No. G/56702L Prodip Kumar Haloi vs The Union Of India And 2 Ors
2021 Latest Caselaw 502 Gua

                                                                 Page No.# 1/34

GAHC010123872017




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : WP(C)/1421/2017

            NO. G/56702L PRODIP KUMAR HALOI
            S/O. LT. MOHENDRA RAM HALOI, HAVILDAR GD, ASSAM RIFLES,
            PERMANENT RESIDENT OF NEW LABARGHARI, P.O. LOKHRA, P.S.
            CHARIDUAR, PIN.- 784102, DIST. SONITPUR, ASSAM.



            VERSUS

            THE UNION OF INDIA and 2 ORS.
            REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY
            OF HOME AFFAIRS, NORTH BLOCK, NEW DELHI- 110001.

            2:THE DIRECTOR GENERAL OF ASSAM RIFLES

             LAIKORE
             SHILLONG
             PIN.- 793011.

            3:THE COMMANDANT

             5TH ASSAM RIFLES
             C/O. 99 APO
             PIN.- 932005

Advocate for the Petitioner   : MR.A AHMED

Advocate for the Respondent : ASSTT.S.G.I.




             Linked Case : WP(C)/3680/2017
                                                              Page No.# 2/34


DAYAL SINGH BISHT
S/O LT. DALPAT SINGH BISHT HQ COY 4TH ASSAM RIFLES C/O 99 APO.


VERSUS

UNION OF INDIA and 2 ORS
REP. BY THE SECRETARY THE GOVT. OF INDIA
MINISTRY OF HOME AFFAIRS
NEW DELHI- 110001.

2:DIRECTOR GENERAL OF ASSAM RIFLES
SHILLONG MEGHALAYA -11.
 3:THE COMMANDANT 4TH ASSAM RIFLES
C/O 99 APO
 ------------

Advocate for : MS.S BORA Advocate for : MR.S P CHOUDHURY appearing for UNION OF INDIA and 2 ORS

Linked Case : I.A.(Civil)/2907/2019

SUNDER SINGH YADAV S/O LATE CHHAJU RAM YADAV VILL. KAKRALA P.O. KAKRALA P.S. KANINA DIST. MAHENDRAGARH STATE HARYANA PIN 123027 PRESENTLY POSTED AT NO. 3 WORKSHOP ASSAM RIFLES C/O APO JORHAT ASSAM.

VERSUS

UNION OF INDIA AND 2 ORS.

REPRESENTED BY THE SECY. THE GOVT. OF INDIA MINISTRY OF HOME AFFAIRS NEW DELHI 110001

2:DIRECTOR GENERAL ASSAM RIFLES DIRECTORATE GENERAL OF ASSAM RIFLES SHILLONG-11 Page No.# 3/34

3:THE COMMANDANT NO 3 WORKSHOP ASSAM RIFLES C/O 99 APO JORHAT ASSAM.

------------

Advocate for : MS. S BORA Advocate for : MR. K K PARASAR appearing for UNION OF INDIA AND 2 ORS.

Linked Case : WP(C)/5483/2017

PRANAB KUMAR KALITA S/O. LT. NABIN KALITA NO. 355434 HAV/ ORL HQ COY 24 ASSAM RIFLES C/O. 99 APO PIN-932024.

VERSUS

THE UNION OF INDIA and 2 ORS.

REP. BY THE SECRETARY MINISTRY OF HOME AFFAIRS NEW DELHI-110011.

2:THE DIRECTOR GENERAL ASSAM RIFLES

DIRECTORATE GENERAL OF ASSAM RIFLES MAHANIDESHALAYA ASSAM RIFLES SHILLONG PIN-783011.

3:THE COMMANDANT 24 ASSAM RIFLES

C/O.99 APO PIN-932024.

------------

Advocate for : MS. S BORA Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA and 2 ORS.

Linked Case : WP(C)/5774/2017 Page No.# 4/34

SUNIL KUMAR SHAHI S/O KADEER SHAHI R/O VILL and P.O. HARKA MAN SHAHI P.S. MEENAPUR DIST. MUZZAFURPUR BIHAR PIN - 843128.

VERSUS

THE UNION OF INDIA and 2 ORS.

REP. BY THE SECRETARY TO THE GOVT. OF INDIA MINISTRY OF HOME AFFAIRS NEW DELHI - 110001.

2:THE DIRECTOR GENERAL

ASSAM RIFLES DIRECTORATE GENERAL OF ASSAM RIFLES SHILLONG

-11.

3:THE COMMANDANT

8 ASSAM RIFLES C/O 99 APO

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Advocate for : MRSP RAI Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA and 2 ORS.

Linked Case : WP(C)/5875/2017

NO. G/3600164W HAV/GD RAJEN SINGH PALIYAL S/O- NAYAN SINGH PRESENTLY POSTED AT 36 ASSAM RIFLES R/O- VILL- DALI GANGOLIHAL PITHORAGARY UTTRAKHAND PIN- 262527

VERSUS

THE UNION OF INDIA and 2 ORS.

REP. BY THE SECRETARY TO THE GOVT OF INDIA MIN OF HOME AFFAIRS NEW DELHI- 110001 Page No.# 5/34

2:THE DIRECTOR GENERAL ASSAM RIFLES DIRECTORATE GENERAL OF ASSAM RIFLES SHILLONG- 793011 3:THE COMMANDANT 36 ASSAM RIFLES C/O- 99 APO

------------

Advocate for : MR SP RAI Advocate for : appearing for THE UNION OF INDIA and 2 ORS.

