BOBINDRA KUMAR & ANR. versus UNION OF INDIA & ORS. on 27 August 2019

752

SUPREME COURT REPORTS

[2019] 11 S.C.R.

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BOBINDRA KUMAR & ANR.

v.

UNION OF INDIA & ORS.

(Civil Appeal No. 6642 of 2019)

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AUGUST 27, 2019

[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]

Central Reserve Police Force Act, 1949 – ss.2(d), 5 – CentralReserve Police Force Rules, 1955 – rr.8(e),12 – Direct recruits-SubCInspector (General Duty) were appointed in pursuance of theadvertisement published in June, 2007 – Results were declared –On October 5, 2009, the Directorate General, CRPF communicatedto its various units regarding the allotment of candidates – Pursuantthereto, letters of offer of appointment were issued to the selectedcandidates – Following the terms and conditions in the letter ofDappointment, the direct recruits reported for training in January,2010 – On the other hand, promotee Sub Inspector (General Duty)were appointed in pursuance of recruitment process initiated in June,2009 – Promotee Sub Inspectors (General Duty) training commencedon November 23, 2009 – After appointments were made, SeniorityElist was finalised, whereby the direct recruits were placed senior tothe promotee sub-inspectors – Writ petition – High Court placedpromotee Sub Inspector senior to the direct recruit Sub Inspectors– Direct recruits contended that they were entitled to rank senior inview of letter of allotment dated October 5, 2009 – On appeal,held: The offer of letter of appointment accepted by the direct recruitFcontemplated that on joining, they would be governed by the Actand the Rules, therefore, till such time they join in pursuance of theoffer of appointment, the appellants-direct appointees were notsubject to the provisions of the Act and the Rules – As per r.12, nocandidate was to be enrolled unless he obtained a Health CertificateG– Therefore, candidates deemed to be member of the force only onfurnishing of health certificate and acceptance of the offer ofappointment before they proceed for training – Further, r.8(e)stipulates that a person promoted to a higher rank and a personrecruited direct to the same rank shall have their seniority from thedate of appointment – Therefore, a person appointed by way of H

direct recruitment or promotion to the post of Sub-Inspector, hisseniority will be fixed as per the date of appointment – In the instantcase, since the date of appointment of the direct recruits is notOctober 5, 2009 but the date they completed the formalities afteraccepting the offer of appointment, their date of appointment islater than the date of promotion of the promotee Sub-Inspectors –Thus, set of appeals by the direct appointee-Sub-Inspectors andUnion of India dismissed – Service Law – Seniority.

Dismissing the appeals, the Court

Conclusion

Dismissing the appeals, the Court

HELD: 1. The letter dated October 5, 2009 is not addressedto the appellants- direct recruits. It is addressed to InspectorGeneral of Police of the various units of CRPF. By suchcommunication, the selected candidates have been allotted tovarious units to facilitate issue of letter of appointment by therespective units. Some of the appellants were given letter ofappointment on October 15, 2009 whereas appellant No. 1 havebeen given letter of appointment on October 26, 2009. This is aletter of offer of appointment which is required to be accepted bythe candidates in terms of clause 4 as reproduced above. Theoffer of letter of appointment further contemplates that on joining,they would be governed by the Central Reserve Police ForceAct, 1949 and the Central Reserve Police Force Rules, 1955,therefore, till such time they join in pursuance of the offer ofappointment, the appellants are not subject to the provisions ofthe Act and the Rules. As per Rule 12 of the Rules no candidateshall be enrolled unless he obtains a Health Certificate in theprescribed form. The Health Certificate was called upon fromthe appellants in the letter of offer of appointment. Therefore,they will be deemed to be members of the Force only on furnishingof Health Certificate and acceptance of the offer of appointmentbefore they proceed for training. [Para 19][762-B-E-]

