# R. VISWAN & OTHERS v. UNION OF INDIA & OTHERS

- **Citation:** [1983] 3 S.C.R. 60
- **Court:** Supreme Court of India
- **Decided:** 1983-05-06
- **Bench:** Y. V. Chandrach.Ud, P. N. Bhagwati, 0. Ch!Nnappa Reddy, V. Balakrjshna Erad!, R. B. Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/r-viswan-others-v-union-of-india-others-8386
- **Pages:** 33

## Headnote

Aony Act, 1950-S. 21-Constitutional validity of-Whether saved by Art .
. c
33.
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III
Anny Act, 1950-Sub-ss. (1) and (4) of s. 4-'FOrce'-Meaning of
General Resen•e Engineerring Force (GREF)-Whether it is
'fore:~· withill
the 1neaning of sub-ss. (1) and (4) ofs. 4 of Army Act, 1950-Whether .n1en1bers
ofGREF are me111hers of 'Arrned For"·es' witirin tire nwaning of Art. 33 of
Constitution-Whether S.R. Os. 329 and 330 ayplying provisions of A.riny Act,
1950 and Anny Rules 1954 to rnembers of GREF in exercise of power under sub-ss.
(J) and (4) of s. 4 of Ar1n.v Act, 1959 ultra vires Art. 33 of Constitution-Whether
application of Central Civif Services (Clossi/ication, Control and Appeal) Rules,
1965 as also prov;sions of Army Act and Ar1ny Rules lo n1enibers or GREF
·violative of Art. 14 of Constitution.
·
~
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The petitioners who belonged to the General Reserve Engineering FOrce
(GREFJ were charged under s. 63 of the .\rn1y Act, 1950 on allegations inter
alia that they had assen1bled in front of the Chief Engineer and shouted slogans
demanding release of personnel placed under arrest, 'participated in. a bla,ek
flag demonstration and associated themselves with an illegal ·association. They
were tried by Court lvfartial in accordance with the prescribed procedure and,
on. being convicted, were dismi.ssed·from ser.,,ice.
The petitioners submitted that their convictions by Court Martial were
illegal and raised the following contentions in suppor't of their
pJ~a : that the
GREF was a civilian construction agency and not a •force' raised and n1aintained under the authority of the Central Governn1ent and conSequently, the members of GREF were not "members of Armed Forces or the Forces ch3rged
with the maintenance of public order" within the meaning of Art. 33 of the
Constitution and' therefore the application of s. 21 of the Army Act rea11" with
rs. 19 to 21 of the Army Rules to them was unconstitutional since it restricted
their fundamental rights in a manner not permitted by the Constitution; that
S.R. Os 329 and 330 which were notifications having the effect of applyjng the
provisions of the Army Act and the Anny Rules to the members of the GREF
were ultra vires the powers of the Central Government under sub~ss. (1) and (4)
of s. 4 of the· Army Act; that s. 21 of the Anny Act was unconstitutional as it
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R. VISWAN V. UNION
was not justified by the terms of Art. 33 since under that Article it was Parliament alone which was entrusted with the power to detern1ine to what extent
any of the fundamental rights shaJl,,jn application to the members of the Armed
Forcea or Forces charged with the maintenance of public order, be restricted or
abrogated and Parliament could not have left it to the. Central Government to
determine the extent of such restriction or abrogation as was sought tO be done
under 5, 21; that the petitioners were entitled to exercise their fundamental
rights under els. (a), (b) and (c) of Art. 19 (!) without any of the restrictions
in1posed by rs. 19 to 21 of the Army Rules and therefore they could not be
ch.arged under s. 63 of the Army Act on the facts alleged against them; that
their trial was not in accordance with law; and that 'the. application of the
provisions of the Army Act and the Army Rules to. the members of GREF ·for
purposes of discipline was discriminatory and violative of Art. 14 inasmuch
as the mem.bers of the GREF were governed both by the Central Civil Services
(Classification Control and Appeal) Rules, 1965 and the provisions of the
Army Act and the Army Rules in m~tters of discipline.
Dismissing the petitions,
HELD t. (a) The functions arid duties of GREF are integrally connec~
ted with the operational plans and requirements~of the· Armed Forces. There
can be no doubt that without the efficient and disciplined operational role of
GREF the .military operations in border areas during peace as also in tirries of
. war will be seriously hampered and a highly disciplined arid .effici

## Text

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R. VISWAN & OTHERS
v.
UNION OF INDIA & OTHERS
May 6, 1983
[Y. V. CHANDRACH.UD, C.J, P. N. BHAGWATI,
0. CH!NNAPPA REDDY, V. BALAKRJSHNA ERAD! AND
R. B. MISRA, JJ.]
Aony Act, 1950-S. 21-Constitutional validity of-Whether saved by Art .
. c
33.
