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2011 DIGILAW 679 (GAU)

Dwijadas Chakraborty v. State of Tripura

2011-08-10

UTPALENDU BIKAS SAHA

body2011
ORDER U.B. Saha, J. 1. The instant writ petition is filed by the Petitioner who joined in the post of Naik Operator in Tripura State Rifles after completion of his service in the Indian Army for a period of 17 years 33 days on the aid of offer of letter granting reemployment in favour of the Petitioner dated 23.08.2001 (Annexure-P5 to the writ petition) for quashing the letter dated 27.11.2010 (Annexure-P7 to the writ petition) issued by the Deputy Secretary to the government of Tripura (Respondent No. 3 herein) to the Director General of Police (Respondent No. 2 herein) stating inter alia, that the notification regarding enhancement of the age of superannuation of the TSR personnel shall come into force from 20.10.2010 and the benefit be extended only to those TSR personnel who are on regular service on the date of effect of the said notification and the order dated 30.11.2010 issued by the Commandant (Respondent No. 4 herein) (Annexure-P9 to the writ petition) wherein the Petitioner was released from service after completion of his extension in service as granted to him for the period of three months and also struck off his name from the strength of 8th Bn TSR where he had joined as Naik. 2. Heard Mr. Somik Deb, learned Counsel for the Petitioner as well as Mr. DP Kundu, learned Advocate General assisted by Ms. AS Lodh, learned Addl. GA and Ms. R Guha, learned state counsel for the State Respondents. 3. Pleaded case needed to be discussed for disposal of the instant writ petition is as follows: Admittedly, the Petitioner was appointed in the post of Naik Operator in the Tripura State Rifles after rendering service in the Indian Army on 23.04.2001 and thereafter he continued in service till his date of superannuation as prescribed in the provisions of Rule 27 of the Tripura State Rifles (Discipline, Control, Service Conditions etc.) Rules, 1986 (for short, 'Rules') i.e. up to 04.08.2010 till the completion of 50 years. Before attaining the age of superannuation, the Petitioner on 02.03.2010 made an application (Annexure-P4 to the writ petition) to the DIGP, AP (ADM & TRG) for extension of one year reemployment of service to become eligible for pension on reemployment in TSR. 4. Before attaining the age of superannuation, the Petitioner on 02.03.2010 made an application (Annexure-P4 to the writ petition) to the DIGP, AP (ADM & TRG) for extension of one year reemployment of service to become eligible for pension on reemployment in TSR. 4. Upon receipt of the aforesaid representation dated 02.03.2010, Respondent No. 2, Director General of Police, extended his service beyond the age of superannuation in TSR for three months i.e. from 01.09.2010 to 30.11.2010. Before completion of three months service of the Petitioner on extension beyond the age of superannuation the State Respondents in exercise of its rule making power under Section 22 of the TSR Act, 1983 (for short, 'Act, 1983'). The State Respondents amended the provisions of Rule 27 of the Rules by way of substituting the word 52' in place of 50' years as age of superannuation. 5. As in the said notification, from which date the amendment would come in to force was not mentioned, Respondent No. 3, Deputy Secretary, Home Department, Govt. of Tripura vide letter dated 27.11.2010 informed Respondent No. 2, Director General of Police, that the said notification regarding enhancement of age of superannuation would come into force on and from 20th October, 2010 and the benefit of the same would be extended to those TSR personnel who are on regular service on the date of effect of the said notification. 6. Petitioner vide representation dated 12.11.2010 (Annexure-P8 to the writ petition) requested the Respondent No. 2 for extending his service w.e.f. 01.12.2010 to 31.05.2011 so that he can get the pensionary benefits. On 30.11.2010 his prayer for further extension was rejected and he was released from government service w.e.f. 30.11.2011 by way of striking off his name from the strength of 8th Bn TSR. Hence, the writ petition. 7. The State Respondents by way of filing counter affidavit stated inter alia, that admittedly when the Petitioner was on re-employment the superannuation age of Naik in TSR was enhanced by two years then the prescribed age of 50 years and thus the State Respondents rightly rejected the prayer of the Petitioner for extending his service for a period of six months and struck off his name from the strength of 8th Bn TSR w.e.f. 30.11.2010 being he is not entitled to the benefit of amendment of Rule 27 of the Rules, 1986. The State Respondents further contended in its counter affidavit that the benefit of amendment of Rule 27 of the Rules, 1986 is only entitled to the persons who are on regular service on 20th October, 2010 and who have not completed 50 years of age, i.e. superannuation age as prescribed in Rule 27 of the Rules, 1986 before its amendment. The Respondents further contended that the Petitioner himself was aware about his position for which he applied for six months extension of his service not the period entitled by a person under Rule 27 of the Rules, 1986 as amended. 8. Mr. Deb, while urging for the relief, as stated supra, would contend that as the Petitioner was on extension of service on 20.10.2010, the notification relating to amendment of provisions of Rule 27 of the Rules, so amended, by way of substituting the age of superannuation from 50 years to 52 years, the Petitioner is also entitled to the benefit of the said amendment and also consequent thereto he is entitled to serve till the age of 52 years. 9. According to Mr. Deb, the Respondent authority while issuing the notification by way of amendment considered that a person in service should be provided with the benefit of amendment and only with that purpose they used the word substitute which ordinarily means, 'to put (one) in place of another'; or 'to replace' and in support of his aforesaid contention he placed reliance on the decision of the Apex Court in Government of India and Ors. v. Indian Tobacco Association (2005) 7 SCC 396 . 10. He further contended that as the Petitioner was on extension of service he cannot be denied the benefit of the amended provisions of the Rules on the ground that he was in service after his superannuation age on extension and his service is not a regular service. In support of his aforesaid contention he placed reliance on the decision of the Apex Court in Shashikalabai v. State of Maharashtra (1998) 5 SCC 332 wherein the Apex Court while interpreting new circular dated 28.01.1993 by which amount of compensation has been increased stated that since the present case was not closed on the date of the circular coming into effect, the Appellant should have been granted the benefit of the new circular. 