Full Judgment Text
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PETITIONER:
RAVI PAUL & ORS.
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT19/01/1995
BENCH:
AGRAWAL, S.C. (J)
BENCH:
AGRAWAL, S.C. (J)
KULDIP SINGH (J)
HANSARIA B.L. (J)
CITATION:
1995 SCC (3) 300 JT 1995 (1) 579
1995 SCALE (1)261
ACT:
HEADNOTE:
JUDGMENT:
S.C. AGRAWAL, J.:
1. Both these matters raise a common question regarding
determination of seniority of Emergency Commissioned
Officers (ECOs) and Short Service Commissioned Officers
(SSCOs) who were recruited as Assistant Commandants in the
Border Security Force after their release from the Army.
The question is whether the said Officers are entitled to
count the service rendered by them in the Army for the pur-
pose of fixation of their seniority in the Border Security
Force.
2. In the wake of the Chinese aggression in 1962, in order
to meet the shortage of Commissioned Officers in the Indian
Army, the Government of India started a special scheme to
select officers through
582
Service Selection Board and granting them Commission in the
Indian Army. Such Commissioned Officers were called Emer-
gency Commissioned Officers (ECOs). In 1965, in addition to
the Emergency Commissioned Officers the system of Short Ser-
vice Commission (SSC) was introduced. The initial period of
such Commission was 5 years but it was extenable for another
5 years depending on the requirement/suitability of the
officer. After the expiry of the initial period of 5 years,
the officer, even if granted extension, could request for
release during the extended period at any stage. After the
expiry of the extended period, he was to be released unless
he was found acceptable for grant of permanent Commission in
the Indian Army and was granted permanent Commission.
3.The Border Security Force is one of the paramilitary
forces of the Government of India. It was constituted in
1965. It was initially governed by Central Reserve Police
Force Rules, 1955 (hereinafter referred to as the ’CRPF
Rules’) made under the provisions of the Central Reserve
Police Force Act, 1949. For that purpose Chapter XV (Rules
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112 to 116) was inserted in the CRPF Rules on December 21,
1966. The said Chapter bears the heading "Special
Provisions relating to Border Security Force". Rule 113
thus introduced made provision for appointment and promotion
of superior officers. SubRule (2) of Rule 113 related to
appointment on the posts of Deputy Commandant, Assistant
Commandant or Adjutant or Joint Assistant Directors or other
equivalent rank and sub-Rule (3) related to appointment on
the posts of Company Commanders, Quarter-master and Junior
Staff Officers and other posts in the force equivalent
thereto. On May 11, 1967, the CRPF Rules were further
amended and Clause (iv A) was inserted in sub-Rule (3) of
Rule 113 and thereby provision was made for appointment of
ECOs and SSCOs who were commissioned on or after November 1,
1962 and were released at any time thereafter. A similar
provision was contained in clause (ivA) introduced in sub-
Rule (4) of Rule 105 of the CRPF Rules which provided for
appointment to the post of Company Commanders or Quarter-
master in Battalions other than Signal Battalions or
Assistant Principal Central Training College in the Central
Reserve Police Force. On September 2, 1968, Parliament
enacted the Border Security Force Act, 1968 (hereinafter
referred to as the ’BSF Act’) to provide for the
constitution and regulation of an armed force of the Union
for ensuring the security of the borders of India and for
matters connected therewith. Sub-Section (1) of Section 141
of the BSF Act empowers the Central Government to make rules
for the purpose of carrying into effect the provisions of
the said Act. Clause (b) of sub-Section (2) of Section 141
confers the specific power to frame rule to provide for the
enrolment of persons to the force and the recruitment of
other members of the Force. Clause (c) of sub-Section (2)
of Section 141 confers the power to make rules providing for
conditions of service (including deductions from pay and
allowances) of the members of the Force. Under sub-Section
(2) of Section 142 members of the Border Security Force in
existence at the commencement of the Act are deemed to have
been appointed or, as the case may be, enrolled as such
under the Act.