Linked Case : WP(C)/7783/2017

NO.M/371073 P HAV/NA DILWAR SINGH CHAUHAN S/O- LT AVTAR SINGH CHAUHAN R/O- VILL- BALASOUR KOTDWARA DIST-PURI GARHWAL UTTARAKHAND PIN-246149

VERSUS

THE UNION OF INDIA and 3 ORS REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA MINISTRY OF HOME AFFAIRS NEW-DELHI-1

2:THE DIRECTOR GENERAL ASSAM RIFLES DIRECTORATE GENERAL OF ASSAM RIFLES SHILLONG-793011 3:THE COMMANDANT 27 ASSAM RIFLES C/O. 99 APO UKHRUL MANIPUR PIN-975145 4:THE OFFICER COMMANDING TRANSIT CAMP ASSAM RIFLES KHANAPARA GUWAHATI-ASSAM

------------

Advocate for : MS U DAS Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA and 3 ORS Page No.# 6/34

Linked Case : WP(C)/1145/2017

ABANTI SINGHA S/O SUBIDAR SINGHA VILL- SARADAMANI LANE P.O- VIVEKANANDA ROAD DIST- CACHAR ASSAM PRESENTLY SERVING AT 39 ASSAM RIFLES C/O 99 APO

VERSUS

UNION OF INDIA and 2 ORS.

REPRESENTED BY THE SECRETARY THE GOVT. OF INDIA MINISTRY OF HOME AFFAIRS NEW DELHI- 11001

2:DIRECTOR GENERAL OF ASSAM RIFILES SHILLONG MEGHALAYA -11 3:THE COMMANDANT 39 ASSAM RIFILES C/O 99APO PIN- 932039

------------

Advocate for : MS.S BORA Advocate for : MS.R DEVI appearing for UNION OF INDIA and 2 ORS.

Linked Case : WP(C)/6184/2017

ASFAQUE AHMED SIDDIQUE S/O LT. SHAMSUDDIN NO. 355076 HAV/ORL HQ 25 SECTOR ASSAM RIFLES PRESENTLY AT HQ. DIRECTOR GENERAL ASSAM RIFLES SHILLONG.

VERSUS

THE UNION OF INDIA and ORS REP. BY THE SECRETARY MINISTRY OF HOME AFFAMRS NEW DELHI - 110011.

------------

Advocate for : MS.S BORA Advocate for : C.G.C. appearing for THE UNION OF INDIA and ORS Page No.# 7/34

Linked Case : WP(C)/1017/2019

SUNDER SINGH YADAV S/O. NO CHHAJU RAM YADAV VILL. KAKRALA P.O. KAKRALA P.S. KANINA DIST. MAHENDRAGARH STATE HARYANA PIN-123027 PRESENTLY POSTED AT NO. 3 WORKSHOP ASSAM RIFLES C/O. APO JORHAT ASSAM.

VERSUS

UNION OF INDIA AND 2 ORS.

REP. BY THE SECRETARY THE GOVT. OF INDIA MINISTRY OF HOME AFFAIRS NEW DELHI-110001.

2:DIRECTOR GENERAL

ASSAM RIFLES DIRECTORATE GENERAL OF ASSAM RIFLES SHILLONG-11.

3:THE COMMANDANT

NO. 3 WORKSHOP ASSAM RIFLES C/O. 99 APO JORHAT ASSAM.

------------

Advocate for : MS. S BORA Advocate for : ASSTT.S.G.I. appearing for UNION OF INDIA AND 2 ORS.

Linked Case : WP(C)/381/2018

RAMESH CHANDER S/O- LATE DINA NATH VILL- CHANNIMORH P.O- SATHANI Page No.# 8/34

DIST- UDHAMPUR STATE J AND K PRESENTLY WORKING AS A WO/GD AT THE 13TH ASSAM RIFLES C/O- APO

VERSUS

UNION OF INDIA REP. BY THE SECRETARY MIN OF HOME AFFAIRS NEW DELHI- 110011

2:THE DIRECTOR GENERAL ASSAM RIFLES DIRECTORATE GENERAL OF ASSAM RIFLES SHILLONG PIN- 793011 3:THE COMMANDANT 13TH ASSAM RIFLES C/O- 99 APO PIN- 932013

------------

Advocate for : MS. S BORO Advocate for : ASSTT.S.G.I. appearing for UNION OF INDIA

Linked Case : WP(C)/2644/2018

DALIP SINGH AND 2 ORS S/O. LATE GANGA RAM VILL.- TIKKAR P.S. TAUNI DEVI DIST HAMIRPUR (H.P.) PRESENTLY WORKING AS WO/GD AT 13 ASSAM RIFLES C/O. 99 APO.

2: AMAR KRISHAN SARKAR VILL. AND P.O. DHAKURIA DIST- 24 PARGANAS (N) W.B.

WORKING AS HAVILDAR/ORL AT 13 ASSAM RIFLES C/O. 99 APO.

3: BOJOY SHANKER TIWARI VILL. AND P.O. GRAMPATON PURA DIST. BUXAR BIHAR Page No.# 9/34

WORKING AS RFN/ GD AT 13 ASSAM RIFLES C/O. 99 APO.

VERSUS

UNION OF INDIA AND 2 ORS REPRESENTED BY THE SECRETARY MINISTRY OF HOME AFFAIRS NEW DELHI- 110011

2:THE DIRECTOR GENERAL ASSAM RIFLES

DIRECTORATE GENERAL OF ASSAM RIFLES SHILLONG- 793011 3:THE COMMANDANT 13 ASSAM RIFLES C/O. 99 APO PIN- 932013

------------

Advocate for : MS. S BORA Advocate for : ASSTT.S.G.I. appearing for UNION OF INDIA AND 2 ORS

Linked Case : WP(C)/6688/2017

YAMUNA SINGH S/O. HARI KRISHNA SINGH NO. 134440 RANK RIFLEMAN/GD HQ. COY 13TH ASSAM RIFLES C/O. 99 APO.

VERSUS

THE UNION OF INDIA and 2 ORS.

REP. BY THE SECRETARY THE GOVT. OF INDIA MINISTRY OF HOME AFFAIRS NEW DELHI-110001.

2:DIRECTOR GENERAL OF ASSAM RIFLES

SHILLONG MEGHALAYA-11.

3:THE COMMANDANT 13TH ASSAM RIFLES

C/O. 99 A.P.O.

------------

Page No.# 10/34

Advocate for : MS. S BORA Advocate for : MR. K K PARASAR R- 1-3 appearing for THE UNION OF INDIA and 2 ORS.

Linked Case : WP(C)/1088/2017

NAWAL KISHORE THAKUR NO.G/183940W PRESENTLY SERVING AS HAVILDAR GD

ASSAM RIFLES C/O. 99 APO.

