Holding

The respondent is entitled to absorption in the CRPF cadre with effect from 20 September 1985, with seniority as Commandant from that date, while earlier service is creditable only for pension purposes.

Summary

R.C.D. Souza, a retired Indian Army officer, was recruited as an Assistant Commandant in the Central Reserve Police Force (CRPF) under Rule 105(3‑A) and later promoted on a temporary basis to Commandant. In 1976 he was informed that, under the then‑applicable Rule 107(2) of the CRPF Rules, he was not eligible for permanent absorption, and his representation to the President was rejected. He obtained a writ order from the Andhra Pradesh High Court directing his absorption, which the High Court and Division Bench upheld. The Supreme Court examined the effect of the amendment to Rule 107(2) made effective 20 September 1985, which treats re‑employed ex‑army officers as direct recruits with seniority fixed, thereby permitting absorption. The Court held that Souza is entitled to absorption from the date the amended rule came into force, with seniority as Commandant from that date, while his earlier service counts only for pension purposes. Consequently, the High Court's direction to absorb him from the date of his original appointment was set aside.

Issues considered

Whether a retired army officer recruited under Rule 105(3‑A) of the CRPF Rules and serving on a temporary basis is entitled to permanent absorption under Rule 107(2) as originally framed.
Whether the amendment to Rule 107(2) effective 20 September 1985 confers the right of absorption on the respondent and from what date such absorption should take effect.

Legislation cited

Central Reserve Police Act, 1949
Central Reserve Police Force Rules, 1955s. Rule 105(3‑A), s. Rule 107(2) (as amended)

Subjects

absorptiontemporary serviceCRPFretired army officerrule amendmentpensionsenioritycivil service recruitment

Judgment

UNION OF INDIA &ANR.
A
v.
R.C.D.' SOUZA
\I ...
FEBRUARY 20, 1987

B [R.S. PATHAK CJ. & RANGANATH MISRA, J.]

Central Reserve Police Act 1949/Central Reserve Police Force
Rules 1955-Rules 105 (3-A) and 107-Retired Army Officer-Recrui- -I •
ted as Assistant Commandant-Later promoted as Commandant on
temporary basis-Whether entitled to absorption on permanent basis-
C Section 107(2) as amended-Effect of.

The respondent had been recruited as Assistant Commandant in
the C.R.P.F. under Rule 105(3-A) of the Central Reserve Police Force
Rules, 1955 on the footing that he was a retired Army Officer. He was
promoted on temporary basis as Commandant on the basis of selection.
D His promotional appointment as Commandant was extended from time
to time. On being informed by the Authorities that he was not entitled
for absorption in the Force in view of Rule 107(2) of the Rules, he made
a representation to the President. The said representation having been
rejected by the President, he filed a writ petition in the High Court for a
direction for his absorption in the Force. A Single Judge of the High
E Court allowed the writ petition. The Division Bench also upheld the +--
decision of the Single Judge. Hence this appeal by special leave.

During the pendency of the appeal, sub-rule 2 of Rule 107 was
substituted with effect from 20th September 1985. It provides that any
officer re-employed after he has retired from Army prior to the attain-
F ment of the age of superannuation in the civil post, will, if appointed to
civil post be treated as direct recruit and his seniority in the grade
fixed accordingly. +'
Allowing the appeal by the appellant in part.
HELD: (1) Sub-rule(2) of Rule 107 of the Rules as amended in
G terms applies to the respondent. He is entitled to absorption in the cadre
with effect from the date the amended rule came in force and he is,
therefore, to be confirmed in the post of Commandant and absorbed in
the appropriate cadre from that date. He would, however, be entitled to -t---.
credit of continuous service for the entire period of service as Assis-
tant Commandant and Commandant for the limited purpose of
H pension. [3868-C; F]
382
U.0.1. v. R.C.D.' SOUZA 383

(2) Rule 107(2) made under the Central Reserve Police Act, 1949
A
prior to the amendment of 1985 clearly provided that the service shall
be temporary and rules and orders applicable to Central Government
employees in temporary service would apply. The scheme of the rule is
indicative of the position that in regard to officers recruited under Rule
105(3-A), benefit of absorption was not admissible. Absorption on per-
manent basis would run counter to the scheme of the rules. ·Therefore, B
the direction of the High Court to absorb the respondent from the date
of his appointment stands set aside. [385E-H)

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 145
of 1979.

From the Judgment and Order dated 19.7.78 of the Andhra c
I
; i Pradesh High Court in Writ Petition Appeal No. 137/1978.

A. Sobba Rao, P. Parmeshwaran and Ms. S. Relan for the
Appellants.
D
K. Ram Kumar for the Respondent.

The Judgment of the Court was delivered by

RANGANATH MISRA, J. This appeal by special leave is against
the judgment of the Andhra Pradesh High Court in a writ appeal E
agrising out of the judgment of a learned Single Judge in an applica-
tion under Article 226 of the Constitution.
-)
The respondent on taking premature retirement on compassion-
ate ground from the Indian Army at the age of 33, was offered
appointment as Assistant Commandant in the Central Reserve Police F
Force (CRPF for short) and was given appointment initially for a
period of three years. Early in 1970 he was promoted on temporary
basis as Commandant on the basis of selection. In October 1970, the
President sanctioned his continued re-employment for one year as
Commandant. The respondent was asked to opt for absorption. In the
meantime, his promotional appointment as Commandant was exten- G
ded from time to time. In June 1976, he was informed by the Director
General of the C.R.P.F. that in view of the Rule 107 of the Central
Reserve Police Force Rules, 1955, he was not entitled for absorption
. in the Force. A representation of the respondent was rejected by the
President. Thereupon, he applied to the Andhra Pradesh High Court
under Article 226 of the Constitution for a direction for his absorption H
384 SUPREME COURT REPORTS [1987] 2 S.CR.

