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PETITIONER: UNION OF INDIA &ANR.

       Vs.

RESPONDENT: R.C.D.’ SOUZA

DATE OF JUDGMENT20/02/1987

BENCH: MISRA RANGNATH BENCH: 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  ab- sorption    on    permanent    basis-Section    107(2)    as amended--Effect of.

HEADNOTE:     The  respondent had been recruited as Assistant  Comman- dant  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  superannua- tion 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 amend- ed  in  terms applies to the respondent. He is  entitled  to absorption in the cadre with effect from the date the amend- ed 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  serv- ice  as Assistant Commandant and Commandant for the  limited purpose of pension. [386B-C; F]

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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.  Absorp- tion  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]

JUDGMENT:     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  Constitu- tion.     The respondent on taking premature retirement on compas- sionate  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 appoint- ment 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  enti- tled  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 respond- ent’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

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             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  Offi-               cers, 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 proba-               tion.               (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 applica- ble  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

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as  a fact that the departmental authorities called for  the option  of the respondent for absorption. Such a  step  con- trary to the statutory rules would not operate as an  estop- pel 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 promo- tion 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  enti- tled  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 absorp- tion 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  enti- tled  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  bene- fit  which may have been obtained by them. Both parties  are directed to bear their own costs throughout. M.L.A.                                                Appeal allowed. 387