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PETITIONER: RAVI PAUL & ORS.

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT19/01/1995

BENCH: AGRAWAL, S.C. (J) BENCH: AGRAWAL, S.C. (J) KULDIP SINGH (J) HANSARIA B.L. (J)

CITATION:  1995 SCC  (3) 300        JT 1995 (1)   579  1995 SCALE  (1)261

ACT:

HEADNOTE:

JUDGMENT: S.C. AGRAWAL, J.: 1.   Both  these matters raise a common  question  regarding determination   of  seniority  of   Emergency   Commissioned Officers  (ECOs)  and Short  Service  Commissioned  Officers (SSCOs)  who were recruited as Assistant Commandants in  the Border  Security  Force after their release from  the  Army. The  question is whether the said Officers are  entitled  to count the service rendered by them in the Army for the  pur- pose  of fixation of their seniority in the Border  Security Force. 2.   In the wake of the Chinese aggression in 1962, in order to meet the shortage of Commissioned Officers in the  Indian Army,  the Government of India started a special  scheme  to select officers through 582 Service Selection Board and granting them Commission in  the Indian  Army.  Such Commissioned Officers were called  Emer- gency Commissioned Officers (ECOs).  In 1965, in addition to the Emergency Commissioned Officers the system of Short Ser- vice Commission (SSC) was introduced.  The initial period of such Commission was 5 years but it was extenable for another 5  years  depending on the  requirement/suitability  of  the officer.  After the expiry of the initial period of 5 years, the  officer, even if granted extension, could  request  for release during the extended period at any stage.  After  the expiry of the extended period, he was to be released  unless he was found acceptable for grant of permanent Commission in the Indian Army and was granted permanent Commission. 3.The  Border  Security  Force is one  of  the  paramilitary forces  of the Government of India.  It was  constituted  in 1965.   It was initially governed by Central Reserve  Police Force  Rules,  1955 (hereinafter referred to  as  the  ’CRPF Rules’)  made  under the provisions of the  Central  Reserve Police Force Act, 1949.  For that purpose Chapter XV  (Rules

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112  to 116) was inserted in the CRPF Rules on December  21, 1966.    The  said  Chapter  bears  the   heading   "Special Provisions  relating  to Border Security Force".   Rule  113 thus introduced made provision for appointment and promotion of  superior officers.  SubRule (2) of Rule 113  related  to appointment  on  the posts of Deputy  Commandant,  Assistant Commandant or Adjutant or Joint Assistant Directors or other equivalent  rank and sub-Rule (3) related to appointment  on the  posts of Company Commanders, Quarter-master and  Junior Staff  Officers  and  other posts in  the  force  equivalent thereto.   On  May  11, 1967, the CRPF  Rules  were  further amended  and Clause (iv A) was inserted in sub-Rule  (3)  of Rule  113 and thereby provision was made for appointment  of ECOs and SSCOs who were commissioned on or after November 1, 1962  and were released at any time thereafter.   A  similar provision  was contained in clause (ivA) introduced in  sub- Rule  (4) of Rule 105 of the CRPF Rules which  provided  for appointment  to the post of Company Commanders  or  Quarter- master  in  Battalions  other  than  Signal  Battalions   or Assistant Principal Central Training College in the  Central Reserve  Police  Force.  On September  2,  1968,  Parliament enacted  the  Border Security Force Act,  1968  (hereinafter referred   to  as  the  ’BSF  Act’)  to  provide   for   the constitution  and regulation of an armed force of the  Union for  ensuring the security of the borders of India  and  for matters connected therewith.  Sub-Section (1) of Section 141 of the BSF Act empowers the Central Government to make rules for  the purpose of carrying into effect the  provisions  of the said Act.  Clause (b) of sub-Section (2) of Section  141 confers the specific power to frame rule to provide for  the enrolment  of  persons to the force and the  recruitment  of other  members of the Force.  Clause (c) of sub-Section  (2) of Section 141 confers the power to make rules providing for conditions  of  service (including deductions from  pay  and allowances) of the members of the Force.  Under  sub-Section (2)  of Section 142 members of the Border Security Force  in existence at the commencement of the Act are deemed to  have been  appointed  or, as the case may be,  enrolled  as  such under the Act. 4.In exercise of the powers conferred by Section 141 of  the BSF Act the Central Government has made the Border Secu- 583 rity Force Rules, 1969 (hereinafter referred to as the  ’BSF Rules’)  which  came into force on June 13,  1969.   Rule  9 which provides for appointment of officers lays down:-               "9.  Appointment of Officers.-               The   Central  Government  may  appoint   such               persons as it considers to be suitable in  the               Force,  and their conditions of service  shall               be  such as may be provided in the rules  made               in this behalf by the Central Government.  "               5.    As   regards  seniority  the   following               provision is made in sub-rule (2) of Rule 14:-               "14(2)  :  Matters relating to  inter  se  se-               niority of persons belonging to the same  rank               shall  be determined in accordance  with  such               rules as may be made in this behalf". 6.   By notification dated December 8, 1969, the     Central Government made the Border    Security   Force    (Assistant Commandants  Recruitment) Rules, 1969 (hereinafter  referred to  as the ’BSF Recruitment Rules’) which provided  for  the manner  of recruitment to the post of Assistant  Commandants in the Border Security Force.  The said Rules were  repealed by   the  Border  Security  Force  (Assistant   Commandants) Recruitment  (Repeal) Rules, 1973 published on November  23,

