Gauhati High Court
Khargeswar Lahkar vs The Union Of India And 3 Ors on 11 March, 2022
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GAHC010046852022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1741/2022
KHARGESWAR LAHKAR
(RETD 2ND IN COMMAND, PPO NO.248860700472),
S/O- LATE ADITYA LAHKAR, R/O- VILLAGE RADHAKUCHI, P.O- KARARA,
DIST- KAMRUP, ASSAM, PIN-781381
VERSUS
THE UNION OF INDIA AND 3 ORS
REP. BY THE SECRETARY TO THE MINISTRY OF HOME AFFAIRS, GOVT. OF
INDIA, NORTH BLOCK, CENTRAL SECRETARIAT, SASTRI BHAWAN, NEW
DELHI- 110001.
2:DIRECTOR GENERAL
FORCE HQRS
SSB
EAST BLOCK-V
LEVEL-5
SECTOR-I
R.K PURAM
NEW DELHI-66
3:DIG (WELFARE)
SSB
EAST BLOCK -V
R.K PURAM
NEW DELHI
4:THE COMMANDANT
4TH BATTALLION
SSB PALLA KALAM
DIST- LAKHIMPUR KHERI (UP
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Advocate for the Petitioner : MR. S ROY
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
11.03.2022
Heard Mr. S. Roy, learned counsel for the petitioner, who submits
that the petitioner retired on superannuation w.e.f. 28.02.2007 from the
4th Battalion SSB, Palia (Kalan), District-Lakhimpur, Kheri (West), U.P.
as Second-in-Command), on attaining the age of 57 years, as his date of
birth 01.03.1950.
The petitioner's case is that the Delhi High Court in it's judgment
and order dated 31.01.2019 passed in WP(C) No.1951/2012 and in the
judgment and order dated 04.02.2019 passed in WP(C) No.695/2019
had declared Rule 43(a) of the CRPF Rules, 1955 as unconstitutional.
The Delhi High Court further observed that the age of superannuation
retirement of all the Central Armed Police Force personnel should be
made uniform at 60 years upto the rank of Commandant. In compliance
with the judgment of the Delhi High Court, the Ministry of Home,
Government of India issued Order No. F.N.45020/1/2019/Legal-I dated
19.08.2019, wherein it is ordered that the age of retirement would be 60
years, irrespective of rank, but the date of effect would be the date of
issue of the order.
The petitioner's counsel submits that the benefit of retirement age of
60 years has been conferred only upon the 29 petitioners who
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approached the Delhi High Court by filing the writ petition. However, the
benefit of retirement age of 60 years has not been extended to others,
including the petitioner, despite the petitioner being similarly situated
as the petitioners who had filed the cases in the Delhi High Court.
The order F.N.45020/1/2019/Legal-I dated 19.08.2019, states as
follows :
"WHEREAS, Hon'ble High Court of Delhi in WP(C) No. 1951/2012 in
the matter of Dev Sharma, Dy. Comdt. of ITBP Vs. UOI & Anr. on
31.01.2019 directed the respondent to arrive at a decision regarding the
retirement age which will be uniform for all members of CAPFs,
irrespective of the ranks including CISF and Assam Rifles at par and also
to decide the date from which such change will be effected. However, the
Court did not allow stay of the retirement of any personnel as per the
existing age of retirement who might have retired before passing the order
except that in the event of enhancement of retirement age, the differential
period will be added to the period of service actually rendered for the
purpose of pension.
02. In view of the aforesaid order, the matter has been examined and in
compliance thereof, read with order dated 04.02.2019 passed in WP(C)
No. 695/2019 titled Ram Chander Kasania & Anr. Of BSF Vs. UOI & Ors,
it has been decided by the Competent Authority as under:-
a) Age of retirement will be as under:
Force Irrespective of rank
CRPF, BSF, ITBP, SSB, CISF, AR*
*(regular cadre of Paramilitary
Component)
b) Date of effect will be the date of issue of order.
c) In respect of all the 29 petitioners as stated in para-02 and 03 in
common Court order dated 31.01.2019 barring Petitioner No. 09 in WP(C)
No. 4859/2013, relief as granted at para-72 of the order be extended.
d) As regard those whose date of superannuation fell in between date of
judgment and date of issue of order:-
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i. Those who have got interim stay will be deemed to have not
superannuated and will be governed by age of retirement as at (a)
above.
ii. Those who have retired but did not approach any Court will
be governed by the Court order dated 04.02.2019 clarifying para-72
of original order dated 31.01.2019 in Dev Sharma case (supra) and
hence will be entitled to exercise options either for joining after
returning all pensionary benefits, if received or will have an option
to have benefit of fitment of pension on completion of age of 60
years.
03. All forces are directed to comply with the Court orders narrated as
above. Forces may amend provisions of Rules as applicable on above
line"
Issue Notice returnable in 6 (six) weeks.
Mr. P.S. Lahakar, learned CGC accepts notice on behalf of all the
respondents. He submits that paragraph 72 of the judgment passed in
WP(C) 1951/2012 and other writ petitions is to the effect that the
judgment will not have the effect of reinstatement of the petitioners who
have already retired. It further held that in view of the principle of no
work, no pay, it will also not have the effect of their being entitled to any
arrears of pay for any further period beyond their retirement. "However,
for the purposes of calculation of retiral benefits, including pension and
gratuity, the differential period (in the event of enhancement of the
retirement age) will be added to period of service actually rendered by
each of them. In other words, their notional date of retirement would be
arrived at by adding the differential years to their actual date of
retirement. ON such calculation they would be entitled to the arrears of
retirement benefits after adjusting the amount already paid".
The petitioner's case is that the latter part of the paragraph 72 of the
above judgment should be made applicable to the petitioner.
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List the matter after six weeks.
JUDGE
Comparing Assistant
