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PETITIONER: UNION OF INDIA AND ANOTHER

       Vs.

RESPONDENT: LT. COL. KOMAL CHARAN AND ORS.

DATE OF JUDGMENT14/05/1992

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) ANAND, A.S. (J)

CITATION:  1992 AIR 1479            1992 SCR  (3) 259  1992 SCC  Supl.  (3) 186 JT 1992 (4)   136  1992 SCALE  (1)1308

ACT:      National  Cadet Corps Act, 1948: Sections 3, 9 and  13. National Cadet Corps Rules, 1948 Rule 16 Proviso (iii)      National  Cadet Corps-Officers appointed on whole  time basis-Whether  Fundamental  Rules governing  civil  servants applicable-Whether  entitled to continue until age of  fifty eight  years  or retire under the terms  and  conditions  of service.      Fundamental Rules :      Frs  2, 3 and 56(a)-Whether applicable to N.C.C.  whole time officers.      Central Civil Services (Pension) Rule, 1972 :      N.C.C.  Whole time officers-Age  of  retirement-Whether fifty-eight years or terms and conditions of their service.

HEADNOTE:      The respondents in the appeal were serving in the Armed Forces from 1962-67.  After the expiry of their tenure  they applied for appointment under the scheme of re-employment of ex-service  officers  in the National Cadet Corps  and  they were  granted  N.C.C. commission on whole time  basis.   The grant   of  permanent  commission  was  on  the  terms   and conditions as laid down in the Government Order letter dated 23rd May, 1980, which fixed the age of retirement at  fifty- five,  and required the appointees to exercise their  option to accept the same on the said terms and conditions if  they so chose.  The respondents exercised the option as indicated in  the  letter,  and  accordingly  they  were  granted  the permanent commission.      When  the dates of their retirement were drawing  close the  respondents  filed  applications  before  the   Central Administrative  Tribunal,  and  contended  that  they   were entitled to continue in service until they attained the  age of   fifty-eight  years  as  per  the  Civil   Service   and Fundamental   Rules.   The  Tribunal  aggreeing   with   the respondents held they were entitled to                                                        260 continue  in service until they attained the age  of  fifty- eight years and that the service conditions as contained  in the  letter  dated 23rd May, 1980 to the contrary  were  not legally valid.

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    The Union of India appealed to this Court and contended that the whole time officers of the N.C.C. are appointed  in accordance  with the provisions of the National Cadet  Crops Act  and  Rules made thereunder, and  that  the  Fundamental Rules  are not applicable to them at all.  On behalf of  the respondents it was contended that since the respondents  are not  governed  by  the  Army  or  Marine  Regulations  their conditions  of  service  must be held  to  governed  by  the Fundamental Rules, that the pay and allowances of the N.C.C. whole  time officers are not paid from Civil  Estimates  but from Defence Service Estimates and relying upon paragraph  8 of the terms and conditions, which stated that the  officers will be governed by Central Civil Services (Pension)  Rules, 1972, submitted that the respondents should be treated to be governed by the Civil Services Rules prescribing fifty-eight years as the age of retirement.      Allowing the appeals and setting aside the judgment  of the Central Administrative Tribunal, this Court,      HELD : 1. The National Cadet Crops has been established under  Section  3  of the National Cadet  Corps  Act,  1948. Section  9 authorised the Central Government to provide  for appointment  of  officers, while Section  13  empowered  the Central Government to make rules to carry out the object  of the  Act,  and  the National Cadet Crops  Rules,  1948  were accodingly framed. [264F]      2. The Central Government has full authority to appoint persons  on such terms and conditions.  The question of  the grant of permanent commission to N.C.C. officers employed on whole time basis was considered in all relevant aspects  and a decision was taken as mentioned in the Government’s letter dated  23rd  May, 1980.  It was  considered  desirable  that before  a person was granted N.C.C. permanent commission  an on 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.  The relevant  order  in  clear  terms  lays  down  the  age   of superannuation at fifty-five years with a further  provision of   extension  of  the  age  to  fifty-seven  years.    The respondents in the instant case, exercised their option  and were accordingly granted whole time N.C.C. commission.                                                        261 They cannot now repudiate the same and claim any  additional benefit  which  they are not entitled to under any  rule  or law. [265 B-D]      3.  Though there are 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.   The respondents must therefore retire when they reach the age of fifty-five years. [265 H-266A]

JUDGMENT:      CIVIL  APPELLATE JURISDICTION : Civil Appeal Nos.  2449 and 50 of 1992.      From  the  Judgment and Order dated  12.4.1991  of  the Central  Administrative  Tribunal in O.A. Nos.  1513/90  and 1537 of 1990.      Altaf Ahmed, Addl. Solicitor General, P.  Parmeshwaran, Ms.   Sushma  Suri  and  Ms.  Kitty  Kumarmanglam  for   the Appellants.

