JUDGMENT

SUJATA V. MANOHAR, J.

(1) LEAVE granted.

(2) THIS is an appeal filed by the Union of India and the Director General, Border Security Force, New Delhi against a decision of the Delhi High court dated 25/8/1994 in CWP No. 5042 of 1993 which was filed by the respondent against the appellants. The point in issue between the parties relates to the age of retirement of a Commandant (Selection Grade) in the Border Security Force.

(3) THE constitution and regulation of an Armed Force of the Union for ensuring the security of the borders of India and matters connected therewith, are governed by the provisions of the Border Security Force Act, 1968. Section 141 of the Border Security Force Act enables the central government, by notification, to make rules for the purpose of carrying into effect the provisions of this Act as set out in that section. In exercise of that power, the central government has notified the Border Security Force (Seniority, Promotion and Superannuation of Officers) Rules, 1978. It has also notified the Border Security Force Rules of 1969. Under Rule 9 of the Border Security Force (Seniority, Promotion and Superannuation of Officers) Rules, 1978, it is provided as follows:

"9. Superannuation.- Retirement age of officers holding a rank higher than that of Commandant shall be fifty-eight years; and for officers of the other rank it shall be fifty-five years.

PROVIDED that...."

IT is contended by the respondent that at all material times, he was holding the post of Commandant (Selection Grade) which, according to him, is a rank higher than that of a Commandant. Hence his age of retirement is 58 years under Rule 9. On the other hand, the appellants contend that a Commandant (Selection Grade) holds the same post as a Commandant. Hence the retirement age for the respondent is 55 years. Accordingly, the appellants sought to retire the respondent on his attaining the age of 55 years. This was challenged by the respondent in the above writ petition where his contentions have been upheld.

(4) WE have to consider whether a Commandant (Selection Grade) can be considered as holding a rank higher than that of a Commandant for the purposes of Rule 9 of the Border Security Force (Seniority, Promotion and Superannuation of Officers) Rules, 1978. Since Rule 9 uses the term rank, we can examine, at the outset, the list of ranks under the Border Security Force Rules, 1969. Under Rule 14-A of the Border Security Force Rules, 1969 the ranks of officers and other members of the Border Security Force are classified into various categories. This rule provides as follows:

"14-A. Ranks.(1 The officers and other members of the Force shall be classified in accordance with their ranks in the following categories, namely:

(A) Officers

(1 Director General

(2 Additional Director General

(3 Inspector General

(4 Deputy Inspector General

(5 Additional Deputy Inspector General

(6 Commandant

(7 Deputy Commandant

(8 Assistant Commandant

(B) Subordinate Officers * * * * *"

There is no separate category of Commandant (Selection Grade). It is an accepted position that till 1981 there were no posts of Commandant (Selection Grade). In a Confidential Note which was prepared in 1981 by the Directorate General of the Border Security Force in connection with cadre review of the gazetted establishment in the Border Security Force, it was pointed out that for historical reasons, the Border Security Force had to induct en masse ex-Emergency Commission Officers and other Service Commission Officers released from the Army. As many as 448 officers of about the same seniority and age group joined the Border Security Force practically together, upsetting normal recruitment plans of a duly organised service which would normally recruit about 30/40 officers per year. This sudden recruitment of a large number of officers of the same seniority had caused unprecedented stagn