11. 11. He further contended that for the benefit of the said amendment of the provisions of the Rules, the Respondents are bound to provide the benefits of such amendment to the Petitioner, as he was in service when the amendment came into force. He also contended that extension of service from the date of so called superannuation age, as prescribed in Rule 27 before amendment is nothing but continuation of his earlier service and he should be treated on regular service. In support of his aforesaid contention he placed reliance on the decision of the Apex Court in State of Assam and Ors. v. Padma Ram Borah AIR 1965 SC 473 particularly paragraph 7, wherein the Apex Court noted that "the period of three months fixed by this order expired on March 31, 1961. Thus the effect of the order of January 6, 1961 was that the service of the Respondent would come to an end on March 31, 1961 unless the departmental proceedings were disposed of at a date earlier than March 31, 1961. It is admitted that the departmental proceedings were not concluded before March 31, 1961. The clear effect of the order of January 6, 1961 therefore was that the service of the Respondent came to an end of March 31, 1961. This was so not because retirement was automatic but because the State government had itself fixed the date up to which the service of the Respondent would be retained." 12. In support of his aforesaid contention, he also placed reliance on PR Nayak v. Union of India (1972) 1 SCC 332 particularly, paragraph 24, 26 and 30 wherein the Apex court while considering the Fundamental Rules 56f has noted that "The Government has the right to retire a member of the Indian Civil Service at the end of thirty-five years' service. A member of the Indian Civil Service has also the right to retire after thirty-five years' service. The government has the right to retain an officer after thirty five years' of service. The date of retirement is then extended and there is in fact No. retirement of the officer from service. He still remains a member of Indian Civil Service and it cannot be said that the extension of the service of the Appellant was a new appointment or a special contract. The date of retirement is then extended and there is in fact No. retirement of the officer from service. He still remains a member of Indian Civil Service and it cannot be said that the extension of the service of the Appellant was a new appointment or a special contract. There is an extension of service as a result of the sanction by the President under Fundamental Rules 56f there is No. retirement and the service is continuous with such adjustments as leave, promotion or posting as are permissible or possible. 13. He placed reliance, to support his aforesaid contention, that the Petitioner is in continuous service till he reached the age of 52 years, on the decision of the Apex Court in State of Karnataka v. K. Vasudeva Mayya and Anr. 1994 supp. 3 SCC 543 wherein the Apex Court considered the case of the Respondent-writ Petitioner who was reemployed by the State government on contract basis w.e.f 01.08.1984 subject to the conditions of service contained in Rule 313(b) of the Karnataka Civil services Rules, 1957 - "the KCS Rules", as Secretary to the Chairman, Karnataka State Sports council for the period conterminous with that of the Chairman, held that the period of service between the earlier retirement and the retirement on joining the revised age of superannuation, held, would count for computing pensionary benefits and this right cannot be denied by treating such persons as re-employed retirees and applying Rule 313(b) of the Karnataka Civil Services Revised pay Rules, 1987. He also placed reliance on a decision of Smt. Chandana Roy and Anr. v. State of Tripura and Anr., 2007 Lab IC 925. 14. Mr. Deb further urges that when in the recruitment rules, the condition of service of an employee is silent about extension of service then by way of a memorandum issued under Article162 the State can amend the rule wherein the superannuation age is prescribed. 15. Mr. Deb further contended that a particular Act is not always referable to a single entry to any of the list of the constitution. That cal also be considered referable to other entries of the list of the constitution. 16. Mr. Kundu while dislodging the contentions of Mr. 15. Mr. Deb further contended that a particular Act is not always referable to a single entry to any of the list of the constitution. That cal also be considered referable to other entries of the list of the constitution. 16. Mr. Kundu while dislodging the contentions of Mr. Deb would contend that the case of PR Nayak (supra) and K. Vasudeva Mayya (supra) have No application in the instant case as the facts of those cases are totally different then the case in hand. More so, in those cases the rules applicable to the Appellant - PR Nayak and the Respondent - K Vasudeva Mayya are the rules framed under Article 309 of the Constitution and covered by entry 41 of list II whereas the Tripura State Rifles Act, 1983 (for short, "Act, 1983") and Rules made thereunder, namely Tripura State Rules (Discipline, Control, Service condition etc.) Rules, 1986 (for short, "Rules, 1986") by which the service conditions of the Petitioner is guided, are framed exercising the power vested on State under entry II of list II being the members of rifles deemed to be police officers under the police Act as would be evident from Section 18 of the Act, 1983 wherein it is stated inter alia, 'All superior officers and members of the Rifles shall be deemed to be Police officers under the Police Act, 1861'. He has also distinguished the case of Shashikalabai v. State of Maharashtra (1998) 5 SCC 332 contending that in that case the suit was filed under fatal accident, i.e. case was pending while circular came in force but in the instant case the Petitioner was retired from his service. Thus, fact and purpose of both cases are different and in view of the decision of the Apex Court in Regional Manager and Anr. v. Pawan Kumar Dubey AIR 1976 SC 1766 , wherein the Apex Court noted, inter alia, that one additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts, the case of Shashikalabai (supra) has No application. 