Union of India & Ors Vs. Binod Bihari
Behera  INSC 672 (14
Jagdish Saran (J) Verma, Jagdish Saran (J) Venkataswami K. (J) J.S. Verma, J. :
1995 SCC Supl. (4) 728 JT 1995 (8) 223 1995 SCALE (6)454
appeal by special leave is against the Judgment dated 30th March, 1992 of the
Division Bench of the High Court of Orissa, by which the writ petition (OJC No.
543 of 1988) filed by the respondent has been allowed.
respondent was a Sub-Inspector in the Central Industrial Security Force (for
short `the Force'). He vendered his resignation, which was accepted by the
Deputy Inspector-General (D.I.G.) of the Force on 17/10/1984. The respondent then, on 4/12/1984 applied to withdraw his resignation and in the alternative
prayed for re-enlistment in the Force. Both these prayers were rejected. The respondent,
then filed the writ petition under Article 226 of the Constitution in the High
Court, which has been allowed by the impugned judgment. Hence this appeal by
grounds were urged in the High Court in support of the writ petition. The first
ground was that the D.I.G. was not the competent authority under the relevant
rules to accept the resignation on account of which there was no valid
acceptance of the resignation before its withdrawal on 4/12/1984. The other contention was that the rejection of the
prayer for re-enlistment as a member of the Force after acceptance of the
resignation was an arbitrary exercise of the discretionary power conferred by
the relevant rules. The High Court has accepted both the contentions. However,
in view of the acceptance of the First contention the High Court has directed
reinstatement of the respondent on the payment of one-third arrears of salary
together with the other service benefits.
first question before us relates to the competence of the D.I.G. of the Force
to accept the resignation of the respondent. The relevant provisions with
reference to which the point has to be decided are Section 5 of the Central
Industrial Security Force Act, 1968 (for Short `the Act') and Rule 11 of the
Rules framed under the Act. Section 5 reads as under :- "5. Appointment of
members of the Force.
appointment of the enrolled members of the Force shall rest with the
Director-General who shall exercise that power in accordance with rules made
under this Act.
that the power of appointment under this section may also be exercised by such
other supervisory officer as the Central Government may be order specify in
this behalf." Section 22 of the Act confers the rule making power on the
Central Government for carrying out the purposes of this Act. The Central
Industrial Security Force Rules, 1969 (for short `the Rules') have been made by
the Central Government in exercise of this power. Rule 3-1 relates to
composition of the Force comprising of `supervisory officers' and `members of
the Force', wherein, Deputy Inspector-General is named as a supervisory officer
while Inspector and Sub- Inspector, etc., are specified as the members of the
IV of the Rules relates to `Recruitment to the Force' and therein Rule 11 is as
under :- "11. Powers of appointment.- Subject to the provisions of the Act
and these rules, appointments to the posts of Inspector, shall be made by the
Deputy Inspector-General concerned and to the ranks of Sub-Inspector, Assistant
Sub- Inspector, Head Security Guard, Senior Security Guard, Security Guard and
Followers shall be made by the Commandant." Obviously, the first point has
to be decided with reference to Section 5 of the Act and Rule 11 as quoted
above. Section 5 prescribes for appointment of the enrolled members of the
Force by Director General, who shall exercise that power in accordance with the
rules made under the Act.
manner of exercise of power of appointment conferred on the Director General is
regulated by the aforesaid Rules framed under Section 22 of the Act. The
proviso to Section 5 permits the Central Government by order to specify in this
behalf such other supervisory office as may be specified to exercise the power
of appointment under the Section. In other words, Section 5 confers the power
of appointment of the enrolled members of the Force on the Director General and
permits the Central Government by an order made in this behalf to specify any
other supervisory officer also to exercise that power of appointment of the
enrolled members of the Force. Thus there can be no doubt that if the deputy
Inspector-General of the Force was so empowered by the Central Government in
accordance with the proviso to Section 5 then he was the competent authority to
appoint a Inspector or Sub-Inspector of the Force and, therefore, was the
competent authority to accept his resignation. The fact that the respondent was
an enrolled member of the Force and the D.I.G. of the Force is supervisory
officer, is clear from rule 3-A and is not disputed.
11 quoted above relates to the `powers of appointment' in Chapter IV relating
to the `recruitment to the Force'. Rule 11 clearly empowers the Deputy
Inspector- General to make appointments to the post of Inspector by virtue of
which the Deputy Inspector-General was competent to make the appointment of the
respondent end, therefore, was also competent to accept his resignation. The
opening words of Rule 11 merely say that this power is "subject to the
provisions of the Act and these rules" so that if there be an contrary
provision in the Act and these Rules, that has to be taken note of. There is no
contrary or inconsistent provision in the Act, wherein the proviso in Section 5
clearly permits the conferment of this power on a supervisory officer and there
is no inconsistent provision in the Rules. Ordinarily this discussion should be
sufficient to dispose of this point. However, the High Court has taken a
different view and, therefore, a consideration of the reason given by the High
Court for a different view requires consideration.
