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PETITIONER: UNION OF INDIA & ORS.

       Vs.

RESPONDENT: MAJOR R.N. MATHUR

DATE OF JUDGMENT:       04/11/1996

BENCH: K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                THE 4TH DAY OF NOVEMBER, 1996 Present:               Hon’ble Mr. Justice K. Ramaswamy               Hon’ble Mr. Justice G.B. Pattanaik      Altaf  Ahmed,   Additional  Solicitor   General,   N.N. Goswami, Sr.  Adv., Ashok K. Srivastva, Anil Katiyar and Ms. Mridul Aggarwal,  Advs. With  them for  the appellants   In- person for the Respondent                          O R D E R      The following Order of the Court was delivered:      Leave granted.      Heard learned counsel for the appellants and Major R.N. Mathur, respondent-in-person.      This appeal  arises from  the judgment and order of the Central Administrative Tribunal, Jaipur, made on 6.3.1996 in O.A. No.648/94.      Admittedly, the  respondent was  granted,  in  1980,  a permanent NCC  Commission. The  letter of  appointment dated 23.5.1980 indicates  that,  as  a  condition,  the  selected officers  granted   permanent  NCC   Commission  under   the Government of  India’s  letter  dated  August  4,  1978,  as amended, might  be appointed  in  NCC  units  and  on  staff including  Directorate  General,  NCC.  Clause  (5)  of  the appointment letter  says that  these officers,  if otherwise not found  unfit, would  be eligible to serve till 55 years. This controversy is no longer res integra. This question was considered by  this Court  in Union  of India  & Anr. vs Lt. Col. Komal  Chand &  Ors. [AIR  1992 SC 1479] wherein it was held that  it was  considered desirable that before a person was granted  NCC permanent  Commission in terms of the above letter, an  opportunity should  be given  to him to consider the terms  and conditions of the appointment and then he may indicate his  choice by  exercising his  option in  the form prescribed in  appendix ‘B’  to the letter. We cannot accept the  contention  of  the  respondent.  Having  accepted  the Commission in  1980, it  is not  open to  him to contend now that during  these years  he  did  not  read  the  terms  of appointment. This  Court has  clearly laid  down that para 8 makes a  limited application  of the Civil Services Rules in regard to  pension only  and cannot be held to have rendered

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the provisions  of para  5 fixing in clear and express terms "the age  of superannuation  as fifty  five years nugatory". The  contention   of  the   learned  counsel,  Mr.  Mukhoty, appearing in  that case  that since  the rules  framed under Section 13  of the  NCC Act do not fix the age of retirement of the  respondents, they could not be retired at the age of 55 years,  therefore, was not accepted by this Court. It was held that  "it is  true that  there is no statutory rules at all  dealing   with  the   age  of   superannuation  of  the respondents but  for that  reason the age which is fixed for the civil  servants governed by the Fundamental Rules cannot be brought  in. In the absence of a Rule to the contrary the Central Government  is fully authorised to fix the age which it has  done and  which  was  accepted  voluntarily  by  the respondents. They must now retire when they reach the age of 55 years."  Thus, it  is clear that the appointment was made fixing the  age of  superannuation of  55  years.  In  terms thereof, the  officer is required to retire at the age of 55 years.      It is  in an  admitted position  that  the  Fundamental Rules have  no application  and the  statutory rules equally have no application. Under these circumstances, the Tribunal is clearly  in error  in directing  the appellants to retain the respondent herein, in service till 57 years.      The   appeal    is   accordingly    allowed.   In   the circumstances, there will be no order as to costs.