Shri. Radha Krishna Nair K. M. vs . Union Of India & Ors.
2022 Latest Caselaw 729 Meg

     Serial No. 01
     Regular List

                        HIGH COURT OF MEGHALAYA
                              AT SHILLONG

WP(C) No. 128 of 2017
                                                 Date of Decision: 13.12.2022
Shri. Radha Krishna Nair K. M.             Vs.         Union of India & Ors.

Coram:
                 Hon'ble Mr. Justice W. Diengdoh, Judge

Appearance:
For the Petitioner/Appellant(s)    : Mr. M. Chanda, Adv.
For the Respondent(s)              : Mr. R. Debnath, CGC

i)       Whether approved for reporting in                    Yes/No
         Law journals etc.:

ii)      Whether approved for publication
         in press:                                            Yes/No


                        JUDGMENT AND ORDER

1. The petitioner is an employee of the Assam Rifles and is posted

as Subedar Clerk at CPBO (AR) old DGAR Complex, Shillong.

2. In this petition filed under Article 226 of the Constitution of

India for enforcement of Fundamental Rights as provided under Article

14 and 16 of the Constitution of India, the petitioner has primarily assailed

three communications, the first being communication dated 19.02.2016

issued by the Section Officer in the Ministry of Home Affairs,

Government of India, PF IV DESH (sic DESK) upon the DG, Assam

Rifles, Shillong through LOAR, MHA, New Delhi, MHA UO.

27013/28/2013/PF IV (Annexure-4), the second communication issued by

the same Section Officer also upon the DG, Assam Rifles Shillong vide

communication No. MHA U.O 27013/2/2016. PF. IV dated 22.06.2016

(Annexure-6) and the third being a reply to the query of the petitioner

herein under the Right to Information Act. The said reply was

communicated by one Saurabh Charan vide communication No.

A/Pers/II-33/RTI/2016/646 dated 25.11.2016 (Annexue-9).

3. Primarily, the petitioner has drawn the attention of this Court to

the judgment and order dated 23.08.2012 passed by this Court (being the

Shillong Bench of the Gauhati High Court as it then was) in WP(C) No.

277 (SH) of 2010, whereby the operative portion of the order would reveal

that the court has directed for parity in respect of rank structure and pay

of the Assam Rifles Clerical cadre at par with other Central Police

Organisations (CPOs) by introducing rank of Assistant Sub-Inspector

(Warrant Officer) at the entry grade w.e.f. 01.01.1986. It may also be

mentioned that this order was assailed before the Hon'ble Supreme Court

through SLP (C) No. 29908 of 2013 and the same was upheld and disposed

of by the Hon'ble Supreme Court vide order dated 17.11.2015 by

upholding the said order of the learned Single Judge dated 23.08.2012

with slight modification.

4. In this present petition, the grievance of the petitioner is that his

prayer for promotional benefits/avenues upto the rank and status of

Second-in-Command (2IC) at par with other Central Para-Military Forces

(CPMFs) was denied by the Assam Rifles authority.

5. Heard Mr. M. Chanda, learned counsel for the petitioner who

has submitted that the Ministry of Home Affairs vide the notification No.

U.O. 27013/28/2013/PF IV dated 19.02.2016 has agreed to implement the

judgment and order dated 23.08.2012 (supra). However, in the same

communication, it was remarked that as regard second part of the

judgment that is, promotion avenues upto the rank of Second-in-

Command (2IC) at par with the counterpart in different CAPFs, Assam

Rifles has intimated that it is not applicable as parity in the upper line of

rank structure is only upto Subedar Major in Assam Rifles. Hence highest

rank permissible to Clerk will be Subedar Major. Again, on this, the

Assam Rifle is requested to submit this issue in a separate file with

adequate justification whether promotional avenues of clerical cadre in

AR is to be extended upto 2IC rank or restricted upto Subedar Major as

implementation of one part of the judgment and order of the High Court,

leaving other parts is contradictory.

