THE HIGH COURT OF DELHI AT NEW DELHI (EXTRAORDINARY CIVIL WRIT JURISDICTION) WRIT PETITION (CIVIL) NO. OF 2014

Transcription

1 THE HIGH COURT OF DELHI AT NEW DELHI (EXTRAORDINARY CIVIL WRIT JURISDICTION) WRIT PETITION (CIVIL) NO. OF 2014 IN THE MATTER OF: INDIAN DEFENCE SERVICE OF ENGINEERS ASSOCIATION (Govt. Approved) (IDSE ASSOCIATION) PETITIONER Versus UNION OF INDIA & ORS RESPONDENTS INDEX SL. No. Particulars Page No. 1. Notice of Motion 2. Memo of Parties 3. Urgent Application 4. List of Dates and events 5. Petition under Article 226 of The Constitution of India for issuance of Writ of

2 Certiorari or any other appropriate Writ and / or direction thereby quashing the Notification being No. SRO 19E dated also known as Military Engineer Services (Army Personnel), Regulation, 1989 being illegal, discriminatory, arbitrary and ultra vires Article 16, 309, 14 and 21 of The Constitution of India. 6. ANNEXURE P1. Copy of the Authorization letter dated ANNEXURE P2. Copy of Recommendation, Rules & Regulations of Association dated alongwith true typed copy. 8. ANNEXURE P3. Copy of the Notification 4 th December, 1923 alongwith true typed copy. 9. ANNEXURE P4. Copy of Notification alongwith true typed copy.

3 10. ANNEXURE P5. Copy of the Notification dated alongwith true typed copy 11. ANNEXURE P6. Copy of the Notification dated alongwith true typed copy. 12. ANNEXURE P7. Copy of the said Notification dated alongwith true typed copy. 13. ANNEXURE P8. Copy of letter dated alongwith its true typed copy. 14. ANNEXURE P9. Copy of Notification dated alongwith its true typed copy. 15. ANNEXURE P10. Copy of the Notification dated alongwith its true typed copy. 16. ANNEXURE P11. Copy of Lok Sabha question dated

4 alongwith its true typed copy. 17. ANNEXURE P12 Copy of paras of 5 th Central Pay Commission alongwith its true typed copy. 18. Application for grant of Ad-Interim injunction restraining the Respondents from further entry/deputation of Army Personnel into the MES. 19. Application Akin To The Provision Of Section 151 Of The Civil Procedure Code, 1908 For Exemption From Filing Of Dim Annexures & Improper Margins Of Legible Documents 20. Vakalatnama New Delhi Petitioner Dated: /05/2014 Through Aastha Lumba 198, Jor Bagh New Delhi

5 IN THE HIGH COURT OF DELHI AT NEW DELHI (EXTRAORDINARY CIVIL WRIT JURISDICTION) WRIT PETITION (CIVIL) NO. OF 2014 IN THE MATTER OF: INDIAN DEFENCE SERVICE OF ENGINEERS ASSOCIATION (Govt. Approved) (IDSE ASSOCIATION) PETITIONER Versus UNION OF INDIA & ORS RESPONDENTS NOTICE OF MOTION 1) UNION OF INDIA MINISTRY OF DEFENCE (THROUGH ITS SECRETARY) CENTRAL SECRETARIAT SOUTH BLOCK NEW DELHI 2) MINISTRY OF PERSONNEL, TRAINING & GRIEVANCE (THROUGH ITS SECRETARY) CENTRAL SECRETARIAT, NORTH BLOCK, NEW DELHI 3) UNION PUBLIC SERVICE COMMISSION (THROUGH CHAIRMAN)

6 SHAHJAHAN ROAD NEW DELHI...RESPONDENTS New Delhi Petitioner Dated: /05/2014 Through Aastha Lumba 198, Jor Bagh New Delhi

7 IN THE HIGH COURT OF DELHI AT NEW DELHI (EXTRAORDINARY CIVIL WRIT JURISDICTION) WRIT PETITION (CIVIL) NO. OF 2014 MEMO OF PARTIES INDIAN DEFENCE SERVICE OF ENGINEERS ASSOCIATION (Govt. Approved) (IDSE ASSOCIATION) ROOM NO. 173, E-IN C S BRANCH MILITARY ENGINEERING SERVICES KASHMIR HOUSE, RAJAJI MARG, NEW DELHI PETITIONER VERSUS 1) UNION OF INDIA THROUGH MINISTRY OF DEFENCE (THROUGH ITS SECRETARY) CENTRAL SECRETARIAT SOUTH BLOCK NEW DELHI. 2) MINISTRY OF PERSONNEL, TRAINING & GRIEVANCE (THROUGH ITS SECRETARY) CENTRAL SECRETARIAT, NORTH BLOCK, NEW DELHI 3) UNION PUBLIC SERVICE COMMISSION (THROUGH CHAIRMAN) SHAHJAHAN ROAD

