UNION OF INDIA AND ORS.versusBINOD BIHARI BEHERA

                    UNION OF INDIA AND ORS.                                  A
                               v.
                     BINOD BIHARI BEHERA

                         NOVEMBER 14, 1995

            [J.S. VERMA AND K. VENKATASWAMI, JJ.]
                                                                             B

     Service Law

      Central Industrial Security Force Act, 1968 : Section 5 proviso and
Section 22.                                                                  c
      Central Industrial Security Force Rules, 1969 : Rules JA, 11 and 58.

       Central Industrial Security Force-Sub-Inspectol'-Resignation-Accep-
tance by Deputy Inspector General-Request for withdrawal of resignation
and re-enlistment in Force-Pennissibility of-Held : Deputy !nspector D
General was competent to appoint Sub-Inspector and thus empowered to
accept resignation-Withdrawal of Resignation after acceptance held not
pemtissible-Power of appointment under Proviso to Section 5 can be exer-
cised in tenns of the Rule framed under the Act. _
                                                                             E
     Enlistment-Refusal of-Relevant factors to support refusal taken into
account-Held it was not an arbitrary exercise of power under Rult: 58.

      The respondent, a Sub-Inspector in the Central Industrial Security
Force, submitted his resignation which was accepted by the Deputy Inspec-
tor General of the Force on 17.10.1984. On 4.12.1984, he applied for F
withdrawal of his resignation and alternatively prayed for his re-enlist-
ment in the Force but both his prayers were rejected. A writ petition filed
by him was allowed by the High Court on the ground that (i) there was no
valid acceptance of the resignation before its withdrawal because the
Deputy Inspector General was not competent authority under the rules to G
accept it; and (ii) the refusal of sanction for re-enlistment by Deputy
Inspector General was arbitrary. Against the decision of the High Court
an appeal was preferred before this Court.

     Allowing the appeal and setting aside the impugned judgment of the
High Court, this Court                                                       H
                                    181
    182                  SUPREME COURT REPORTS [1995) SUPP. 5 S.C.R.

A         HELD : 1. The acceptance of respondent's resignation by the Deputy
    Inspector General was valid. It was not open to the respondent to withdraw
    his resignation after it has been duly accepted by the Deputy Inspector
    General. [186-G]

           2. Section 5 of the Central Industrial Security Force Act, 1968
B
    prescribes for appointment of the enrolled members of the Force by
    Director General, who shall exercise that power in accordanc·e with the
    Rules made under the Act. The manner of exercise of power of appointment
    conferred on the Director General is regulated by the Central Industrial
    Security Force Rules, 1969 framed under Section 22 of the Act. The proviso
C   to Section 5 permits the Central Government by order to specify in this
    behalf such other supervisory officer as may be specified to exercise the
    power of appointment under the Section. Rule 11 fully satisfies the require-
    ment of the proviso to Section 5. It clearly empowers the Deputy Inspector
    General to make appointments to the post of Inspector by virtue of which
D   the Deputy Inspector-General was competent to make the appointment of
    the respondent and, therefore, was also competent to accept his resigna-
    tion. [184-D-E; 185-A; C-D]

          3. There is a cle!'r fallacy in the view taken by the High Court that
    the proviso to Section 5 requires conferment of power of appointment on
E   a supervisory officer by an order made by the Central Government and
    Rule l;t. does not satisfy this requirement. The status of a rule framed by
    the Central Government in exercise of the power conferred by Section 22
    of the Act for carrying out purposes of the Act, which in particular and
    without prejudice to the generality of that power enables to provide by
F   rules for regulating the conditions of service of members of the Force,
    cannot have lesser efficacy in law or be treated as not satisfying the
    requirement of an order of the Central Government contemplated by the
    proviso in Section 5. [186-B-E]

