Jammu & Kashmir High Court
Swarn Dev vs Union Of India (1995) 3 Scc 300 Has No ... on 7 December, 2016
Author: Alok Aradhe
Bench: Alok Aradhe
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU SWP No. 2366 OF 2010 Swarn Dev Petitioners Union of India and ors. Respondent !Mr. O. P. Thakur, Advocate ^Ms. Sindhu Sharma, ASGI Honble Mr. Justice Alok Aradhe, Judge Date: 07.12.2016 :J U D G M E N T :
In this writ petition preferred under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir State, the petitioner inter alia seeks quashment of order dated 13.08.2010, by which claim of the petitioner for promotion and for counting service rendered by him in the Army for the purpose of pension has been rejected. The petitioner also seeks a direction to the respondents to accord him promotion in terms of Rules, namely, Released Emergency Commissioned Officers and Short Service Commissioned Officers (determination of eligibility for promotion) Rules, 1975 (hereinafter to be referred as the 2 Rules of 1975) and to decide his claim for fixation of pay in terms of the Central Civil Services (Fixation of pay of reemployed pensioners) Orders, 1986 (hereinafter to be referred as the Orders 1986) and to accord him all consequential benefits. In order to appreciate the grievance of the petitioner, few facts need mention, which are stated infra.
2. The petitioner was appointed as Short Service Commissioned Officer in the Army on 02.05.1986 and completed the training on 06.03.1987. The petitioner was promoted up to the rank of Major and was released as Short Service Commissioned Officer from the Army on 07.03.1992. The petitioner was selected and appointed against the 10% quota reserved for the Short Service Commissioned Officers in the Border Security Force on 14.12.1994 and joined the Border Security Force on 14.07.1995 as Assistant Commandant in the pay scale of Rs. 2200-4000/-. The petitioner submitted a representation that he should be given promotion to the post of higher rank in the Border Security Force by counting his past service rendered in the Army as Short Commissioned Officer and he be also granted pensionary benefits. It is case of the petitioner that under the Rules of 1975, the petitioner is entitled for counting the service rendered by him in the Army for the purpose of promotion as well as fixation of pay in terms of the Orders 1986, which he was drawing at the time of his 3 release as Short Service Commissioned Officer from the Army. The petitioner submitted repeated representations in this regard. However, the Director General of the Border Security Force vide impugned order dated 23.08.2010 rejected the claim of the petitioner for promotion and for fixation of the pay. In the aforesaid factual background, the petitioner has approached this Court seeking relief as stated supra.
3. Learned counsel for the petitioner submitted that respondent No.3 grossly erred in not appreciating that the petitioner was claiming promotion under the Rules of 1975, which were in force at the time of appointment of the petitioner and are still in vogue, which is evident from the information furnished to the petitioner under the Right to Information Act. It is further submitted that the definition of word incorporated in an enactment would remain operative even if an Act or rule has ceased to exist. It is also submitted that the decision of the Supreme Court in case of Ravi Paul and ors. Vs. Union of India (1995) 3 SCC 300 has no application to the fact situation of the case as in the aforesaid decision, the Supreme Court had dealt with the claim with regard to the fixation of the seniority, whereas the petitioner does not claim seniority but claims promotion. It is argued that there is clear distinction between the seniority and eligibility for promotion. It is urged that Rule 3 of the Border Security Force (Seniority, Promotion and 4 Superannuation of Officers) Rules 1978 (hereinafter to be referred as the Rules of 1978) do not apply to the case of the petitioner and the statutory rules would prevail over the conditions contained in the letter of appointment. It is contended that the petitioner was appointed to the post of Assistant Commandant and was not reemployed, therefore, the case of the petitioner will be governed by the Rule 4(iii) of the Orders 1986 and not under Rules 2 & 4, which deal with reemployment, especially in view of the fact that the petitioner has been appointed under reserved category. It is further submitted that the petitioner is entitled to counting of previous service for fixation of pay. In support of the aforesaid submissions, reliance has been placed on the decisions of the Supreme Court in the cases of Narottamdas, State of MP and ors., AIR 1964 SCC 1667, Scientific Advisor to Raksha Mantri and anr. vs. V. M. Joseph, AIR 1998 SC 2318, Dwijen Chandra Sarkar and anr. vs. Union of India and anr., AIR 1999 SC 598, State of Madhya Pradesh and others vs. Yogendra Shrivastava, (2010) 12 SCC 538 and Lok Prahari vs. State of UP and others, AIR 2016 3537.