8 NEW DELHI...RESPONDENTS New Delhi Petitioner Dated: /05/2014 Through Aastha Lumba 198, Jor Bagh New Delhi

9 IN THE HIGH COURT OF DELHI AT NEW DELHI (EXTRAORDINARY CIVIL WRIT JURISDICTION) Writ petition (civil) No. Of 2014 IN THE MATTER OF: INDIAN DEFENCE SERVICE OF ENGINEERS ASSOCIATION (Govt. Approved) (IDSE ASSOCIATION) PETITIONER Versus UNION OF INDIA & ORS RESPONDENTS URGENT APPLICATION To, Registrar, High Court of Delhi, New Delhi. Sir, Kindly treat the accompanying Petition as urgent one as per the Delhi High Court Rules and Regulations. The grounds of urgency are: Urgent Relief is Prayed for New Delhi Petitioner Dated: /05/2014 Through Aastha Lumba 198, Jor Bagh New Delhi

10 LIST OF DATES AND EVENTS Army Instruction 1014 dated 4 th December 1923 effective from 26 th September Military Engineer Services (herein after referred to as MES) was organized under one Engineer in chief, which was borne in establishment of the ARMY head quarters Government of India vide order No. 3601/75/1/E14 dated 24 th June, 1948 validated the MES under the Ministry of Defence. MES regulations were amended and made effective from 15 th August, 1947 after receiving the sanction of Governor General with respect to revision of established cadre of MES. It was intended that various military posts would be converted into civilian posts Vide Notification dated 17 th September, 1949 Government of India published the Rules which were called the Military

11 Engineer Services, Class I (Recruitment promotions and seniority) Rules. Rule 3 provided that the competitive exams be held in respect of appointment to different posts in MES Army Act, 1950 was notified Statutory rules under Article 309 of the Constitution of India were published in gazette of India regarding the recruitment into the MES SRO 19E which was called the Military Engineer Services (Army personnel) Regulations, 1989 were made under section 192 of the Army Act, 1950, it was also issued in partial supersession of the regulation of the MES vide SRO 19E matters beyond Army Act, 1950, were proceeded and dealt with. MES for the first time since independence was brought under the control of Engineer in-chief Army headquarter SRO 4E was issued creating a group A Organization service namely Indian

12 Defence Services of Engineers (herein after referred to as IDSE) th Central Pay Commission recognized and recommended gradual civilization of MES in view of the world over trend in Military Engineer Organizations employing civilians In reply to the queries raised to the Hon ble Defence Minister in the Parliament enjoined that the process for civilianization of MES was initiated however, decision for withdrawal of existing Army personnel in the MES was yet not taken SRO-95 was promulgated, regulating the method of recruitment and condition of services of persons appointed in IDSE in Ministry of Defence Department of Personnel, Training and Grievances issued letter to ministry directing them to ban on issue of

13 unilateral guidelines/ instructions concerning methods of recruitment Petitioner Association was formed and got recognition from Government of India., 2014 Hence the present Petition.

14 IN THE HIGH COURT OF DELHI AT NEW DELHI (EXTRAORDINARY CIVIL WRIT JURISDICTION) Writ petition (civil) No. Of 2014 INDIAN DEFENCE SERVICE OF ENGINEERS ASSOCIATION (Govt. Approved) (IDSE ASSOCIATION) ROOM NO. 173, E-IN C S BRANCH MILITARY ENGINEERING SERVICES KASHMIR HOUSE, RAJAJI MARG, NEW DELHI PETITIONER VERSUS 1) UNION OF INDIA THROUGH MINISTRY OF DEFENCE (THROUGH ITS SECRETARY) CENTRAL SECRETARIAT SOUTH BLOCK NEW DELHI 2) MINISTRY OF PERSONNEL, TRAINING & GRIEVANCE (THROUGH ITS SECRETARY) CENTRAL SECRETARIAT, NORTH BLOCK, NEW DELHI 3) UNION PUBLIC SERVICE COMMISSION (THROUGH CHAIRMAN) SHAHJAHAN ROAD NEW DELHI...RESPONDENTS

15 PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT AND / OR DIRECTION THEREBY QUASHING THE NOTIFICATION BEING NO. SRO 19E DATED ALSO KNOWN AS MILITARY ENGINEER SERVICES (ARMY PERSONNEL), REGULATION, 1989 BEING ILLEGAL, DISCRIMINATORY, ARBITRARY AND ULTRA VIRES ARTICLE 16, 309, 14 AND 21 OF THE CONSTITUTION OF INDIA. TO THE HON'BLE CHIEF JUSTICE AND HIS COMPANION JUSTICES OF THE HON'BLE HIGH COURT OF DELHI MOST RESPECTFULLY SHOWETH: 1) That the Petitioners are registered association and are filing the present Writ Petition through its president Mr. Rakesh Sharma. Copy of Authorization letter dated is annexed herewith as Annexure-P1 and the copy of Rules and Regulations of Association is annexed herewith as Annexure-P2 with this petition. 2) That the Petitioner Association is primarily an Association comprising of the personnel of Indian Defence Service Engineers, which is constituted under the Ministry of Defence. The Petitioner has 900

