[Cites 7, Cited by 0]
Delhi High Court
Uoi & Ors vs B.N.Chaubey & Ors on 23 March, 2026
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 16.02.2026
Judgment pronounced on: 23.03.2026
Judgment uploaded on: 23.03.2026
+ W.P. (C) 980/2004 and W.P. (C) 981-982/2004
UOI & ORS. .....Petitioners
Through: Ms. Pratima N Lakra, CGSC
along with Mr. Shailendra
Kumar Mishra and Mr.
Abhishek Sharma, Advs.
versus
B.N. CHAUBEY & ORS. .....Respondents
Through: Mr. Nikhil Palli and Ms. Niyati
Razdan, Advs. for R-2.
+ W.P. (C) 17658/2004 and W.P.(C) 17659-17660/2004
THE UOI & ORS. .....Petitioners
Through: Ms. Anjana Gosain and Ms.
Shreya Manjari, Advs.
versus
BADRI PRASAD PRAJAPATI .....Respondent
Through: Mr. Nikhil Palli & Ms. Niyati
Razdan, Advs.
+ W.P. (C) 1786/2004
UOI .....Petitioner
Through: Ms. Arunima Dwivedi, CGSC
along with Ms. Himanshi Singh
& Ms. Monalisha Pradhan
Advs.
versus
V.P. SHARMA .....Respondent
Through:
Signature Not Verified
Signed By:JAI
NARAYAN
Signing Date:23.03.2026 W.P. (C) 980/2004 & connected matters Page 1 of 24
17:30:57
CORAM:
HON'BLE MR. JUSTICE ANIL KSHETARPAL
HON'BLE MR. JUSTICE AMIT MAHAJAN
JUDGMENT
ANIL KSHETARPAL, J.:
1. The present batch of three petitions assail the correctness of
judgments and orders passed by the Central Administrative Tribunal,
Principal Bench, New Delhi [hereinafter referred to as „Tribunal‟]
whereby the lis concerning the age of superannuation of the
Respondents was adjudicated. The controversy centres around their
retirement at the age of 57 years instead of 60 years upon their re-
employment in the Air Wing of the Border Security Force [hereinafter
referred to as AW-BSF‟], on the premise that the posts held by them
were civil/non-combatised in nature.
2. Since all the petitions arise from the same lis and turn upon
overlapping issues; they are with the consent of learned counsel for
the respective parties, being disposed of by this consolidated
judgment. However, for the sake of convenience, the W.P.(C)
17658/2004 is being treated as the lead case to extrapolate our
decision in all three petitions.
FACTUAL BACKGROUND:
3. In order to appreciate the controversy involved in the present
petition, it would be apposite to briefly notice the relevant factual
background.
4. The Respondent, Sh. Badri Prasad Prajapati, was re-employed
on Direct Entry as Sub-Inspector Junior Aircraft Mechanic (SI-JAM)
in AW-BSF on 13.12.1991 against the pay scale of Rs. 1400-2300/-,
following his discharge from the Air Force on 31.08.1990.
Subsequently, the Petitioner issued an order, thereby highlighting that
the Respondent would stand superannuated from the post of JAM
w.e.f. 31.07.2003, upon attaining the age of 57 years. Aggrieved by
the aforesaid decision of the Petitioner, the Respondent filed an
Original Application (OA), contending inter alia, that the post held by
him was civil in nature, therefore, the applicable age of
superannuation was 60 years and not 57 years.
