No. G/94193F Hav/Gd Soan Singh vs The Union Of India
2022 Latest Caselaw 2537 Gua

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GAHC010018342018




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

                                 Case No. : WP(C)/619/2018

            NO. G/94193F HAV/GD SOAN SINGH
            S/O- SHRI KARAN SINGH, R/O- VILL- BANGAON, P.O- SIMLI, DIST-
            CHAMOLI, UTTARAKHAND, PIN- 246474



            VERSUS

            THE 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
             MAHANIDESHALYA
            ASSAM RIFLES
             SHILLONG
             PIN- 793011

            3:THE COMMANDANT
             9TH BN
            ASSAM RIFLES
             C/O- 99 APO
             PIN- 93201

Advocate for the Petitioner   : MR. A R TAHBILDAR

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




             Linked Case : WP(C)/580/2018
                                                                Page No.# 2/9


NO.G/94167A HAV/GD JAI SINGH
S/O- SHRI FATHE SINGH
R/O- VILL- KANDEY
P.O- ULLANGRA
VIA DEWAL
DIST- CHAMOLI
UTTARAKHAND
PIN- 246427


VERSUS

THE 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
 MAHANIDESHALAYA
ASSAM RIFLES
 SHILLONG
 PIN- 793011
 3:THE COMMANDANT
9TH BN
ASSAM RIFLES
 C/O- 99 APO
 PIN- 932018
 ------------
Advocate for : MR. A R TAHBILDAR
Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA



Linked Case : WP(C)/547/2018

NO. G/94115K HAV/GD REBADHAR JOSHI
S/O. R.D JOSHI
VILL. TAMLI
P.O. TAMLI TEHSIL
DIST. CHAMPAWAT
UTTARAKHAND


VERSUS
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           THE UNION OF INDIA
           REP. BY THE SECRETARY
           MINISTRY OF HOME AFFAIRS
           NEW DELHI

           2:THE DIRECTOR GENERAL

           ASSAM RIFLES
           DIRECTORATE GENERAL OF ASSAM RIFLES
           MAHANIDESHALYA
           ASSAM RIFLES
           SHILLONG
           3:THE COMMANDANT

           9TH BATTALION
           ASSAM RIFLES
            C/O. 99 APO
            ------------
           Advocate for : MR. P N SHARMA
           Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA



                                BEFORE
              HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

                                        ORDER

Date : 28.07.2022

Heard Mr. Tahbildar, learned counsel for the petitioners in all the writ petitions. Also heard Mr. K. Gogoi, learned CGC in WP (C) No. 619/2018, Ms. A. Gayan, learned CGC in WP (C) No. 547/2018 and Ms. B. Sarma, learned CGC in WP (C) No. 580/2018.

2) The issue to be decided in all the three writ petitions being the same, all the three writ petitions are taken together for disposal by a common judgment and order.

3) The petitioners were all serving as Havildars in the 9 th Assam Rifles. However, they were prematurely retired in the year 2008 by invoking Rule 48 (1) (b) of the CCS (Pension) Rules 1972. The same is under challenge in all the three writ Page No.# 4/9

petitions.

4) The petitioner in WP (C) No. 619/2018 was prematurely retired w.e.f. 01.12.2008, while the petitioners in WP (C) No. 547/2018 and WP (C) No. 580/2018, were prematurely retired w.e.f. 01.11.2008.

5) All the three petitioners submitted representations on 08.03.2011 to the State respondents praying for reinstatement into service.

The same not being considered by the State respondents, the petitioners preferred writ petitions in the High Court of Uttarakhand vide WP No. 385/2012, WP No. 1605/2013 and WP No. 386/2012.

6) All the above writ petitions were dismissed vide order dated 01.08.2014, on the ground that no cause of action or a part of the cause of action had accrued in the State of Uttarakhand. As such, the writ petitions were dismissed on the ground of there being no territorial jurisdiction. However, the High Court of Uttarakhand held that merely because the writ petitions had been dismissed on the ground of an alternative remedy, being available, the same would not pre-judice the right of petitioners to file petitions before the appropriate Court.

7) Mr. Tahbildar, learned counsel for the petitioners submits that subsequent to the dismissal of the petitioners writ petitions by the High Court of Uttarakhand, the petitioners engaged one advocate in Shillong, for filing writ petitions in the Gauhati High Court to challenge the premature retirement of the petitioners. Though money was given to the counsel in Meghalaya, the petitioners came to learn that said advocate had not filed any case on behalf of the petitioners in the Gauhati High Court. Due to the above reason, the petitioners submitted a complaint against the said advocate, vide letter dated 03.10.2017, to the Secretary of the Bar Council of Page No.# 5/9

Meghalaya, Nagaland, Mizoram and Sikkim.

8) The petitioner's counsel submits that the petitioners thereafter filed the present three writ petitions in the year 2018. The petitioner's counsel submits that the delay in filing the writ petitions by the petitioners was due to the facts mentioned above. Coming to the challenge made by the petitioners to their premature retirement, vide the impugned orders dated 01.12.2008, 22.05.2008 and 08.03.2011, the learned counsel for the petitioners submits that the Gauhati High Court has entertained similar grievances relating to premature retirement of Assam Rifles Personnel and in this regard, he has relied on the judgment dated 15.02.2016 passed by this Court in WP (C) No. 1250/2015 "Sunil Kumar Shahi Vs. Union of India and 3 Ors".