2. The judgment in Rohitash Kumar relied upon by the HighCourt is not applicable to the members of the CRPF as the dateof appointment is not the date of commencement of training inthe Rules. The BSF Rules are materially different from the Rulesapplicable to the members of CRPF. Rule 8(e) of the Rules clearlystipulates that a person promoted to a higher rank and a person AB

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Arecruited direct to the same rank shall have their seniority fromthe date of appointment. Therefore, a person appointed by way ofdirect recruitment or promotion to the post of Sub Inspector, hisseniority will be fixed as per the date of appointment. Only in thecase that both direct recruits and promotees are appointed onthe same date, promotees were to rank senior. Since, the date ofBappointment is not 5[th] October, 2009 but the date they completedthe formalities after accepting the offer of appointment, their dateof appointment is later than the date of promotion of the promoteesub-inspectors. There is no merit in the present set of appeals.The same are dismissed but for the reasons other than that whichweighed with the High Court. [Paras 20, 24][762-F-H; 736-A;C764-B]

Rohitash Kumar & Ors. v. Om Prakash Sharma & Ors.(2013) 11 SCC 451 : [2012] 13 SCR 47 – referred to.Amarjit Singh Ahluwalia (Dr.) v. State of Punjab & Ors.(1975) 3 SCC 503 : [1975] 3 SCR 82; Union of IndiaD& Ors. v. N.R. Parmar & Ors. (2012) 13 SCC 340 :[2012] 13 SCR 555; P. Sudhakar Rao & Ors. v. U.Govinda Rao & Ors. (2013) 8 SCC 693 : [2013] 13SCR 540 – held inapplicable.

Case Law Reference

FCIVIL APPELLATE JURISDICTION: Civil Appeal No.6642 of2019.

From the final Judgment and Order dated 28.11.2018 of the HighCourt of Delhi at New Delhi in Writ Petition No.2197 of 2014.

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Civil Appeal No. 6643 of 2019

K.M. Natraj, ASG, Dhruv Mehta, R. Balasubramanium, GuruKrishna Kumar, Sr. Advs., Ashish Verma, Ms.Avika Madhura, DakshWadhawan, Chandra Prakash, B.V. Balaram Das, S. S. Ray, KumarShashank, Santosh Kumar Pandey, Advs. for the appearing parties.

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The Judgment of the Court was delivered by HEMANT GUPTA, J.

1. Leave granted.

2. The order passed by the High Court of Delhi on November 28,2018 is the subject matter of challenge in the present appeals, onepreferred by the direct appointee Sub Inspectors (General Duty) of theCentral Reserve Police Force[1] and another by the Union of India. TheHigh Court ordered that the promotee Sub Inspectors (General Duty)will rank senior to the direct appointee Sub Inspectors (General Duty)by quashing the order dated October 14, 2013 issued by the DirectorateGeneral of the CRPF and the seniority list dated February 27, 2012.

3. The direct recruits were appointed in pursuance ofadvertisement published in June, 2007. The result of the writtenexamination was declared on July 21, 2009. It was on October 5, 2009,the Directorate General, CRPF communicated to its various unitsregarding allotment of 880 candidates to its units. The candidates wereallotted to the units as per vacancies. The direction was issued to theInspector Generals to issue offer of appointment to the candidates soallotted. One of the conditions in the said letterof allotment reads, thus: - “g) Candidate may be given one-month time to join CRPF fromthe date of issue of offer of appointment, which should not belater than October 30, 2009 and should be sent by registered postwith AD.”

4. It is in pursuance of such allotment, the selected candidateswere issued the letters of offer of appointment. The offer of appointmentdated October 26, 2009 issued to Bobindra Kumar, appellant No. 1 hasbeen put on record by the respondents. The appellants have producedletter of appointment dated October 15, 2009 in respect of RavinderSingh, one of the respondents in the High Court. The terms and conditionsof letter of allotment are the same as are mentioned in letter ofappointment of appellant No. 1. Some of the clauses from such letterread as under:

“1. It is to inform you that as a result of recruitment test conductedby SSC-2007, you have been provisionally selected for appointmentto the post of Sub Inspector (General Duty) in CRPF against the 1 CRPF

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Aexisting vacancies (normal wastage) of M & N Sector.xxxxxx 3 (b). You shall be at liberty to resign your appointment before theexpiry of first three months of your service provided three monthspay or training charges whichever is higher is refunded.