6. The learned counsel has again referred to the communication

dated 21.06.2016 wherein, the DG Assam Rifles was requested to

implement the judgment and order dated 23.08.2012 by introducing the

rank of Assistant Sub-Inspector (Warrant Officer) at the entry grade w.e.f.

01.01.1986 in the pay scale of Rs. 1320-2040 (revised 4000-6000 w.e.f.

01.01.1996) and promotion avenues upto the rank of Second-in-Command

(2IC) on priority and to submit compliance report to the Ministry.

7. However, after issuance of the letter dated 21.06.2016, the

Ministry of Home Affairs surprisingly issued another letter to the DG

Assam Rifles, Shillong being MHA. U.O. 27013/2/2016. PF. IV dated

22.06.2016 wherein, it is said that the matter was re-examined by the

MHA and it has been observed that extending promotional avenues to the

Naib Subedar upto 2IC level was not a part of judgment dated 23.08.2012

and this was not proposed by MHA, instead it was only added by MoF

(Ministry of Finance).

8. The learned counsel for the petitioner has submitted that the U-

turn made by the MHA vide its communication dated 22.06.2016 (supra)

wherein the benefit of extending promotional avenues to the petitioner

upto the rank of Second-in-Command amounts to interference with the

judgment and order dated 23.08.2012 which action of the respondents can

also be seen as contemptuous in nature looking into the contents of the

said order dated 23.08.2012 wherein at para 7(e) and 14 of the same this

Court has observed and held as follows:

"7(e). As the petitioners are having similar recruitment qualification (10+2) passed and performing similar nature of works, duties and responsibilities like their counter parts in

other CPOs as ASI which is evident from the Annexures 5, 7 and 8, the petitioners have acquired a valuable legal right for grant of equal rank, status and pay at the entry grade and promotional avenues for promotion up to the rank of Second-in-Command (Assistant Director) on the authority of Statutory Order following 4th and 5th CPC and Resolution dated 20.9.1997 for re-structuring and to maintain parity with other CPOs.

14. In the result, this writ petition stands disposed of with the direction to the respondent No.2, the Director General of Assam Rifles to take up the matter again with the respondent No.1, i.e. the Secretary to the Govt. of India, Ministry of Home Affairs to bring parity in respect of rank structure and pay of the Assam Rifles clerical cadre at par with other CPOs by introducing rank of Assistant Sub-Inspector (Warrant Officer) at the entry grade w.e.f. 1.1.1986 in the scale of pay of Rs.1320-2040 (revised Rs.4000-6000) w.e.f. 1.1.1996 or any other date as the authority deem it fit and proper with all consequential service benefits in the light of the Government of India, Ministry of Finance resolution dated 20.09.1997 communicated through MHA letter bearing No.2701-02/1/97 PC Cell/Pef-1dated 10.10.1997. The whole exercise would be completed within a period of 6 (six) months from the date of receipt of a certified copy of this judgment and order."

9. In this regard, mention has been made to a communication No.

1-45020/20/2015-Pers. II dated 29.09.2016 wherein the Under Secretary

to the Government of India, Ministry of Home Affairs in a communication

to the Director General, Central Reserve Police Force, New Delhi

(Annexure-15) has conveyed the approval of first cadre review of Group

'A' 'B' and 'C' of the Ministerial Cadre of CRPF wherein in the table

found therein showing the sequence of the various posts within the clerical

cadre of the force, the entry grade starts from Head Constable to the next

grade of Assistant Sub-Inspector onwards till the rank of Assistant

Director, AD (M) which clearly shows that an employee recruited in the

cadre of Head Constable (Ministerial) is entitled to promotion upto the

level of Assistant Director (Ministerial) which is equivalent to 2IC in

Assam Rifles.

10. The learned counsel has reiterated that the operative part of the

judgment and order dated 23.08.2012 at para 14 is a direction "to bring

parity in respect of rank structure and pay of the Assam Rifles clerical

cadre at par with other CPOs". In this regard, reference has also been

made to the order dated 24.09.2014 passed by this Court in WP(C) No.