CONTENTIONS OF THE PARTIES BEFORE THE
TRIBUNAL:
5. The Respondent herein sought setting aside the order of
discharge at the age of 57 years on the following two grounds. Firstly,
in accordance with the provisions of Border Security Force (Air Wing,
non-combatised Group C and D posts) Recruitment Rules, 1996
[hereinafter referred to as „Rules of 1996‟], the personnel re-employed
from the Armed Forces against such civilian posts are entitled to
continue in service up to the age of superannuation applicable to
civilian employees, i.e., 60 years. Secondly, the offer of appointment
indicates that the post of JAM is non-combatised, and in the absence
of any Presidential sanction converting it into a combatised post, the
Petitioners cannot treat it otherwise. Thirdly, reliance was placed on
the previous decisions of the Tribunal in O.A. 946/2003 captioned AV
Balachandran v UOI, OA No. 837/2003 captioned BN Chaubey v
UOI and OA No. 611/2003 captioned VP Sharma v UOI, to argue
that these decisions squarely cover the matter at hand, since, in the
aforementioned cases, the Tribunal against the similar factual matrix
held that the incumbents holding non-combatised posts are to be
treated as civilian employees and are entitled to superannuate at the
age of 60 years.
6. Whereas, the Petitioner herein, at the outset challenged the
jurisdiction of the Tribunal, on the ground that the Respondent is a
member of the BSF and the post held by the Respondent is
combatised in nature, therefore the Tribunal lacks the jurisdiction to
adjudicate the same. On merits of the case, it was argued that the
Respondent, having availed the benefits attendant to a combatised
post, including higher pay, promotional prospects, and ancillary
allowances such as ration money, uniform, and washing allowances,
cannot subsequently disclaim the corresponding service conditions,
including the prescribed age of superannuation of 57 years. Pithily
put, it was the case of the Petitioner that a government servant cannot
be permitted to approbate and reprobate by selectively claiming the
advantages of both combatised and non-combatised streams.
Controverting the reliance placed on OA 946/2003 (Supra) by the
Respondent, it was argued that the said decision already stands
challenged before this Court and is pending adjudication.
FINDINGS OF THE TRIBUNAL:
7. With respect to objection pertaining to the jurisdiction of the
Tribunal, the same was summarily rejected by placing reliance on the
Tribunal‟s order dated 23.01.2003 in OA No. 946/2003 (Supra),
wherein, on analogous facts, the Tribunal categorically held that it
possesses jurisdiction to adjudicate disputes of this nature involving
re-employed Armed Forces personnel in the Border Security Force
(BSF).
8. With regard to the contention that the employee cannot
simultaneously claim the benefits of both combatised and non-
combatised cadres, the Tribunal held that such an assertion could not
be accepted in the absence of support from the governing Recruitment
Rules. Upon examining the applicable rules, the Tribunal found that
the Rules unequivocally provide that re-employed Armed Forces
personnel in the BSF shall continue in service up to the age of
superannuation with reference to civil posts.
9. Further, it was also held that the Rules stipulate that personnel
on deputation would continue under deputation terms until their
release from the Armed Forces and thereafter remain on re-
employment up to the age of superannuation applicable to civilian
posts. In view of the aforesaid discussion and relying upon its earlier
decisions on the subject, the Tribunal by way of Order dated
12.05.2004 [hereinafter referred to as „Impugned Order/IO‟] allowed
the OA filed by the Respondent, thereby directing the Petitioner to
permit him to continue service until the age of superannuation
applicable to civilian posts, i.e., 60 years. It is this interplay between
form and substance, designation and reality, which this Court is
sought to resolve.
10. Before this Court proceeds to engage with the rival contentions
urged at the Bar, it would be appropriate to first advert to the relevant
extracts of the Rules and the communications issued by the
Government from time to time, together with the appointment letter of
the Respondent, which collectively form the bedrock of the
submissions advanced by the parties. The same are reproduced
hereunder:
Reserve and Auxiliary Air Force Act, 1952
"25. Liability to be called up for service. Every member of an Air
Force Reserve or the Auxiliary Air Force shall, during the period of
his service, be liable to be called up-
(a) for training for such period as may be prescribed and for
medical examination,
(b) for service in aid of the civil power,
(c) for Air Force service in India or abroad."
BSF (Seniority, Promotion and Superannuation of
Officers) Rules 1978
"12. Superannuation-
The officer holding posts higher than that of a rank Commandants
shall retire from service on the afternoon of the last day of the month
in which they attain the age of sixty years; and officers of other ranks
shall retire from service on the afternoon of the last day of the month
in which they attain the age of fifty-seven years;
Provided that an officer whose date of birth is the first of a month
shall retire from service till the afternoon of the last day of the
preceding month on attaining the age of sixty years or fifty seven
years, as the case may be."
