Sukhdev Singh Gill vs State Of Punjab And Ors on 19 October, 2000

Supreme Court of India
Sukhdev Singh Gill vs State Of Punjab And Ors on 19 October, 2000
Author: M J Rao
Bench: M. Jagannadha Rao, M.B. Shah
           CASE NO.:
Appeal (civil)  499 of 1992

PETITIONER:
SUKHDEV SINGH GILL

RESPONDENT:
STATE OF PUNJAB AND ORS.

DATE OF JUDGMENT: 19/10/2000

BENCH:
M. JAGANNADHA RAO & M.B. SHAH

JUDGMENT:

JUDGMENT

2000 Supp(4) SCR 292

The Judgment of the Court was delivered by

M. JAGANNADHA RAO, J.

Civil Appeal No. 409 of 1992 :

This is an appeal by Sukhdev Singh Gill who filed Writ Petition No. 6160 of
1987. In the writ petition the appellant unsuccessfully claimed the benefit
of military service towards fixation of his seniority in terms of the
Punjab Government National Emergency (Concession) Rules, 1965 (hereinafter
referred to as ‘the Rules’).

The appellant joined as Superintendent in General Reserve Engineering Force
(hereinafter referred to as G.R.E.F.) on 8.11.1996. He was confirmed in the
said post. He rendered the service in this post during the period of
external emergency. He, therefore, claimed that the Armed Force called by
the name G.R.E.F. was an integral part of the Indian Army and that in terms
of the above Rules, he was entitled to count the military service rendered
by him for the purpose of seniority in the Municipal Administration of the
State which was a provincialised service. As the question of seniority was
involved, he impleaded Respondent Nos. 3, 4 & 5 in the writ petition who
would be affected if he was given the benefit of military service.

Learned Single Judge allowed the writ petition but on appeal the Division
Bench of the High Court set aside the said judgment in Letters Patent
Appeal No. 1372 of 1988 and dismissed the writ petition. It is against this
judgment that this appeal has been preferred.

The appellant joined service as a Superintendent in the G.R.E.F. on
8.11.1966 and was discharged sometime before 24.11.1972. He joined the
Punjab Agriculture University as a Section Officer and on 7.9.1973, in the
Municipal Committee, Ludhiana. In the year 1976 the services of the
employees of the Municipal Committee were provincialised and the appellant
was posted in the Municipal Corporation, Amritsar. The writ petition
relating to seniority was filed in the year 1986 but pending the writ
petition, the representation of the appellant was rejected on 3.3.1987.
Thereafter, the writ petition was amended challenging the said order dated
3.3.1987.

The relevant notification issued under the Punjab Government National
Emergency (Concession) Rules, 1965, is dated 20.7.1965 being G.S.R. 160/
Const./Art. 309/65. Relevant part of material for the purpose of this case
reads as follows:

“No. G.S.R. 160/Const./Art. 309/65. In exercise of the powers conferred by
the proviso enabling him in this behalf, the Governor of Punjab is pleased
to make the following rules :-

1. Short title, commencement and application (1) These rules may be called
the Punjab Government National Emergency (Concession) Rules, 1965.

(2) They shall come into force at once.

(3) They shall apply to all classes of services and posts in connection
with the affairs of the State of Punjab except Medical and Health services.

2. Definition-For the purposes of these rules, the expression ‘military
service’ means enrolled or commissioned service in any of the three wings
of the Indian Armed Forces (including service as a warrant officer)
rendered by a person during the period of Operation of the Proclamation of
Emergency made by the President under Article 352 of the Constitution on
the 26th October, 1962 or such other service as may hereafter be declared
as military service for the purposes of these rules. Any period of military
training followed by military service shall also be reckoned as military
service.”

It is the case of learned senior counsel appearing for the appellant, Shri
Rajinder Sachar that the military service defined in Rule 2 in the above
notification includes the service rendered by the appellant in the G.R.E.F.
and that the said service should be added to his service in the Municipal
Department of the State of Punjab and if that is done, he would be senior
to the private respondents. This plea is opposed by Shri Adarsh Goel,
learned “senior counsel for the private respondent.

