Full Judgment Text
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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
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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