicemen get a reservation of 5% of the house-sites notified for allotment. Since the members of the GREF are said to be members of the Armed Forces, they get covered under the reservation of 5%.
2. This is for your information.”
10. If Rule 2(g) of 1986 Rules and clarifications made at Annexure-F produced in Writ Petition No. 12167 of 1989 is compared with various notifications, Government Orders or clarifications made by Government of India treating that those served in GREF were or are in active service as contemplated in Arms Act 1950, the only conclusion is that personnel of GREF are part of Armed Forces. When such being the case to differentiate personnel of GREF with other, as State Government did in its 1986 Rules, i.e., in para 2(g) of the Rules, has to be held as quite arbitrary. Moreover, it is not the case of the State that services of GREF personnel when compared to other armed personnel neither inferior nor services required by the Armed Forces are superior to GREF. When this is the position, to deny the benefits to GREF personnel is wholly arbitrary, discriminatory and violative of Article 14 of the Constitution. Apart from this, a similar contention had come up for consideration before the Supreme Court in the case of R. VISWAN v. UNION OF INDIA, and the Supreme Court observed as follows:-
“The history, composition, administration, organisation and role of GREF clearly shows 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. 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. 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 Army 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. Thus 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 “Integral to the Armed Forces”. There can be no doubt that without the efficient and disciplined optional 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 operational requirements of the Armed Forces. Therefore, it can be said 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 Act to the members of GREF can be said to be protected by that Article and the fundamental rights of the members of GREF can be said to be validly restricted by Section 21 read with rules 19 to 21 of the Army Rules.”
11. Again the Supreme Court had occasion to deal with a similar issue in DHAN SINGH AND ORS. v. STATE OF HARYANA AND ORS., of its Judgment observed as under:-
“The young persons who have joined the military service during the national emergency and those who were already in service and due to exigencies of service had been compelled to serve during the emergency form two distinct classes. The appellants and the petitioners who joined the Army before the proclamation of emergency had chosen the career voluntarily and their service during emergency was as a matter of course. They had no option or intention of joining the Government service during the period of emergency as they were already serving in the army. The persons who enrolled or commissioned during the emergency, on the other hand, had on account of the call of the nation joined the army at that critical juncture of national emergency to save the mother land by taking a greater risk where danger to the life of member of the Armed Forces was higher. They include persons who could have persued their studies, acquired higher qualifications and joined a higher course and those who could have joined the Government service attaining maximum age prescribed and thereby gained seniority in the service. Foregoing all these benefits and avenues, they joined army keeping in view the needs of the country and assurances contained in conditions of service in executive instructions. The latter form a class by themselves and they cannot be equated to those who joined the army before the proclamation of the emergency. Benefits had been promised to such persons who heeded to the call of the nation at that critical juncture. Older man by joining military service lost chance of joining other Government service and when he joins such service, on release from the army younger had already occupied the post. To remove the hardship, the benefit of military service was sought to be given to those young persons who were enrolled/commissioned during the period of emergency forgoing their job opportunities. The differential is therefore, intelligible and has a direct nexus to the objects sought to be achieved. The petitioners cannot, therefore, challenge the rule as discriminatory or arbitrary. Such of those appellants and the petitioners who have joined the Army before the proclamation of the emergency are not, therefore, entitled to the benefit of military service, as per the Emergency Concessions Rules.”
12. From narration of facts and in view of the law laid down by the Supreme Court under similar circumstances, the submissions made by Shri Devadas, Government Advocate to be said as unacceptable. On the other hand the contentions raised by the learned Counsel Sri Bhat and Sampathkumar to be accepted as correct, since reasons assigned to differentiate the GREF from the definition of Armed Forces at Rule 2(g) of the 1986 Rules and its further explanation is not the resultant of any sanction by the Court. On the face of it, it demonstrates how it is discriminatory in nature coupled with arbitrariness. Hence, it has to be said that that portion of Rule i.e., exclusion of GREF from Armed Force is invalid and refusal to admit both the petitioners for admission to B.E. first year course in the quota reserved for ‘Ex-Defence’ Personnel is quite arbitrary and illegal.
13. Since it is not in dispute that both the petitioners are in their final year of B.E.Course now, no purpose would be served if a direction is given that the petitioner shall be re-admitted to the 1st Year B.E.Course. Regarding their request that they are entitled to seek refund from the respondents of the amount which they paid to the respective Colleges in the form of Capitation and the excess fee paid by the petitioners for all these years; that in the absence of any material placed as to the quantum of money paid in the form of Capitation fee and regular fee, it is not proper to issue any direction to the respondents to refund it. However, the exclusion of personnel who served in General Reserve Engineer Force from the definition of Ex-Serviceman in Rule 2(g) of Rules is held as illegal and arbitrary. It is needless to say that as long as the said Rule is in force, the benefits that accrue to other Ex-Serviceman will also accrue to GREF personnel.