Kerala Ex-GREF Welfare Association v Union of India

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **MONDAY ,THE 24TH DAY OF SEPTEMBER 2018 / 2ND ASWINA, 1940** ## **WP(C).No. 11730 of 2015** ## **PETITIONER/S:** **THE KERALA EX-GREF WELFARE ASSOCIATION REG.NP.Q-430/1987 AGED 68 YEARS REPRESENTED BY ITS SECRETARY, R. SADASIVAN, RESIDING AT KOLLATHERI VADAKKATHIL HOUSE, PUTHIYAVILA, PATTOLI, MARKET P.O., ALAPPUZHA, KERALA.** **BY ADVS. SRI.R.RAJASEKHARAN PILLAI SMT.SABINA JAYAN** ## **RESPONDENT/S:** - **1 THE UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVEREMNT OF INDIA, MINISTRY OF DEFENCE, NEW DELHI - 110 011.** - **2 THE DIRECTOR INTEGRATED HEADQUARTERS OF MINISTRY OF DEFENCE ADJUTANT GENERAL BRANCH, ADDITIONAL DIRECTOR GENERAL PERSONNEL SERVICES, NEW DELHI-110 011.** - **3 DIRECTOR GENERAL BORDER ROADS, SEEMA SADAK BHAWAN, RING ROAD, DELHI CANTT, NEW DELHI-110 010.** - **4 THE SECRETARY BORDER ROADS DEVELOPMENT BOARD, B WING, 4TH FLOOR, SENA BHAWAN, NEW DELHI-110 011.** - **5 THE JOINT SECRETARY DEPARTMENT OF EX-SERVICEMAN WELFARE, SOUTH BLOCK, NEW DELHI-110 011.** **BY ADVS. SRI.N.NAGARESH SRI.K.SHRI HARI RAO CGC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 11730 of 2015** 2 ## **J U D G M E N T** The Ex-GREF Welfare Association has again approached this Court aggrieved by the denial of the status of the Ex-servicemen to them despite Ext.P12 judgment and the judgment of the Apex Court in **R.Viswan v. Union of India** (1983) 3 SCC 401. 2. The status of GREFF personnel was elaborately discussed in the judgment in **R.Viswan** _'_ s case (supra) and it was held that GREF is a uniformed force and it is an integral part of the Army. Though the said writ petition was filed in respect of disciplinary action against the GREF personnel, the status of the GREF and GREF personnel is discussed elaborately with reference to their duties and all other working conditions and it was held that members of GREF are members of the Armed Forces. It was observed that it is immaterial for the purpose of determining whether the members of GREF are members of Armed Forces as to what are the terms and conditions of service of the members of **WP(C).No. 11730 of 2015** 3 GREF and whether they are identical with those of Armed personnel appointed in the same or equivalent posts in GREF units. The Apex Court even observed that Central Government might well consider the advisability of taking steps for ensuring that the disparity, if any, between the terms and conditions of service, such as, salary, allowances, rations etc. of Army personnel posted in GREF units and other officers and men in GREF is removed. 3. In the present case, the petitioners seek parity with Ex-servicemen. In an earlier occasion this court as per Ext.P12 judgment in W.P.(C) No.24969/2011, directed the respondents to consider their claim in the light of Ext.P10 judgment of the Karnataka High Court in W.A.No.245/2007, whereby the GREF personnels were directed to be granted the benefit of Central Government Health Scheme (CGHS). The respondents thereafter issued Ext.P14 order rejecting their claim on the ground that GREF civilian personnel are subject to Central Civil Service Rules and **WP(C).No. 11730 of 2015** 4 Regulations for regulating the leave, pay and allowances, retirement, pension benefits, service conditions, deputation and all matters of service jurisprudence including discipline and they are governed by their own Recruitment Rules which are framed under Article 309 of the Constitution of India. Stating that only a few sections of Army Act are applicable to them and they retired only on completion of 60 years of age whereas Army personnel retire at younger age and Article 311 of the Constitution of India is not applicable to Army personnel, the request of the petitioner for granting the status of Ex-servicemen was declined describing them as Ex-GREF civilian personnel. 4. Ext.P14 order was issued on 29.08.2014. Immediately thereafter, the GREF employees who were under the Ministry of Surface Transport were brought under the Defence Department with effect from 09.01.2015. 