GOPAL LAL SWARNKAR Vs. DIRECTOR OF NCC

JUDGEMENT

(1.) AS this writ petition fails on one of the two preliminary objections of the learned Counsel for the respondents, it is not necessary to state all the facts.

(2.) IT will be sufficient to say that while the petitioner was serving as lecturer in commerce in Shri Kalyan College, Sikar, the President granted him a commission in the National Cadet Corps as 2nd Lieutenant, in the Senior Division (Army Wing), with effect from March 30, 1966, by order Ex 2. He was posted in the same college, in the 10/19 NCC Coy, which was thereafter designated as 3/19 NCC Coy. He was transferred to S.B. Dugar College, Sardar Shahar by order (Ex. 8) of the Director of Education dated July 29, 1967. A copy of the order was sent to Director, NCC, Rajasthan, Jaipur. The petitioner took over charge as Lecturer in Commerce in S.B. Dugar College, Sardar Shahar on August 17, 1967 and was allowed to work as Company Commander in the 2nd Rajasthan Indep. Coy. NCC., as that post was lying vacant While the petitioner was working as Coy. Commander, order ex, 9 dated October 7, 1967 was issued by the Officer Commanding, 2nd Rajasthan Indep. Coy. NCC., Sardar Shahar, to the Principal of S.B. Dugar College, Sardar Shahar, informing him that according to letter No. 0021/A dated September 30, 1967 of NCC. GHQ, Pilani, '2/Lt. G.L. Swarnkar will not be absorbed as NCC Officer against the vacancy of your college.' The principal was asked to obtain fresh applications to fill the vacant NCC post A copy of the order was endorsed to the petitioner. He filed a representation to the Commander, NCC, Group Head Quarters, Pilani, but it was rejected by letter Ex. 10 dated November 6, 1967. It was intimated in the letter that the representation had been examined by the Director, NCC, Directorate, Rajasthan, Jaipur, who did not consider the petitioner suitable for absorption against the vacancy in Sardar Shahar. The petitioner thereupon made representation Ex, 11 to Director NCC, Rajasthan, Jaipur, on November 14, 1967, and ultimately sent representation Ex. 12 to the Director General, NCC, New Delhi, on December 29, 1967. It was however intimated by the NCC Directorate, Rajasthan Jaipur, by letter Ex. 13 dated April 9, 1968, that the petitioner's representation had been rejected on October 30, 1967 and that the Director General, NCC, Ministry of Defence, New Delhi, had been apprised of the facts of his case with reference to his representation to the Director General. This continued to be the, position until the petitioner filed the present writ petition under Article 226 of the Constitution on July 30, 1968.

(3.) THE respondents filed a reply to the writ petition on October 3, 1968 and supplemented it by a reply dated July 14, 1971 in order meet the additional contentions of the petitioner. It will be sufficient to say that the respondents specifically took the plea that the petitioner ceased to be a commissioned officer as soon as he was transferred from Shri Kalyan College, Sikar, to S.B. Dugar College, Sardar Shahar because only Shri Kalyan College, Sikar, was attached to the 19 Rajasthan Battalion NCC, Sikar It was contended that the petitioner could have been attached to the 2nd Raj. Indep Coy. NCC Sardar Shahar only by an order of the Director General of the National Cadet Corps under Rule 24 of the National Cadet Corps Rules, 1918, hereinafter referred to as 'the Rules.' It was urged that as no such order was passed by the Director General, the petitioner could not be deemed to have continued as an officer of the NCC from the date of his transfer from Shri Kalyan College Sikar, because of the provisions of Rule 26 of the Rules. It was pleaded that the petitioner would be deemed to have been 'de -commissioned' under Rule 28 read with Rule 24 of the Rules on the date when he was transferred from Shri Kalyan College, Sikar. It was also pleaded that as he had not been kept on a supernumerary list under Rule 26 (4aa), he ceased to hold to the commission and that that would operate as his 'discharge' from the NCC under Rule 28. Then it was pleaded that the Central Government was a necessary party to the case and that as it had not been made a party, the writ petition was liable to be dismissed for that reason also.