Fish

Friday, August 6, 2010

Annex to OM 0.5(10)/2007- RS-Com.I dt 23 Nov 2007 //copy//
Study Note On
Border Roads Organisation
The Committee met at 4.00 p.m on 4th June 2007 at Gangtok in Sikkim to discuss \\ith the representatives of the Mlo Defence and the Border Roads Organisation, the Border Roads Engineering Service Recruitment Rules,1988 and Border Roads Medical Officer (Group-A) Recruitment Rules, 2003. The following were present.
1. Shri Harcharanjit Singh Secretary, BRDB
2. Lt Gen K.S Rao, PVSM, SC, S.M DGBR
3. Brig M.S.Pillai
Chief Engineer Project Dantak
4. Brig K.T.Gajaria DDG (Pers)
5. Shri George P.Cherian Senior Engineer
6. Shri S.Suresh Kumar Deputy Director HQ DGBR

At the outset, the D.G Border Roads Organisation, Lt General K.S. Rao gave a brief presentation on the Border Organisation, its work culture, ethos and feats achieved by it. In this regard Shri Rao stated that Border Roads Organisation has been carrying out its projects/construction work successfully not only at national but also at international leyel and had eamed reputation for that. One of the main feature of Border Roads Organisation's working was that instead of completing projects through contracts, it relied solely on its internal resources be it men or machinery. Only daily wage/Casual Labour are hired from outside from amongst local people for assistance.
The Committee enquired whether there was a compendium of rules/regulations governing Border Roads Organisation. The Secretary BRDB stated that rules were framed from time to time in this regard but no comprehensive legislation was in place. The Committee obsen'ed that a comprehensive legislation \,,'as due to be framed by the Ministry of Defence under articles 309 of the constitution but only ad-hocism existed in this respect. Long time has lapsed since then and due attention was not paid by the ministry towards the need of the Organisation to strengthen it with the full fledged legislation particularly where the matter was connected with defence of the country. The Committee desired the Ministry to come out with proper subordinate legislation for Border Roads Organisation which had earned reputation for its work both at national and international level and had been working strategically as well.
The Committee next desired to know whether rules/regulation concerning Border Roads Organisation had been laid on the table of both the houses of Parliament and on what date. The Secn~tall' BRDB was not SUl"e about it.
The Committee noted that the record management of the ministry was not up to date and directed that the Ministry should inform the Committee about laying of rules with regard to Border Roads Organisation at the earliest. The Committee also stated that Ministry had been asked a number of times to put up rules of the Defence Ministry on their website but no initiative was taken in this regard. The Committee suggested that prompt action may be taken to put up the rules of the Ministry on their website.
The Committee further enquired about the service conditions in Border Roads Organisation like promotion/deputation/leavelhousing facilities, cadre review etc.
The Committees, noted that employees of GREF were subject to Army Act, 1950 (as applicable to Army personnel/officers) but they were neither considered at par with Alomy nOlO as a civilian. The pay scale sanctioned in 5th CPC has not been allowed to Diploma Engineers of BRO. Up to 4th Central Pay Commission, there was no difference in pay scales of Diploma Engineers of BRO with respect to other similar Central Government Department like CPWD, Military Engineering Services and Railways. But, in the BRO, at the time of implementation of 5th Pay Commission, Diploma Engineers were put in lower scale. whereas officers of BRO and subordinates of other category were enjoying the same pay scales as recommended by 5th CPC and accepted by all Central Government Departments.

