Punjab-Haryana High Court
Aditya Sharma And Others vs Union Of India And Others on 10 April, 2024
Neutral Citation No:=2024:PHHC:049291
CWP-5865-2023 (O&M) 1 2024:PHHC:049291
CWP-23220-2023
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
1) CWP-5865-2023 (O&M)
Date of Decision:10.04.2024
ADITYA SHARMA AND OTHERS ......... Petitioners
Versus
UNION OF INDIA AND OTHERS ....... Respondents
2) CWP-23220-2023
RAJESH KUMAR AND OTHERS .......Petitioners
Versus
UNION OF INDIA AND OTHERS .....Respondents
CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present : Mr. R.D. Gupta, Advocate and
Mr. Raghvinder Singh, Advocate
for the petitioner.
Mr. Somesh Gupta, Senior Panel Counsel assisted by
Major Ravinder S. Bhatia,
for the responents-UOI.
****
JAGMOHAN BANSAL, J. (Oral)
1. By this common order CWP-5865-2023 and CWP-23220-
2023 are disposed of since issue involved in the captioned petitions and
prayer sought are common. With the consent of parties and for the sake
of brevity, facts are borrowed from CWP-5865-2023.
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2. The petitioners through instant petition under Articles
226/227 of the Constitution of India are seeking setting aside of
(I) Order dated 25.10.2022 (Annexure P-12) whereby
respondent has disbanded 1101, Railway Engineer Regiment
of Territorial Army;
(II) Order dated 02.02.2023 (Annexure P-13) whereby
petitioner No. 1 to 8 have been discharged from their
military service on account of disbandment of 1101, Railway
Engineer Regiment (T.A) based at Chandigarh.
3. The petitioners are employees of Ministry of Railways. The
respondent in terms of Section 3 of Territorial Army Act, 1948 (for short
'1948 Act') has constituted different Units. The Territorial Army was
constituted in 1949. It is known as second line of defence. The essential
aim of the organization is to provide basic military training to gainfully
employed citizens so that in the event of emergency, they can play their
role to meet the internal security needs. The Territorial Army is
composed of Non-department (TA) and Departmental (TA) units. The
Departmental (TA) units are non-combatant units and are basically
technical forces. The sphere of activities of Railways TA units is
confined to Railway activities.
4. The employees of Railway forming part of regiment get one
month training every year and during said period, they remain posted
with Territorial Army. During the said period, they get training from
officials of Indian Army and its cost is borne by Ministry of Railways. In
2022, there were 6 Railway Territorial Army Regiments. The detail of
those regiments is as follows:
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Regiments Location Controlling Command Zonal Railways
Zonal Railway Affiliation attached for
recruitment/
enrolment in Railway
T.A.
969 Railway Jamalpur Eastern Eastern Eastern, East Central
Engineer Railway Command & North East Frontier
Regiment Rly
970 Railway Jhansi North Central Southern North Central &
Engineer Railway Command Central Railway
Regiment
1031 Railway Kota West Central Eastern West Central &
Engineer Railway Command Western Railway
Regiment
1032 Railway Adra South Eastern Eastern South Eastern, South
Engineer Railway Command East Central & East
Regiment Coast Railway
1101 Railway Chandigarh Northern Northern, North
Engineer Command Eastern & North
Regiment Western Railway
1105 Railway Secunderabad South Central Eastern South Central, South
Engineer Railway Command Western, Southern
Regiment Railway
5. The Ministry of Railways constituted a committee to
consider existence of aforesaid regiments. The said Committee
comprising of Chairman, Railway Board & CEO and Member (Finance),
Railway Board decided to disband aforesaid Units. It was further decided
that the entire process would be completed by 31.03.2022. The relevant
extracts of the decision dated 8/14.12.2021 (Annexure P-5) read as:
"In the light of detailed justification given by the above
Committee in their Report, the Competent Authority i.e.
Chairman, Railway Board & CEO and Member Finance,
Railway Board, has decided as under:-
(I) On the basis of assessment of operational
requirements, the 06 Railway Engineer Regiments TA
fully financed by Railways, should be disbanded and
the modalities for disbandment may be worked out by
DGTA.
(II) The modalities for disbandment may be such
that the entire formalities for disbandment are
finalized by 31.03.2022."