Letter dated 19.09.1989 issued by Ministry of Home
Affairs:
I am directed to convey the sanction of the President to the
combatisation of ministerial and other civilian posts in the
headquarters of the Dte. General Border Security Force (including
Pay and Accounts Division, (illegible) Centre, Airwing and other
wings/cells) and BSF Hospitals under BSF ACT, 1968 and BSF Rules,
1969 with immediate effect subject to the following terms and
conditions :-
xxxxx xxxxx xxxxx xxxxx xxxxx
(c) All future appointment/recruitments to the vacancies in the various
categories of posts combatised by this sanction shall be in the
combatised ranks as per the recruitment rules.
xxxxx xxxxx xxxxx xxxxx xxxxx
STATEMENT INDICATING THE EXISTING POSTS IN BSF
HQRS AND BSF HOSPITALS AND THE EQUIVALENT RANK
ASSIGNED TO THEM ON COMBATISAD COMBATISATION
Designation of existing Equivalent Rank on
posts combatisation
(Scale of pay) (Scale of pay)
BSF HQRS AIRWING
xxxxx xxxxx xxxxx xxxxx xxxxx
25. Sr. Aircraft Mechanic Sub-Inspector (Mech)
(Rs. 1400-2300) (Rs. 1400-2300)
xxxxx xxxxx xxxxx xxxxx xxxxx
27. Jr. Mechanic ASI (Mech)
(Rs. 1320-2040) (Rs. 1320-2040)
Appointment letter of the Respondent dated 21.10.1991
"I am directed to convey that you have been approved for
appointment to the post of Junior Aircraft Mechanic, in the pay scale
of Rs. 1400-2300."
Schedule to Recruitment Rules, 1996
JUNIOR AIRCRAFT MECHANIC
1. Name of the post :: Junior Aircraft Mechanic
2. Nos of Posts :: 03* (Three)(1996) (*Subject
to variation dependent on
workload)
3. Classification :: Genral Central Service
Group „C‟, Non-Gazetted Non-
Ministerial.
4. Scale of Pay :: Rs. 1320-30-1560-40-EB-
2040/-
xxxxx xxxxx xxxxx xxxxx xxxxx
12. In the case of recruitment by :: Transfer :- Government
promotion/deputation/transfer servant possessing the
grade from which qualifications as laid down
promotion/deputation/transfer under column (8) shall be
to be made considered for transfer.
For Ex-Servicemen:- Transfer
on deputation/re-employment.
The Armed Force personnel
due to retire or who are to be
transferred to reserve within a
period of one year and having
requisite experience and
qualification specified shall
also be considered. Such
persons shall be given
deputation terms upto the date
on which they are due for
release from the Armed
Forces, thereafter, they may be
continued on re-employment
upto age of superannuation
with reference to the civil
posts.
Schedule to Recruitment Rules, 1997
1. Name of the post :: Junior Aircraft Mechanic
(Sub Inspector)
2. Nos of Posts :: 25* (Twenty five)(1997)
(*Subject to variation
dependent on workload)
3. Classification :: General Centra Service
Group „C‟, Non-Gazetted
Non-Ministerial.
4. Scale of Pay :: Rs. 4500-125-7000
xxxxx xxxxx xxxxx xxxxx xxxxx
12. In case of recruitment by Promotion:
promotion/deputation/transfer Assistant Aircraft Mechanic
grades from which with eight years regular
promotion/deputation/transfer to services in the grade.
be made
Transfer on
deputation/transfer:
Officials below 35 years age
under Central Government/
State Government/Public
Undertaking holding
analogous posts or in the grade
of Rs.4000-100-6000 with 5
years service in the grade and
possessing qualifications
prescribed under column 8.
(Period of deputation including
period of deputation in another
ex-cadre post held immediately
preceding this appointment in
same or some other
organisation department shall
ordinarily not exceed three
years).