G         4. The only judicial scrutiny required for deciding whether refusal of
    the sanction for re-enlistment of the respondent as a member of the Force
    was arbitrary, was to see whether the record disclosed existence of relevant
    facts to support the rejection of sanction. The High Court perused the
    relevant files and has referred to the notes therein made by the Deputy
    Inspector General justifying refusal of the sanction for re-enlistment. The
H   reason assigned to support refusal of sanction for re-instatement was that
                  U.0.1. v. B.B. BEHERA(J.S. VERMA,J.]                 183

the service record of the respondent was not satisfactory. It was also        A
pointed out that this prayer of the respondent had been considered twice
earlier and rejected after which the respondent had not put forth any fresh
ground. None of these factors could be called extraneous or non-existent.
Therefore, the exercise of discretion by the Deputy Inspector General
under Rule 58 could not be termed as arbitrary. (187-G-H; 188-A-B]
                                                                              B
        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 10304 of
1995.

     From the Judgment and Order dated 30.3.92 of the Orissa High
Court in O.J.C. No. 543 of 1988.
                                                                              c
      P.P. Malhotra, S.A. Matto, P. Parmeswaran and Ms. A Subhashini
for the Appellants.

        Vinoo Bhagat for the Respondent.
                                                                              D
        The Judgment of the Court was delivered by

        J.S. VERMA, J. Leave granted.

      This appeal by special leave is against the Judgment dated 30th
March, 1992 of the Division Bench of the High Court of Orissa, by which       E
the Writ Petition (OJC No. 543 of 1988) filed by the respondent has been
allowed.

       The respondent was a Sub-Inspector in the Central Industrial
Security Force (for short 'the Force'). He tendered his resignation, which
was accepted by the Deputy Inspector-General (D.J.G.) of the Force on F'
17/10/1984. The respondent then, on 4/12/1984 applied to withdraw his
resignation and in the alternative prayed for re-enlistment in the Force.
Both these prayers were rejected. The respondent, then filed the writ
petition under Article 226 of the Constitution in the High Court, which has
been allowed by the impugned judgment. Hence this appeal by special G
leave.

       Two grounds were urged in the High Court in support of the writ
petition. The first ground was that the D.I.G. was not the competent
authority under the relevant rules to accept the resignation on account of
which there was no valid acceptance of the resignation before its             H
    184                   SUPREME COURT REPORTS [1995) SUPP. 5 S.C.R.

A   withdrawal on 4/12/1984. The other contention was that the rejection of the
    prayer for re-enlistment as a member of the Force after acceptance of the
    resignation was an arbitrary exercise of the discretionary power conferred
    by the relevant rules. The High Court has accepted both the contentions.
    However, in view of the acceptance of the first contention the High Court
    has directed reinstatement of the respondent on the payment of one-third
B   arrears of salary together with the other service benefits.

          The first question before us relates to the competence of the D.I.G .
  . of the Force to accept the resignation of the respondent. The relevant
    provisions with reference to which the point has to be decided are Section
C 5 of the Central Industrial Security Force Act, 1968 (for short 'the Act')
    and Rule 11 of the Rules framed under the Act. Section 5 reads as under:

             "5. Appointment of members of the Force. - The. appointment of
             the enrolled members of the Force shall rest with the Director-
             General who shall exercise that power in accordance with rules
D
             made under this Act.

                 Provided that the power of appointment under this section may
             also be exercised by such other supervisory officer as the Central
             Government may by order specify in this behalf."
E
    Section 22 of the Act confers the rule making power on the Central
    Government for carrying out the purposes of this Act. The Central In-
  . dustrial Security Force Rules, 1969 (for short 'the Rules') have been made
    by the Central Government in exercise of this power. Rule 3-A relates to
F composition of the Force comprising of 'supervisory officers' and 'members
    of the Force', wherein, Deputy Inspector-General is named as a super-
    visory officer while Inspector and Sub-Inspector, etc., are specified as the
    members of the Force. Chapter IV of the Rules relates to 'Recruitment
    to the Force' and therein Rule 11 is as under :