17. v. Pawan Kumar Dubey AIR 1976 SC 1766 , wherein the Apex Court noted, inter alia, that one additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts, the case of Shashikalabai (supra) has No application. 17. He further contended that as the Petitioner did not challenge the vires of Rule 27 of the Rules, 1986 thereby he cannot ask for continuation beyond his superannuation age prescribed in the said rules on the basis of a notification which was issued after his superannuation from the service of the Rifles as Naik. 18. Mr. Kundu referring to the representation of the Petitioner dated 17.12.2009 (Annexure-P2 to the writ petition) addressed to the Respondent No. 2, wherein the Petitioner prayed for allowing him to continue in service as a Naik Operator (Wireless) either in the TSR or TPA police communication as an ex-servicemen, as he would not be able to complete his ten years three months mandatory service in TSR for because before completion of the said period he shall attain the age of 50 years, submitted that the Petitioner was aware regarding his age of superannuation and only after superannuation he made application for granting him some extension in exercise of the discretionary power of the authority to get his pensionary benefits. 19. He also referred to the order of the Respondent No. 4, Commandant dated 5th January, 2010 (Annexure-3 to the writ petition) wherein after considering the application of the Petitioner dated 17.12.2009 (Annexure-P2 to the writ petition) he was asked to make an application for extension of one year re-employment service mentioning reasons thereof along with medical fitness certificate if he desires to do so and in response to the same the Petitioner himself made an application for extension of one year reemployment of service w.e.f. 04.08.2010 to become eligible for pension. Therefore, the Petitioner was very much aware even at the time of filing his application before the appropriate authority that he is asking for re employment and not for extension of regular services. Therefore, the Petitioner was very much aware even at the time of filing his application before the appropriate authority that he is asking for re employment and not for extension of regular services. The authority also taking note of the facts as stated by the Petitioner allowed him three months extension of service beyond the age of superannuation in TSR, which he happily accepted and on accepting such appointment on extension for three months he is stopped to raise any question regarding his alleged entitlement of services up to 52 years on the basis of the notification dated 20th October, 2010 (Annexure-P6 to the writ petition). 20. Learned Advocate General further contended that there is No. quarrel with the proposition laid down by the Apex Court in Indian Tobacco Association (supra) wherein the Apex Court considered the meaning of the word 'substitute'. There is also No. quarrel that the State by way of notification dated 20th October, 2010 substituted the word 52 years' in place of 50 years' of superannuation age as prescribed under the Rules, 1986 but mere substitution would not provide the benefit of amendment to the Petitioner who has already superannuated from service before the amendment came into force. The amendment is only applicable to the persons who are in regular service without any extension granted by the authority exercising its discretionary power. Thus, the Petitioner is also not entitled to get the benefit of the said notification dated 20th October, 2010. More so, the Petitioner at No. time asked for such benefit of the amendment to the authorities before approaching this Court and on that ground also he is not entitled to the relief sought for. He also referred to Annexure-P8 to the writ petition, the representation dated 12.11.2010 wherein he made a prayer for extension of another six months of service w.e.f. 01.12.2010 to 31.05.2011, though the authority substituted 52 years' in place of 50 years', on 20th October, 2010 and the said prayer of the Petitioner was turned down by the authority on 30.11.2010 vide Annexure-P9 to the writ petition, which is impugned herein. 21. Learned Advocate General again contended that extension in service after superannuation is not a right of a person, rather discretion of the authority. 21. Learned Advocate General again contended that extension in service after superannuation is not a right of a person, rather discretion of the authority. In the instant case, the authority exercised its discretion and reemployed the Petitioner by way of three months extension though he prayed for more than period granted. As in the order dated 23rd July, 2010 (Annexure-P5 to the writ petition) by which the services of the Petitioner was extended for three months beyond his age of superannuation, learned Advocate General tried to explain the meaning of 'beyond' placing reliance on Lexicon Webstar Dictionary printed in 1983 wherein it is stated that 'beyond' means "outside the limit of". He also placed reliance on Corpus Juris Secundum Vol-10 to show the meaning of 'beyond', wherein it is stated that 'beyond' means, farther than; later in time than; surpassing. Learned Advocate General while placing reliance on Corpus Juris Secundum stressed on the word surpassing. In view of the above, he contended that extension is 'beyond' the age of superannuation as prescribed in the rules, not the continuation of the earlier service. As admittedly, the Petitioners service was extended beyond the period of superannuation age, learned Advocate General also dealt with the meaning of the word 'extension' and placed reliance on Stroud's Judicial dictionary, Fourth Edition wherein it is stated that " 'Extension' is a term properly used for the purpose of enlarging, or giving further duration to, any existing right, but does not import the re-vesting of an expired right; that would not be an 'extension' but 're-creation'". While placing the meaning of 'extension' as defined in Stroud's Judicial Dictionary, learned Advocate General contended that the right of the Petitioner to continue has already expired on completion of 50 years of age as prescribed under Rule 27 of the Rules, 1986 and after expiry of that right the same cannot be denied even on the basis of notification dated 20th October, 2010 (Annexure-P6 to the writ petition). A person can be continued in service subject to he has not lay his office on superannuation. In the instant case, admittedly the Petitioner has completed his superannuation age and thereafter he himself sought for re-employment by way of extension. Thus, mere use of the word 'extension' would not revest his expired right. 