Sub. Maj. R.S.Rana And Ors. vs Union Of India And Ors.
2008 Latest Caselaw 1713 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+      W.P.(C) 2619/2001

                                      Date of Decision:23.09.2008


       SUB.MAJ. R.S.RANA & ORS.                   ..... Petitioners
                       Through        Mr. Bahar U. Barqi, adv.


                      Versus


       UNION OF INDIA & ORS.                      ..... Respondents

                       Through        Mr. Sanjay Katyal, adv.

       CORAM:
       HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
       HON'BLE MR. JUSTICE MOOL CHAND GARG


1.     Whether the Reporters of local papers may be allowed to
       see the judgment?                                               No

2.     To be referred to Reporter or not?                              No

3.     Whether the judgment should be reported in the Digest?          No


:      SANJAY KISHAN KAUL, J(oral)

1. The petitioners were inducted directly as Junior Commissioned

Officers (for short "direct entry JCOs") in the Military Engineering

Service (for short "MES") of the Army as is permissible under para 150

of the Defence Service Regulations of the Army (for short "the

Regulations") after a decision was taken by the Central Government in

1963 due to the shortage of qualified personnel after the Chinese

aggression. The induction started after the Ministry of Defence,

Government of India issued a letter dated 19th October, 1963

prescribing terms and conditions of such recruitment. However the

retirement of the direct entry JCO‟s is governed vide Clause 163 of the

Regulations, which reads as under:

163. Retirement.--JCOs--(a) Retirement of JCOs of all Arms of the Services, who opted for revised terms operative from 01 Dec 76 is

compulsory on completion of the following service, tenure or age limits:-

(i) Nb Ris/Nb Sub...... 26 years pensionable service or 50 years of age, whichever is earlier.

(ii) Ris/Sub..... 28 years pensionable service or 50 years of age, whichever is earlier.

(iii) Ris Maj/ Sub Maj.... 32 years pensionable service, 4 years tenure or 52 years of age, whichever is earliest.

2. The petitioners are aggrieved by the stipulation of four years

tenure on attaining the rank of Subeder Major, which it is stated results

in their Compulsory Retirement. It is stated that this is happening

because the Ministry of Defence has not made specific terms and

conditions of service for direct entry of such JCO‟s. It is submitted that

on account of existing policy the direct entry JCOs are also not getting

pension equivalent to their counterparts who also retire as Subedar

Major but gets full pension due to longer tenure.

3. The petitioners by way of the present writ petition have made a

challenge to the constitutional validity of the relevant clause in

Regulation 163 as also to the policy instructions No.

1(6)/98D/Pension/Services dated 03.02.1998 annexed with the petition

as Annexure P-III insofar as the said provision stipulates about the

extent of pension admissible to them after the revision of pay scales. It

is submitted that those conditions are unfair, unreasonable,

discriminatory and ultra vires of the Constitution. They have also

stated that various representations made by them have also not been

considered by the respondents. Hence they have filed the present writ

petition seeking following directions to be issued to the respondents by

invoking Article 226 of the Constitution of India inter alia: -

i) to issue appropriate writ, order or direction to strike down

Clause 163 of Defence Service Regulations for the Army for retirement of Direct Entry JCOs on completion of tenure of four years on attaining the rank of Sub Major as discriminatory, unreasonable and violative of Articles 14 & 21 of Constitution of India.

ii) to quash the order dated 25 June 2001 of respondent No.1 (Annexure P-6) being unreasonable, arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India.

iii) to issue a writ of Mandamus directing the respondents to immediately formulate fair and reasonable terms and conditions of service of the petitioners in connection with their age of superannuation by way of compulsory retirement, keeping in view the existing policy on the subject as applicable to the other similarly placed employees of the Government of India wherein they are allowed to continue in service up to the age of 60 years, and to exercise its powers and statutory obligations laid down under Clause 150 of the Defence Service Regulations.

iv) to issue appropriate writ order or direction to quash the Government of India, Ministry of Defence Policy Instruction No.1(6)/98D(Pension Services) dated 3 February 1998, in so far the said provisions stipulates the extent of pension admissible to the petitioners, which is not the full amount of pension admissible for the respective JCO rank and declare the same to be unfair, unreasonable, discriminatory and ULTRA-VIRES the Constitution of India.

v) to issue a writ of mandamus to the respondents to allow the petitioners the full amount of pension connected with the respective JCO ranks, in the event of their being compelled to accept compulsory retirement of completion of lesser number of years of service, compared to other Government employees of the Union of India.

vi) Also to issue appropriate writ, order or direction to the respondents to make the retirement of the petitioners which may take place during the pendency of proceedings, subject to the outcome of this writ petition."

