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CASE NO.: Appeal (civil)  5750 of 2005

PETITIONER: Union of India & Ors

RESPONDENT: Brahma Dutt Tripathi

DATE OF JUDGMENT: 18/09/2006

BENCH: H. K. SEMA & D.K. JAIN

JUDGMENT: JUDGMENT

H.K.SEMA,J   

       The challenge in this appeal is to the order dated 19th  February 2003 passed by the Division Bench of the High Court  of Judicature at Allahabad in Civil Misc. Writ Petition No.  21805 of 2003, affirming the judgment and order of 14th July,  1997 passed in T.A. No. 551 of 1987 by the Central  Administrative Tribunal, whereby the order of 30th November,  1979 declining further extension of service of the respondent  beyond 10th December, 1979 was set aside.  The Tribunal  further directed that the respondent be accorded the benefit  by treating the age of superannuation at 45 years with all  other consequential benefits.  Aggrieved thereby, this appeal is  filed by the Union of India.          The respondent, Brahma Dutt Tripathi, was a Short  Service Commission Officer commissioned as a 2nd Lieutenant  during the Chinese Aggression in 1963.  He was released from  the Indian Army with effect from 31.3.1969.  He applied for  Commission in National Cadet Corps (NCC).  He was  appointed under the Scheme floated by the Government of  India for rehabilitation of Short Service Commission Officers in  the Army and he joined the NCC on 11.12.1969.  The Scheme  of 21.12.1963 was issued under provisio (iii) to Rule 16 of NCC  Rules, 1948.   The Scheme under which the respondent was  appointed was a composite Scheme.  We will deal with the  Scheme at an appropriate time.          Be  that as it may, he challenged the impugned order of  30.11.1979 passed by the Union of India declining to grant  extension of his service beyond 10.12.1979 before the High  Court of Judicature at Allahabad which was transferred to the  Tribunal and was re-numbered as T.A. No. 551 of 1987.  As  already noticed, he was granted Commission in the NCC on  11.12.1969 as 2nd Lieutenant and as Lieutenant from  12.1.1968.          It appears the principal contention raised before the  Tribunal was that the respondent was appointed under the  provisions of NCC Rules, 1948 (hereinafter ‘the Rules’) which  laid down the period of service upto the age of 45 years and  since there is no provision under the Rules for granting  permission for fixed tenure, the Union of India is under an  obligation to allow him to work upto the age of 45 years and  therefore, the order declining to extend the service of the  respondent prior to the completion of 45 years is violative of  Article 311 of the Constitution.  It is further contended that  the executive order issued by the Government of India by its  letter dated 21.12.1963 could not over-ride the statutory

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Rules, and the administrative instructions, to the extent  inconsistent with the Rules, are ultra vires the Constitution  being  violative of Articles 14 and 16 of the Constitution.          The short question which arises for our consideration is,  as to whether the appointment of the respondent to the NCC  Commission was in accordance with the NCC Act and Rules or  under a composite Scheme formulated by the Government of  India in exercise of its powers under proviso (iii) to Rule 16 of  the Rules?         To answer the aforesaid question, it is essential to make  a quick survey of a few Sections of the Act namely the National  Cadets Corps Act, 1948 (Act 31 of 1948) (in short ‘the Act’)  and the Rules framed thereunder.    Section 2 deals with the  definition of Corps. It says "corps" mans the National Cadet  Corps constituted under this Act.  Section 3 deals with the  "Constitution of the National Cadet Corps".  Section 4  deals with the "Constitution and disbandment of units" and  provides: "The Central Government may constitute in any  [State] one or more units of the Corps members of which shall  be recruited from amongst the students of any university or  school, and may disband or reconstitute any unit so  constituted."   Section 9 deals with the "Appointment of officers."  It  reads, "The Central Government may provide for the  appointment of officers in or for any unit of the Corps either  from amongst members of the staff of any university or school  or otherwise and may prescribe the duties, powers and  functions of such officers."         At this stage, we may dispose of the principal contention  of Mr. G.D. Gupta, learned senior counsel appearing for the  respondent.  He strenuously urged that Section 9 of the Act  deals with the source of appointment of the officers.  It is his  contention that the appointment of the respondent to the NCC  streams from the source of Section 9 and it cannot be said  that the appointment of the respondent is made under the  executive order in exercise of proviso (iii) to Rule 16 of the  Rules.  This contention deserves to be rejected for more than  one reason.  Firstly, the respondent accepted the appointment  under the memorandum issued by the Government of India  and the Scheme framed thereunder with its terms and  conditions categorically laid down thereunder, without any  demur.  Secondly, it was never the case of the respondent that  he was appointed under the Act, more particularly under  Section 9 of the Act.  Thirdly, Section 9 provides for  appointment of officers in or any unit of the corps either from  amongst the members of the staff of any university or school  or otherwise.  Mr. G.D. Gupta, learned counsel appearing for  the respondent strenuously urged that the words, ’or  otherwise’ is relatable to the appointment from outside other  than staff of any university or school.  This is a misreading of  the Section.  The Scheme of the Act would go to show that the  appointment of officers as provided under Section 9 of the Act  is from amongst the members of the corps.  Section 9, thus  read with the scheme of the Act, would mean that the word  ’otherwise’ employed in Section 9 of the Act is relatable to any  members of the corps other than staff of any university or  school.  Even a student who is a member of the corps could be  appointed.  In the present case, it is not disputed that the  respondent was not a member of the corps.  It is also clear  that his appointment was not made in terms of the provision  of Section 9 of the Act.      Fourthly, the Office Memorandum  and the Scheme, under which the respondent was appointed  was never challenged by him.  Fifthly, the respondent has  accepted the appointment under the Scheme with the terms  and conditions without any demur and it does not lie in his

