Kedar Nath Sharma Vs. Union of India (Uoi) and ors. - Court Judgment

Excerpt:
border security force rules, 1969 - rule 10--seniority--permanent posts created w. e. f. 1-4-1969 and prior thereto it was ad-hoc arrangement--held, there being no substantive posts before 1-4-1969 no right was conferred to to petitioner; and (ii) confirmation was made in accordance with principles laid down and calls for no interference.;the appointment of the petitioner and others recruited to the border security force prior to creation of any permanent post from april 1, 1969 was a mere ad-hoc arrangement which did not confer any right to the petitioner, since there were no substantive posts against which any appointment could be made in that capacity. giving a date of confirmation to the appointees in accordance with the principles laid down in ex. r/5 dated november 25, 1970 without affecting their inter-se seniority fixed on those principles does not call for any interference by this court.;appeal dismissed - - superintendent of police were in order in age & had the benefit of experience of the past military service as compared to the direct recruits like the petitioner, who had no such past experience it is also clear that the border security force being a para-military force, the past experience in military service of the ex-emergency commissioned officers was a material consideration in fixation of their pay and seniority vis-a-vis the other direct recruits. admittedly as a result of fixation of seniority according to these principles, persons like the petitioner who are direct recruits without the benefit of any past military experience have been placed lower to ex-emergency commissioned officers who have the benefit of the past military service, since they have been given benefit of the past military service in fixation of seniority. it is urged that for the same reason giving a later date of confirmation to the petitioner and others like him is illegal. it is also contended that according to the rules applicable the petitioner & other direct recruits like him would be deemed to be automatically confirmed on expiry of, the period of three years from the date of their joining service, since three years is the maximum period of probation prescribed under the rules. 5. in the reply filed by the government of india historical background for raising the border security force has been mentioned, it has been stated that the borders of the country were being guarded till 1965 by police personnel, but it was realised that this function could be discharged better by the armed forces and, therefore, a para-military force known as the border security force was raised. it has been pointed out that entire organisation was temporary and there being no permanent post available when these appointments were initially made, the question of any right to post infavour of the petitioner and others like him did not arise. we have already mentioned the aforesaid letters of the government of india dated may 22, 1969, august 22, 1968, september 7, 1970, march 6, 1976 & may 3, 1983 which read along with the other material in the record clearly show that permanent posts in this cadre in the border security force were created for the first time only with effect from april 1, 1969. there can thus be no question for any one to claim any right much less a vested right prior to april 1, 1969 when permanent posts were created in the border security force. r/5 dated november 25, 1970 and fixation of seniority of the ex-ecos above the petitioner and others like him on the basis of past military experience is reasonable. 10. we may also mention that learned counsel for the petitioner stated before us that several persons have been further promoted as deputy commandants inspite of their bad service record and adverse entries in the annual confidential reports which were sufficient to refuse them promtion, even if they were senior to the petitioner. for the purpose of satisfying our seleves that no such undesirable person had been given the promotion in a para military force like the bsf, we directed the additional advocate general to produce for our perusal the annual confidential reports of the persons so named. we have perused the annual confidential reports of these persons and we find that except in the case of one ghanshym singh who has retired with effect from february 28, 1985, the reports of the other nine persons named by the petitioner are mostly good reports even saying that they are fit for promotion or at least not such as to indicate that their promotion was unjustified. 28, 1985, no action was called for on the last report which alone was bad even in his case. we are satisfied that no interference with any of these promotions is called for.j.s. verma, c.j.1. these are cross-appeals by the two sides against a judgment of a learned single judge of this court in writ petition no 137 of 1978, kedar nath sharma v. union of india and ors.2. petitioner kedar nath sharma was offered appointment as deputy superintendent of police (company commander quarter master) in the border security force on a temporary basis by order ex r/2 dated december 7, 1966 on the terms and conditions specified therein. the terms of appointment was mentioned specifically that his temporary appointment was governed by the crp force act and rules or such other act and or rules for the border security force as may be prescribed by the government and the manual as amended from time to time. the petitioner was required to communicate acceptance of the offer on the specified terms and conditions within the prescribed period. the petitioner accepted this offer and joined duty on december 9, 1966. thereafter appointments on temporary basis to the same post of deputy superintendent of police (company commander/quarter master) were offered to ex-emergency commissioned officers of the forces stating that the posts were likely to be made permanent. the terms and conditions of the offer were also specified for them from time to time and these are contained in ex. r/3 dated september 11, 1967 and ex r/4 dated june 30, 1968. it was mentioned therein that they would be governed by the crp force act and rules and such other act and or rules for