(The departmental officers who
are in the direct line of
promotion shall not be eligible
for consideration for
appointment on deputation,
similarly deputationists shall
not be eligible for
consideration for appointment
by promotion).
Re-employment :- The Armed
force personnel due to retire or
who are to be transferred to
reserve within a perios of one
year and possessing
qualification prescribed under
column 8 shall be considered
to transfer on deputation. Such
persons shall be given
deputation term upto the date
of which they are due for
release from the Armed Forces,
thereafter they may be
continued on re-employment
(Re-employment upto the age
of superannuation with
reference to civil posts)
Circular dated 22.01.1999 issued by the Ministry of Home
Affairs
Consequent upon enhancement of retirement age of the Members of
Para Military Forces by the Central Government, the Defence
personnel re-employed in BSF will retire on attaining the
superannuation age as under except in the case of Defence personnel
re-employed in BSF Law cadre, Medical cadre and veterinarians in
whose case the retirement age would be 60 years irrespective of rank
they are holding in respective cadres:-
S No. Rank Revised superannuation
age
01. Upto the rank of COMDT 57 years
02. ADIG and above 60 years
CONTENTION OF THE PARTIES BEFORE THIS COURT:
11. Learned Counsel for the Petitioner, while controverting the
observations made by the Tribunal, has made the following
submissions-
11.1 It has been reiterated that the benefits and conditions attached to
combatised posts are materially distinct and more advantageous than
those applicable to civilian posts. It has been stated that the
combatised posts are provided with higher pay scales and additional
allowances over their civilian counterparts. To establish the
aforestated, it has been stated that the pay scale for the post of Junior
Aircraft Mechanic (JAM) in the civilian cadre is Rs. 1320-2040
(revised to Rs. 4000-6000), whereas the corresponding combatised
post commands a higher pay scale of Rs. 1400-2300 (revised to Rs.
5500-9000).
11.2 It has been argued that all the posts in AW-BSF have been duly
combatised, with presidential sanction formally conveyed by way of
letter dated 19.09.1989 [hereinafter referred to as „Sanction of 1989‟].
Further reliance is also placed on circular dated 29.01.1999 issued by
Ministry of Home Affairs, to establish that the retirement age for
Defence personnel re-employed in BSF upto the rank of Commandant
shall be 57 years.
11.3 The Petitioner has submitted that in the year 1991, the
Government sanctioned 200 posts across various categories in the
AW-BSF, including posts for JAM. While conveying the presidential
sanction for creation of these posts vide Circular dated 18.6.1991
[hereinafter referred to as „Sanction of 1991‟], it was not explicitly
stated that these posts were civilian in nature. It has been argued that
this omission is consistent with the established practice, whereby the
creation of additional posts in combatised cadres does not require a
fresh presidential sanction, as it is presumed that all new posts fall
within the combatised stream.
11.4 Conversely, the creation or conversion of civilian posts into
combatised posts invariably necessitates and receives a separate
presidential sanction, as was the case with the order dated 19.09.1989.
It is contended that since the post against which the Respondent was
appointed was sanctioned subsequent to the Sanction of 1989, it
follows that such posts cannot be characterized as civilian posts.
Consequently, the Respondent is precluded from claiming the
retirement benefits applicable to civilian posts.
11.5 Learned counsel has further placed reliance upon Rule 12 of
BSF (Seniority, Promotion and Superannuation of Officers) Rules,
1978 [hereinafter referred to as „Rules of 1978‟] to contend that
officers holding ranks other than that of Commandant are required to
retire from service upon attaining the age of 57 years. In aid of the
said submission, reliance has also been placed upon a circular dated
29.01.1999 issued by the Ministry of Home Affairs, which, according
to the Petitioners, clarifies that the age of retirement of re-employed
defence personnel up to the rank of Commandant is 57 years.
