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PETITIONER: R.C.SAHI & ORS., C.M. BAHUGUNA & ANR.

       Vs.

RESPONDENT: UNION OF INDIA & ORS., UNION OF INDIA & ORS.

DATE OF JUDGMENT:       10/11/1998

BENCH: S. SAGHIR AHMAD. AND K. VENKATASWAMI.,

ACT:

HEADNOTE:

JUDGMENT: ORDER ----- 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.       It  is  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.       Though the  issue  lies  in  a  narrow  compass,  wide ranging  arguments  were addressed by the learned counsel in this case. The  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 short ’ECOs’). At 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, 1949. The 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. F/2/4/67.P-II  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

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the Union was introduced as one of the modes of recruitment. Since then, dispute between the direct-recruits and the ECOs started in the matter of  seniority  and  the  consequential promotions.         Initially,  respondents  1  and 2 did not admit that the ECOs would come under the  category  of  Army  Officers. Later  on,  it  was  conceded that they would come under the category of Army Officers.      When 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. The learned Judges categorically held as follows:-         "However, we think that these reservation Rules have         no application to the case  of  petitioners  (ECOs).         The  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. This  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. As a 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. After appreciating the terms of settlement given  separately

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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. In the light of the judgment of this Court in  Civil Appeal Nos. 1909-1911/89, the Union of India carried out the directions given therein. Another  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. The 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. Though  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. The  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. In  Ravi  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:         "22.  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

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       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 case. Before 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.         As  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. Before  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 directions. There are two  petitioners in W.P.  (C) No.  211/97. Out of 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.

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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. The  Writ  Petition  (C)  No.211/97  fails  and   is accordingly  dismissed. I.A. No.4 will also stand dismissed. There will no order as to costs.