4.In exercise of the powers conferred by Section 141 of the
BSF Act the Central Government has made the Border Secu-
583
rity Force Rules, 1969 (hereinafter referred to as the ’BSF
Rules’) which came into force on June 13, 1969. Rule 9
which provides for appointment of officers lays down:-
"9. Appointment of Officers.-
The Central Government may appoint such
persons as it considers to be suitable in the
Force, and their conditions of service shall
be such as may be provided in the rules made
in this behalf by the Central Government. "
5. As regards seniority the following
provision is made in sub-rule (2) of Rule 14:-
"14(2) : Matters relating to inter se se-
niority of persons belonging to the same rank
shall be determined in accordance with such
rules as may be made in this behalf".
6. By notification dated December 8, 1969, the Central
Government made the Border Security Force (Assistant
Commandants Recruitment) Rules, 1969 (hereinafter referred
to as the ’BSF Recruitment Rules’) which provided for the
manner of recruitment to the post of Assistant Commandants
in the Border Security Force. The said Rules were repealed
by the Border Security Force (Assistant Commandants)
Recruitment (Repeal) Rules, 1973 published on November 23,
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1973. After the repeal of the BSF Recruitment Rules, the
Government of India, Ministry of Home Affairs, issued an
order dated January 16, 1974 prescribing the manner for
recruitment to the posts of Assistant Commandants in the
Border Security Force. The said order provided that the
posts of Assistant Commandants shall be filled in by
(i)direct recruitment from amongst candidates possessing the
qualifications laid down therein or (ii) reemployment of re-
tired or released army officers who have held the rank of
Captain or retired State Police Officers or retired Officers
of the Border Security Force who have held the rank of a
Deputy Superintendent of Police or an Assistant Commandant
or other equivalent ranks; or (iii) transfer on deputation
from the rank of Captain from the Army or Assistant
Superintendent of Police or Deputy Superintendent of Police
from the State Government; or (iv) transfer on deputation
(by promotion) of Officers holding the post of Inspector of
Police or equivalent post, having held such post for a
period of three years in any Central or State Police
Organization; or (v) promotion of Subedars (Inspectors) of
the Border Security Force who have not completed the age of
50 years; or (vi) transfer/promotion from suitable
ministerial staff not below the rank of an Assistant,
serving at Headquarters, Director General, Border Security
Force.
7.Soon after the constitution of the BSF in 1965, the
Government needed experienced officers for the force and in
order to attract ECOs/SSCOs from the Army to the BSF it was
offered that their service in Army would be counted for the
purpose of seniority in the BSF. Similar benefit with
regard to counting of army service for seniority was also
given to ECOs/ SSCOs who were appointed in other civil
services under the Emergency Service Commissioned Officers
(Recruitment and Vacancies) Rules, 1967. The said Rules
ceased to have application on June 24, 1974 and the facility
of recruitment of the ECOs/SSCOs against vacancies in civil
services was discontinued. Similarly, in the
584
matter of adsorption/appointment in the para military forces
there was a change in the policy of the Government of India.
By letter dated September 6, 1972 it was indicated that Army
service would not be counted for the purpose of seniority in
respect of SSCOs who were absorbed/appointed on the basis of
future selections. The Border Security Force (Seniority,
Promotion and Superannuation) Rules, 1978 (hereinafter
referred to as the ’BSF Seniority Rules’) were published on
December 9, 1978. Rule 3 of the said Rules provided for
seniority of officers and in clause (v) of sub-Rule (2) it
was prescribed that "seniority of re-employed officers in a
particular rank shall be determined from the date of their
re-employment in that rank. "
8. During the period 1966 to 1971, a number of ex-ECOs
were appointed as Assistant Commandants in the Border Secu-
rity Force. In the letter of appointment of many of them,
it was specifically mentioned that "you shall be treated as
belonging to the year in which you would have been appointed
or attained the minimum age of entry into the service/post
concerned or on the date of your joining military service
whichever is earlier." Moreover, the Government of India
vide order dated July 5, 1972 had also indicated the
principles which were to be followed in the matter of
fixation of seniority of exECOs who were appointed as Deputy
Superintendents of Police/Company Commander in the Border
Security Force, the Central Reserve Police Force, in Indo-
Tibetan Border Police and the Assam Rifles. Under the said
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principles the service in the Army was to be counted for the
purpose of seniority in the manner indicated therein.
Respondents Nos. 3 to 445 in Civil Appeal No. 4127 of 1985
are such ECOs who were absorbed/appointed as Assistant
Commandants in the Border Security Force during the period
1966-77 and whose seniority has been fixed by taking into
account their past service and training period in the Army.