The Committee expressed the view that members of GREF were part and par"cel of the Armed Forces and they should not be discriminated against Extra Regimental Employment officer"s/staff since they were wodIt has also come to the notice of the Committee that vacancies earmarked for GREF employees are filled by Army personnel. Army personnel are getting regular promotions whereas GREF subordinates are deprived of regular promotions.
The Committee was informed that the existing policies regarding promotion in BRO are in consonance with other engineering department like CPWD, MES etc. While civil Engineering Cadre officers can rise upto the post of Additional Director General. the Electrical & Mechanical Engineering officers can rise upto the posts of Chief Engineer. Cadre Review of various cadres was being undertaken for enhancing promotional avenues.
GREF units ar"e deployed in extr"eme bor"der, difficult ten"ain, r"emote and hazardous climatic conditions wher"e per"Sonnel are dependent on the local civil hospital, primar1' health clinic and GREF/MI room. Most of the hospitals located in these areas have insufficient medical staff, medicine, specialized treatment and other facilities and many GREF per"Sonnel have died due to lack of these facilities.
Therefore, the Committee suggested that GREF hospital with complete facilities may be established at least one to each Task Force Headquarters level so that better medical facilities may be ensured to the members of force as in the case of CRPF, BSF, ITBP. ARMY, AIR Force, etc.
Army personnel are entitled for insurgency allowances when they are posted in insurgency affected areas, whereas the GREF persons are not authorized for the allowances even when both uniformed forces are working together at the same place.
In case of GREF personnel availing regimental Quarter facility, his HRA is being recovered from his pay & allowances by PAO officer whereas, Army personnel living with family at unit regimental quarter are also availing/enjoying quarter facility and also claiming cash in lieu of Quarter.
The Committee suggested that grievances of GREF personnel may be attended to properly by the Ministry of Defence and their service conditions may be r"estmctur"ed/r"evised so as to alienate any feeling of discl"imination and step mothel"ly tr"eatment from their" minds and give them moml boost.

Energy Rules,
17-08-09
(2 hrs 40 minutes)
28-10-09 (2 hrs)
(iv) Supersession of Cigarette and other tobacco products (Packaging and Labeling) Rules, 2006 by Packaging and Labeling Rules, 2008
(v) Oral Evidence of the Secretary, Ministry of Petroleum and Natural Gas, Executive Director, Oil Safety Directorate, Director-General, Directorate of Mines Safety and CMDs of ONGC and Oil regarding the Petroleum and Gas (Safety 111 Offshore Operations) Rules, 2008.
(i) Oral evidence of the Additional Secretary, Ministry of Defence, Director-General, Border Roads Organisation and representatives of Department of Personnel and Training regarding the Border Roads Engineering's Service Group . A' (Amendment) Rules, 1988.
(ii) Oral evidence of the Secretary, Ministry of Labour and Employment regarding the
Building and Other
Construction Workers
(Regulation of Employment and Conditions of Service) Central Rules, 1998.
(i) Oral evidence of the Secretary, Ministry of External Affairs regarding the Haj Committee Rules, 2002.
(ii) Consideration of:
(a) The Lakshadweep Building Development Board (Supply of Building Materials) Bye-Laws, 2003.
(b) The Electricity Rules, 2005. (c) The Electrical Wires,
Cables, Appliances and
Protection Devices and
Accessories (Quality Control) Order, 2005.
(d) The Regulation of Quality of Service of Basic and Cellular Mobile Telephone Services, 2005 and
(e) The Atomic
(Radiation Protection) 2004.
The Committee agreed to drop the Cigarette and other tobacco products (Packaging and Labeling) Rules, 2006 and take up fOT considcration the Packaging and Labeling Rules, 2008
The Committee were apprised about the need for bringing these Rules into existence and problems faced in implementing them. A questionnaire was also forwarded to the Ministry for detailed replies.
The Committee noted that there were differences in the facilities enjoyed by General Reserve Engineering Force and Army personnel employed in Border Roads Organisation and the Supreme Court judgment in this connection was not being followed in letter and spirit.
The Committee was informed that while the concerned rules were framed by the Central Government the implementation was done by the respective State governments. The Committee felt tJlat tJle implementation of the rules was filf from sati sfactory.
The Committee requested the Ministry to furnish the updated status in the matter of bringing in a new legislation of the subject and also furnish their replies to the questionnaire and representation of the people's representatives.
The Committee adopted the following memoranda and decided to take up on priority basis the Electricity Rules, 2005, The Regulation of Quality of Service of Basic and Cellular Mobile Telephone Services, 2005 and the Atomic Energy (Radiation Protection) Rules, 2004.

