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1998 DIGILAW 355 (KER)

Union of India v. All Kerala Ex-GREF & Family Welfare Association

1998-07-31

A.R.LAKSHMANAN, D.SREEDEVI

body1998
Judgment :- AR. Lakshmanan, J. Heard Mr. John Varghese, Additional Central Government Standing Counsel for the appellants and Mr. R. Rajasekharan Pillai for the respondents. 2. The above Writ Appeal has been filed against the judgment of a learned single judge in OP 128 32 of 1997 dated 28.1.1998. The said Original Petition was filed mainly for a direction to the appellants to extend the benefit of canteen facilities to Ex-General Reserve Engineering Force Personnel treating them at. par with the Ex-service personnel. The main contention raised is that the General Reserve Engineering Force (in short 'GREF') has been declared as a part of the armed forces within the meaning of Art.33 of the Constitution of India. 3. Appellants have stated in their counter affidavit that the retired personnel of GREF are not Ex-servicemen and that it is the policy of the Government of India that canteen facilities are granted only to the retired personnel of the three defence services, namely, Army, Navy and Air Force and that the Canteen Service Department was set up by the Ministry of Defence to provide canteen facilities to personnel of the three defence services. Therefore, the respondents are not entitled for canteen facilities. 4. Along with the Original Petition, respondents herein filed Exts. PI to P7. Ext. PI is the communication from the Commanding Officer, INS Dronacharya stating that only serving GREF personnel are entitled to canteen facilities and that Ex-GREF personnel are not entitled for canteen facilities. Ext. P2 is (he communication from the Station Headquarters, Trivandrum in proceedings No. 304/7/Q dated 3.1.1995 wherein it is stated that as per the existing instructions, Ex-GREF personnel are authorised canteen facilities. Ext. P3 is the letter from the Government of India, Ministry of Shipping and Transport, Border Roads Development Board, New Delhi dated 14.8.1985 addressed to the Director General Border Roads wherein it is stated as follows: "The matter regarding the s talus of GREF has been under consideration of the Government for quite sometime. The question was considered by the Supreme Court in (lie Writ Petition case of R. Viswan and Ors. v. Union of India & Ors. ((1983) 3 SCC 401). 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 Art.33 of the Constitution of India. v. Union of India & Ors. ((1983) 3 SCC 401). 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 Art.33 of the Constitution of India. Accordingly, the President is pleased to declare the General Reserve Engineer Force to be an integral part of Armed Forces of India. This issues in consultation with Ministry of Law and Justice. Advocate General, Army Headquarters". Ext. P4 is the proceedings from the Deputy District General Canteen Service, Quartermaster Generals Branch, Army Headquarters, New Delhi dated 12.4.1990 addressed to Southern, Eastern, Western and Central Commands about the canteen facilities to GREF personnel wherein it is declared that GREF is an integral part of the Aimed Forces vide Government of India letter No. F 81 (1) 64- Estt/70463/DCBR/E2 A dated 14.8.1985 and that they are now entitled to canteen facilities including liquor and restricted attractive items. A direction was given to all the four Commands that the above may be promulgated to all concerned. Ext. P5 is the proceedings dated 28.12.1994 of the Zila Sainik Welfare Office, Alappuzha addressed to the Officer-in-charge, Unit Canteen, INS Dronacharya stating that in accordance with the letters referred to in that proceedings, GREF is an integral part of Armed Forces of India and as such Ex-GREF personnel are eligible for canteen facilities including liquor and restricted attractive items. Ex-GREF personnel of Alappuzha district were, therefore, permitted to approach the said office to avail CSD (I) facilities. The Zila Sainik Welfare Officer, Alappuzha, therefore, requested the Officer-in-charge, INS Dronacharya to consider GREF personnel reporting their canteen in the light of the above letters. Exts. P6 and P7 are interim orders passed by this Court issuing interim directions extending the facilities to the members of the respondents' association until further orders. 5. Along with the counter affidavit in the Original Petition, the appellants herein filed Exts. R4(a) and R4(b). It is stated that the status of GREF as an integral part of the Armed Force is not disputed. However, their retired personnel cannot be treated as Ex-servicemen. There is no Government order terming Ex-GREF personnel as Ex-servicemen. Government of India vide their letter No. 36034/S/85-Estt (SCT) dated 27.10.86 (Ext. R4(a)) have specifically stated the GREF personnel arc not Ex-servicemen. It is stated that the status of GREF as an integral part of the Armed Force is not disputed. However, their retired personnel cannot be treated as Ex-servicemen. There is no Government order terming Ex-GREF personnel as Ex-servicemen. Government of India vide their letter No. 36034/S/85-Estt (SCT) dated 27.10.86 (Ext. R4(a)) have specifically stated the GREF personnel arc not Ex-servicemen. GREF functions under the Ministry of Surface Transport and Ex-GREF personnel are not granted the status Ex-servicemen. In support of this contention, Ext. R4(b) is produced wherein it is stated that GREF functions under the Ministry of Surface Transport and Ex-GREF personnel are not granted the status of Ex-servicemen. This letter was issued with reference to one Ex-GREF personnel, who approached the Army Headquarters for canteen facilities. A reading of Ext. R4(a) would show that the said notification was issued in exercise of the powers conferred by the proviso to Art.309 of the Constitution of India. Rules were issued further to amend the Ex-servicemen (Re-employment in Central Civil Services and Posts) Rules, 1979. In R.2(c) of the above Rules, the following clauses was substituted, namely: "(c) vex-serviceman' means a person, who has served in any rank (whether as a combatant) or as a non-combatant) in the Regular Army, Navy and Air Force of (lie Indian Union but does not include a person who has served in the Defence Security Corps, the General Reserve Engineering Force, the Lok Sahayak Sena and the paramilitary forces; and..." The above definition of ex-servicemen has been substituted by clause (c) only for the purpose of considering the case of Ex-servicemen for their re-employment in Central Civil Services and Posts and not for extending the canteen facilities. Therefore, Ext. R4(a) will not be of any assistance to the case put forward by learned Additional Central Government Standing Counsel. 