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1973.   After the repeal of the BSF Recruitment  Rules,  the Government  of  India, Ministry of Home Affairs,  issued  an order  dated  January 16, 1974 prescribing  the  manner  for recruitment  to  the posts of Assistant Commandants  in  the Border  Security  Force.  The said order provided  that  the posts  of  Assistant  Commandants  shall  be  filled  in  by (i)direct recruitment from amongst candidates possessing the qualifications laid down therein or (ii) reemployment of re- tired  or released army officers who have held the  rank  of Captain or retired State Police Officers or retired Officers of  the  Border Security Force who have held the rank  of  a Deputy  Superintendent of Police or an Assistant  Commandant or  other equivalent ranks; or (iii) transfer on  deputation from  the  rank  of  Captain  from  the  Army  or  Assistant Superintendent of Police or Deputy Superintendent of  Police from  the State Government; or (iv) transfer  on  deputation (by promotion) of Officers holding the post of Inspector  of Police  or  equivalent  post, having held such  post  for  a period  of  three  years  in any  Central  or  State  Police Organization;  or (v) promotion of Subedars (Inspectors)  of the Border Security Force who have not completed the age  of 50   years;   or  (vi)  transfer/promotion   from   suitable ministerial  staff  not  below the  rank  of  an  Assistant, serving  at Headquarters, Director General, Border  Security Force. 7.Soon  after  the  constitution of the  BSF  in  1965,  the Government needed experienced officers for the force and  in order to attract ECOs/SSCOs from the Army to the BSF it  was offered that their service in Army would be counted for  the purpose  of  seniority  in the BSF.   Similar  benefit  with regard  to counting of army service for seniority  was  also given  to  ECOs/  SSCOs who were appointed  in  other  civil services  under the Emergency Service Commissioned  Officers (Recruitment  and  Vacancies) Rules, 1967.  The  said  Rules ceased to have application on June 24, 1974 and the facility of recruitment of the ECOs/SSCOs against vacancies in  civil services was discontinued.  Similarly, in the 584 matter of adsorption/appointment in the para military forces there was a change in the policy of the Government of India. By letter dated September 6, 1972 it was indicated that Army service would not be counted for the purpose of seniority in respect of SSCOs who were absorbed/appointed on the basis of future  selections.  The Border Security  Force  (Seniority, Promotion  and  Superannuation)  Rules,  1978   (hereinafter referred to as the ’BSF Seniority Rules’) were published  on December  9,  1978.  Rule 3 of the said Rules  provided  for seniority  of officers and in clause (v) of sub-Rule (2)  it was prescribed that "seniority of re-employed officers in  a particular  rank shall be determined from the date of  their re-employment in that rank.  " 8.   During  the  period 1966 to 1971, a number  of  ex-ECOs were appointed as Assistant Commandants in the Border  Secu- rity  Force.  In the letter of appointment of many of  them, it was specifically mentioned that "you shall be treated  as belonging to the year in which you would have been appointed or  attained the minimum age of entry into the  service/post concerned  or on the date of your joining  military  service whichever  is  earlier." Moreover, the Government  of  India vide  order  dated  July  5, 1972  had  also  indicated  the principles  which  were  to be followed  in  the  matter  of fixation of seniority of exECOs who were appointed as Deputy Superintendents  of Police/Company Commander in  the  Border Security  Force, the Central Reserve Police Force, in  Indo- Tibetan Border Police and the Assam Rifles.  Under the  said