4. The respondents contested the petition by filing a counter

affidavit. According to them, the petitioners are direct entry JCOs in

the MES who have been appointed in terms of Clause 150 of the

Regulations. They are governed by the policy of the Government as

laid down by the Ministry of Defence letter dated 19th October, 1963. It

is submitted that the intention of the Ministry while making such

recruitment was very clear. They offered only a short term

employment pursuant to emergent requirement in the post 1962

situation. The letter clearly stipulates that the engagement of JCOs

was for a period of 5 years extendable by 2 years at a time. Para 9

and 10 lays down that for the purpose of the rank, seniority,

promotion, pay and allowances and other concessions the Direct Entry

JCO will be equated at group „X‟ category of JCOs in the Indian Army

and their retirement would be as per Clause 163 of the Regulations. It

is further submitted that the Direct Entry JCOs forms a class by itself

and they cannot be compared with the regular wing of the Army. The

service conditions of the regular and direct entry JCO makes it clear

that they enjoy different class of facilities. A direct entry JCO joins the

service as Naib Subedar and picks up the rank of Subedar Major within

a period of 12 years approximately, whereas others are recruited as

Sepoy and undergo various selection processes before they become a

Naik Havildar, NaibSubedar and Subedar etc. By this time the regular

recruit spends more than 12 years. Moreover the regular army

personnel is required to serve various places under harsh and severe

conditions before he reaches the rank of Naib Subedar. However a

direct recruit without undergoing any of these difficulties directly picks

up the above rank at the entry itself. The petitioners having enjoyed

the benefit of holding the rank of Naib Subdear directly cannot say at

this stage that their service conditions are harsh. Unlike other

combatant JCOs, direct Entry JCOs also get opportunity for deputation

cum re-employment opportunities whereby they can serve till the age

of 60 years as the civilian do in MES on exercising such an option. The

respondents thus submitted that it would not be justified to compare

the various entries which have different terms of engagement based

on the requirement of the organization. It is submitted that if the

pension benefit of short term JCOs and other regular JCOs is amended

as desired by the petitioners at direct entry JCOs, it will have wide

ramifications against the service interest of regular long term

employees. Moreover the regular long term employees are exposed to

rigour of extended service under different conditions, consequently

retirement benefits given to them would have to be necessarily better

than those who have been exposed for lesser number of years. It is

also submitted that the government never gave any undertaking or

any indication that those recruited through such policy shall remain on

long-term regular employment and shall be entitled for benefits given

to the regular employees. The Direct Entry JCOs were fully aware of

the specific terms and conditions of the service prior to their induction.

Even after retirement, the Direct Entry JCOs can apply for Special

Commissioned Officer/Special List Commission/Army Cadet Corps and

are free to be absorbed in the officer cadre where they can rise upto

full Colonel‟s level. The Government of India vide letter No.

76878/E1A/1669-S/D (Works-II) dated 29th December, 1969 has also

given option for grant of regular junior commission to such direct entry

JCOs who are willing and found suitable. It is also stated that the

recruitment of Direct Entry JCOs was necessitated only in a particular

period. Today no direct entry JCO is recruited which shows that the

recruitment at the relevant time was for fulfilling a particular need. In

fact no Direct Entry JCOs has been inducted since 1994 since the

department has not felt the need for the same. It is submitted that

Clause 163 of the Regulations which provides the terms and conditions

of their retirement is fair, just and reasonable and is in consonance

with cardinal principles of Constitution of India. It is prayed that the

writ petition be dismissed in view of the aforesaid.

5. We have heard the submissions from both the sides. During the

course of arguments, the respondents have also brought to our notice

a Division Bench Judgment of High Court of Uttaranchal delivered in

Writ Petition No. 94/2005 dealing with exactly similar issues raised

before us in this case. The petitioners who filed the petition before

Uttaranchal High Court were also appointed as direct JCOs in

accordance with para 150 of the Regulations. They also picked up the

rank of Subedar Major for a limited tenure by way of a short

commission and had to retire as per para 163 of the Regulations and

retired after the completion of their tenure by which time they had also

not attained the age of 40 years. There also the aggrieved petitioners

raised similar issues and made similar prayers as aforesaid. The stand

of the Government and other respondents was exactly similar as

submitted before us. However, the said petition was dismissed by the

Division Bench by making the following observations:

5. The claim of the petitioner in all these cases is contested by the respondents by filing counter affidavit stating therein that prior to 1995 Diploma Holder in JE (Civil) and JE (E & M) were recruited in the Military Engineering Service (MES) as Naib Subedar as per Govt. of India, Ministry of Defence Letter No.78878/E/1A/1155-S/D (works II) dated 19.10.1963, contained in Annexure No.1 to the counter affidavit filed in Writ Petition No.93 of 2005. According to said letter, the civilians with requisite technical qualification were recruited in regular Army (MES Militarised Cadre) as Naib Subedar, as Direct Entry Junior Commissioned Officer (DEJ) for five years under the provision of Para 150 of the Defence Services Regulations for the Army, 1987. They were asked to submit their option for further extension of the service and accordingly they were brought on regular engagement by the same term and condition as applicable for the non-MES combatant JCO of the Army. The petitioners have also given their willingness to come under regular Army. It is not disputed that the petitioners were enrolled as direct entry JCO as Naib Subedar (MES Militarised Cadre) on fulfilling the criteria and have been promoted to the rank of Subedar Major. The petitioners; contention that the discharge certificates were issued to them by misapplication of Regulation 163 of Defence Services Regulations-1987 were denied by the respondents. It is stated that the petitioners have already given their willingness to come under