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mouth to say that he was not appointed under Scheme but  under the Act.           The Scheme under which the respondent was appointed  was a composite Scheme laying down the terms and  conditions of the Scheme and the conditions of service.  The  composite Scheme was framed under proviso (iii) to Rule 16 of  the Rules, by the Government of India, Ministry of Defence  letter of 21.12.1963.  Appendix ‘A’ deals, amongst others, with  the age of the applicant.  It reads:  "(iii) Age on date of application should not be less than 21 and not more than 51 years."

Clause 4 of the Appendix A reads: "4.     Officers will ordinarily hold commission until  reaching an age of 55 years.  An officer may be  discharged earlier if his/her services are not  required."

Appendix ’B’ appended to the Government order deals  with the terms and conditions of officers granted NCC  Commission.  Clause 4 of Appendix ’B’ deals with ’Tenure’.  It  reads:

"4.     The normal tenure of appointment for those  officers who are retained beyond the probationary  period will be three years extendable by three years  at a time for so long as their services are required  but not beyond the age of 55 years.  Their services  may be terminated at any time before the  completion of the initial or extended tenure at the  discretion of the Government of India in terms of  the NCC Act and Rules framed thereunder from  time to time."

In terms of the aforesaid Scheme, the application form  was also annexed as annexure to Appendix ’A’.  The title reads:  "Application for appointment as an officer under proviso  (iii) to Rule 16 of NCC Rules."  Amongst others, the  application was to be filled up giving particulars regarding No.,  Rank, Name in full, Arm/Service and Unit, stating formation  and command under which serving and Date of Commission  etc.   The application form was issued under proviso (iii) to  Rule 16 of the Rules.  The respondent, knowing the terms and  conditions stipulated therein, had filled up the application  form.  Another unimpeachable document is the letter dated  19.9.1969 under the heading "Grant of NCC Commission"  addressed to the respondent.  The said letter also referred to  the order dated 21.12.1963 and the Scheme framed  thereunder under proviso (iii) to Rule 16 of the Rules.  The  letter has referred to the terms and conditions laid down in  Annexure ’A’.  Para 5 of the letter reads:  "Please intimate your acceptance of the terms and  conditions of service as mentioned above earliest.  If  no reply is received from you by 10 Oct. 69, it will  be assumed that you are not interested in the grant  of NCC Commission and your case will be treated as  closed."   

       The offer letter of 19.9.1969 with the terms and

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conditions was accepted by the respondent by its letter dated  13.10.1969.  The letter reads: "From Capt. B.D. Tripathi               GROUP CENTRE                                                    Central Reserve Police                                                    AVADI-MADRAS-SS                                                    13 October 1969

To         The Director General         NCC, New Delhi

       SUB: GRANT OF NCC COMMISSION

       Ref: Your     No. 5431/EC-57159/83/NCC/                             COORD(o) dated 08 October 1969

Sir,         With due respect I beg to inform you that the  terms and conditions of NCC Commission are  accepted as asked for, under para 5 of your letter of  even No. dated 19 September 1969.          You are further requested to send to me offer  of appointment alongwith the R/W at the above  address and give me sufficient time to join as I have  to submit one month notice to CRP before joining  NCC.         Thanking you                                                 Yours faithfully,                                                 (B.D. Tripathi)"

In somewhat similar case in Union of India and  Another v. Lt. Col. Komal Charan and Ors. 1992 Supp (3)  SCC 186, this Court held the respondents having exercised  their option and were accordingly granted whole time NCC  Commission, they now cannot repudiate the same and claim  any additional benefit.  This is what this Court say at SCC  page 189 :- "7. In view of our conclusion above we do not  consider it necessary to refer to the other provisions  of the N.C.C. Act relied upon by Mr. Mukhoty, and  we do not consider it either necessary or relevant to  examine the question whether the Army Act applies  to the respondents or not. In support of these  appeals the Additional Solicitor General has not  placed any reliance on the Army Act and his  contention has been that the provisions of the  National Cadet Corps Act, 1948, the rules framed  thereunder and the letter dated 23.05.80 in  pursuance of which the respondents were granted  permanent commission, settled the question. The  Corps has been established under Section 3 of the  N.C.C. Act. Section 9 of the Act authorises the  Central Government to provide for the appointment  of officers from amongst the members of the staff  and university or school or otherwise. Section 13 of  the Act authorises the Central Government to make  rules to carry out the objects of the Act and without  prejudice to the generality of this power to lay down  the manner in which and the conditions subject to  which a person or class of persons may be enrolled  under the Act. Accordingly the Rules described as  National Cadet Corps Rules, 1948 were framed.  Proviso (iii) in Rule 16 vests the authority concerned   with very wide power in this regard. Except for