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principles the service in the Army was to be counted for the purpose  of  seniority  in  the  manner  indicated  therein. Respondents  Nos. 3 to 445 in Civil Appeal No. 4127 of  1985 are  such  ECOs  who were  absorbed/appointed  as  Assistant Commandants  in the Border Security Force during the  period 1966-77  and whose seniority has been fixed by  taking  into account their past service and training period in the  Army. The  appellants  in the said appeal are  officers  who  were directly  recruited as Assistant Commandants in  the  Border Security  Force  in  the  year 196677.  They  filed  a  Writ Petition  (C.W.P.  701  OF 1978) in  the  Delhi  High  Court wherein  they assailed the fixation of seniority of the  ex- ECOs  in the Border Security Force.  The said Writ  Petition was, however, dismissed by a learned Judge of the High Court by judgment dated September 9, 1983.  Civil Appeal No.  4127 of 1985 is directed against the said judgment of the learned Single Judge. 9.   The  Government of India, Ministry of Home  Affairs  in their  letter dated September 6, 1972 addressed to the  Army Headquarters,  Military  Secretary’s Branch  (MS)  intimated that  the  Government has constituted  a  Special  Selection Board for recruitment of released SSRC Officers/ ECOs to the posts  of Assistant Commandants/Company  Commanders  (Deputy SP)  in  the  BSF,  CRPF,  Assam  Rifles,  etc.  under   the Chairmanship of the Director General, Border Security Force. In the said letter it was stated that few applications  have been  received  from  SSRC  Officers  who  have  since  been released or who have not been placed in an acceptable  grade for  the grant of Permanent Regular Commission in the  Army. By said order it was requested that wider publicity be given so that SSRC Officers who were not aware of the constitution of  the Board and arc not placed in an acceptable grade  for Permanent Regular Commission may get the 585 opportunity  of  being  considered for  appointment  in  the paramilitary forces under the Ministry of Home Affairs.  The Army Headquarters were requested to inform this category  of officers  serving in various formations/units that they  may for  ward their applications direct to the  Deputy  Director (Organization),  Directorate General, Border Security  Force latest  by  October  10, 1972.  In the said  letter  it  was further stated :-               "The  circular issued by you may  also  inform               the  applicants  that the  service  they  have               rendered  as  SSRCOs will  not  count  towards               seniority  and  pension, if selected,  in  the               para-military forces."               10.The petitioners in Writ Petition No. 146 of               1992  filed in this Court under Article 32  of               the Constitution are SSCOs who, after  release               from  the  Indian  Army,  were  appointed   as               Assistant   Commandants  in  the   BSF   after               selection  by  the  Special  Selection   Board               during the years 1974 to 1978.  In their case,               the letters of appointment expressly stated -               "Your  pay  will be fixed at  the  appropriate               stage of the aforesaid scale considering  your               age  at the time of your Army  Commission  and               your  Army  Commissioned service.   Your  Army               service  shall  not  count  for  seniority  or               promotion in BSF.  " While their Army service was taken into consideration in the matter of fixation of pay they were not given the benefit of their past service in the Army for the purpose of  seniority or promotion.

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11.  It appears that ECOs appointed in the   CRPF during the same period were also    not given the benefit of their past service in the Army in the matter of fixation of  seniority. A Writ Petition (C.W.P. No. 44 of 1975, U.B.S. Teotia & Ors. v. Union of India & Ors.) was filed in the Delhi High  Court by  the  ECOs  in  the CRPF claiming  that  they  were  Army Officers within the meaning of Rule 8 of the CRPF Rules  and that they were entitled to add the length of their  unbroken Army  Service towards seniority in the CRPF.  The said  writ petition  was dismissed by the Delhi High Court by  judgment dated  February 6, 1978 on the view that ECOs were not  Army Officers  and,  therefore, they were not entitled  to  avail their  past  Army service.  Civil Appeal No.  1389  of  1979 (U.B.S. Teotia & Ors. v. Union of India & Ors.) filed by the ECOs  in  this Court against the said decision of  the  High Court, was disposed of by this Court by Order dated December 5, 1984 wherein it was observed :- "It  is  now  agreed  by all parties  that  they  were  Army Officers." On  that  view, the Court remanded the matter  to  the  High Court for fresh decision of the issues involved on the basis that  the appellants in the said appeal were Army  Officers. The  matter was thereafter considered by the High Court  and by judgment dated September 2, 1985, a Division Bench of the High  Court  allowed  the writ petition and  held  that  the petitioners  in the said writ petition, viz.,  the  released ECOS, were entitled to get benefit of their past service  in the Army on the view that since the ECOs were Army Officers, they were entitled to protection of Rule 8(b) of CRPF  Rules which governs the inter se seniority of superior offices  in the CRPF.  The Union of India as well as the direct recruits in the CRPF filed petitions for 586 special  leave  to appeal against the said judgment  of  the Delhi High Court.  Special Leave Petition (Civil) No.  13910 of  1985  (P.J Sheity & Ors. v. Union of India &  Ors.)  was filed  by  the  direct recruit and  Special  Leave  Petition (Civil)  No 16911 of 1985 (Union of India & Ors.  v.  U.B.S. Teotia & Ors.) was filed by the Union of India.  Both  these petitions  were  dismissed  by this  Court  by  order  dated January 21, 1986 on the view that the respondents were  Army Officers within the meaning of Rule 8 of the CRPF Rules  and they  were  entitled  to add the length  of  their  unbroken service as ECOs and SSCOs for the purpose of reckoning their seniority.   In  accordance with the said  decision  of  the Delhi  High  Court,  which was upheld  by  this  Court,  the seniority  of ECOs/SSCOs who were absorbed in the  CRPF  has been  revised and they have been given the benefit  of  past service. 12.The  SSCOs  who  were  absorbed in  the  BSF  filed  Writ Petition  No. 3469-72 of 1983 (Kanwar Mehar Chand & Ors.  v. Union of India & Ors.) in this Court under Article 32 of the Constitution wherein they claimed that their service in  the Army  be counted for the purpose of seniority.  In the  said Writ  Petitions  a  counter  affidavit  was  filed   wherein reliance  was placed on the letters of  appointment  showing that past Army service shall not count towards seniority and promotion  in  the  BSF.   The  said  Writ  Petitions   were dismissed by order dated April 6, 1984.  After the seniority of the ECOs/SSCOs who were absorbed in the CRPF was  revised in  1986, a representation was submitted by the ECOs/  SSCOs who  were  absorbed  in  the  BSF  for  revision  of   their seniority.   The said representation was, however,  rejected on  December  4, 1986 on the view that  in  the  appointment letters  it  was clearly stated that Army service  will  not