4. On the other hand, learned counsel for the respondents submitted that the claim of the petitioner suffers from delay and latches as the petitioner was appointed on 23.10.1993 and accepted the terms and conditions of his appointment till 2010. It is further submitted that since the petitioner is beneficiary of the order of appointment, 5 therefore, he cannot be allowed to challenge the conditions contained in the order as he has accepted the same with open eyes. It is also argued that the controversy involved in this writ petition is squarely covered by the decision rendered by the Supreme Court in Ravi Paul's case (supra). In order to buttress her submissions, learned counsel for the respondents has read the judgment in its entirety. It is also submitted that the Rules of 1975 do not apply to the case of the petitioner as the same are not in existence and the service conditions of the petitioner are governed by the provisions contained in the Border Security Force Act and Rules framed thereunder. In support of her submissions, learned counsel for the respondents placed reliance of the decisions of the Supreme Court in the case of Amrit Lal Berry vs. Collector of Central Excise Central Revenue and ors., AIR 1975 SC 538, K. R. Mudgal and ors. vs. R. P. Singh and ors., AIR 1986 SC 2086, Amrit Lal Berry vs. Collector of Central Excise, New Delhi and others, (1975) 4 SCC 714, K. R. Mudgal and others vs. R. P. Singh and others, (1986) 4 SCC 533, Ram Janam vs. State of U.P. AIR 1994 SC 1722, R. N. Gosain vs. Yashpal Dhir, AIR 1993 SC 352, Rajendra Pratap Singh and others vs. State of Uttar Pradesh and others, (2011) 7 SCC 743.
5. Learned counsel for the petitioner by way of rejoinder/reply has submitted that the petitioner had submitted representations from time to time and the 6 claim of the petitioner has not been rejected on the ground of delay and latches but on merits. Therefore, it is not open for the respondents to take such a plea. It is further submitted that the claim with regard to the pay fixation is recurring cause of action. In support of aforesaid submissions, reference has been made to the decisions of the Supreme Court in the case of Manak Lal, Advocate vs. Dr. Prem Chand Singhvi and ors, AIR 1957 SC 425, Union of India and ors. vs. Dr. S. Krishna Murthy and others, (1989) 4 SCC 689, Commissioner of Central Excise Bhubaneshwar-I vs Champdany Industry ltd. (2009) 9 SCC 466, M. R. Gupta vs. Union of India and others, AIR 1996 SC 669, M/s Galada Power and Telecommunication ltd. vs. United India Insurance Co. ltd and anr., AIR 2016 SCW 4021.
6. I have considered the submission made by learned counsel for the parties and have perused the record. The following issues emerge for consideration in this case:
1. Whether the claim of the petitioner suffers from delay and latches?
2. Whether the controversy involved in the instant case is covered by decision of the Supreme Court in the case of Ravi Paul vs. Union of India, (1995) 3 SCC 300?
3. Whether the petitioner having accepted the conditions contained in the order of appointment is estopped from challenging the same?7
4. Whether the claim of the petitioner is governed under the 1975 Rules?
5. Whether petitioner is entitled to the benefit of counting of past service for fixation of pay?
07. At this stage, it is apposite to take note of the relevant rules. In exercise of powers conferred by proviso to Article 309 read with Article 148(6) of the Constitution of India, the rules namely Released Emergency Commissioned Officers and Short Services Commissioned Officers (Reservation of Vacancies) Rules, 1967 were framed which came into force with effect from 29.01.1966 and were in force till 29.01.1971. The aforesaid rules were framed with the object to commission the short service commissioned officers for a period of five years. Thereafter in exercise of powers conferred by proviso to Article 309 read with Article 148(5) of the Constitution of India, the Released Emergency Commissioned Officers and Short Service Commissioned (Reservation of Vacancies) Rules 1971 were enacted which came into force with effect from 29.01.1971 and were in force till 29.01.1974. In exercise of powers conferred by proviso to Article 309 of the Constitution of India, the rules namely Released Emergency Commissioned Officers and Short Service Commissioned Officers (Determination of Eligibility for Promotion) Rules 1975 have been framed.