11.6 Reliance has also been placed on Section 25 of the Reserve and
Auxiliary Air Force Act, 1952 to submit that a person enrolled in the
Reserve remains liable to be called up for training for a prescribed
duration. It has been argued that the very object underlying enrolment
in the Reserve is not to rehabilitate, redeploy, or re-employ such
personnel in any other service, but rather to maintain their availability
for training and service, as and when required. In this backdrop, it has
been contended that the Respondents have erroneously conflated the
concept of "reserve enrolment" with that of "re-employment", even
though the two operate in distinct and independent spheres, and
enrolment in the Reserve bears no nexus with re-employment.
11.7 While elucidating the contours of the expression re-
employment, it has been urged that, for the purposes of the present
case, the concept may broadly be understood in two distinct
categories. The first pertains to the re-employment of an ex-
serviceman through direct entry in terms of the Ex-Servicemen (Re-
employment in Central Civil Services and Posts) Rules, 1979
[hereinafter referred to as „Rules of 1979‟]. The second category
concerns cases where personnel, prior to their retirement or enrolment
in the Reserve while still in service, are deputed to other posts in
accordance with the applicable Recruitment Rules. It is the categorical
submission of learned counsel that the present case squarely falls
within the ambit of the first category.
11.8 Reliance has been placed on the judgment of this Court in CW
622/2003 captioned M.S. Malik v The Director General, BSF, to
argue that the Petitioner therein having availed himself of the
enhanced monetary benefits and service conditions of the combatised
stream, will be governed by Rule 43 of the Central Reserved Police
Force Rules, 1955 as applicable to the BSF and will superannuate at
the age of 57 years.
11.9 Further reinforcing the aforesaid stance, a reliance has also been
placed on the judgment of Division Bench of the Rajasthan High
Court in Civil Special Appeal No.1127/2000, decided on 16.01.2001,
wherein it has been held that once an employee has enjoyed all the
benefits attendant to service in a combatised post, he cannot, at the fag
end of his service, contend that he ought to be treated as a non-
combatised employee to claim more favourable terms of retirement.
12. Per contra, learned counsels for the Respondent, while
challenging the early retirement order issued by the Petitioner, have
opposed the petitions filed before this Court, by submitting that the
order passed by the Tribunal does not call for any interference by this
Court and thus the present petitions deserve to be dismissed.
13. In addition, it is their case that both the Rules of 1996 and the
BSF (Air Wing Non-Gazetted (Combatised) Group „C‟ Posts)
Recruitment Rules, 1997 [hereinafter referred to as „Rules of 1997‟],
expressly provide for continuation of re-employed Armed Forces
personnel upto the civilian retirement age. As such, since the
Respondent was re-employed prior to the Rules of 1996, when the
post was non-combatised, the subsequent Rules of 1997, which
classified the post as combatised are inapplicable to them.
ANALYSIS AND REASONING OF THIS COURT:
14. The present petition brings before this Court not a mere dispute
about three additional years of service, but a deeper question that goes
to the heart of institutional structure and discipline within an armed
force of the Union: who is a „soldier‟ and who is a „civilian‟ within the
BSF, and by what legal alchemy may one who has lived and served as
the former, at the twilight of his tenure, seek to be treated as the latter.
15. Therefore, as already enumerated the principal question that
arise for our determination is whether the Respondent, who was
appointed as JAM in the AW-BSF, was holding a combatised post or
a civilian/non-combatised post, and consequently whether the
applicable age of superannuation would be 57 years or 60 years.
16. In order to resolve the controversy that lies at the heart of the
present petition, it becomes necessary to traverse the legal landscape
upon which the Tribunal founded its conclusions. In our considered
view, the answer must emerge from a careful scrutiny of the
„Presidential sanction dated 19.09.1989‟, „the true nature of the
Respondent‟s appointment and the service conditions that governed
his tenure‟ and „the statutory framework embodied in the Rules of
1996 and 1997‟.
17. It is only by examining these elements in their proper
perspective that we may discern the true character of the post in
question and determine the age of superannuation that lawfully
attaches to it.
18. At the outset, we may highlight that the BSF is not merely a
department of the Government; it is an armed force of the Union
constituted and regulated under a special statute, the BSF Act, 1968,
with the BSF Rules, 1969 providing a complete code for the
discipline, ranks, promotions and superannuation of its combatised
members.