22. A person can be continued in service subject to he has not lay his office on superannuation. In the instant case, admittedly the Petitioner has completed his superannuation age and thereafter he himself sought for re-employment by way of extension. Thus, mere use of the word 'extension' would not revest his expired right. 22. To satisfy this Court that extension in service after superannuation is nothing but re-employment, he placed reliance on Ramswaroop Masawan v. Municipal Council and Anr. (1998) 6 SCC 338 as the Apex Court discussed therein what should be meaning of 'extension' and in that case the Appellant therein reached the age of superannuation, which was 55, on 26.01.1970 but continued to work until 30.07.1970 and he was served with an order dated 21.05.1970/12.02.1970 and in the said order it was stated that he would retire in the afternoon of 26.01.1970 having attained the age of 55 years. In view of the above position, the Appellant therein filed a writ petition before the High Court of Madhya Pradesh and the High Court stated, inter alia, that if the Petitioner was allowed to work after 26.01.1970 it is apparent that the period up to which he continued to work was the period of re-employment. The said continuance did not confer any right to receive the pensionary benefits, and the Apex court has put its seal on the order of the High Court meaning thereby the Apex court also considered the period beyond 26.01.1970 as the period of re-employment, he contended. While considering the order of Madhya Pradesh High Court, the Apex court stated, inter alia, "In our view the High Court was right. At the relevant time the age of superannuation was 55 years. The Appellant stood superannuated on reaching that age and, in law, his continuance in service thereafter can only be treated as re-employment" and ultimately dismissed the appeal. 23. Learned Advocate General placing reliance on Achhaibar Maurya V. State of Uttar Pradesh and Ors. (2008) 2 SCC 639, particularly paragraph 10 of the said report, would contend that the last working date of an employee, who entered into service on the basis of the statutory rules, would depend on the wordings of the Rules which he has accepted at the time of entry in service. (2008) 2 SCC 639, particularly paragraph 10 of the said report, would contend that the last working date of an employee, who entered into service on the basis of the statutory rules, would depend on the wordings of the Rules which he has accepted at the time of entry in service. In the instant case, the Petitioner when entered into service it was known to him that he is to be retired at the age of 50 years and admittedly the provisions of Rule 27 of the Rules, 1986 though amended exercising the power of Section 22 of Act vide notification dated 20th October, 2010 (Annexure-P6 to the writ petition) was not lay before the Tripura Legislative Assembly. Thus, the same cannot be treated as a law so far the superannuation age is concerned. However, as that notification is not under challenge in the instant writ petition, he does not want to make any further comment regarding the said provision of amended rules as purely the question involved in this case is whether the Petitioner will get the benefit of the aforesaid notification or not. 24. As in the case of Achhaibar Maurya (supra) the Apex Court considered the age of superannuation, it would be proper on the part of this Court to reproduce the relevant portion relied upon by the learned Advocate General. Accordingly, the same is reproduced herein under: A benefit of getting an extended period of service must be conferred by a statute. The legislature is entitled to fix a cut-off date. A cut-off date fixed by a statute may not be struck down unless it is held to be arbitrary. What would, therefore, be an employee's last working date would depend on the wordings of the Rules. It may seem unfortunate as some people may miss the extended period of service by a day, but therefor a valid provision may not be held to be invalid on the touchstone of Articles 14 or 16 of the constitution of India. (emphasis supplied) 25. In the instant case, admittedly on the date of superannuation of the Petitioner, notification dated 20th October, 2010 was not in force. Therefore, in view of the provisions of the statutory rules he has completed his working day on completion of 50 years of age. 26. (emphasis supplied) 25. In the instant case, admittedly on the date of superannuation of the Petitioner, notification dated 20th October, 2010 was not in force. Therefore, in view of the provisions of the statutory rules he has completed his working day on completion of 50 years of age. 26. At this stage of his argument, learned Advocate General took this Court to visit Union of India and Anr. v. Tulsiram Patel (1985) 3 SCC 398 wherein their lordships discussed about the maxim 'expressum facit cessare tacitum' ("when there is express mention of certain things, then anything not mentioned is excluded"). Explaining the doctrine of 'expressum facit cessare tacitum' Mr. Kundu again contended that when in the order itself the Petitioner was given three months extension which he has accepted without any further benefit including the pensionary benefits and also when neither in the Act nor in the rules, there is any provision for extension of service it has to be considered by the Court that the Petitioner is not entitled to any other benefits which is not mentioned in the order as the same is excluded. 27. Admittedly, in the Act, as well as in the Rules by which the service of the Petitioner is guided there is No. provision for extension. Now question is when there is No. provision for extension, whether extension of service on completion of superannuation age would be considered as the continuation of his initial service or that would be treated as re-employment or contractual service for the remaining period after completion of superannuation age? As Mr. Deb also raised certain question on this point, the matter will be discussed in the later part of the judgment. 