8Rule 2(a) defines the expression (deemed date of appointment) which means in relation to a released emergency commissioned officer or a short service commissioned officer, the date of appointment as computed in accordance with the relevant rules.
Rule 2(c) of the rules defines the expression relevant rules which reads as under:
(c) relevant rules means the Released Emergency Commissioned Officers and Short Service Commissioned Officers (Reservation of Vacancies) Rules, 1967, the Released Emergency Commissioned Officers and Short Service Commissioned Officers (Reservation of Vacancies) Rules, 1971, the Released Emergency Commissioned Officers (Engineering and Medical Services ) Reservation of Vacancies Rules, 1971 or the Released Emergency Commissioned Officers and Short Service. Commissioned Officers (Engineering and Medical Services) Reservation of Vacancies (No.II) Rules, 1971, as the case may be; Rule 3 of the aforesaid rules deals with eligibility for promotion which reads as under:9
3. Eligibility for Promotion:- Notwithstanding anything contained in the relevant recruitment rules relating to any post, released Emergency Commissioned Officers or Short Service Commissioned Officers who have not put in the requisite period of service as required under such rules for appointment by promotion to such post shall be considered for promotion to such post if-
(i) They have successfully completed the period of probation; and
(ii) The total service reckoned from the deemed date of their appointment is not less than the period of service required under the rules for promotion to the post.
In the year 1986, Central Civil Services (Fixation of Pay Of Re-Employed Pensioners) Orders 1986 were enacted. Clause 2 of the Order reads as under:
2. APPLICATION:
Save as other wise provided in these orders these orders shall apply to all persons who are reemployed in Civil Services and posts in connection with the affairs of the Union 10 Government after retirement on pension gratuity and/or Contributory Provident Fund benefits from the service of Union Government including Railways Defence and posts and telegraphers State Governments and Union Territory Administrations and Public Sectors Undertaking Local Bodies Autonomous Bodies like Universities or Semi Government Organizations like Posts and telegraphers. The relevant extract of Clause 4 which deals with fixation of pay of re-employed pensioners is reproduced below for the facility of reference.
4. FIXATION OF PAY OF REEMPLOYED PENSIONERS
(i) Reemployed pensioners shall be allowed to drawn pay only in prescribed scales of pay for the posts in which they are reemployed. No protection of the scales of pay of the post held by them prior to retirement shall be given.
(ii) In all cases where the pension is fully ignored, the initial pay on reemployment 11 shall be fixes at the minimum of the scale of pay of the reemployed post.
(iii) In cases where the entire pension and pensionary benefits are not ignored for pay fixation, the initial pay on reemployment shall be fixed at the same stage as the last pay drawn before retirement. If there is no such stage in the reemployed post, the pay shall be fixed at the stage below that pay. If the maximum of the pay scale in which a pensioner is less than the last pay drawn by him before retirement, his initial pay shall be fixed at the maximum of the scale of the reemployed post. Similarly, if the minimum of the scale of the pay in which a pensioner is reemployed is more than the last pay drawn by him before retirement his initial pay shall be fixed at the minimum of the scale of pay of the reemployed post. However, in all these cases, non-ignorable part of the pension and pension equivalent of retirement benefits shall be reduced from the pay so fixed.