230 of 2013 being the case of No. M/371132 Hav/Pharmacist Abhay

Kumar & Ors. v. Union of India & Ors. wherein at para 6 of the same the

following is found:

"6.... In this regard, the Ministry vide letter F. No. 24021/74/2004-PC, dated 6-8-2004 had clarified that the Assam Rifles is a Central Police Force under the Ministry of Home Affairs along with the Border Security Force (BSF), Central Industrial Security Force (CISF), Central Reserve Police Force (CRPF), Indo-Tibetan Border Police (ITBP), National Security Guard (NSG) and the Sashastra Seema Bal (SSB). The said letter dated 6-8-2004 of the Ministry of Home Affairs, Govt. of India reads as follows:

"F.No.24021/74/2004-PC Government of India Ministry of Home Affairs New Delhi, the 6th August, 2004

To The Chief Secretary of all the States/UTs. Sub: Clarification about Armed Forces of Union regarding Central Police Forces.

Sir, There has been query in the past from State Governments regarding clarification about Armed Forces of Union regarding Central Police Forces. In this regard, I am directed to mention that the following Central Forces under the administrative control of the Ministry of Home Affairs have been declared as Armed Forces of the Union.

i) Border Security Force -

Vide Section 4 of the Border Security Force Act, 1968.

ii) Central Industrial Security Force - Vide Section 3 of the Central Industrial Security Force Act, 1968 (Amended by Act 14 of 1983).

iii) Central Reserve Police Force - Vide Section 3 of the Central Reserve Police Force Act, 1949.

iv) Indo - Tibetan Border Police -

Vide Section 4 of the Indo - Tibetan Border Police Force Act, 1992.

v) National Security Guard -

Vide Section 4 of the National Security Guard Act, 1986.

In addition, Assam Rifles and SSB are also two Central Forces under Ministry of Home Affairs which perform Border Guarding and Internal Security Duties. New Acts for governing these forces are under process and the Bill will be introduced in Parliament shortly. The status of these force is also equivalent to that of other Central Forces under Ministry of Home Affairs mentioned above. Hence, they may also be allowed similar benefits.

Yours faithfully, Sd/-

(R.K.Mitra) Deputy Secretary(PMA)".

11. Another authority cited by the learned counsel for the petitioner

relevant to the issue in hand is the judgment by the Hon'ble Supreme

Court in the case of Union of India v. Dineshan K.K: (2008) 1 SCC 586,

para 4 and 24 which reads as follows:

"4. The nub of the grievance of the writ petitioner, working in the rank of a Radio Mechanic in Assam Rifles was that the Ministry of Home Affairs and the Director General of Assam Rifles having accepted in principle that the members of Assam Rifles, should be given the same rank and pay structure as was given to other Central paramilitary forces, yet the same had been denied to them. It was pleaded that as the Ministry of Home Affairs had conveyed its decision to rationalise the rank structure of non-gazetted personnel of Central paramilitary forces vide Order dated 26-1-1998, equal pay structure in other ranks, including the Radio Mechanics in the Assam Rifles could not be denied.

24. From the afore-extracted paragraphs of the counter- affidavit and the resume of correspondence referred to above, it clearly stands admitted by the petitioners herein that: (i) all the paramilitary forces, including Assam Rifles are on a par with each other and (ii) there was apparent "disparity" in the pay scales of the personnel of Assam Rifles with their counterparts in other Central paramilitary forces. In order to rectify this disparity, Director General, Assam Rifles, Petitioner 2 herein, vide his letter dated 18-2-1998 had, in fact, taken up the grievance of the respondent with the Ministry of Home Affairs, inter alia, recommending redesignation of Havildar (RM) Grades I and II of Assam Rifles as warrant officer and for replacement of pay scale of Rs 4000-100-6000 to bring them on a par with their counterparts in other Central Police Organisations."

12. The learned counsel has finally submitted that the Hon'ble

Supreme Court in the case of Dineshan K.K (supra) has specifically held

that there should not be any disparity in the rank, status and pay in between

the various Central Para-Military Forces when service requirement,

recruitment qualifications are same. As such, the respondent Union of

India cannot deny the benefit of promotional avenues to the clerical cadre

of Assam Rifles upto the rank of Second-in-Command (2IC), equivalent

to the cadre of Assistant Director (Ministerial) of CRPF as well as at par

with other CPMFs. It is prayed that this writ petition may be allowed by

passing of necessary orders.

