& Ors, C.M. Bahuguna & Anr Vs. Union
of India & Ors  INSC 519 (10 November 1998)
Ahmad. and K. Venkataswami.,
----- Writ Petition (c) No.211/97 under Article 32 of the Constitution of India
has been filed with a prayer to issue a writ of mandamus to the respondents 1
and 2 to implement the judgment of this court dated January 19, 1995 in Ravi Paul and Ors. vs. Union of India and Ors. [(1995) 3 SCC 300] and
also the Order dated July
18, 1995 of this Court
in R.C. Sahi & Ors. vs. Union of India
& Ors. and for other consequential reliefs as well.
the case of the petitioners that this Court in R.C. SAHI'S case had expressly
directed the first respondent to revise the seniority list, if necessary, after
hearing the officers concerned, in accordance with law. The first respondent,
according to the petitioners, purporting to implement the order of this Court
in Sahi's case, had prepared a seniority list ignoring the relevant provisions
of law which had affected their seniority. It is to be noted, the petitioner
were also parties in Sahi's case.
the issue lies in a narrow compass, wide ranging arguments were addressed by
the learned counsel in this case.
short question that arises for consideration is whether Respondents 1 and 2 are
justified in taking into account the past services of the private respondents
in the Army for the purpose of fixing seniority between the petitioners -
direct - recruits and the respondents-Emergency Commissioned officers (for
this stage, a brief recount of the facts relating to the issue is necessary. The
Central Reserve Police Force (for short 'CRPF'), with which we are now
concerned, came into existence under the Central reserve Police Force Act,
CRPF Rules were framed in the year 1955 to deal with various matters. Rule 105
related to appointment and promotion of superior officers. By Notification No.
dated May 11, 1967 issued by Ministry of Home Affairs, an amendment to Rule 105
was introduced by adding Clause (iv-A) to Rule 105. By the said amendment,
appointment of emergency Commissioned Officers (ECOs) and Short-Service
Commissioned Officers of the Armed forces of the Union was introduced as one of the modes of recruitment.
dispute between the direct-recruits and the ECOs started in the matter of
seniority and the consequential promotions.
respondents 1 and 2 did not admit that the ECOs would come under the category
of Army Officers.
on, it was conceded that they would come under the category of Army Officers.
the past service in the Army by the ECOs was ignored in the matter of seniority
and promotion, they moved the Delhi High Court for necessary directions to the
respondents 1 and 2 to include their past Army service for the purpose of
seniority and consequential promotion. The Delhi High Court by its decision
dated September 2, 1985 in C.W. No. 44/85 accepted the
claim of the ECOs. Inter alia, the issue relating to the application of
Emergency Commissioned Officers and Short-Service Commissioned Officers
(Reservation and Vacancies) Rules, 1967 (for short '1967 Rules') was also
considered by the Delhi High Court.
learned Judges categorically held as follows:- "However, we think that
these reservation Rules have no application to the case of petitioners (ECOs).
reason for this is that the petitioners have been treated as a separate source
of recruitment for the Central Reserve Police Force, 1955 after their
amendment. No question of reservation as such is involved in the recruitment of
the petitioners. Once they are recruited, the next question is the seniority
and pay they have to enjoy in the service after recruitment." The above
judgment of the Delhi High Court was challenged before this Court in S.L.P. (C)
Nos. 1390/85 and 16911/85.
Court by a reasoned order dated January 21, 1986 dismissed the S.L.Ps upholding the judgment of the Delhi
High Court. No doubt, a three Judge Bench of this Court in Ravi Paul's case and
observed that the judgment of the Delhi High Court, as affirmed by this Court,
had not laid down the correct law insofar as it held that Rule 8 of 1955 CRPF
Rule enabled the ECOs to add their past Army services for the purposes of
seniority in the CRPF. Only to that extent it can be taken that the judgment of
the Delhi High Court, as affirmed by this Court, was not accepted. However,
this Court in Ravi Paul's case held that the Executive Instructions issued on
5.7.72 enabled the ECOs to add their past Army service in the Service of CRPF.
result of the judgment dated 2.9.85 of the Delhi High Court in C.W.No. 44/85,
U.B.S. Teotia & Ors. vs. U.O.I. & Ors., as confirmed by this Court on
21.1.86 as many as 37 direct-recruits, who were holding the posts of
Commandant, were reverted. Aggrieved by that, the direct-recruits moved the
High Court for recalling the earlier judgment in C.W.No. 44/85 (Teotia's case),
inasmuch as those direct recruits were not parties and the ratio laid down in
the judgment giving benefit of past Army service, prejudicially affected their
interests. The Delhi High Court dismissed the petition of the direct-recruits.
Thereafter, the Union of India and the direct-recruits moved this Court. In
Civil Appeal Nos. 1909-1911/89. [vide U.O.I & Ors. vs. N.S. Sekhawat &
Ors.] this Court considered the grievances of the direct-recruits. Even at that
time, this Court had observed that the dispute between the direct-recruits and
the ECOs over the question of seniority and been going on for a long time and
also noticed that the parties desired to settle the dispute amicable and for
that purpose granted adjournments.
appreciating the terms of settlement given separately by the Union of India,
direct-recruits and the ECOs, this Court by its order dated 14.3.89 protected
the interests of direct-recruits by directing the Union Government to create 37
supernumerary posts. It must be noted that the right of adding past Army
service of the ECOs was not disturbed.
light of the judgment of this Court in Civil Appeal Nos. 1909-1911/89, the
Union of India carried out the directions given therein.
set of direct-recruits of different year moved this Court by filing W.P.(C) No.
