Ishwar Singh vs Union Of India And Ors.
1994 Latest Caselaw 84 Del

JUDGMENT

Anil Dev Singh, J.

(1) This is a writ petition through which the petitioner, a released Emergency Commissioned Officer, inter alia, prays for quashing the order dated November 26. 1968 whereby his services were terminated by the first respondent while he was working as Assistant Commandant in the Border Security Force (for short 'BSF') and claims seniority on the basis of Rule 6(l)(b) of the Released Emergency Commissioned. Officers and Short Service Commissioned Officers (Reservation of Vacancies) Rules 1967 (for short 1967 Rules') or Rule 6(l)(b) of the Released Emergency Commissioned Officers and Short Service Commissioned Officers (Reservation of Vacancies) Rules 1971 (for short 1971 Rules'), in the Central Industrial Security Force (for short 'CISF') to which he was subsequently appointed on January 12, 1971 as Assistant Commandant.

(2) A narrative of the relevant facts necessary for resolving the controversy are as under :

(3) On June 30, 1963 the petitioner was commissioned in the Army as an Emergency Commissioned Officer after having undergone the requisite training. On September 15, 1967 the petitioner was demobilized and released from the Army while he was working as Acting Captain. Before the petitioner was released from the Army he was informed that he had been selected for being appointed as Assistant Commandant in the BSF. On November 2, 1967 formal orders of his appointment as Assistant Commandant in the Bsf, in the grade of Rs. 325-25-600-35-670-EB-35-950 with special pay of Rs.l50 p.m., were issued. However, the appointment of the petitioner in the Bsf lasted for a short time as his services were terminated by the first respondent on November 26, 1968. It needs to be pointed out that few months before his termination on September 8, 1968 the petitioner's explanation was sought with regard to the allegations that while on patrol duty on August 2, 1968 he slept with a girl in Village Chhanni Dawani in Jammu Province and also took her and Shiv Ram, her father, in his vehicle to Jammu. In response the petitioner by his explanation dated September 9, 1968 stated that the allegation that he slept with the girl was totally false. He, however, admitted that he took shelter for the night in the village. With regard - to the other allegation that he carried the said persons in his vehicle to Jammu, he averred that he had given lift to the said persons in his vehicle on humanitarian grounds and without any self interest. He closed his explanation by saying that he had committed a blunder for which he should be forgiven and he will never repeat the indiscretion. After termination of his services from the Bsf, on his representation for reinstatement, the petitioner was appointed in the CISF on January 12, 1971 as Assistant Commandant, which post carried a scale of 350-25-500-30-590-EB-30-800-EB-830-35-900 plus special pay of Rs. 100 p.m. It was specified in the order of appointment that his appointment -was temporary in nature. By order dated August 14, 1972 the Government of India fixed the pay of the petitioner at Rs. 450 per month by giving him the benefit of his Army service in accordance with Office Memorandum dated January 1, 1972. On December 24, 1973 the petitioner was declared to have completed his probation as Assistant Commandant with effect from January 20, 1973 and was also declared suitable for confirmation. It appeals that respondent No. 3 Mr. D. V. Behl, who was promoted on July 1, 1974 as Commandant, stole a march over the petitioner and the petitioner felt aggrieved against this treatment which impelled him to file the present writ petition, which was instituted on March 3, 1975.

(4) Initially the main grievance of the petitioner in the writ petition was that he was not given the benefit of his past service rendered in the Army in accordance with Rule 6(l)(b) of the Rules for the purpose of calculating his seniority in the CISF. Subsequently the petitioner on April 4, 1(983 amended the writ petition and also challenged the order of termination of his service from the BSF.