the border security force as may be prescribed by the government from time to time it was also mentioned that the manner of fixation of their pay and seniority was under consideration of the government and order on the subject would he-issued shortly while indicating that the benefit of the past military service would be taken into account for fixation of pay and seniority. admittedly these ex-emergency commissioned officers of the army recruited in the border security force as dy. superintendent of police were in order in age & had the benefit of experience of the past military service as compared to the direct recruits like the petitioner, who had no such past experience it is also clear that the border security force being a para-military force, the past experience in military service of the ex-emergency commissioned officers was a material consideration in fixation of their pay and seniority vis-a-vis the other direct recruits. it can hardly be doubted that the ex-emergency commissioned officers with the benefit of military service behind them constituted a distinct class for this purpose and their classification in a category separate from that of the direct recruits who did not have any such past experience, was valid and did not amount to violation of articles 14 and 16 of the constitution. this is clear from the decision in raj pal sharma and others etc. v. state of haryana and ors. 1985 unreported judgments (sc) 615.3. the government of india then laid down the principles for fixation of the seniority of the deputy superintendents of police, re-designated as assistant commandants and fixed their seniority accordingly by order ex. r/5 dated november 25, 1970. these principdes mentioned in ex. r/5 are as under:2. as regards the procedure adopted for fixation of the seniority of assistant commandants, the following broad principles have been observed:[i] the seniority of ex-ecos appointed as asstt. comdt. in the bsf has been determined from the date of their pre-commission training subject to the inter-se seniority amongst the ex-ecos, as determined by the army h. qrs.[ii] although the names of these ex-ecos appointed as asstt. comdts. in the bsf and have more than one year break in their service from the date of release from army and from the date of joining the bsf; have placed as per their seniority in the army. their seniority is subject to condonation of break in service.[iii] the seniority of these asstt. comdts, who were recruited directly in the bsf has been determined on the basis of their order in which they passed out of the trg. institution.[iv] the seniority of these asstt. comdts. who were promoted from the rank of inspector in the bsf has been determined in accordance with the order in which their names were placed by the departmental promotion committee.[v] the inter-se seniority amongst all the assistant commandants has been determined from the date of their continuous officiation in the ranks subject to the procedure discussed above.[vi] those who had joined/been appointed on the same date and time, elder is senior to younger.admittedly as a result of fixation of seniority according to these principles, persons like the petitioner who are direct recruits without the benefit of any past military experience have been placed lower to ex-emergency commissioned officers who have the benefit of the past military service, since they have been given benefit of the past military service in fixation of seniority. this seniority to the ex-ecos has also increased the prospects of their posts because of their earlier consideration on the ground of seniority. it is this fact which is the main grievance of the petitioner.4. in substance the petitioner's grievance is that the ex-ecos had joined the bsf on dates subsequent to the date on which the petitioner joined the bsf in the same rank and therefore, on the basis of longer continuous service in that rank in the bsf the petitioner and other such direct recurits should be given seniority over the ex-ecos recruited in the same cadre of the bsf after him. this is the foundation of the petition and the reliefs claimed are on this basis. it is contended that the fixation of seniority in ex. r/5 dated november 26, 1970 showing the petitioner and other such direct recruits below the ex-ecos who joined the service in the same rank after them is arbitrary and discriminatory and consequently the benefits given to the ex-ecos by giving them earlier promotion etc. are also invalid for the same reason. it is urged that after absorption in the same cadre, even though recruited from different sources, no discrimination could be made against them by applying different principle for fixation of seniority instead of the normal rule of seniority being determined on the basis of length of continuous officiation. it is urged that for the same reason giving a later date of confirmation to the petitioner and others like him is illegal. it is also contended that according to the rules applicable the petitioner & other direct recruits like him would be deemed to be automatically confirmed on expiry of, the period of three years from the date of their joining service, since three years is the maximum period of probation prescribed under the rules. accordingly, the date of confirmation as claimed by the petitioner is december 9, 1969 instead of january 1, 1973 given to him. it is also contended that by laying down different principles for determining seniority in ex. r/5 dated november 25, 1970 much after the petitioner joined service on december 9, 1966 amounts to retrospective deprivation of the petitioner's vested rights which had accrued to him at the time of his joining the service. in substance it is these very arguments which have been repeated on behalf of the petitioner in this appeal.5. in the reply filed by the government of india historical background for raising the border security force has been mentioned, it has been stated that the borders of the country were being guarded till 1965 by police personnel, but it was realised that this function could be discharged better by the armed forces and, therefore, a para-military force known as the border security force was raised. the instructions issued for this purpose