Judgement

RANGANATH MISRA, J.:- This appeal by special leave is against the judgment of the Andhra Pradesh High Court in a writ appeal arising out of the judgment of a learned single Judge in an application under Art. 226 of the Constitution.

2. The respondent on taking premature retirement on compassionate ground from the Indian Army at the age of 33 was offered appointment as Assistant Commandant in the Central Reserve Police 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 extended 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 R. 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 Art. 226 of the Constitution for a direction for his absorption in the Force. The learned single Judge referred to R. 105 which deals with recruitment and R. 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 consider the respondents permanent absorption. The Division Bench upheld the direction and dismissed the appeal of the appellants.

3. Rule 105(3-A) dealing with recruitment, inter alia, provides that the post of Assistant Commandant shall be filled:

(i) xxx xxx xxx xxx xxx

(ii) by re-employment of retired or released Army Offices 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 Offices holding the posts of Superintendent of Police or equivalent Posts preferably with experience of Armed Police duties or Assistant Commandants of the Central Reserve Police Force or

(iii) xxx xxx xxx xxx."

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

4. 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, extendable by mutual consent for one year, at a time subject to premature termination should administrative exigency, and or unsuitability or any other unforeseen factors so demand. 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)

5. Sub-r. (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 :

"(a) In the case of officers re-employed after they had retired/discharged/released from Army prior to the attainment 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 be determined in accordance with the orders of their selection;

(ii) the relative seniority of persons so re-employed in relation to direct recruits and promotees shall be determined on the basis of chronology of selection;

(iii) their confirmation and promotion to higher posts would take place with reference to seniority so fixed subject to fulfilment of other laid down conditions regarding probation.

(b) The ex-army officers re-employed after they have attained the age of superannuation in civil posts shall not form part of the cadre and would be treated as if appointed on co