Full Judgment Text
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PETITIONER:
R.C.SAHI & ORS., C.M. BAHUGUNA & ANR.
Vs.
RESPONDENT:
UNION OF INDIA & ORS., UNION OF INDIA & ORS.
DATE OF JUDGMENT: 10/11/1998
BENCH:
S. SAGHIR AHMAD. AND K. VENKATASWAMI.,
ACT:
HEADNOTE:
JUDGMENT:
ORDER
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Writ Petition (c) No.211/97 under Article 32 of the
Constitution of India has been filed with a prayer to issue
a writ of mandamus to the respondents 1 and 2 to implement
the judgment of this court dated January 19, 1995 in Ravi
Paul and Ors. vs. Union of India and Ors. [(1995) 3 SCC
300] and also the Order dated July 18, 1995 of this Court in
R.C. Sahi & Ors. vs. Union of India & Ors. and for other
consequential reliefs as well.
It is the case of the petitioners that this Court in
R.C. SAHI’S case had expressly directed the first respondent
to revise the seniority list, if necessary, after hearing
the officers concerned, in accordance with law. The first
respondent, according to the petitioners, purporting to
implement the order of this Court in Sahi’s case, had
prepared a seniority list ignoring the relevant provisions
of law which had affected their seniority. It is to be
noted, the petitioner were also parties in Sahi’s case.
Though the issue lies in a narrow compass, wide
ranging arguments were addressed by the learned counsel in
this case.
The short question that arises for consideration is whether
Respondents 1 and 2 are justified in taking into account the
past services of the private respondents in the Army for the
purpose of fixing seniority between the petitioners - direct
- recruits and the respondents-Emergency Commissioned
officers (for short ’ECOs’).
At this stage, a brief recount of the facts relating to the
issue is necessary. The Central Reserve Police Force (for
short ’CRPF’), with which we are now concerned, came into
existence under the Central reserve Police Force Act, 1949.
The CRPF Rules were framed in the year 1955 to deal with
various matters. Rule 105 related to appointment and
promotion of superior officers. By Notification No.
F/2/4/67.P-II dated May 11, 1967 issued by Ministry of Home
Affairs, an amendment to Rule 105 was introduced by adding
Clause (iv-A) to Rule 105. By the said amendment,
appointment of emergency Commissioned Officers (ECOs) and
Short-Service Commissioned Officers of the Armed forces of
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the Union was introduced as one of the modes of recruitment.
Since then, dispute between the direct-recruits and the ECOs
started in the matter of seniority and the consequential
promotions.
Initially, respondents 1 and 2 did not admit that
the ECOs would come under the category of Army Officers.
Later on, it was conceded that they would come under the
category of Army Officers.
When the past service in the Army by the ECOs was
ignored in the matter of seniority and promotion, they moved
the Delhi High Court for necessary directions to the
respondents 1 and 2 to include their past Army service for
the purpose of seniority and consequential promotion. The
Delhi High Court by its decision dated September 2, 1985 in
C.W. No. 44/85 accepted the claim of the ECOs. Inter alia,
the issue relating to the application of Emergency
Commissioned Officers and Short-Service Commissioned
Officers (Reservation and Vacancies) Rules, 1967 (for short
’1967 Rules’) was also considered by the Delhi High Court.
The learned Judges categorically held as follows:-
"However, we think that these reservation Rules have
no application to the case of petitioners (ECOs).
The reason for this is that the petitioners have
been treated as a separate source of recruitment for
the Central Reserve Police Force, 1955 after their
amendment. No question of reservation as such is
involved in the recruitment of the petitioners. Once
they are recruited, the next question is the
seniority and pay they have to enjoy in the service
after recruitment."
The above judgment of the Delhi High Court was challenged
before this Court in S.L.P. (C) Nos. 1390/85 and 16911/85.
This Court by a reasoned order dated January 21, 1986
dismissed the S.L.Ps upholding the judgment of the Delhi
High Court. No doubt, a three Judge Bench of this Court in
Ravi Paul’s case and observed that the judgment of the Delhi
High Court, as affirmed by this Court, had not laid down the
correct law insofar as it held that Rule 8 of 1955 CRPF Rule
enabled the ECOs to add their past Army services for the
purposes of seniority in the CRPF. Only to that extent it
can be taken that the judgment of the Delhi High Court, as
affirmed by this Court, was not accepted. However, this
Court in Ravi Paul’s case held that the Executive
Instructions issued on 5.7.72 enabled the ECOs to add their
past Army service in the Service of CRPF.
As a result of the judgment dated 2.9.85 of the Delhi High
Court in C.W.No. 44/85, U.B.S. Teotia & Ors. vs. U.O.I.
& Ors., as confirmed by this Court on 21.1.86 as many as 37
direct-recruits, who were holding the posts of Commandant,
were reverted. Aggrieved by that, the direct-recruits moved
the High Court for recalling the earlier judgment in C.W.
No. 44/85 (Teotia’s case), inasmuch as those direct
recruits were not parties and the ratio laid down in the
judgment giving benefit of past Army service, prejudicially
affected their interests. The Delhi High Court dismissed
the petition of the direct-recruits. Thereafter, the Union
of India and the direct-recruits moved this Court. In Civil
Appeal Nos. 1909-1911/89. [vide U.O.I & Ors. vs. N.S.
Sekhawat & Ors.] this Court considered the grievances of the
direct-recruits. Even at that time, this Court had observed
that the dispute between the direct-recruits and the ECOs
over the question of seniority and been going on for a long
time and also noticed that the parties desired to settle the
dispute amicable and for that purpose granted adjournments.
