Union of India & Anr Vs. R.C.D.'
Souza [1987] INSC 55 (20
February 1987)
Misra
Rangnath Misra Rangnath Pathak, R.S. (Cj)
CITATION:
1987 AIR 1172 1987 SCR (2) 382 1987 SCC (2) 211 JT 1987 (1) 533 1987 SCALE
(1)390
ACT:
Central
Reserve Police Act 1949/Central Reserve Police Force Rules 1955--Rules 105(3-A)
and 107--Retired Army Officer--Recruited as Assistant Commandant--Later
promoted as Commandant on temporary basis--Whether entitled to absorption on
permanent basis-Section 107(2) as amended--Effect of.
HEAD NOTE:
The
respondent had been recruited as Assistant Commandant in the C.R.P.F. under
Rule 105(3-A) of the Central Reserve Police Force Rules, 1955 on the footing
that he was a retired Army Officer. He was promoted on temporary basis as
Commandant on the basis of selection. His promotional appointment as Commandant
was extended from time to time. On being informed by the Authorities that he
was not entitled for absorption in the Force in view of Rule 107(2) of the
Rules, he made a representation to the President. The said representation
having been rejected by the President, he filed a writ petition in the High
Court for a direction for his absorption in the Force. A Single Judge of the
High Court allowed the writ petition. The Division Bench also upheld the
decision of the Single Judge. Hence this appeal by special leave.
During
the pendency of the appeal, sub-rule 2 of Rule 107 was substituted with effect
from 20th September
1985. It provides that
any officer re-employed after he has retired from Army prior to the attainment
of the age of superannuation in the civil post, will, if appointed to civil
post be treated as direct recruit and his seniority in the grade fixed
accordingly.
Allowing
the appeal by the appellant in part.
HELD:
(1) Sub-rule(2) of Rule 107 of the Rules as amended in terms applies to the
respondent. He is entitled to absorption in the cadre with effect from the date
the amended rule came in force and he is, therefore, to be confirmed in the
post of Commandant and absorbed in the appropriate cadre from that date. He
would, however, be entitled to credit of continuous service for the entire
period of service as Assistant Commandant and Commandant for the limited
purpose of pension. [386B-C; F] 383 (2) Rule 107(2) made under the Central
Reserve Police Act, 1949 prior to the amendment of 1985 clearly provided that
the service shall be temporary and rules and orders applicable to Central
Government employees in temporary service would apply. The scheme of the rule
is indicative of the position that in regard to officers recruited under Rule
105(3-A), benefit of absorption was not admissible. Absorption on permanent
basis would run counter to the scheme of the rules. Therefore, the direction of
the High Court to absorb the respondent from the date of his appointment stands
set aside. [385E-H]
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 145 of 1979.
From
the Judgment and Order dated 19.7.78 of the Andhra Pradesh High Court in Writ
Petition Appeal No. 137/1978.
A. Subba
Rao, P. Parmeshwaran and Ms. S. Relan for the Appellants.
K. Ram
Kumar for the Respondent.
The
Judgment of the Court was delivered by RANGANATH MISRA, J. This appeal by
special leave is against the judgment of the Andhra Pradesh High Court in a
writ appeal agrising out of the judgment of a learned Single Judge in an
application under Article 226 of the Constitution.
The
respondent on taking premature retirement on compassionate ground from the
Indian Army at the age of 33, was offered appointment as Assistant Commandant
in the Central Reserve Police Force (CRPF for short) and was given appointment
initially for a period of three years. Early in 1970 he was promoted on
temporary basis as Commandant on the basis of selection. In October 1970, the
President sanctioned his continued re-employment for one year as Commandant.
The respondent was asked to opt for absorption. In the meantime, his
promotional appointment as Commandant was extended from time to time. In June
1976, he was informed by the Director General of the C.R.P.F. that in view of
the Rule 107 of the Central Reserve Police Force Rules, 1955, he was not
entitled for absorption in the Force. A representation of the respondent was
rejected by the President. Thereupon, he applied to the Andhra Pradesh High
Court under Article 226 of the Constitution for a direction for his absorption
384 in the Force. The learned Single Judge referred to Rule 105 which deals
with recruitment and Rule 107 dealing with tenure and on the basis that there
was nothing in these rules to disentitle a retired or released army officer
from absorption, directed the appellants to consider the respondent's permanent
absorption. The Division Bench upheld the direction and dismissed the appeal of
the appellants.