16 (approx.) numbers of members, all of whom are serving in the INDIAN DEFENCE SERVICE OF ENGINEERS on different posts. The present petition is being filed by the Petitioner Association espousing the cause of its members and to bring an end to the glaring irregularities and illegalities existing in the system of Indian Defence Service of Engineers (for short IDSE Association). 3) That the Respondent No.1 is the Union of India acting through the Ministry of Defence under which the IDSE was constituted and is in existence. The IDSE was a part of Military Engineer Services. 4) That the Respondent no. 2 is Ministry of Personnel, Training and Grievance is a separate department of Government of India. The role of the Department of Personnel & Training can be conceptually divided into two parts. In its large nodal role, it acts as the formulator of policy and also as the watch-dog of the Government ensuring that certain accepted standards and norms, as laid down by it, are followed by all Ministries/Departments, in the recruitment, regulation of service conditions, posting/transfers, deputation of personnel as well as other related issues. Towards this

17 end, guidelines are issued by it for the benefit of all Ministries/Departments and it monitors the implementation of these guidelines. It also advises all organizations of the Central Government on issues of personnel Management. At a more immediate level, the Department has the direct responsibility of being the cadre controlling authority for the IAS and the other Secretariat Services in the Central Secretariat. 5) That the Respondent No. 3 is Union Public Service Commission is also a separate department of Government of India. Under the Constitution one of the functions of the Commission is to conduct examinations for appointment to Civil Services/Posts of the Union. In addition, competitive examinations are also held by the Commission under arrangements with the Ministry of Defence for entry to certain Defence Services, through the National Defence Academy, Indian Military Academy, Naval Academy, Air Force Academy and the Officers Training Academy. The Commission usually conducts over a dozen examinations every year on an all India basis. These include Examinations for recruitment to services/posts in various fields, such as Civil Services, Engineering, Medical and Forest Service, etc.

18 6) That the Military Engineer Services was originally constituted under the British Regime in the year The Engineer Services consisted of the corps of sappers and miners which is presently known as Corps of Engineers and Military of Works Services headed by the director of Military Works. The Military Engineer Services were made effective from 26 th September, 1923 and was reorganized under Army Notification No dated 4 th December, Copy of the Notification as well as true typed copy of the Notification is annexed herewith as Annexure P3. 7) That under the British Regime all the important posts in the MES were held by the Britishers while other insignificant posts and lower posts were held by the Indians. 8) That during the British Regime itself between the period 1936 to 1939, the British Government started the process of Indianization in Military Engineer Services which was initially an organization comprised of British Army officers of British Indian Army.

19 9) That after India attained independence, vide Notification No. 3601/75/1/E14 dated 24 th June 1948, which was made effective from conveyed the sanction of Governor General with respect to the revision of the established cadre of MES. It was intended that various Military posts would be converted into civilian posts. Copy of Notification as well as true typed copy of the Notification is annexed herewith as Annexure P4. 10) That further Notification was issued on by the Ministry of Defence notifying various rules, regulations, orders and resolutions, which also covered the Military Engineer Services. The said Rules were called as Military Engineer Services, Class I, (Recruitment, Promotions and Seniority) Rules. The rules categorically provided that all the services other than architect services and the barrack and store services shall be recruited through competitive exams held in accordance with the rules and promotion criteria which was also laid down vide the same Notification. It was further provided that the appointment of services which was made other than way of promotion shall be governed by the provisions laid down in the Govt. of India s, Ministry of Home Affairs resolution No.16/10/47 Esta. (R) Dated 2 nd

20 August, Copy of Notification as well as true typed copy of the Notification dated is annexed herewith as Annexure P5. 11) That the Part II of the Notification dated categorically laid down that the appointment has to be following the competitive examination. 12) That the Notification dated also provided that a candidate who is either in permanent or temporary Government Services may apply to admission through competitive examination for being selected in the MES. The rules of 1949 further provided that any candidate employed in a post under the Engineer in Chief Army Headquarters shall be available for admission if he is below 20 years of age. The age for Scheduled Cast Candidate was kept as 31 years. 13) That no separate distinction was made between Army persons and civilians with respect to the MES in the Rules of 1949.

21 14) That the part III of Notification provided for appointment by promotion where the criteria were also laid down as to how the promotion will take place. Once again no separate criteria were laid down for Army personnel and/or civilians. 15) That the posts were created under the Notification in two parts first being superior posts that of executive engineer, surveyor of work and technical examiner and other being administrative post of Chief Technical Examiner, Chief Surveyor of Work, Superintending Engineer, Superintending Surveyor of Works and Superintending Technical Examiner. That there were no criteria laid down in the Notification of 1949 relating to transfer of Army personnel or for posting of Army personnel within the department. 16) This Notification of 1949 was again formulized under Article 309 of the Constitution of India vide Notification dated ) That inspite of a fact there was no criteria laid down in the Notification for Army personnel to be a part of MES still various posts without emanation were held by the Army Personnel.

22 18) That the age limit in this were slightly modified and once again it was categorically stated and the following note was added in the Notification of 1959: NOTE: The upper age limits prescribed above will be relaxable:- (i) Upto a maximum of 5 years if a candidate belongs to a Scheduled Caste or a Scheduled Tribe. (ii) Upto a maximum of 3 years if a candidate is a bonafide displaced person from Pakistan or from the unliberated areas of Jammu and Kashmir. This concession will not, however, be admissible to a candidate who has already appeared at five previous examinations or in the case of those employed under the Engineer in Chief, Army Headquarters, at eight previous examinations. (iii) Upto a maximum of eight years if a candidate belongs to a scheduled caste or a scheduled tribe and is also a bonafide displaced person from Pakistan or from the unliberated areas of Jammu and Kashmir.

