Gauhati High Court
Permanent Resident Of Village And Po ... vs The Union Of India And 4 Ors on 1 May, 2024
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/7
GAHC010281522018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WP(C)/7201/2018
PRABHU DAYAL
S/O LATE NIHAL SINGH
PERMANENT RESIDENT OF VILLAGE AND PO BANDAHERI
PS AND DIST HISSAR
HARYANA
-125001
AT PRESENT POSTING AT 20 ASSAM REFLES
CHARDUAR
PO AND PS CHARDUAR
DIST SONITPUR
784103
ASSAM
VERSUS
THE UNION OF INDIA AND 4 ORS.
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA
MINISTRY OF DEFENCE
NEW DELHI
2:THE SECRETARY
MINISTRY OF HOME AFFAIRS
GOVT. OF INDIA
NEW DELHI
3:THE DIRECTOR GENERAL OF ASSAM RIFLES
SHILLONG
793011
PO SHILLONG
C/O 99 APO. DIST EAST KHASI HILLS
MEGHALAYA
4:THE COMMANDANT
ASSAM RIFLES TRAINING CENTER AND SCHOOL. PO DIMAPUR
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NAGALAND
C/O 99 APO
5:THE RECORD OFFICER
OFFICE OF THE DIRECTOR GENERAL
ASSAM RIFLES
SHILLONG
793011
MEGHALAYA. C/O 99 APO
------------
Advocate for : MR. R L YADAV
Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA AND 4 ORS.
BEFORE
HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI
For the Petitioner : Ms. K Yadav, Advocate.
Mr. RL Yadav, Advocate.
For the Respondents : Ms. A Gayan, Central Govt. Counsel.
Dates of Hearing : 01.05.2024.
Date of Judgment : 01.05.2024.
JUDGMENT & ORDER
Heard Ms. K Yadav, learned counsel for the petitioner. Also heard Ms. A.
Gayan, learned Central Government Counsel (C.G.C.) appearing for the
respondents.
2. The claim raised in this writ petition is with regard to treating the
appointment of the petitioner as Rect/GD from the date of the initial
appointment in the year 2001 and not the subsequent date which was pursuant
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to certain directions of this Court.
3. There is a chequered history of this case and a brief narration would be
necessary.
4. In the year 2001, a recruitment process was initiated, amongst others, for
the post of Rifleman (GD) under the Assam Rifles.
5. In the said recruitment, the petitioner who had offered his candidature
was held to be qualified in the written, physical and medical tests and upon his
selection, he was appointed on 23.05.2001. After such appointment, he was
sent for basic training which is for a period of 9 months. However, in the midst
of such training, vide an order dated 31.10.2001, the petitioner was discharged
from service on the ground that he was medically unfit. Since the aforesaid
action was not preceded by any notice or opportunity, the petitioner approached
this Court by filing a writ petition before this Court, being WP(C)/4608/2008.
6. The said writ was disposed of by this Court vide a common judgment and
order dated 10.06.2010 by directing the respondent authorities to conduct a
Review Medical Board in which the petitioner was to be examined. In
compliance with the said direction, a Review Medical Board was conducted on
25.10.2010 in which the petitioner was re-examined. After such re-examination,
the petitioner was declared to be medically fit.
7. It is the claim of the petitioner that the appointment should be given effect
from the original date i.e. 23.05.2001 with a further claim for payment of arrear
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salaries.
8. Ms. Yadav, the learned counsel for the petitioner has submitted that due to
no fault of the petitioner, he had to face all the harassment and only upon
intervention by this Court, the matter was sorted out. It is submitted that the
initial appointment made on 23.05.2001 having been preceded by the necessary
tests including written, physical and medical and the discharge of the petitioner
on medical ground dated 31.10.2001 being interfered with by this Court, the
claim of the petitioner is reasonable, justified and bona fide.