1177/89 under Article 32 of the Constitution of India stating that they were
not parties to the earlier decision of this Court and, therefore, the decision
of this Court in C.W. No. 1909-1911/89 prejudicially affected their interests.
This Court again considered the issue and by decision dated July 18, 1995 directed the Union of India to
create necessary supernumerary posts to safeguard the interests of
direct-recruits. It is again to be noted that the question of adding past Army
service in the case of ECOs was not raised and that matter was taken as
concluded. While disposing of the writ petition, this Court observed as follows:-
"We make it clear that any further promotion from amongst the two
categories shall be made in accordance with law. If it is necessary to revise
the seniority list, the Govt. of India shall do the same after hearing the
officers concerned and in accordance with law." It is under these
circumstances, the seniority list was revised by the Respondents 1 and 2.
Aggrieved by that again, the direct-recruits have moved this Court by filing
Writ Petition (c) No. 211/97 besides I.A. No.4 in Writ Petition (c) No. 1177/89
for the relief already noticed.
arguments of Dr. Rajeev Dhawan, learned senior counsel for the petitioners, is
that the Rules framed under Article 309 of the Constitution of India in the
year 1967 do apply to the facts of the case and the seniority as well as
promotion to the respondents must be made with reference to those Rules. The finalisation
of impugned seniority list, according to the learned senior counsel, by
referring to Executive Instructions issued on 5.7.72 is contrary to
well-settled principles that the Executive Instructions cannot supersede the
Rules framed under Article 309 of the Constitution of India.
Dr. Rajeev Dhawan, learned senior counsel initially resisted the contention
advanced on behalf of the respondents that 1967 Rules will have no application
to the facts of the case, ultimately he has to give up that argument and in our
view rightly, in view of the fact that those Rules were intended to be applied
in central Civil Services. We have earlier noticed the observations of the
Delhi High Court on this very issue and the conclusion reached by it. We are in
agreement with those observations.
result is that the only issue to be decided is whether the application of
Executive Instructions issued on 5.7.72 for fixing the seniority between the
direct recruits and ECOs is permissible or not.
Paul's case, the Executive Instructions of 5.7.72 came up for consideration,
while considering a case under Border Security Force Rules 1969. This Court in
that case observed as follows:
It would thus appear that Rule 8(b)(i) of the CRPF Rules only governs the
seniority as between Army Officers inter se, Army Officers and re-employed Army
Officers inter se, Indian Police Service Officers inter se, and non-Army and
Army Officers of equivalent rank inter se. The expression 'rank' in this rule
means the rank in CRPF. There is nothing in Rule 8(b) to indicate that the
earlier Army service of an Army Officer or a re-employed Army Officer is to be
counted for the purpose of seniority in CRPF. Since Rule 8(b) (i) is silent in
this regard executive instructions can be issued by the Central Government for
the purpose of giving benefit of Army service to Army Officers or re-employed
Army Officers. With that end in view the Government of India, it its letter
dated 5.7.1972 addressed to the Director General BSF and CRPF as well as IG
(ITBP) and Secretary (Home), Arunachal Pradesh Administration, has laid down
certain principles for the purpose of fixation of seniority of ex-ECOs
appointed in the BSF, CRPF, ITBP and Assam Rifles. The said principles were,
however, applicable only to ex-ECOs who were absorbed/appointed in these forces
during the period 1967 to 1970." (Emphasis supplied) In view of the above
observations, it is clear that in the absence of a provision to give benefit of
the past service in Army service to the ECOs in the main rule, the Executive
Instructions are permissible and the Executive Instructions dated 5.7.72 were
issued to achieve that object. Dr. Rajeev Dhawan, learned counsel, could not
seriously contend that if the Executive Instructions of 5.7.72 are to be
applied and the past Army service of the ECOs is added, the private respondents
will be senior to the petitioners. It is the specific case of the respondents 1
and 2 that the impugned seniority list was prepared on the basis of the
Executive Instructions dated 5.7.72. Therefore, there is no room for doubt that
the seniority list now prepared by the respondents 1 and 2 is quite in
accordance with law and in compliance with the directions of this Court in Sahi's
concluding, we may also point out that the petitioners before filing writ
Petition (c) No.211/97. sought for a review of the judgment in R.C. Sahi's case
but withdrew the same. Similarly, they filed a petition for contempt on the
ground that this Court's order was not implemented and subsequently withdrew
the same. They have also filed I.A. No. 4 for clarification besides filing this
Writ Petition for implementation of the order of this Court in Sahi's case.
noticed earlier, the petitioners could not establish that 1967 Rules are
applicable to the private respondents and that Executive Instructions dated
5.7.1972 will not apply to the respondents. We do not think that the
petitioners have made out any case for making the rule absolute nor for any
clarification of the Order of this Court in Sahi's case.
parting with this case in order to do complete justice and having regard to
precedents in the earlier connected disposed of matters, we make the following
are two petitioners in W.P. (C) No. 211/97.
these two, it is stated that one has already retired from the service. In the
light of the interim orders dated 19.1.98 and 27.1.98, the first petitioner
(C.M. Bahugunha) is still in service in the promoted post. In the
circumstances, we are of the view that, notwithstanding the dismissal of the
Writ Petition, the petitioner, viz. C.M. Bahuguna, who is still in service in
the promoted post, should be allowed to continue in the said promoted post, if
necessary, by creating a supernumerary post. However, we make it clear that all
further promotions shall be made in the light of this Order.
Writ Petition (C) No.211/97 fails and is accordingly dismissed. I.A. No.4 will
also stand dismissed.
will no order as to costs.