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    Gobind Mukhoty, V.J. Francis and V. Subramanian for the Respondents.      The Judgment of the Court was delivered by      SHARMA,  J.  The questions which fall for  decision  in these  cases  are as to whether the  officers  appointed  on whole-time basis in the National Cadet Crops are governed by the  Fundamental  Rules  applicable to  the  civil  servants sreving  the  Union  of India and  accordingly  entitled  to continue  in service until the age of fifty-eight  years  or they retire under the terms and conditions of their  service as  contained  in the Government order  being  letter  dated 23.05.1980.  The Central Administrative Tribunal, New Delhi, by  the impugned judgment, has agreed with  the  respondents that they will remain in service till they attain the age of fifty-eight  years in view of the provisions in  Fundamental Rule 56 (a).      2. Special leave is granted.      3.  The respondents were earlier serving in  the  Armed Forces from 1962-67.  After the expiry of their tenure  they applied for appointment under the scheme of re-employment of ex-service officers in the National                                                        262 Cadet  Corps  and they were granted  N.C.C.  commissions  on wholetime  basis.  The grant of permanent commission was  on the  terms  and  conditions as laid down  in  the  aforesaid letter  dated 23.05.1980 which had inter alia fixed the  age of retirement at fifty-five, and it required the  appointees to  exercise  their  options  to  accept  the  same  on  the aforesaid   terms   and  conditions  if   they   so   chose. Accordingly they were granted the permanent commission after they exercised the option as indicated in the letter.   When the  dates  of  their  retirement  were  coming  close   the respondents  filed  the  original  applications  before  the Central  Administrative Tribunal out of which these  appeals have  arisen.  The Tribunal aggreeing with  the  respondents held  that they were entitled to continue the service  until they  attained  the  age of  fifty-eight,  and  the  service conditions  as contained in the letter dated  23.05.1980  to the contrary were not legally valid.      4. The provisions of Fundamental Rule 56 (a) which  are the basis of the claim of the respondents read as follows :-           "F.R. 56 (a) Except as otherwise provided in  this          Rule,  every Government servant shall  retire  from          service  on  the afternoon of the last day  of  the          month  in which he attains the age  of  fifty-eight          years."      It  has  been  contended by  Mr.  Additional  Solicitor General  appearing in support of the appeal that the  whole- time officers of N.C.C. are appointed in accordance with the provisions  of the N.C.C. Act and Rules and the  Fundamental Rules  are not applicable to them at all.  Mr.  Mukhoty  the learned  counsel for the respondents has, in  reply,  argued that  the N.C.C.  Act and the Rules do not lay down the  age of  superannuation of such officers and the Army  Act  which prescribes  different age of retirement is  not  applicable. According  to  the learned cousel, the result  is  that  the general  rule  as contained in Fundamental Rule No.  2  must govern the respondents.      5.  As  indicated above, the decision in  the  case  is dependent  on  the question as to  whether  the  Fundamental Rules are applicable to the respondents or not.  Having  got the  permanent commission on the basis of the  letter  dated 23.05.1980, it is for the respondents to show that they  are entitled to rely on the Fundamental Rules, including F.R. 56 (a) and to continue in service till the age of  fifty-eight.