The appellants in the said appeal are officers who were
directly recruited as Assistant Commandants in the Border
Security Force in the year 196677. They filed a Writ
Petition (C.W.P. 701 OF 1978) in the Delhi High Court
wherein they assailed the fixation of seniority of the ex-
ECOs in the Border Security Force. The said Writ Petition
was, however, dismissed by a learned Judge of the High Court
by judgment dated September 9, 1983. Civil Appeal No. 4127
of 1985 is directed against the said judgment of the learned
Single Judge.
9. The Government of India, Ministry of Home Affairs in
their letter dated September 6, 1972 addressed to the Army
Headquarters, Military Secretary’s Branch (MS) intimated
that the Government has constituted a Special Selection
Board for recruitment of released SSRC Officers/ ECOs to the
posts of Assistant Commandants/Company Commanders (Deputy
SP) in the BSF, CRPF, Assam Rifles, etc. under the
Chairmanship of the Director General, Border Security Force.
In the said letter it was stated that few applications have
been received from SSRC Officers who have since been
released or who have not been placed in an acceptable grade
for the grant of Permanent Regular Commission in the Army.
By said order it was requested that wider publicity be given
so that SSRC Officers who were not aware of the constitution
of the Board and arc not placed in an acceptable grade for
Permanent Regular Commission may get the
585
opportunity of being considered for appointment in the
paramilitary forces under the Ministry of Home Affairs. The
Army Headquarters were requested to inform this category of
officers serving in various formations/units that they may
for ward their applications direct to the Deputy Director
(Organization), Directorate General, Border Security Force
latest by October 10, 1972. In the said letter it was
further stated :-
"The circular issued by you may also inform
the applicants that the service they have
rendered as SSRCOs will not count towards
seniority and pension, if selected, in the
para-military forces."
10.The petitioners in Writ Petition No. 146 of
1992 filed in this Court under Article 32 of
the Constitution are SSCOs who, after release
from the Indian Army, were appointed as
Assistant Commandants in the BSF after
selection by the Special Selection Board
during the years 1974 to 1978. In their case,
the letters of appointment expressly stated -
"Your pay will be fixed at the appropriate
stage of the aforesaid scale considering your
age at the time of your Army Commission and
your Army Commissioned service. Your Army
service shall not count for seniority or
promotion in BSF. "
While their Army service was taken into consideration in the
matter of fixation of pay they were not given the benefit of
their past service in the Army for the purpose of seniority
or promotion.
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11. It appears that ECOs appointed in the CRPF during the
same period were also not given the benefit of their past
service in the Army in the matter of fixation of seniority.
A Writ Petition (C.W.P. No. 44 of 1975, U.B.S. Teotia & Ors.
v. Union of India & Ors.) was filed in the Delhi High Court
by the ECOs in the CRPF claiming that they were Army
Officers within the meaning of Rule 8 of the CRPF Rules and
that they were entitled to add the length of their unbroken
Army Service towards seniority in the CRPF. The said writ
petition was dismissed by the Delhi High Court by judgment
dated February 6, 1978 on the view that ECOs were not Army
Officers and, therefore, they were not entitled to avail
their past Army service. Civil Appeal No. 1389 of 1979
(U.B.S. Teotia & Ors. v. Union of India & Ors.) filed by the
ECOs in this Court against the said decision of the High
Court, was disposed of by this Court by Order dated December
5, 1984 wherein it was observed :-
"It is now agreed by all parties that they were Army
Officers."
On that view, the Court remanded the matter to the High
Court for fresh decision of the issues involved on the basis
that the appellants in the said appeal were Army Officers.
The matter was thereafter considered by the High Court and
by judgment dated September 2, 1985, a Division Bench of the
High Court allowed the writ petition and held that the
petitioners in the said writ petition, viz., the released
ECOS, were entitled to get benefit of their past service in
the Army on the view that since the ECOs were Army Officers,
they were entitled to protection of Rule 8(b) of CRPF Rules
which governs the inter se seniority of superior offices in
the CRPF. The Union of India as well as the direct recruits
in the CRPF filed petitions for
586
special leave to appeal against the said judgment of the
Delhi High Court. Special Leave Petition (Civil) No. 13910
of 1985 (P.J Sheity & Ors. v. Union of India & Ors.) was
filed by the direct recruit and Special Leave Petition
(Civil) No 16911 of 1985 (Union of India & Ors. v. U.B.S.
