PETITIONER: UNION OF INDIA & ORS. Vs. RESPONDENT: BINOD BIHARI BEHERA DATE OF JUDGMENT14/11/1995 BENCH: VERMA, JAGDISH SARAN (J) BENCH: VERMA, JAGDISH SARAN (J) VENKATASWAMI K. (J) CITATION: 1995 SCC Supl. (4) 728 JT 1995 (8) 223 1995 SCALE (6)454 ACT: HEADNOTE: JUDGMENT:
JUDGMENT
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 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
vendered his resignation, which was accepted by the Deputy
Inspector-General (D.I.G.) of the Force on 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 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 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 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 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 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 be order specify
in this behalf.”
Section 22 of the Act confers the rule making power on
the Central Government for carrying out the purposes of this
Act. The Central Industrial Security Force Rules, 1969 (for
short `the Rules’) have been made by the Central Government
in exercise of this power. Rule 3-1 relates to composition
of the Force comprising of `supervisory officers’ and
`members of the Force’, wherein, Deputy Inspector-General is
named as a supervisory 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 :-
“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 made by the
Commandant.”
Obviously, the first point has to be decided with
reference to Section 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 22 of the Act. The proviso to Section 5
permits the Central Government by order to specify in this
behalf such other supervisory office 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 members of the Force on the Director General
and permits the Central Government by an order made in this
behalf to specify any other supervisory officer also to
exercise that power of appointment of the enrolled members
of the Force. Thus there can be no doubt that if tho 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, therefore, 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 IV relating to the `recruitment to
the Force’. Rule 11 clearly empowers the Deputy Inspector-
General to make appointments to the post of Inspector by
virtue of which the Deputy Inspector-General was competent
to make the appointment of the respondent end, 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” so that if there
be an 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, 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 those principles. According
to the High Court, the proviso to Section 5 requires
conferment of this power on a supervisory 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 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 treated as not satisfying the
requirement of an order of the Central Government
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
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.
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 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 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
respondent was, therefore, erroneously accepted by the High
Court.
The other contention of the respondent was also wrongly
accepted by the High Court. Rule 58 of the Central
Industrial Security Force Rules, 1969 is as under :-
“58. Re-enlistment.- A member of the
Force who has been dismissed 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.”
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 reinstatement 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. According to a note made by the D.I.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
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 statements made by the
respondent. The High Court has then said that it is not
satisfied about the due application of mind by the D.I.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 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 factors could be
called extraneous or nonexistent. 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 discretion 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 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 respondent’s writ petition filed in
the High Court. No costs.