D
E
F
G
III
Anny Act, 1950-Sub-ss. (1) and (4) of s. 4-'FOrce'-Meaning of
General Resen•e Engineerring Force (GREF)-Whether it is
'fore:~· withill
the 1neaning of sub-ss. (1) and (4) ofs. 4 of Army Act, 1950-Whether .n1en1bers
ofGREF are me111hers of 'Arrned For"·es' witirin tire nwaning of Art. 33 of
Constitution-Whether S.R. Os. 329 and 330 ayplying provisions of A.riny Act,
1950 and Anny Rules 1954 to rnembers of GREF in exercise of power under sub-ss.
(J) and (4) of s. 4 of Ar1n.v Act, 1959 ultra vires Art. 33 of Constitution-Whether
application of Central Civif Services (Clossi/ication, Control and Appeal) Rules,
1965 as also prov;sions of Army Act and Ar1ny Rules lo n1enibers or GREF
·violative of Art. 14 of Constitution.
·
~
.
The petitioners who belonged to the General Reserve Engineering FOrce
(GREFJ were charged under s. 63 of the .\rn1y Act, 1950 on allegations inter
alia that they had assen1bled in front of the Chief Engineer and shouted slogans
demanding release of personnel placed under arrest, 'participated in. a bla,ek
flag demonstration and associated themselves with an illegal ·association. They
were tried by Court lvfartial in accordance with the prescribed procedure and,
on. being convicted, were dismi.ssed·from ser.,,ice.
The petitioners submitted that their convictions by Court Martial were
illegal and raised the following contentions in suppor't of their
pJ~a : that the
GREF was a civilian construction agency and not a •force' raised and n1aintained under the authority of the Central Governn1ent and conSequently, the members of GREF were not "members of Armed Forces or the Forces ch3rged
with the maintenance of public order" within the meaning of Art. 33 of the
Constitution and' therefore the application of s. 21 of the Army Act rea11" with
rs. 19 to 21 of the Army Rules to them was unconstitutional since it restricted
their fundamental rights in a manner not permitted by the Constitution; that
S.R. Os 329 and 330 which were notifications having the effect of applyjng the
provisions of the Army Act and the Anny Rules to the members of the GREF
were ultra vires the powers of the Central Government under sub~ss. (1) and (4)
of s. 4 of the· Army Act; that s. 21 of the Anny Act was unconstitutional as it
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R. VISWAN V. UNION
was not justified by the terms of Art. 33 since under that Article it was Parliament alone which was entrusted with the power to detern1ine to what extent
any of the fundamental rights shaJl,,jn application to the members of the Armed
Forcea or Forces charged with the maintenance of public order, be restricted or
abrogated and Parliament could not have left it to the. Central Government to
determine the extent of such restriction or abrogation as was sought tO be done
under 5, 21; that the petitioners were entitled to exercise their fundamental
rights under els. (a), (b) and (c) of Art. 19 (!) without any of the restrictions
in1posed by rs. 19 to 21 of the Army Rules and therefore they could not be
ch.arged under s. 63 of the Army Act on the facts alleged against them; that
their trial was not in accordance with law; and that 'the. application of the
provisions of the Army Act and the Army Rules to. the members of GREF ·for
purposes of discipline was discriminatory and violative of Art. 14 inasmuch
as the mem.bers of the GREF were governed both by the Central Civil Services
(Classification Control and Appeal) Rules, 1965 and the provisions of the
Army Act and the Army Rules in m~tters of discipline.
Dismissing the petitions,
HELD t. (a) The functions arid duties of GREF are integrally connec~
ted with the operational plans and requirements~of the· Armed Forces. There
can be no doubt that without the efficient and disciplined operational role of
GREF the .military operations in border areas during peace as also in tirries of
. war will be seriously hampered and a highly disciplined arid .efficient GREF is
absolutely essential for supporting 1he operational plans and meeting the
operational requirements of the Armed Fojces. The members of the GR~F
answer the description of"members of the Armed Forces" within the meaning
of Art. 33 and. consequently the application of s. 21 of the Army Act to the
members of GREF is pfotected by that Article and the fundamental rights qf
the members of GREF must be held. to be validly restricted by s. 21 ·read
with rs. 19 to 21 of Army Rules. The petitioners were· therefore liable to be
charged under s. 63 of the·Army Act for the alleged violations of rs. 19 to 21
and th~ir convictions and- subsequent disn1issals must be held to be valid.
[88 F-89 B]
(b) The fact that the members of the GREF are described as civilian
employees and\ they have their own special rules, of recruitment and are
governed by the Cen~ral Civil Services (Classification, Control and Appeal)
Rules, 1965 is not determinative of the question whether they are members. of
the At:med Forces. The qUeStion whether the members of "GREF can be
Said to be members of the Armed Forces for the purpose of attracting the
applicability of Art. 33 inust depend esselltial1y on the character of ·oREF,
its organisational set up, its functions, the role it is called ·upon to play in
relation to the Armed ~orces and the depth and intimacy of its connection
.and the extent of its int(!gration with the Ai-med Forces. The history, com~
position, administration, organisation and role of GREF ctearly shoW that
GREF. is an integral part of the Armed Forces and that the members of
GREF can legitimately be said to be members of the Armed Forces within
the -meaning of Art. 33.