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count  towards .seniority and promotion in the BSF.   There- upon, the said officers filed a Writ Petition (Writ Petition No.  1024  of  1988) in the Delhi High  Court  wherein  they relied  upon the judgment of the Delhi High Court in  U.B.S. Teotia’s  case (supra) which had been upheld by  this  Court and  claimed that they were also entitled to the benefit  of their Army service as was given to the officers who has been absorbed in the CRPF.  The said Writ Petition was  dismissed by the High Court by judgment dated November 16, 1990 on the ground  that  it was barred by resjudicata in  view  of  the dismissal  of the earlier Writ Petition filed under  Article 32 of the Constitution in this Court.  Feeling aggrieved  by the  said  judgment  of the High  Court,  petitioners  filed Special  Leave Petition (Civil) No. 1802 of 1991 (Ravi  Paul v.  Union  of  India & Ors.) wherein the  Court  passed  the following order on July 30, 1991:-               "Mr.   Harish Salve, learned counsel  for  the               petitioners,  states that notwithstanding  the               dismissal  of  the writ petition by  the  High               Court  on the ground of resjudicata  he  would               submit  a detailed representation  before  the               Government on the merits of this case.  He may               do  so  within  two  weeks  from  today.   The               private  respondents may, if they  so  desire,               file counter to the representation.  The  Gov-               ernment  will  decide  the  representation  on               merits  after hearing the parties within  four               months  from  today.  The  speaking  order  so               passed  be  placed before this  Court  and  be               given to parties also.  List the special leave               petition on December 4, 1991. " 13.The  petitioners submitted a detailed  representation  on August  12, 1991.  The said representation was  rejected  by order dated January 13, 1992.  Feeling aggrieved 587 by  the said Order, Writ Petition No. 146 of 1992  has  been filed  under Article 32 of the Constitution wherein  it  has been prayed that the order dated January 13, 1992 be quashed and it be declared that the petitioners are entitled to  add the  length  of  their unbroken service  rendered  as  Short Service  Commissioned Officers towards seniority in the  BSF as  per  Rule  8 of the CRPF Rules, 1955.  In  view  of  the development  that had taken place in pursuance to the  order passed  by this Court on July 30, 1991, viz., the filing  of the  representation and the rejection of the same  by  order dated  January  13,  1992 which is the  subject  -matter  of challenge  of Writ Petition No. 146 of 1992, this  Court  on March  27, 1992 disposed of S.L.P. (Civil) No. 1802 of  1991 with the following observation               "In view of this development the Special Leave               Petition arising out of the impugned  judgment               and  order  of  the  Delhi  High  Court  dated               16.11.1990 does not survive and we, therefore,               dispose it of accordingly without prejudice to               the  rights and contentions which the  parties               have  raised in the substantive Writ  Petition               filed under Article 32 of the Constitution." 14.We  will first take up Writ Petition (Civil) No.  146  of 1992  filed  by  the SSCOs who  were  absorbed/appointed  as Assistant  Commandants in the BSF during the period  1974-78 after  being selected by the Special Selection  Board.   The petitioners  in  their  Writ Petition  have  challenged  the fixation  of  their  seniority and have  claimed  that  they should  be  given the benefit of their past service  in  the Army.   The basis for the claim of the petitioners  is  that