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(e) . On joining the department, you will be governed by CRPFAct-1949 and CRPF Rules-1955 as amended from time to time.

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(g) . You will be required to undergo basic training as applicablefor the post after reporting at this GC.

(h) . In case you do not report by the stipulated date as mentionedat Para 4, offer of appointment made to you will be deemed to belapsed automatically and no correspondence whatsoever on theDsubject will be entertained.

4. If you accept the offer of appointment on the terms andconditions mentioned above, you should report for duty in the DIGP,GROUP CENTRE, CRPF, LANGJING IMPHAL (Manipur)E795113 (Tel. No. 0385-2436140) on or before 26/11/2009 at 0900Hrs. with the following docuements….”

5. It is in pursuance of such terms and conditions in the letter ofappointment, the direct recruits reported for training in January, 2010.On the other hand, the respondents who were the writ petitioners beforethe High Court came to be appointed in pursuance of recruitment processinitiated in June, 2009. The result of examination was declared on October20, 2009. The training commenced on November 23, 2009 as thesecandidates were already members of the Force.

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6. After the appointments so made, seniority was finalised onGFebruary 27, 2012, whereby the direct recruits were placed senior to thepromotee sub-inspectors.

7. The promotee sub-inspectors challenged the seniorityplacing the direct recruits senior to them, inter alia, on the ground thatthey were appointed earlier in point of time to the direct recruits and, H

therefore, in terms of Rule 8(e) of the Central Reserve Police ForceRules, 1955[2], the promotees should rank senior. The High Court acceptedthe claim of the promotee sub-inspectors relying upon judgment of thisCourt in Rohitash Kumar & Ors. v. Om Prakash Sharma & Ors.[3]and also Office Memorandum dated November 4, 1992; and para11.2(2)(iii)(e) of Chapter XI of the CRPF Establishment Manual.

8. Aggrieved against the order passed, the direct recruits and theUnion of India are in appeal.

9. Before we proceed further, Rule 8(e) needs to be reproduced,which reads as under:

“8. Seniority. – (a) The seniority of Superior Officers shallbe in the following order:-

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(e) . A person promoted to a higher rank and a person recruiteddirect to the same rank shall have their seniority from the dateof appointment to that rank subject to the condition that if bothwere appointed on the same date, the former (promotee) shallbe senior:

Provided further that if the date of confirmation is thesame their seniority immediately before such confirmation shallremain unaffected.”

10. Mr. K.M. Nataraj, learned Additional Solicitor Generalsupported the seniority fixed relying upon the Office Memoranda datedJune 24, 1978 and March 4, 2014. It is argued that the direct recruits areentitled to rank senior in view of letter of allotment dated 5[th] October2009 as against the writ petitioners who are to be assigned seniorityfrom the date of announcement of results. It was argued that seniority isto be determined according to rotation of vacancies between the directrecruits and the promotees relying upon Office Memorandum datedMarch 4, 2014. It is further argued that Office Memorandum datedNovember 4, 1992 has no applicability for determining of seniority ofSub Inspectors as such Office Memorandum contemplates that the 2 Rules 3 (2013) 11 SCC 451

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Aseniority is delinked from confirmation. Such is not the issue in the presentcase. The Standing Order No. 1 of 2009 relied upon by the High Courtrelates to fixation of seniority in the cadre of Assistant Commandant inthe CRPF, thus no applicability to the determination of seniority in thelower rank of sub-inspectors.

