http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: UNION OF INDIA & ORS.

       Vs.

RESPONDENT: BINOD BIHARI BEHERA

DATE OF JUDGMENT14/11/1995

BENCH: VERMA, JAGDISH SARAN (J) BENCH: VERMA, JAGDISH SARAN (J) VENKATASWAMI K. (J)

CITATION:  1995 SCC  Supl.  (4) 728 JT 1995 (8)   223  1995 SCALE  (6)454

ACT:

HEADNOTE:

JUDGMENT:                           JUDGMENT J.S. VERMA, J. :      Leave granted.      This 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.      The 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 special leave.      Two 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.      The 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

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.      -  The   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.      Provided 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 Force. Chapter 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. The 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 tho 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.      Rule  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

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.      The 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.      In our  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.      We 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.      The 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 :-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

    "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. Obviously,  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. The 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.      The  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. under Rule  58 could be termed as arbitrary, on these facts. The 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 petition.      For 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.