It is undoubtedl.y a departmental construction '
"s;enc~ as conten4e4 On f?ehaJf of the petitioners bμt it is distinct from othq-
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SUPREME cOURT REPORTS
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construction agencies such as the Central Public Works D~partment in that
it is a force intended primarily to support the Army in its operational
requirement: [87 D·H, 83 GJ.
Ous Kutilinga/ Achudan lVair and Ors. v. Union of India and Ors,, [1976}
2 S.C.R. 769, referred to.
(c) The Central Government is empowered· under sub·s. (I) of s. 4 of
the Army Act to apply any of the provisiolls of that Act to any force raised
or maintained in India under the authority of that Government. Vihen the
provisions of Hie Ariny Act are applied to any force under sub-s. (1) of s. 4,
the Central Governn1ent can, by notifiCation issued under sub-s. (4) thereof,
direct by what authority, the jurisdiction, powers and duties incident to· the
operation of those provisions shall be exercised or .performed in respect· of
that . force. The word 'force' is not defined .ally Where in th~ ArmY Act
but sub-s. (2) of s. 4 clearly contemplates that 'force• referred to in sub-s. (1)
of s. 4 must be a force organised on similar li_n"es as the army v.'ith rank
structure. There can be .no doubt that GREF is a force organised on army
pattern with units and sub-units and tank.structure.. It is clear from the letter
dated June 16, 1960 addressed by the Secretary, Border Roads Devel.opmei::it
Board to the Director General Border Roads that GREF is a force raised and
maintained under the authority of the Central Government. The Central
Government therefore had the power under sub-ss. (1) and (4) of s. 4 to isSue
notifications S.R.O. 329 and S.R.0. 330 applying some of the Army Act and
the Army Rules to the GREF. [82 ll·H]
,
(d) There is no substance in the contention that appl)ing the provisions of the Army Act and the Army Rules to the niembers of GREF for
·purpose 'of discipline is discriminatory and violative of Art. 14. The nature
of the proceedings which may be taken under the Central Civil Sc·rvices
(Classification, Control and Appeal) Rules against an erring cm'ployee is
different fron1 the nature of the proceedings which may ·be taken against hin1
under ihe provisions Qf the Ar1ny Act read with Army Rules, the former
being disciplinary in character while the latter being clearly penal. Th<\re is
no overlapping between thC two because ss. 20.and 71 of the Army Act \Vhich .
deal with dismissal, removal or reduction in rank have not been .made a.pplicable to the members of GREF by S.R.O. ·329.
The. respondents have:
positively stakd in their affidavit that clear and detailed administrative guide·
lines have heen laid down for the purp_ose of guiding the disciplinary authority
in exercising its discretion whether to take action against an employcC of
·GREF under .Central ·Civil Services (Classification, Control" and Appeal)
Rules or the Army Rules and therefore it is not possible to say that the
diS;cretion vested ill the authorities is unguided or unca·nalised. Moreover,'
the decision in Northern lndia
1Caterers v. Punjab on which this conteritio1f· is
based has been overruled in Magan/al ·chhagan/al v. Munfcipill Corporation,
Greater Bombay. In any event, the provisions .of the A.rn1y A"ct and the Army·
Rules as applied to the members of GREF arc protected by Art: 33 against
invalidation on the ~round of violation of Art. 14.
[90 G-92 6] :
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R. VISWAN v. UNION
63
Northern India Caterers v. Punjab, [1976] 3 S.C.R. 399; and Magan/a/
Chhuganla/ v. Municipal Corporation, Greater Bombay, [1974] 2 S.C.C. 402,
referred to.
(e)- Th~ contention that the trial of the petitioners was not·in accordance
with law was strongly resisted by the respondents and having regard to the
avermerits made by them on this point it is not possible to hold that the con~
victions of the petitioners ·by the Court Martial were not in acc~rdance with
I~w. In any event, the allegation of the petitioners in this behalf raised disputed
questions of fact which it is not possible to try in a writ petition.
(90 A~FJ
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([) The alleged disparity between the Army personnel posted. in GREF
units und officers and men of GREF in so f<;tr as tpe terms and conditions of
service such as salary, allow.ances and rations has no real bearing on the
question Whether the members of GREF can be said to be members of Armed
C
Forces .. Since the members of GREF are drawn from different sources it is
. possible that the terms and conditions of service of the personnel coming from
the two sources may be different. In case it is found that there is any dis-
. parity tpe Central Government may consider the advisability of taking steps
for its removal.