8. The Border Security Force was raised under the Central Police Act, 1949. This force has been 12 charged with the responsibility of ensuring the security of Indo-Pak International Border. However considering the nature and purpose of the force, it was felt that force should be regulated by a separate self contained statute which will provide for its special needs, especially the needs of efficiency and discipline. Accordingly, the Border Security Force Act 1968 was enacted which came into force on 01.03.1969. Under the Act, the rules namely the Border Security Force (Seniority, Promotion and Superannuation of Officers) Rules 1978 were framed.
9. I may now proceed to deal with the issues ad seriatum.
Issue No.1:
(i) The Supreme Court in Hindustan Petroleum Corporation Ltd. Vs. Dolly Dass (1999) 4 SCC 454 held that delay by itself may not defeat the petitioners claim for relief unless the position of the respondents has been irretrievably altered or he has been put to undue hardship. In Tukaram Kana Joshi and others vs. Maharashtra Industrial Development Corporation and others, (2013) 1 SCC 353, it has been held that delay is not absolute impediment to exercise judicial discretion and rendering of substantial justice. It has further been held that ultimately it is a matter within the 13 discretion of the Court which has to be exercised fairly and justly, in the facts of each case and no hard and fast rule can be laid down. In Lajja Ram and others vs. Union Territory, Chandigarh and ors, (2013) 11 SCC 235, it has been held that underlying principle behind dismissal of petition on the ground of delay and latches is to discourage agitation of state claims but delay in approaching the Court must not always act in prejudice to aggrieved party and Court must prudently exercise its jurisdiction in doing so. It is equally well settled legal proposition that in a case where inordinate delay effects others ripened rights, which may have attained finality in such a case interference should not be made. See Chennai Metropolitan Water Supply And Sewerage Board and Others vs. T T Murali Babu (2014) 4 SCC 108.
(ii) In the backdrop of aforesaid well settled legal position, the facts of the case in hand may be seen. In the instant case, in the objections, the respondents had taken an objection with regard to delay and latches. Thereafter a Bench of this Court heard the arguments and admitted the writ petition for hearing vide order dated 09.05.2016. Thereafter the arguments were heard in part on 05.10.2016. It is also noteworthy that the claim of the petitioner has not been rejected on the ground of delay and 14 latches but on merits. The respondents having entertained the claim of the petitioner on merits and having rejected the same, now cannot be permitted to say that the same was barred by delay and latches.
(iii) It is also pertinent to mention that the claim of fixation of pay is a recurring cause of action therefore, on this ground also, the writ petition cannot be dismissed on the ground of delay and latches. In this connection, reference may be made to decisions of Supreme Court in the case of M R Gupta vs. Union of India and others, AIR 1996 SC 669 as well as decision of the Supreme Court in the case of New Delhi Municipal Council vs. Pan Singh and others AIR 2007 Supreme Court 1365.
(iv) The petitioner had submitted representations from time to time, that is, 12.01.1996, 25.7.1997, 10.8.2000, 22.11.2002, 2.12.2002, 17.08.2009 and 28.2.2010 pursuant to which a correspondence took place between the authorities and by a communication dated 25.03.2010, the petitioner was asked to appear before the Director General BSF on 07.04.2010 with regard to his claim. Thereafter the petitioner submitted another representation on 07.05.2010 for disposal of his claims. Thereupon by communication dated 20.05.2010, the petitioner was informed that the 15 claims of the petitioner are under examination and outcome will be intimated to the petitioner. Thereafter by an order dated 13.08.2010, the representation submitted by the petitioner was rejected. In the aforesaid obtaining factual matrix, the claim of the petitioner cannot be said to be barred by delay and latches.
