Rule restricting availing of services of outstation employees as Defence Assistants is not violative of Articles 14, 19 and 21.

(W.P. No.38644 of 2001, filed under Article 226 of the Constitution of India for the issuance of a writ of declaration declaring Rule 36 sub-rule (8)(a) of the Central Industrial Security Force Rules, 2001, as ultra vires the Constitution of India, illegal and void so far as the petitioner is concerned.)

Common Judgment: P. Sathasivam, J.

The writ petitioners have been employed as Constables and in some other capacities in the Central Industrial Security Force (CISF), and generally they are posted/deputed in various Public Sector Undertakings owned by the Government of India. They challenge Rule-36 sub-Rule (8)(a) of the Central Industrial Security Force Rules, 2001, (hereinafter referred to as Rules). Since the issue raised in all these Writ Petitions is one and the same, they are being disposed of by the following Common Order.

2. The impugned Rule viz., Rule 36(8)(a), is extracted below:-

"36. Procedure for imposing major penalties.--

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(8) (a) The enrolled member of the Force so charged may be permitted by the inquiring authority to present his case with the assistance of any other member of the Force posted at the place of inquiry. He will give three choices for his defence assistance and the controlling officer will depute any one of the three indicated by him."

The above mentioned Rule prohibits outstation members of the Force to participate and render defence assistance to persons facing an enquiry.

3. Before going into the aspect regarding the validity or otherwise of the impugned rule and as to whether the same is ultra vires the Constitutional provisions, it is useful to refer to the principles laid down by the Apex court, in Supreme Court Employees' Welfare Association vs. Union of India ((1989) 4 SCC 187), to decide a case where the validity of a subordinate legislation is questioned. We here-under extract the relevant portions,

"100. Where the validity of a subordinate legislation (whether made directly under the Constitution or a statute) is in question, the court has to consider the nature, objects and scheme of the instrument as a whole, and, on the basis of that examination, it has to consider what exactly was the area over which, and the purpose for which, power has been delegated by the governing law.

101. Rules are liable to be declared invalid if they are manifestly unjust or oppressive or outrageous or directed to an unauthorised end or violative of the general principles of the law of the land or so vague that it cannot be predicted with certainty as to what is prohibited by them or so unreasonable that they cannot be attributed to the power delegated or otherwise disclose bad faith. ...

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107. The true position thus appears to be that, just as in the case of an administrative action, so also in the case of subordinate legislation (whether made directly under the Constitution or a statute), its validity is open to the question if it is ultra vires the Constitution or the governing Act or repugnant to the general principles of the laws of the land or it is so arbitrary or unreasonable that no fair minded authority could ever have made it."

4. Now, let us proceed further to decide the issue involved here in the light of the principles laid down in the above case law.

5. Learned Counsel for the petitioners submitted that there is no restriction imposed by Section 11 of the Public Servants (Inquiries) Act, 1850, to choose and to take a defence assistant. It was pointed out that sub-Rule(8)(a) of Rule 14 CCS (CCA) Rules, 1965, allows persons facing enquiry to take a defence assistant from any other station and that Rule-77 relating to other conditions of service states that the members of the Force shall, in respect of all matters regarding conditions of service, for which no provision or insufficient provisions have been made in these Rules, be governed by the Rules and orders for the time being applicable to officers holding corresponding posts in the Central Government i