Jammu & Kashmir High Court
Swarn Dev vs Uoi Th.Min.Of Home Affairs And Ors. on 7 December, 2016
Author: Alok Aradhe
Bench: Alok Aradhe
1
HIGH COURT OF JAMMU AND KASHMIR AT
JAMMU
SWP No. 2366/2010, MP No. 3342/2010
Date of Decision: 07.12.2016
Swarn Dev vs. Union of India and ors.
Coram:
Hon'ble Mr. Justice Alok Aradhe, Judge
Appearing counsel:
For petitioner (s): Mr. O. P. Thakur, Advocate
For respondent(s): Ms. Sindhu Sharma, ASGI
(i) Whether to be reported in
Press, Journal/Media: Yes/No
(ii) Whether to be reported in
Journal/Digest: Yes/No
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.
8
Rule 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