28. To resist the contention of Mr. Deb, inter alia, that when in the Act and Rules No. provision is made for extension of service of a person like the Petitioner, then the state is empowered to exercise its executive power under Article 162 of the Constitution which is coextensive legislative power, learned Advocate General would contend that there is No. dispute when in a rule framed under Article 309 of the Constitution or whether the State legislature has the power to make laws but No. law is framed on that aspect then Article 162 of the Constitution can be applied regarding exercise of executive power by the government are twofold. One is if any act or law has been made by the State legislature conferring any function on any other authority in that case the Governor is not empowered to make any order in regard to that power in exercise of his executive power nor can he exercise the power in regard to that matter through the officers subordinate to him. 29. In the instant case, admittedly the Act, 1983 is framed and the provisions of which is applicable to the members of the Rifles of Tripura wherever they may be serving and also a rule made thereunder namely, Tripura State Rifles (Discipline, Control, Service Conditions etc.) Rules, 1986 exercising the rule making power under Section 22 of the said rules as has to be lay down before the State legislature for its approval and ultimately laid it. Therefore, the same rule is to the extent a legislative rule and neither the Act nor the Rule empower the Governor to make any notification either by him exercising his executive power nor through officers subordinate to him under Article 162. Therefore, the notification, if any, issued under Article 162 cannot cover the field relating to age of superannuation of the members of the Rifles. 30. In support of his aforesaid contention he placed reliance on PH Paul Manoj Pandian v. P Veldurai (2011) 5 SCC 214 particularly paragraph 46 wherein their lordships discussed about the power of the government under Article 162 of the Constitution. He also placed reliance on the decision of the Apex Court in State of Orissa and Ors. v. Prasana Kumar Sahoo (2007) 15 SCC 129 wherein the Apex court discussed about the jurisdiction under Article 162 of the Constitution and noted that, "Even a policy decision taken by the State in exercise of its jurisdiction under Article 162 of the Constitution of India would be subservient to the recruitment rules framed by the State either in terms of a legislative Act or the proviso appended to Article 309 of the constitution of India. A purported policy decision issued by way of an executive instruction cannot override the statutory rules far less the constitutional provisions." Therefore, according to him, the right accrued upon the Petitioner under Rule 27 of the Rules, 1986 cannot be overridden by the purported notification dated 20th October, 2010 (Annexure-P6 to the writ petition) and as such the Petitioner has No. right to continue in service under the Rules, 1986 beyond the period provided in the statute, i.e. 50 years of age. 31. As Mr. Kundu urges inter alia, that the Act, 1983 is enacted by the State exercising its power under entry 2 of list-II of schedule seven of the Constitution, i.e. entry related to police subject to provisions of entry 2 of list-I of the said schedule, not under entry 41 which dealt with public services and the state public service commission of the said list-I of schedule seven. Therefore, the case law cited by the learned Counsel for the Petitioner is mainly relating to entry 41 of list-II i.e. 'public services' has No application in the case in hand being the Petitioner is deemed to be a member of a police service and according to him the executive cannot have the power under Article 162 to Act beyond the provisions of Section 22 and Rule 27 made thereunder, even if acted beyond the rule then that would not create any right in favour of a member of the service. 32. In support of his aforesaid contention he placed reliance on a decision of the Apex Court in the case of BN Nagarajan and Ors. v. State of Mysore and Ors. etc. AIR 1966 SC 1942 wherein the Apex Court while discussing executive powers of the state in respect to list-II entry 41 noted that it is hardly necessary to mention that if there is a statutory rule or an act on the matter, the executive must abide by that act or rule and it cannot in exercise of the executive power under Article 162 of the Constitution ignore or act contrary to that rule or act. 33. In support of his aforesaid contention he also placed reliance on Sant Ram Sharma v. State of Rajasthan and Ors. AIR 1967 SC 1910 wherein the Apex Court while considering the submission of Mr. 33. In support of his aforesaid contention he also placed reliance on Sant Ram Sharma v. State of Rajasthan and Ors. AIR 1967 SC 1910 wherein the Apex Court while considering the submission of Mr. NC Chatterjee, learned Counsel who contended that in absence of any statutory rules governing the promotions to selection grade posts the government cannot issue administrative instructions and such administrative instructions cannot impose any restrictions not found in the Rules already framed which was not accepted by the Apex Court but ultimately held that the government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. In the instant case, according to the learned Advocate General the superannuation age is prescribed in Rule 27, therefore, only on the amendment of the rules as prescribed by the Statute the age of superannuation can be increased and not by any other manner. 34. He finally contended that the police force admittedly has a different and special significance in the administration of the state for which the framers of the constitution empowered the state by way of inserting entry 2 of list-II of seventh schedule to make laws relating to police force and the law made under that entry cannot be at par with the law made by it under Article 307 vis-a-vis entry 41 of list-II of the seventh schedule. As Mr. Kundu referred entry 2 and entry 41 of list-II of the seventh schedule of the Constitution it would be proper to reproduce the said entry 2 and entry 41 of list-II and accordingly those are reproduced. List II-State List ............................. [2. Police (including railway and village police) subject to the provisions of entry 2A of List I.] ..................... 41. State public services; State Public Service Commission. 35. In support of his aforesaid contention he placed reliance on paragraph 37 of Chandra Prakash Tiwari and Ors. v. Shakuntala Shukla and Ors. List II-State List ............................. [2. Police (including railway and village police) subject to the provisions of entry 2A of List I.] ..................... 41. State public services; State Public Service Commission. 