23 This concession will not, however, be admissible to a candidate who has already appeared at ten previous examinations or in the case of those employed under the Engineer in Chief, Army Headquarters at thirteen previous examination. (iv) Upto a maximum of 3 years if a candidate is a resident of the former French Settlements which have now become part of India and has been receiving his education through the medium of French. (v) Upto a maximum of 4 years if a candidate belongs to the Andaman and Nicobar Islands. N.B. Candidates who are admitted to the examination under the age concession mentioned in paragraphs 7 (a) and (b) above will not be eligible for appointment if, after submitting the application, they resign from service either before or after taking the examination. They will, however, continue to be eligible if they are retrenched from the service or post after submitting the application.

24 19) That from the very inception scope for having civilians as a part of Military Engineer Services was kept by the British Government itself. It is also to be noted that the Sappers and Miner officers could be swapped from time to time and brought in deputation in the Military Engineer Services while the officers of Military Engineer Services could be sent to Sappers and Miners. It was clearly also marked that as and when any Sapper and Miner officers are brought into the Military Engineer Services then during that period they would be paid at the Military Engineer Services rate and would be borne on the Military Engineer Services estimates. Similarly, when Military Engineer Services officers were sent to Sappers and Miners Wing, then they were to be paid at the Sappers and Miners rate and were to be borne on the Army estimates. Even in the Pre-Independence days there was absolute clarity of the system, which was to work with respect to the Military Engineer Services. There was no ambiguity and the rates as well as the designations which were to be maintained of the department in which they were sent and working. Copy of the Notification as well as true typed copy of the Notification dated is annexed herewith as Annexure P6.

25 20) That the Notification dated itself takes into account that there are existing total permanent and temporary civil and Military Personnel. It also recorded that the strength was more than what was provided for the new cadre. That it was specifically provided that the existing member of the Military officers is in excess of the numbers of the new cadre which contemplates conversion of a number of Military post into the Civil post. 21) That the Notification dated 17 th September, 1949, once again made it clear that the post held under Engineer in Chief of Army Headquarters had nothing to do with the Military Engineer Services as such other than for getting a relaxation in age for the purposes of giving the examination as was contemplated by the Notification itself. From this also it becomes clear that the posts held under the Engineer in Chief Army Headquarters were not deemed to be posts under the Military Engineer Services and further that the Engineer in Chief Army Headquarters was regarded as a separate and independent from Military Engineer Services.

26 22) That once again the Ministry of Defence made it clear that Military Engineer Services was to be regarded as independent of Engineer in Chief Army Headquarters. The personnel working under the Engineer in Chief Army Headquarters were certainly given certain benefits but the very fact that to enter into the Military Engineer Services only certain age relaxations were available with the personnel working under the Engineer in Chief Army Headquarters, which itself shows the distinction between the two services, the personnel working under Engineer in Chief Headquarters had to undergo the process of appointment by way of examination in MES. The independence of the two services were maintained at all times and it was neither the intention nor at any time statutory recognition was given to consider that the two services were one and the same and/or any person working under the Engineer in Chief Army Headquarters could be directly recruited or transferred without following any process or brought under the Military Engineer Services. 23) That these Regulations of 1959 are in operation till date and have neither been superseded nor withdrawn

27 as per the best of the information of the Petitioner Association. 24) That Military Engineer Services do not fall under the Army Act, 1950 and as such the Army Act, 1950 does not apply to the personnel employed in the Military Engineer Services. No benefits that are available to the personnel in the Army Act, 1950, are extended or are available to the personnel working under the Military Engineer Services. Military Engineer Services is an independent branch without having anything to do with the Army and/or with the Regulations and laws falling under the Army Act, This is an undisputed position that the Army Act, 1950 and the provisions, Rules and regulations made thereunder do not apply to the Military Engineer Services. 25) That the Military Engineer Services constitutes the largest construction agency of India and provides works in 450 stations across India. The annual work load handled by MES exceeds Rs.3,300 crores. MES is the premier engineer arm of the Ministry of Defence which provides services to the three Defence services and other related departments. MES has integral multi

28 disciplinary teams of architect, civilian, mechanical and electrical engineer, structural designers, quality surveyors and contract specialist for planning, designing and supervising work. MES also specializes in wide spectrum of civil works, ranging from conventional buildings and factories to sophisticated complex, laboratories, marine works, jetties, dockyards, workshops, wharves, slipper cells, airfield, roads etc. It also provides sophisticated infrastructural services like air conditioning, cold storage, water supplies, compressed air, sewer treatment plans, lifts, and cranes etc. for the Defence services. That MES comes under the Ministry of Defence directly. 26) That the provisions of MES from the very beginning were constituted as a separate wing without having anything to do with the Army and/or with the provisions of the Army Act, ) That it is also clear that the Rules governing MES from the very beginning have been independently formulated without any reference to the Army Act, 1950 as such. A look at the Notification dated would again clarify that the rules were