regular Army. It is also contended by the respondents that the commission of direct entry JCOs are granted under specific orders and the terms and conditions of their services, i.e. upto five years of service. Once they complete five years' service, willingness is asked from them to continue in the service. This willingness means that they are willing to accept the regular engagement and also willing to accept the same terms and conditions applicable for the other JCOs of the Army. In view of paragraphs 3 & 6 of letter of Govt. of India, Ministry of Defence dated 29.12.1969 (Annexure 2 to the counter affidavit in Writ Petition No.93 of 2005), the plea for having a separate set of rule for Direct Entry Junior Commissioned Officer (DEG) is not tenable.

6-11. xxxx

It was held:

12. It is evident that it is a case of contract, wherein the promise if alters his position, the Government would be bound by the promise. Here in the instant case by framing the Regulation 150 of the DSR, which was revised in 1987, it cannot be said to be a promise as is evident from the language. Regulation does not require the petitioners to alter their position. However, the doctrine of promissory estoppels is attracted in case of Government contract and it cannot be a ground to issue writ of mandamus as it is settled law that no mandamus can be issued to enforce a statutory duty cast upon the State.---

13. It is settled law that a writ of mandamus cannot be issued to the legislature to enact a particular legislation. It is equally settled that no mandamus can be issued to the Government to frame Rule under Article 309 of the Constitution of India as held by Hon'ble the Supreme Court in the case of State of Jammu & Kashmir Vs. A.R. Zakki and Ors., reported in 1992 Supp (1) Supreme Court Cases, page 548.

14. In case of A.K. Roy Versus Union of India and Anr. (and other connected matters) also, reported in AIR 1982 Supreme Court, 710, the Constitution Bench of Hon'ble Supreme Court has stated that no direction can be issued to the Government to issue notification for enforcement of the amendment made in Article 22 of the Constitution of India.

15. Regulations sought to be amended are statutory in nature or law within the meaning of Article 12 of the Constitution of India laying down the terms and conditions relating to tenure of the service. Therefore, in view of the aforesaid settled legal position, no mandamus can be issued to the respondents.

16. So far as third prayer is concerned, the

petitioners were discharged on account of completion of their tenure as their appointment is of tenure appointment. Hence it cannot be said to be arbitrary or illegal. Therefore, the prayer No.3 is also refused.

With the aforesaid observations the petition was dismissed.

6. The facts of this case are no different. As observed earlier here

also the petitioners were inducted as direct entry JCOs pursuant to the

decision taken by the Government of India, Ministry of Defence letter

dated 19.10.1963 on the terms and conditions of service as detailed in

Annexure P-1 in accordance with regulation 150 which reads as under:

150. Direct Commissions as JCOs- In very exceptional cases, direct commissions as JCOs may be granted under the specific orders of the Government on terms and conditions of service to be laid down specifically for them.

7. Their retirement was governed by Clause 163 of the Regulations

(supra). In view of the aforesaid, once the petitioners recruited as JCOs

who joined the service as Naib Subedar were liable to retire either after

completing four years tenure as Subedar Major or on attaining 52

years of age whichever was earlier. Thereafter, they also had an option

to continue in service, of course, may be at a lower rank to serve up to

the age of sixty years if they so wanted or to draw pension as

admissible to them in accordance with the terms and conditions of

their service as direct recruits JCOs. It has been fairly conceded by

learned counsel for the petitioners that such an option was given to

them but has not been exercised by them. In these circumstances,

merely because the petitioners retired in or around the age of 40 years

after completing their tenure as Subedar Major or having attained the

age of 52 years, whichever was earlier cannot have any grievance.

8. As far as the challenge made to the validity of Clause 163 of the

Regulation is concerned, it was rejected by the predecessor Bench of

this Court vide orders dated 21st September, 2003 which has not been

challenged and has become final. Under these circumstances, the

petitioners are not entitled to any relief, inasmuch as, their

appointment was of a contractual nature which came to an end when

they completed their tenure as Subedar Major or attained the age of

superannuation as per Regulation 163. As decided by the Division

Bench of Uttranchal High Court and rightly so no mandamus can be

issued to the legislature for the amendment of the Regulations which

are statutory Regulations. In the facts of this case, it also cannot be

said that the petitioners have been discriminated against, as they form

a class by themselves.

9. Even otherwise the prayer made by them to issue a mandamus

to the Government to amend the Rules so as to make their pension

equivalent to their counterparts is misconceived on account of the

difference in their service conditions and the years put up by them in

service. The option made available to them to seek continuance in

service has not been accepted by them.

10. We do not find any merit in the petition which is dismissed

leaving parties to bear their own costs.

SANJAY KISHAN KAUL,J

MOOL CHAND GARG, J SEPTEMBER 23, 2008 anb