9. The learned counsel for the petitioner has also submitted that similarly
situated person have been given the benefits. In this connection, reference has
been made to an order dated 07.06.2019 passed by this Court in Review
Petition No. 111/2018 filed by one Sant Lal. The aforesaid order which has been
brought on record by way of a reply affidavit would reveal that the said order
was passed in consonance with the judgment dated 26.10.2014 (wrongly
recorded as 26.09.2014) passed by the Division Bench in WA No.153/2014,
WA/119/2014 etc. The aforesaid fact has been verified with the order passed by
the Hon'ble Division Bench which is also annexed at page 58 of the writ petition.
The learned counsel accordingly submits that there should not be any
impediment in granting the relief as prayed for.
10. Per contra, Ms. Gayan, the learned C.G.C. has submitted that the
petitioner was re-appointed only in the year 2015, pursuant to the direction of
this Court. Specific reference has been made to the part of the order dated
26.10.2014 of the Division Bench which is found in paragraph 14. It is submitted
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that in the said paragraph, it is observed that the petitioners should be given
opportunity to undergo and complete the necessary basic training and on such
successful completion, they are to be appointed in the post. It is accordingly
submitted that it is only after completion of the basic training that the
appointment process was completed in the year 2015 and therefore, giving
benefit to the petitioner of such appointment from the year 2001 would not be
justified.
11. The rival contentions of the learned counsel for the parties have been duly
considered and the materials placed before this Court have been carefully
examined.
12. It is not in dispute that the petitioner had undergone the recruitment
process in its full rigour and was accordingly appointed on 23.05.2001. The
requirement of basic training was also being undertaken by the petitioner and in
the mid way, on 31.10.2001, they were discharged from service on medical
grounds. The aforesaid discharge was interfered with by this Court by directing
that a Review Medical Board be constituted and it is also not in dispute that in
the said Review Medical Board, the petitioner has been found to be medically fit.
The subsequent rejection on the ground of over age which was also a matter of
challenge in the next round of litigation was also put to rest by the Division
Bench in the common judgment and order dated 26.10.2014 passed in a bunch
of writ petitions and writ appeals including WA 153/2014 and WA 119/2014.
Subsequent thereto, the petitioners were re-inducted in service in the year
2015.
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13. The discharge of the petitioner from the service after his due appointment
in the year 2001 on medical grounds followed by subsequent action of the
respondents to deny appointment on the ground of overage even after
clearance by the Review Medical Board were interfered with by this Court in
different round of litigation. The same would amply demonstrate that the
petitioner cannot be put on fault for the gap in the service from 2001 to 2015.
The reliance of the petitioner in the case of Sant Lal has also not been able to
be refuted by the learned C.G.C. This Court has noticed that the benefits given
to the said incumbent Sant Lal pursuant to the order dated 07.06.2019 passed
in Review Petition 111/2018 clearly refers to the order of the Division Bench
passed on 26.10.2014.
14. This Court has re-verified the date which appears to have been wrongly
stated as 26.09.2014. However, the writ appeal numbers have been correctly
reflected.
15. On the aforesaid facts and circumstances, this Court is of the considered
opinion that the claim of the petitioner to hold his appointment from the year
2001 appears to be justified as the so called break in his service is not
attributable to any fault of the petitioner and in fact, the impugned decisions of
the authorities to discharge him on the ground of being medically unfit has been
consistently interfered with by this Court. Further, granting the benefit to a
similarly situated incumbent (Sant Lal) for which no explanation has been put
forward that the said case is distinguishable would be an additional ground in
favour of the petitioner. This Court is of the opinion that the claim of the
petitioner is liable to be allowed.
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16. This Court is, however, of the opinion that such claim would only be
confined to the notional benefits including fitment and also to treat the
petitioner to be in appointment from the year 2001 in the context of his
pensionary benefits. The claim for back wages from the year 2001, however
cannot be considered in terms of the principle of "no work no pay".
17. With the aforesaid directions, the present writ petition stands allowed.
18. No order as to cost.
JUDGE
Comparing Assistant