Teotia & Ors.) was filed by the Union of India. Both these
petitions were dismissed by this Court by order dated
January 21, 1986 on the view that the respondents were Army
Officers within the meaning of Rule 8 of the CRPF Rules and
they were entitled to add the length of their unbroken
service as ECOs and SSCOs for the purpose of reckoning their
seniority. In accordance with the said decision of the
Delhi High Court, which was upheld by this Court, the
seniority of ECOs/SSCOs who were absorbed in the CRPF has
been revised and they have been given the benefit of past
service.
12.The SSCOs who were absorbed in the BSF filed Writ
Petition No. 3469-72 of 1983 (Kanwar Mehar Chand & Ors. v.
Union of India & Ors.) in this Court under Article 32 of the
Constitution wherein they claimed that their service in the
Army be counted for the purpose of seniority. In the said
Writ Petitions a counter affidavit was filed wherein
reliance was placed on the letters of appointment showing
that past Army service shall not count towards seniority and
promotion in the BSF. The said Writ Petitions were
dismissed by order dated April 6, 1984. After the seniority
of the ECOs/SSCOs who were absorbed in the CRPF was revised
in 1986, a representation was submitted by the ECOs/ SSCOs
who were absorbed in the BSF for revision of their
seniority. The said representation was, however, rejected
on December 4, 1986 on the view that in the appointment
letters it was clearly stated that Army service will not
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count towards .seniority and promotion in the BSF. There-
upon, the said officers filed a Writ Petition (Writ Petition
No. 1024 of 1988) in the Delhi High Court wherein they
relied upon the judgment of the Delhi High Court in U.B.S.
Teotia’s case (supra) which had been upheld by this Court
and claimed that they were also entitled to the benefit of
their Army service as was given to the officers who has been
absorbed in the CRPF. The said Writ Petition was dismissed
by the High Court by judgment dated November 16, 1990 on the
ground that it was barred by resjudicata in view of the
dismissal of the earlier Writ Petition filed under Article
32 of the Constitution in this Court. Feeling aggrieved by
the said judgment of the High Court, petitioners filed
Special Leave Petition (Civil) No. 1802 of 1991 (Ravi Paul
v. Union of India & Ors.) wherein the Court passed the
following order on July 30, 1991:-
"Mr. Harish Salve, learned counsel for the
petitioners, states that notwithstanding the
dismissal of the writ petition by the High
Court on the ground of resjudicata he would
submit a detailed representation before the
Government on the merits of this case. He may
do so within two weeks from today. The
private respondents may, if they so desire,
file counter to the representation. The Gov-
ernment will decide the representation on
merits after hearing the parties within four
months from today. The speaking order so
passed be placed before this Court and be
given to parties also. List the special leave
petition on December 4, 1991. "
13.The petitioners submitted a detailed representation on
August 12, 1991. The said representation was rejected by
order dated January 13, 1992. Feeling aggrieved
587
by the said Order, Writ Petition No. 146 of 1992 has been
filed under Article 32 of the Constitution wherein it has
been prayed that the order dated January 13, 1992 be quashed
and it be declared that the petitioners are entitled to add
the length of their unbroken service rendered as Short
Service Commissioned Officers towards seniority in the BSF
as per Rule 8 of the CRPF Rules, 1955. In view of the
development that had taken place in pursuance to the order
passed by this Court on July 30, 1991, viz., the filing of
the representation and the rejection of the same by order
dated January 13, 1992 which is the subject -matter of
challenge of Writ Petition No. 146 of 1992, this Court on
March 27, 1992 disposed of S.L.P. (Civil) No. 1802 of 1991
with the following observation
"In view of this development the Special Leave
Petition arising out of the impugned judgment
and order of the Delhi High Court dated
16.11.1990 does not survive and we, therefore,
dispose it of accordingly without prejudice to
the rights and contentions which the parties
have raised in the substantive Writ Petition
filed under Article 32 of the Constitution."