are indicated in ex. r/l dated may 28, 1966. it was indicated that the service conditions were to be governed by the central reserve police force rules, 1955 as amended from time to time and made applicable to the border security force to begin with and that the same would be finalised subsequently. it was obviously an interim arrangement till the creation of the regular force and prescibing of conditions of service for them. obviously ad hoc appointments were made by recruitment on the terms and conditions offered at the time of appointment in the manner stated earlier. the petitioner belongs to the first batch of the direct recrutis to whom the appointment was offered in the manner indicated in ex. r/2 dt. 7-12-1966. it was specifically stated that the appointment was temporary and was subject to the conditions of service to be prescribed by the government in due course. it was, therefore, obvious to the petitioner and others who were offered such appointment that the conditions of service applicable to them would be these which were finally prescribed and till then the appointment was purely in a cadre which itself had not come to be regularly established. it is then stated that in view of the nature of duties in the border security force which is a para-military force, the ex-ecos who had valuable past military experience were placed in a separate category for this reason and given the benefit of their past experience in military service in fixation of their seniority. it has been pointed out that entire organisation was temporary and there being no permanent post available when these appointments were initially made, the question of any right to post infavour of the petitioner and others like him did not arise. since the appointments were not against any substantive or permanent post, there is no foundation for the petitioner's contention that he had acquired any right from the date of his appointment. it has also been shown that the permanent posts were created from time to time begining with the government of india's letter dated may 22, 1969 by which some permanent posts were created for the first time with effect from april 1, 1969. similar letters of the government of india dated august 22, 1969, september 7, 1970, march 6, 1976 and may 3, 1983 have been shown to indicate the creation of permanent posts. it is urged that there being no permanent post in existence prior to april, 1969, no question arises of any one claiming a vested right by virtue of' appointment offered on temporary basis prior to 1-4-1969. for the same reason no question arises of confirmation to any such post before expiry of three years from april 1, 1969 on the basis of rule 10 of the border security force rules, 1969 which was relied on by the petitioner for claiming the confirmation with effect from december 9, 1969. it has been contended that the principles for recruitment to the border security force and fixation of seniority therein were laid down by the government of india for first time in ex. r/5 dated november 25, 1970 and, therefore, there is no question of any right accruing to any one except on the basis of these principles contatined m ex. r/5. since fixation of seniority has been made on these principles contained in ex. r/5, there is no foundation for the petitioner s claim.6. the learned single judge rejected the petition except on one count it has been held by the learned single judge that that petitioner was entitled to confirmation with effect from december 9, 1969 on expiry of three years from the date of his appointment instead of january 1, 1973 and, therefore direction has been given to give effect to the same. except for granting this relief to the petitioner, the writ petition has been dismissed. both sides being aggrieved by the judgment of the learned single judge these cross appeals have been preferred by them.7. in support of the petitioner's appeal shri mridul has reiterated the above contentions or the petitioner and on that basis challenged fixation of seniority of the ex. ecos above the petitioner and other direct recruits who joined the border security force before them. challenge has also been made to the earlier promotions given to the ex. ecos considering them for promotion before the petitioner on the basis of seniority. in short the consequential actions based on seniority of the ex-ecos have been challenged. the argument is that the central reserve police force rules, 1955 applied to the petitioner and rule 8 therein providing for seniority entitles the petitioner to be placed above the ex-ecos appointed in the border security force after him. it is argued that the conditions of service offered to the petitioner in ex. r/2 at the time of his appointment ensure the petitioner's seniority and confer a vested right on him. several decisions have been cited to support the contention that a vested right relating to a condition of service such as seniority cannot be taken away retrospectively even by framing any statutory rule under article 309 of the constitution. on this basis it was argued that ex. r/5 dated november 25, 1970 is invalid to the extent it operates retrospectively to the detriment of the petitioner who was recruited on an earlier date. the additional advocate general shri j.p. joshi has in reply contended that the border security force as a regular force came into existence only in the manner indicated earlier and substantive posts were created for the first time only with effect from april 1, 1969 and thereafter. he argued that the conditions of service were laid down for the first time only in ex. r/5 and it was made clear to the petitioner and others at the time of their recruitment temporarily that their conditions of service were to be prescribed later.8. in our opinion, there is no merit in the petitioner's appeal and even the relief granted to the petitioner of an earlier date of confirmation cannot be sustained. the foundation for the petitioner's case is his appointment to a substantive post with effect from december 9, 1966 when he joined service accepting the offer contained in ex. r/2 dated december 7, 1966 this really is the fallacy in the petitioner's case. ex. r/2 dated december 7, 1966 itself indicated that the