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Union Of India & Others v. Smt. Sarvesh Devi - SPECIAL APPEAL DEFECTIVE No. 186 of 2006  RD-AH 7002 (30 March 2006)
Special Appeal No.186 of 2006
Director General, Central Reserve Police Force and Others
Smt. Sarvesh Devi
Hon'ble Ajoy Nath Ray, CJ.
Hon'ble Ashok Bhushan, J.
Heard Sri K.C. Sinha, learned counsel appearing for the appellants-respondents and the learned counsel appearing for the respondent-writ petitioner.
This appeal has been filed against the judgment and order dated 9.11.2005 passed by a learned Single Judge disposing of the writ petition filed by the respondent-writ petitioner, quashing the order passed by the appellants-authorities rejecting the application of the respondent-writ petitioner seeking compassionate appointment. Learned Single Judge by the said judgment has remitted the matter back to the authority concerned to consider and decide the matter again.
Brief facts necessary for deciding the matter are; the husband of the respondent-writ petitioner Late Constable D.N. Choubey died on 15.12.2001, while working in Central Reserve Police Force. After the death of the husband, an application was made on 17.9.2002 by the respondent-writ petitioner seeking compassionate appointment. The claim of the respondent-writ petitioner was rejected by the appellants-respondents on the ground that her date of birth is 5.7.1971 and she on the date of application was 31 years, 2 months and 12 days old, which is beyond the upper age limit prescribed for the Peon, i.e. 18 to 25 years. A reference has been made to the Rules dated 4.8.1992, namely, Central Reserve Police Force Naik (Gestetner Operator), Constable (Daftry), Follower (Farrash), Follower (Safai Karamchari) and Follower (Peon) Recruitment Rules, 1992, which prescribes the age limit.
The appellants have also relied on a standing order No.5 of 2001 dated 6.6.2001 issued by the Director General, Central Reserve Police Force for regulating the compassionate appointment. The said decision provided that the relaxations are permissible with regard to compassionate appointment upto maximum two years with regard to age from the date of application.
Challenging the said order of the appellants-respondents rejecting the application, the writ petition was filed by the respondent-writ petitioner in this Court. Learned Single Judge took the view relying on the Government Order issued by the Government of India, Department of Personnel and Training bearing O.M. No.14014/6/94-Estt. (D), dated 9.10.1998 that Clause 6 (B) (a) provides relaxations of the age by the competent authority. Relying on the said Clause, the learned Single Judge took the view that the reason given by the appellants-respondents is erroneous, and since the writ petitioner-respondent is entitled for consideration of relaxation in age, the matter was sent back.
Learned counsel for the appellants-respondents challenging the order contended that Clause 6 (B) (a) of the Government Order dated 9.10.98 issued by the Government of India is not applicable since the procedure for compassionate appointment will be governed by the decision taken by the Director-General, Central Reserve Police Force, vide its Standing Order dated 6.6.2001, under which maximum relaxation permissible is only two years from the date of application.
Learned counsel appearing for the respondent-writ petitioner refuting the submission of the appellants-respondents contended that according to the Government of India Order dated 9.10.1998, the relaxation is permissible and there is no limit to the said relaxation and the competent authority is entitled to relax the age. He contends that the policy decision dated 6.6.2001 having been issued in pursuance of the Rules dated 4.8.1992, as being Recruitment Rules, 1992, as mentioned above, is not applicable and cannot supersede the Government of India Order dated 9.10.1998, which was issued subsequent to the Recruitment Rules, 1992. He further submits that the Central Reserve Police Force is an armed force of the Union and in view of the judgment of the apex court, reported at AIR 1981, S.C.806: Akhilesh Prasad Vs. Union Territory of Mizoram, the Government Order dated 9.10.98 is fully attracted.
We have considered the submissions and perused the records.