After appreciating the terms of settlement given separately
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by the Union of India, direct-recruits and the ECOs, this
Court by its order dated 14.3.89 protected the interests of
direct-recruits by directing the Union Government to create
37 supernumerary posts. It must be noted that the right of
adding past Army service of the ECOs was not disturbed.
In the light of the judgment of this Court in Civil
Appeal Nos. 1909-1911/89, the Union of India carried out the
directions given therein.
Another set of direct-recruits of different year moved this
Court by filing W.P.(C) No. 1177/89 under Article 32 of the
Constitution of India stating that they were not parties to
the earlier decision of this Court and, therefore, the
decision of this Court in C.W. No. 1909-1911/89
prejudicially affected their interests. This Court again
considered the issue and by decision dated July 18, 1995
directed the Union of India to create necessary
supernumerary posts to safeguard the interests of
direct-recruits. It is again to be noted that the question
of adding past Army service in the case of ECOs was not
raised and that matter was taken as concluded. While
disposing of the writ petition, this Court observed as
follows:-
"We make it clear that any further promotion from
amongst the two categories shall be made in
accordance with law. If it is necessary to revise
the seniority list, the Govt. of India shall do the
same after hearing the officers concerned and in
accordance with law."
It is under these circumstances, the seniority list was
revised by the Respondents 1 and 2. Aggrieved by that again,
the direct-recruits have moved this Court by filing Writ
Petition (c) No. 211/97 besides I.A. No.4 in Writ Petition
(c) No. 1177/89 for the relief already noticed.
The arguments of Dr. Rajeev Dhawan, learned senior counsel
for the petitioners, is that the Rules framed under Article
309 of the Constitution of India in the year 1967 do apply
to the facts of the case and the seniority as well as
promotion to the respondents must be made with reference to
those Rules. The finalisation of impugned seniority list,
according to the learned senior counsel, by referring to
Executive Instructions issued on 5.7.72 is contrary to
well-settled principles that the Executive Instructions
cannot supersede the Rules framed under Article 309 of the
Constitution of India.
Though Dr. Rajeev Dhawan, learned senior counsel
initially resisted the contention advanced on behalf of the
respondents that 1967 Rules will have no application to the
facts of the case, ultimately he has to give up that
argument and in our view rightly, in view of the fact that
those Rules were intended to be applied in central Civil
Services. We have earlier noticed the observations of the
Delhi High Court on this very issue and the conclusion
reached by it. We are in agreement with those observations.
The result is that the only issue to be decided is
whether the application of Executive Instructions issued on
5.7.72 for fixing the seniority between the direct recruits
and ECOs is permissible or not.
In Ravi Paul’s case, the Executive Instructions of
5.7.72 came up for consideration, while considering a case
under Border Security Force Rules 1969. This Court in that
case observed as follows:
"22. It would thus appear that Rule 8(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
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Service 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 8(b) to indicate
that the earlier Army service of an Army Officer or
a re-employed Army Officer is to be counted for the
purpose of seniority in CRPF. 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, it its letter dated
5.7.1972 addressed to the Director General BSF and
CRPF as well as IG (ITBP) and Secretary (Home),
Arunachal Pradesh Administration, 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."
(Emphasis supplied)
In view of the above observations, it is clear that
in the absence of a provision to give benefit of the past
service in Army service to the ECOs in the main rule, the
Executive Instructions are permissible and the Executive
Instructions dated 5.7.72 were issued to achieve that
object. Dr. Rajeev Dhawan, learned counsel, could not
seriously contend that if the Executive Instructions of
5.7.72 are to be applied and the past Army service of the
ECOs is added, the private respondents will be senior to the
petitioners. It is the specific case of the respondents 1
and 2 that the impugned seniority list was prepared on the
basis of the Executive Instructions dated 5.7.72. Therefore,
there is no room for doubt that the seniority list now
prepared by the respondents 1 and 2 is quite in accordance
with law and in compliance with the directions of this Court
in Sahi’s case.
Before concluding, we may also point out that the
petitioners before filing writ Petition (c) No.211/97.
sought for a review of the judgment in R.C. Sahi’s case but
withdrew the same. Similarly, they filed a petition for
contempt on the ground that this Court’s order was not
implemented and subsequently withdrew the same. They have
also filed I.A. No. 4 for clarification besides filing
this Writ Petition for implementation of the order of this
Court in Sahi’s case.
As noticed earlier, the petitioners could not
establish that 1967 Rules are applicable to the private
respondents and that Executive Instructions dated 5.7.1972
will not apply to the respondents. We do not think that the
petitioners have made out any case for making the rule
absolute nor for any clarification of the Order of this
Court in Sahi’s case.
Before parting with this case in order to do
complete justice and having regard to precedents in the
earlier connected disposed of matters, we make the following
directions.
There are two petitioners in W.P. (C) No. 211/97.
Out of these two, it is stated that one has already retired
from the service. In the light of the interim orders dated
19.1.98 and 27.1.98, the first petitioner (C.M. Bahugunha)
is still in service in the promoted post. In the
circumstances, we are of the view that, notwithstanding the
dismissal of the Writ Petition, the petitioner, viz. C.M.
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Bahuguna, who is still in service in the promoted post,
should be allowed to continue in the said promoted post, if
necessary, by creating a supernumerary post. However, we
make it clear that all further promotions shall be made in
the light of this Order.
The Writ Petition (C) No.211/97 fails and is
accordingly dismissed. I.A. No.4 will also stand dismissed.
There will no order as to costs.