29 made directly under Article 309 of the Constitution of India without any reference to the Army Act, 1950 or otherwise. The repetitive mentioning of giving relaxation to the personnel under the Engineer in Chief Army Headquarters also clarifies the same position to the extent if anybody wanted to join the services of Military Engineer Services then the person required to come under had to give the competitive examination and could just not be moved/transfer/recruited merely because such person was a member of the Armed forces. 28) That soon after Independence the Indian Army and the Government forgot about its Notifications and started flouting them in any manner that suited them. The reasons of flouting the Notification are not clear but it became a rampant reality that the Notification was given a complete go by and various Army personnel were posted on tenure postings to the MES, which was not contemplated by the then Notification. 29) That as discontent grew in the MES the various actions of the Government were being questioned by the personnel of the MES over a period of time but of no avail.

30 30) That the Ministry of Defence on 31 st July, 1989 brought a Notification being SRO 19 E which was called the Military Engineer Services (Army Personnel) Regulations, Strangely this Notification was brought under the powers conferred by Section 192 of the Army Act, It was stated that not only the Notification was under the powers conferred by Section 192 of the Army Act, 1950 but also in partial supersession of the regulations for the MES. Copy of the said Notification as well as true typed copy of the Notification is annexed herewith as Annexure P7. 31) That the very opening statement of the Notification clarifies that the applicable rules continued to apply in respect of all recruitments and appointments and there was no change therein. At best what the Notification sought to do was to partially amend them thereby attempting to provide certain fixed posts for Army personnel and fixed posts for Civilian posts in the MES. It is to be noted that the recruitment procedure was not changed or amended or superseded in any manner whatsoever.

31 32) That having said that it is also important to point out that the Notification was purportedly brought under Section 192 of the Army Act, ) That section 192 of the Army Act, 1950 reads as under: 192 Power to make regulations The central government may make regulations for all or any of the purposes of this Act other than those specified in Section ) That clearly the scope of Section 192 is defined to be within the scope of the Army Act, The power to make regulations under the Army Act, 1950 is provided with respect to the matters which fall within the Army Act,1950 and not otherwise. 35) That it is submitted that in view of preceding paragraph of this petition and the chronology of events explained above, it can be safely said that MES does not fall under the Army Act, It is an admitted position till date that MES does not fall under the Army Act, It is also demonstratively shown herein before that the Engineer in Chief Army

32 Headquarter was not a part of MES from the very inception. All Notifications from 1949 clarify the same position. The Army Act, 1950 also applies to certain forces under the Central Government however, none of those forces categorize MES as a part of it. Given the structure and framework of MES as seen from its starting point since 1923 and thereafter in 1949 and all other Notifications supervening to the same, it can be seen that MES was never considered under the Army Act, ) That the admitted position is that MES was not a part of Army and the MES never came under the provisions of the Army Act, The Ministry of Defence has itself been very clear that MES is not a part of Army Act, 1950 and also for good reasons MES also includes civilians and MES civilians are not part of Army Act, 1950 and cannot be governed by Army Act, 1950 thus two things that emerge from the same are as under: (i) The Notification dated SRO 19-E could not have superseded the statutory regulations of the Military Engineer Services in any manner whatsoever.

33 (ii) The Notification was under the powers conferred by section 192 of the Army Act, 1950, which Notification could not itself have been published for the reasons that MES did not fall under the Army Act and no provisions of MES can be said to be amended by amendment or Notification under the Army Act, ) The Notification dated could not have been issued under section 192 of the Army Act, 1950, inasmuch as MES which was an independent body under the existing law prior to independence and therafter also remained as independent body regulated by competitive examinations by virtue of Notification dated and could not have been restructured by the Central Government by enacting the regulations under the Army Act, 1950 as changing the structure and framework of MES which was an independent body was not within the scope and ambit of Section 192 of the Army Act, 1950, as the changing of structure of MES is not the purpose either defined or remotely connected with the Army Act, Consequently Notification dated SRO 19-E is ultra vires being beyond the powers of Central Government and as such liable to be quashed. That any Notification under section 192 of the Army Act, 1950 can only be brought to in relation to the matters

34 covered by the Army Act and unless the Respondents are able even to show that any of the matters covered were falling under the Army Act, 1950, thus be considered to be ultra vires and illegal on the face of it. 38) That the matters did not end with the Notification being brought out as it also for the first time stated that the Engineer in Chief of the Army shall be the head of MES. 39) The Notifications of MES categorically provided that the personnel working under the Engineer in Chief Army headquarters were to be given certain regulations which itself clarified that MES Chief could never be the Engineer in Chief. The providing of Head for MES is clearly violation of all known principles of law, Fundamental Rights conferred under Article 16 and 21 of The Constitution of India and natural justice. At this point in time it is important to bring on record that the amendment of MES requires consent for DOPT and UPSC, none of which was obtained and merely by the government wanting to give superior hand to the Indian Army in respect of MES could not

