JUDGMENT

H.K. Sema, J.—The challenge in this appeal is to the order dated 19th February 2003 passed by the Division Bench of the High Court of Judicature at Allahabad in Civil Misc. Writ Petition No. 21805 of 2003, affirming the judgment and order of 14th July, 1997 passed in T.A. No. 551 of 1987 by the Central Administrative Tribunal, whereby the order of 30th November, 1979 declining further extension of service of the respondent beyond 10th December, 1979 was set aside. The Tribunal further directed that the respondent be accorded the benefit by treating the age of superannuation at 45 years with all other consequential benefits. Aggrieved thereby, this appeal is filed by the Union of India.

2. The respondent, Brahma Dutt Tripathi, was a Short Service Commission Officer commissioned as a 2nd Lieutenant during the Chinese Aggression in 1963. He was released from the Indian Army with effect from 31.3.1969. He applied for Commission in National Cadet Corps (NCC). He was appointed under the Scheme floated by the Government of India for rehabilitation of Short Service Commission Officers in the Army and he joined the NCC on 11.12.1969. The Scheme of 21.12.1963 was issued under proviso (iii) to Rule 16 of NCC Rules, 1948. The Scheme under which the respondent was appointed was a composite Scheme. We will deal with the Scheme at an appropriate time.

3. Be that as it may, he challenged the impugned order of 30.11.1979 passed by the Union of India declining to grant extension of his service beyond 10.12.1979 before the High Court of Judicature at Allahabad which was transferred to the Tribunal and was re-numbered as T.A. No. 551 of 1987. As already noticed, he was granted Commission in the NCC on 11.12.1969 as 2nd Lieutenant and as Lieutenant from 12.1.1968.

4. It appears the principal contention raised before the Tribunal was that the respondent was appointed under the provisions of NCC Rules, 1948 (hereinafter `the Rules) which laid down the period of service upto the age of 45 years and since there is no provision under the Rules for granting permission for fixed tenure, the Union of India is under an obligation to allow him to work upto the age of 45 years and therefore, the order declining to extend the service of the respondent prior to the completion of 45 years is violative of Article 311 of the Constitution. It is further contended that the executive order issued by the Government of India by its letter dated 21.12.1963 could not over-ride the statutory Rules, and the administrative instructions, to the extent inconsistent with the Rules, are ultra vires the Constitution being violative of Articles 14 and 16 of the Constitution.

5. The short question which arises for our consideration is, as to whether the appointment of the respondent to the NCC Commission was in accordance with the NCC Act and Rules or under a composite Scheme formulated by the Government of India in exercise of its powers under proviso (iii) to Rule 16 of the Rules?

6. To answer the aforesaid question, it is essential to make a quick survey of a few Sections of the Act namely the National Cadets Corps Act, 1948 (Act 31 of 1948) (in short `the Act) and the Rules framed thereunder. Section 2 deals with the definition of Corps. It says "corps" mans the National Cadet Corps constituted under this Act. Section 3 deals with the "Constitution of the National Cadet Corps". Section 4 deals with the "Constitution and disbandment of units" and provides: "The Central Government may constitute in any [State] one or more units of the Corps members of which shall be recruited from amongst the students of any university or school, and may disband or reconstitute any unit so constituted."

Section 9 deals with the "Appointment of officers." It reads, "The Central Government may provide for the appointment of officers in or for any unit of the Corps either from amongst members of the staff of any university or school or otherwise and may prescribe the duties, powers and