He further submits that due opportunity was not provided to the petitioners before prematurely retiring them from service w.e.f. 01.11.2008 and 01.12.2008. He also submits that the premature retirement of the petitioners not having been made in public interest, which was one of the pre-conditions for invoking Rule 48 (1) (b) of the CCS (Pension) Rules 1972, the impugned orders should be set aside and the petitioners should be reinstated into service. Further, the petitioners should be allowed to allow to continue in service till they reach the age of superannuation of sixty years.

9) The learned Central Govt. Counsels submit that all the petitioners have been receiving their pension after their retirement in the year 2008. They also submit that as the petitioners have approached this Court nine years after their retirement, the writ petitions should be dismissed for delay and laches. They also submit that the retention of an employee beyond thirty years of service is not automatic, but subject to approval of the Review Board constituted for the purpose. Accordingly, the Board, while assessing the eligibility of a service man has to not only look into his medical fitness, but has to also consider his entire service record, including his Annual Page No.# 6/9

Confidential Reports. Though the petitioners were medically fit and in SHAPE-1 category, they were found to be professionally incompetent to perform duties in counter insurgency grid. Hence, their retention beyond thirty years was felt detrimental to the national interest and they were rightly ordered to retire from service in accordance with law.

10)         I have heard learned counsels for the parties.


11)         Rule 48 (1) of the CCS (Pension) Rules, 1972 provides that the case of a

Govt. servant completing thirty years is subject to review, to ascertain whether the Government servant is fit for retention beyond thirty years in public interest or otherwise.

Rule 48 (1) of the CCS (Pension) Rules, 1972, and FR 56 (j) is reproduced below: "Rule 48 (1) Retirement on completion of 30 years' qualifying service (1) At any time after a Government servant has completed thirty years' qualifying service -

a) he may retire from service, or

b) he may be required by the appointing authority to retire in the public interest, and in the case of such retirement the Government servant shall be entitled to a retiring pension :

Provided that -

a) a Government servant shall give a notice in writing to the appointing authority at least three months before the date on which he wishes to retire; and

b) the appointing authority may also give a notice in writing to a Government servant at least three months before the date on which he is required to retire in the public interest or three months' pay and allowances in lieu of such notice :

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12) In the case of "Sunil Kumar Shahi Vs. Union of India and 3 Ors", WP (C) No. 1250/2015, this Court held that when a person is prematurely retired under the provisions of Rule 48 of the CCS (Pension) Rule, 1972, the provisions enumerated in Appendix-9 of the CCS (Pension) Rules would have to be followed, which includes a review of the cases of the Government Servant.

13) Rule 48(1) (b) of the Pension Rules, 1972, provides that a Government servant may be retired from service in public interest, after he has completed thirty years qualifying service. However, the appointing authority has to give in writing to the Government servant under Rule 48(1)(b), at least three months notice before the date on which he is required to retire in the public interest or to provide three months pay and allowance in lieu of such notice, before retiring him.

14) In the present case, the petitioners have been given more than three months notice that they were going to be retired from service in terms of Rule 48(1)

(b) of the Pension Rules, 1972. Though the words used by the State respondents in the impugned orders was that the petitioners were " permitted to retire", the petitioners had been directed to retire prematurely and the said words "permitted to retire" would have to be construed to be a direction, inasmuch as, the petitioners never made any prayer to the respondents for premature retirement.

15) A perusal of the Review service sheet of the petitioner made by the Review Board, to decide as to whether the petitioners were to be retained in service or otherwise, on attaining the age of fifty five years or completing thirty years of qualifying service, shows in Column no. 12 as follows: " not approved for retention in service beyond thirty years of qualifying service ". The Review Service sheet also shows that there were no adverse remarks and that no disciplinary proceeding were pending or penalty imposed against the petitioners. The Column against vigilance clearance Page No.# 8/9

and recommendation for retention (detailed reasons to be given on non-recommended case) states "Nil".

16) Thus, there is nothing in the Review Service sheet of the petitioners to show the reason as to why the petitioners need to be prematurely retired from service or that the retention of the petitioners in service would not be in public interest. Further, the petitioners have been categorised as SHAPE-1 with regard to their medical conditions and as such, it cannot be said that the petitioners are physically unfit. However, prior to the Review Service sheet being made by the Review Board for the petitioners, the Commandant of the 19 Battalion Assam Rifle had come to a finding that all the petitioners were unfit to serve in counter insurgency operation grid. Though the Commandant has held that the petitioners were unfit to serve in counter insurgency operation grid, there is nothing in the Review Service sheet made by the Review Board to show that the retention of the petitioners in service would not be in public interest.

On that ground, this Court is of the view that the impugned orders, prematurely retiring the petitioners from service, do not appear to be sustainable in law.

17) With respect to the stand taken by the learned CGCs that the present writ petition having been filed more than nine years after the retirement of the petitioners and should be dismissed for delay and laches, this Court is of the view that the explanation given for the delay by the petitioners seem to be quite plausible and acceptable.

18) The above being said, a perusal of the affidavits in the writ petitions executed by the petitioners, show that they were all of fifty seven (57) years as on 31.01.2018 and by this date they have all crossed the age of sixty years, i.e., the age of superannuation. The petitioners have all been prematurely retired in the year 2008 Page No.# 9/9

and, as they have been regularly receiving their pension till date, this Court of the view that the present writ petitions have become infructuous. As such this Court is of the view that the prayer of the petitioners for reinstating them into service does not survive at this stage.

19) The writ petitions are accordingly closed as infructuous.

JUDGE

Comparing Assistant