[89 C· HJ
2. Section 21 of the Army .Act emp,ewers the Central Governn1ent to
make rules restricting "to such extent and in such manner as may be
necessary" three categories of rights of any person subject to the Arn'Y Act.
i.'hese rights are part of the fundamental rights under els. (a), (b) and (c) of
Art. 19(1) and under the constitutional schc:me, they cannot be restricted
by executive action unsapported by law. Buts. 21 is saved by Art. 33 which
carves Out an exception in so far.as the applicability of fundamental rights to
members of the Armed Forces and the Forces charged with the maintenance
of public order is concerned. On a plain grammatical construction of its
laiiguage, Art. 33 does not require that Parliament itself must by law restrict
or abr6gate·any of the fundaffiental rights in order to attract the applicability
of that Article. What it says is only this and no more, namely that Parliament" may by law determine the permissible extent to which any ot' the fundamenttil rights may be restricted or abro"gatcd in their applic!J.tion ·to the
members of the Armed Forces and the. Forces charged with the maintenance
of public order. Parliament it$elf can b'y enacting a law restrict .or abrogate
any of the fundamental rights in their application to the members of these
forces as in fact it has done by enacting the Anny Act.
Bui having regard
tO the varying requirement of .army discipline and the need for flexibility in
this sensitive area it would be inexpedient to insist that Parliament itself .
should determine what part~cular restrictions should be imposed and on which
fundamental rights in the interest of proper discharge of duties by the members
of these ·Forces and maintenance of discipline among tliem
The extent of
such restrictions would necessarily depend upon the prevailing situation at a
given point of time and it would be inadvisable to encase it in a rigid siattitor"y
formula. The Constitution makers ,were obviously anxious that no more
. restrictions should be placed on. the fundamental rights of the members of
these Forces than are abs9lutely nCcess~ry for ensuring. p;Oper discharge of
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SUPREME COURT REPORTS
1983) 3 S.C.R
their duties and the maintenance of .discipline among them. They therefore,
, deCided to' introduce a certain amount of"flexibility in the imposition of such
restrictions and, by Art. 33, empowered Parlian1ent to determine _the,.pei:tnis·
· Sible extent to which any of the fundamental rights in their application to the
_members of these Forces may be restricted or abrogated so that, within such
p~rmissible extent determined by Parliament, any appropriate authority
,authorised by Pai-Hament may restritrict or abrogate afly such fundament31
rights. Parliament was therefore, within its : power undef Art. 33 to enact ,
s. 21. The extent to which restrictions may be in1posed on the fundamental
rights under els. (a), (b) and (c) of Art. 19(1) is clearly indicated in els. (a),
(b) and (c) of s. 21 and the Central Government is authorised to impose
restrictions on these fundamental rights only to the extent of the r.ights set out·
in els. (a), (b) and (c) of s. 21 and no more. The guideline~ for cletern1ing as
to which restrictions should be considered necessary by the Central Govern~
ment within the permissible extent determined by Parliament is provided in
·Art. 33 itself, namely, that the restrictions should be such as are necessary for
· ensuring the proper discharge of their duties by the members of the Armed
Forces and the maintenance of discipline among them
The Central Government has to keep this guideline before it in exercising the power of ilnposing
restrictions under s. 21. Once the Central. Government has impcised restrictions in exercise of this power;the Court will not ordinarily interf.re with the
decision of the Central Governn1ent that su:h restrictions are necessary
because that is a matter left by Parliament exclusively to the Central. Government which is best in a position to know what the situation demands.
Section 21 must, in the circumstances, be held to be constitutional.ly valid a.s
·being within thC power conferred under A.rt. 33.
[83 B~D, 78
-81 CJ
Rani Swarup v. Unian of India .. [1964J 5 S.C.R. 931, referred to.
ORIGINAL JURISDICTION : w. P. (CRL) Nos. 815, 843, 632/80,
844, S116/81, 1301-04, 1383, 3460, 45!0, 4511, 4512, 4551/80 &.
3861, 3848, 8317 /81 and 59 of 1982.
(Under article 32 of the Constitution of India)
AND.
Special Leave Petition (Cr!.) Nos. 2061-65 of 1980.
From the Judgment and Order dated the 19th May; 1980 of
·the Delhi High Court in Criminal Writ Petition Nos. 24-27/80 &
30/80.
K. K. Venugopal, Miss Mridula Roy, D. P. Mukheijee, A. K .
. Ganguli~ G .. S. Chatterjee, with him for ~he Petitioiiers in Wl's,
815, 5116, 843, 844, 8317.
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R. VISWAN v. UNION (Bhagwati, J.)
65
M. K. Ramamurthy, Janardhan Sharma and P. Gaur with him
for the Petitioners in WPs. 3460, 1383, 4510,' 4551, 1301·0~, 4511,
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& SLPs. 2061-65.
Miss Kail~h Mehta for the Petitioners in WP. 3861.
M. M. L. Srivastava for the Petitioner in WP. 3848.
.,.,
Chandramouli-Petitioner in person-in WP. 632.
Nemo in WP. 59.
R. K. Mehta for the Petitioner in WP. 4512/80.
L. N. Sinha, Attorney General, M. K. Banerji, Additional
Solicitor General, K. M. Abdul Khader, Giris/z Chandra and Miss .A.