Therefore, the limited question before us is whether the appellant could be
said to have been “enrolled or commissioned” in any of the “three wings” of
the Indian Armed Forces (including service as a warrant officer) as
required by Rule 2 (first part) or whether the appellant was a member of
any other service as might have been declared as military service for the
purposes of the said Rules, as required by Rule 2 (second part).

So far as the second part of Rule 2 which refers to “such other service as
may be declared” as ‘military service’, it is not in dispute that there is
no separate notification issued by the Punjab Government, notifying the
service in the G.R.E.F. for the purposes of Rule 2 of the said Rules.

Under these circumstances, the question is confined to the first part of
Rule 2, namely; whether the appellant could be said to have been “enrolled”
or “commissioned” in any of the “three services” of the Indian Armed
Forces.

Learned senior counsel for the appellant relied upon the judgment of this
Court in R. Viswan & Ors. v. Union of India & Ors., reported in [1983] 3
SCC 401, where this Court considered the nature of the service in the
G.R.E.F. and the applicability of certain provisions of the Army Act, 1950
for the purpose of taking disciplinary action against the Officers of the
G.R.E.F. In that judgment this Court exhaustively dealt with the provisions
of Article 33 of the Constitution of India and the relevant notification
issued by the Government of India under Sections 4(1) and 4(4) of the Army
Act, 1950 under SRO 329 dated 23.9.1960. The said notification issued under
the Army Act, reads as follows :

“SRO 329 dated 23rd September 1960.

In exercise of the powers conferred by sub-section (1) and (4) of section 4
of the Army Act, 1950 (46 of 1950), the Central Government hereby :-

(a) applies to the General Reserve Engineer Force, being a force raised and
maintained in India under the authority of the Central Government, all the
provisions of the said Act with the exception of those shown in Schedule
‘A’ subject to the modifications set forth in Schedule ‘B’, and

(b) 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 the jurisdiction, powers and duties incidental to the
operations of the said Act, specified in the second column thereof.” So far
as Schedule ‘A’ of the SRO is concerned, it excepts certain provisions of
the Army Act and states that they do not apply to the members of G.R.E.F.
whereas Schedule ‘B’ of the Notification relates to certain amendments in
Sections 3, 63, 73, 81(4), 113, 114 and 116(1) of the said Act. In the
above judgment, this Court noticed the definition of the word, ‘the Forces’
in Section 3(xi) of the Army Act which reads as follows :

“(xi) “the Forces” means the regular Army, Navy and Air Force or any part
of any one or more of them;”

This Court also referred to Section 4(1) & (4) of the Army Act, 1950 which
read as follows :

“4(1) The Central Government may, 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, including
any force maintained by a Part B State, and suspend the operation of any
other enactment for the time being applicable to the said force.

(4) While any of the provisions of this Act apply to the said force, the
Central Government may, by notification, direct by what authority any
jurisdiction, powers or duties incident to the operation of these
provisions shall be exercised or performed in respect of the said force.”

It was held in that case that G.R.E.F. came within sub-section (1) of
Section 4 inasmuch as it was a “Force” raised and maintained in India under
the authority of the Central Government. It was further held that the
entire infrastructure of GREF was modelled on the pattern of the Army and
it was 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 I had to be in uniform with distinctive badges of rank and they had a
rank structure equivalent to that of the Army. GREF was primarily intended
to carry out defence and other works projected by the General Staff of the
Army Headquarters and it was only when spare capacity was available that
GREF could undertake works of other ministries or departments or agency
basis and there also, preference would be given to strategic and other
roads in sensitive areas. This Court referred to the definition of the
Armed Forces in Section 3(xi) (at page 420) and observed that the word,
‘Force’ was not defined anywhere under the Army Act, ‘1950 but there was
definition of the words, ‘the Forces’ in Section 3(xi), but it would not
help because the expression to be construed was the word “Force” which was
different from the word, ‘the Forces’. After having so observed, this Court
referred to the question whether the members of GREF could be considered to
be the members of the “Armed Forces” within the meaning of Article 33 of
the Constitution of India. This became necessary in that case because the
question was whether the fundamental rights of the GREF Officers stood
restricted as in the case of the three principal Forces. If Article 33
applied, the State would be protected under Article 33 of the Constitution
of India and it could take disciplinary action within the limits permitted
by a restrictive law. After going through various provisions, this Court
held that GREF was an integral part of the Armed Forces and the members of
the GREF were the members of the Armed Forces within the meaning of Article
33 of the Constitution of India and the disciplinary action taken in that
case was not ultra vires. ‘