5. The petitioner has relied on the judgment of this Court in **Union of India and Ors. v. All** **WP(C).No. 11730 of 2015** 5 ## **- Kerala Ex GREF & Family Welfare Assn. District** **Committee & Ors.** [1998 (2) KLJ 403] in which this Court had declared that GREF personnel are entitled to canteen facilities on par with the other members of Defence Forces. That judgment was also rendered relying on **R.Viswan** 's case (supra). Petitioner has also relied on various orders issued by the Central Government themselves by which several benefits are extended to them. It is also pointed out that benefits granted to members of Central Armed Police Force (CAPF) are also not extended to the GREF personnel whereas all of them have been working in similar circumstances. As per Ext.P15 order dated 07.07.1984, the Border Development Board **,** the Government of India, Ministry of Shipping and Transport, addressed the Chief Secretary to Government of all States requesting to extend the assistance to the members of the GREF in the matter of granting facilities/reservations like allotment of agricultural land, allotment of plots/houses in new urban residential and commercial colonies, **WP(C).No. 11730 of 2015** 6 transport permits, fair price shops etc., as in the case of the Defence personnel and Ex-servicemen, etc. It was pointed out that they are deployed for construction and maintenance of roads in the strategic areas of North West, Northern and North Eastern Borders and that the provisions of the Army Act are applicable to them for the purpose of discipline. The nature of the work carried out by them in remote areas and extremely difficult working conditions, away from their families were explained, pointing out that GREF is an integral part of the Armed Forces. Pursuant to that, the Director General of Border Roads had sent a letter to the Directorate of Ex-servicemen's welfare on 19.07.2005, in which it was stated that the serving GREF personnel are to be treated at par with Armed Forces serving personnel and the facilities/concessions applicable to Armed Forces serving personnel are to be extended to the serving personnel of the GREF except for the purpose of service benefits. As per Ext.P18 order issued on 12.02.2007, GREF personnel are conferred **WP(C).No. 11730 of 2015** 7 equivalent ranks as in Army, equating Chief Engineer to the rank of Major General, Superintending Engineer, Executive Engineer and Assistant Executive Engineer to the ranks of Colonel, Lieutenant General, Major, Captain etc. 6. Respondents have filed a counter affidavit, stating that Ext.P10 judgment has already been stayed. According to them, GREF personnel are governed by the Central Civil Service Rules and they retire at the age of 60 years; the Constitution Bench judgment in **R.Viswan** 's case is applicable only in respect of applicability of Article 33 of the Constitution of India. Referring to several judgments of the Apex Court as well as the High Courts, it is stated that claims raised by the GREF personnel were rejected in all those cases. (It is seen that all these cases were for parity in pay.) 7. Stating that the Apex Court has stayed the operation of Ext.P10 judgment, respondents oppose the claim of petitioner. According to them, the GREF personnel are having the protection of Article **WP(C).No. 11730 of 2015** 8 311 whereas the Defence service personnel do not have such protection. Therefore, the benefits granted to Armed Force personnel cannot be extended to the GREF personnel. It is further stated that the status given to the members of Central Armed Police Force (CAPF) as Ex-servicemen is not admissible to the GREF personnel. CAPF is formed from Central Reserved Police Force, Border Security Force, Central Industrial Security Force, Indo Tibetan Boarder Police and Sashastra Seema Bal. The Ex-Central Armed Police Forces Personnel are provided with better identity, community recognition and higher esteem and pride in the society and the said status is distinct from that of Ex-servicemen of Defence Forces. They are extended the benefits as admissible to the ex-servicemen of Defence Forces. 