19. The Rules of 1978, framed in furtherance of this statutory
design, draw a clear, normative line that the officers above the rank of
Commandant retire at 60 years of age, whereas those of other ranks,
including Sub-Inspectors, retire at the age of 57 years. It may be noted
that, this clear distinction is not an arbitrary monologue rather it is an
attempt to create a legislative balance between the demands of a
uniformed service, the imperatives of fitness and deployability and the
expectations of tenure.
20. The aforesaid attempt to create a balance, further finds support
from the Circular dated 22.01.1999 issued by Ministry of Home
Affairs („MHA‟), which echoes and reinforces the aforementioned
architecture. It highlights that consequent upon enhancement of
retirement age in the Central Para-Military Forces, the Defence
personnel re-employed in BSF upto the rank of Commandant shall
retire at 57 years, with only Additional Director Generals and above
retiring at the age of 60 years. The threefold structure: combatant
status, rank, and a lower age of retirement, is thus woven consistently
through statute, rules and executive instructions.
21. Against this statutory backdrop, the Sanction of 1989 assumed
determinative significance. By the said communication the MHA,
conveyed the sanction of the President for the combatisation of
ministerial and other civilian posts in the Headquarters of the
Directorate General, BSF, including the Air Wing, subject, inter alia,
to the term that "all future appointment/recruitments to the vacancies
in the various categories of posts combatised by this sanction shall be
in the combatised ranks as per the recruitment rules".
22. Whereas the schedule appended to the said sanction, spoke with
the clarity of a map, within the AW-BSF, thereby identifying amongst
others, the pre-existing post of Senior Aircraft Mechanic and Junior
Mechanic, with their scales of pay, as well as assigning to the them
the equivalent combatised ranks of Sub-Inspector (Mechanic) and
Assistant Sub-Inspector (Mechanic) in the same scales. The
unmistakable import of this order is that the functional posts in the Air
Wing relating to aircraft maintenance were brought within the fold of
the combatised cadre of the BSF.
23. Therefore, once such transformation of the cadre was effected
with Sanction of 1989, the very stream of maintenance posts into
which the Respondent have flowed was re-channelled by the President
into the combatised regime of the BSF Act and Rules. Accordingly,
the legal character of the said posts and of „all future appointments‟,
thereto stood altered and were to be treated as appointment to
combatised ranks, unless a contrary decision by the Government
specifically preserved them as civilian positions. However, no such
contrary decision has been brought to the notice of this Court by the
Respondent.
24. To highlight briefly, the Tribunal has proceeded to allow the
OA on the premise that since the Sanction of 1991 creating the post
did not expressly describe them as combatised, the said posts must be
regarded as civilian post. In the opinion of this Court, this line of
reasoning overlooks the administrative logic that governs cadre
management. Once a cadre stands combatised by a Presidential
decision, the subsequent creation of posts within that cadre does not
require a repetitive declaration of combatised status. The combatised
character inheres in the cadre itself. The Sanction of 1989 having
already accomplished the transformation of the Air Wing posts, the
additional posts sanctioned in 1991 must necessarily partake of the
same combatised character.
25. It is in this legal landscape that the appointment of the
Respondent must be located. The Respondent was discharged from the
Air Force on 31.08.1990, more than a year thereafter, on 21.10.1991,
he was issued an offer of appointment for the post of JAM, against the
pay scale of Rs. 1400-2300. Subsequently, he joined the AW-BSF as
SI-JAM on 13.12.1991. It was brought to the notice of this Court by
learned counsel for the Petitioner that in the civilian Air Wing, the
post of JAM carried a pay scale of Rs. 1320-2040, later revised to Rs.
4000-6000. Whereas, as opposed to the aforementioned pay structure,
the combatised SI-JAM post, commanded the higher scale of Rs.
1400-2300, later revised to Rs. 5500-9000.
