NAROTTAM DAS BESHTTO/B.P. DOBHALversusUNION OF INDIA AND ORS.

A                NAROITAM DAS BESHITO/B.P. DOBHAL
                                        v.
                         UNION OF INDIA AND ORS.

                               AUGUST 16, 1994

B                [KULDIP SINGH AND B.L. HANSARIA, JJ.J

        Administrative Tribunals Act, 1985-Section 14-/ndo-Tibetan Border
  Police Force Act, 199}-Section (l)fpT-Jurisdiction of Administrative Tribu-
  nal-Lowei-Division Clerks of Inda-Tibetan Border Police Forc~Whetlter
C can be regarded as member of amied forces of Union-Held. N&-Administra-
  tive Tribunal has jurisdiction concen1ing their service 1natters.

           The· two petitioners having been appointed as clerks of the Indo·
    Tibetan Border Police Force filed writ petition praying to prohibit the ·
    Administrative Tribunal from proceeding further with the adjudication
D   relating to service matter of the petitioners. It was submitted that as this
    police force was an 'armed force of the Union', the incumbents had to be
    taken as members of this force, because of the definition of this expression
    as given in Section 2(1)(p) of the Indo-Tibetan Border Police Force Act.
    1992. It was further submitted that section 6 of tlie Act enlarged the
E   meaning. It was aversed that before the Indo-Tibetan Border Police Force
    had come to be enacted, the provisions governing Central Reserve Police
    Force were applicable to the members of the Indo-Tibetan Border Police
    Force, and that a Lower Division Clerk of Central Reserve Police Force
    had been given the status of a Head Constable.

F          The points for decision in these petitions were whether the two
    petitioners could be said to be members of the "armed forces" or they had
    to be taken as civilians and whether Central Administrative Tribunal bad··
    jurisdiction to adjudicate the matter relating to the promotion of the two
    petitioners.
G
          Dismissing the writ petition, this Court

          HELD : 1.1 Section 2(1) (p) of Indo·Tibetan Border Police Force Act, :
    1992 had defined "member of the force" to mean an officer, a sub-ordinate
    officer, an under-officer or other enrolled person". Clause (j) of the Sub-
H   Section (1) had defined "enrolled person" to mean "under-officer or other
                                       670
                 N.D. BESHTTO v. U.0.1. [HANSARIA. J.J                671

person enrolled under this Act." Section 153 dealing "ith rank structure had A
dealt with classification of the officers and other members of,the force in
accordance with their rank and clause (d) of sub-section (l) has
categorised constable only as 'enrolled persons other than under-officers".
These provisions leave no doubt that the only 'other enrolled person' of .
whii:h clause (p) speaks of is constable. The Lower Division Clerk is not
                                                                             B
such a person. [672-E, Fl

      1.2. The provisions governing Central Resen·e Police Force do not at
all with the mode of enrolment of Lower Dh"ision Clerks. The same is
governed by what has been provided in lndo- Tibetan Border Police Force
(Lower Division Clerk) Recruitment Rules, 1973. [673-F]                      C
      13. The two petitioners could not be regarded as members of the
armed forces of the Union and as such their service mailers would not be
beyond the jurisdiction of the Tribunal inasmuch as they have to be treated
as 'civilians" which would bring into operation section 14 of the Ad-
ministrative Tribunal Act because of which the Tribunal would have juris- D
diction concerning their service matters. [673-H, 674-A)

     CIVIL ORIGINAL JURISDICTION : Writ Petitions (C) Nos. 687
and 751 of 1988.

      (Under Article 32 of the Constitution of India.)                       E
     AP. Mohanty for the Petitioners.

     V.V. Vaje, P.Parmeswaran, R.P. Srivastava, W.S. Quadri, Ms. Sush-
ma Suri, Ms. A. Subhashini and Ms. Asha Jain Madan for the Respondents.
                                                                             F
     The Judgment of the Court was delivered by

      HANSARIA, J. The only point for decision in these petitions under
ARticle 32 of the Constitution is whether the Central Administrative
Tribunal (hereinafter the Tribunal) has jurisdiction to adjudicate the mat-
ter relating to the promotion of the two petitioners. The Tribunal having G
been established under the Administrative Tribunals Act, 1985 would have
no Jurisdiction if the petitioners be members of "armed forces of the
Union', because of what has been stated in section 2(a) of this Act. The
point for determination, therefore, is whether the two petitioners, who at
the relevant time were Lower Division Clerks, can be said to be member
of the 'armed forces' or they have to be taken as 'civilians''.             H
    672                   SUPREME COURT REPORTS (1994) SUPP. 2 S.C.R.