8. However, the respondents have admitted the grant of several benefits to the GREF personnel like reservation in Sainik Schools. It is stated that Exservicemen is defined under Ex-servicemen (Reemployment in Central Civil Services and Post) Rules **WP(C).No. 11730 of 2015** 9 1979, as a person, who served in any rank in Armed Forces of Union including Armed Forces of the former Indian States, but excluding Forces like GREF. Since the definition itself excludes GREF personnel, the facilities extended to Ex-servicemen cannot be granted to them. 9. Respondents have produced Ext.R1(c) order by which 25% seats are reserved in Sainik School for children of GREF personnel and Ext.R1(d) dated 20.10.2011 by which leave has been enhanced to GREF personnel. According to them, the 4[th] and 5[th] CPC had considered all the relevant aspects and since Civilian employees in GREF are not defence personnel, demand of the petitioner cannot be allowed. 10. Heard Sri. Rajasekharan Pillai, the learned Counsel for the petitioner and Sri. Sri Hari Rao, the learned Central Government Counsel for the respondents. The main claim of the petitioner, while seeking the extension of status is for CGHS benefit, which was granted to ex-GREF personnels, in Ext.P10 **WP(C).No. 11730 of 2015** 10 judgment of the High Court of Karnataka. Though the operation of the judgment is stayed, as long as the judgment is not reversed, there is no impediment in following the said judgment. Though the petitioners are governed by Civil Service rules, the Apex Court has in **R.Viswan** 's case considered the circumstances under which they worked and held that it is an integral part of the Armed Forces. 11. In para 7 of the judgment in **R.Viswan** 's case it was observed that the personnel of GREF right from Class IV to Class I have to be in uniform with distinctive badges of rank and they have a rank structure equivalent to that of the Army; GREF is primarily intended to carry out defence and other works projected by the General Staff, Army Headquarters; the major portion of the work executed by GREF units consists of tasks entrusted by the General Staff, Army Headquarters GREF units carry out essentially those tasks which are otherwise carried out by Army Engineering Regiments and they provide engineering support to the Army both during **WP(C).No. 11730 of 2015** 11 peace time as also during hostilities; 17 Border Roads Task Forces and 34 Pioneer Companies are being maintained as essential units of GREF for meeting the operational requirements of the Army; These tasks are required to be carried out by the Border Roads Task Forces during operations with a view to providing engineering support to the Army in its operational plans even beyond the border up to the extent of advance into enemy territories. Even in peace time, they have to undertake works projected by General Staff, Army Headquarters to meet their operational requirements and these works include construction and maintenance of roads, operational tracks, ditch-cum-bund (water obstacles on the border), field fortifications like bunkers, fire trenches and pill boxes, helipads and airfields; ; GREF units consisting of these Border Roads Task Forces and Pioneer Companies are placed under the direct control of the Army during emergencies when the entire control of this Force is entrusted to the Chief of the Army Staff. Even during peace time, the **WP(C).No. 11730 of 2015** 12 Chief of the Army Staff exercises control over the discipline of the members of GREF units through the applicability of the provisions of the Army Act, 1950.; 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”; without the efficient and disciplined operational 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 the operational requirements of the Armed Forces. 12. It is pertinent to note that the GREF personnel who were under the Ministry of Surface Transport, as on the date of which Ext.P14 order was issued, has been brought under the Defence Department, immediately thereafter. Now the respondents cannot be heard to contend that the GREF personnel who are under the very same ministry or **WP(C).No. 11730 of 2015** 13 department as in the case of defence personnel cannot be brought on par with the personnel in Armed Forces or on par with the members of the CAPF which is formed under the Defence Department. It is pertinent to note that this Court had in judgment dated 07.04.2014 in W.P.