Issue No.2:
(i) In the case of Ravi Paul (supra), the following question arose for consideration before the Supreme Court:
Both these matters raise a common question regarding determination of seniority of Emergency Commissioned Officers (ECOs) and Short Service Commissioned Officers (SSCOs) who were recruited as Assistant Commandants in the Border Security Force after their release from the Army. The question is whether the said Officers are entitled to count the service rendered by them in the Army for the purpose of fixation of their seniority in the Border Security Force. The aforesaid issue has been answered by the Supreme Court in Paragraph 18 and 19 which read as under:16
18. From the aforementioned provisions contained in the BSF Act and BSF Rules it is evident that the conditions of service, including seniority of members of the BSF, is to be governed by the provisions of the rules made under the BSF Act and not by the CRPF Rules and, therefore, Rule 8(b) of the CRPF Rules which governs seniority of superior officers in CRPF ceased to have application to the BSF on the enactment of BSF Act and thereafter the seniority was to be governed by the rules made under the BSF Act and till such rules were made it was open to the Central Government to regulate such seniority by orders. The seniority of the petitioners in Writ Petition No.146 of 1992 and other ECOs/SSCOs who were absorbed /appointed in the BSF after the enactment of BSF Act in 1968, is, therefore, not governed by Rule 8(b) of CRPF Rules but is governed by the provisions of the BSF Act the Rules made thereunder and in the absence of such rules by the executive orders issued by the Government of India in that regard. As pointed out earlier rules regarding seniority of officers in the BSF were made for the first 17 time in December 9, 1978 when the BSF and the said matter was governed by executive orders only. One such executive order is contained in the letter dated September 6, 1972 addressed by the Government of India to Army Headquarters, Military Secretary Branch (MS) wherein it was specifically mentioned that service rendered as SSCOs could not count towards seniority and pension. This matter was further clarified in the letter of appointment of the petitioners wherein it was specifically mentioned: Your Army service shall not count for seniority or promotion in BSF. Even in the BSF Seniority Rules made in 1978 no provision has been made for giving the benefit of past Army Service to SSCOs who were absorbed /appointed in the BSF. Rule 3(1) which provides for fixation in inter se seniority among officers holding the same rank, the following provision has been made in clause (V):-
Seniority of re-employed officers in a particular rank shall be determined from the date of their re-employment in that rank.18
19. We are, therefore, unable to hold that the seniority of SSCOs who were absorbed/appointed As Assistant Commandant in the BSF on selection by the Special Selection Board during the period 1974-78 is governed by Rule 8(b) of the CRPF rules. In our opinion, the seniority of such officers must be governed by the provisions contained in the BSF Act and Rules made thereunder and in the absence of rules by executive orders issued by the Central Government in that regard.
(ii) In the instant case, the petitioner is not claiming seniority but is claiming promotion. The seniority and eligibility for promotion are different concepts (see Renu Mullick vs. Union of India, 1994 (1) SCC 3731). Similar view has been taken in the case of Dwigen Chandra Sarkar (supra), Union of India vs. N Bhat, AIR 2004 SC 3200 and Union of India and ors. Vs. M. Mathivanam, AIR 2006 SC 2326 and State of Maharashtra and ors. Vs. Uttam Vishnu Pawar, 2008 AIR SCW 937. Therefore, the contention of the respondents that the controversy involved in the instant case is covered by a decision rendered in the case of Ravi Paul (supra) cannot be accepted. Accordingly, the aforesaid issue is answered.19
Issue No.3:
(i) The letter of appointment of the petitioner on the post of Assistant Commandant in the Border Security Force contained the following condition namely, Condition No.3 and 7 which are reproduced below for the facility of reference.
3. Your pay will be fixed as per Govt. orders on the subject as amended from time to time. Your Army service shall not count for seniority or promotion in BSF.
.
7. On joining the Force, you will be governed by the BSF Act 1968 and Rules 1969.
(ii) It is well settled in law that an executive order cannot be made or given effect to which is in violation of the statutory rules. In this connection reference may be made to decisions of the Supreme Court in the case of Punjab National Bank and another vs. Astamija Desai, (2008) 14 SCC 370, State of Madhya Pradesh and others (supra) as well as in the case of Lok Prahare (Supra). No doubt, it is open to a party to waive an advantage which a law seeks to confer on him 20 however in order to constitute a waiver, there must be voluntary and intentional relinquishment of a right. The essence of a waiver is a estoppel and where there is no estoppel, there is no waiver. The estoppel and waiver are questions of conduct and must necessarily be determined on the facts of each case. See Municipal Corporation of Greater Bombay vs. Dr. Hakimwadi Tenants Assn. 1988 Supp SCC 55. In the instant case, from the conduct of petitioner who had been repeatedly submitting representations, it cannot be inferred that he had waived the right. Besides that, it is trite law that there can be no estoppel against the law. Accordingly, the aforesaid issue is answered in negative.
