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3.The Border Security Force is one of the paramilitary forces of the Government of India. It was constituted in 1965. It was initially governed by Central Reserve Police Force Rules, 1955 (hereinafter referred to as the 'CRPF Rules') made under the provisions of the Central Reserve Police Force Act, 1949. For that purpose Chapter XV (Rules 112 to 116) was inserted in the CRPF Rules on December 21, 1966. The said Chapter bears the heading "Special Provisions relating to Border Security Force". Rule 113 thus introduced made provision for appointment and promotion of superior officers. SubRule (2) of Rule 113 related to appointment on the posts of Deputy Commandant, Assistant Commandant or Adjutant or Joint Assistant Directors or other equivalent rank and sub-Rule (3) related to appointment on the posts of Company Commanders, Quarter-master and Junior Staff Officers and other posts in the force equivalent thereto. On May 11, 1967, the CRPF Rules were further amended and Clause (iv A) was inserted in sub-Rule (3) of Rule 113 and thereby provision was made for appointment of ECOs and SSCOs who were commissioned on or after November 1, 1962 and were released at any time thereafter. A similar provision was contained in clause (ivA) introduced in sub- Rule (4) of Rule 105 of the CRPF Rules which provided for appointment to the post of Company Commanders or Quarter- master in Battalions other than Signal Battalions or Assistant Principal Central Training College in the Central Reserve Police Force. On September 2, 1968, Parliament enacted the Border Security Force Act, 1968 (hereinafter referred to as the 'BSF Act') to provide for the constitution and regulation of an armed force of the Union for ensuring the security of the borders of India and for matters connected therewith. Sub-Section (1) of Section 141 of the BSF Act empowers the Central Government to make rules for the purpose of carrying into effect the provisions of the said Act. Clause (b) of sub-Section (2) of Section 141 confers the specific power to frame rule to provide for the enrolment of persons to the force and the recruitment of other members of the Force. Clause (c) of sub-Section (2) of Section 141 confers the power to make rules providing for conditions of service (including deductions from pay and allowances) of the members of the Force. Under sub-Section (2) of Section 142 members of the Border Security Force in existence at the commencement of the Act are deemed to have been appointed or, as the case may be, enrolled as such under the Act.

15.As regards the absorption/appointment of the petitioner as Assistant Commandants in the BSF during the period 1974- 78 it has already been noticed that initially, i.e., before the enactment of the BSF Act, appointment of superior officers in the BSF was governed by Rule 113 of the CRPF Rules. The enactment of the BSF act in 1968 brought about a change. The said Act, in Section 4, provides for the constitution of the BSF and in subSection (2) of Section 4 it is prescribed that subject to the provision of the BSF Act, the Force (BSF) should be constituted in such manner as may be prescribed and the condition of service of the members of the Force shall be such as may be prescribed. In sub-Section (1) of Section 141 power has been conferred on the Central Government to make rules for the purpose of carrying into effect the provisions of the Act. In sub- Section (2) of Section 141 it has been specifically provided that such rules may, inter alia, provide for the enrolment of the persons to the Force and the recruitment of the other members of the Force [clause (b)] and the conditions of service (including deductions from pay and allowances) of the members of the Force [clause (c)]. It would thus appear that after the enactment of the BSF Act in 1968, the CRPF Rules ceased to have application in the matter of recruitment to the BSF as well as the conditions of service of the members of the said force and the BSF was governed by the provisions of the BSF Act only. The BSF Act does not provide for continuing the applicability of CRPF Rules to the BSF. On other hand, we find that in the matter of recruitment to the post of Assistant Commandant, the Cen- tral Government made BSF Recruitment Rules on December 8, 1969 which continued in force till they were repealed on No- vember 23, 1973. Thereafter, recruitment to the post of Assistant Commandant in the BSF was governed by the executive order dated January 16, 1974 issued by the Government of India. In law it was permissible do so because it is well settled that it is not obligatory to make rules for recruitment etc. before as service can be constituted or a post created or filled and the Government, in exercise of its executive power, can make appointments in the absence of rules. [See : B.N. Nagarajan & Ors. v. State of Mysore & Ors., 1966 (3) SCR 682 at p. 686].

(2) Save as otherwise provided in subRule (1), the provisions of the Central Reserve Police Force other Om this Chapter shall apply to any member of the Border Security Force as it applies to any other member of the Central Reserve Police Force.

In view of the said provision, Rule 8(b) of the CRPF Rules was applicable to the officers who were recruited to the BSF under Rule 113 of the CRPF Rules. The said Rule, however, ceased to have application to the BSF after the enactment of the BSF Act and the publication of the BSF Rules. In the matter of conditions of service of the members of the BSF, Section 4(2) of the BSF Act provides that "the conditions of service of members of the shall be such as may be prescribed". The expression 'prescribed' is defined in Se- lection 2(S) of the BSF Act to mean "prescribed by rules made under this Act. Section 141(2) (c) of the BSF Act empowers the Central Government to make rules providing for conditions of services of members of the BSF. In Rule 14(2) of the BSF Rules it is provided that matters relating to inter se seniority of persons belonging to the same ranks shall be determined in accordance with such rules as may be made in this behalf The BSF Seniority Rules were such rules which were made in 1978.

18.From the aforementioned provisions contained in the BSF Act and BSF Rules it is evident that 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 and 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 time in December 9,1978 when the BSF Seniority Rules were published. Till then, there was no rule regarding fixation of seniority of officers in 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):-