26. Notably, the aforestated is not an accidental detail of
nomenclature, the Respondent did not enter at the lower, civilian
scale, nor was he styled merely as a mechanic in a general central
service. Rather, he was appointed as SI-JAM, with the rank, the pay
scale and allowances associated with a combatised BSF subordinate
officer including ration money, uniform and washing allowances, and
the promotional prospects of that cadre, as has been contended by the
Petitioners, and not denied by the Respondent.
27. Therefore, in substance, the Respondent stood in the shoes of a
combatised BSF officer, he marched the drum of the BSF Act and
Rules and did not tread the quieter path of civil establishment.
Accordingly, the Respondent cannot be permitted to approbate and
reprobate to accept the benefits of a particular service regime while
repudiating its burden, since service jurisprudence demands
consistency of status, not opportunistic oscillation between cadres.
28. The Tribunal while rendering the IO placed heavy reliance upon
the Rules of 1996, particularly on the clause in column 12 that the
Armed Forces personnel, on deputation and thereafter on re-
employment, may be continued upto age of superannuation with
reference to the civil posts. However, two features of the said Rules
are decisive; firstly, by its own title and classification, the Rules are
addressed as non-combatised Group „C‟ and „D‟ posts, the civil cadre
of the AW-BSF. The schedule for JAM therein sets out a lower scale
of Rs. 1320-2040 and classified the post as „General Central Service
Group „C‟, non-gazetted and non-ministerial. Secondly, the very text
of column 12 limits the deputation-cum-re-employment clause to
„Armed Force personnel due to retire or who are to be transferred to
reserve within a period of one year‟, i.e., serving personnel seconded
to these civil posts shortly before their release, and then continued as
civil re-employed staff.
29. In the present case, the Respondent does not fall within the
class of personnel contemplated under the Rules of 1996. The said
Rules envisage a narrow and clearly delineated category, namely,
serving Armed Forces personnel who are either due to retire or liable
to be transferred to the reserve within a stipulated period, and who
may consequently be considered for appointment on deputation, to be
followed by re-employment upon their release from the Armed
Forces. However, the Respondent does not answer this description.
30. At the time of his engagement in the AW-BSF, he was not a
serving member of the Armed Forces approaching retirement, but an
ex-serviceman who had already been discharged from service. Equally
significant is the fact that he was never borne on the civilian pay scale
of Rs. 1320-2040, which was the scale attached to the non-combatised
post of JAM. On the contrary, he entered service directly against the
post carrying the higher pay scale of Rs. 1400-2300, corresponding to
the combatised rank of Sub-Inspector (Mech) a position that stood
firmly embedded within the combatised framework by virtue of the
Sanction of 1989.
31. In these circumstances, the Respondent‟s attempt to invoke the
protective umbrella of the Rules of 1996 is fundamentally
misconceived. To apply those Rules to his case would be to
superimpose upon his appointment a civilian character which the post
never possessed, either in law or in fact. Service jurisprudence cannot
be stretched to accommodate such retrospective re-characterisation of
a cadre position that was, from its very inception in the Respondent‟s
case, part of the combatised establishment of the Force.
32. Equally unavailing is the Respondent‟s reliance upon the Rules
of 1997. The said Rules, as their very title proclaims, were framed for
the combatised Group „C‟ posts of the AW-BSF. The Schedule
appended thereto describes the post of "SI-JAM", prescribing a
revised pay scale of Rs. 4500-7000, and although the classification is
couched in the familiar terminology of "General Central Service
Group „C‟, Non-Gazetted, Non-Ministerial", the substance of the
Rules unmistakably pertains to the combatised cadre mapped to the
rank hierarchy of the BSF.
33. In substance, Column 12 of the said Schedule reiterates, the
deputation-cum-re-employment mechanism that had earlier appeared
in the Rules of 1996. It contemplates that Armed Forces personnel
who are due to retire or are to be transferred to the reserve within a
period of one year may initially be taken on deputation, continue on
deputation terms until their formal release from the Armed Forces,
and thereafter be continued on re-employment up to the age of
superannuation with reference to civil posts.