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they  were absorbed/appointed in the BSF in accordance  with the provisions contained in Rule II 3 (3)(iv-A) of the CR.PF Rules  and,  like other officers who were  absorbed  in  the CRPF, the seniority of the petitioners is governed by Rule 8 of  the CRPF Rules and that in view of the decision  of  the Delhi  High  Court dated September 2, 1985  in  Shri  U.B.S. Teotia  &  Ors.  v. Union of India & Ors.,  which  has  been upheld  by this Court by Order dated January 21,  1986,  the petitioners are also entitled to have their seniority  fixed by  taking into account their past service as SSCOs  in  the Army.    The  said  plea  of  the  petitioners  raises   two questions:-  (1) Was the absorption and appointment  of  the petitioners  as Assistant Commandants in the BSF in  1975-78 under  Rule II 3(3)(iv-A) of the CRPF Rules? and (2) Is  the seniority of the petitioners governed by Rule 8 of the  CRPF Rules? 15.As  regards the absorption/appointment of the  petitioner as Assistant Commandants in the BSF during the period  1974- 78 it has already been noticed that initially, i.e.,  before the  enactment  of  the BSF  Act,  appointment  of  superior officers  in  the BSF was governed by Rule 113 of  the  CRPF Rules.  The enactment of the BSF act in 1968 brought about a change.   The  said  Act, in Section  4,  provides  for  the constitution  of the BSF and in subSection (2) of Section  4 it  is prescribed that subject to the provision of  the  BSF Act, the Force (BSF) should be constituted in such manner as may  be  prescribed  and the condition  of  service  of  the members of the Force shall be such as may be prescribed.  In sub-Section  (1) of Section 141 power has been conferred  on the  Central  Government to make rules for  the  purpose  of carrying  into  effect the provisions of the Act.   In  sub- Section (2) of Section 141 it has been specifically provided that  such rules may, inter alia, provide for the  enrolment of the persons to the Force and the 588 recruitment  of the other members of the Force [clause  (b)] and the conditions of service (including deductions from pay and  allowances) of the members of the Force  [clause  (c)]. It would thus appear that after the enactment of the BSF Act in  1968, the CRPF Rules ceased to have application  in  the matter  of recruitment to the BSF as well as the  conditions of service of the members of the said force and the BSF  was governed by the provisions of the BSF Act only.  The BSF Act does  not provide for continuing the applicability  of  CRPF Rules to the BSF.  On other hand, we find that in the matter of recruitment to the post of Assistant Commandant, the Cen- tral  Government made BSF Recruitment Rules on  December  8, 1969 which continued in force till they were repealed on No- vember  23,  1973.  Thereafter, recruitment to the  post  of Assistant  Commandant  in  the  BSF  was  governed  by   the executive  order  dated  January  16,  1974  issued  by  the Government  of  India.   In law it  was  permissible  do  so because it is well settled that it is not obligatory to make rules  for  recruitment  etc.  before  as  service  can   be constituted or a post created or filled and the  Government, in exercise of its executive power, can make appointments in the absence of rules. [See : B.N. Nagarajan & Ors. v.  State of Mysore & Ors., 1966 (3)    SCR 682 at p. 686]. 16.  The  position  which emerges is that  the  CRPF  Rules, which  governed  recruitment to the BSF, ceased to  have  an application  after the enactment of the BSF Act,  1968  and, thereafter,  the  matter  of  recruitment  to  the  post  of Assistant  Commandant  was  first governed by  the  BSF  Re- cruitment  Rules and after the repeal of the said  Rules  in 1973  the  said  recruitment was governed by  the  order  of