High Court has referred to certain propositions of law to which no exception
can be taken but the error committed is in application of those principles.
According to the High Court, the proviso to Section 5 requires conferment of
this power on a supervisory officer by an order made by the Central Government
and Rule 11 framed in exercise of its power under Section 22 of the Act does
not satisfy this requirement.
opinion, there is a clear fallacy in the view taken by the High Court. The
status of a rule framed by the Central Government in exercise of the power
conferred by Section 22 of the Act for carrying out purposes of the Act, which
in particular and without prejudice to the generality of that power enables to
provide by rules for regulating the conditions of service of members of the
Force, cannot have lesser efficacy in law or be treated as not satisfying the
requirement of an order of the Central Government contemplated by the proviso
in Section 5. The fallacy in the view taken by the High Court is that it has
assumed that the mode described by the proviso in Section 5 of conferment of
this power on a supervisory officer by the Central Government is not satisfied
by Rule 11 framed in exercise of the rule making power of the Central
Government under Section 22 of the Act or that a mere executive order sans the
power conferred on the Central Government by Section 22 of the Act is a
different and the only manner of exercise of this power given by the proviso in
Section 5 of the Act. It is this fallacy which has led to an erroneous
application of the principles mentioned in the impugned judgment to the facts
of this case.
have no doubt that Rule 11 of the Central Industrial Security Force Rules, 1969
framed by the Central Government in exercise of the rule making power conferred
on the Central Government by Section 22 of the Act fully satisfies the
requirement of the proviso in Section 5 of the Act; the D.I.G. of the Force was
duly empowered in the manner prescribed by law to exercise the power of
appointment of Inspector in the Force; and, therefore, the D.I.G. of the Force
was competent to accept the resignation submitted by the respondent.
Accordingly, acceptance of respondent's resignation by the D.i.g. on 17/10/1984 was valid and it could not be withdrawn by the
respondent subsequently on 4/12/1984. The
attempt made by the respondent to withdraw his resignation after it has been
duly accepted by the D.I.G., was ineffective. The first contention of the
respondent was, therefore, erroneously accepted by the High Court.
other contention of the respondent was also wrongly accepted by the High Court.
Rule 58 of the Central Industrial Security Force Rules, 1969 is as under :-
"58. Re-enlistment.- A member of the Force who has been dismissed therefrom
shall not be re-enlisted. However, a member of the Force who has resigned may
be re-enlisted with the sanction of the Deputy Inspector-General." The
respondent having resigned as a member of the Force may have been re-enlisted
with the sanction of the Deputy Inspector General. The contention of the
respondent which found acceptance by the High Court is that the refusal of the
sanction for re-enlistment by the D.I.G. was arbitrary.
the reason assigned to support refusal of sanction for reinstatement was that
the service record of the respondent was not satisfactory. It was also pointed
out that this prayer of the respondent had been considered twice earlier and
rejected after which the respondent had not put forth any fresh ground
requiring a change of the opinion.
High Court perused the relevant files and has referred to the notes therein.
According to a note made by the D.I.G. on 24/6/1985 the respondent had made some false
statements in his application. All this is mentioned in the impugned judgment
itself. Assuming this course was permissible, in view of the earlier unsatisfactory
conduct of the respondent being a ground for rejection of the same prayer twice
earlier and there being no fresh ground put forth for reconsideration, this
note of the D.I.G. on 24/6/1985 also contained a relevant fact to
justify refusal of the sanction for re-enlistment. However, the High Court, in
our opinion erroneously, was not satisfied and it embarked upon a further
inquiry into the correctness of those notes by enquiring into the fallacies of
the statements made by the respondent. The High Court has then said that it is
not satisfied about the due application of mind by the D.I.G. in rejecting a
prayer for re-enlistment. It has, accordingly, come to the conclusion that the
exercise of the discretion by the D.I.G. is arbitrary. In our opinion, the view
taken by the High Court is not justified.
only judicial scrutiny required for deciding whether refusal of the sanction
for re-enlistment of the respondent as a member of the Force was arbitrary, was
to see whether the record disclosed existence of relevant facts to support the
rejection of sanction. The above facts disclosed from the record which the High
Court examined, are undoubtedly relevant factors to support refusal of the
sanction by the D.I.G.. None of these factors could be called extraneous or
nonexistent. Moreover, the prayer for re-enlistment was a reiteration of the
same prayer which had been rejected twice earlier without putting forth any
fresh ground to justify the reconsideration. It is difficult to appreciate how
the exercise of the discretion by the D.I.G.
Rule 58 could be termed as arbitrary, on these facts.
Other contention of the respondent is equally devoid of any merit. There was
thus no ground on which the respondent could be granted any relief in his writ
the aforesaid reasons, the appeal is allowed. The impugned judgment of the High
Court is set aside resulting in the dismissal of the respondent's writ petition
filed in the High Court. No costs.