JUDGMENT

SHARMA, J.:- Thequestionswhichfall for decision in these cases are as to whether the officers appointed on whole-time basis in the National Cadet Corps are governed by the Fundamental Rules applicable to the civil servants serving the Union of India and accordingly entitled to continue in service until the age of fifty-eight years or they retire under the terms and conditions of their service as contained in the Government order being letter dated 23-5-1980. The Central Administrative Tribunal, New Delhi, by the impugned judgment, has agreed with the respondents that they will remain in service till they attain the age of fifty-eight years in view of the provisions in Fundamental Rule 56 (a).

2. Special Leave is granted.

3. The respondents were earlier serving in the Armed Forces from 1962-67. After the expiry of their tenure they applied for appointment under the scheme of re-employment of ex-service officers in the National Cadet Corps and they were granted N.C.C. commission on whole-time basis. The grant of permanent commission was on the terms and conditions as laid down in the aforesaid letter dated 23-5-1980 which had inter alia fixed the age of retirement at fifty five, and it required the appointees to exercise their option to accept the same on the aforesaid terms and conditions if they so chose. Accordingly they were granted the permanent commission after they exercised the option as indicated in the letter. When the dates of their retirement were coming close the respondents filed the original applications before the Central Administrative Tribunal out of which these appeals have arisen. The Tribunal agreeing with the respondents held that they were entitled to continue the service until they attained the age of fifty-eight, and the service conditions as contained in the letter dated 23-5-1980 to the contrary were not legally valid.

4. The provisions of Fundamental Rules 56 (a) which are the basis of the claim of the respondents read as follows:

"F.R. 56 (a). Except as otherwise provided in this Rule, every Government servant shall retire from service on the afternoon of the last day of the month in which the attains the age of fifty-eight years."

It has been contended by Mr. Additional Solicitor General appearing in support of the appeal that the whole-time officers of N.C.C. are appointed in accordance with the provisions of the N.C.C. Act and Rules, and the Fundamental Rules are not applicable to them at all. Mr. Mukhoty the learned counsel for the respondents has, in reply, argued that the N. C.C. Act and the Rules do not lay down the age of superannuation of such officers and the Army Act which prescribes different age of retirement is not applicable. According to the learned counsel, the result is that the general rule as contained in Fundamental Rule No. 2 must govern the respondents.

5. As indicated above, the decision in the case is dependent on the question as to whether the Fundamental Rules are applicable to the respondents or not. Having got the permanent commission on the basis of the letter dated 23-5-1980, it is for the respondents to show that they are entitled to rely on the Fundamental Rules, including F.R. 56 (a) and to continue in service till the age of fiftyeight. The extent of application of the Fundamental Rules has been dealt with in Part 1 Chapter 1, and F.R. 2 declares that,

"The Fundamental Rules apply, subject to the provisions of Rule 3, to all Government servants whose pay is debitable to Civil Estimates and to any other class of Government servants to which the President may, by general or special order, declare them to be applicable."

Admittedly the President has not issued any general or special order extending the Fundamental Rules to the N. C. C. whole-time officers. Pointing out to the reference of Rule 3 in Part 2, Mr. Mukhoty contended that since the respondents are not governed by Army or Marine Regulations their conditions of service must be held to be as under Fundamental