14.We will first take up Writ Petition (Civil) No. 146 of
1992 filed by the SSCOs who were absorbed/appointed as
Assistant Commandants in the BSF during the period 1974-78
after being selected by the Special Selection Board. The
petitioners in their Writ Petition have challenged the
fixation of their seniority and have claimed that they
should be given the benefit of their past service in the
Army. The basis for the claim of the petitioners is that
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they were absorbed/appointed in the BSF in accordance with
the provisions contained in Rule II 3 (3)(iv-A) of the CR.PF
Rules and, like other officers who were absorbed in the
CRPF, the seniority of the petitioners is governed by Rule 8
of the CRPF Rules and that in view of the decision of the
Delhi High Court dated September 2, 1985 in Shri U.B.S.
Teotia & Ors. v. Union of India & Ors., which has been
upheld by this Court by Order dated January 21, 1986, the
petitioners are also entitled to have their seniority fixed
by taking into account their past service as SSCOs in the
Army. The said plea of the petitioners raises two
questions:- (1) Was the absorption and appointment of the
petitioners as Assistant Commandants in the BSF in 1975-78
under Rule II 3(3)(iv-A) of the CRPF Rules? and (2) Is the
seniority of the petitioners governed by Rule 8 of the CRPF
Rules?
15.As regards the absorption/appointment of the petitioner
as Assistant Commandants in the BSF during the period 1974-
78 it has already been noticed that initially, i.e., before
the enactment of the BSF Act, appointment of superior
officers in the BSF was governed by Rule 113 of the CRPF
Rules. The enactment of the BSF act in 1968 brought about a
change. The said Act, in Section 4, provides for the
constitution of the BSF and in subSection (2) of Section 4
it is prescribed that subject to the provision of the BSF
Act, the Force (BSF) should be constituted in such manner as
may be prescribed and the condition of service of the
members of the Force shall be such as may be prescribed. In
sub-Section (1) of Section 141 power has been conferred on
the Central Government to make rules for the purpose of
carrying into effect the provisions of the Act. In sub-
Section (2) of Section 141 it has been specifically provided
that such rules may, inter alia, provide for the enrolment
of the persons to the Force and the
588
recruitment of the other members of the Force [clause (b)]
and the conditions of service (including deductions from pay
and allowances) of the members of the Force [clause (c)].
It would thus appear that after the enactment of the BSF Act
in 1968, the CRPF Rules ceased to have application in the
matter of recruitment to the BSF as well as the conditions
of service of the members of the said force and the BSF was
governed by the provisions of the BSF Act only. The BSF Act
does not provide for continuing the applicability of CRPF
Rules to the BSF. On other hand, we find that in the matter
of recruitment to the post of Assistant Commandant, the Cen-
tral Government made BSF Recruitment Rules on December 8,
1969 which continued in force till they were repealed on No-
vember 23, 1973. Thereafter, recruitment to the post of
Assistant Commandant in the BSF was governed by the
executive order dated January 16, 1974 issued by the
Government of India. In law it was permissible do so
because it is well settled that it is not obligatory to make
rules for recruitment etc. before as service can be
constituted or a post created or filled and the Government,
in exercise of its executive power, can make appointments in
the absence of rules. [See : B.N. Nagarajan & Ors. v. State
of Mysore & Ors., 1966 (3) SCR 682 at p. 686].
16. The position which emerges is that the CRPF Rules,
which governed recruitment to the BSF, ceased to have an
application after the enactment of the BSF Act, 1968 and,
thereafter, the matter of recruitment to the post of
Assistant Commandant was first governed by the BSF Re-
cruitment Rules and after the repeal of the said Rules in
1973 the said recruitment was governed by the order of
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Government of India dated January 16, 1974. The repeal of
the BSF Recruitment Rules in 1973 would not have the effect
of reviving the applicability of CRPF Rules to the BSF. We
are, therefore, of the view that absorption/appointment of
SSCOs on the post of Assistant Commandant in the BSF after
selection by the Selection Board during the period 1974-78
was not made under the provisions of Rule II 3(3)(iv-A) of
the CRPF Rules, as claimed by the petitioners, but was made
under the provisions of the BSF Act and the executive order
of the Government of India dated January 16, 1974.
17. As regards the applicability of Rule 8(b) of the CRPF
Rules which governs the inter se seniority of superior
officers it may be stated that Rule 116 of CRPF Rules (which
falls in Chapter XV introduced in 1966) contains the
following provision
"Rule 116. Application of rules to B.S.F.