35 have been done in such an illegal and unconstitutional manner. 40) That the Notification dated itself is illegal and every instance based on this Notification relates to posting and/or giving employment. The Notification made there under is not only prima facie but also ex facie void, illegal and unconstitutional being beyond the scope and power of Army Act, ) That be that as it may, it also needs to be pointed out at this stage that the Notification dated was only in partial supersession of the regulations of MES thus meaning thereby that other than providing for the number of posts, the MES regulations for appointments continued. Admittedly, even today, the Army Personnel do not follow the MES regulations for appointment and there is no regulation brought out till date prescribing the appointment procedure of Army personnel, the manner of paying the remuneration and the other terms of employment, which has been brought out to say how an Army personnel is to be appointed in MES and upon such appointment in what manner the remuneration is to be paid to him and in what manner is he to be treated. Continuing the discrimination against the civilian

36 working in MES and the Respondents have time and again brought in Army personnel without having to attend any examinations or without having to comply with any procedural requirement of recruitment by way of examination at post higher than their own post for tenure postings and have taken that without there being any rules, regulations whatsoever of this nature. 42) The Notification SRO 19 E dated does not in any manner provides how the appointments were to be made and in what manner they were to be treated. It merely provided for breakup of percentages. Without prejudice to the fact that the Notification itself is illegal, unconstitutional, invalid and cannot be allowed to continue, it is also pointed out that the regulations with respect to the recruitment of MES providing procedure and examinations have continued and the same continued till date without being disturbed in any manner whatsoever. It is specifically pointed out that the regulations of 1959 have not been withdrawn till date, thus the procedure of appointment continues for the Army Officials in the same manner as that of the civilians which need to be adhered to. Be that as it may as pointed out herein before as the regulations itself are illegal, thus they need to be struck down in totality.

37 43) That the Government of India Allocation of Business Rules 1961 categorically provide the manner of appointment and providing of rules and the procedure thereto. Admittedly, no such procedure has been followed till date with respect to the passing of the so called Notification dated 31 st July, 1989 being SRO 19- E. It is also pointed here that the Ministry of Defence itself has no powers under any law to amend Recruitment Policies of MES or of any other Department for that matter. In fact, it is to be pointed out that the Army Act, 1950 only deals with appointments and procedure with respect to the personnel drafted in Indian Army and does not deal with any rules or sections or provisions with respect to giving recruitment to any person in MES whatsoever. 44) That what is more shocking is that the Notification being SRO 19E issued under The Army Act, 1950, were passed without following the due process as provided under The Army Act, 1950 more specifically Section 193A of the Act. The mandate of section 193A of The Army Act, 1950 provides as under:

38 Rules and regulations to be laid before Parliament. Every rule and every regulation made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session, or the successive sessions aforesaid, both Houses agree in making any modification in the rule or regulation should not be made the rule or regulation on shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation Accordingly and admittedly, the mandate of Section 193A was never followed as the Notification being SRP 19E dated was never laid down before the Parliament. Without prejudice, it is stated that the due process of law in bringing the Notification being SRO 19E dated was never followed, therefore, the same is ultra vires the Army Act, 1950 and the Constitution of India. Thus non compliance of section 193A means no such law ever passed.

39 45) That the Government of India, Department of Personnel and Training (DOPT) once again on 28 th December, 2007 was constrained to issue a letter to all Ministries under the Government of India issuing ban on issue of unilateral guidelines / instructions concerning methods of recruitments and service conditions by Ministry in violation of established rules and procedures. This letter dated itself states that in case such Notification is to be brought out, the Government of India Transaction of Business Rules, 1961 must be adhered to specifically. Copy of the letter as well as true typed copy of the letter dated is annexed herewith as Annexure P8. 46) That the impugned Notification dated 31 st July, 1989 not only is illegal and ultra vires Article 309 of the Constitution of India but also interestingly seeks to supersede the Notifications dated brought under Article 309 of the Constitution of India. To put it clearly, the Notification under the Army Act, 1950 under Section 192 seeks to supersede the Notification of 1959 issued under the Article 309 of the Constitution of India. Not only such a situation enormous but also ridiculous where acting under Section 192 of the Army Act, 1950 a Notification can be passed or purported to be passed without consent

40 of DOPT and UPSC and the same is also in supersession of a Notification passed under the Constitution of India. Certainly, the legislature never intended to give powers to the Ministry of Defence to pass Notifications and thereby, override the Constitutional powers while purportedly acting under Section 192 of the Army Act, As stated herein before, the Notification at best could have been with respect to matters covered by Army Act, 1950 and cannot override matters / regulations passed under Article 309 of the Constitution of India. 47) That the impugned Notification if looked from any angle, needs to be declared as null and void and needs to be set aside. 48) That as pointed out herein before not only the impugned Notification dated superseded the Notification of 1959 passed under Article 309 of the Constitution of India but also practically took over the functioning of MES by altering the structure of MES as an organization and making it subservient to the Army when on the contrary, MES was and is the body functioning under Ministry of Defence and under the Government of India directly. The impugned