G            "11. Powers of appointment. - Subject to the provisions of the Act
             and these rules; appointments to the posts of Inspector, shall be
             made by the Deputy Inspector-General concerned and to the ranks
             of Sub-Inspector, Assistant Sub-Inspector, Head Security Guard,
             Senior Security Guard, Security Guard and Followers shall be
H            made by the Commandant."
                 . U.0.1. v. B.B. BEHERA [J.S. VERMA, J.]                185

      Obviously, the first point has to be decided with reference to Section A
5 of the Act and Rule 11 as quoted above. Section 5 prescribes for
appointment of the enrolled members of the Force by Director General,
who shall exercise that power in accordance with the rules made under the
Act. The manner of exercise of power of appointment conferred on the
Director General is regulated by the aforesaid Rules framed under Section
                                                                             B
22 of the Act. The proviso to Section 5 permits the Central Government
by order to specify in this behalf such other supervisory officer as may be
specified to exercise the power of appointment under the Section. In other
words, Section 5 confers the power of appointment of the enrolled mem-
bers of the Force on the Director General am;l permits the Central Govern-
ment by an order made in this behalf to specify any other supervisory           c
officer also to exercise that power of appointment of the enrolled members
of the Force. Thus there can be no doubt that if the Deputy Inspector-
General of the Force was so empowered by the Central Government in
accordance with the proviso to Section 5 then he was the competent
authority to appoint a Inspector or Sub-Inspector of the Force and, there- D
fore, was the competent authority to accept his resignation. The fact that
the respondent was an enrolled member of the Force and the D.I.G. of the
Force is supervisory officer, is clear from Rule 3-A and is not disputed.

       Rule 11 quoted above relates to the 'powers of appointment' in
Chapter V relating to the 'recruitment to the Force'. Rule 11 clearly           E
empowers the Deputy Inspector-General to make appointments to the post
of Inspector by virtue of which the Deputy Inspector-General was com-
petent to make the appointment of the respondent and, therefore, was also
competent to accept his resignation. The opening words of Rule 11 merely
say that this power is "subject to the provisions of the Act and these rules"   F
so that if there be any contrary provision in the Act and these Rules, that
has to be taken note of. There is no contrary or inconsistent provision in
the Act, wherein the proviso in Section 5 clearly permits the conferment
of this power on a supervisory officer and there is no inconsistent provision
in the Rules. Ordinarily this discussion should be sufficient to dispose of
this point. However, the High Court has taken a different view and,             G
therefore, a consideration of the reason given by the High Court for a
different view requires consideration.

     The High Court has referred to certain propositions of law to which
no exception can be taken but the error committed is in application of          H
    186                  SUPREME COURT REPORTS [1995] SUPP. 5 S.C.R.

A   those principles. According to the High Court, the proviso to Section 5
    requires conferment of this power on a superV:isory officer by an order
    made by the Central Government and Rule 11 framed in exercise of its
    power under Section 22 of the Act does not satisfy this requirement.

          In our opinion, there is a clear fallacy in the view taken by the High
B Court. The status of a rule framed by the Central Government in exercise
    of the power conferred by Section 22 of the Act for carrying out purposes
    of the Act, which in particular and without prejudice to the generality of
    that power enables to provide by rules for regulating the conditions of
    service of members of the Force, cannot have lesser efficacy in law or be
c   treated as not satisfying the requirement of an order of the Central Govern-
    ment contemplated by the proviso in Section 5. The fallacy in the view
    taken by the High Court is that it has assumed that the mode described by
    the proviso in Section 5 of conferment of this power on a supervisory
    officer by the Central Government is not satisfied by Rule 11 framed in
    exercise of the rule making power of the Central Government under
D   Section 22 of the Act or that a mere executive order sans the power
    conferred on the Central Government by Section 22 of the Act is a
    different and the only manner of exercise of this power given by the proviso
    in Section 5 of the Act. It is this fallacy which has led to an erroneous
    application of the principles mentioned in the impugned judgment to the
    facts of this case.
E
          We have no doubt that Rule 11 of the Central Industrial Security
    Force Rules, 1969 framed by the Central Government in exercise of the
    rule making power conferred on the Central Government by Section 22 of
    the Act fully satisfies the requirement of the proviso in Section 5 of the
F   Act; the D.I.G. of the Force was duly empowered in the manner prescribed
    by law to exercise the power of appointment of Inspector in the Force; and,
    therefore, the D.I.G. of the Force was competent to accept the resignation
    submitted by the respondent. Accordingly, acceptance of respondent's
    resignation by the D.I.G. on 17/10/1984 was valid and it could not be
    withdrawn by the respondent subsequently on 4/12/1984. The attempt made
G   by the respondent to withdraw his resignation after it has been duly
    accepted by the D.I.G., was ineffective. The first contention of the respon-
    dent was, therefore, erroneously accepted by the High Court.