VERSUS

THE UNION OF INDIA and 2 ORS.

REP. BY THE SECRETARY MINISTRY OF HOME AFFAIRS NEW DELHI- 110001.

2:THE DIRECTOR GENERAL ASSAM RIFLES

DIRECTORATE GENERAL OF ASSAM RIFLES MAHANIDESHALYA ASSAM RIFLES SHILLONG PIN.- 793011.

3:THE COMMANDANT

ASSAM RIFLES C/O. 99 APO PIN.- 932018.

------------

Advocate for : MR.T N SRINIVASAN Advocate for : MS.H TERANGPI appearing for THE UNION OF INDIA and 2 ORS.

Linked Case : WP(C)/3051/2017

JALALUDDIN KHAN NO.G/183838N PRESENTLY SERVING AS HAVILDAR GD Page No.# 11/34

ASSAM RIFLES C/O 99 APO

VERSUS

THE UNION OF INDIA and 2 ORS.

REP. BY THE SECRETARY MINISTRY OF HOME AFFAIRS NEW DELHI-110011.

2:THE DIRECTOR GENERAL

ASSAM RIFLES DIRECTORATE GENERAL OF ASSAM RIFLES MAHANIDESHALYA ASSAM RIFLES SHILLONG PIN - 793011.

3:THE COMMANDANT

ASSAM RIFLES C/O 99 APO PIN - 932018.

------------

Advocate for : MR.N BARUAH Advocate for : appearing for THE UNION OF INDIA and 2 ORS.

Linked Case : WP(C)/1087/2017

SHESH KANT SHARMA NO.G/184001A PRESENTLY SERVING AS HAVILDAR GD

ASSAM RIFLES C/O 99 APO PIN-932018

VERSUS

THE UNION OF INDIA and 2 ORS.

REP. BY THE SECY.

MINISTRY OF HOME AFFAIRS NEW DELHI-11 Page No.# 12/34

2:THE DIRECTOR GENERAL ASSAM RIFLES DIRECTORATE GENERAL OF ASSAM RIFLES MAHANIDESHALYA ASSAM RIFLES SHILLONG PIN-793011 3:THE COMMANDANT

ASSAM RIFLES C/O 99 APO PIN-932018

------------

Advocate for : MR.T N SRINIVASAN Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA and 2 ORS.

Linked Case : WP(C)/6674/2017

MOHAN DEV S/O LT. LACHHI RAM NO. 134346 RANK HAVILDAR/GD B COY 13TH ASSM RIFLES C/O 99 APO

VERSUS

THE UNION OF INDIA and 2 ORS REP. BY THE SECRETARY THE GOVT. OF INDIA MINISTRY OF HOME AFFAIRS NEW DLEHI - 110001.

2:DIRECTOR GENERAL OF ASSAM RIFLES SHILLONG MEGHALAYA-11 3:THE COMMANDANT 13TH ASSAM RIFLES C/O 99 APO

------------

Advocate for : MS.S BORA Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA and 2 ORS

Linked Case : WP(C)/5776/2017

SUSHIL GOHAIN Page No.# 13/34

S/O- LATE KESHAB GOHAIN R/O- VILL- NIZ LAHOWAL P.O AND P.S- LAHOWAL DIST- DIBRUGARH ASSAM

VERSUS

THE UNION OF INDIA and 2 ORS.

REP. BY THE SECRETARY TO THE GOVT OF INDIA MIN OF HOME AFFAIRS NEW DELHI- 110001

2:THE DIRECTOR GENERAL ASSAM RIFLES DIRECTORATE GENERAL OF ASSAM RIFLES SHILLONG-11 3:THE COMMANDANT 8 ASSAM RIFLES C/O- 99 APO

------------

Advocate for : MR.H BEZBARUAH Advocate for : C.G.C. appearing for THE UNION OF INDIA and 2 ORS.

Linked Case : WP(C)/6256/2017

JEEWAN SINGH S/O LT. MAHANT RAM VILL- MANJHOT DIS.T HAMIRPUR HIMACHAL PRADESH PRESENTLY SERVING IN 33 ASSAM RIFLES C/O 99 APO PIN - 932033.

VERSUS

THE UNION OF INDIA and 2 ORS REP. BY THE SECRETARY TO THE GOVT. OF INDIA MINISTRY OF HOME AFFAIRS NORTH BLOCK NEW DELHI- 110001.

2:THE DIRECTOR GENERAL ASSAM RIFLES SHILLONG

MEGHALAYA- PIN -973011.

3:THE COMMANDANT 33 ASSAM RIFLES Page No.# 14/34

C/O 99 APO PIN - 932033.

------------

Advocate for : MS.S BORA Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA and 2 ORS

Linked Case : WP(C)/4716/2019

RAVIKANT YADAV S/O- SRI CHANDRAJEET YADAV VILL- JAMALPUR BHELKHRA P.O- SIRSAL DIST- AZAMGARH STATE UP PRESENT SERVING IN THE 16TH ASSAM RIFLES C/O- APO PIN- 932016

VERSUS

UNION OF INDIA AND 2 ORS REP. BY THE SECRETARY TO THE GOVT OF INDIA MIN OF HOME AFFAIRS NEW DELHI- 110001

2:DIRECTOR GENERAL ASSAM RIFLES DIRECTORATE GENERAL OF ASSAM RIFLES SHILLONG- 11 3:THE COMMANDANT 16TH ASSAM RIFLES C/O- 99 APO PIN- 932016

------------

Advocate for : MS. S BORA Advocate for : ASSTT.S.G.I. appearing for UNION OF INDIA AND 2 ORS

Linked Case : WP(C)/6649/2017

LALLAN YADAV S/O- LATE CHANDER DEV YADAV NO. 134446 RANK HAVILDAR/GD A COY 13TH ASSAM RIFLES C/O 99 APO Page No.# 15/34

VERSUS

THE UNION OF INDIA and 2 ORS.

REP. BY THE SECRETARY TO THE GOVT OF INDIA MIN OF HOME AFFAIRS NEW DELHI- 110001

2:DIRECTOR GENERAL OF ASSAM RIFLES SHILLONG MEGHALAYA-11 3:THE COMMANDANT 13TH ASSAM RIFLES C/O- 99 APO

------------

Advocate for : MS. D BHUYAN Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA and 2 ORS.

BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

JUDGMENT & ORDER

Heard Mr. R. Mazumdar, Mr. A. Ahmed, Ms. S. Bora, the learned counsels for the writ

petitioners. Also heard Ms. A.Gayan, , Mr. K.K. Parasar, , Mr. S.S.Roy, the, Mr. B. Sarma, , Mr.

S.K. Medhi, , Mr. D.C. Borah and Mr. S.P. Choudhury, the learned CGCs for the Union of India.

2. The subject matter in all the writ petitions being identical, the writ petitions are being

disposed of by this common judgment and order.

3. The matters relate to the premature retirement of the petitioners in exercise of the

powers conferred by Rule 48(1)(b) of the Central Civil Service (Pension) Rules, 1972

(hereinafter referred to as Pension Rules, 1972) and Rule 56(j) of the Fundamental Rules.

Though some of the impugned orders in the various petitions show that the premature

retirement of the petitioners has been done either by way of Rule 48(1)(b) of the Pension Page No.# 16/34

Rules, 1972 or FR 56(j), the process undertaken by the respondents for prematurely retiring

the petitioners have been done by applying both Rule 48(1)(b) and FR 56(j).

4. The facts in W(C) No. 5774/2017 are being referred to for disposal of all the writ

petitions. The petitioner, who is a Havilder Nursing Assistant in the Assam Rifles in WP(C) No.

5774/2017 is aggrieved by the Order dated 10.08.2017, issued in exercise of Rule 48(1)(b) of

the Pension Rules, 1972, by which the petitioner has been prematurely retired from service

w.e.f. 01.11.2017. The petitioner's counsel submits that the impugned Order dated

10.08.2017, by which the petitioner has been given notice that he will be prematurely retired

from service w.e.f 01.11.2017 has to be set aside, inasmuch as, the said order, though

purportedly retiring the petitioner on grounds of public interest, has actually prematurely

retired the petitioner due to his low medical category of SHAPE-II.

5. The petitioner's counsel submits that a Government servant, who has completed 30

years of qualifying service, may be retired by the authority in public interest as per Rule 48(1)

(b) of the Pension Rules or if the Government servant has attained the age of 50 years as per

Clause (i) or 55 years as per Clause (ii) of Rule 56(j) of the Fundamental Rules. However,

while invoking Rule 48(1)(b)/ FR 56(j), an opinion has to be formed by the authorities that it

is in public interest to do so, which would require the respondents to come to a finding that

the Government servant's integrity was doubtful or he was found to be ineffective in his

service. He submits that the petitioner has however been prematurely retired on the ground

of having low medical category, which in fact should have attracted Rule 26 of the Assam

Rifles Rules, 2010. He submits that the action of the respondents in retiring the petitioner on

grounds of his low medical category, by applying Rule 48(1)(b) of the Pension Rules is not in

consonance with the Order dated 15.06.2016 passed by this Court in a batch of writ petitions, Page No.# 17/34

the lead case being, WP(C) No. 1250/2015, "Sunil Kumar Shahi Vs. Union of India & 3 Ors".

He also submits that there are many Assam Rifles personnel who have

completed 30 years of service and/or have completed 50 years of age, who are still being

retained in service, though their medical category is not SHAPE-1. In this regard, he has

relied upon the "Nomino Roll of Permanent Low Medical Category Persons in respect of 11

Assam Rifles for the month of December, 2020" issued by the respondents.

6. The counsels for the respondents submit that the petitioner has a low medical

category, i.e. SHAPE-II and as such, the premature retirement of the petitioner in terms of

Rule 48(1)(b) of the Pension Rules, 1972 was justified. They also submit that the members of

the Armed Forces should be in the medical category SHAPE-I and if they do not have the

medical category SHAPE-I, their premature retirement would be in public interest.

The counsels for the respondents also submit that the High Court of Meghalaya has

upheld the premature retirement orders issued by the respondents in similar cases i.e. WA

No. 12/2014, "Sh. Tikendra Singh Vs. Union of India & Others , WA No. 52/2013, "Union of

India Vs. Sh. Uttam Chand " and WP(C) No. 12/2015, " Ravi R, Service No. G/2201010M Vs.

Union of India".

7. I have heard the learned counsels for the parties.

8. This Court in its Order dated 15.06.2016, passed in Sunil Kumar Shahi Vs. Union

of India & 3 Ors (supra), has dealt with FR 56 (j), Rule 48 of the Pension Rules, Rule 26 of

the Assam Rifles Rules, 2010 extensively. The above order was upheld by the Division Bench

and the appeal filed by the respondents in the Supreme Court has been dismissed. The facts

of the case in "Sunil Kumar Shahi Vs. Union of India & 3 Ors" (supra) is that the petitioner

had been permitted to retire from service under the provisions of Rule 48(1) of the Pension Page No.# 18/34

Rules, 1972 and FR 56(j) vide Order dated 15.10.2015. The petitioner therein challenged the

said Order dated 15.10.2015 on the ground that he had not made any prayer for premature

retirement. However, in the affidavit filed by the Union of India in the above case, it was

shown that the petitioner had been retired under FR 56 read with Rule 48 (1)(b) of the

Pension Rules, as the petitioner was in the low medical category of SHAPE-II. This Court vide

Order dated 15.06.2016 held that as the petitioner had been retired on the basis of his low

medical category, the respondents should have followed the appropriate procedure under

Rule 26 of the Assam Rifles Rules, 2010, which provides a detailed procedure for retirement

or discharge by reason due to medical unfitness and that the respondents could not have

retired him prematurely under FR 56(j) and Rule 48(1) of the Pension Rules due to his

medical disability/ low medical category.