(1) The provisions of this Chapter shall
apply only to the members of Border Security
Force and nothing contained in Rule 105 or 106
or 108 shall apply to the members of any such
force.
(2) Save as otherwise provided in subRule
(1), the provisions of the Central Reserve
Police Force other Om this Chapter shall apply
to any member of the Border Security Force as
it applies to any other member of the Central
Reserve Police Force.
In view of the said provision, Rule 8(b) of the CRPF Rules
was applicable to the officers who were recruited to the BSF
under Rule 113 of the CRPF Rules. The said Rule, however,
ceased to have application to the BSF after the enactment of
589
the BSF Act and the publication of the BSF Rules. In the
matter of conditions of service of the members of the BSF,
Section 4(2) of the BSF Act provides that "the conditions of
service of members of the shall be such as may be
prescribed". The expression ’prescribed’ is defined in Se-
lection 2(S) of the BSF Act to mean "prescribed by rules
made under this Act. Section 141(2) (c) of the BSF Act
empowers the Central Government to make rules providing for
conditions of services of members of the BSF. In Rule 14(2)
of the BSF Rules it is provided that matters relating to
inter se seniority of persons belonging to the same ranks
shall be determined in accordance with such rules as may be
made in this behalf The BSF Seniority Rules were such rules
which were made in 1978.
18.From the aforementioned provisions contained in the BSF
Act and BSF Rules it is evident that that the conditions of
service, including seniority of members of the BSF, is to be
governed by the provisions of the rules made under the BSF
Act and not by the CRPF Rules and, therefore, Rule 8(b) of
the CRPF Rules which governs seniority of superior officers
in CRPF ceased to have application to the BSF on the
enactment of BSF Act and thereafter the seniority was to be
governed by the rules made under the BSF Act and till such
rules were made it was open to the central Government to
regulate such seniority by orders. The seniority of the
petitioners in Writ Petition No. 146 of 1992 and other
ECOs/SSCOs who were absorbed/appointed in the BSF after the
enactment of BSF Act in 1968, is, therefore, not governed by
Rule 8(b)of CRPF Rules but is governed by the provisions of
the BSF Act and the Rules made thereunder and in the absence
of such rules by the executive orders issued by the
Government of India in that regard. As pointed out earlier
rules regarding seniority of officers in the BSF were made
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for the first time in December 9,1978 when the BSF Seniority
Rules were published. Till then, there was no rule
regarding fixation of seniority of officers in the BSF and
the said matter was governed by executive orders only. One
such executive order is contained in the letter dated
September 6, 1972 addressed by the Government of India to
Army Headquarters, Military Secretary Branch (MS) wherein It
was specifically mentioned that service rendered as SSCOs
could not count towards seniority and pension. This matter
was further clarified in the letter of appointment of the
petitioners wherein it was specifically mentioned :Your Army
service shall not count for seniority or promotion in BSF."
Even in the BSF Seniority Rules made in 1978 no provision
has been made for giving the benefit of past Army Service to
SSCOs who were absorbed/appointed in the BSF. Rule 3(1)
which provides for fixation in inter se seniority among
officers holding the same rank, the following provision has
been made in clause (v):-
"Seniority of re-employed officers in a
particular rank shall be determined from the
date of the their reemployment in that rank".
19. We are, therefore, unable to hold that the seniority of
SSCOs who were absorbed/appointed as Assistant Commandant in
the BSF on selection by the Special Selection Board during
the period 1974-78 is governed by Rule 8(b) of the CRPF
rules. In our opinion, the seniority of such officers must
be governed by the provisions contained in the BSF Act and
Rules made thereunder and in the absence
590
of rules by executive orders issued by the Central
Government in that regard.
20. Even if we proceed on the basis that Rule 8(b) of the
CR.PF Rules was applicable to the petitioners, we cannot say
that the said Rule enables the petitioners to count their
service in the Army as SSCOs for the purpose of seniority in
the BSF. The provisions governing seniority of superior
officers are contained in clause (b) of Rule 8 of the CRPF
Rules and the relevant provision is that contained in sub
clause (i) which was follows:
(b) The inter se seniority of superior of-
ficers shall be determined as under:
(i) An Army Officer shall maintain his
seniority as between Army Officers, within a
particular rank. Similarly, an Indian Police
Service Officers shall maintain his seniority
between himself and other Indian Police
Service Officers. For purpose of inter se
seniority between non Army and Army Officers
of equivalent rank, substantive incumbent
shall be senior to officiating or temporary
officers, their inter se seniority depending
on the dates of their continued unbroken
service in that rank. The interse seniority
of officiating or temporary officers shall be
determined by their continuous length of ser-
vice in that rank. An Army Officer reemployed
in the Central Reserve Police Force shall
maintain his Army Seniority between Army
Officers within a particular rank.