B11. Mr. Nataraj referred to judgment of this Court in AmarjitSingh Ahluwalia (Dr.) v. State of Punjab & Ors.[4] to contend thatpresent case is of second kind of order of appointment of appellants asheld by this Court. Therefore, the date of allotment of the direct recruitsto the units i.e. October 5, 2009 is the date of appointment in view of theaforesaid judgment. Learned counsel referred to the following paragraphCfrom Amarjit Singh, wherein, this Court held as under:

“10. …First let us see what the words “date of appointment”mean. Are they synonymous with “date of the order ofappointment”? We think not. An order of appointment may beof three kinds. It may appoint a person with effect from theDdate he assumes charge of the post or it may appoint him withimmediate effect or it may appoint him simpliciter without sayingas to when the appointment shall take effect. Where the orderof appointment is of the first kind, the appointment would beeffective only when the person appointed assumes charge ofEthe post and that would be the date of his appointment. It wouldbe then that he is appointed. But in a case of the second kind,which is the one with which we are concerned since the orderdated April 8, 1964, appointed Respondents 3 to 19 to PCMSClass I “with immediate effect”, the appointment would beeffective immediately irrespective as to when the personFappointed assumes charge of the post. The date of hisappointment in such a case would be the same as the date ofthe order of appointment...”

12. Mr. Nataraj also relied upon another judgment in Union ofIndia & Ors. v. N.R. Parmar & Ors.[5]to contend that date ofGappointment would mean the date of first substantive appointment againstthe clear vacancy. Since the vacancies in the cadre were available whenthe direct recruits were allotted to different units, it is the date of allotmentwhich has been rightly taken into consideration to fix the seniority.

4 (1975) 3 SCC 503

5 (2012) 13 SCC 340

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13. Mr. Dhruv Mehta, learned senior counsel for the direct recruitssubmitted that date of allotment is the date of appointment, therefore,the appellants having been appointed on October 5, 2009 were rightlyassigned seniority as against the writ petitioners who were appointed onOctober 20, 2009 in terms of Rule 8(e) of the Rules. He argued that theStanding Order No. 1 of 2009 cannot be relied upon to determine seniorityof Sub Inspectors as it relates to Assistant Commandants of the CRPF.The selection process of Assistant Commandants is materially differentfrom the Sub Inspectors, therefore, such Standing Order could not betaken into consideration by the High Court to determine the seniority onthe basis of principles laid down in the said Standing Order. It is alsocontended that judgment in Rohitash Kumar relied upon by the HighCourt was in respect of seniority of Assistant Commandants in the BorderSecurity Force where the Rule itself contemplates that in case of directentrant, the date of appointment shall be the date of commencement oftheir training course. Therefore, the High Court was not justified inreferring to Rohitash Kumar when the Rules applicable to CRPF donot contemplate determination of seniority from the date ofcommencement of training.

14. The letter of appointment offered to the Sub Inspectors selectedthrough limited departmental examination has also been produced by theappellants. Such letter of appointment was issued in November, 2009and contemplates that the selected candidates will be required to undergobasic training of 20 weeks and, in case, they do not report by the stipulateddate, the offer of appointment will be deemed to be lapsed. Thus, theterms of appointment of the direct recruits and that of promotee SubInspectors are different.

15. On the other hand, Mr. Guru Krishnakumar, learned seniorcounsel appearing for the respondents/promotees, argued that thecontentions raised by the appellants are factually and legally notsustainable. It is argued that date of allotment cannot be treated to bethe date of appointment which is the basis of determination of seniorityin terms of Rule 8(e) of the Rules. It is argued that before direct recruitis appointed as a member of the CRPF, he has to read the statementcontained in the Recruitment Roll set out in the Schedule in terms ofSection 5 of the Act. The expression ‘Member of the Force’ is definedin Section 2(d) of the Central Reserve Police Force Act, 1949[6] and also AB