6. The Office of Directorate General Territorial Army vide
communication dated 17.12.2021(Annexure P-6) requested Chairman,
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Railway Board to confirm/intimate whether decision to disband was
taken in consultation with Ministry of Defence. The relevant extracts of
said letter read as:
"It is requested to confirm/intimate of this decision has been
taken in consultation with the Department of Military Affairs
(MoD), for it being an inter-Ministerial issue and also
having strategic / operational implications at the National
level."
7. The Ministry of Railways vide communication dated
21.12.2021(Annexure P-7) decided that all the regiments financed by
Railway should be disbanded and modalities for disbandment shall be
finalized by 31.03.2022. The relevant extracts of the letter read as:
"In the light of detailed justification given by the above
Committee in their Report, the Competent Authority i.e.
Chairman, Railway Board & CEO and Member Finance,
Railway Board, has decided as under:-
(i) On the basis of assessment of operational
requirements, the 06 Railway Engineer Regiments (TA) fully
financed by Railways, should be disbanded.
(ii) The modalities for disbandment may be such that the
entire formalities for disbandment are finalized by
31.03.2022."
8. The Ministry of Railways vide letter dated 08.02.2022
requested Directorate General Territorial Army to initiate process of
disbandment. The Directorate General Territorial Army vide
communication dated 08.03.2022 intimated that matter has been
deliberated upon and Directorate has endorsed disbandment of five and
retention of one Railway Engineer Regiment. In the said letter, it was also
observed that a collegiate be organized to discuss further course of action.
The said authority expressed its reservation with respect to uninterrupted
rail communication. The relevant extracts of letter dated 08.03.2022 read
as:
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"The subject case has been deliberated upon and the
concerned Directorate has endorsed disbandment of five and
retention of one Railway Engineer Regiment (TA).
Accordingly, it has been directed that 969 Railway Engineer
Regiment (TA) be retained for the operational role along
route NJP-Siliguri-Newmal-Alipurdur- Rangiya (361 Kms).
This Regiment would cover the critical rail link through
Siliguri corridor and further up to Rangiya. The concerned
Directorate while endorsing disbandment of five Railway
Engineer Regiments (TA) have sought an assurance from the
Ministry of Railways (Railway Board) that uninterrupted rail
communication will be maintained towards Northern and
Eastern Borders at all times, which may please be
confirmed.
4. Being an inter-Ministerial issue with many
stakeholders, a collegiate will be organized shortly to
discuss further course of action on the subject and the
date/time for the same will be intimated separately."
9. Pursuant to aforesaid communication, a joint meeting of
officers from Railway Board and Ministry of Defence, Directorate
General Territorial Army was held on 21.04.2022. In the said meeting, it
was finally decided to disband five out of six regiments. It was observed
that willingness for discharge or continuance with Territorial Army
would be taken from existing Railway T.A. personnel and willing
Railway T.A. personnel will be considered against existing vacancies in
functional establishment of 969, Railway Engineer Regiment, Jamalpur
and remaining would be kept in reserved list. The Ministry of Railways
assured uninterrupted rail communication towards Northern and Eastern
borders at all times. The relevant extracts of the decision taken in the
meeting held on 21.04.2022 (Annexure P-11) are reproduced as below:
"As conveyed by DGTA vide their letter dated 08.03.2022
regarding the concurrence of concerned Directorate of
Ministry of Defence for retention of one Railway Engineer
Regiment at Jamalpur and disbandment of remaining five
Railway Engineer Regiment, it was mutually agreed that
only one Regiment at Jamalpur will be retained. It was also
agreed that disbandment of the remaining five Railway
Engineer Regiment will be completed within the shortest
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possible time and the maximum time limit for completion of
entire process will be nine months.
Willingness for discharge or continuance with TA will be
taken from the existing Railway TA personnel of all Railway
TA Regiments and willing Railway TA personnel will he
considered against the existing vacancies in the present
Functional Establishment of 969, Railway Engineer
Regiment, Jamalpur and the balance will be kept in the
Reserve List.
Representatives from DGTA and DGMO were informed that
the concerned Directorate in the Ministry of Railways has
given an assurance that uninterrupted rail communications
will be maintained towards Northern and Eastern borders at
all times, as asked for by DGTA in their letter dated
08.03.2022."