21. The said provision is a composite
provision governing seniority of various
categories of officers. It can be split up
into Following components"
(1) An Army Officer shall maintain his
seniority as between Army Officers within a
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particular rank.
(2)An Indian Police Service Officer shall
maintain his seniority between himself and
other Indian Police Service Officers.
(3)Between non-Army and Army Officers of
equivalent rank inter se:
(a) Substantive incumbent shall be senior to
officiating or temporary officers.
(b) Amongst substantive in incombents inter
se seniority shall depend on the dates of
their continuous unbroken service in that
rank.
(c) The inter se seniority of officiating or
temporary officers shall be determined by
their continuous length of service in that
rank.
(4) Re-employed Army Officer shall maintain
his Army seniority between Army Officers
within a particular rank.
22. It would thus appear that Rule B(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 Services 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 B(b) to indicate that the earlier
Army Service of an Army Officer or re-employed Army Officer
is to be counted for the purpose of seniority in CR.PF.
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, in its letter dated July 5, 1972
addressed to the Director General BSF and CRPF as well as
I.G. (ITBP) and Secretary (Home),
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Arunachal Pradesh Administration I 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. In U.B.S. Teotia & Ors.v. Union of
India & Ors. (supra) the Delhi High Court has construed Rule
8 of the CRPF Rules to mean that Army Officers who are re-
employed or Army Officers who come on deputation, have to
retain their original seniority and will get the benefit for
their Army Services. We are unable to read Rule 8 as having
such an effect. In our opinion, the said Rule when it says
that "an Army Officer shall maintain his seniority as
between Army Officers within a particular rank and an Army
Officer re-employed in the Central Reserve Police Force
shall maintain his Army Service between Army Officers within
a particular rank" only means that amongst Army Officers
inter se and reemployed Army Officers and an Army Officer
inter se their seniority to a particular rank in the CRPF
would be fixed on the basis of their seniority in the Army.
We have not found any provision in Rule 8(b) which enables
an Army Officer or a reemployed Army Officer to count his
Army service for the purpose of seniority in the CRPF. We
are, therefore, unable to uphold the decision of Delhi High
Court in UB.S. Teotia & Ors. v. Union of India &
Ors.(supra). For the same reasons the observations in the
order dated January 21, 1986 passed by this Court in special
leave petitions arising out of Delhi High Court in decision
in U.B.S. Teotia’s case (supra) that "the respondents are
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the Army Officers within the the meaning of Rule 8 of the
CR.PF Rules and they arc entitled to add the length of their
unbroken service as ECOS and SSCOs for the purpose of
reckoning their seniority", cannot be regarded as based on a
correct interpretation of Rule 8 of the CRPF Rules. The
said observations must, therefore, be confined to that
particular case only.
23.It has, how ever, been contended by learned counsel for
the petitioners (in Writ Petition No. 146 of 1992) that the
said petitioners were absorbed/appointed as Assistant
Commandants in the BSF after being selected for appointment
by the Special Selection Board which had also selected the
SSCOs for absorption in the CRPF and that there is no
rational basis for treating those SSCOs thus selected by the
Special Selection Board, who were all similarly situate
prior to their selection, differently in the matter of
fixation of seniority merely on the fortuitous circumstance
that out of them those who were assigned to the CRPF, would
get the benefit of their past service in the Army, while
those like the petitioners, who were assigned to the BSF
would be denied the said benefit. In our view, there is no
merit in this contention. The CRPF and the BSF are two dis-
tinct forces governed by separate statutory provisions. The
fact that in the CRPF, the benefit of past service in the
Army has been given to SSCOs who were absorbed/ appointed
after selection by the Special Selection Board during the
period 1974-78 on account of the provisions of Rule 8(b) of
CRPF Rules, as construed by the Delhi High Court, does not
mean that the said benefit should also be made available to
the petitioners who were absorbed/appointed as Assistant
Commandants in the BSF, though in the BSF there is no rule
similar to Rule 8(b) of the CRPF Rules which confers this
benefit. On the other
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hand, the said benefit has been expressly denied to the
officers who were so absorbed/appointed, inasmuch as prior
to the recruitment, the Government of India has clearly
indicated in the letter dated September 6, 1972 that service
rendered as SSRCOs will not count towards seniority and
pension. This stipulation was also incorporated in the
letter of appointment of the petitioners when they were
absorbed/ appointment as Assistant Commandants in the BSF.