The Central Reserve Police Force is governed by the Central Reserve Police Force Act, 1949. Section 3 of the Act provides for the Constitution of the Force. Section 3 (1) provides that there shall continue to be an armed force maintained by the Central Government and called the Central Reserve Police Force. Rules have also been framed, namely, the Central Reserve Police Force Rules, 1955. Rule 4 of the said Rules, which is relied upon, is extracted below:-
"4. Powers of the Central Government and Certain Officers of the Force.--[(a) In all cases not specifically provided for in these rules, instructions issued from time to time by the Central Government or the Director General or under his directions by the Additional Director General or the Inspector General shall regulate working of the Force.]"
The submission of the learned counsel for the respondent that the Central Reserve Police Force is armed force of the Union is fully supported by the observations made in Akhilesh Prasad (Supra) and according to the dictum laid down by the apex court, the Central Reserve Police Force is an armed force and the Government of India Order dated 9.10.1998 can be said to be fully applicable on the Central Reserve Police Force also. Clause 6 (B) (a) of the aforesaid Government Order, which has been relied on by the learned Single Judge is also extracted below:-
(a) Upper age-limit could be relaxed wherever found to be necessary. The lower age-limits should, however, in no case be relaxed below 18 years of age.
NOTE I.--Age eligibility shall be determined with reference to the date of application and not the date of appointment;
NOTE II. -- Authority competent to take a final decision for making compassionate appointment in a case shall be competent to grant relaxation of upper age limit for making such appointment"
The reliance of counsel for the appellants on the standing order dated 6.6.2001 is to be considered. Under the said standing order, it is provided that condonation is permissible to the extent of two years in the upper age limit only. The issue before us is as to, in the present case, whether the Government of India orders dated 9.10.1998, or the standing orders issued by the Director General of Central Reserve Police Force shall prevail.
Learned counsel for the respondent has made one more submission that under Section 18 of the Act, rule making power is with the Central Government and the Government of India order dated 9.10.1998 can be said to be referable to rule making powers. There is no doubt that under Section 18, the power to make rule is vested in the Central Government by notification in the official gazette. The Government of India order dated 9.10.1998 is only an executive instruction and is not referable to power of rule making under Section 18, under which exercise Rules 1992 have been framed, which Rules are referred as a notification issued by Government of India dated 4.8.1992. The Government of India order of 1998 is only an executive instruction and cannot be elevated to the status of the rule made under Section 18. Under Rule 4 of the Rules 1955, Central Government as well as the Director General has given power to issue instructions to regulate the working of the force, in all cases not specifically provided in the Rules 1955. The Regulation of the compassionate appointment has not been provided in the Rules of 1955 and the executive instruction issued from time to time covers the field. Both, the Government of India and Director General have given power to issue executive instructions. The question to be answered is as to which clause shall prevail there being conflict between the two regarding power to relax the age. The executive instruction was issued by the Director General with regard to the Central Reserve Police Force on 6.6.2001, where the Government of India's executive instruction is dated 9.10.1998, the order dated 6.6.2001 being subsequent in time and specifically having been issued with regard to the Central Reserve Police Force, shall prevail. The standing order dated 6.6.2001 provides maximum age relaxation of only two years; the said executive instruction shall hold the filed by virtue of Rule 4 of the 1955 Rules. On the date of application given by the respondent-writ petitioner for compassionate appointment, she was 31 years, 2 months and 12 days old.
Learned Single Judge erred in directing for consideration for compassionate appointment. Further, Clause 6 (B) (a) of the Government of India order dated 9.10.1998 does not hold the field and shall stand superseded on the basis of subsequent instruction dated 6.6.2001.
In view of the foregoing discussions, we are of the view that the order passed by the learned Single Judge dated 9.11.2005 cannot be sustained, and is hereby set aside. The respondent-writ petitioner not being entitled for more than two years relaxation of age in appointment, no error was committed by the authorities in rejecting the claim of the respondent-writ petitioner for compassionate appointment.
We make it clear that we have not examined the other benefits for which the respondent-writ petitioner may be entitled under law on the death of her husband, which shall be given according to her entitlement, in accordance with law. We make it further clear that we have only considered the claim of the writ petitioner-respondent for the post of Peon.
The appeal is allowed.
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