Madras High Court: In a petition sought by the Border Security Force -Ex-Servicemen Welfare Association of Tamil Nadu (petitioner association), for treating them as ‘Ex-Servicemen’ for the benefits of purchase and consumption of liquor in the State of Tamil Nadu, the division bench of Sanjay V. Gangapurwala and P.D. Audikesavalu, JJ. held that it does not appear to be any infirmity in the impugned action of the State in declining to treat the members of petitioner association, who are retired personnel of the Border Security Force (‘BSF’), as Ex-Servicemen for the purpose of extending the benefit of exemption and concession granted in consumption of liquor in the State of Tamil Nadu.
Issue: Whether persons who have retired from the BSF are entitled to be treated as ‘Ex-Servicemen’ for the purpose of consumption of liquor in the State of Tamil Nadu?
Analysis:
The Court noted that Tamil Nadu Prohibition Act, 1937, (‘the Act’) mandates that any form of purchase, sale or consumption of liquor in the State of Tamil Nadu would have to be strictly in accordance with the provisions of that enactment and the Rules made thereunder. Section 17-A of the Act, provides the benefits of exemption and concession from all or any of the provisions of this Act, only to serving personnel in the Armed Forces of the Union and not to those who have retired after such service, apart from Ex-Servicemen. As per the petitioner organisation, its members, who had retired from the BSF, are entitled to the same benefits relating to consumption of liquor that have been extended to Ex-Servicemen in the State of Tamil Nadu.
The Court said that the word ‘Ex-Servicemen’ has not been defined either in the Act or in the Tamil Nadu Liquor (Licence and Permit) Rules, 1981. Though the Government of India has expressed divergent views on extending the benefits granted to Ex-servicemen in the Official Memorandum dated 23-11-2012 and in the clarification regarding definition of ‘Ex-Servicemen’ in the Letter dated 16-03-2018 for the purpose of Government jobs in terms of the Ex-Servicemen (Re-employment in Central Civil Services and Posts) Rules, 1979, it is amply clear that retired personnel from ‘para-military forces’ which includes the BSF have not been treated as ‘Ex-Servicemen’.
Thus, unless retired personnel from the BSF are included as ‘Ex-Servicemen’ in the Tamil Nadu Liquor (Licence and Permit) Rules, 1981, there is no scope for extending the benefits of exemption and concession granted to Ex-servicemen, to them.
After referring to Union of India v. K. Pushpavanam, 2023 SCC OnLine SC 987, wherein it was held that no Constitutional Court can issue a writ of mandamus to a legislature to enact a law on a particular subject in a particular manner, the Court said that it is for the Government of Tamil Nadu, as the delegatee of the State Legislature to make suitable amendments in the Tamil Nadu Liquor (Licence and Permit) Rules, 1981, for including retired personnel from the Border Security Force in the definition of ‘Ex-Servicemen’ in the said Rules, as it would not be possible for this Court to issue any direction in this regard.
The Court added that it may also be true that retired personnel of the BSF have been extended the benefits granted to Ex-servicemen for certain specific purposes, but that would not mean as if they have become Ex-Servicemen. The nature of duties performed by them may have been similar to those carried out by those in the Armed Forces of the Union. Thus, even if the claim of the petitioner that discrimination is meted out to the retired personnel of the BSF as against Ex-servicemen has to be accepted, the consequence would only be that the exemption and concession granted to Ex-servicemen in consumption of liquor would have to be withdrawn, but, it cannot be a ground on parity to extend the same benefit to the retired personnel of the BSF.
In such circumstances, as per the Court, the members of the petitioner association would have to work out their remedies before the proper forum in the manner recognised by law and the petitioner cannot be entitled to any of the reliefs as sought in the writ petition.
[BSF-Ex-Servicemen Welfare Association of Tamil Nadu v. District Collector, 2023 SCC OnLine Mad 6263, Order dated 21-09-2023]
Advocates who appeared in this case :
For the Petitioner: Advocate A. Irudayam
For the Respondents: Special Government Pleader R. Anitha, Advocate K.B. Arul