In the said letter it is expressly stated that the benefit
of the past service in the Army would not be available for
the purpose of seniority. From the letter of the Government
of India dated September 6, 1972 it appears that this policy
was for recruitment of released ECOs/SSRCOs as Assistant
Commandants/Company Commanders (Dy. S.P.) in the BSF,CRPF,
Assam Rifles,etc. Merely because the said policy which was
applicable to all released SSCOs who were to be
absorbed/appointed in the various para military forces of
the Government of India could not be given effect in CRPF on
account of Rule 8(b) of the CRPF Rules, would not mean that
the said policy in its application to the BSF, where there
is no such legal impediment, suffers from the vice of
descrimination.
24. It has also been urged by the learned counsel for the
petitioners (in Writ Petition No. 146 of 1992) that ECOs who
were absorbed/appointed to the BSF during the period of
1967-71 have been given the benefit of counting their past
service in the Army for the purpose of seniority and that
there is no reason why similar benefit should not have been
extended to SSCOS, like the petitioners, who were ab-
sorbed/appointed to the BSF during the period 1974-78 and
that the denial of such benefit to the petitioners results
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in arbitrary and invidious discrimination and denial of the
right to equality guaranteed under the Constitution. We are
unable to agree. The ECOs who were absorbed/appointed to
the BSF during the period 196771 has joined Army during
emergency in the wake of the Chinese aggression. By joining
the Army when the Country needed their services they had
made a sacrifice. Keeping in view the sacrifice made by
them, the Government of India evolved a policy whereunder
they were given certain benefit of their Army Service for
counting their seniority on re-employment in public services
after their release from the Army. Moreover, they were
absorbed in the BSF at a time when there was need for compe-
tent officers in the BSF and in order to attract such
officers in the BSF it was considered necessary to give the
benefit of the service of the Army for the purpose of
seniority in the BSF to the officers who were
absorbed/appointed in the BSF during the period 1967-71.
The SSCOs has joined the Army as a career after the emer-
gency resulting from the Chinese aggresSion was over. When
they were absorbed/ appointed to the BSF during the period
1974-78 there was a change in the policy of the Government
of India and the benefit of the service in the Army was not
to be given to the SSCOs who were absorbed/ appointed in the
BSF after release from the Army. This condition was
expressly mentioned in their letters of appointment and they
opted to join the BSF knowing fully well that their Army
service would not be counted for seniority in the BSF. The
ECOs who were absorbed/appointed in the BSF during the
period 1974-78 are officers belonging to two different
categories and they cannot be regarded as persons similarly
situate.
25.For the reasons aforementioned, we find no merit in Writ
Petition No. 146 of
593
1992 and it must, therefore, be dismissed.
26. Civil Appeal No.4127 of 1985 relates to the fixation of
seniority of respondents Nos. 3 to 445 who are ex-ECOs ab-
sorbed/appointed as Assistant Commandants in the BSF during
the period 1966 to 1971 and who have been given the benefit
of past service and training period in the Army for the
purpose of seniority in the Cadre of Assistant Commandant in
the BSF. As a result, the said respondents were shown as
senior to the appellants who were appointed as Assistant
Commandants in the BSF in the year 1966-67. The Writ
Petition filed by the appellants challenging the fixation of
seniority of respondents was rightly dismissed by the High
Court because the letters of appointment of exECOs it was
expressly stated that their Army service shall be counted
towards seniority. Such a condition was not prohibited by
any provision of the CRPF Rules or BSF Act and the rules
made thereunder. Hence, it cannot be said that the fixation
of seniority of the respondents suffers from any legal
infirmity. The appeal is, therefore, dismissed.
27. In the result Writ Petition No. 146 of 1992 as well as
Civil Appeal No. 4127 of 1985 are dismissed. No order as to
costs.
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