35. In support of his aforesaid contention he placed reliance on paragraph 37 of Chandra Prakash Tiwari and Ors. v. Shakuntala Shukla and Ors. (2002) 6 SCC 127 wherein the Apex court noted inter alia, "Police force, admittedly, has a special significance in the administration of the state and the intent of the framers of our constitution to empower the State Government to make rules therefor has its due significance rather than being governed under a general omnibus rule framed under the provisions under Article 309". Therefore, according to the learned Advocate General when Rule 27 prescribed a particular age for superannuation of the members of the Rifles and on the basis of which if a person has already been retired before giving effect to the purported notice dated 20th October, 2010 the said member cannot claim for extension of his service as a regular member of service, as sought for in the instant writ petition. Thus, the writ petition is liable to be dismissed. 36. To refute the submission of the learned Advocate General, Mr. Deb placed reliance on a decision of the Apex Court in Rafiquennessa v. Lal Bahadur Chetri AIR 1964 SC 1511 and also the decision in Shashikalabai (supra) to show that when a circular has been issued for particular purpose and shall come into force with immediate effect then the benefit of the said circular has to be provided to the person who are in service like the Petitioner as in that case it is stated that the circular also states that it shall come into force with immediate effect and the compensation cases already closed shall not be reopened. Since the present case was not closed on the date of the circular coming into effect, the Appellant should have granted the benefit of the new circular. 37. In the instant case, admittedly so far the superannuation age of the Petitioner is concerned that was closed after attaining 50 years of age as prescribed in Rule 27. Thus, according to this Court the same cannot be reopened and also the case which was in fact the subject matter before the Apex Court being was not closed, the effect of subsequent circular was provided. Thus, according to this Court the same cannot be reopened and also the case which was in fact the subject matter before the Apex Court being was not closed, the effect of subsequent circular was provided. Therefore, the same principle cannot be applied in the case in hand. 38. Mr. Deb also placed reliance on some other cases wherein the Apex Court discussed how and in what manner a beneficial legislation can be interpreted. As according to this Court, those cases have No. direct bearing on the case in hand, it would not be proper to burden this judgment with those decisions. However, at the same time it would also not be proper for this Court to ignore the submission of Mr. Deb which has some relevance. 39. Mr. Deb while distinguishing the case of BN Nagarajan (supra) would contend that service conditions of the TSR personnel are referable to entry 41 of list-II of seventh schedule and not entry 2 of list-II. Therefore, the executive authority has the power to exercise its co-extensive legislative power vested on it under Article 162 of the Constitution and in support of his aforesaid contentions he placed reliance on State of Andhra Pradesh and Anr. v. Lavu Narendra Nath and Ors. etc. AIR 1971 SC 2560 particularly, paragraph 6, 7 and 8. This Court has gone through the aforesaid paragraph wherein the Apex Court while discussing the provisions of Article 162 of the constitution stated inter alia, that under Article 162 of the Constitution the executive power of a State extends to the matters with respect to which the legislature of a State has power to make laws but this is subject to the provisions of the constitution. As the Government runs these colleges, it undoubtedly has a right and a duty to make a selection from the number of applicants applying for admission if all could not be admitted. According to this Court, the aforesaid decision has No. direct bearing on the issue involved in this case. 40. As question arises in the instant case as to whether the State executive, exercising its power under Article 162 can amend the Rules 1986 made on the strength of Section 22 of the Act? According to this Court, the aforesaid decision has No. direct bearing on the issue involved in this case. 40. As question arises in the instant case as to whether the State executive, exercising its power under Article 162 can amend the Rules 1986 made on the strength of Section 22 of the Act? If so, whether an employee on completion of his superannuation age applied for extension of services would be guided by the subsequent amendment as given effect to after his attainment of superannuation age and also whether the source of Act, 1983 is entry 2 of list-II or entry 41 of list-II of the Seventh Schedule? 41. This Court has given anxious thought to the submissions and the materials available on record, particularly the representation of the Petitioner and the reply to the same. As the debate in the writ petition has arisen from the representation of the Petitioner it would be proper for this Court to reproduce the representation of the Petitioner dated 17.12.2009 (Annexure-P2 to the writ petition) by which he made prayer for extension of service and application dated 02.03.2010 (Annexure-P4 to the writ petition) of the Petitioner wherein the Petitioner himself asked for extension of one year reemployment service to become eligible for pension in the TSR. Accordingly, the same are reproduced herein under: To The Director General of Police, Agartala, Tripura. (Through proper channel) Subject: Prayer for allowing me to continue in service as a NK Operator (Wireless) either in TSR or in TPA police communication as an ex-servicemen. Sir, I have the honour to inform you that my self being ex-serviceman of Indian Army is devoted in service of TSR as a NK Operator (Wireless) w.e.f. 22.05.2001 my service in TSR is fully satisfactory to the authority while I was recruited in state job it was not informed me the tenure of service can be continued in TSR as an ex-servicemen. It is generally 58 years age of superannuation for state Govt. employees. Knowing it I entered in to job of state Govt. as TSR NK Operator. But ironically enough it is seen that the age of superannuation for the post of NKs is 50 years. In case my criteria is fixed in that category then I will have go on retirement when I shall attain the age of 50 years. employees. Knowing it I entered in to job of state Govt. as TSR NK Operator. But ironically enough it is seen that the age of superannuation for the post of NKs is 50 years. In case my criteria is fixed in that category then I will have go on retirement when I shall attain the age of 50 years. Thereby in that case I shall lose eight years of my service and be deprived of getting 