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Government  of India dated January 16, 1974.  The repeal  of the BSF Recruitment Rules in 1973 would not have the  effect of reviving the applicability of CRPF Rules to the BSF.   We are,  therefore, of the view that absorption/appointment  of SSCOs  on the post of Assistant Commandant in the BSF  after selection  by the Selection Board during the period  1974-78 was  not made under the provisions of Rule II 3(3)(iv-A)  of the CRPF Rules, as claimed by the petitioners, but was  made under the provisions of the BSF Act and the executive  order of the Government of India dated January 16, 1974. 17.  As  regards the applicability of Rule 8(b) of the  CRPF Rules  which  governs  the inter se  seniority  of  superior officers it may be stated that Rule 116 of CRPF Rules (which falls  in  Chapter  XV  introduced  in  1966)  contains  the following provision               "Rule 116.  Application of rules to B.S.F.               (1)   The  provisions  of this  Chapter  shall               apply  only to the members of Border  Security               Force and nothing contained in Rule 105 or 106               or 108 shall apply to the members of any  such               force.               (2)   Save  as otherwise provided  in  subRule               (1),  the  provisions of the  Central  Reserve               Police Force other Om this Chapter shall apply               to any member of the Border Security Force  as               it applies to any other member of the  Central               Reserve Police Force. In  view of the said provision, Rule 8(b) of the CRPF  Rules was applicable to the officers who were recruited to the BSF under  Rule 113 of the CRPF Rules.  The said Rule,  however, ceased to have application to the BSF after the enactment of 589 the  BSF Act and the publication of the BSF Rules.   In  the matter  of conditions of service of the members of the  BSF, Section 4(2) of the BSF Act provides that "the conditions of service  of  members  of  the  shall  be  such  as  may   be prescribed".  The expression ’prescribed’ is defined in  Se- lection  2(S)  of the BSF Act to mean "prescribed  by  rules made  under  this Act.  Section 141(2) (c) of  the  BSF  Act empowers the Central Government to make rules providing  for conditions of services of members of the BSF.  In Rule 14(2) of  the  BSF Rules it is provided that matters  relating  to inter  se seniority of persons belonging to the  same  ranks shall be determined in accordance with such rules as may  be made in this behalf The BSF Seniority Rules were such  rules which were made in 1978. 18.From  the aforementioned provisions contained in the  BSF Act and BSF Rules it is evident that that the conditions  of service, including seniority of members of the BSF, is to be governed  by the provisions of the rules made under the  BSF Act  and not by the CRPF Rules and, therefore, Rule 8(b)  of the CRPF Rules which governs seniority of superior  officers in  CRPF  ceased  to  have application to  the  BSF  on  the enactment of BSF Act and thereafter the seniority was to  be governed  by the rules made under the BSF Act and till  such rules  were  made it was open to the central  Government  to regulate  such  seniority by orders.  The seniority  of  the petitioners  in  Writ  Petition No. 146 of  1992  and  other ECOs/SSCOs who were absorbed/appointed in the BSF after  the enactment of BSF Act in 1968, is, therefore, not governed by Rule 8(b)of CRPF Rules but is governed by the provisions  of the BSF Act and the Rules made thereunder and in the absence of  such  rules  by  the  executive  orders  issued  by  the Government of India in that regard.  As pointed out  earlier rules  regarding seniority of officers in the BSF were  made

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for the first time in December 9,1978 when the BSF Seniority Rules  were  published.   Till  then,  there  was  no   rule regarding  fixation of seniority of officers in the BSF  and the said matter was governed by executive orders only.   One such  executive  order  is contained  in  the  letter  dated September  6, 1972 addressed by the Government of  India  to Army Headquarters, Military Secretary Branch (MS) wherein It was  specifically mentioned that service rendered  as  SSCOs could not count towards seniority and pension.  This  matter was  further clarified in the letter of appointment  of  the petitioners wherein it was specifically mentioned :Your Army service shall not count for seniority or promotion in  BSF." Even  in the BSF Seniority Rules made in 1978  no  provision has been made for giving the benefit of past Army Service to SSCOs  who  were absorbed/appointed in the BSF.   Rule  3(1) which  provides  for fixation in inter  se  seniority  among officers holding the same rank, the following provision  has been made in clause (v):-               "Seniority   of  re-employed  officers  in   a               particular  rank shall be determined from  the               date of the their reemployment in that rank". 19. We are, therefore, unable to hold that the seniority  of SSCOs who were absorbed/appointed as Assistant Commandant in the  BSF on selection by the Special Selection Board  during the  period  1974-78 is governed by Rule 8(b)  of  the  CRPF rules.  In our opinion, the seniority of such officers  must be  governed by the provisions contained in the BSF Act  and Rules made thereunder and in the absence 590 of   rules  by  executive  orders  issued  by  the   Central Government in that regard. 20.  Even  if we proceed on the basis that Rule 8(b) of  the CR.PF Rules was applicable to the petitioners, we cannot say that  the said Rule enables the petitioners to  count  their service in the Army as SSCOs for the purpose of seniority in the  BSF.   The provisions governing seniority  of  superior officers  are contained in clause (b) of Rule 8 of the  CRPF Rules  and the relevant provision is that contained  in  sub clause (i) which was follows:               (b)   The  inter se seniority of superior  of-               ficers shall be determined as under:               (i)   An  Army  Officer  shall  maintain   his               seniority  as between Army Officers, within  a               particular rank.  Similarly, an Indian  Police               Service Officers shall maintain his  seniority               between   himself  and  other  Indian   Police               Service  Officers.   For purpose of  inter  se               seniority  between non Army and Army  Officers               of  equivalent  rank,  substantive   incumbent               shall  be senior to officiating  or  temporary               officers,  their inter se seniority  depending               on  the  dates  of  their  continued  unbroken               service  in that rank.  The interse  seniority               of officiating or temporary officers shall  be               determined by their continuous length of  ser-               vice in that rank.  An Army Officer reemployed               in  the  Central Reserve  Police  Force  shall               maintain  his  Army  Seniority  between   Army               Officers within a particular rank.               21.   The   said  provision  is  a   composite               provision   governing  seniority  of   various               categories  of officers.  It can be  split  up               into Following components"               (1)   An  Army  Officer  shall  maintain   his               seniority  as between Army Officers  within  a