Subhashini with them for the Respondents.
The· Judgment of the Court was delivered by
BHAGWATI, J.
These writ petitions raise a short bilt interesting
question of law relating to the interpretation of Article 33 of the
Constitution. The question is whether section 21 of the Army Act
1950 read with Chapter IV of the Army Rules 1954 is within the
scope and ambit of Article 33 and if it is, whether Central Government Notifications Nos. SRO 329 and 330 dated 23rd September
196') making inter a/ia section 21 of the Army Act 1950 and Chapter
IV of the Army Rules 1954 applieal;>le to the General Reserve Engineering Force are ultra ••ires that Article since the General Reserve
Engineering Force is neither an Armed Force nor a Force charged
with the maintenance of public order. It is a question of some impor·
tance since it affects the fundamental rights of a large number of
persons bdonging to the General Reserve Engineering Force and in
order to arrive at a correct decision of this question, it is necessary
first of all to consider the true nature and character of the General
-.._
Reserve Engineering Force.
In or about 1960 it was felt that economic development of the
North and North Eastern Border areas were greatly handicapped by
meagre and inadequate communications and defence of these areas
also required a net work of road' for effective movement and deployment of Armed Forces. This was rendere4 a]l the J,llore necessary
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SUPREME COURT REPORTS
[!983] 3 s.c.il.
because the relations of India with its neighbours were in a state of
potential conflict and part of the Indian territory was under foreign
·occupation and there were also hostile. forces inviting some !;ections
of the people to carry o.n a campaign for secession. The Government
of India therefore, with a view to ensuring coordination and expedi·
tious execution of projects designed to improve existing roads and
construct new roads in the border areas is order to improve . the
defence preparedness of the country, created several posts in the
Directorate General of Works. Army Head Quarters for work
connected with the development of border roads as per letter dated
9th April 1960 addressed by the Under Secretary to the Government
of India, Ministry of Defence to the. Chief of the Army Staff. On
18th April 1960, within a few days thereafter, the Government of
India sanctioned. the post of Director General Border Roads in the
rank of Major-General in the Directorate General of Worko:, Army
Head Quarters; vide letter d~ted 18th April 1960 addressed by the
Under Secretary to the Government of India, Ministry of Di:fence to
the Chief of the Army Staff. The Director General Border Roads
was placed in ·charge of this new organisation which started originally as part of the Directorate General of Works, Army Head
Quarters. .But subsequently, for reasons of high policy, it was
decided that this Organisation should not continue as part of the
Directorate General.of Works, Army Head Quarters but should be
under the Board Roads Development Board set up by the Govern·
ment of India as a separate self contained Authority under the
Chairma~ship of the Prime Minister with the Defence Minister as
Deputy Chairman, the Financial Adviser (Defence) as Financial
Adviser and a few other members nominated by the Priine Minister.
The budget of the Border Roads 'Development Board formed part of
the budget of the Ministry of Shipping and Transport but the finan·
cial control was vested in the Ministry of Finance (Defenc4 The
. Government oflndia by a letter dated 16th June 1960 addressed M
the Secretary· of the Border Roads Development Board to the
Director General, Border Roads conveyed the sanction of the President to "raising and maintenance of a General ·Reserve Engineeri11g
Force for the construction of roads in the border areas and such
other tasks as may be entrusted to it by the Border Roads Develop·
ment Board". It was directed that the General Reserve Engineering
Force will be "under the over nll command of the Director General
Border Roads
under whom will be Regional Chief Engineers/
Independent Deputy Chief Engineers who will e~ercise command
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67
over the units of th~ Force placed under their control". The General
Reserve Engineering Force (hereinafter referred to as GREF) was
thus raised under the authority of the Government of India and .it
was placed under the over all command of the Director General,
Border Roads. Ever since then the Director General, Border Roads,
· has always been an army officer of the rank of Major General and
he functions under the directions of the Border Roads Development
Board,
The General Reserve Engineering Force (GREF) is organised
on army pattern in units and sub units with distinctive badges of
· nnk and a rank structure eCjuivalent to that in the army. The
officers and other personnel of GREF arc required· to be in uniform
right from class IV to Class I personnel. Though GREF is un·
· doubtedly a departmental construction agency, it is maintained by
· the Government of India to meet the operational requirements of
the army whose operational planning is based on the availability of
the units of GREF for operational purposes. In fact GREF pro·
vided support to the Army during I ndo-China conflict of 1962 and
Indo-Pakistail conflicts of 1965 and 1971 and also assisted the Army
in the maintenance of public. order during the
dist~rbances in
Mijoram in 1966 and in Assam in 1980-81. The personnel of GREF
are primarily drawn from two sources and they consist of (I) officers
.and men belonging to the Army and (2) officers and men recruited
through the Union Public Service Commission in.case of officers and
departmentally in case of other ranks. A ten p.; cent quota is reserved for recruitment of ex-servicemen.