Rule
105(3-A) dealing with recruitment, inter alia, provides that the post of
Assistant Commandant shall be filled:
"(i)
xxx xxx xxx xxx (ii) by re-employment of retired or released Army Officers or
substantive Majors of the Territorial Army or Indian Police Service Officer
(Senior Scale) or with four years of service as such or State Police Officers
holding the posts of Superintendent of Police or equivalent Posts preferably
with experience of Armed Police duties or Assistant Commandants of the Central
Reserve Police Force or (iii) xxx xxx xxx xxx." Indisputably the
respondent had been recruited as Assistant Commandant on the footing that he
was a retired/released Army Officer.
Rule
107(2) dealing with tenure then provided:
"In
the case of retired/released Army Officers, they will be under re-employment
for an initial period of one year, extendable by mutual consent for one year,
at a time subject to premature termination should administrative exigency, and
or unsuitability or any other unforeseen factors so demand. The service shah be
temporary subject to all rules and orders applicable to the Central Government
employees in temporary service in general." (underlining is emphasised)
Sub-rule (2) has been substituted with effect from 20th september, 1985. The notification of that date clearly provides that
he amendment comes into force on the date of publication in the official
gazette. The amended rule runs thus:
"(a)
In the case of officers re-employed after they had 385
retired/discharged/released from Army prior to the attainment of age of
superannuation in the civil posts, will, if appointed to civil posts, be
treated as direct recruits and their seniority in the grade fixed accordingly
as under:
(i) the
inter se seniority of persons so re-employed shall be determined in accordance
with the orders of their selection;
(ii) the
relative seniority of persons so re-employed in relation to direct recruits and
promotees shall be determined on the basis of chronology of selection;
(iii) their
confirmation and promotion to higher posts would take place with reference to
seniority so fixed subject to fulfillment of other laid down conditions
regarding probation.
(b)
The ex-army officers re-employed after they have attained the age of
superannuation in civil posts shall not form part of the cadre and would be
treated as if appointed on contract basis and such re-employments on contract
basis shall be extendable on year to year basis." Rule 107(2) made under
the Central Reserve Police Act, 1949 prior to the amendment of 1985 clearly
provided that the service shall be temporary and rules and orders applicable to
Central Government employees in temporary service would apply.
It is
true that Rule 105(3-A) dealing with the post of Assistant Commandant
prescribes three alternate modes of recruitment. Rule 107 provided that in case
of recruitment by the second mode in Rule 105(3-A) temporary status only would
be conferred. Absorption on permanent basis would run counter to the scheme of
the rules. The High Court has found as a fact that the departmental authorities
called for the option of the respondent for absorption. Such a step contrary to
the statutory rules would not operate as an estoppel nor confer any right to
claim absorption. The scheme of the rule is indicative of the position that in
regard to that category of officers benefit of absorption was not admissible
and we are inclined to agree with the submission of the appellants that the
High Court was in error in saying that there was nothing which stood in the way
of absorption.
386 It
is a fact that the respondent has been given a promotion and in the promotional
post he has worked for about 16 years. On the basis of such promotion on
temporary basis the respondent would not be entitled to absorption as well. The
respondent was being continued in the promotional post by orders of the
President from time to time which is clearly indicative that the arrangement
was on temporary basts.
Even
though under sub-rule (2) of Rule 107 as it stood, the respondent was not
entitled to claim absorption, he is certainly entitled to the benefit of the
amended provision from 20th
September, 1985.
Sub-rule (2) as amended in terms applies to him and counsel for the appellants
has also accepted this position. Therefore, the respondent is entitled to
absorption in the cadre with effect from the date the amended rule came into
force and he is, therefore, to be confirmed in the post of Commandant and
absorbed in the appropriate cadre from that date. Admittedly the respondent has
put in continuous service of more than 20 years in the Force and it would be
totally unjustified to deprive him of credit of service. Though he may not be
entitled to other advantages of such service prior to the date of absorption,
in our view, he should be entitled to count that period for pension
entitlement. We, therefore, allow the appeal to the extent that the direction
of the High Court to absorb the respondent from the date of his appointment
stands set aside and in its place the respondent shall be entitled to
absorption with effect from 20th September, 1985. His seniority in the post of Commandant shall run from that date and
he would be entitled to all service advantages on the basis of such absorption
from September 1985. He would, however, be entitled to credit of continuous
service for the entire period of service as Assistant Commandant and Commandant
for the limited purpose of pension.
Learned
counsel for the respondent pointed out in course of argument that there were
some similarly placed officers as the respondent but they have been given the
benefit of absorption. This is a matter which the appellants should look into
and anomaly on such score should be considered by them. In the absence of such
officers, if any, we are not inclined to give any direction to deprive them of
any benefit which may have been obtained by them. Both parties are directed to
bear their own costs throughout.
M.L.A.
Appeal allowed.
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