8 years service as well as my pensionary benefit. But actually I have been appointed as a NK Operator TSR Bn Communication wing. So I am not guided in respect of my superannuation by the Sl. No. 27 of page 22 under Tripura State Rifle act 1983. Since I am not NK only but I am NK Operator communication. I shall be regulated in R/O my superannuation of age like Wireless Operator of Tripura Police communication system. It is humbly pray to you that in case my service period in TSR Bn NK Operator is regulated by the particular act I shall not be able to complete my 10 years 3 months mandatory service in TSR because before completion of the said period I shall attain age of 50 years. But if I am considered to serve like state police communication operator I can get pension. As nothing was mentioned about superannuation age of NK Operator communication in rule hence any service my kindly be extended for a period of another 8 years. Otherwise at least for one year one month that is up to 51 years one month of age. So that I can get my pension from TSR after completion of 10 years 3 months service. Therefore, I pray and hope that your honour would be kind enough to consider my prayer and for which act of kindness I shall remain ever grateful to you. Yours faithfully, Regt. No. 01080856 Rank: Nk (Opr) Name: Dwijadas Chakraborty Unit: 8th Bn TSR (IR-III) Lalcherra, Dhalai, Tripura Enclosure: 01. Discharge certificate of Indian Army 02. TSR Interview call letter 03. Superannuation of age of State Rifles. To The DIGP, AP (Adm & Trg) A.D. Nagar Agartala, West Tripura (Through proper channel) Ref: Commandant 8th Bn TSR (IR-III) letter No. F. 68/TSR/Estt/10/1946 dt. Discharge certificate of Indian Army 02. TSR Interview call letter 03. Superannuation of age of State Rifles. To The DIGP, AP (Adm & Trg) A.D. Nagar Agartala, West Tripura (Through proper channel) Ref: Commandant 8th Bn TSR (IR-III) letter No. F. 68/TSR/Estt/10/1946 dt. 05 Jan 2010 and DIGP, AP (Adm & Trg) vide message No. 584/F.1(10)/DAP/TSR/RSV/08 dated 27/01/2010 Subject: Prayer for extension of 01 (one) year reemployment of service to become eligible for pension of re-employment in TSR. Sir, With reference to the above, I have the honour to inform you that I was re-employment in TSR Bn NK operator (wireless) in the year 22/05/2001 as an ex-serviceman. My service in TSR Bn as NK operator (wireless) will expire on 04/08/2010 on attaining the age of superannuation that is age of 50 years. Due to premature leaving of Army I am getting a very small amount of pension from defense service. If my service for another 9 (Nine) months are not completed in TSR I shall not get pensionary benefit from service of state government. Which all ex-servicemen are eligible to get I am quite physically and mentally fit to serve for another one year satisfactorily. In this respect a medical certificate about my health is also enclosed herewith for favour of your perusal. I am very much hopeful and optimist that you kindness will certainly be beneficial for me to serve my purpose. I shall be given one year extension of service w.e.f. 04/08/2010. Thus oblige Yours faithfully Regt. No. 01080856 Rank: Nk (Opr) Name: Dwijadas Chakraborty Unit: 8th Bn TSR (IR-III) Lalcherra, Dhalai, Tripura Enclosure: 01. Discharge certificate of Indian Army 02. TSR Interview call letter 03. Superannuation of age of State Rifles 04. Medical fitness certificate 43. It would be improper on the part of the court if the order on the strength of which the Petitioner continued for three months on extension would not be quoted in the instant judgment. Thus the same is also reproduced herein under as the same would be profitable to come to a proper conclusion and also appreciate the submission of the learned Counsel for the parties. Thus the same is also reproduced herein under as the same would be profitable to come to a proper conclusion and also appreciate the submission of the learned Counsel for the parties. Accordingly, the same is also reproduced herein under: GOVERNMENT of TRIPURA OFFICE of THE DIRECTORATE GENERAL of POLICE TRIPURA: AGARTALA ORDER Subject: Regarding extension of service for a period of three months beyond superannuation age in TSR in respect of Naik (Opr) Dwijadas Chakraborty of TSR 8th (IR-III) Bn. 1. No. 01080856 Naik (Opr) Dwijadas Chakraborty (Group-C) of TSR 8th Bn is hereby granted 3 (three) months extension in service beyond age of superannuation in TSR w.e.f. 01.09.2010 to 30.11.2010. 2. This has been issued by exercising the power of the Head of Department as laid in Memorandum of the Appointment & Services Deptt. Govt. of Tripura issued vide No. F. 19(2)-GA/77(I)(ii) dated 25th May, 1998. Sd/- (Pranay Sahay) Director General of Police Tripura:Agartla No. 33074-71/F.8(16)-PHQ/TSR/2009 Dated, Agartala, the 23rd July, 2010 Copy to: 01. The Commandant, TSR 8th (IR-III) Bn. Lalcherra, Chailengta, Dhalai, Tripura for information and necessary action. Copy also to: 02. The Inspector General of Police, (AP & Ops), Tripura, Agartala. 03. The Dy. Inspr. General of Police, AP (Admn & Trg), Tripura, Agartala. Sd/- illegible 23.07.2010 Asstt. Inspr. Genl. of Police (Ops) For Director General of Police, Tripura. 44. A bare perusal of the application of the Petitioner dated 17.12.2009 as well as 02.03.2010 (Annexures-P2 and P4 to the writ petition respectively) as quoted supra it is clear to the mind of this Court that the Petitioner prayed for re-employment in the TSR so that he could get the pensionary benefits from the service of the State government as he is not entitled to the pensionary benefits even after attaining the age of superannuation, i.e. 50 years. 45. In representation dated 02.03.2011 the Petitioner had specifically stated that he was re-employed in TSR as NK Operator (wireless) on 22.05.2001 and as his service in TSR will expire on 04.08.2010 on attaining the age of superannuation meaning thereby that he himself was also aware at the time of filing the application for extension of one year or re-employment services that he is going to be superannuated on completion of age as prescribed in Rule 27 of the Rules. 46. 