10. Pursuant to aforesaid joint meeting of different Ministries,
the Ministry of Defence, Department of Military Affairs vide
communication dated 25.10.2022 (Annexure P-12) ordered to disband
five out of six Railway Engineer Regiments. For the ready reference
order dated 25.10.2022 is reproduced as below:
"I am directed to convey the sanction of the President of
India for disbandment of the following five Railway Engineer
Regiments (T.A):-
SI. Units/Regiments Location Date of TA Gp Affiliated
No. Raising HQs to
(a) 970 Railway Jhansi(IP) 15.02.2005 Southern Bombay
Engineer Command Engineer
Regiment (TA) Group,
Kirkee
(b) 1031 Railway Kota 31.03.1975 Dir, DSC Madras
Engineer (Rajasthan) South Engineer
Regiment (TA) Western Group
Command Bangalore
(c) 1032 Railway Adra 15.02.2005 Eastern Bengal
Engineer (West Command Engineer
Regiment (TA) Bengal) Group,
Roorkee
(d) 1101 Railway Chandigarh 31.03.1975 Western Bengal
Engineer (UT) Command Engineer
Regiment (TA) Roorkee
(e) 1105 Railway Secundrabad 21.03.1975 Southern Madras
Engineer (Telengana) Command Engineer
Regiment (TA) Group
Bangalore
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2. 969 Railway Engineer Regiment (TA) located at
Jamalpur is to be retained. The existing Functional
Establishment (FE) of this unit is valid upto 22.11.2022. The
FE of this Regiment to be revised in consultation with
Ministry of Railway (Railway Board).
3. The disbandment of above mentioned five Railway
Engineer Regiment (TA) will commence from the date of
issue of this letter and will be completed within six months.
4. On disbandment, the manpower of the disbanded units
will cease to exist in that:-
(a) Regular Army personnel will revert to CT-I
strength and will be adjusted against vacancies
available. The units will retain the authorized strength
of Regular Army personnel as given in the Functional
Establishment till completion of disbandment to cater
to the requirements of audit and final disposal of
assets.
(b) Part time Departmental staff as authorized in the
Functional Establishment (FE) will be discharged
from Military service on issue of Government Sanction
Letter less one Officer, two JCOs and five Other
Ranks per unit, who will be embodied on as required
basis for coordination & completion of disbandment
related issues with respective Railway Zones.
(c) Non Railway Territorial Army personnel
(tradesmen) may be transferred to other Non-
Departmental and Ecological TA units under TA Act
Rule 13(1), if willing and would be on probation for a
period of one year."
11. The respondent vide communication dated
02.02.2023(Annexure P-13) has discharged petitioner No. 1 to 8 from TA
service. The petitioners are feeling aggrieved from decision dated
25.10.22 and 02.02.2023, hence present writ petition.
12. Mr. R.D. Gupta, Advocate submits that decision of
disbandment of five Units is bad in the eyes of law on account of
following counts:
i) The initial decision of disbandment was unilaterally taken by
Ministry of Railways whereas Ministry of Defence was equal
stakeholder in the constitution of Territorial Army;
ii) The Ministry of Railways was having no knowledge about need
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and working of Territorial Army still Ministry of Railways decided
to disband all the Regiments;
iii) The Territorial Army had expressed its concern about
uninterrupted railway communication and in the joint meeting of
officers of different Ministries, the Railway has assured to make
uninterrupted railway communication, however, said assurance is on
paper. There is nothing disclosing that Railway would provide
uninterrupted railway communication;
iv) The respondent in terms of Section 3 of Territorial Army Act,
1948 has power to constitute and disband any Unit, however, there is
no prescribed procedure to disband a Unit. The respondent has not
disclosed procedure which was followed prior to disbanding aforesaid
five Regiments;
v) The Ministry of Defence was in need of Regiments,
however, on account of unknown reasons has acceded to decision of
Ministry of Railways;
vi) In the final decision, it was decided that persons who are
willing to continue with T.A would be kept in reserved list, however,
petitioners have been discharged.
13. Per contra, Mr. Somesh Gupta, Counsel for the respondents,
submits that petitioners are permanent employees of Indian Railways,
thus, disbandment of regiment is not going to affect their employment.
Government has discretion to constitute and disband any regiment. In
view of changed facts and circumstances and to avoid unnecessary cost, it
was decided by Ministry of Railways and Ministry of Defence to disband
5 out of 6 units and during the pendency of present petition, it has been
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further decided to disband 6th unit. It is immaterial that step was initiated
by one or another Ministry. There is no prescribed procedure to disband a
unit, thus, petitioners cannot claim that there was violation of procedure
or in the absence of procedure, unit could not be disbanded. It is subject
matter of Defence and Railways to ensure uninterrupted railway
communication. It is not subject matter of members of Railway (TA).