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ARule 6 of the Rules. Rule 6 contemplates that all the officers and menmentioned in Rule 5 shall be deemed to be the members of the Force.Rule 5 has two categories; first is Superior Officers and second is Rankand File for a Battalion of four companies. The Sub Inspector falls withinthe second category. It is contended that a direct recruit does not becomea member of the Force unless he takes an oath of affirmation as perBAppendix C set out in Rule 9 of the Rules and also furnishes HealthCertificate in terms of Rule 12. It is pointed out that the letter of allotmentof units dated October 5, 2009 was the communication to the InspectorGenerals of Police of the various units of CRPF giving names of theselected candidates with the stipulation that letter of appointment will beCissued by them. Such letter was not issued to any of the direct recruits.In pursuance of the directions contained, the letter of offer of appointmentwas issued to the Appellants and thereafter on completion of medicaltest and other requirements, the training started in January, 2010. It isargued that after taking various steps such as Health Certificate, reportingfor duty, oath of affirmation as per recruitment rules, the direct recruitsDbecame members of the Force and, therefore, in terms of Rule 8(e) ofthe Rules, their seniority is to be determined from the date of appointmentwhich is incidentally close to the date of starting training. Suchappointment is after the promotees who commenced their training.

16. Some of the relevant conditions from the Act and Rules referredEto by Mr. Guru Krishnakumar read as under:

“The CENTRAL RESERVE POLICE FORCE ACT, 1949

2(d). “member of the force” means a person who has beenappointed to the Force by the Commandant , whether before orFafter the commencement of this Act, and in section 1,3,6,7,16,17,18,and 19 includes also a person appointed to the force by the CentralGovernment whether before or after such commencement; xxxxxx

5. Enrolment. - Before a person is appointed to be a member ofGthe force, the statement contained in the recruiting roll set out inthe Schedule shall be read out and if necessary, explained to himin the presence of an officer appointed under sub-section (1) ofsection 4 and shall be signed by such person in acknowledgementof its having been so read out to him; H

Provided that any person who has for a period of six monthsserved with the force shall on appointment to the force thereafter,be deemed to be a member of the force notwithstanding thatprovisions of this section have not been complied with in his case.

THE CENTRAL RESERVE POLICE FORCE RULES,1955

5. Composition of the Force. – A. Battalion other than SignalsBattalion

(1) The Force shall be constituted as follows:

(a) Superior Officers:

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(b) Rank and file for a Battalion of four companies…”

12. Health Certificate. - No candidate shall be enrolled unlesshe obtains a health certificate in the prescribed form CRP-I signedby Medical Supdt. and Staff Surgeon, Central Reserve PoliceHospital, Neemuch, or by a Civil Surgeon or by a RecruitingMedical officer.”

17. Mr. Balasubramanium, learned senior counsel appearing onbehalf of Union of India, submitted that Section 5 relates to enrollmentof Constables alone and the enrollment of Sub Inspectors is not coveredby Section 5 of the Act.

18. We do not find any merit in the arguments raised by learnedcounsel for the appellants and Mr. Balasubramanium. Section 4 of theAct provides for appointment of superior officers by the CentralGovernment, whereas the members of the Force other than superiorofficers fall within Section 5 alone. Section 5 contemplates that before aperson is appointed to be a member of the Force, he shall sign thestatement contained in the recruitment roll set out in the Schedule. Section5 does not restrict its scope and applicability only to the Constables andto the persons appointed by the Commandant. In terms of Section 2(d)of the Act, it includes a person who has been appointed by theCommandant and also a person appointed by the Central Government.Still further, Rule 6 contemplates that all officers and men mentioned in A

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ARule 5 shall be deemed to be the members of the Force. The SubInspectors are part of Rank and File for a Battalion of four companies.Therefore, the argument that Section 5 of the Act is not applicable to thedirect recruits is patently untenable.