9. The extract of the Order dated 15.06.2016 passed by this Court in the case of Sunil

Kumar Shahi Vs. Union of India & 3 Ors (supra) is reproduced below:-

"FR 56 deals with retirement of Government servant at the age of 60 years. As

perFR 56 (j), notwithstanding anything contained therein, the appropriate authority

shall, if it is of the opinion that it is in the public interest so to do, have the absolute

right to retire any Government servant by giving him notice of not less than three

months in writing or three months' pay and allowances in lieu of such notice. As per

Clause (i), in respect of Group-A and Group-B personnel, such retirement can be

effected after attaining the age of 50 years and as per Clause (ii) in any other case

after attaining the age of 55 years. Thus, from ananalysis of FR 56(j) what can be

deduced is that the appropriate authority must first form an opinion that it would be in

the public interest to prematurely retire a Govt. servant. Once such opinion is formed, Page No.# 19/34

the appropriate authority would have the absolute right to retire such Government

servant; but, before doing so, the Government servant must be given notice in writing

of not less than three months or three months' pay and allowances in lieu of such

notice. FR 56 (jj) provides that if on a review of the case either on a representation

from the Government servant retired prematurely or otherwise, it is decided to

reinstate the Government servant in service, the authority ordering reinstatement may

regulate the intervening period between the date of premature retirement and the

date of reinstatement by treating the intervening period as a period spent on duty for

all purposes, including pay and allowances if it is held that premature retirement was

not justified or if such premature retirement is set aside by a Court of law. From a

cumulative reading of FR(j) and FR(jj) what transpires is that prior to taking a decision

to retire a Government servant prematurely, three months notice is required to be

given to the Government servant or in lieu thereof, three months' pay and allowances.

This is so to enable the Government servant to make a representation against his

premature retirement. If such a representation is submitted, the same is required to

be considered by the appropriate authority who may even direct reinstatement, if he

comes to the conclusion that premature retirement was not justified. Rule 48 of the

Pension Rules provides for retirement on completion of 30 years' qualifying service. As

per Clause-1, at any time after a Government servant has completed thirty years'

qualifying service, he may retire from service or he may be required by the appointing

authority to retire in the public interest and incase of such retirement, a Government

servant would be entitled to a retiring pension. As per the first proviso (b), the

appointing authority may give a notice in writing to the Government servant at least Page No.# 20/34

three months before the date on which he is required to retire in the public interest or

to provide 3 months' pay and allowance in lieu of such notice. Thus from a careful

reading of Rule 48 of the Pension Rules, it is evident that a Government servant may

be retired by the appointing authority on completion of thirty years' of qualifying

service in the public interest provided a notice in writing is given to the Government

servant at least three months before the date on which he is required to go on

retirement in public interest or to provide three months' pay and allowances in lieu of

such notice. The instructions relating to implementation of Rule 48 of the Pension

Rules are laid down in Appendix-9 to the Pension Rules. While Part-1 deals with the

rules position, Part-II deals with criteria, procedure and guidelines. On the other hand,

Part-III deals with procedure for consideration of representation and Part-IV lays down

the time-schedule for review. In the rules position reference has been made to FR 56

(j) and Rule 48 of the Pension Rules. In so far criteria, procedure and guidelines are

concerned, it is stated that in order to ensure that the powers vested in the

appropriate authority are exercised fairly and impartially and not arbitrarily, procedures

and guidelines have been laid down to review the cases of Government servants being

considered for premature retirement. As per Clause (1), case of a Government servant

covered by FR 56 (j) or Rule 48 of the Pension Rules should be reviewed six months

before attaining the age of 50 or 55 years or on completion of 30 years of qualifying

service, whichever is earlier. Clause (2) provides for constitution of committees to

recommend whether the Government servant should be retired from service in the

public interest or whether he should be retained in service. Clause (3) lays down the

criteria to be followed by the committee while making the recommendation.

Page No.# 21/34

Government employees whose integrity is doubtful, should be retired. Government

employees, who are found to be ineffective should also be retired. The basic

consideration in identifying such employee should be the fitness/competence of the

employee to continue in the post which he is holding. At the time of review, the entire

service record of the Government servant should be considered. No Government

servant should ordinarily be retired on the ground of ineffectiveness, if his service

during the preceding 5 years has been found to be satisfactory or where he has been

promoted to a higher post during the preceding 5 years. No employees should

ordinarily be retired on ground of ineffectiveness if in any event he would be retiring

on superannuation within a period of one year from the date of consideration. Clause

(4) provides that such decision to prematurely retire a Government servant must

strictly be in public interest and should not be an arbitrary decision or decision based

on collateral grounds. The appropriate authority should record in the file that it has

formed its opinion that it is necessary to retire the Government servant in pursuance

of the aforesaid rules in the public interest. The rules relating to premature retirement

should not be used to retire a Government servant on grounds of specific acts of

misconduct as a short cut to initiating formal disciplinary proceeding or as a measure

of reduction of surplus staff without following the rules and instructions relating to

retrenchment. Clause (8) provides that when the appropriate authority has come to

the conclusion that the Government servant may be prematurely retired, the three

months' notice may be given before the Government servant attains the specified age

or completes 30 years of service, as the case may be. While notice of such retirement

could be given before the Government servant actually completes 30 years of service Page No.# 22/34

qualifying for pension, the date of expiry of the notice on which the Government

servant's retirement would be effective should be one falling on or after the date of his

completing 30 years of service qualifying for pension. Part-III deals with procedure for

consideration of representation. It says that a Government servant who has been

served with a notice/order of premature retirement may submit a representation

within 3 weeks from the date of service of such notice. Thereafter how the

representation is to be considered is laid down. However, it is mentioned that as and

when representations are received, those should be examined by the appropriate

committee. Petitioner has placed on record a copy of instructions regarding premature

retirement of Central Government servants as contained in the Government of India,

Ministry of Home Affairs Office Memorandum dated 05.01.1978 which are almost pari

materia to the provisions contained in Appendix 9 to the Pension Rules. Additionally, it

is however mentioned that if the Government servant is not found fit to continue in his

present post, his fitness/competence to continue in the lower post from where he had

been previously promoted, should be considered. In the part dealing with procedure

for consideration of representations, it is mentioned that the appropriate

Representation Committee should take special care to see that over-rigorous

standards were not applied at the time of original review in the matter of judging

ineffectiveness of the employee on account of mistaken sense of overzealousness and

that pre-mature retirement was not resorted to as a means of political or personal

victimization. It also provides that review of cases of the employees prematurely

retired be conducted by a committee of officers of appropriate status unconnected

with the original decision to retire the employee prematurely. Having noticed and Page No.# 23/34

discussed the above, relevant provisions of the Assam Rifles Rules may now be

adverted to. The Assam Rifles Rules have been framed by the Central Government in

exercise of powers conferred by section 165 of the Assam Rifles Act, 2006. Rule 26 is

relevant and the same is extracted hereunder:-

_ 26. Retirement or discharge of subordinate officers and enrolled persons on grounds of

physical unfitness - (1) Where a Commandant is satisfied that a subordinate officer or

an enrolled person is unable to perform his duties by reason of his physical disability,

he may direct that the said subordinate officer or enrolled person, as the case may be,

be brought before a medical board.