41 Notification dated under Army Act, 1950, in no manner could have provided and changed the head of MES by stating the same would be Engineer in Chief, Army Headquarters when the same was not done under the Notifications passed constitutionally by the Government of India. 49) That clearly the Ministry of Defence at the relevant point in time was acting on the directions of the Government of India for providing such illegal and unconstitutional matters and pass such illegal and unconstitutional resolutions. 50) That the injustice which was continuing was made grave and under the wings of an illegal resolution, as the Government and the Army continued to perpetuate the illegality and also continued to discriminate the civilians working in the MES. To make the matters worse, the Government of India came out with a Notification dated 9 th July, 1991 stating that they were providing rules, regulating the method of recruitment with respect to Indian Defence Service of Engineers (which was earlier know as MES class I officers) and the same was subject to the regulations notified in SRO 19E dated 31 st July, The Notification being

42 SRO 4E dated 19 th July, 1991 being subject to the Notification dated 31 st July, 1989 would show that the Notification dated 9 th July, 1991 was itself illegal to the extent with respect to the holding of permanent IDSE posts by Army Personnel on tenure basis into the MES vide Notification SRO 19-E dated What is more important is that the Government of India by then had forgotten about its own policy which has come out at various points in time and stated that the Notification dated 9 th July, 1991 would repeal various rules and regulations namely the following: 17. REPEAL : - The following rules are hereby repealed namely :- (1) the Military Engineer Services, Class I (Recruitment, Promotion and Seniority) Rules published vide Notification No.1581, dated the 17 th September, 1949 in their application to the post of Assistant Executive Engineer. (2) the Military Engineer Services (Additional Chief Engineer), Recruitment Rules, 1985; (3) the Military Engineer Services (Superintending Engineer) Recruitment Rules, 1985;

43 (4) the Military Engineer Services (Executive Engineer) Recruitment Rules, 1986; and (5) the Military Engineer Services (Chief Engineer) Recruitment Rules, Copy of the Notification dated is annexed herewith as Annexure P9. 51) That it is further important to point out here that after the Notification dated the MES class I Engineer officers were formulated as a new cadre which is known as Indian Defence Service of Engineers. Further it is imperative to state here that since the coming of notification dated the Petitioner Association gave representations to the Respondents, so that an association be formed. Subsequently, the Petitioner Association got recommendation on by Government of India. 52) That up till the issuance of the Notification S.R.O.4E dated , all the posts in MES were to be held by MES Personnel, however, with the issuance of the said Notification, there was a complete alteration of holding of posts. The following chart would clarify

44 which was annexed as Schedule I with the said Notification: Grade and Scale of Pay (for civilian Officers) Additional Director General (Rs ) Name of the Post Additional Director General Total Number of Post 4 1 Number of Posts to be held by civilian officers Chief Engineer (Rs ) Chief Engineer Additional Chief Engineer (Rs.4500 Rs.5700 plus Rs.400 as special pay) Superintending Engineer* (Selection Grade) (Rs ) Superintending Engineer (Ordinary Grade) (Rs ) Executive Engineer (Rs ) Assistant Executive Engineer (Rs ) Additional Chief Engineer Superintending Engineer Superintending Engineer Executive Engineer Assistant Executive Engineer * *

45 15% of the Senior duty posts (Executive Engineer and above) subject to the condition that the number shall not exceed the total number of posts sanctioned in the Junior Administrative Grade post of Superintending Engineer). 53) The above schedule-i once again put it beyond doubt that the Notification dated , though purportedly passed under the Army Act, 1950, however, proceeded to amend the terms of employment of Engineering Services which are not covered under ambit of Army Act, 1950, which itself would show that the said Notification is liable to be set aside. 54) That what is more shocking is that the Notification dated had already come to an end being non statutory after the Notification of 1959 and the said Notification dated was neither repealed nor superseded by the Government of India, as it seems that it had closed its eye to its previously passed Notification in an hurry to do injustice and to continue to perpetuate illegalities with respect to the MES. What is more important is that for the first time the Notification dated stated that the 1991 Notification would not apply to officers appointed on

46 tenure basis in accordance with the provisions of Military Engineer Services (Army Personnel) Regulations, 1989, who are governed by the Army Act, It is important to point out over here that the appointment on tenure basis was never a part of the 1989 Notification and was not also considered a part of 1959 Notification. 55) That if the Notification SRO 19E dated is allowed to stand it would mean that the MES is partially governed under the Army Act, 1950 and partially governed under the Government of India directly. The ambiguity would continue. This would not end the matter here, but the illegality was further followed by another Notification dated 29 th June, 2004, which was stated to be in supersession of the Notification of Copy of the Notification as well as true typed copy of the Notification dated is annexed herewith as Annexure P10. 56) That before going into the Notification of 2004 it is important to point out that in the year 2002 the question was put in the Lok Sabha being question No.5741 relating to structure of MES as an Organisation. The question put forth was by one Shri

47 Ram Mohan Gadde to the Minister of Defence asking him the reasons for not handing over MES to Civilian Man Power and whether Army Headquarter had assessed in 1998 the cost of employment of combatants being double of that of civilian counter parts. In answer thereto interestingly, the Ministry replied that orders for gradual civilianization of Military Engineer Services in conformity with the recommendations made in para and of the 5 th Central Pay Commission have been issued. It was further stated that no decision for withdrawal of service personnel from Military Engineer Services had been taken: 57) That the question and the answer are as under: LOK SABHA UNSTARRED QUESTION No.5741 TO BE ANSWERED ON THE 2 ND MAY, 2002 FUNCTIONING OF MES SHRI RAM MOHAN GADDE Will the Minister of Defence be pleased to state: (a) the reasons for not handing over of MES to the existing Civilian manpower as recommended in para

