B.K. Sharma vs Union Of India
1995 Latest Caselaw 342 Del

JUDGMENT

D.K. Jain, J.

(1) The petitioner, who superannuated on 31 August 1992 as Subedar Major/Office Superintendent in the Central Reserve Police Force (for short the CRPF), has filed this writ petition under Article 226 of the Constitution of India seeking a writ of prohibition, prohibiting the respondents from treating the petitioner as superannuated. A further writ in the nature of mandamus is sought directing the respondents to treat the petitioner in service from 31 August 1992 with extention of service by 5 years.

(2) In all there are three respondents. The Union of India through Secretary, Ministry of Home Affairs, is the first respondent, Union of India through Secretary, Ministry of Finance and Director General, Crpf are the second and third respondents respectively.

(3) The petitioner joined the Crpf as Lower Division Clerk and was thereafter promoted as Upper Division Clerk in the year 1962. These were civilian (non- combatisation) posts for which the age of superannuation was 58 years. It appears that in the year 1981, the petitioner opted for combatisation post and as a result thereof, in 1984, was promoted as Subedar Major/ Office Superintendent and continued to work on that post till 31 August, 1992, when, having attained on 2 August 1992, the age of 55 years, the normal age of superannuation for the personnel falling in the combatisation stream, he retired. The grievance of the petitioner is that he having rendered momentous, sincere and fearless service, particularly in the terrorists infested state of Jammu and Kashmir for more than two years, fighting bravely against the militants who had once abducted him while he was on duty and had tortured him for 15 days, he is entitled to an extension in service by five years, which to the utter dismay of the petitioner has not been granted. It is claimed that the ordeal which the petitioner underwent for 15 days when he was kept as a hostage by the militants and the circumstances and the conditions under which he performed his duties diligently during the period he was posted in the State of Jammu and Kashmir makes the case of the petitioner as rarest of the rare falling squarely within the ambit of Rule 43 of the Crpf Rules, entitling him to an extension for a period of 5 years. In the alternative, it is pleaded that the petitioner's request, made sometime in 1992, for decombatisation should have been considered, enabling him to continue in service at least up to the age of 58 years. It is alleged that no satisfactory answer has been received by the petitioner to the various representations made by him to the respondents, including the President and Prime Minister of India.

(4) In response to the show cause notice, an answer has been filed on behalf of respondents and the petition is resisted. It is stated that petitioner's request for extension of service was duly considered but rejected in the light of a general policy decision taken in 1990 that no extension in service beyond 31 December 1990 was to be granted to combatisation Ministerial Staff; the combatisation of Ministerial Staff was done under the scheme formulated by Ministry of Home Affairs which had clearly provided that the option once exercised was to be irrevocable; the petitioner having opted for combatisation, accepted the terms and conditions governing this scheme, which included the reduction in the age of superannuation from 58 to 55 years, his service conditions can neither be altered nor could he be permitted to re-opt for non-combatisation scheme. As far the incident of petitioner's abduction, it is stated that Court of Enquiry was conducted to ascertain the circumstances leading to his kidnapping and the finding/opinion of the Court was that the petitioner was kidnapped due to his casual attitude towards his personal safety for which he himself was held responsible and none was blamed for it.

(5) We have heard Mr.K.L.Jagga, Senior Advocate for the petitioner and Ms.Barkha Babbar for the respondents. On behalf of the petitioner, it is contended by Mr.Jagga that having regard to the exemplary courage shown by the petitioner in dealing with the militants in the State of Jammu and Kashmir, the case in hand is one of "exceptional circumstance" as postulated in Rule 43 of the Crpf Rules and, therefore, by not granting extension of service to the petitioner, the respondents have acted illegally, contravening the said rule. He has urged that the respondents have failed to frame the guidelines to determine as to which case would be exceptional case for granting extension of service and thus the grant or non-grant of extension has been left entirely to the whims and fancies of the authorities, which cannot be permitted in law. It is alternatively urged that the use of the word "option" signifies that the petitioner could always withdraw his option from combatisation to non-combatisation. We do not agree with the learned counsel.

(6) Rule 43 of the Crpf Rules reads as follows: "RULE43 - Superannuation: a).......... b)Any member of the Force who has attained the age of 55 years shall not be retained in Force save in exceptional circumstances and subject to limitation that he is physically fit. Provided in all such exceptional cases the period of extension shall not exceed the minimum of 5 years. Provided further in all such cases prior approval of the Government in case of superior officers, of the Inspector General in case of subordinates as well as under officers and of the Dy.Inspector General in case of other members of the Force except enrolled followers in whose case approval of the commandant shall be obtained."

(7) A proper reading of Rule 43 would indicate that normally every member of the force, to whom the rule applies, and who has attained the age of 55 years cannot be retained in the force except under "exceptional circumstances" and that too for a limited period not exceeding 5 years. It is evident that the said rule is an enabling provision conferring a limited discretion on the authorities to retain a particular person in force beyond the age of 55 years having regard to the exigencies and nature of the duties performed by a particular person. We feel that the said rule does not confer any right on any member of the force to demand extension of service as a matter of right. The extension under the rule has to be granted as an exception and not as a rule. Obviously, it is for the authorities concerned to decide which case would be one of the "exceptional circumstances" and this Court, in exercise of its extra-ordinary jurisdiction under Article 226 of the Constitution of India, cannot interfere with the decision taken under the said rule unless it is shown and proved that the decision is actuated by mala fides or bias or that a different preferential treatment has been meted out to some other person placed under similar circumstances. In the instant case, we do not find any such defect. The respondents have taken a policy decision not to grant extension in service to any one after December 1990. They thus, cannot be faulted. In view of the policy decision, non-framing of guidelines does not advance petitioner's case. Even otherwise, in the absence of any allegation of an error of jurisdiction or violation of principles of natural justice or manifest error of law apparent on the record, this Court would not interfere with the administration of law applicable to military or para-military forces by the authorities concerned.

(8) We do not find any merit in the alternative contention of the petitioner that he could re-opt for non-combatisation stream and continue to remain in service till he attains the age of 58 years. Para (e) of letter dated 28 February, 1981, issued by the Ministry of Home Affairs, conveying sanction of President of India to the combatisation by conversion of the civilian posts (non-gazetted) Ministerial Staff in Crpf, under which scheme the petitioner had exercised his option, reads as under: "THE existing incumbents will be given an option to opt for combatisation within a period of 3 months or such extended period as the Dg may specify. Option once exercised will be final. Those who do not opt for combatisation will be continued in the civilian posts until superannuation under the existing rules applicable to them, which will be deemed to continue as personal to them."

(9) From the above extracted para, it is clear that one of the terms and conditions of the conversion from civilian posts to combatisation stream was that option once exercised was to be final. It could not be withdrawn. That apart, having enjoyed the benefits under the conversion scheme for 11 years, it is now too late in the day for the petitioner to seek permission to switch back to the initial civilian ministerial stream to avail of additional three years of service period.

(10) Lastly it is feebly urged by Mr.Jagga that we may at least direct the respondents to re-consider the petitioner's case. As noticed above, a conscious decision having been taken and communicated to the petitioner by the respondents, declining to grant him further extension in service, we have not been able to persuade ourselves to issue such a direction.

(11) For all the aforesaid reasons, we are not inclined to interfere in the matter. There is no merit in the petition and the same is, accordingly, dismissed. No costs.