(2) The medical board shall consist of such officers and shall be constituted in such

manner as may, from time to time, be laid down by the Director-General.

(3) Where the said subordinate officer or the enrolled person is found by the medical

board to be unfit for further service in the Force, as the case may be, the authority as

specified in Rule 17 shall, if it agrees with the findings of the medical board,

communicate to the said person the findings of the medical board and thereupon,

within a period of thirty days of such communication, the person may make a

representation against it to the competent authority supported by a prima-facie

evidence of error of judgment in the opinion expressed by the medical board such an

evidence should be from a Government doctor not below the status of civil surgeon

and should contain specific mention that he has taken into consideration the findings

of the medical board before giving his opinion. (4) Where the person declared to be

unfit for further service makes representation under sub-rule (3), the same shall be Page No.# 24/34

forwarded to the next superior officer, who shall have the case reviewed by a fresh

medical board constituted for the purpose and order the retirement/discharge of the

said person, if the decision of the fresh medical board is adverse to him.

(5) Where no representation is made against the decision of the medical board under

sub-rule (3), the authority as specified in Rule 17, as the case may be, may (if he

agrees with the findings of the medical board) order the retirement or discharge of the

person concerned. _

A perusal of Rule 26 as extracted above would go to show that in a case where

the Commandant is satisfied that a sub-ordinate officer or an enrolled person is unable

to perform his duties by reason of physical inability, such an officer or enrolled person

may be brought before a medical board to be constituted in the prescribed manner. If

the medical board finds such officer or enrolled person to be medically unfit for further

service in the Assam Rifles and if the Commandant agrees with the findings of the

medical board, the same shall be communicated to the person concerned whereafter

the affected person may make a representation within 30 days of such communication

supported by prima-facie evidence of error of judgment in the opinion expressed by

the medical board; such evidence being from a Government doctor not below the

status of a civil surgeon. When such a representation is received, the same shall be

forwarded to the next superior officer, who shall have the case reviewed by a fresh

medical board constituted for the purpose. What, therefore, emerges from the above

is that whether it is a case covered by FR 56(j) or Rule 48 of the Pension Rules or Rule

26 of the Assam Rifles Rules, a detailed procedure is prescribed if the authority desires Page No.# 25/34

to prematurely retire a Government servant."

This Court thereafter set aside the premature retirement Order dated 15.10.2014 in

WP(C) No. 1250/2015, on the ground that the authorities did not apply the proper provision

and procedure of law, prior to prematurely retiring the petitioner.

10. Rule 48(1)(b) of the Pension Rules, 1972 provides that a Government servant may be

retired from service in the public interest after he has completed 30 years qualifying service.

Under FR 56 (j), the Government servant who seeks retirement or is going to be prematurely

retired in public interest should have attained 55 years in case of Group C and D personnel.

However, the appointing authority has to give in writing to the Government servant under

Rule 48(1)(b) /FR 56(j), at least 3 months notice before the date on which he is required to

retire in the public interest or to provide 3 months pay and allowance in lieu of such notice,

before retiring him.

11. Rule 26 of the Assam Rifles Rules, 2010 deals with retirement or discharge of

subordinate officers and enrolled persons on grounds of physical unfitness. It provides that if

a Commandant is satisfied that a subordinate officer or an enrolled person is unable to

perform his duties by reason of his physical disability, he may be brought before a medical

board. If he is found by the medical board to be unfit for further service in the Assam Rifles, and

if the Commandant agrees with the findings of the medical board, such findings should be

communicated to the person concerned, enabling him to make a representation within a period of

30 days from such communication. If the finding of the medical board is contested, the

representation should be supported by prima facie evidence of error of judgment in the opinion

expressed by the medical board, through a Government doctor not below the status of civil

surgeon. If such representation is made, the case of the concerned person shall be reviewed by a Page No.# 26/34

fresh medical board. The final decision would depend upon the outcome of the review medical

board.

12. As can be seen from the extract of the Order dated 15.06.2016 passed by this Court in

the case of Sunil Kumar Shahi Vs. Union of India & 3 Ors ( Supra), Clause 3 of appendix 9 to

the Pension Rules, 1972 provides that Government employees whose integrity is doubtful

should be retired. Government employees, who are found to be ineffective should also be

retired. Though this Court in the case of Sunil Kumar Shahi Vs. Union of India & 3 Ors

(Supra) has stated that the instructions relating to implementation of Rule 48 of the Pension

Rules, 1972 are laid down in Appendix-9 of the Pension Rules, the same seems to be a

typographical error, inasmuch as, it is Appendix 10 of the Pension Rules which deals with

instructions regarding premature retirement of Central Government servants applicable to FR

56(j) and to Rule 48 of the Pension Rules, 1972. The basic consideration in identifying

whether such employee is fit/competent to continue in the post which he is holding would

require that the entire service records of the Government servant should be considered at the

time of review. Thus, for the purpose of forming an opinion as to whether a Government

servant should be retired in public interest, the respondents have a duty to make an opinion

regarding the integrity of the person concerned or whether he is ineffective in service, after

reviewing the entire service record of the Government servant. However, in the present case,

the Selection Board had only considered 5 ACRs of the petitioner covering 5 years of the

petitioner's service period, while considering further retention of the petitioner in service,

though Clause 3 of Appendix-10 to the Pension Rules required that the entire service record

of the Government servant was to be considered.

