KEDAI NATH SHARMA Vs. UNION OF INDIA

JUDGEMENT

(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 & others.

(2.) PETITIONER Kedar Nath Sharma was offered appointment as a 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 Armed 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 be 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 Deputy Superintendent of Police were older in age and 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 etc. v. State of Haryana (1 ).

(3.) IN support of the petitioner's appeal Shri Mridul has reiterated the above contentions of 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 challenge i. The argument is that the Central Reserve Police Force Rules, 1955 applied 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 conditio is 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.