14.01.2025 Ct. 23 D/L 1 ab/mh IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE WPA 18326 of 2023 Pratap Ghosh & Ors. -Vs- The Union of India & Ors. Mr. S. T. Mina, Ms. Priyanka Das, … for the petitioners Ms. Susmita Saha Dutta … for the respondent nos. 1 to 4 Mr. Asumdipta Santra, Mr. Anjan Saha, … for the respondent no. 6 The Ministry of Defence, Government of India upon noticing that due to operational and administrative reasons around 60,000 Armed Forces Personnel (Skilled) to undertake security guards related duties are retired every year to maintain a youthful profile of the Armed Forces felt necessity to frame a resettlement scheme for such personnel. The Department of Ex-servicemen welfare/Directorate General Re-Settlement (in short, “DGR”) in turn was directed to facilitate the resettlement of the said skilled armed forces personnel through various Government sponsored Schemes. With this object, DGR under directives of Ministry of Defence had evolved an 2 Empanelled Ex-servicemen (in short, “ESM”) Security Agency Scheme in 1992. In pursuance of such Scheme, the Ministry of Defence vide its letter No. 4(20)/US(RES)/93 dated 4th February, 1994 made provision in respect of personnel for security services on contract in Central Public Sector Undertakings/Enterprises (in short, “CPSUs/CPSEs”). On a perusal of the Scheme, the functioning of the same can be briefly summarized as follows: i) There shall be Empanelled Security Agencies (in short, “ESA/ESM”) under the said scheme. There may be three types of ESM. Individual ESM Security Agency shall be owned and operated by Class-I Gazetted Commissioned Officers referred to as ESM Officers in the form of proprietorship concerns. There can be State owned ESM Corporations and in case of death while availing the benefit under the Security Agency Scheme of the ESM Officer, the widow of ESM Officer can also operate the same. The empanelment will be done ‘State wise’ and the applicants will be given the option of choosing only ‘one state’ for operation. ii) The Empanelled Security Agencies will employ/appoint security guards and/or supervisors from amongst the sponsored candidates by DGR. The sponsored candidates will be the retired Armed Forces Personnel capable of working as Security guards and supervisors. 3 iii) The ESMs will be engaged by the CPSUs/CPSEs vide a contract, which will be for a stipulated period. The number of security guards and/supervisors allotted to an ESM is subject to the number of empanelled security agencies and requisition from the Principal Employer in a State which shall be regulated by DGR. In a case of specific requirement of “Female Guards”, it shall be mentioned in the “Requisition Form”. These female guards will be over and above 10% of non-ESM in DGR sponsored contract. iv) The upper age limit of security guards and/or supervisors will be 65 years in consonance with the provisions of Private Security Agencies (Regulation) Act, 2005 (in short, “PSARA Act”). v) The list of employees deployed by the respective ESM as security guards and/or supervisors shall be displayed at the work site, location and office of the ESM giving out the details and reports/returns will be submitted to DGR in a prescribed format as per laid down in periodicity. vi) The DGR will sponsor more than one ESM for contractual process on the GeM Platform/Portal. Sponsorships will be done in ‘cyclical order’ by DGR through duly constituted Board of Officers of (in short, “BOO”) in accordance with the guidelines. The sponsorships will be done in the name of DGR Empanelled Security Agencies (Proprietors) only. The 4 sponsorship duration shall be for a maximum of two years only. vii) The selection process and award of contract will be done by the Principal Employer i.e., CPSUs/CPSEs. A report to that effect shall be submitted by the Principal Employer within 30 days of award of contract in the format of Appendix ‘G’ to the DGR. The other terms and conditions of this scheme is, however, not reiterated herein as they are not necessary for adjudication of issues involved in this petition. The petitioners say that they were sponsored by DGR to an ESM operated by Debasish Mitra. On the expiry of the tenure of two years, the ESM operated by Debasish Mitra was replaced by an ESM operated by Captain Abhijit Dey . The Principal Employer, in the instant case, is the Gun & Shell Factory (in short, “GSF”), Cossipore, an Unit of Advanced Weapons and Equipment India Limited (in short, “AW&EIL”). The petitioners complain that without any reason all on a sudden, the petitioners were disengaged