L Karnia I-\hup, Joint Oil' (Adinn) (Retd) Working President

Ex-GR.EF Welfare Association

'. Headquarters Ttlaumpuivillg, Aizawl Mizoi'am

PiN: 796 O'j 7

Colonel Gurgopal Singh Dln:ctor (Org}

I-It) DGBI\, Seerna Sadal~ Bl1awan, F~ing I~oad DI::II·li Cantt, New Delhi· to

:::; III ). Ql~J:>i\f~ I TY B ET\~~!~J';~ .. _~; R~L A~!L~J3.1YD'-J~~g~ 0 N t\L~ L I r'-!..I!::!.!; I R l~l~~~A N D ~1: LOVIJ..I}. NeE ~N!l. 0 JUfJl.f:~[:' ~sFIT~

I . I have seen the lettet No I 836:3/T8,ClDGI3FV1201T&C dated 05 July 2010

, ollqinated uncler the signatory and <;lulhority of you from the site of BRO.

2 . On goin9 through the above, letler I felt that you have misconceived the C"~partment 01 General f..(eserve EnDineer Force as well as various judgments and 6rders r\JI;lted to GR[F and its meillbers In this connection I may sought your attention to the Idluwin9 Important points>-

(~l) In <,1 land mClrl~ judurnent c1aled () May ·1983 of 5 judge constitution bench of Hon 'bfe Suprenw C'ourl, delivered under ~!ticle 32 J)f...!!!e Constitution of !!lclia .in the n:talli;r. of R. Viswan and aI's Versus Union of India and Ors reported in A!H 1983 SC 658, tlle General Reserve Enqineer Force, to

. )}Yh!s;.h the AJ-rnX ... .t\ct )uJJ!.. Amlv_..!..;,;j-;;~!..e made aPJJ/icable, has beer:;

decl<:lrecl to be an ~_!1teqraLI?£lJ:~ of l\rmed Forces of Union of India and t11e members of GE_I;,;E.~ha?.J2Qen_t{!rm~_q as I!!embers of Armed Forcesand thus the contents ()f above jl.lli~lmenl and order are guaranteed and protected under Article 32 of the Com,titution 01 India

(b) In this connection I woulcl like to refer J-\rticle 32 of the Constitution of India, wherein the citizen of India 11ClS the nght to move the Supreme Court by

_ appropriate proc\:~(xlin~ls for' the enforcement of the rights conferred by tllis Article is guaral1teE;c1 and tile right guaranteed by this article shall not be suspended except as otllerwise provided for tlY the constitution [Refer Article 32(1)&(4)]

(e) Sinc(! eeneral r~eser\le E nqineer Force, to which Army Act and ArnlY F~ules are rnacle applical:I/e, has been declared to be integral part of Armee] Force and 'llembers cd C;I~L::::F are rilelllbr::rs of Armed Forces as declared by the HO!"i'lJle Suprernc Court pf Indip in tile above quoted .judg·lTlent dated (3111 May 19B3, the term "Covernrnent servant inclUding every civiiian Governmenl servant in t1-le Defence services" cannot be madel does not applicable to members of "(Jr~E F" in the li~Jht oi Applica1ion. of CCS (eCA) Hules, 1965 (I~eft:lr I~ule 3 CI) (e) tlnd :3 (1 t\) of CCS (CC&A) I~ules, 1965), due to tile notificiltion (1f specie,1 plOvi~i()n publi:31-1ecl through Statutory Routine Order 329 arid 330 both, c1alcd 23111 September 1963 dnd Statutory I~outine Orcler 3'1

A·

elated 25 Jell:\ '19n~) \/vhereby.Army Act C!nlj Army Rules are rnade applicable to


members of GREF on permanent basis. The Extract of Rule 3 (1) (e) and Rule 3 (1A) are quoted below for ready reference, please:-

"Quote. (1) These rules shaWapply to every Government servant inciuding every civilian Government servant in the Defence Services, but Srlaii not apply to- (a) to (d) xxxxxxxx

(e) any person for whom special provision is made, in respect of matters covered by these ruies, by or under.any law for the .time beina in force or by or under anvagreement entered into by Or with the Previous approval of the President before or after the commencement of these rules, in regard to matterscovered'bv such special provisions.