The posting of Army
officers anct men in GREF is done, not on any ad hoc basis, but in
accordance with a well thought out manning policy laid down by the
Government of India for. the purpose of maintaining at all times and
at all levels the special character of GREF as ·a force designed to
meet the operational requirement of the Army. The manning policy
laid down by the Government of India in respect of officers is as
under:
·
Posts
Army
GREF
'
Brig/Col/Chief Engineer Gr. I & II
75%
25%
Lt. Col./Superintending Engineer
50%
50%
Major/Executive Engineer
42%
58%
Capt./Asstt. Executive Engineer
20'.~
80%
Assistant Engineer ,
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So far as officers and men recruited through the ·Union Public
Service Commission or departmentally are concerned, all of them
are given training at the GREE Centre, immediately after recruitment. The GREE Centre is organised on lines similar to an Army
Regimental Centre and also functions in the same manne1:. It is
located at a place adjoining an Engineer Regimental Centre, initially
at'Roorkee and now at Pune, so that it can, if necessary, draw upon
the resources of the Engineer Regimental Centre. The new recruits
are imparted training in the following three military discipline,1 :
(a) Discipline, which includes drill,
marchini:
and
saluting.
(b) Combat training, including physical training i.e.
standing exercises, beam exercises, rope work, route
marches etc., harbour deployment drills, camp protection etc.
( c) · Combat Engineering Training, including field engineering, handling of service. explosives, camouflage,
combat equipment, bridging, field fortifications, wire
obstacles etc.
GREE personnel are not trained in .the use of arms, since the role
to be performed by GREE is such that its personnel are not required
to use arms and they need arms only for static protection and for
use during emergency. Therefore in GREF issue of arms is restricted
only to Army personnel and ex-3ervicemen apart from certain units
like the Provost Ul)its (GREF Police) which having regard to the
nature of their duties, have necessarily to be ar!lled.
The tasks which are to be carried out by GREE comprise .not
only maintenance of strategic roads but also support for the operational plans of the Army in place of Army Edgineer Regiments. We
shall . presently elaborate these tasks in order to highlight the true
character of GREE, but before we ~o so, we may point out that the
role and organisation of GREF units have been reviewed from time
to time in consultation with the Army Headquarters and as a result
of a major review carried out after the ludo-Pakistan ·Conflict of
1971, the Army Headquarters defined the role and organisation of
GREE units in a secret document dated 24th Ja~uary 1973. It is .
clear fromithis document that, according to the Army Hea.dqulirters,
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a minimum of 17 Border Roads Task Forces and 34 Pioneer Companies are permanently required for providing engineer. support to
the Army and over the years, this minimum requirement has been
fulfilled and 17 Border Roads Task Forces and 34 Pioneer Companies
have been made.permat1ent. These 17 Border Roads T~sk Forces
and 34 Pioneer Companies have to be maintained as essential units
of GREF for meeting the operational requirement of the Army, even
if sufficient work load is not available in Border Areas at any given
point of time. There are, in fact, at present 21 Border Roads Task
Forces and 34 Pioneer Companies, that is, four Border Roads Task
Forces more than the minimum required by the Army Authorities
The requirement of these four additional Border Roads Task Forces
is reviewed from time to time depending on the work-load. What
should be the composition of the Border Roads Task Forces is laid
down in the document dated 24th January 1973 and this document
also sets out the tasks to be carried out by the Border Roads Task
Forces which may be briefly summarised as follows :
(a) Maintenance of line of communication in rear areas
of the theatre of operations including· roads constructed by the BorderRoads and roads maintained
by CPWD, State PWD and MES.
(b) Improvement and maintenance of operational roads
and tracks constructed by combat engineers;
(c) Construction and maintenance of AICs and helipads;
( d) Improvement and repairs to airfields;
(e) Construction of accommodation and all allied facilities for maintenance areas required for sustaining
operations;
(f) Construction of defence works. and obstacles; and
(g) Water supply in difficult terrain and deserts.
These tasks are required to be carried out by the Border Roads
Task Forces during operations with a view to providing engineering
support t<? the army in its operational plans. The Border Roads
Task Forces have to perform these tasks not only within the country
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upto the border but also beyond the border upto the extent of
advance into enemy's territory.
Even during peace time thwBorder
Roads Task Forces have to be suitably positioned in the likely area
of operations so that they can, in the event of hostilities, be quickly
deployed· on their operational tasks. The Border Roads Tasks
Forces alongwith the Pioneer Companies attached to- them are also
included in the Order of Battle of the Army so that the support of
these units to the Army is guaranteed and can be requistioned at any
time.
These units of GREF are further sub-allotted to the lower
army formations s_uch as Command, Corps and Division and they
appear on the Order of Battle of these formations. Their primary
function is to carry out works projected by the .General Staff, Army
Headquarters to meet the operational requirements and these works,
include, inter a/ia, construction and maintenance of roads operational tracks, airfields, ditch-cum-bund (water obstacles on the
border) and field fortifications like bunkers fire trenches and Pill
Boxes. If after meeting the requirements of the General Staff,
Army Headquartern, there is spare capacity available with these
units o_f GREF, they undertake construction work on behalf of
other ministries or departments, ·though even there, preference
is given to strategic and other roads_ in
sensitive border areas.
