“There Cannot Be Equality In Illegality”: Jharkhand High Court Rejects Pleas Of Ex-Servicemen Seeking Superannuation

The Jharkhand High Court has dismissed a batch of numerous Writ Petitions filed by ex-servicemen seeking superannuation.

The Petitioners were ex-servicemen/ex-army personnel who were appointed in terms of a scheme for the Special Auxillary Police (SAP) Force.

A Single Bench of Justice Ananda Sen remarked, “Respondents could not have allowed anyone beyond the scheme to continue and by doing so, respondents committed illegality. Petitioners cannot derive benefit from such illegalities. There cannot be equality in illegality.”

The Bench said that no intra-departmental correspondence or an opinion can override or supersede any of the clauses of the scheme.

Advocate Aparajita Bhardwaj represented the Petitioners, while Advocate General Rajiv Ranjan represented the Respondents.

Facts of the Case

Though in all the Writ Petitions, nature of prayer was different, but the issues and the reliefs, which the Petitioners sought were same. In some of the cases, Petitioners challenged the order by which they were removed from the service and they also sought a direction from the High Court to allow them to work till their age of superannuation. In some of the Writ Petitions, Petitioners prayed to allow them to work till they attain the age of superannuation. Further, the Petitioners prayed that no fresh advertisement should be published for further appointments and they be allowed to continue to work.

They also challenged the restriction, which was imposed for employment, which was 7 (seven) years. Lastly, they submitted that since they were appointed against a scheme, their tenure should be co-terminous with the scheme. The counsel for the Petitioners argued that the scheme does not provide any age of superannuation, thus, it will be presumed that the Petitioners’ age of superannuation will be the same as that of a government servant.

Court’s Observations

The High Court after hearing the arguments from both sides, observed, “Be it noted that the formation of Special Auxillary Police Force was by virtue of a scheme framed by the Government, which is dated 7th June, 2008. The said scheme provides that the tenure of the personnel, who are taken in contractual employment, would be of 2 (two) years, which can be extended by another 5 (five) years, thus, total of 7 (seven) years. The scheme, as stated earlier, was framed with the approval of the Government. The scheme does not provide for any age of superannuation. The tenure has only been fixed. The said scheme was amended on 18th March, 2016. The amendment was brought with the approval of the Government, which amended only Clause 4 (v) of the original scheme, to enhance the age brackette of the different contractual ex-service men, who wants to seek appointment. This amendment also did not introduce any age of superannuation of these contractual personnel.”

The Court further noted that any clause of the scheme, which does not provide for age of superannuation, rather provides for specific tenure, cannot be modified by any recommendation of an Inspector General of Police (Operations) or by the Commandant.

“These letters of Inspector General of Police (Operations) and Commandant are mere recommendations, which cannot override the scheme framed and formulated by the Government. If any age of superannuation was to be included or to be read into the scheme, the same can only be done by a proper amendment and not by any recommendatory letter. This scheme is nothing but a rule governing the Special Auxillary Police Force. Any rule governing the issue of appointment or service condition has to be strictly followed. Any deviation can only be made by a proper amendment only”, it added.

The Court emphasised that the scheme is to be strictly followed and the clauses, if there is no ambiguity, have to be adhered to and must be interpreted as it is drafted.

“In this case, there is no ambiguity in the clauses, i.e., the tenure of service of contractual ex-servicemen, which is 2 (two) years, extendable by 5 (five) years. There is nothing in the scheme to extend the period of service beyond 7 (seven) years. When the scheme does not specifically provide for age of superannuation, any intra-departmental letter cannot amend or supersede the same”, it enunciated.

The Court reiterated that inter-departmental communications are in the process of consideration for appropriate decision and cannot be relied upon as a basis to claim any right.

“So far as letters of recommendations are concerned, same have got no value in the eyes of law. Same are recommendatory in nature. The scheme has not yet been amended. If the Government had accepted the recommendations, they should have taken appropriate steps to amend the Scheme as it was done in 2016 by increasing the age brackette of appointment. This is not the case here. Admittedly, the scheme has not been amended by including the age of superannuation”, it said.

The Court was of the view that when the age of superannuation has not been included in the scheme, the same cannot be read by virtue of some intra-departmental letters between the Inspector General of Police (Operations) and the Commandant.

“There is nothing on record to suggest that the Government or the Department or the Highest Authority has accepted these recommendations. These letters are nothing but an opinion of the individuals and I hold that they exceeded their jurisdiction in doing so. In my opinion, the same does not have any force of law and cannot be treated to be a mandate as they are not the authorities to mandate and fix the age of superannuation. These letters cannot also override the clauses of the scheme”, it held.

Conclusion

Furthermore, the Court remarked that it cannot be said that the tenure of the Petitioners should be co-terminous with the scheme and even if the scheme was extended, the Petitioners cannot get any benefit out of the same.

“Since the scheme does not whisper that the appointment of the petitioners so made will be co-terminos with the Scheme, the petitioner cannot get any benefit. The petitioners cannot claim their services to be co-terminous with the Scheme. Further the concept of adhoc recruitment and adhoc appointments, which is impermissible, will also not be applicable in this case, as the nature of appointment is for a temporary period to rehabilitate ex-servicemen, providing adequate force for institutions and also to get a comparatively young continuing work force from time to time. There is a rationale in keeping the tenure to 7 (seven) years maximum, rather than to fix an age of superannuation. The State needs to rotate the work force for which this scheme has been made”, it also observed.

The Court, therefore, concluded that the Petitioners cannot, by way of right, claim that their age of superannuation be fixed in terms of recommendatory letter, which has got no force of law and hence, no relief can be granted to them.

Accordingly, the High Court dismissed the Writ Petitions.

Cause Title- Francis Kujur & Ors. v. The State of Jharkhand & Ors. (Neutral Citation: 2025:JHHC:37808)

Appearance:

Petitioners: Advocates Aparajita Bhardwaj, Tanya Singh, Rahul Kumar, and Richa Lal.

Respondents: Advocate General Rajiv Ranjan, ACs Pinky Tiwary, and Komal Tiwary.

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