. ..

(2) to (3) XXXXXX

(3-A) Notwithstanding anything contained in these rules, where any civilian Government servant in the Defence Services is temporarily made subject to Army Act, 1950 (46 of 1950), or the Navy Act, 1957(62 of 1957), or the Air Force Act, 1950 (45 of 1950),.these rules shall continue to apply tosuch ciVilian government servant in the Defence services and, for the purpose of discipline, he shall be dealt with under these rules unless the appropriate authority, for reason~ to be recqrded in writing, is of the opinion that sterner action is called for and directs that he be dealt with under the Act he is subject to.

(d) Thus considering the fact that the GREF personnel to whom special provisions are made applicable vide SRO 329 & 330 Qoth dated 23rd Sep 1960 and SRO 37 dated 25 Jan 1985 in respect of the matters covered by CCS (CC&A) Rules, 1965 and CCS (Conduct) rules on permanent basis prior to issue gf CCS (CC&A) Rules, 1965, the directly recruited members of GREF cannot be Classified.Llnder CCS (CCA) Rules, 1965 or they are not covered by the CCS (CCA) Rules, 1965 as per the application Clause i.e. Rule 3 (1) (e) of the said rule and thus, by virtue, the protection as available under ArtiCle 311 is not available to members ofGREF as the~ are members of Armed Forces of union of India.But unfortunately, the 61 CPC has mentioned in their report at Para 7.39.6 that the members of GREF are governed by CCS rul(Ss and thus the protection under Article 311 of the constitution is available being employed in civil capacities under the Government which is not correct .in view of the application of CCS (CCA)

. Rules, 1965 (Under Rule 3(1) (e) & (3-A) of.the said rule).

(e) To substantiate above argument I may take your attention to the decision of .

Hon'ble Supreme Court of India in the matter of Union of India & Anr Vs Smt Vidyawati (SLP (Civil)No. 8096 of 1995) wherein the Apex court ruled that the members of the GREF cannot move the Central Administrative Tribunal in view of the decision of the Hon'ble Supreme Court in R. Viswan & Ors Vs Union of India & Ors (AIR 1983 SC 658).

(f) After the pronouncement of GREF as integral part of Armed Forces of Union of India and members of GREF as members of Armed Forces by the Hon'ble Supreme Court in the matter of R. Viswan & Ors VS UOI & Ors as reported in AIR 1983 SC 658, .the President of India through MOST, BRDB.letter No. F .8.1 (1 )/64-Estt/70463/ DGBR/E2A (T&C) dated 14th Aug 1985 issued an executive order under Para 2 of the above said letter declaring General Reserve Engl'heer Force to be an integral part of Armed Forces of India in consultation with Ministry of Law and Judge Advocate General, Army HQrs.


(g) Thus, by virtue, the contents of Para 27 of BR Regulation, wherein it is mentioned that "Except where specifically providt?d otherwise, the personnel of the General Reserve Engineer Force are governed, for purposes of pay, 'allowances inciL/ding travehng allowance, [eave, injury' benefits and gratuity and assessment and recovery of rent and allied charges from persons in occupation of Governrnent accommodation lJy the rules applicable to non­industrial Civilians of Defence Service"became null and void because of the issue, of Presidential order declaring GREF is an integral part of Armed Force of India, in the sense and sprit of the contents of Para 26 of BR ,Regulation wherein it has been mentioned that "In those cases, the provisions of the basic rules and orders as amended .from time to time, and the Government decisions and audit instructions there under hold good",

(h) As the Judgment dated 6th May 1 ~83 as quoted C3;bove was delivered under Article 32 of the constitution of India, it is mandatory on the part of Government of India to adhere the suggestive dir,ectives issued by the Hon'ble Supreme Court in it as under, but till date even after giving several suggestion to the Government by the Parliament Standing Committee and other statutory bodies, our department has not initiated such a case with Government for Cabinet approval due to which the disparities are still persists :-