6. The learned single judge, after referring to the judgment of the Supreme Court in R. Viswan v. Union of India ((1983) 3 SCC 401), held that Ex-GREF personnel are entitled to canteen facilities including liquor and restricted attractive items. Under these circumstances, the learned judge issued directions to respondents 4 and 5 in the OP to take a decision regarding the extension of canteen facilitates to the petitioners therein in the light of Ext. Under these circumstances, the learned judge issued directions to respondents 4 and 5 in the OP to take a decision regarding the extension of canteen facilitates to the petitioners therein in the light of Ext. P4 and the decision of this Court and of the Supreme Court referred to above within one month from the date of receipt of a copy of that judgment. Aggrieved by the said judgment, respondents in the 'O.P. have come up in this appeal. 7. In the Writ Appeal, the very same contentions have been reiterated. Learned Standing Counsel again argued, placing reliance on Ext. R4(b), that Ex-GREF personnel have been specifically excluded along with a few others from the definition of 'Ex-serviceman'. The objective behind giving the status of Ex-servicemen to retired defence personnel is for resettlement in civil life as they retire at a comparatively younger age, ie., before the age of superannuation at 58. Therefore, he submitted that a man's status whether he is an Ex-serviceman or not for all purposes is to be determined on the basis of the definition contained in Ext. R4(a). We have already rejected the said contention of learned Standing Counsel since, according to us, the above definition has been substituted only for the purpose of considering the retired personnel for the purpose of re-employment in Central Civil Services and Posts and not for any other purpose. Therefore, such a wider meaning cannot be given as argued by learned Standing Counsel. 8. Learned counsel for the respondent invited our attention to a judgment passed by a Division Bench of this Court in WA 429 of 1998 dated 29.5.1998. We have gone through the said judgment. The short question for consideration in that appeal was whether the members of GREF are members of the Armed Forces and if so whether retired GREF personnel are entitled to the canteen facilities the same way as they are available to similarly situated persons of the Armed forces. The Division Bench, placing reliance on the decision of the Supreme Court in R. Viswan's case (supra), construed the definition of 'Ex-serviceman' as contained in Ex-servicemen (Re-employment in Central Civil Services and Posts) Amendment Rules, 1986 and came to the conclusion that the purpose of this Rule is entirely different and that cannot be pressed into service to hold that Ex-GREF personnel are not members of the Armed Forces. In the above view, the Division Bench held that it will not be open to the appellants to withdraw the canteen facilities available to Ex-GREF personnel, who for all purposes are members of the Armed Forces. We are in entire agreement with the opinion expressed by the Division Bench in W.A. 429 of 1998. 9. Learned Additional Central Government Standing Counsel cited State of Punjab v. Ram Lubhaya Bagga ((1998) 4 SCC 117) for the proposition that the right of the State to change its policy from time to time under the changing circumstances is neither challenged nor could it be and that the wisdom of the policy cannot be judicially scrutinised though the Court can consider whether the policy is arbitrary or violative of law. Kanhaiyahd Sethia v. Union of India ((1997) 6 SCC 573) is relied on by the learned Standing Counsel for the proposition that generally courts do not, in exercise of their power of judicial review, interfere in policy matters of the State unless the policy so fomulated either violates the mandate of the Constitution or any statutory provision or is otherwise actuated by malafides. P.T.R. Exports (Madras) Pvt. Ltd v. Union of India ((1996) 5 SCC 268) is cited by the learned Standing Counsel in support of his contention that the Government or Legislature has power to evolve its new fiscal policy in public interest which includes its power to withdraw the old policy and that the Court would not bind the Government to its previous policy by invoking the doctrine of legitimate expectation of the appellant for licence unless the change in policy is vitiated by malafides or abuse of power which the applicant must plead and prove to the satisfaction of the Court. State of Haryana v. Ramkimar Mann (1997 (2) KLT SN.16 - Case No. 17) is cited for the proposition that a wrong order cannot be the foundation for claiming equality. A wrong decision by the Government does not give a right to enforce the wrong order and claim parity or equality. Two wrongs can never make a right. 10. There is no dispute or quarrel with regard to the propositions of law laid down by the Supreme Court in all the above cases. It is a well settled principles of law. Two wrongs can never make a right. 10. There is no dispute or quarrel with regard to the propositions of law laid down by the Supreme Court in all the above cases. It is a well settled principles of law. It is not the case of the Union of India that some of their orders passed earlier are wrong and those decisions do not give any right to the beneficiaries of that order. It is not in dispute that pursuant to the earlier orders, retired Ex-GREF personnel have enjoyed and are now enjoying the canteen facilities all these years. Therefore, when it is not the case of the Union of India that the earlier order is not a wrong order, it is always open to the aggrieved persons like the respondents to plead the question of discrimination and then claim the relief granted earlier in the right order passed by the Government. In this case, the Government of India itself, following the decision of the Supreme Court in R. Viswan's case (supra) issued instructions to the Director General Board Roads under Ext. P3 which has already been extracted above. In Ext. P3 Government have clearly indicated that' GREF' is an integral part of Armed Forces for the purpose of Art.33 of the Constitution of India. In view of the above circular declaring that GREF is also an integral part of the Armed Forces, the retired GREF personnel are also entitled to the canteen facilities on par with that of the other members of the defence forces. The Writ Appeal, therefore, fails and it is accordingly dismissed. We direct the appellants to consider the claim of the respondents for canteen facilities and pass appropriate orders immediately. No costs.