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             particular rank.               (2)An  Indian  Police  Service  Officer  shall               maintain  his  seniority between  himself  and               other Indian Police Service Officers.               (3)Between  non-Army  and  Army  Officers   of               equivalent rank inter se:               (a)   Substantive incumbent shall be senior to               officiating or temporary officers.               (b)   Amongst substantive in incombents  inter               se  seniority  shall depend on  the  dates  of               their  continuous  unbroken  service  in  that               rank.               (c)   The inter se seniority of officiating or               temporary  officers  shall  be  determined  by               their  continuous  length of service  in  that               rank.               (4)   Re-employed Army Officer shall  maintain               his  Army  seniority  between  Army   Officers               within a particular rank. 22.  It would thus appear that Rule B(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 Services 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 B(b) to indicate that the  earlier Army Service of an Army Officer or re-employed Army  Officer is  to  be counted for the purpose of  seniority  in  CR.PF. 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,  in its letter  dated  July  5,  1972 addressed  to the Director General BSF and CRPF as  well  as I.G. (ITBP) and Secretary (Home), 591 Arunachal  Pradesh  Administration I 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.  In U.B.S. Teotia & Ors.v.  Union  of India & Ors. (supra) the Delhi High Court has construed Rule 8  of the CRPF Rules to mean that Army Officers who are  re- employed  or Army Officers who come on deputation,  have  to retain their original seniority and will get the benefit for their Army Services.  We are unable to read Rule 8 as having such an effect.  In our opinion, the said Rule when it  says that  "an  Army  Officer shall  maintain  his  seniority  as between  Army Officers within a particular rank and an  Army Officer  re-employed  in the Central  Reserve  Police  Force shall maintain his Army Service between Army Officers within a  particular  rank" only means that amongst  Army  Officers inter  se and reemployed Army Officers and an  Army  Officer inter  se their seniority to a particular rank in  the  CRPF would be fixed on the basis of their seniority in the  Army. We  have not found any provision in Rule 8(b) which  enables an  Army Officer or a reemployed Army Officer to  count  his Army  service for the purpose of seniority in the CRPF.   We are, therefore, unable to uphold the decision of Delhi  High Court   in  UB.S.  Teotia  &  Ors.  v.  Union  of  India   & Ors.(supra).  For the same reasons the observations  in  the order dated January 21, 1986 passed by this Court in special leave petitions arising out of Delhi High Court in  decision in  U.B.S. Teotia’s case (supra) that "the  respondents  are