(5) Mr. Sreekumar, learned counsel appearing for the petitioner submits that the petitioner has not been given the credit of his past Military service for the purpose of computing his seniority in the CISF in accordance with Rule 6(l)(b) of the 1967 Rules and 1971 Rules even though the petitioner is a Released Emergency Commissioned Officer. His submission is that this has adversely affected the service prospects of the petitioner, and many of the officers were able to steal a march over him. Further submission of the learned counsel is that the termination of the petitioner's service from the Bsf was violative of the principles of natural justice as no inquiry was held in his presence nor any opportunity was given to him to show cause against his termination. According to the learned counsel the services of the petitioner were terminated on the ground of the alleged incident of August 2, 1968 and therefore it was not a case of termination simplicitor but actually it was a termination with a stigma having civil consequences. On the other hand, Mr. Sarin, learned counsel turn the respondent, submits that the petitioner cannot claim the benefit of the service rendered by him as an Emergency Commissioned Officer inasmuch as the benefit of Rule 6(l)(b) of the Rules is available only once on being appointed in the Central Civil Services and posts. Class I and Class Ii, for the first time after release from the Army. Learned counsel also points out that the petitioner had already received the benefit of the Rules earlier when he was first time appointed in the Bsf after his release from the Army and urges that the second appointment in the CISF does not entitle him to claim the benefit of Rule 6(l)(b) of the Rules. Moreover, the Rules apply to the Released Emergency Commissioned Officers who are appointed in the Central Civil Services and posts against permanent vacancies and the petitioner not having been appointed in the CISF against a permanent vacancy, the Rules are not attracted, contends the learned counsel. He also submits that the letter of appointment of the petitioner clearly states that the appointment in the CISF was being made on temporary basis and against a temporary post. He further canvasses that the appointment of the petitioner was not made in accordance with Rule 5 of the aforesaid Rules as admittedly the appointment was not through the Public Service Commission and the same was de hors the Rules. That apart, learned counsel submits that the petitioner cannot be allowed to impugned his termination from the Bsf after a delay of 15 years.

(6) I will first consider the question whether or not the petitioner can be allowed to challenge the order of termination of his service from the Bsf after a gap of 15 years. It is not disputed that when the writ petition was filed on March 3, 1975 the order of termination was not impugned by the petitioner. It was only on April 4, 1983 that the order was first challenged. The explanation of the petitioner for not challenging the impugned order at an earlier stage is that the petitioner was under a bona fide impression that the order did not cast any stigma on him and it was a case of a termination simplicitor. Learned counsel for the petitioner submits that on January 16, 1978 the petitioner for the first time came to know that the termination of his service was founded on the alleged incident of August 2, 1968. He submits that this information was derived from the letter dated January 16, 1978 emanating from the Office of the Inspector General, CISF addressed to the Deputy Inspector General Nwz CISF in which it was stated that the stigma, of moral turpitude against the petitioner was not removed. I am afraid the explanation of the learned counsel for not challenging the impugned order earlier does not carry conviction as the allegations which were levelled against the petitioner relating to the incident of August 2, 1968 were very much in his knowledge. He was also given an opportunity to furnish his explanation and the petitioner did avail of the opportunity by furnishing his explanation on September 9, 1968. Soon thereafter on November 20, 1968 his services were terminated from the Bsf, still the petitioner did not challenge the order of termination. Even after January 16, 1978 the petitioner did not challenge his termination until April 4, 1983. It seems to me that the petitioner did not challenge the order of his termination from the post of Assistant Commandant Bsf earlier as he was given an appointment in the CISF on compassionate grounds. Besides, his promotions in the CISF were not being denied to him because of the alleged incident of August 2, 1969. This is clear from the aforesaid letter dated January 16, 1978 of the second respondent wherein it is stated that the case of the petitioner for promotion to the rank of Commandant was not rejected on the basis of his unsuitability but on the basis that the petitioner was not senior enough and had not completed six years of service in the rank of Assistant Commandant so as to be eligible for being considered for the post of Commandant. It seems to me that the petitioner was not justified in challenging the order of the first respondent dated November 26, 1968 terminating his services from the Bsf after a delay of 15 years. Accordingly I decline to interfere with the order of the first respondent dated November 26, 1968.

(7) With regard to the main submission of the learned counsel for the petitioner that the service rendered by the petitioner as Eco including the period of training is required to be counted for the purposes of computing his seniority in the CISF is concerned, it seems to me that the controversy must be resolved in the light of the Rules.