46. It is also the admitted position that notification dated 20th October, 2010 by which the word 50 years' was substituted by the word 52 years', the said notification was given effect to only from 20th October, 2010 i.e. almost after two months of the retirement of the Petitioner, rather when he was on reemployment even according to him. Therefore, the question of getting benefit of the said notification does not raise even if this Court accepts the submission of Mr. Deb, to the extent that the word 50 years' is substituted by the word 52 years'. In Indian Tobacco Association (supra) the Apex Court explained the word 'substitute'. There is No. doubt that meaning of the word 'substitute' is 'replace'. Ld. Advocate General also submitted that the word 50' as prescribed age of superannuation before amendment by the purported notification dated 20.10.2010 (Annexure-P6 to the writ petition) has been replaced by the word 52' as superannuation age of Naik Operator. In view of the above, the decision in Indian Tobacco Association (supra) has No application in this case as in this case question is not regarding replacement of superannuation age, but whether the Petitioner and other similarly situated persons will get the benefit of the said notification or not. 47. On perusal of entry 2 of list-II of the Seventh Schedule it appears that the framers of the Constitution considered that police service is totally different and separate service and that is why entry 2 of list-II is for 'police'. If we for the moment consider entry 2 in list-I of the seventh schedule then we will find that the framers of the constitution provided the law making authority should go for making law relating to the Naval, military and air forces; and other armed forces of the union only on the basis of the said entry. If we for the moment consider entry 2 in list-I of the seventh schedule then we will find that the framers of the constitution provided the law making authority should go for making law relating to the Naval, military and air forces; and other armed forces of the union only on the basis of the said entry. Similarly, the list-II also provided that whatever law relating to police including railway and village police has to be made under that entry subject to the provisions of entry 2A of List-I, i.e. Deployment of any armed force of the Union or any other force subject to the control of the Union or any contingent or unit thereof in any State in aid of the civil power; powers, jurisdiction, privileges and liabilities of the members of such forces while on such deployment, i.e. when the state would go for utilising the central forces, then the entry 2 of Schedule seven will not apply. Mr. Deb also did not oppose the submission of the learned Advocate General that the Tripura State Rifles Act, 1983 is made on the basis of entry 2 of the list-II of seventh schedule. Rather he tried to convince the Court that the service conditions of the State Rifles are guided by the entry 41 of the list-II as the service of the members of the Rifles have come within 'State Public Services'. 48. There is No. doubt in the mind of this Court that the Act, 1983 is the outcome of entry 2 of list-II and being the members of the Tripura State Rifles are deemed to be police as stated in Section 18 of the said Act and also the Police Act is applicable to them, therefore, according to this Court their service conditions are guided only by the provisions of rules made under the Act in view of the entry 2 of list-II of the seventh schedule and not guided by rule under Article 309 of the Constitution made on the strength of Article 41 of list-II. 49. 49. There is No. doubt that when a particular entry does not cover a particular Act then that Act can be considered to be made on the basis of other entries subject to that entry covers the subject matter of the Act but in the instant case entry 41 is relating to public services and State Public Service Commission, not relating police services whereas entry 2 of the list-II is relating to police. Therefore, whatever the law has to be made by the State legislature relating to police has to be done under that entry only if not otherwise empowered. 50. As this Court has already held that the State rifles are covered by the provisions of the Act and rules made under the entry 2 of list-II of the seventh schedule, the executive power vested in the government under Article 162 has No application in the instant case. 51. At this stage we may see whether the notification issued on 20th October, 2010 (Annexure-P6 to the writ petition) is a notification under Article 162 or a notification under the Act. 52. It is crystal clear from the notification itself that the instant notification is issued exercising the power conferred under Section 22 of the Act, 1983, i.e. the rule making power and being the said notification is not under challenge it is not necessary for this Court to express any opinion regarding the validity of that notification. 53. Question only remains whether the Petitioner is entitled to get the benefit of that notification or not. As the Petitioner admittedly retired on 31.08.2010 and thereafter prayed for extension on re-employment basis and while he was on re-employment the said notification came into force therefore, he is not entitled to get the benefit of the said notification. A member of the Rifles, who has not completed 50 years of age on the date of notification only will get the benefit of the Notification dated 20.10.2010 (Annexure-P6 to the writ petition) as the notification is applicable in their case only. By this time it is settled that extension in service is not a right but within the discretion of the employer. Aforesaid views of this Court also get support from the decision of the Apex Court in All India Judges Association and Ors. v. Union of India and Ors. By this time it is settled that extension in service is not a right but within the discretion of the employer. Aforesaid views of this Court also get support from the decision of the Apex Court in All India Judges Association and Ors. v. Union of India and Ors. AIR 1993 SC 2493 wherein the Apex Court observed that extension of service after superannuation cannot be claimed as a matter of right. The competent authority is always at liberty to consider the merit of each case whether to grant extension or not". In the instant case the competent authority exercising its discretionary power repealed the prayer of the Petitioner. According to this Court, while exercising such discretionary power the authority did not commit any wrong. 54. There is No. doubt that meaning of extension can be applicable in certain cases where the services of the person is extended on the strength of the service rules covering the field and not in case where the service was extended by way of exercising discretionary power of the employer and subsequently the age of superannuation as prescribed in the rule is extended by way of amendment of rules. 55. In the result, the writ petition is dismissed. 56. No costs. Petition dismissed.