Issue No.4:
(i) The 1975 rules have been framed in exercise of powers under Article 309 of the Constitution of India. Rule 1 (iii) of the rules provides that they shall apply to all Central Civil Services and Posts, Class-I and Class-II, including Engineering and Medical Services and Posts. The aforesaid rules are in existence, is evident from the information furnished to the petitioner in an appeal under 21 Section 19(1) of the Right to Information Act, 2005 contained in the communication dated 03.06.2010 which has been annexed with the petition as annexure-Z8. The relevant extract reads as under:
Point(v): The Released Emergency Commissioned Officers and SSCO (Determination of Eligibility for promotion) Rules 1975 are applicable to all Central Civil Services and posts, Class I and Class II, including Engineering and Medical Services and posts.
(ii) In reply to Ground M contained in the objection filed on behalf of respondents, the respondents have admitted that the 1975 rules are in operation, but the same are complementary to Rules 1967 and 1971 which were applicable only to ECOs/SSCOs commissioned after 01.11.1962 but before 10.12.1960. The definition of expression used in an Act with reference to other Acts is well known devise in legislative practice generally adopted for the sake of brevity. The definition would remain effective ever after the other Act with reference to which definition was 22 given ceases to exist. In this connection reference may be made to the decision of the Supreme Court in the case of Narotam Das vs. State of Madhya Pradesh (supra). Therefore, the fact that 1967 and 1971 rules have been repealed has no impact on the claim of the petitioner. The Rule 3(3)(v) of 1978 rules deals with seniority of re-employed officers which reads as under:
3(3)(v): Seniority of re-employed officers in a particular rank shall be determined from the date of their reemployment in that rank;
(iii) The aforesaid rule will not apply to the case of the petitioner for two reasons, firstly as the same deals with seniority and not for promotion and secondly that the same applies to the case of re-employed officers. Therefore the claim of the petitioner for promotion deserves to be considered under Rule 3 of 1975 rules. However, the respondents have rejected the claim of the petitioner on the ground that 1971 rules are not operative after 1974 and his claim for promotion would be governed by Rule 3 of the 1978 rules which is erroneous and is based on misinterpretation of the statutory provisions. The petitioner is entitled to consideration of his claim for 23 promotion under the 1975 rules. Accordingly, the aforesaid issue is answered.
Issue No.5:
From perusal of Clause 2 of Orders 1986, it is evident that it applies to all persons who are re-employed in Civil Services and Posts in connection with affairs of Union Government after retirement of pension, gratuity or re-contributory Provident Fund for the service of Union Government. From perusal of Clasuse 4(iii) which has been quoted supra, it is evident that the fixation of pay has to be made on the basis of last pay drawn. The contention of the respondents in Paragraph 38 of the objections that orders 86 applies only to the persons who have been appointed against unreserved vacancies and the same would not apply to the case of the petitioner as the petitioner has been appointed against 10 per cent quota for SSCOs cannot be accepted in view of Rule 2 of the rules. Therefore the petitioner is entitled to fixation of pay in terms of Clause 4 (iii) of Order 1986. Accordingly, the aforesaid issue is answered.
10. In view of the preceding analysis, the impugned order dated 13.08.2010 is hereby quashed. The respondents 24 are directed to consider the claim of the petitioner for promotion under the 1975 rules and to settle his claim for fixation of pay under Clause 4 (iii) of orders 1986. Let the aforesaid exercise be carried out by the respondents by a speaking order within the period of four months from the date of receipt of certified copy of order passed today. Needless to state that in case the petitioner is found entitled to benefit of the promotion, he shall be given all consequential benefits. With the aforesaid directions, the petition is disposed of.
(Alok Aradhe) Judge Jammu 07.12.2016 Raj Kumar