A SRINIVASA RAO Vs. GOVERNMENT OF ANDHRA PRADESH

JUDGEMENT

(1.) Against the proposed action of the respondents to corporatize the Special Protection Force constituted under The Andhra Pradesh Special Protection Force Act, 1991 (Act 25 of 1991), this writ petition is filed seeking to issue a Writ of Mandamus declaring that the first respondent has no legal and constitutional competence or authority and to declare that it is beyond the legislative competence and executive powers of the State and to further declare that the provisions of the Companies Act or other provisions cannot enable the respondents to corporatize which is repugnant to the provisions of the Constitution of India.

(2.) It is averred in the affidavit that the petitioners herein are all members of the Andhra Pradesh Special Protection Force. Apart from independent recruitment, the petitioners and other employees of the protection force are among BSF, CRPF, ITBP and Assam Rifles all coming under Central Police Organisations under the Ministry of Home Affairs, Govt. of India; that they joined the Special Protection Force in the background of the assurance that their service conditions would under no circumstances be changed to their detriment. Section 4 of the Act deals with the appointment of Director General of the Force and other higher officials, while Sec. 7 of the Act speaks that the Director General shall be the Principal Administrative Officer of the force for overall control of the State. Section 5 of the Act empowers the Director General or any Authorized Officer to enroll members of the force in the manner prescribed; while Sec. 9 of the Act permits him for deputation of the force subject to the general conditions of the Government for protection of establishments, institutions, autonomous bodies, Industrial undertakings and assets or strategic vital installations which are not owned or controlled by the Central Government on recovery of charges.

(3.) Section 10 deals with power to arrest without warrant while Section 11 deals with power to search without warrant. Section 12 prescribes the procedure to be followed by the members of the force after arresting a person while Sec. 15 speaks that the members of the force shall be considered to be always on duty and are liable to be employed at any place either within the State or outside. It is the case of the petitioners that the functions under Secs. 10 and 11 of the Act are basically the exercise of sovereign power and only be exercised by a Member of Armed Forces, like whom the petitioners and the members of their force carry arms and ammunitions to discharge their duties to protect the citizens and their property; that such sovereign powers cannot be transferred to a private citizen or a member of the Company or a Corporation, which is unconstitutional. It is further their case that even the Parliament or the Legislative Assembly cannot legislate a law in this behalf as it is beyond their legislative competence under the Constitution, more particularly under List-II of 7th Schedule. The State Legislature having regard to List II - State List under 7th Schedule item No.2 passed Act 25 of 1991.