"But we may observe that in case it is found that the terms and conditions of service of officers and men in GREF directly recruited or taken on deputation are in any way less favourable than those of Army personnel appointed to the same or equivalent posts in GREF, the Central Goverrment might well consider the advisability of taking steps for ensuring that the disparity, if any, between the terllls and conditions of service, such as salary, allowance, rations etc. of Army personnel posted in GREF units and other officers and men in GREF is removed"

(i) It will not be out of place to quote here that the Directorate GBR vide letter No, 17001/P/DGBR/17/E1E dated 19 Sep 2006 issued a clarification with regard to applicability of Army Orders,Army Instructions, Supplementary Army Orders, Supplementary Army Instruction and Regulations for the Army 1987 (Revised DSR) to GREF. As per this clarification it is mentioned that JAG has given their legal opinion vide Note No 24 dated 23 Aug 2006, received under ADG (D&V), AG's Branch, Army HQ DO letter No. 94451/AGIDV-1 (P) dated 31 Aug 2006 addressed to th~ DGBR and as per the above note the JAG has opined that the above mentioned publications will squarely relate to GREF personnel except where their text expressly makes a mention t6 the contrary,

3, While considering my above law points, the following substantial questions are

also arising which needs elaboration / c1arification:-

(a) Whether application of Army Act and Army Rules through SRO 329 & 330 both dated 23rd Sep 1960 and SRO 37 dated 25 Jan 1985 will mean making a special provision within the meaning of Rule 3 (1) (e) of the CCS (CC&A) Rules, 1965 or not? If so, whether the non-statutory provision as contained in Para 27 and 32 of BR Regulation are good in law?


If SRO 329 and 330 are only additional provisions without entering into the fabric of CCS (CC&A) Rules, 1965, whether this has been incorporated in the ccS (CCA ) Rules, 1965 or SRO 329, 330 both dated 23rd Sep 1960

and SRO 37 dated 25 Jan>1 985 by any notification / Statutory Orders I by the Parliament through any Act / Rules?

(c) In case, SRO· 329 and 330 b.oth dated 23rd Sep 1960 exclude the applicability of CCS (CC&A) Rules, 1965 under Rule 3 (1) (e) of the said rule and the applicability of SRO 329 and 330 are absolute, the very basic rule for appointment namely Section 10 of Army Act 1950 still stand excluded. (Even in SRO 37 dated 25 Jan 1985 only Section 12 of AA 1950, regarding ineligibility of female has been made applicable to GREF). Other provisions excluded by SRO 329 remained excluded the applicability of CCS (CC&A) Rules, 1965 or not?

4. As you are well aware that the directly recruited members' of GREF and Armed Force personnel of three services· are working shoulder to shoulder in the GREF units and· while holding identical posts / appointment in accordance with authorized establishment as sanctioned by the Govt, from time to time, they are exercising similar functions and the powers, duties and responsibilities of the posts held by them. As such, I do not think, there is any justification to treat directly recruited members of GREF differentially in the matter of pay merely because Army personnel & GREF Personnel belong to different departments. In this connection I may call your attention to Para 6 of the judgment of Hon'ble Supreme Court in the matter of Randhir Singh Vs UOI and Ors reported in AI R 1982 SC 879 wherein the Hon'ble apex Court has ruled that "It is true that equation of posts and equation of pay are matters primarily for the executive Government and expert bodies like the Pay Commission and not for Courts but where all things are equal, that is, where all relevant considerations are the same, persons holding identital posts may not be treated differentially in the matter of their pay merely because they belong to different departments. Of course, if officers of the same rank perform dissimilar functions and the powers, duties and responsibilities of the posts held by them vary, such officers may not be heard to complain of dissimilar pay merely because the posts are of the same rank and the nomenclature is the same".