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The extent of application of                                                        263 the Fundamental Rules has been dealt with in Part 1  chapter 1, and F.R. 2 declares that,           "The  Fundamental  Rules  apply,  subject  to  the          provisions  of Rule 3, to all  Government  servants          whose  pay is debitable to Civil Estimates  and  to          any other class of Government servants to which the          President may, by general or special order, declare          them to be applicable."      Admittedly the President has not issued any general  or special order extending the Fundamental Rules to the  N.C.C. whole-time officers.  Pointing out to the reference of  Rule 3   in  Part  2,  Mr.  Mukhoty  contended  that  since   the respondents  are not governed by Army or Marine  Regulations their  conditions  of service must be held to  be  as  under Fundamental  Rules.   The learned counsel  referred  to  the provisions  of  the  N.C.C. Act, the Army  Act  and  certain statements made in the affidavits filed in the present  case in support of his point that the Army or Marine  Regulations have no application to the respondents.  We are afraid,  the argument  is  based on the assumption that unless  Army  and Marine Regulations are shown to be applicable to the holders of  a  service,  the  Fundamental  Rules  will  govern   the employees  in  the service.  Fundamental Rule  3,  on  which reliance has been placed on behalf of the respondents, is by way  of  exception, and it becomes relevant only  where  the Fundamental  Rules  are shown to be applicable.  Only  if  a particular   service  is  proved  to  be  governed  by   the Fundamental  Rules that the question of its  falling  within the  exception  referred  to in F.R. 3  can  arise  and  not otherwise.  It is, therefore, necessary first to examine the question whether the Fundamental Rules are at all applicable to the whole-time officers with permanent commissions in the N.C.C.      6.  It appears from the Fundamental Rule  No.2,  quoted earlier,  that the Fundamental Rules are applicable only  to such  government  servant whose pay is  debitable  to  Civil Estimates.   It is the case of the appellants that  the  pay and  allowances  of the N.C.C. whole-time officers  are  not paid  from  Civil Estimates and they are paid  from  Defence Services  Estimates.  Reliance was placed on behalf  of  the appellants  before  the Tribunal on the  Explanatory  Notes, sub-Head  B-National  Cadet Corps, in the  Defence  Services Extimates  for  the year 1989-90.  The Explanatory  Note  do support                                                        264 the  appellants’  stand, but since  the  respondents  raised certain controversy about the meaning and effect of the said Explanatory  Note,  we  adjourned the  case  to  enable  the parties  to  file  further  affidavits  dealing  with   this question.  Accordingly affidavit was filed on behalf of  the appellants  giving full details in this regard and in  clear and  unambiguous  terms  stating that  the  N.C.C.  officers employed  on  whole-time basis are paid exclusively  by  the Central  Government  from the  Defence  Services  Estimates. This  affidavit has been sworn by an Under Secretary of  the Union  of India, who claims to have access to  the  official records and has given details dealing with the question  and we  do not have any reason to doubt the correctness  of  the statement.    We,  therefore, hold  that  the  pay  of   the respondents  is  not debitable to the  Civil  Estimates,  as required  by Fundamental Rule 2 for the application  of  the Fundamental   Rules,   and  the  Fundamental   Rules   must, therefore,  be held to be not attracted.  The Tribunal  was,

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thus,  in error to hold on that basis that  the  respondents were  entitled to remain in service upto the age  of  fifty- eight years.      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 Mr. 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 consditions 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 Fundamental  Rule  56  (a)  relied  upon  in  the   impugned judgment, it has not been suggested on behalf                                                        265 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 prmanent 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 indiciate 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.      8. Mr. Mukhoty relied upon paragraph 8 of the terms and conditions  stating  that the officers will be  governed  by Central Civil Services (Pension) Rules, 1972 as amended from time to time and contended that in view of these  provisions the  respondents  should be treated to be  governed  by  the Civil  Services Rules prescribing fifty-eight years  as  the age of retirement.  The argument is fallacious.  Paragraph 8 makes  a limited application of the Civil Services Rules  in regard  to pension only and cannot be held to have  rendered the  provisions of paragraph 5 fixing in clear  and  express terms   the  age  of  superannuation  as  fifty-five   years

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nugatory.   Mr.  Mukhoty  also urged that  since  the  Rules framed under Section 13 of the N.C.C. Act do not fix the age of  retirement of the respondent, they cannot be retired  at the  age of fifty-five years.  We do not find any  logic  in this  plea.  It is true there are 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                                                        266 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 fifty-five years.      9. For the reasons above, the impugned judgment of  the Central  Administrative  Tribunal  is  set  aside  and   the Original  Applications  filed  before the  Tribunal  by  the respondents  are  dismissed.   The  appeal  is   accordingly allowed but without costs. N.V.K.                                       Appeals allowed.                                                        267