The funds allocated for the Border Roads Organisation_ are non·
plan funds meant exclusively to meet the requirements of the
General Staff, Army Headquarters and they cannot be used for
carrying out the works of other ministries or departments. When
works are undertaken by GREF units on behalf of other ministries or departments, they are treated as works on agency basis and,
where applicable, agency charges are collectd by the Border Roads
Organisation from the minist~·ies or departments whose work is
carried out by them. GREF units undertake, as far as possible,
only those tasks which arc similar in nature
to the tasks for
which they are primarily designed to meet Army requirements. It
is apparent from the further affidavit .of Lt. Col. S.S. Cheema
that the major portion of the
work carried out
by GREF
units consists of tasks entrusted by
the General Staff, Army
Headquarters and the tasks carried out on agency basis on behalf of
other ministries or departments are comparatively of ·muioh lesser
value.
In fact, until 1965 no work on agency basis was undertaken
by GREF units and during the period l 967 to l 970 less than 2 percent of the total work was executed by GREF units for other
ministries or departments. Even during the years l 970-71 to 198()-81,
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il. VISWAN v. UNIRN (Bhagwati, J.)
71
the percentage of work carried out by GREF units on behalf of other
ministries of departme\lts did not on an average exceed 15 per cent
of the total work.
The figures for the year I 980., 8 I also reveal the
same pattern. During 1981-82 the work executed by GREF units
for General Staff, Army Headquarters consisted of construction and
maintenance of 12865 kms. of roads out of the funds of the Border
Roads Organisation and 310 kms. of ditch-cum-bunds out of funds
provided bs the Defence Ministry while the agency work entrusted
by the Ministry of Shipping and Transport did not cover more than
519 km. of strategic roads, 216 kms. of sensitive broder area roads
and 376 kms.· of National Highways in border areas and the agency
work entrusted by other ministries was limited only to 702 kms. of
roads. It will thus_ be seen that the major part of the work executed
by GREF units consists of tasks entrusted by the General Staff, Army
Headquarters and only a small percentage of work is being done on
behalf of other ministries or departments when spare capacity is
available.
So far as the personnel of GREF are concerned, they are partly
drawn from the Army and partly by direct recruitment. Army
personnel are posted in GREF according to a deliberate and carefully
planned manning policy evolved with a view to ensuring the special
character of GREF as a force intended to support the Army in its
operational.requirements. The posting of Army personnel in GREF
units is in fact regarded as normal regimental posting and does not
entitle the Army personnel so posted to any deputation or other
allowance and it is equated with similar posting in the Army for the
purpose of promotion, career planning, stc. The tenure of Army
personnel posted in GREF units is treated as normal Regimental
Duty and Such Army personnel continue to be subject to the
provisions of the Army Act 1950 and the Army Rules 1954 whilst
in GREF. But quite apart from the Army personnel who form au
important segment of GREF, even tne directly recruited personnel
who do not come from the Army are subjected to strict Army
dicipline having regard to the special charcter of GREF .and the
highly important role it is called upon to play in support of the Army
' in its operational requirement,. Since the capacity and efficiency of
GREF units in the event of outbreak or hostilities depends' on their
.all time capacity and efficiency they are subjected
to rigorous
discipline even during peace time, because it is elementary that they
cannot be expected suddenly to rise to the occasion and provide
necessary support to the Army durin~ ~ilitary .operations nnless
t\;le~
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are properly disciplined and in fit condition at all times so as to be
prepared for any eventuality. The Government of India has in
exercise of tho pJ.vo,· cJnforrod upon it by sub-sections (I) and (4)
of Section 4 of Army Act 1950 issued a Notification bearing SRO
. 329 dated 23rd Septeml1er 1960 applying to GREF all the provisions
of that Act with the exception of those shown in Schedule A, subject
to the modifications set forth in Schedule B and directing that the
officers mentioned in the first 9olumn of Schedule C shall exercise or
perform, in respect of members of the said Force under the.ir command, the jurisdiction, powers and duties incident to the operation of
that Ac! specified in ihe second column of Schedute C. This Notification makes various provisions of Army Act 1950 applicable to GREF
and amongst them is Section 21 which provides :
21.
Subject to the provisions of any law for the time
being in force relating to the regular Army or to any
branch thereof, the Central Government may, by notification, make rules restricting to such extent and in suc:h
manner as may be necessary the right of any person
subject to this, Act :-
. (a) to be a member of, or to be associated in any way
with, any trade union or labour union or any class
of trade of labour unions, or and society, institution
or association or:any clas~ of instiiution or associa·
tions;
(b) to attend or address any meeting or to take part in
any demonstration organised by any body of persons
for any political or other pur'.loses;
(c) to communicate with the press or to publish or cause
to be published any book, letter or other documents.