(C).No.32432/2004 held that the GREF personnel are even entitled to pension on completion of 15 years of service, relying on **R.Viswan** 's case. The respondents admit that the GREF personnel have been working in difficult living conditions as can be seen from Ext.P16 Therefore, there cannot be any objection in granting them the benefit of CGHS to GREF personnel. The respondents have taken action as early as in 1986 in Ext.P16 to extend the benefit of rehabilitation etc., and they have already been granted the facilities of Exservicemen on the basis of direction of this Court in **Union of India and Ors. v. All Kerala Ex-GREF & Family Welfare Assn. District Committee & Ors.** [1998 (2) KLJ 403], there is no reason for not extending other benefits to the petitioner at any rate the **WP(C).No. 11730 of 2015** 14 benefit of health scheme to the Ex-servicemen. In the above circumstances, Ext.P14 is set aside. The first respondent shall re-consider the request of the petitioner and pass fresh orders on it, within a period of 'three months' from the date of receipt of a copy of the judgment. Sd/- **P.V.ASHA, JUDGE** ww/AS The words **“Central Government Health Scheme (CGHS)”** occurring in paragraph 3 of the judgment dated 24.09.2018 in W.P.(C).No.11730/2015 are corrected and substituted as **“Ex-servicemen Contributory Health Scheme (ECHS)** and the word **“CGHS”** occurring in paragraphs 10 and 12 of the judgment is corrected as **“ECHS”** as per order dated 31/10/2018 in I.A.No.5/2018 in W.P.(C).No.11730/2015. Sd/- **Registrar (Judicial) in-charge** **WP(C).No. 11730 of 2015** 15 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** - **TRUE COPY OF THE JUDGMENT DATED 8/12/2009 IN WPC NO.36852/2004 OF THIS HONOURABLE COURT** - **EXHIBIT P2 TRUE COPY OF THE COMMUNICATION DATED 19/5/2011 FROM THE 1ST RESPONDENT TO THE PETITIONER** - **EXHIBIT P3 TRUE COPY OF THE LETTER NO.60950/MISC/DGBR/136/GC DATED 11/4/2011 FROM THE DIRECTOR GENERAL BORDER ROADS TO THE PETITIONER** - **EXHIBIT P4 TRUE COPY OF THE LETTER OF THE 5TH RESPONDENT** - **EXHIBIT P5 TRUE COPY OF THE LETTER DATED 19/9/2006 FROM THE 5TH RESPONDENT** - **EXHIBIT P6 TRUE COPY OF THE OFFICE MEMORANDUM DATED 23/11/2007 OF THE RAJYASABHA** - **EXHIBIT P7 TRUE COPY OF THE LETTER DATED 5/7/2010 FROM THE 5TH RESPONDENT TO THE GREF CENTRE DIGHI CAMP, PUNE.** - **EXHIBIT P8 TRUE COPY OF THE RECOMMENDATIONS OF THE PAY COMMISSION** - **EXHIBIT P9 TRUE COPY OF THE 4TH RESPONDENT'S COMMUNICATION NO.BRDB/191/2007/GE-I, DATED 7/08/2014.** - **EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED 28/5/2012 IN WA NO.245/2007 OF HIGH COURT OF KARNATAKA AT BANGALORE.** - **EXHIBIT P11 TRUE COPY OF THE OFFICE MEMORANDUM DATED 23/11/2012 OF THE 1ST RESPONDENT** - **EXHIBIT P12 TRUE COPY OF THE JUDGMENT DATED 17/12/2012 IN WPC NO.24669/201 OF THIS HONOURABLE COURT** **WP(C).No. 11730 of 2015** 16 **EXHIBIT P13** **TRUE COPY OF THE ORDER DATED 12/3/2014 IN RP NO.640/2013 IN WPC NO.24969/2011.** - **EXHIBIT P14 TRUE COPY OF THE SPEAKING ORDER DATED 29/8/2014 OF THE 1ST RESPONDENT** - **EXHIBIT P15 TRUE COPY OF THE LETTER DATED 07.07.1984 OF THE IST RESPONDENT.** - **EXHIBIT P16 TRUE COPY OF THE COMMUNICATION DATED 19.7.2005 FROM THE 3RD RESPONDENT TO THE ADDL. DIRECTOR DIRECTORATE OF EX. SERVICEMEN'S WELFARE CHENNAI.** - **EXHIBIT P17 TRUE COPY OF THE NOTE NO. 94451/AG/DV-I (P) DATED 23.08.2006.** - **EXHIBIT P18 TRUE COPY OF THE GAZETTE NOTIFICATION DATED 02.12.2007.** - **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R1 A** TRUE COPY OF THE ORDER DATED 20.11.2014 IN SLP NO. 18330/14 OF THE APPEX COURT. **EXHIBIT R1 B** TRUE COPY OF THE LETTER DATED 08.09.2009 OF THE BORDER ROAD DEVELOPMENT BOARD (BRDB) **EXHIBIT R1 C** TRUE COPY OF THE MINISTRY OF DEFENCE, GOVERNMENT OF INDIA LETTER DATED 20.05.88. **EXHIBIT R1 D** TRUE COPY OF THE LETTER DATED 20.10.2011 OF THE MINISTRY OF ROAD TRANSPORT AND HIGHWAYS, GOVERNMENT OF INDIA.