(8) Before construing the relevant Rules, it will be necessary to give their historical background. On October 26, 1962, in the wake of a threat from across the border, the President of India issued a promulgation of emergency under Article 352 of the Constitution. In order to meet the challenge the nation needed youngmen to join the Army. The Government of India and State Governments decided to give certain benefits to encourage them to join military service at the risk of their lives to save the honour of the motherland. Certain promises were therefore made and currency was given to them by circulars and advertisements. Youngmen in large numbers volunteered and joined Military Service during the emergency, which lasted until January 9, 1968. At that critical juncture, enthused with love for the country, they performed military service without caring for other avenues and avocations, which could be more beneficial to them in the long run is so far as their career was concerned. In recognition of their services, the Government of India on July 5, 1966 promulgated Released Emergency Commissioned Officers and Short Service. Commissioned Officers of the Armed Forces of the Union reservation of vacancies in the Central Civil Services and posts, Class I and Class 11 (non-technical) Rules 1966 (for Short 1966 Rules'). These Rules by a deeming fiction came into operation from January 29, 1966. On October 4, 1967 fresh rules in supersession of 1966 Rules were notified in order to maintain continuity. These rules were given retrospective effect by providing (hat they shall be deemed to have come into force with effect from January 29, 1966, i.e. the date the 1966 Rules came in to operation. These Rules were to remain in operation for a period of five years expiring on January 29, 1971. Again, the Government of India in exercise of its powers conferred by the proviso to Article 309 and clause (5) of Article 148 of the Constitution framed Rules in line with the two previous notifications. These Rules were notified on August 26, 1971. They were to remain in force for a period of three years commencing from January 29, 1971 and coming to an end on January 29, 1974. The purpose and object of these rules was to benefit the released Emergency Commissioned Officers (for short 'ECO') and Short Service Commissioned Officers (for short 'SSCO'), who had served the nation at the critical time of national emergency, by reservation of vacancies for them in Central Civil Services and posts. This is apparent from a bare reading of the Rules. In this regard reference to the 1971 Rules would suffice as 1966, 1967 and 1971 Rules are more or less in line with each other. The goal was made clear even in the prefatory part of the notification containing 1971 Rules itself which is extracted below to the extent that it is relevant. "..........the President hereby makes the following rules regulating the reservation of vacancies in the Central Civil Services and posts, Class I and Class Ii (non-technical) for the Released Emergency Commissioned Officers and Short Service Commissioned Officers of the Armed Forces of the Union........."

(9) Rule 2 of 1971 Rules while specifying the area of operation of the Rules provides as under : "Application. These rules shall apply to all the Central Civil Services and Posts, Class I and Class It but shall not apply to (a) Engineering and Medical Services and Posts and (b) Posts and duties of which involve conducting research or organising, guiding and directing research."

(10) The aim of the Rules was effectuated by Rule 4 by virtue of which reservation in Central Services & Posts were made for the Eco and SSCO. The rule in so far as is relevant' for resolving the controversy is extracted below for facility of immediate reference.

"4.Reservation. of Vacancies : (1) Twenty per cent of the vacancies in the Indian Foreign Sendee, and 25 per cent of the vacancies in all the other Central Civil Services ami. posts Class I, to which these rules apply and which arc to be filled by direct recruitment and 27 per cent of the vacancies which arc to be filled by direct recruitment on the basis of open competition, and 25 per cent of the vacancies which are to be filled by direct recruitment otherwise than through open competition in all the Central Civil Services and posts, Class Ii, in any year, shall be reserved for being filled by the Emergency Commissioned Officers and the Short Service Commissioned Officers of the Armed forces of the Union who were commissioned after the lst November, 1962 but before the 10th January, 1968 and who

(I)In the case of Emergency Commissioned Officer are released according to a phased programme; or

(II)In the case of Short Service Commissioned Officers are released on the expiry of the tenure of their service;

(III)are invalided owing to a disability attributable to or aggravated by military service.

NOTE: (a) Engineers and Doctors employed under the Central Government or State Government or and Government owned industrial undertakings after 1968, who are required to serve in the Armed Forces for a minimum period under the compulsory Liability Scheme and who are granted Short Service Commission under the rules during the period of such service, are not eligible for the vacancies reserved for the Emergency Commissioned Officers of the Armed Forces in the Services and posts, to which these rules apply.

(B)Officers belonging to the Volunteer Reserve Forces of the Armed Forces and called upon for, temporary services are not eligible for the reserved vacancies.

(C)The candidature of a person is liable to be cancelled, if after submitting his application. He is granted permanent commission in the Armed, or he is released there from at his own request or on account of misconduct or inefficiency.

(2)The provisions of sub-rule (1) shall apply to :

(I)Permanent vacancies which are filled initially either on a temporary or on a permanent basis.

(II)Temporary vacancies which are likely to be made permanent or to continue on a long term basis."