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Fundamental Rule 56(a) relied upon in the  impugned judgment, it has not been suggested on  behalf of the respondents that they are entitled to  continue in service upto the age of fifty-eight years  on the strength of any other provision. The Central  Government has, therefore, full authority to appoint  persons on such terms and conditions as it may  choose to prescribe. The question of grant of  permanent commission to N.C.C. officers employed  on whole-time basis was considered in all the  relevant aspects and a decision was taken as  mentioned in the afore-mentioned letter dated  23.05.80 and referred to in the letter of 24.05.80  sent under the signature of the Under Secretary to  the Government of India to the Director General,  N.C.C., New Delhi (Annexure P-4). It was considered  desirable that before a person was granted N.C.C.  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 indicate his choice by exercising his option in  the form prescribed in Appendix B to the letter. The  relevant order in clear terms lays down the age of  superannuation at fifty-five years with a further  provision of extension to the age of fifty-seven years.  The respondents exercised their option and were  accordingly granted whole-time N.C.C. commission.  They cannot now repudiate the same and claim any  additional benefit which they are not entitled to  under any rule or law."

National Cadet Corps Rules 1963 (in short ’the Rules)  were framed by the Central Government in exercise of powers  conferred by Section 13 of the NCC of the Act.   

       Part IV of the Rules deals with the "Appointment of  Officers."  Rule 16 of the Rules under Part IV deals with the  "Qualifications for appointments".  Proviso (iii) to Rule 16,  which empowers the Government of India for appointment of  any person who is not qualified for appointment under the  Rules reads:         "(iii) the Ministry of Defence, Government of India,  may authorise the appointment of any person who  is not qualified for appointment under the rule."

                It, therefore, clearly appears that proviso (iii) to Rule 16 is  carved out from the Rules authorizing the Ministry of Defence,  Government of India for appointment of any person who is not  qualified for appointment under the Rules.  It must be grasped  that throughout the NCC Act and Rules, there is absolutely no  provision for appointment of discharged Short Commission  Officer as an officer of the NCC.  It is only to rehabilitate the  Short Commission Officers, who had been discharged after the  hostility ended, that a provision had been made in proviso (iii)  of Rule 16 empowering the Government for such appointment  who were not otherwise qualified for the appointment under  the Rules.  As noticed earlier, the Government Order dated  21.12.1963 was in exercise of the powers under proviso (iii) to  Rule 16.    The respondent has not challenged the Government  Circular dated 21.12.1963.           The contention of the learned counsel for the respondent  that the respondent was appointed under the NCC Act and  Rules and he would be entitled to continue in the post till he

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attained the age of 45 years is mis-conceived.  It was to the  knowledge of the respondent himself that he was appointed  under the composite Scheme framed in exercise of the power  under proviso (iii) to Rule 16.  Under the Scheme, the  appointment was a tenure appointment and the service was  for three years extendable by another three years at a time,  subject to the requirement of the service but not beyond the  age of 55 years.  His service might also be terminated at any  time before the completion of the initial  or extended tenure at  the discretion of the Government of India in terms of Clause 4  of Appendix B of the Scheme.           Further, it needs to be noticed that the service of the  respondent was extended from time to time.  The service of the  respondent was extended by an order dated 19.10.1971 along  with  other officers mentioned in Appendix ’A’.  The name of   Lt. B.D. Tripathi appears at Sl. No. 70 and his service was  extended from 11.12.1971 to 10.12.1972.  The last extension  was granted by an order dated 15.12.1978.  At Sl. No. 87,  service of Capt. B.D. Tripathi is shown to have been extended  from 11.12.1978 to 10.12.1979.         These unimpeachable documents on record will clearly  show that it was to the knowledge of the respondent himself  that his appointment was a tenure appointment, extendable  from time to time.  He has not raised any grievance against  this before any authority.           The facts as adumbrated above will clearly show that the  appointment of the respondent was a tenure appointment  pursuant to the Scheme devised under proviso (iii) to Rule 16  of the Rules.  There is no provision under the NCC Rules and  Act providing for appointment of discharged Short Service  Commission Officer as an officer in the NCC, save and except,  as provided by the Scheme floated under proviso (iii) to Rule  16.           For the reasons aforestated, the impugned order of the  High Court dated 19th February 2003 and the order dated 14th  July, 1997 passed by the Tribunal are set aside.  The T.A. No.  551 of 1987, filed by the respondent, stands dismissed.  The appeal is allowed.  No costs.