          The other contention of the respondent was also wrongly accepted
H by the High Court. Rule 58 of the Central Industrial Security Force Rules,
                 U.0.1. v. B.B. BEHERA[J.S. VERMA, J.)                 187

1969 is as under :                                                           A

        "58. Re-enlistment. - A member of the Force who has been dis~
        missed therefrom shall not be re-enlisted. However, a member of
        the Force who has resigned may be re-enlisted with the sanction
        of the Deputy Inspector-General."
                                                                             B
       The respondent having resigned as a member of the Force may have
been re-enlisted with the sanction of the Deputy Inspector General. The
contention of the respondent which found acceptance by the High Court
is that the refusal of the sanction for re-enlistment by the D.I.G. was
arbitrary. Obviously, the reason assigned to support refusal of sanction for C
re-instatement was that the service record of the respondent was not
satisfactory. It was also pointed out that this prayer of the respondent had
been considered twice earlier and rejected after which the respondent had
not put forth any fresh ground requiring a change of the opinion. The High
Court perused the relevant files and has referred to the notes therein. D
According to a note made by the D.l.G. on 24/6/1985 the respondent had
made some false statements in his application. All this is mentioned in the
impugned judgment itself. Assuming this course was permissible, in view
of the earlier unsatisfactory conduct of the respondent being a ground for
rejection of the same prayer twice earlier and there being no fresh ground
put forth for reconsideration, this note of the D.I.G. on 24/6/1985 also E
contained a relevant fact to justify refusal of the sanction for re-enlistment.
However, the High Court, in our opinion erroneously, was not satisfied and
it embarked upon a further inquiry into the correctness of those notes by
enquiring into the fallacies of the statement made by the respondent. The
High Court has then said that it is not satisfied about the due application F
of mind by the D.l.G. in rejecting a prayer for re-enlistment. It has,
accordingly, come to the conclusion that the exercise of the discretion by
the D.I.G. is arbitrary. In our opinion, the view taken by the High Court is
not justified.

       The only judicial scrutiny required for deciding whether refusal of G
the sanction for re-enlistment of the respondent as a member of the Force
was arbitrary, was to see whether the record disclosed existence of relevant
facts to support the rejection of sanction. The above facts disclosed from
the record which the High Court examined, are undoubtedly relevant.
factors to support refusal of the sanction by the D.I.G. None of these H
    188                   SUPREME COURT REPORTS (1995] SUPP. 5 S.C.R.

A   factors could be called extraneous or non-eXistent. Moreover, the prayer
    for re-enlistment was a reiteration of the same prayer which had been
    rejected twice earlier without putting forth any fresh ground to justify the
    reconsideration. It is difficult to appreciate how the exercise of the discre-
    tion by the D.I.G. under Rule 58 could be termed as arbitrary, on these
    facts. The other contention of the respondent is equally devoid of any
B
    merit. There was thus no ground on which the respondent could be granted
    any relief in his writ petition.

         For the aforesaid reasons, the appeal is allowed. The impugned
    judgment of the High Court is set aside resulting in the dismissal of the
C   respondent's writ petition filed in the High Court. No costs.

    T.N.A.                                                       Appeal allowed~