(11) Thus the above Rule applies to Reservation of Vacancies for Ecos and SSCOs in all Central Civil Services and posts Class I and Class Ii with an exception of categories of posts mentioned in Rule 2 and Note to Rule 4 (1).

(12) Rule 6 relating to seniority and pay of the Released Emergency Commissioned Officer and Short Service Commissioned Officer needs also to be noticed, which reads as under :

"6.Seniority and Pay : (1) Seniority and pay of those candidates who are appointed against the Vacancies reserved under sub rule (1) of rule 4 shall be determined on the assumption that they entered the service or the post, as the case may be, at the first opportunity they had after joining the training prior to the Commission or the date of their commission where there was only post--commission training that is :

(A)In the case of Services of posts recruitment to which is made on the results of a competitive examination con- dueled by the Commission, the released Emergency Commissioned Officer or Short Service Commissioned Officer- who competes successfully at the first or second available opportunity would be deemed to have passed the examination at first or second occasion he could have appeared at the relevant examination had he not joined military service and shall be assigned the year of allotment correspondingly and

(B)In the case of services or posts recruitment to which is made otherwise than through a competitive examination conducted by the commission, seniority shall be fix on the assumption that the Emergency Commissioned Officers, and the Short Service Commissioned Officers would have been appointed on the date arrived at after giving credit for the approval military service .is Emergency Commissioned Officer or Short Service Commissioned Officers, as the case may be, including the period of training if any shall be deemed to have been allotted the corresponding year for the purpose of fixation of seniority".

2.Seniority inter se of candidates who are appointed against the vacancies reserved under sub- rule (i) of rule 4 and allotted to a particular year shall be determined according to the merit list prepared by the Commission on the basis of the results of their preference at the examination or test or interview.

3.All candidates who have been appointed against the vacancies reserved under sub-rule (1) of rule 4 shall rank below the candidates who were appointed against the vacancies unreserved in the services or posts through the competitive examination or test or interview conducted by the Commissioned Corresponding to the year to which the former candidates are allotted".

(13) Thus Rule Rule 6(1)(b) refers to the procedure for fixation of seniority and pay of the released Ecos and SSCOs' whose recruitment to the Central Civil Services and posts was made otherwise than through a competitive examination conducted by the UPSC. These officers were deemed to have been appointed in the service from the date which is determined by giving them the benefit of the approved military service rendered by them as Ecos or SSCOs including the period of training, if any, and are to be allowed seniority and pay accordingly. That is to say the approved military service including the period of training of a released Eco is required to be counted for determining his deemed date of appointment in the service.

(14) Having regard to the language used in the aforesaid Rules there is no warrant to hold that the benefit thereof can be granted only once. Rules are not hedged in by words limiting their application only to the first appointment of Eco or Ssco in 'the Central Civil Services and Posts after his release from the Army. The Rules do not make any such exception, though Rules 2 and 4 provide for exception in certain cases. While Rule 2 makes it clear that the Rules apply to all Central Civil Services with some exceptions. Rule 4 provides for Reservation of Vacancies 'n the said services. There could be myriad reasons for a Released Eco or Ssco to quit his job in one organisation of the Central Government and take up fresh appointment in an another organisation under it. The benefit of these Rules would be available to a released Eco and Ssco who was appointed in the Central Civil Services and posts, whether appointed once or more than once, during the period of operation of these Rules, provided he Served as Eco and Ssco of the Armed Forces of the Union after November 1, 1962 and before January 10, 1968 subject to the condition that his case does not fall in the exceptions mentioned in Rule 2 and Note to Rule 4(1) of the 1971 Rules. The petitioner admittedly served as Eco in the Armed forces while emergency was still in existence and his case did not fall in any of the exceptions mentioned in either Rule 2 or Rule 4. It is also not the case of the respondent that the petitioner was appointed in excess of the quota reserved for Ecos and SSCO. Therefore the benefit of Rules was required to be given to the petitioner on his second appointment in the CISF.

(15) Besides the released Ecos & SSCOs, who are appointed to Civil Services constitute one single class. Whether it was their first appointment or a second appointment in the Central Civil Services and posts does not make any difference. In Raj Pal Sharma and others Vs. State of Haryana and others the Supreme Court held that all Ecos released from military service constitute one class and it was not possible to single out certain persons of the same class for differential treatment.