13. In the present case, the stand of the respondents is that the petitioner is in the low Page No.# 27/34

medical category of SHAPE-II. The petitioner's service had been terminated by way of

premature retirement in the public interest by invoking Rule 48 (1)(b) of the Pension Rules,

1972. However, as stated earlier, the invocation of Rule 48 (1)(b) of the Pension Rules/FR

56(j) to prematurely retire a Government servant, requires the respondents to show that the

integrity of the petitioner was doubtful or that he was ineffective in service. There is no

finding or recording made by the respondents to the effect that the integrity of the petitioner

was doubtful or that the petitioner was ineffective in service. The consideration/review made

by the Selection Board, as reflected in annexure-2 of the affidavit-in-opposition does not give

any indication that the petitioner was unable to do the work assigned to him.

14. The Selection Board which had reviewed the petitioner's service made the following

remarks "not recommended due to employability restrict and opinion of the Board ". The

above remarks "opinion of the Board" refers to the medical category awarded to the

petitioner by the Medical Board, which is S1H1A2(P) P-2 (P) & P-2 (T-24) E1 and the words

'employability restrict" could mean the petitioner's employability is restricted to a certain

nature of work/duty/employment. However, the nature of work done by various Assam Rifles

personnel are different. Some do ministerial work, others are cooks, drivers, combatants etc.

As such, the use of the words "employability restrict" cannot be used in a general sense,

inasmuch as, the said words should have some relation to the nature of work done by the

concerned personnel or it should be clarified as to whether he is ineffective in a particular line

of work. This would give an opportunity to the government servant to address the particular

issue when he is issued the notice. The use of the words "employability restrict" does not, to

my mind, satisfy the requirement for forming an opinion that the premature retirement of the

petitioner is in public interest, as the ineffectiveness in service has not been stated and the Page No.# 28/34

same does not lead to an inference that the petitioner was ineffective in his service. The

respondents have to be more specific while forming an opinion.

15. As can be seen from the remarks made by the Selection Board while reviewing the

petitioner's service, there is no opinion/finding made by them that the petitioner was

ineffective in his service in respect of the work done by him. The only thing that is discernible

is that the petitioner has been found to be in the low medical category of SHAPE-II. However,

the above does not take away the fact that a person's medical condition can lead to

ineffectiveness in service. In the present case, the petitioner being a Male Nurse, it was

incumbent on the part of the respondents to specify/clarify if the medical categorization of

the petitioner affected the petitioner's work efficiency as a Male nurse. However the same

was not done. Further, the grading given in all the 5 ACRs states "recommended". However,

the final grading given says " not recommended due to employability restrict and opinion of

the Board". Thus, it appears that final grading given by the Selection Board on the basis of all

the 5 ACRs taken together is only due to the low medical categorization of the petitioner.

As the reason for premature retirement of the petitioner has been made due to his low

medical category, which has impliedly been related to the words "employability restrict", Rule

26 of the Assam Rifles Rules would have to be followed, prior to applying Rule 48 (1)(b) of

the Pension Rules/FR 56(j). The respondents cannot, in the guise of applying Rule 48(1)(b) of

the Pension Rules, 1972 or FR 56(j), retire a person due to his low medical categorization,

without first following the procedure prescribed under Rule 26 of the Assam Rifles Rules,

2010.

16. In light of the above, it is quite apparent that the State respondents have not been

able to make out a case that the petitioner's premature retirement has been made due to Page No.# 29/34

public interest. Similarly, where a Government servant is sought to be prematurely retired

under FR 56(j), the appropriate authority has to first form an opinion that it is in public

interest to do so and as such, the question of integrity or ineffectiveness in service would

have to be gone into. However, even in those cases where FR 56(j) has been applied, the

premature retirement of the petitioner has been done only due to the low medical category

given to the petitioners, in which case the procedure prescribed under Rule 26 of the Assam

Rifles Rules, 2010 would have to be followed.

17. The submission made by the counsels for the respondents that if the members of the

Assam Rifles did not have the Medical Category of Shape-1, their premature retirement would

be in public interest, is not borne out by the "Nomino Roll of Permanent LMC Persons in

respect of 11 Assam Rifles for the month of December, 2020" herein after referred to as the

"Nomino Roll". A perusal of the "Nomino Roll" would go to show that G/114432, Rfn./GD

Haman Sangma, who is 52 years of age and having 33 years of service is suffering from

Hypertension. It is also stated that he is unfit for HAA/ECCA. HAA means high altitude areas.

WO/GD, Jai Singh, having Regimental No.G/114059 is 53 years of age and having served for

35 years, is diagnosed with Alcohol Dependence Syndrome and Obesity. Under the Column

Remarks, it is stated that he is unfit to handle firearms and he needs to work under direct

supervision. Further, he has to abstain from alcohol. In respect of Hav/GD, N.P. Yadav, having

Regimental No.114231, who is 53 years old and having 33 years of service, he shown to have

Osteoarthritis B/L Knee. Under the Column Remarks it is written Excuse BPET/PPT & Prolong

standing duties. All the above three Assam Rifles personnel amongst others are in the Medical

Category, Shape-2. Thus the above shows that the respondents are not acting uniformly,

while taking decisions in the matter relating to retention of Government servants.

Page No.# 30/34

18. In the case of Vijay Pal Singh vs. Union of India and Others, reported in 2014 Legal

Eagle (Utt) 3476, the Uttarakhand High Court was seized of a matter, wherein a Head

Constable of the Central Industrial Security Force (CISF) was prematurely retired from service

under Rule 56(j) of the Fundamental Rules. The respondents in the above case took the plea

that due to the petitioner's medical condition, the said CISF personnel could not be retained

in service. The High Court of Uttarakhand held that the termination order of the petitioner did

not reflect that he had been terminated due to his medical condition. It also held that the

termination of the petitioner due to his medical condition could not be accepted, as there was

a specific provision for retiring an enrolled member of the force (CISF) on ground of medical

unfitness, as provided in Rule 91B of the CISF Rules, 2001. Thus, the respondents could not

take recourse to the medical condition of the petitioner to prematurely retire him under Rule

56(j) of the Fundamental Rules, without following the procedure provided in Rule 91B of the

CISF Rules 2001.