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the  Army Officers within the the meaning of Rule 8  of  the CR.PF Rules and they arc entitled to add the length of their unbroken  service  as  ECOS and SSCOs  for  the  purpose  of reckoning their seniority", cannot be regarded as based on a correct  interpretation  of Rule 8 of the CRPF  Rules.   The said  observations  must,  therefore, be  confined  to  that particular case only. 23.It  has, how ever, been contended by learned counsel  for the petitioners (in Writ Petition No. 146 of 1992) that  the said   petitioners  were  absorbed/appointed  as   Assistant Commandants in the BSF after being selected for  appointment by  the Special Selection Board which had also selected  the SSCOs  for  absorption  in the CRPF and  that  there  is  no rational basis for treating those SSCOs thus selected by the Special  Selection  Board, who were  all  similarly  situate prior  to  their  selection, differently in  the  matter  of fixation of seniority merely on the fortuitous  circumstance that out of them those who were assigned to the CRPF,  would get  the  benefit of their past service in the  Army,  while those  like  the petitioners, who were assigned to  the  BSF would be denied the said benefit.  In our view, there is  no merit in this contention.  The CRPF and the BSF are two dis- tinct forces governed by separate statutory provisions.  The fact  that in the CRPF, the benefit of past service  in  the Army  has been given to SSCOs who were  absorbed/  appointed after  selection by the Special Selection Board  during  the period 1974-78 on account of the provisions of Rule 8(b)  of CRPF  Rules, as construed by the Delhi High Court, does  not mean that the said benefit should also be made available  to the  petitioners  who were absorbed/appointed  as  Assistant Commandants  in the BSF, though in the BSF there is no  rule similar  to Rule 8(b) of the CRPF Rules which  confers  this benefit.  On the other 592 hand,  the  said benefit has been expressly  denied  to  the officers  who were so absorbed/appointed, inasmuch as  prior to  the  recruitment, the Government of  India  has  clearly indicated in the letter dated September 6, 1972 that service rendered  as  SSRCOs will not count  towards  seniority  and pension.   This  stipulation was also  incorporated  in  the letter  of  appointment of the petitioners  when  they  were absorbed/  appointment as Assistant Commandants in the  BSF. In  the said letter it is expressly stated that the  benefit of  the past service in the Army would not be available  for the purpose of seniority.  From the letter of the Government of India dated September 6, 1972 it appears that this policy was  for  recruitment of released ECOs/SSRCOs  as  Assistant Commandants/Company Commanders (Dy.  S.P.) in the  BSF,CRPF, Assam Rifles,etc.  Merely because the said policy which  was applicable   to   all  released  SSCOs  who   were   to   be absorbed/appointed  in the various para military  forces  of the Government of India could not be given effect in CRPF on account of Rule 8(b) of the CRPF Rules, would not mean  that the  said policy in its application to the BSF, where  there is  no  such  legal impediment, suffers  from  the  vice  of descrimination. 24.  It has also been urged by the learned counsel  for  the petitioners (in Writ Petition No. 146 of 1992) that ECOs who were  absorbed/appointed  to the BSF during  the  period  of 1967-71  have been given the benefit of counting their  past service  in the Army for the purpose of seniority  and  that there is no reason why similar benefit should not have  been extended  to  SSCOS,  like the  petitioners,  who  were  ab- sorbed/appointed  to the BSF during the period  1974-78  and that  the denial of such benefit to the petitioners  results

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in arbitrary and invidious discrimination and denial of  the right to equality guaranteed under the Constitution.  We are unable  to agree.  The ECOs who were  absorbed/appointed  to the  BSF  during the period 196771 has  joined  Army  during emergency in the wake of the Chinese aggression.  By joining the  Army  when the Country needed their services  they  had made  a  sacrifice.  Keeping in view the sacrifice  made  by them,  the Government of India evolved a  policy  whereunder they  were given certain benefit of their Army  Service  for counting their seniority on re-employment in public services after  their  release from the Army.   Moreover,  they  were absorbed in the BSF at a time when there was need for compe- tent  officers  in  the BSF and in  order  to  attract  such officers in the BSF it was considered necessary to give  the benefit  of  the  service of the Army  for  the  purpose  of seniority   in   the   BSF  to   the   officers   who   were absorbed/appointed  in  the BSF during the  period  1967-71. The  SSCOs has joined the Army as a career after  the  emer- gency resulting from the Chinese aggresSion was over.   When they  were absorbed/ appointed to the BSF during the  period 1974-78  there was a change in the policy of the  Government of India and the benefit of the service in the Army was  not to be given to the SSCOs who were absorbed/ appointed in the BSF  after  release  from  the  Army.   This  condition  was expressly mentioned in their letters of appointment and they opted  to  join the BSF knowing fully well that  their  Army service would not be counted for seniority in the BSF.   The ECOs  who  were  absorbed/appointed in the  BSF  during  the period  1974-78  are  officers belonging  to  two  different categories and they cannot be regarded as persons  similarly situate. 25.For the reasons aforementioned, we find no merit in  Writ Petition No. 146 of 593 1992 and it must, therefore, be dismissed. 26. Civil Appeal No.4127 of 1985 relates to the fixation  of seniority  of respondents Nos. 3 to 445 who are ex-ECOs  ab- sorbed/appointed as Assistant Commandants in the BSF  during the period 1966 to 1971 and who have been given the  benefit of  past  service and training period in the  Army  for  the purpose of seniority in the Cadre of Assistant Commandant in the  BSF.  As a result, the said respondents were  shown  as senior  to  the appellants who were appointed  as  Assistant Commandants  in  the  BSF in the  year  1966-67.   The  Writ Petition filed by the appellants challenging the fixation of seniority  of respondents was rightly dismissed by the  High Court  because the letters of appointment of exECOs  it  was expressly  stated that their Army service shall  be  counted towards  seniority.  Such a condition was not prohibited  by any  provision  of the CRPF Rules or BSF Act and  the  rules made thereunder.  Hence, it cannot be said that the fixation of  seniority  of  the respondents suffers  from  any  legal infirmity.  The appeal is, therefore, dismissed. 27.  In the result Writ Petition No. 146 of 1992 as well  as Civil Appeal No. 4127 of 1985 are dismissed.  No order as to costs. 596