Full Judgment Text
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PETITIONER:
UNION OF INDIA & ORS.
Vs.
RESPONDENT:
MAJOR R.N. MATHUR
DATE OF JUDGMENT: 04/11/1996
BENCH:
K. RAMASWAMY, G.B. PATTANAIK
ACT:
HEADNOTE:
JUDGMENT:
THE 4TH DAY OF NOVEMBER, 1996
Present:
Hon’ble Mr. Justice K. Ramaswamy
Hon’ble Mr. Justice G.B. Pattanaik
Altaf Ahmed, Additional Solicitor General, N.N.
Goswami, Sr. Adv., Ashok K. Srivastva, Anil Katiyar and Ms.
Mridul Aggarwal, Advs. With them for the appellants In-
person for the Respondent
O R D E R
The following Order of the Court was delivered:
Leave granted.
Heard learned counsel for the appellants and Major R.N.
Mathur, respondent-in-person.
This appeal arises from the judgment and order of the
Central Administrative Tribunal, Jaipur, made on 6.3.1996 in
O.A. No.648/94.
Admittedly, the respondent was granted, in 1980, a
permanent NCC Commission. The letter of appointment dated
23.5.1980 indicates that, as a condition, the selected
officers granted permanent NCC Commission under the
Government of India’s letter dated August 4, 1978, as
amended, might be appointed in NCC units and on staff
including Directorate General, NCC. Clause (5) of the
appointment letter says that these officers, if otherwise
not found unfit, would be eligible to serve till 55 years.
This controversy is no longer res integra. This question was
considered by this Court in Union of India & Anr. vs Lt.
Col. Komal Chand & Ors. [AIR 1992 SC 1479] wherein it was
held that it was considered desirable that before a person
was granted NCC 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 he may
indicate his choice by exercising his option in the form
prescribed in appendix ‘B’ to the letter. We cannot accept
the contention of the respondent. Having accepted the
Commission in 1980, it is not open to him to contend now
that during these years he did not read the terms of
appointment. This Court has clearly laid down that para 8
makes a limited application of the Civil Services Rules in
regard to pension only and cannot be held to have rendered
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the provisions of para 5 fixing in clear and express terms
"the age of superannuation as fifty five years nugatory".
The contention of the learned counsel, Mr. Mukhoty,
appearing in that case that since the rules framed under
Section 13 of the NCC Act do not fix the age of retirement
of the respondents, they could not be retired at the age of
55 years, therefore, was not accepted by this Court. It was
held that "it is true that there is 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. They must now retire when they reach the age of
55 years." Thus, it is clear that the appointment was made
fixing the age of superannuation of 55 years. In terms
thereof, the officer is required to retire at the age of 55
years.
It is in an admitted position that the Fundamental
Rules have no application and the statutory rules equally
have no application. Under these circumstances, the Tribunal
is clearly in error in directing the appellants to retain
the respondent herein, in service till 57 years.
The appeal is accordingly allowed. In the
circumstances, there will be no order as to costs.