5. I may also take your kind ~ttention to the judgment and order of the Division bench of Hon'ble High Court of Punjab and Hariyana in the matter of Smt Bachan Kaur Vs UOI & Ors wherein it is held that "In P. Chandra Mouly's Case (Supra) also the Hon'ble Supreme Court relying upon R. Viswan's case observed that the position was now fully settled that members of GREF wer"e part and parcel of the Armed Forces as the provisions of the Army Act were applicable to them. To our mind, the observation of Singhvi, J. that the judgement in R. Viswan's case would have to be read oniy in the context of the applicability of Article 33 of the constitution to -the members of the GREF is to ourmihd withoiJt basis in the light of the two judgments of the Hon'ble Supreme Court'. We, therefore, held-that members of the G.R.E.F are members of the Armed Forces for the purpose of laying claim to pension and other retrial benefits and should a dispute arise this court has the jurisdiction to entertain and dee/de the same in exercise of its jurisdiction under Art 226 of the constitution. We are, therefore, of the opinion that Datta's case (Supra) has not been correctly decided_and is accordingly over-ruled" (Copy of the judgment is attached for ready reference)


r- 6 Being conSidered a~ov~ facts and r:es positions in mind it is abundantly clear

that the pay structure presently made applicable to members of GREF by the 4111, 5th and 6th Pay Commission are not within the ambit of Article '14 and 16 of the Constitution of India and we should take up the case "to Government through Cabinet Note by quoting above facts and rules along with the judgments quoted above for immediate ie,vision and to give justice to directly recruited members of GREF,

7, While doing so, your Headquarters may also consider the following in the interest of justice / to eliminate the anomaly and to enforce the directions / observations / orders of Apex Courts / Supreme Forums of our country:-

(a) That the rank structure of GREF should be named equivalent to that of Armed Forces as members of GREF are members of Armed Forces as at present there is no name to the rank structure in GREF through all members of GREF are required to wear with distinctive badges of ranks and rank structure equivalent to that of Army along with uniform This has caused humiliation as well as confusion in treating our self at par with Armed forces by other departments for various purposes,

(b) As the members of GREF are well deserve to get pay and allowance,

pension @70 %, leave, ration, LTC, CVs and other facilities such as Ex­Service man status after retirement, Medical facilities all' over India for self 'and family etc even after retirement, 'at par with other members of Armed ,Forces of Union of ,India serving in GREF Units in the light of various judgments of Apex Court, it is necessary to amend or crush the Para 27

of the BR Regulation and other relevant paragraphs of BR

Regulations with immediate effect. .

(c) For this purpose no separate study is required, but the present classification of posts / services held by the directiy recruited members -of GREF be're-classified in accordance with that of Armed Forces pattern from the present grouping of Group '0' to "A' considering the basic qualification and other aspects as required for direct recruitment! Promotion.

(d) The Pay scale of GREF personnel should be in accordance with their respective rank structure in corresponding groups as in the case of Armed Forces ahd promotional avenues should also be improved.

(e) The insurance coverage presently provided to members of GREF is' inadequate and this should be de-linked to AGI from present CGEGIS alternatively a separate insurance coverage in the line of AGI be introduced exclusively for GREF Personnel.

(f) The problems as being faced by the members of GREF/Ex-GREF personnel can be solved by framing a separate Act as suggested by the 6th Pay Commission duly incorporated the various judgments of Supreme Forums of our country.

8. Considering above facts, rules position, law framed by the Apex courts and circumstances, the members of GREF cannot be treated as Non-industrial Civilian Employees of Defence Service as contended at Para 27 of BR' Regulation for any purpose as they are always been members of Armed Forces. of Union of India as conferred by the Hon'ble Apex courts in its various judgments as referred above. As such, I feel, the contents of Para 6 of your letter dated 5 July 2010 are neither practical nor operative being not within the ambit of various judgments of Hon'ble Supreme Court

. as well as other High Courts,


9 I. therefore. requ~s~ou :,~,t~~e ~e:essary Cabinet Note on above lines th rough

Secretary BRDB and Mln of Defence at an early date, so that the panty of pay and allowance within Arrny personnel and GREF Personnel while serving in GREF Units in accordance with Apex Court decisions can be rnaintained.

The Chief Engineer Project ~o=,(Y'

C/o 56/QffAPO c;.3 l 1Dt

GREF Centre Dighi Carnp Pune-15

EBW (GREF) C/o 99 APO

GREF Ernployees Wives Welfare Association WZ-429A, Naraina Village

New Delhi 110 028