Indian Army, in view of available sources and manpower is competent to
face any adverse situation.
14. I have heard the arguments of learned counsel for the parties
and perused the record with their able assistance.
15. It is a settled proposition of law that scope of interference in
the executive decisions/policy matters is very limited. The persons who
are making policy are more competent to know needs of the people as
well as needs of the organization.
16. Hon'ble Supreme Court has time and again adverted with
scope of judicial interference in executive decisions including decisions
relating to policy matters. In Union of India v. Harjeet Singh Sandhu,
(2001) 5 SCC 593, Supreme Court has adverted with scope of judicial
review of administrative action. The Court has held that if two views are
possible, court shall not interfere by substituting its opinion for the
opinion of authority. The relevant extracts of aforesaid judgment read as:
42. Exercise of power under Section 19 read with Rule 14 is
open to judicial review on well-settled parameters of
administrative law governing judicial review of
administrative action such as when the exercise of power is
shown to have been vitiated by mala fides or is found to be
based wholly on extraneous and/or irrelevant grounds or is
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found to be a clear case of colourable exercise of/or abuse
of power or what is sometimes called fraud on power i.e.
where the power is exercised for achieving an oblique end.
The truth or correctness or the adequacy of the material
available before the authority exercising the power cannot
be revalued or weighed by the court while exercising power
of judicial review. Even if some of the material, on which the
action is taken is found to be irrelevant, the court would still
not interfere so long as there is some relevant material
available on which the action can be sustained. The court
would presume the validity of the exercise of power but shall
not hesitate to interfere if the invalidity or
unconstitutionality is clearly demonstrated. If two views are
possible, the court shall not interfere by substituting its own
satisfaction or opinion for the satisfaction or opinion of the
authority exercising the power.
17. Recently, a Constitutional Bench in Vivek Narayan Sharma
Versus Union of India; 2023 LiveLaw (SC) 1, while adverting with
question of legality of demonetization of currency of denomination of
Rs.500/- and Rs.1,000/- has considered scope of judicial review. The
Hon'ble Supreme Court has considered its judicial precedents and
concluded that it is not function of the Court to sit in judgment over
matters of economic policy and they must necessarily be left to
Government of the day to decide. The Court emphasised on its earlier
decision in Tata Cellular vs. Union of India (1994) 6 SCC 651. The
relevant extracts of the said judgment read as:-
"Scope of Judicial Review
215. The law with regard to scope of judicial review has
been very well crystalized in the case of Tata Cellular
(supra). In the said case, it has been held by this Court that
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the duty of the court is to confine itself to the question of
legality. Its concern should be whether a decision making
authority exceeded its powers, committed an error of law,
committed a breach of the rules of natural justice, reached a
decision which no reasonable tribunal would have reached
or abused its powers. The Court held that it is not for the
court to determine whether a particular policy or particular
decision taken in the fulfilment of that policy is fair. It is only
concerned with the manner in which those decisions have
been taken.
216. After referring to various pronouncements on the scope
of judicial review, the Court has summed-up thus:
"94. The principles deducible from the above are:
(1) The modern trend points to judicial restraint in
administrative action.
(2) The court does not sit as a court of appeal but
merely reviews the manner in which the decision was
made.
(3) The court does not have the expertise to correct
the administrative decision. If a review of the
administrative decision is permitted it will be
substituting its own decision, without the necessary
expertise which itself may be fallible.
(4) The terms of the invitation to tender cannot be
open to judicial scrutiny because the invitation to
tender is in the realm of contract. Normally speaking,
the decision to accept the tender or award the
contract is reached by process of negotiations through
several tiers. More often than not, such decisions are
made qualitatively by experts.
(5) The Government must have freedom of contract. In
other words, a fair play in the joints is a necessary
concomitant for an administrative body functioning in
an administrative sphere or quasi administrative
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sphere. However, the decision must not only be tested
by the application of Wednesbury principle of
reasonableness (including its other facts pointed out
above) but must be free from arbitrariness not
affected by bias or actuated by mala fides.
(6) Quashing decisions may impose heavy
administrative burden on the administration and lead
to increased and unbudgeted expenditure. Based on
these principles we will examine the facts of this case
since they commend to us as the correct principles."
