Gauhati High Court
Page No.# 1/5 vs Union Of India And 3 Ors on 2 April, 2025
Author: Nelson Sailo
Bench: Nelson Sailo
Page No.# 1/5
GAHC010128062020
2025:GAU-AS:3862
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3799/2020
BIREN MALAKAR
FORCE NO. 801290555
S/O LATE BISHYA RAM MALAKAR, RESIDENT OF NO. 1 BONGSHOR PO
ROWMARI, HAJO PS, HAJO DIST KAMRUP ASSAM 781104
VERSUS
UNION OF INDIA AND 3 ORS.
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA,
MINISTRY OF HOME AFFAIRS, NEW DELHI 110001
2:THE DIRECTOR GENERAL
CRPF CGO COMPLEX
LODHI ROAD NEW DELHI 110003
3:DEPUTY INSPECTOR GENERAL OF POLICE
CRPF,
CRPF GROUP CENTRE
KHATKHATI DIST KARBI ANGLONG
ASSAM 782480
4:DEPUTY INSPECTOR GENERAL OF POLICE CRPF
CRPF GROUP CENTRE
ADARINI AGARTALA
TRIPURA 79901
Advocate for the Petitioner : MR. S N TAMULI, MR. M MALAKAR
Advocate for the Respondent : ASSTT.S.G.I., MRS S BARUAH
Page No.# 2/5
BEFORE
HON'BLE MR. JUSTICE NELSON SAILO
ORDER
02.04.2025
Heard Mr S N Tamuli, learned counsel for the petitioner and Ms S Barua, learned
CGC, appearing on behalf of the respondents.
2. Considering the nature of grievances projected by the petitioner, the writ petition is
taken up for disposal at this stage.
3. It is the case of the petitioner that he was working as Head Constable (re-designated
as Assistant Sub-Inspector) in the CRPF and on account the conclusion of certain
departmental enquiry drawn against him, he was imposed with the penalty of
withholding one increment without cumulative effect, vide Office Order dated
16.09.2010. In the meantime, the petitioner had become entitled to be given the third
Modified Assured Career Progression (MACP), w.e.f. 11.11.2010. However, in view of
the penalty imposed upon him, the same was postponed to 01.07.2012, and whatever
benefit that he had received was, therefore, recovered from him, amounting to Rs.
1,21,763/-, in terms of order dated 19.12.2018. The petitioner is aggrieved with such an
action taken by the respondent authorities for recovery of the amount already paid to
him since the same is not permissible in terms of the law as laid down by the Apex Court
in State of Punjab -Vs- Rafiq Masih; reported in (2015) 4 SCC 334.
4. The further grievance of the petitioner is that he is entitled to receive the increment
admissible to him, w.e.f. 01.07.2019, which otherwise has been denied to him on
account of him having retired on 30.06.2019.
5. The learned counsel for the petitioner submits that the admissible increment cannot
Page No.# 3/5
be denied to the petitioner, in view of the Judgment rendered by the Madras High Court
on 15.09.2017, in WP(C) No. 15732/2017 (P. Ayyamperumal -Vs- The Registrar and
Three Others), wherein it was held that the petitioner in that case had completed one full
year's service as on 30.06.2016, but the increment fell due on 01.07.2013, on which
date, he was not in service. Relying upon an earlier judgment, passed by the same High
Court, the High Court of Madras held that the petitioner has to be treated as having
completed one full year of service though the day of increment falls on the next day of
his retirement. The said decision was put to challenge before the Apex Court by the
respondent-Union of India, by filing SLPC No. 022008/2018, but the Apex Court
dismissed the SLP. Further review filed by the Union of India was also dismissed.
Consequently, Office Memorandum dated 14.10.2024 was issued by the Government of
India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel
and Training, incorporating the decision of the Apex Court, which upheld the decision of
the Madras High Court in so far as grant of notional increment was concerned. The
learned counsel, therefore submits that the case of the petitioner being squarely covered,
similar benefit be given to him after calculating the increments entitled to him, although
he already retired on 30.06.2019.
6. The learned CGC, on the other hand, submits that since the Office Memorandum
was issued only on 14.10.2024, whereas, the petitioner retired from service on
30.06.2019, the same cannot cover his case for granting incremental benefits. In so far as
the issue of recovery is concerned, she submits that the law laid down by the Hon'ble
Supreme Court in Rafiq Masih (supra) holds the ground as on date, and therefore, she
has no further submissions to make in this regard.
7. I have considered the submissions made by the rival parties and I have perused the
materials available on record, including the authorities relied upon. The Apex Court in
Rafiq Masih (supra) at paragraph No. 12, summarized the situations under which
recoveries by the employers would not be permissible in law. Paragraph-12 (i) speaks
Page No.# 4/5
about recovery from employees belonging to Class-III and Class-IV service, or Group-C
and Group-D service. While paragraph No. 12 (ii) speaks of recovery from retired
employees or employees who are due to retire within one year of the order of recovery.
8. Having regard to the facts projected by the petitioner in this case, which are not
disputed, viz. the petitioner having retired on 30.06.2019, while the recovery having
been made in terms of the order passed on 19.12.2018, would only go to show that the
case of the petitioner is squarely covered by paragraph-12 (i) and (ii) of Rafiq Masih
(supra). As such, the amount of Rs. 1,21,763/-, so recovered from the petitioner will
have to be refunded by the respondent authorities. In so far as the claim for grant of
increment w.e.f. 01.07.2019, as per his entitlement, it is seen that the petitioner indeed
retired on 30.06.2019, and in the case of P. Ayyamperumal (supra), it was held that
despite the increment of the employee concerned falling due on the next day of his
retirement, still the increment admissible will have to be given. As already noticed, the
said decision of the Madras High Court has been upheld by the Apex Court, and
therefore, has attained its finality. Although the learned CGC has raised objection on the
ground that the Office Memorandum has been issued much after the petitioner had
retired from service, the fact remains that the said Office Memorandum relates to the
decision made by the Apex Court upholding the earlier decision made by the Madras
High Court.
9. Under the circumstance, this Court is of the considered view that the benefit
flowing out of the said decision of the Madras High Court, which, in fact, was decided
on 15.09.2017, cannot be denied to the instant petitioner. Accordingly, on both counts,
this Court finds merit and the amount so deducted, as stated hereinabove, be refunded to
the petitioner and the respondents shall also grant the admissible increments to the
petitioner, by making the required calculation. Such an exercise be undertaken as
expeditiously as possible and at any rate, within the outer limit of 3 (three) months from
the date of receipt of a certified copy of this order.
Page No.# 5/5
10. With the above directions this writ petition stands disposed of.
11. No cost(s).
JUDGE
Comparing Assistant