19. The letter dated October 5, 2009 is not addressed to theBappellants- direct recruits. It is addressed to Inspector General of Policeof the various units of CRPF. By such communication, the selectedcandidates have been allotted to various units to facilitate issue of letterof appointment by the respective units. Some of the appellants weregiven letter of appointment on October 15, 2009 whereas appellant No.C1 have been given letter of appointment on October26, 2009. This is aletter of offer of appointment which is required to be accepted by thecandidates in terms of clause 4 as reproduced above. The offer of letterof appointment further contemplates that on joining, they would begoverned by the Act and the Rules, therefore, till such time they join in Dpursuance of the offer of appointment, the appellants are not subject tothe provisions of the Act and the Rules. As per Rule 12 of the Rules, nocandidate shall be enrolled unless he obtains a Health Certificate in theprescribed form. The Health Certificate was called upon from theappellants in the letter of offer of appointment. Therefore, they will bedeemed to be members of the Force only on furnishing of HealthECertificate and acceptance of the offer of appointment before theyproceed for training.

20. The judgment in Rohitash Kumar relied upon by the HighCourt is not applicable to the members of the CRPF as the date ofFappointment is not the date of commencement of training in the Rules.The BSF Rules are materially different from the Rules applicable to themembers of CRPF. Rule 8(e) of the Rules clearly stipulates that a personpromoted to a higher rank and a person recruited direct to the same rankshall have their seniority from the date of appointment. Therefore, aperson appointed by way of direct recruitment or promotion to the postGof Sub Inspector, his seniority will be fixed as per the date of appointment.Only in the case that both direct recruits and promotees are appointedon the same date, promotees were to rank senior. Since, the date ofappointment is not 5[th] October, 2009 but the date they completed theformalities after accepting the offer of appointment, their date ofH

appointment is later than the date of promotion of the promotee sub-inspectors.

appointment is later than the date of promotion of the promotee sub-inspectors.

21. The Standing Order No. 1 of 2009 deals with seniority ofAssistant Commandants. Such Standing Order is in relation to Rule 8(b)of the Rules. It may be stated that Rule 8(a) deals with seniority ofSuperior Officers; Rule 8(b) deals with inter se seniority of SuperiorOfficers; whereas Rule 8(c) deals with seniority of person promoted tothe rank of subordinate or under officer. It is Rule 8(e) of the Ruleswhich is applicable in the present case where the direct recruits areappointed to the same rank as also by the candidates by way of limitedcompetitive examination. Therefore, such Standing Order could not berelied upon to determine the different set of members of the Force. Wealso find that the Office Memorandum dated June 24, 1978 referred toby Mr. Nataraj is not applicable to the members of the Force asadmittedly, there is no roster for the purpose of recruitment and seniority.Such Office Memorandum deals with starting point in the recruitmentroster for the purpose of seniority. Still further, the Office Memorandumdated March 4, 2014 again deals with fixation of seniority where there isroster of vacancies.

22. We also find that the second kind of appointment as explainedin Amarjit Singh has no application in the facts of the present case. Infact, it is the first kind where a person is appointed with effect from thedate he assumes charge of the post, would be applicable in the case inhand. The offer of appointment was not with the immediate effect but,the candidate was required to convey their acceptance and also furnishingof medical certificate. Similarly, N.R. Parmar is a case of roster andthe rules contemplating year of recruiting. However, there is no suchpari materia rule which may make the ratio of the said judgment relevantin the present case.

23. The judgment in P. Sudhakar Rao & Ors. v. U. GovindaRao & Ors.[7] is not applicable in the facts of the present case as in viewof Rule 8(e) of the Rules, the seniority is required to be determined fromthe date of appointment alone. The judgments referred to by the learnedcounsel for the parties are not applicable to the issues raised in the present A

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24. In view of the discussion above, we do not find any merit inthe present set of appeals. The same are dismissed but for the reasonsother than that which weighed with the High Court.

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Ankit Gyan

Appeals dismissed.

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