18. In the case in hand, the respondent has decided to disband all
the six Regiments of Territorial Army. Initially, disbandment of 5 out of
6 units was approved and during the pendency of present petition, 6th unit
is also disbanded. Section 3 of 1948 Act empowers Government to
constitute and disband any unit. The petitioners are not disputing power
of respondents to disband any Regiment. The petitioners have failed to
point out any clause of the impugned decision which is violative of their
fundamental rights guaranteed by Chapter III of the Constitution of India.
The petitioners are claiming that decision is bad because it was
unilaterally originated by Ministry of Railways. The petitioners have
failed to notice that final decision was arrived at a joint meeting of both
the Ministries and has been released by Defence. It is apt to notice that
the final decision was not only made with the active participation of
Ministry of Defence but also issued under the signature of an officer of
Ministry of Defence. Thus, contention of the petitioners that decision to
disband regiment was bad on the ground that it was initiated by Railways
Ministry cannot be countenanced.
19. The petitioners are admitting that no procedure for
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disbandment in the 1948 Act has been prescribed. The cost of TA unit
was borne by Ministry of Railways, thus, it had every right to initiate
process and participate in the process of disbandment. This ministry
initiated process and final decision came to be arrived at joint meeting of
officials of both the ministries. In the absence of procedure prescribed
under the Act, the petitioners cannot claim that procedure as per their
suitability or desire should be followed. It is not a tax matter where court
can drop demand on the ground that there is no mechanism of assessment
or collection though there is levy. In the 1948 Act, there is power to
establish and disband a unit. In the absence of prescribed procedure, the
petitioners cannot be heard to claim that respondent has not followed
procedure. It is a pure executive decision, thus, in the absence of
prescribed procedure, it cannot be declared faulty. Record discloses that
matter moved from one Ministry to another and ultimately a joint
meeting of officers of two Ministries and officers of Directorate General
of Territorial Army took place which concluded the issue and decided to
disband TA units.
20. The contention of the petitioner that Railway has not made
arrangement for uninterrupted supply of communication seems to be
nothing more than bald and wild averment. The petitioners have not
placed on record any document or incident disclosing that there was
interruption in the communication. In any case, it is Ministry of Defence
which has to look at its needs and sources. Court neither can determine
their needs nor identify or arrange sources to meet those needs. Both the
Ministries are claiming that they are competent to meet their needs and
handle with adverse situations. The petitioners even have no locus standi
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to raise this issue.
21. The respondents as per their requirement constituted 6 units.
With the passage of time and having considered prevailing conditions,
the respondent found that there is need to disband all the units. It is a pure
administrative-cum-policy decision. The court cannot substitute opinion
of authorities. The court cannot venture into needs of the respondent
organization. It is executive which in view of available sources and need
of hour has to take a final call. The respondents are experts of their field
and they know better than anyone else about their needs. There is no
allegation or evidence disclosing mala fide, arbitrariness or violation of
statutory provisions on part of respondents. The petitioners have no
fundamental or vested right to claim that regiment should be retained.
There is nothing unreasonable or arbitrary which can be called as
violative of Article 14 of the Constitution of India. The decision could be
violative of Article 14, had it been made applicable to few petitioners
whereas it is applicable to entire Regiment rather all the six regiments,
thus, petitioners have no right to claim that policy is violative of Article
14 of the Constitution of India.
22. Up till the filing of present petition, there was decision to
disband 5 units. As per respondents, they have now decided to disband
even 6th leftover unit, however, implementation is pending due to
pendency of present petition. As pleaded by both sides, out of 5
disbanded unit, unit of Chandigarh is only operating because of interim
order passed by this court. Complete disbandment of four units and
decision of respondent to disband 6th unit indicates that no other unit
member either has approached court or having approached, has failed to
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get interim protection. It would be unfair and oblivious decision if
Chandigarh unit is permitted to remain in force.
23. In the light of law enunciated by Supreme Court in Vivek
Narayan Sharma(supra) and Tata Cellular(supra), scope of judicial
review in the impugned administrative-cum-policy decision is very
limited. Setting aside of impugned decision would amount to substituting
opinion of the authorities which is impermissible as per settled
proposition of law. From the pleadings and arguments of both sides, this
court finds no violation of procedure, arbitrariness on the part of
executive and violation of fundamental rights of the petitioner.
24. In view of afore-stated facts and circumstances, this Court
does not find any infirmity in the impugned decision warranting judicial
interference. The present petition deserves to be dismissed and
accordingly, dismissed.
25. Pending misc. application(s), if any, shall also stand
disposed of.
( JAGMOHAN BANSAL )
JUDGE
10.04.2024
Ali
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
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