The much in news Border Roads Organisation (BRO / GREF) case : What is it about & what went wrong ?

Everything and nothing !

Before I start, I would like to clarify that I have nothing against the GREF or the MES and hold these organisations in high regard. For those who joined in late, certain sections of the media have carried reports that three flag rank military officers associated with the Border Roads Organisation (BRO / GREF) have been ordered to undergo 15 days’ imprisonment for Contempt of Court by a Single Bench of the Hon’ble Guwahati High Court. The same story is being circulated with impunity by some GREF and MES officers. But what has not been unfortunately highlighted is the fact that the said Single Bench order was immediately STAYED thereafter by a Division Bench of the Hon’ble High Court. Two minutes of fame perhaps for some, but unnecessary vilification of senior military brass and that too without verification of facts. Sad.

What is the basis of this ? I’ll try to explain in uncomplicated terms.

Organisations such as GREF are amenable to the Army Act subject to certain modifications. The disciplinary powers of various military ranks under the Army Act are extended to officers of such organisations under the authority of Section 4 of the Army Act. Notifications for the purpose of Section 4 are issued for all such forces like GREF, Assam Rifles, Civil GT Companies etc in which disciplinary powers of their own ranks are defined as against disciplinary powers of military ranks. This exercise is done as per administrative convenience and not qua status, protocol or equivalence. In February 2007, a similar notification under Section 4 of the Army Act, which was in fact restricted to the sole purpose of defining disciplinary powers, was issued by the Secretary of Border Roads Development Board (BRDB) in which a Superintending Engineer (Functional Scale) / SE (FS) of the GREF was shown equal to a full Colonel of the Army as far as disciplinary powers were concerned. Now this Section 4 notification was used by GREF officers to claim that SE was now equal to a full Colonel, which is just one side of the story. A writ petition was filed before the Hon’ble Guwahati High Court by an SE of GREF and the Hon’ble Court on the basis of the material before it allowed the writ petition on the foundation of a statement by the Border Roads Development Board (BRDB) made before the Court, and ordered the placing of the petitioner SE on a post equivalent to a full Colonel. The contempt petition in news was a result of non-compliance of the orders in the ibid writ petition. However, what may not have been highlighted by the BRDB (on which incidentally the MoD has no direct control) before the Hon’ble Court is the fact that such notifications for disciplinary powers are never undertaken for defining status or tenability. Some examples in the same vein would be :

As per Schedule ‘C’ of MoD notification vide SRO 329 dated 23 Sept 1960 as amended by SRO 364 dated 29 Nov 1973, Director General of Border Roads has been equated with a GOC-in-C for disciplinary purposes. Now would this mean that DGBR can claim equivalence with an Army Commander ??

A Senior Personal Assistant and an Asst Administrative Officer (Group-B/Class-II) has been equated with a Lieutenant (Group-A/Class-I) of the Army, would it mean that such officers can start claiming equivalence with a Lieut ??

As per MoD notification vide SRO 212 dated 30 July 1987, all Govt servants with a basic pay of more than Rs 2600 (4th CPC rates) irrespective of pay scale, rank and status have been equated with Group-A / Commissioned Officers, now would this give them an excuse to claim parity with Group-A / Class-I gazetted officers ??

The answer to all of the above would be in the negative.

That is why, immediately after the Hon’ble Court pronounced its verdict on the basis of the statement of the BRDB, a review or Letter Patents Appeal (LPA) should have been filed by the BRO authorities, which unfortunately, perhaps for reasons elucidated in the succeeding paragraphs, did not happen.

But the point to be noted here is that a ring-side analysis of the situation would reveal that the decision of the Hon’ble High Court was passed in ‘personam’ and not in ‘rem’. Meaning thereby that only the person who filed the case before the Hon’ble Court could claim relief and such relief of the Hon’ble Court would not be made universally applicable to the organisation.

Coming back to the Contempt case which has already been stayed by a Hon’ble Division Bench of the Guwahati High Court. The Hon’ble Court has rightly observed in the Contempt directions that though modalities of such equivalence were not laid down by the Court but the authorities were bound by their statements and that neither a review was preferred nor an appeal was filed against the decision of the Hon’ble High Court (non filing of an appeal or a review is a glaring lacuna on the part of our legal advisors – perhaps because the officer in charge of the legal wing happens to be a GREF officer !). There is hence an immediate need also to file an appeal or a review with an application for condonation of delay in the main case so that the correct facts can be placed on record and the Hon’ble Court can be apprised of the situation in the actual rational perspective. The MoD and other powers that be should also be informed that the BRDB or for that matter the Ministry of Road Transport & Highways (under which GREF functions) may be apprised that they cannot issue any such directions which de facto affect the status, command and control of the military set-up. To put it brusquely, the BRDB has no jurisdiction or brief to meddle in the military hierarchy and any decision taken or submission made in a Court of Law by the Board which directly or indirectly affects military ranks has to be ethically made in consultation with the MoD and the military and not in a one-sided manner. Circumvention of the status of Presidential military ranks by way of a piece of paper issued by an authority not directly dealing with the military should in no way be considered acceptable or appropriate.

Things had slipped out of control in this case, but I’m positive that the situation would be reined and damn well not repeated.

"You may be disappointed if you fail, but you are doomed if you don’t try – Beverley Sills"