A in the Force. The learned Single Judge referred to Rule 105 which
deals with recruitment and Rule 107 dealing with tenure and on the )· ~
basis that there was nothing in these rules to disentitle a retired or
released army officer from absorption, directed the appellants to con-
sider the respondent's permanent absorption. The Division Bench up-
held the direction and dismissed the appeal of the appellants.
B
Rule 105(3-A) dealing with recruitment, inter alia, provides that
the post of Assistant Commandant shall be filled:

" (i) xxx xxx xxx xxx

(ii) by re-employment of retired or released Army Offi-
c cers or substantive Majors of the Territorial Army or
Indian Police Service Officer (Senior Scale) or with
four years of service as such or State Police Officers
holding the posts of Superintendent of Police or equi-
valent Posts preferably with experience of Armed
D Police duties or Assistant Commandants of the Cen-
tral Reserve Police Force or

(iii) xxx xxx xxx xxx."

Indisputably the respondent had been recruited as Assistant Com-
E mandant on the footing that he was a retired/released Army Officer.

Rule 107(2) dealing with tenure then provided:

"In the case of retired/released Army Officers, they will be
under re-employment for an initial period of one year, ex-
F tendable by mutual consent for one year, at a time subject -+ •
to premature termination should administrative exigency,
and or unsuitability or any other unforseen factors so de-
mand. The service shall be temporary subject to all rules and
orders applicable to the Central Government employees in
temporary service in general." (underlining is emphasised)
G
Sub-rule (2) has been substituted with effect from 20th
September, 1985. The notification of that date clearly provides that
the amendment comes into force on the date of publication in the
official gazette. The amended rule runs thus:

H "(a) In the case of officers re-employed after they had
U.0.1. v. R.C.D.' SOUZA [MISRA, J.] 385

retired/discharged/released from Army prior to the attain· A
ment of age of superannuation in the civil posts, will, 'if
appointed to civil posts, be treated as direct recruits and
their seniority in the grade fixed accordingly as under:

(i) the inter se seniority of persons so re-employed shall
B
be determined in acn,rdance with the orders of their
selection;

(ii) the relative seniority of persons so re-employed in re-
lation to direct recruits and promotees shall be deter-
mined on the basis of chronology of selection;
c
(iii) their confirmation and promotion to higher posts
> -f would take place with reference to seniority so fixed
subject to fulfilment of other laid down conditions re-
garding probation.
D
(b) The ex-army officers re-employed after they have at-
tained the age of superannuation in civil posts shall not
form part of the cadre and would be treated as if appointed
on contract basis and such re-employments on contract
basis shall be extendable on year to year basis."
E
Rule 107(2) made under the Central Reserve Police Act, 1949
prior to the amendment of 1985 clearly provided that the service shall
be temporary and rules and orders applicable to Central Government
employees in temporary service would apply.

It is true that Rule 105(3-A} dealing with the post of Assistant
F
Commandant prescribes three alternate modes of recruitment. Rule
107 provided that in case of recruitment by the second mode in Rule
105(3-A} temporary status only would be conferred. Absorption on
permanent basis would run counter to the scheme of the rules. The
High Court has found as a fact that the departmental authorities called
for the option of the respondent for absorption. Such a step contrary
G
to the statutory rules would not operate as an estoppel nor confer any
right to claim absorption. The scheme of the rule is indicative of the
position that in regard to that category of officers benefit of absorption
was not admissible and we are inclined to agree with the submission of
the appellants that the High Court was in error in saying that there was
nq_thing which stood in the way of absorption. H
386 SUPREME COURT REPORTS [1987] c S.CR.

A It is a fact that the respondent has been given a promotion and in
the promotional post he has worked for about 16 years. On the basis of
such promotion on temporary basis the respondent would not be en-
titled to absorption as well. The respondent was being continued in the
promotional post by orders of the President from time to time which is
clearly indicative that the arrangement was on temporary basis.
B
Even though under sub-rule (2) of Rule 107 as it stood, the
respondent was not entitled to claim absorption, he is certainly j
entitled to the benefit of the amended provision from 20th September,
1985. Sub-rule (2) as amended in terms applies to him and counsel for
the appellants has also accepted this position. Therefore, the respon-
C dent is entitled to absorption in the cadre with effect from the date the
amended rule came into force and he is, therefore, to be confirmed in
the post of Commandant and absorbed in the appropriate cadre from
that date. Admittedly the respondent has put in continuous service of
+'
more than 20 years in the Force and it would be totally unjustified to
D deprive him of credit of service. Though he may not be entitled to
other advantages of such service prior to the date of absorption, in our
view, he should be entitled to count that period for pension entitle-
ment. We, therefore, allow the appeal to the extent that the direction
of the High Court to absorb the respondent from the date of his
appointment stands set aside and in its place the respondent shall be
E entitled to absorption with effect from 20th September, 1985. His
seniority in the post of Commandant shall run from that date and he
would.be entitled to all service advantages on the basis of such absorp-
tion from September 1985. He would, however, be entitled to credit of
continuous service for the entire period of service as Assistant
Commandant and Commandant for the limited purpose oi pension.
F
Learned counsel for the respondent pointed out in course of
argument that there were some similarly placed officers as the respon-
dent but they have been given the henefit of absorption. This is a
matter which the appellants should look into and anomaly on such
score should be considered by them. In the absence of such officers, if
G any, we are not inclined to give any direction to deprive them of any
benefit which may have been obtained by them. Both parties are
directed to bear their own costs throughout.

M.L.A. Appeal allowed.