by the new ESM operated by Captain Abhijit Dey . The petitioners say that the disengagement can be done only on the petitioners’ reaching the age of 65 years and not otherwise. The DGR being the main entity to implement the scheme, neither the ESM nor 5 the Principal Employer have a right under the scheme to disengage an empanelled security guards and/or supervisors, once, he or she is engaged through an ESM in a particular manner. The petitioners, therefor, has prayed for a mandatory direction upon the respondent nos.4, 5 and 6 to engage the petitioners immediately in the duty. The said respondents were also directed to disburse the salary with interest to the petitioners for the period between September, 2022 till they are actually re-engaged. As an interim protection, the petitioners sought for a direction upon the respondents to keep three posts vacant for the petitioners till disposal of the writ petition. On behalf of the AW&EIL, it is submitted that while the authorities of Gun & Shell Factory entered into an agreement with Captain Abhijit Dey, on the contract tenure of Debashsh Mitra, having expired, it was specifically stated that the said unit only required 21 security guards and supervisors through the said ESM. The contract with Debasish Mitra may have a requirement of more than 21 security guards mentioned therein but there was no embargo on the Principal Employer while entering into a fresh contract with Captain Abhijit Dey to reduce the requirement to 21 numbers from 26. The contract with Debasish Mitra as also with Captain Abhijit Dey has been duly submitted 6 and/or filed before the DGR. The DGR did not raise any objection while the Gun & Shell Factory, Cossipore reduced their requirement from 26 as they had with Debasish Mitra to 21 while entering into the contract with Captain Abhijit Dey . The petitioners, therefor, cannot complain against the reduction which may have ultimately caused the disengagement of the petitioners. After hearing the parties and considering the materials on record, I find that though the scheme is operated under the supervision of the DGR and the concerned Ministry but it protects the autonomy of the principal employer in selecting a contractor. This autonomy also has the autonomy to provide for the requirement of the number of security guards and/or supervisors embedded therein. The CPSUs/CPSEs being the Principal Employer, therefor, can select out of several ESMs empanelled in the State, any number of ESM as per their requirement, which is to be informed to DGR. The ESM so selected in turn will have the right to engage the security guards and supervisors from out of enlisted Ex-servicemen in a particular State as per their choice. It cannot be, therefor, said that the security guards and/or supervisors once engaged by an ESM can at no point of time be disengaged unless he or she reaches the age of 65 years. 7 On a reading of the scheme and the various circulars placed on record, I find that the autonomy to select suitable security guards and/or supervisors from amongst the Empanelled Ex-servicemen is available to the contractor i.e., ESM. The requirement of security guards and/or supervisors is also left to the principal employer for being fixed according to its need. It is, however, noticed that in the contract entered with Captain Abhijit Dey, the Principal Employer has specified that the age of security guards and/or supervisors shall be below 60 years. Although, on a reading of the scheme, it does not appear that the Principal Employer can exercise a choice to engage the security guards and/or supervisors through ESM to be of a particular age but the same does not fall for consideration before this Court. Since the contract and other records and reports are required to be submitted before the DGR as per the scheme, it will be open for the DGR to take a decision as to whether the security guards and/or supervisors to be engaged can be below a particular age limit as per the stipulation of the Principal when the maximum age limit is 65 years. The said fixation of age may be for a practical purpose but is likely to frustrate the operation of this scheme as there may be a situation when the Principal Employer by exercising an option will engage 8 the security guards and/or supervisors only within a particular age limit. In the aforesaid facts and circumstances, I do not find any merit in the grievances ventilated by the petitioners, the writ petition is accordingly disposed of. Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of all necessary formalities. (Arindam Mukherjee, J.)