The other sections which are made applicable deal with special
privileges, offences, punishments, penal deductions, .arrest and
proceedings before trial, Court-Martial and other incidental matters.
These section which are made applicable are primarily intended to
impose strict discipline on the members of GREF the same kind ·of.
discipline which is required to be·observed by the regular Army personnel. The Government of India has also in exercise of the powers
of conferred by Section 21, sub-section (4) of Section 102 and section
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'73
191 of the Army Act 1950 issued another Notification bearing 'SRO
330 on the same day, namely, 23rd September 1960, directing that the
Army Rules 1954 as amended from time to time shall, with the exception of Rules 7 to 18, 168, 172 to 176, 190 and 191, be deemed to
be Rules made under the Army Act f950 as applied to G.REF. Rules
19, 20 and 21 of the Army Rules 1954 are material for the purpose
of the present writ petitions and they provide inter a/ia as follows
19. Unauthorisad organisations-No person .subject
to the Act shall, without the express sanction of the
Central Government :-.
(i} take official cognizance of, or assist or take any
active part in, any society, institntion or organisation
not recognised as part of the Armed Forces of the
Union; unless it be of a recreational or religious
nature in which case prior sanction of the superior
officer shall be obtained;
(ii)
be a member of, or be associated in any way with,
any trade union or labour union, or any class of
trade or labour unions.
20. Political and non-milit~ry activities-(!) No.person subject to the Act shall attend, address, or take part
in any ,meeting or demonstration held for a party or any
political purposes, or belong to join or subscribe in the
aid of, any poltitical association or movement.
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(2) No person subject to the Act shall issue an address to electors or in any other manner publicly annoupce
himself of allow himself to be publicly announced as
a candidate or as a prospective candidate for election
to Parliament, the legislature of a State, or a local
authority, or any other public body or act as a member of a candidate's election committee or in any way
actively promote. or prosecute a candidate's interests.
2r. Communications to the·Press, Lectures, etc-No
person subject to the Act shall. -
(i) publish in any from. whatever or communicate
directly or indireclty to the Press any matter in rela•
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tion to a ·poltical question or on a service subject or
containing any service information, or publish or
cause .to be published any book or letter or article" or
other document on such question or matter or containing such information without the prior sanction
of the Central Governmegt, or any officer spec:ified
by the Central Government in this behalf; or
(ii) deliver a lecture or wireless address, on a matter
relating to a political question or on a service subject
or containing any information or views on
any
service subject without the prior sanction of the
Central Government or any officer specified by the
Central Government in this behalf.
These rules obviously owe their genesis to Section 21 and they
impose restrictions on the fundamental rights of members of GREF.
Since the Army Act l 950 and Army Rules 1954 are made applicable
by virtue of SRO Nos. 329 and 330 dated 23rd September, 1960,
GREF personnel when recruited, are required to accept certian' terms
and conditions of appointmen,t wh.ich include inter a/ia the
following:
"5 (iv) : You will be governed by the prOVISlons of
Central Civil Service (Classification, Control and Appeal)
Rules, 1965, as amended from time to time. Notwithstanding the above, you will be further subject to certain
provisions of the Army Act, 1950, and Rules made
thereunder, as iaid down in SROs. ·329 and 330 of 1960,
for purposes of discipline. lt will be open. to the appropriate disciplinary authority under the Army Act l 950
to proceed under its provisions wherever it considers it
expedient or nece.-sary to do so."
5 (v) : You will be required to serve anywhere in,
India or outside India and when so called upon by the
Government or the appointing authority or your superior
officer, you shall proceed on field service.
5 (vi) : You shall, if required, be liable to serve, in
any Defence Service or post connected with the defence of
India.
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5 (xi) : On your appointment, yon will be required
to wear the prescribed uniform while on duty, abide by
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such rules and instructions issued by your superior authority regarding discipline, turnout, undergo such training
and take such departmental 'test as the Government may
. prescrib~."
The result is that:the directly recruited GREF personnel are
governed by the provisions of Central Civil Service (Classification;
Control and Appeal) Rules 1965 as amended from time to time but
for purposes of discipline, they are subject to certain provisions of
the Army Act 1950 and the Army Rules 1954 as laid down in SROs
329 and 330 dated 23rd September 1960.
The material facts in all the writ petitions which are being
disposed of' by• this Judgment are similar and hence it is not
necessary to set out separately the facts of each writ petition. It
wi.11 suffice to set out the facts of writ petition No. 815 of 19.80 which
was tried as the main writ petition and whatever we 'say in regard
to the facts of this writ petition must apply equally in regard to the
other writ petitions. The petitioners in writ petition No. 815 of 1980
are 24 in number and at aU material times they were members of
GREF. Out of them, petitioner Nos. I and 24. were deserters from
service and warrants were issued for their arrest under the provisions
of the Army Act 1950 but the Police Authorities were not able to
apprehend' them. So far as petitioners Nos. 2 to 23 are concerned,
they were charged before the.