In fact, there is a notification dated 14.8.1985 which forms part of the
paper book before us issued by the Government of India being No. F. 81(1)/
64-Estt. 70463/DGER which states that in view of the judgment in R. Viswan
& Ors. v. Union of India & Ors., the President of India
is pleased to
declare General Reserve Engineer Force to be an integral part of the Armed
Forces of India.

Relying on the above said judgment and the order issued by the Government
of India dated 14.8.1985 and Section 4(1) of the Army Act, 1950, learned
senior counsel for the appellant contended that GREF was a Force falling
within the connotation of Armed Forces under Article 33 of the Constitution
of India and that is why Section 4( 1) of the Army Act was made applicable
to the GREF and if that was the position of law, the appellant was entitled
to claim that his past service fell within the definition of “military
service” under Rule 2 of the Punjab Government National Emergency
(Concession) Rules, 1965.

There cannot be any difficulty, in view of the judgment of this Court in
the above case and the subsequent notification dated 14.8.1985 issued by
the Government of India, that the appellant’s service in GREF could be
treated as service in the “Armed Forces” for purposes of Article 33 of the
Constitution of India. But the question is whether that is sufficient for
the purpose of attracting Rule 2 of the above said 1965 Punjab Rules dated
21.7.1965?

We have already extracted the above rule and it would be noticed that the
military service which would be counted as service must be service as an
“enrolled” or “commissioned” officer in the “three wings” of the India
Armed Forces (including the service as Warrant Officer) That is what Rule 2
of the Punjab Rules of 1965 requires.

It appears to us that the words, ‘three wings’ used in Rule 2 of the above
said Rules has to be understood in the light of Section 3(xi) of the Army
Act, 1950 which defines, the word, ‘the Forces’ as the regular Forces,
namely, the Army, Navy and Air Force or any part of any one or more of
them. The Punjab Rules permitting computation of ‘military services’
therefore, appear to us to restrict the benefit of military service only to
those Officers who are enrolled or commissioned in the three principal
wings of the Armed Forces, namely, Army, Navy and Air Force and it was not
intended to extend to any other Armed Force to which the provisions of the
Indian Army Act are extended under section 4(1) of the Army Act, 1950.

Thus, even though the appellant can be said to belong to the “Armed Forces”
for purposes of the Army Act and Article 33 of the Constitution of India,
and even assuming that he was enrolled or commissioned in the GREF, still
his service could not be treated as service rendered in the “three
principal wings” of the Armed Forces, namely, Army, Navy and Air Force. We
are, therefore, of the view that the judgment of the Division Bench of the
High Court is correct and the appellant is not entitled to count his
service in the GREF for the purpose of seniority in the provincialised
service under the State of Punjab. The Punjab Rules of 1965 are thus not
applicable to the appellant.

Learned senior counsel for the appellant, however, invited our attention to
a statement made in the counter affidavit filed by Mr. Om Prakash Tandon,
PGS (I), Under Secretary to Government of Punjab, Department of Local
Government on behalf of Respondent Nos. 1 & 2 in the writ petition.
(Respondent No. 1 in the writ petition is the State of Punjab and
respondent No. 2 is the Director, Local Self Government Department, Punjab,
Chandigarh.) At page 75 of the paper book, we find in the said counter
affidavit filed by the said Officer it was stated that the appellant was
entitled for the benefit of previous military service for the purpose of
“pay and leave” but he was not entitled for the benefit of said service for
“seniority”. We take note of the fact that such a statement is made in the
counter affidavit.

For the aforesaid reasons, this appeal fails and is hereby dismissed, but
in the circumstances of the case with no order as to costs.

CIVIL APPEAL No. 500 of 1992

In view of the order passed in Civil Appeal No. 499 of 1992, this appeal
also fails and is hereby dismissed, but in the circumstances of the case
with no order as to costs.

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