19. The Division Bench of the Meghalaya High Court in WA No. 12/2014 " Sh. Tikendra

Singh Vs. Union of India (Supra), which was disposed of vide Judgment and Order dated

22.07.2015 held that for the purpose of considering compulsory retirement of an employee, it

is permissible for the employer to take into consideration the adverse entries which were not

communicated to the employee and that the rule of audi alteram partem was not applicable

while passing the order for compulsory retirement. Further, since the order of compulsory

retirement was not penal in nature and carried no stigma, the adverse entries entered prior

to promotion or crossing of the efficiency bar for picking up higher rank are not wiped off.

The same can be taken into account while considering the overall performance of an

employee to form an opinion if it is in public interest to retain the person in service.

Page No.# 31/34

The facts of the above case are not similar to the facts of this case as the Government

servant in the above case had been retired due to the adverse entries which had been

recorded in his ACR, while in the present case, the petitioner had been prematurely retired

due to his medical condition. As such, the Judgment of the Meghalaya High Court in WA No.

12/2014 is not applicable to this case.

20. In WA No. 52/2013 "Union of India Vs. Sh Uttam Chand", which was disposed of vide

Order dated 18.08.2015, the Division Bench in a one paragraph order recorded that the

Government servant was discharged from service after having served for 30 years and on

attaining 55 years of age. The Division Bench also recorded the fact that the standard of

medical examination required in the Assam Rifles is a little higher, but that did not mean that

only because the Government servant had been detected to have the problems of

hypertension, he had ceased to be medically unfit for employment in other organizations. As

the impugned order was not stigmatic, the Division Bench held that the compulsory

retirement of the Government servant would not come in the way of seeking reemployment

in other organizations. The writ appeal was accordingly disposed of.

It is settled law that a decision is only an authority for the case it decides and not what

logically follows from it. A little difference in facts changes the precedential value of a

decision. In the case of Bharat Petroleum Corporation Ltd. Vs. N.R. Vairamani, reported in

(2004) 8 SCC 579, the Apex Court has held that a judgment of a Court of law should not be

read as a Euclid's theorem nor as a provision in a statute. Though the premature retirement

of the Government servant had been upheld on medical grounds, the above order passed in

WA No. 52/2013 does not indicate that Rule 26 of the Assam Rifles Rules, 2010 had been

considered by the Division Bench of the Meghalaya High Court. Accordingly, the decisions Page No.# 32/34

rendered by the Division Bench of the Meghalaya High Court in WA Nos. 12/2014 and

52/2013, with utmost respect, in the humble opinion of this Court, are not applicable to the

facts of this case.

21. In respect of the Judgment and Order dated 15.03.2016 passed by the Single

Judge of Meghalaya High Court in the batch of writ petitions, the lead case being WP(C) No.

12/2015, "Ravi R Service No. G/2201010M Vs. Union of India", the premature retirement of

the Government servants therein by application of Rule 48(1)(b) of the CCS(Pension) Rules,

1972, was upheld on the ground that fitness of personnel of the Armed Forces was of

paramount consideration and there could not be any compromise on that issue. The Single

Judge also held that National interest as well as public interest was much higher than

individual interest and accordingly, he could not allow the keeping of deadwood employees,

thereby weakening the Armed Forces.

22. An appeal was filed against the common Judgment and Order dated 15.03.2016

passed in the batch of writ petitions, the lead case being WP(C) No. 12/2015. One of the

appeals was WA No. 7/2016, which was disposed of by the Division Bench of the Meghalaya

High Court on 23.10.2017. The Division Bench held that the writ petitions required

reconsideration by the learned Single Judge in view of the fact that the core issues involved

had not been considered in the impugned order, which proceeded essentially on the premise

that for their low medical category, the Government servant were deadwood for the Assam

Rifles and had rightly been discharged from service. The Division Bench held that the issue of

whether the compulsory retirement of the Government servant on medical grounds could

have been ordered under the Pension Rules, 1972, without following the procedure under

Rule 26 of the Assam Rifles Rules, 2010 had not been gone into by the learned Single Judge.

Page No.# 33/34

Accordingly, the Division Bench remanded the writ petitions back to the learned Single Judge

for reconsideration. While coming to the above findings that the issue of applicability of Rule

26 of the Assam Rifles Rules, 2010, had not been gone into by the learned Single Judge, the

Division Bench of the Meghalaya High Court took into consideration the Judgment of the Apex

Court in the case of Union of India & Ors Vs. Rajpal Singh , reported in 2009(1) SCC 2016 and

the relevant portion of the Division Bench Judgment is as follows:-

"The learned Single Judge has referred only to paragraph 17 of the decision in Rajpal Singh's case (Supra) wherein, the Hon'ble Supreme Court indicated that fitness of personnel of Armed Forces at all levels was of paramount consideration and there cannot be any compromise on that score. However, while considering discharge of a Junior Commissioned Officer in Army on account of low medical category, the Hon'ble Supreme Court indicated the requirements of following the prescribed procedure in paragraph 27 of the same decision as follows:-

"27. In view of the foregoing interpretation of the relevant rule, we are in complete agreement with the High Court that where a JCO is sought to be discharged on the ground of medical unfitness for further service, his case has to be dealt with strictly in accordance with the procedure contemplated in Clause I(ii) in Column 2 of the Table appended to Rule 13. The Rule prescribes a particular procedure for discharge of a JCO on account of medical unfitness, which must be followed and, therefore, any order of discharge passed without subjecting him to the invalidating Board would fall foul of the said statutory rule."

In view of the above, the issues relating to the applicable rules and the prescribed procedure therein need to be examined in the present matters."

23. Thus, this Court is of the view that the Judgments relied by the counsels for the

respondents do not come to the aid of the respondents, as the issue of premature retirement

of the Government servant on medical ground would necessarily require that the procedure

enumerated in Rule 26 of the Assam Rifles Rules, 2010 should be strictly followed, which has

not been done.

24. In view of the reasons stated above, this Court finds that termination of the

petitioner's service vide the impugned Order dated 10.08.2017 is unsustainable and Page No.# 34/34

accordingly set aside. All other impugned orders in the connected writ petitions are also

hereby set aside.

The writ petitions are accordingly allowed.

JUDGE

Comparing Assistant