(16) The argument of Mr. Sarin, learned counsel for the first and second respondents that the benefit of rule 6(l)(b) will not be available to the petitioner as his appointment as Assistant Commandant in the CISF was not against any permanent vacancy is also not well founded. It is not denied that though in the first instance the appointment of the petitioner in the CISF on January 12, 1971 was temporary in nature, he was subsequently confirmed w.e.f. January 20, 1973. As already noted, Rule 4(1) of the 1971 Rules provide for reservation of vacancies in Central Civil Services and posts for released Ecos and SSCOs. Sub rule 2 of Rule 4 specifically states that the provisions of sub rule ( 1 ) thereof will apply both to permanent vacancies, which were filled initially either on temporary basis or permanent basis, and to temporary vacancies which are likely to be made permanent or which continued on a long term basis. In this context Rule 3(e) is also relevant, which reads as under : "3.Definitions In these rules, unless the context otherwise requires (e) The expression "temporary vacancies which are likely to be made permanent or to continue on long term basis" means clear vacancies arising in a service or post due to death, retirement, resignation or promotion of incumbents from one post or grade to a higher post or grade including deputation for a period exceeding 3 years, us also vacancies arising from creation of temporary posts which arc likely to be made permanent of continue on a long term basis."

(17) From a conjoint reading of Sub Rules 1 and 2 of Rule 4 and Rule 3(e) it is manifest that the reservation is against vacancies which may be permanent or temporary. There is no doubt that the petitioner was continued in a temporary vacancy for. a period of two years and thereafter he was made permanent w.e.f. January 20. 1973, when 1971 Rules were still in existence. Thus the petitioner would be entitled to the benefit of the Rules in spite of the act that to start with his appointment was temporary in nature, as reservation for BCOs and SSCOs is available even against temporary vacancies which are likely to be made permanent or which continue on a long term basis. Besides the letter of appointment dated January 2, 1971 of the petitioner indicates that it was a case of reemployment of an Eco, which would entitle him to all the benefits flowing from 1971 Rules. Mr. Sarin submits that the petitioner's pay fixation as a Released Eco was not made in pursuance of the aforesaid rules but it was made in accordance with Office Memorandum of January 1, 1972. In my view, it makes no difference to the position that the petitioner was governed by 1971 Rules as he fulfills all the conditions for the application of the rules, namely,

(1)He is a released ECO;

(2)He served the Armed Forces during the period after November 1, 1962 and before January 10, 1962: and

(3)He was appointed against a post which continued on a long term basis and the petitioner was confirmed w.e.f. January 20, 1973, when 1971 Rules were still in operation.

(18) Learned counsel for the aforesaid respondents lastly submitted that since the petitioner was not appointed on the basis of an open competition, the 1971 Rules are not applicable. I am afraid I cannot accept this submission, as the same is untenable. The purpose of these rules was to give benefit to the Released Ecos and SSCOs, whether they were appointed on the basis of an open competition or they were appointed on the basis of their military service alone. Besides it cannot be denied that the appointment of all Ecos in the Government Service is made on compassionate grounds and there cannot be artificial sub-divisions between persons coming from the same channel. At this stage the respondents cannot be heard to say that the appointment of the petitioner was made dehors the rules. Rule 6(l)(b) which applies to the case of officers who were not recruited on the basis of a competitive examination is a complete answer to the argument of the learned counsel for the said respondents.

(19) The petitioner served in the CISF right from 1971 till date and. he has been. earning promotions as well. The incident of August 2, 1.968, when the petitioner was serving in the Bsf, did not come in the way of his, promotions in the CISF. His suitability for purposes of promotions was never in question. All that was in question was his seniority which was reckoned by not giving, him the benefit. of his service in the armed force. It seems to me that it would be highly unjust to deny the petitioner the benefit of service in the Army for the purpose of reckoning his seniority in accordance with Rule 6 (1) (b) of the Rules.

(20) Having regard to the above discussion, the first. and second respondent are directed to refix fix the seniority of the petitioner in the CISF by counting the services rendered by him in the Army as an Emergency Commissioned Officer including the period of his training. The petitioner will also be entitled to all benefits flowing from computation of the fresh seniority in accordance with Rule 6(l)(b) of the 1971 rules.

(21) Accordingly the writ petition succeeds to the extent indicated above but there will be no order as to costs.