appointment was offered to the petitioner on a temporary basis and that the conditions of service were to be prescribed later, while the central reserve police force act and rules as amended from time to time were to apply till then. there can be no manner of doubt that the contents of this document made it amply clear that the appointment given to the petitioner was only of an ad hoc nature making it clear that the terms and conditions of the service offered to the petitioner and others recruited in the border security force which was being raised were to be determined. similar appointments were offered to the ex-militarymen, but they were also indicated that they would be given benefit of their past military service in the conditions of service which are finally prescribed. it is significant that no assurance of any kind for seniority was given to the petitioner and other direst recruits who did not have experience of past military service. the period of continuous officiation as the determining factor of seniority in the cadre is no doubt an accepted norm to be ordinarily followed unless otherwise prescribed by a valid rule, but the same depends on the existence of a substantive post for the purpose. there can be no officiation against any post unless there is a substantive post in existence. it appears that the documents produced before the learned single judge were incomplete for the purpose of giving the correct picture and, therefore, documents were produced from both sides at the hearing of the appeal so that the correct picture may be available about the formation of the border security force and the creation of substantive post there in. these documents produced from both sides have, therefore, been referred at the hearing of the appeals before us. we have already mentioned the aforesaid letters of the government of india dated may 22, 1969, august 22, 1968, september 7, 1970, march 6, 1976 & may 3, 1983 which read along with the other material in the record clearly show that permanent posts in this cadre in the border security force were created for the first time only with effect from april 1, 1969. there can thus be no question for any one to claim any right much less a vested right prior to april 1, 1969 when permanent posts were created in the border security force. we do not find in ex. r/2 dated december 7, 1966 any such undertaking in the petitioner's favour for giving him the seniority which he claims over the ex ecos who joined the border security force after him on an express understanding that they would be given the benefit of their of past military service in fixation of their pay and seniority. in view of our opinion that the very foundation for the petitioner's case is nonexistent, it is unnecessary to refer decisions relied on by the learned counsel for the petitioner in support of his contention that a vested right relating to a condition of service cannot be taken away and the length of service should be the criterion for determining seniority. it is sufficient for us to say that the conditions of service for such parson who is recruited in the border security force in this cadre were prescribed for the first time by ex. r/5 dated november 25, 1970 and fixation of seniority of the ex-ecos above the petitioner and others like him on the basis of past military experience is reasonable. there is no infirmity therein to justify any interference with the seniority list.9. it is also clear that the petitioner cannot be confirmed with effect from december 9, 1969 treating december 9. 1966 as the date of commencement of his probation under rule 10 of the border security force rules, 1969. the border security force rules, 1959 were obviously framed and brought into force after creation of some permanent post for the first time with effect from april 1, 1969. it is difficult to visualise how the period of probation of any one could commence without creation of the permanent post prior to april 1, 1969; and benefit of rule 10 of the rules with came into force with effect from march 1 1959 be given to the petitioner from 1966. it is clear that the appointment of the petitioner and others recruited to the border security force prior to creation of any permanent post from april 1, 1969 was a mere ad hoc arrangement which did not confer any right to the petitioner since there were no substantive posts against which any appointment could be made in that capacity giving a date of confirmation to the appointees in accordance with the principles laid down in ex. r/5 dated november 25, 1970 without affecting their inter-se seniority fixed on those principles does not call for any interference by this court. no case for any interference in the writ petition has, therefore, been made out by the petitioner.10. we may also mention that learned counsel for the petitioner stated before us that several persons have been further promoted as deputy commandants inspite of their bad service record and adverse entries in the annual confidential reports which were sufficient to refuse them promtion, even if they were senior to the petitioner. for the purpose of satisfying our seleves that no such undesirable person had been given the promotion in a para military force like the bsf, we directed the additional advocate general to produce for our perusal the annual confidential reports of the persons so named. we have perused the annual confidential reports of these persons and we find that except in the case of one ghanshym singh who has retired with effect from february 28, 1985, the reports of the other nine persons named by the petitioner are mostly good reports even saying that they are fit for promotion or at least not such as to indicate that their promotion was unjustified. in the case of said ghanshyamsingh, the last report says that since he had proceeded on leave preparatory to retirement & is due to retire with effect from feb. 28, 1985, no action was called for on the last report which alone was bad even in his case. we are satisfied that no interference with any of these promotions is called for.11. consequently, the petitioner's appeal is dismissed, while that of the union of india is allowed with the result that the entire writ petition is dismissed. no costs.