A         2. The two petitioners having been appointed as clerks of the Indo·
    Tibetan Border Police Force, the submission of Shri Mohanty, appearing
    for the petitioners, is that as this police force is an "armed force of the
    Union", the incumbents have to be taken as members of this force, because
    of the definition of this expression as given in section 2(1) (p) of the
    Indo-Tibetan Border Police Force Act, 1992, for short, the Act. This
B   submission is countered by Shri Vaje appearing for the Union of India,
    because according to him, apart from an officer, subordinate officer or an
    under-officer, which the two petitioners admittedly are not, the only other
    person who can regarded as member of the Force, because of what has
    been stated in aforesaid section read with the definition of "enrolled
C   person" in. section 2(1)(j), is Constable, as would appear from what has
    been mentio.ned in sections 153(1)(d) of the Act.

          3. Let us first see what do the provisions of the Act reveal? As Shri
    Mohanty has placed strong reliance ort the aforesaid defining clauses,
    alongwith section 6 of the Act, let these provisions be noted. Section 2
D
    (l)(p) has defined "member of the Force" to mean " an officer, a subor-
    dinate officer, an under-officer or other enrolled person". Clause (j) of the
    sub-section (1) has defined "enrolled person" to mean "under-officer· or
    other person enrolled under this Act." (Emphasis supplied). Section 153
    dealing with rank structure has dealt with classificatio10 of the officers and
E   other members of the Force in accordance with their ranks and clause ( d)
    of sub-section (1) has categorised constable only as "enrolled persons other
    than under-officers". These provisions leave no doubt that the only "other
    enrolled person" of which clause (p) speaks of is constable.

F          4. Shri Mohanty, however, submits that section 6 of the Act enlarges
    the meaning as this section states that mode of enrolment and procedure
    of enrolment shall be such as may be prescribed. Learned counsel then
    speaks to draw assistance from rule 187 of the Indo-Tibetan Border Police
    Force Rules, 1994 which is. on the subject of "Transitory provision" and
    states that any rule or order applicable to the Force on commencement of
G   these rules shall, unless repugnant to these rules, continue to apply unless
    and until abrogated or modified by the Central Government or any other
    competitive authority. The pur!Jose of referring us to this rule is that a
    Lower Division Clerk of Central ReserVe Police Force has been given the
    status of a· Head Constable as would appear from what has been stated
H   under the ·title "Status of Ministerial StafF in Chaplter VI of the Estab-



              ,,
                 N.D. BESHTIO v. U.0.1. [HANSARIA, J.]                  673

lishnient Manual of the Central Reserve Police Force, 1976. Shri Mohanty       A
states that before the Inda-Tibetan Border Police Force Act had come to
be enacted, the provisions governing Central Reserve Police Force were
applicable to the members of the Force at hand, and so, the aforesaid
pro,ision finding place in the Establishment Manual would apply to the
petitioners also by force of section 6 of the Act.
                                                                               B
       5. We find no merit in the aforesaid submission because section 6
itself deals with the person to be enrolled to the Force. As such the person
concerned has to be "enrolled person" within the meaning of clause GJ of
sub-section (1) of section 2 of the Act. Such a person is only a constable
as already held; Lower Division Clerk is not such a person. We agree with      C
Shri Vaje that what has been stated in the aforesaid Manual is to find out
equivalence of the Ministerial posts with that of Executive posts (Head
Constable being a holder of such a post as mentioned in the status finding
provision) for some administrative and financial purposes; and the holder
of the Ministerial post cannot be treated like that of the corresponding       D
holder of Executive post for all purposes, so much so, as to obviate the
difference between the two altogether. Despite what has been mentioned
in the Manual in this regard, the two posts remain different, according to
us; and so, even if what has been stated in .the Manual were to apply to
the employees like the petitioners after coming into force of the Act, on      E
which aspect we express no view, the same cannot assist the petitioners.

      6. This is not all. We find that the aforesaid Rules do not at all deal
with the mode of enrolment ·of Lower Division Clerks. The same is
governed by what has been provided in Inda-Tibetan Border Police Force
(Lower Division Clerk) Recruitment Rules, 1973 which were made by the F
President of India in exercise of the powers conferred by the proviso to
Article 309 of the Constitution. These rules continue to apply because of
what has been stated in rule 187 of the Indo-Tibetan Border Police Force, .
1994.
                                                                               G
                                                           '
      7. In view of the aforesaid, we hold that the two petitioners cannot
be regarded as member of the armed forces of the Union and as such their
service· matters would not be beyond the jurisdiction of the Tribunal
inasmuch as they have to be treated as "civilians' which would bring into
operation .section 14 of the Tribunal's Act because of which the Tribunal      H
    674                  SUPREME COURT REPORTS (1Y94) SUPP. 2 S.C.R.

A would have jurisdiction concerning their service matters.

        8. Writ Petition 687/86 in which the prayer is to prohibit the Tribunal
  from proceeding further with the adjudication relating to service matter of
  the petitioner, therefore, stands dismissed The relief prayed in Writ Peti-
  tion Civil 751188, which was ordered to b" heard alongwith the aforesaid
B writ petition, has to be denied as this Court cannot give direction relating
  to stay of the promotion f the respondents as this maUer shall have to be
  required to be adjudicated by the Tribunal. This Petition, is therefore,
  closed. It stands disposed of accordingly.

    A.G.                                                   Petitions dismissed.