48 50.103, of Vth Central Pay Commission Report; and (b) whether Army Headquarters had assessed in 1998 that cost of employment of combatant is almost twice of its civilian counterpart; and (c) if so, the reasons for not accepting the recommendation made in para of Vth Central Pay Commission regarding withdrawal of Service Personnel from MES? ANSWER MINISTER OF DEFENCE SHRI GEORGE FERNANDES (a) to (c) The Military Engineering Service is an Inter- Service Organization having a judicious mix of civil and Army Personnel to avail expertise of both Army and civilian nature of functions. Under the Government Notification issued under the Army Act, the Engineer-in- Chief is the head of the Military Engineering Service. Orders for gradual civilianization of Military Engineering Service in conformity with the recommendation made in para and of the Central Pay Commission have been issued. No decision for withdrawal of Service personnel from Military Engineering service has been take.

49 Interestingly, the import of the answer would be that the orders for gradual civilianization were issued thereby meaning that the Army personnel from MES would over a period of time be reduced gradually and in the alternative one would safely presume that new personnel would not be brought in from the Army backgrounds into MES as it was further clarified that the decision to withdrawal of Army personnel from MES was not taken but the gradual civilianization of MES was done. The reference was made to paragraph , and of the 5 th Central Pay Commission which read as under: We find that the Armed Forces have deployed their manpower in several areas not related to their core functions. If the Armed forces withdraw from such areas, the manpower released can be utilized to meet the reported shortages of officers and men in the three services. Our specific suggestions in this regard are as under: Rashtriya Rifles have been raised by drawing on the regular Cadre of the Army to perform internal security duties. The Armed Forces have represented that their deployment on internal security duties should be minimized. We also feel

50 that the Army should legitimately be kept away from internal security chores. We, therefore, suggest that Rashtriya Rifles should be disbanded and the engaged manpower should revert to the regular cadre of the Army. Similarly, the Army should be completely withdrawn from the Assam Rifles. The Armed Forces need not divert their manpower to organizations like the Survey of India, Directorate General of Quality Assurance, Defence Research and Development Organization, Military Engineering Service, Border Roads Organization etc. There should be a gradual civilianization of all these organizations and the officers can be used for core functions. The Air Force is wasting its manpower on accounts jobs. Such jobs can be fully handled by civilians. The Air Force manpower should be withdrawn from such functions. The Service Headquarters are holding officers in excess of sanctioned strength by drawing personnel from the field. These can be easily spared for field duties and their place taken by

51 Civilians. We recommend that minimum required manpower be kept at the service HQ, and the surplus manpower released immediately for field duties. There are a number of jobs in the Canteen Stores Department, Army Service Corps, Resettlement Wing, etc. which can be held by civilians. We suggest that these organizations should be progressively civilianized It is accordingly recommended that the existing arrangement of a civilian ADG reporting to a military Director/ Major General be replaced with a civilian Director general in the pay scale of Rs and a military Joint Director General in the Pay Scale of Rs The trend world over is progressive civilianization of military engineering organizations. It is desirable that we also follow this pattern. We, therefore, recommend that complete civilization of Military engineering organization be set as a long-term objective.

52 Copy of the Lok Sabha question as well as true typed copy is annexed herewith as Annexure P11. 58) That it is important to point out that para categorically recognizes the world over trend in Military Engineer organizations that they are being progressively civilianized converted into civilians held organizations. It is to be pointed out that the MES was an organization created by the Britishers during their regime wherein both civilians and British personnel were there. Necessarily the organization was dominated by Britishers as they did not want to give control to the Indians be that civilians or the Army personnel and their organizations. However, what is also important to point out that today in UK (United Kingdom) what exists is a Defence infrastructure organization which is a complete civilian branch equivalent to MES as against the Corps of Royal Engineers which is a branch of sappers with the British Army and is comprising of multi skilled soldiers, combatant engineers and tradesman working alongside all parts of the Army. The two wings are independently dealing and continuing to work. The above said paragraphs of 5 th Central pay commission

53 as well as true typed copy are annexed herewith as Annexure P12. 59) That what is also important to point out here that the Notification being SRO 95 dated was again issued in supersession of Indian Defence Service of Engineer (Recruitment and conditions of Service) rules, 1991 (SRO 4E dated ) and the total number of posts existing in MES was again not reviewed by the Respondents. The posts held by IDSE officers were only reviewed, thus the Respondent No. 1 cleverly left the posts which were held by Army personnel to defeat the rights of the IDSE officers. 60) That it seems that the Government of India wishes that the role of the Britishers be played by the Indian Army for the reasons best known to them in order to subjugate the Indian civilian populations working in MES. 61) That it is unreasonable, unfair and unjust to the IDSE officers as these officers do not reach to the topmost level and are suppressed to the post of ADG level and are given insignificant posts and are equated to Army personnel one rank below to the rank of IDSE officers, senior IDSE officers are in a way being forced