Judgment

BHAGWATI, J. :- These writ petitions raise a short but interesting question of law relating to the intepretation 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 1960 making inter alia Sec. 21 of the Army Act. 1950 and Chapter IV of the Army Rules 1954, applicable to the General Reserve Engineering Force are ultra vires 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 importance since it affects the fundamental rights of a large number of persons belonging 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.

2. 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 roads for effective movement and deployment of Armed Force. This was rendered all the more necessary 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 inciting some sections of the people to carry on a campaign for secession. The Government of India, therefore, with a view to ensuring co-ordination and expeditious execution of projects designed to improve existing roads and construct new roads in the border areas in order to improve the defence preparedness of the country, created several posts in the Directorate General of Works, Army Headquarters 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 Works, Army Headequarters; vide letter dated 18th April 1960 addressed by the Under Secretary to the Government of India, Ministry of Defence 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 Headquarters. 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 Headquarters but should be under the Border Roads Development Board set up by the Government of India as a separate self contained Authority under the Chairmanship 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 Prime Minister. The budget of the Border Roads Development Board formed part of the budget of the Ministry of Shipping and Transport but the financial control was vested in the Ministry of Finance (Defence). The Government of India by a letter dated 16th June 1960 addressed by 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 Engineering Force for the construction of roads in the border areas and such other tasks as may be entrusted to it by the Border Roads Development Board." It was directed that the General Reserve Engineering Force will be "under the overall command of the Director General Border Roads under whom will be Regional Chief Engineers/Independent Deputy Chief Engineers who will exercise command