LexUNION OF INDIA AND ORS. versus BRAHMA DUTI TRIPATHI
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UNION OF INDIA AND ORS. A v. BRAHMA DUTI TRIPATHI SEPTEMBER I 8, 2006 [H.K. SEMA AND D.K. JAIN, JJ.] B Service Law. National Cadet Corps Act, 1948-Sections 2, 3, 4, 9 and 13-Discharged C Short Service Commission Officer-(;overnment .framing Scheme under proviso (iii) to Rule I 6 for appointment of such officers-Scheine laying down terms and conditions of scheme and conditions of service-Scheme providing appointment for 3 years extendable by another 3 years at a time subject to requirement of service but not beyond 55 years-Appointment in National Cadet Corps-Extension of service declined-Challenged-Whether appointment under NCC Act and Rules or Scheme formulated by Government under proviso (iii) to Rule I 6-Held, there is no provision under NCC Act and Rules for appointment of discharged Short Service .Commission Officer and appointment only under Scheme formulated by Government-Such appointment was tenure appointment-Officer himself accepting appointment under Scheme-Jn the facts, termination of service upheld-NCC Rules, 1948.c..... Proviso (iii) to Rule I 6. Respondent was Short Service Commission Officer commissioned as 2 .... Lieutenant during Chinese Aggression in 1963 and was released from· Indian Army with effect from 31.3.1969. He was appointed under Scheme floated by Government of India for rehabilitation of Short Service. Commission Officers in the Army and joined National Cadet Corps (NCC) on I 1.12.1969. The Scheme of21.12.1963 was issued under proviso (iii) to Rule 16 of NCC Rules, 1948. The said Rules were framed by the Central Government in exercise of powers conferred by Section 13 of the National Cadet Corps Act, 1948. Appellant passed order dated 30. 11.1979 declining to grant extension of service to respondent beyond 10.12.1979 which was challenged by respondent. Central Administrative Tribunal set aside Order dated 30.11.1979 and directed that respondent be accorded benefit by treating the age of superannuation at 45 years with all other consequential benefits, which was also. affirmed by Division Bench of the High Court. 359 360 SliPREME COURT REPORTS [20061 SUPP. 6 S.C.R. A Hence this appeal by the Union of India. B Respondent contended that he was appointed under Section 9 of the NCC Act and Rules and not under Scheme formulated by Govi:rnment of India in exercise of powers under proviso (iii) to Ruic 16 of NCC Rules, 1948 and was entitled to continue till he attained the age of 45 years. Allowing the appeal, the Court HELD:l.1. There is no provision under the NCC Rules, 1948 and National Cadet Corps Act, 1948 providing for appointment of discharged Short Service Commission Officer as an officer in the NCC, save and C except, as provided by the Scheme floated under proviso (iii) to Rule 16. 1368-H; 369-AI J.2. The Scheme under which the respondent was appointed was a composite Scheme laying down the terms and conditions of the Scheme and the conditions of service. The composite Scheme was framed under D proviso (iii) to Rule 16 of the NCC Rules, by the Government of India, Ministry of Defence letter of 21.12.1963. Under the Scheme, the appointment was a tenure appointment and the service was for three years extendable by another three years at a time, subject to the requirement of the service but not beyond the age of 55 years. The service might also E be terminated at any time before the completion of the initial or extended tenure at the discretion of the Government of India in terms of Clause 4 of Appendix 8 of the Scheme. (364-D-H] 2.1. The contention of the respondent deserves to be rejected for more than one reason. Firstly, the respondent accepted the appointment F under the memorandum issued by the Government of India and the Scheme framed thereunder with its terms and conditions categorically laid down thereunder, without any demur. Secondly, it was never the case of the respondent that he was appointed under the Act, more particularly under Section 9 of the Act. Thirdly, Section 9 provides for appointment of officers in or any unit of the corps either from amongst the members G of the staff of any university or school or otherwise. The Scheme of the Act would go to show that the appointment of officers as provided under Section 9 of the Act is from amongst the members of the corps. It is not disputed that the respondent was not a member of the corps. It is also clear that his appointment was not made in terms of
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