34. However, the said Rules when read in its proper statutory
context, this clause does not enlarge or alter the rights of those who
are already serving as combatised personnel of the BSF under the
discipline of the BSF Act and Rules. Its purpose is far more modest: it
merely provides an administrative bridge enabling the serving Armed
Forces personnel, deputed to the Air Wing at the threshold of
retirement, to transition into the organisation and continue thereafter
on re-employment terms. It cannot, by any stretch of interpretation, be
read as displacing the comprehensive scheme governing the age of
superannuation prescribed under the Rules of 1978, which
unequivocally mandates that officers below the rank of Commandant
shall retire at the age of 57 years.
35. The Tribunal, in allowing the OA, appears to have proceeded
upon two premises; (i) that the post held by the Respondent retained a
civilian or non-combatised character, and (ii) that the Rules of 1996
governed the Respondent‟s service conditions. Both these
assumptions, overlook the transformative effect of the Sanction of
1989, which brought the relevant posts within the combatised
structure of the BSF. They also fail to take adequate account of the
actual service conditions enjoyed by the Respondent throughout his
tenure, including the higher pay scale, rank equivalence, and attendant
allowances characteristic of the combatised cadre.
36. The Tribunal‟s approach, though undoubtedly guided by a
desire to afford relief to the Respondent, does not sufficiently engage
with the institutional framework within which the BSF operates. The
BSF is not a conventional civil department but a disciplined armed
force of the Union, where cadre structure, rank hierarchy, and
uniformity of service conditions constitute the very backbone of
organisational governance. Therefore, any interpretation of
recruitment or service rules must be sensitive to this structural reality.
To disregard it would be to dilute the carefully calibrated architecture
of the Force‟s service regime, an outcome which the law neither
contemplates nor permits.
37. The Tribunal, in the IO while relying upon its previous decision
in case of A.V. Balachandran (Supra), proceeded as though the
absence of an individual order naming each post was proof that no
combatisation had occurred, and as though the mere existence of the
Rules of 1996 sufficed to clothe every JAM or Aircraft Mechanic with
civilian status, regardless of rank, scale or Presidential sanction.
38. This approach overlooks the decisive reality that the Sanction of
1989, read with its schedule, had already drawn within its fold the Air
Wing maintenance posts and woven them into the combatised fabric
of the Force. It similarly overlooks the fact that the Respondent‟s own
appointment letter, pay scale and service conditions consistently
placed them in that combatised fabric, not in the civilian fringe.
39. Most importantly, the Tribunal failed to grapple with the
principle articulated in M.S. Malik (Supra), which binds this Court,
that one who has taken the benefits of combatised status must also
bear its burdens, and cannot, at will, oscillate between the two
classifications to secure the most congenial outcome. That principle is
rooted as much in fairness as in legal coherence and the Tribunal
failed to even attempt to distinguish the same.
CONCLUSION:
40. In light of the foregoing discussion, this Court arrives at the
following conclusions:
i. The Air Wing posts relating to Aircraft Mechanics stood
combatised pursuant to the Presidential sanction dated
19.09.1989.
ii. The posts created in 1991 formed part of this combatised
cadre, and the Respondent was appointed accordingly.
iii. Throughout his service the Respondents availed the pay
scale, allowance, rank and service privilege attached to
combatised posts.
iv. The Rules of 1996 apply only to civilian posts, whereas
the combatised cadre is governed by the service framework
reflected in the Rules of 1997 and the BSF statutory regime.
v. In terms of Rule 12 of the Rules of 1978, the Respondent
was liable to retire at the age of 57 years.
41. Therefore, the impugned order directing the continuation of the
Respondent upto the age of 60 years cannot be sustained in law.
42. Keeping in view the above position of law, as well as the facts
and circumstances of the present case, the present Petitions are
allowed. The Impugned Orders passed by the Tribunal, which is under
challenge herein, is hereby set aside.
43. Accordingly, the present petitions, along with pending
applications, stands disposed of.
ANIL KSHETARPAL, J.
AMIT MAHAJAN, J.
MARCH 23, 2026
s.godara/hr