13. Per contra, Mr. R. Debnath, learned CGC appearing for the

respondents has submitted that quite in keeping with the direction issued

by this Court vide order dated 23.08.2012 in the case of the petitioner

herein and others found in W.P.(C) No 277(SH) of 2010, wherein this

Court has held that direction "to bring parity in respect of rank structure

and pay of the Assam Rifles clerical cadre at par with other CPOs, by

introducing the rank of Assistant Sub-Inspector(Warrant Officer) at the

entry grade w.e.f. 01.01.1986, and with consequential benefits as per

MHA letter dated 10.10.1997", the rank of Warrant Officer was

introduced and all consequential benefits such as rank, revision of pay and

allowance including arrears was paid to all the affected persons, including

the petitioner herein.

14. The learned CGC has submitted that the said order dated

23.08.2012 flowing from the Presidential Order dated 10.10.1997, where

ranks from Constable to Subedar-Major was rationalized in the Central

Police Organisations(CPO), the same has no connection whatsoever with

rationalization of Officer (Grade-A) ranks of the Assam Rifles, nor does

it convey any meaning thereby to grant promotion in a common chain to

personnel who are within Group- B to continue towards Group-A Officer

cadre as both groups are governed by separate recruitment rules. However,

the only route for personnel from the clerical cadre to be considered for

promotion to the rank of Assistant Commandant and onwards to Deputy

Commandant, Second-in-Command (2IC) and then Commandant is the

20% quota by way of Limited Departmental Competitive Examination

(LDCE) which ensure that an Officer is fairly selected from amongst the

NCO/JCO (from any trade including clerk).

15. The petitioner being enrolled into the Assam Rifles on

09.12.1983 as a ministerial staff (in Group-B or C) and is now holding the

post of Subedar (Clerk), his next promotion will be as Subedar-Major

(Clk) in Group-B as per the existing recruitment rules and as such, his

claim to be considered for promotion to Group-A Officer cadre is against

the existing norm/policy and cannot be accepted.

16. For the purpose of better clarification, the learned CGC has set

out the table wherein the promotional hierarchy within the Assam Rifles

has been shown being as follows:

For Assam Rifles pers In Group - B&C In Group -A, promotional hierarchy (promotional hierarchy) (selected from any trade including Clk trade) Hav(Clk) Assistant Commandant

Warrant Officer (Clk) Deputy Commandant Nb/Sub (Clk) Second-in-Command (in short 2IC) Subedar (Clk) Commandant Subedar-Major (Clk)

17. The learned CGC has also submitted that the issue of

promotional avenues for personnel from the clerical cadre in the Assam

Rifles has received the attention of the Ministry of Home Affairs(MHA)

wherein vide letter dated 19.02.2016, the Assam Rifles was requested to

submit a separate file with adequate justification as to whether

promotional avenues of clerical cadre in Assam Rifles is to be extended

unto the rank of Second-in-Command (2IC) or to be restricted to Subedar-

Major as implementation of one part of the judgment and order of the High

Court and leaving other parts is contradictory.

18. In reply to this, the Assam Rifles has sent out communication

vide letter No. A/Legal/RK Nair (clarification)/2016/1897 dated

03.03.2016 referring to the judgment and order dated 23.08.2012 (supra)

to say that the operative part of the said judgment only speaks about parity

of rank and pay structure in the Assam Rifles at par with other CPOs by

introducing the rank of Assistant Sub-Inspector (Warrant Officer) at the

entry grade w.e.f. 01.01.1986, but the said direction does not explicitly

mention grant of promotional avenue upto the rank of Second-in-

Command.

19. In support of the case of the respondent, the learned CGC has

cited the following judgments:

i) Khoday Distilleries Ltd. & Ors. v. Mahadeshwara S.S.K

Ltd: (2012) 12 SCC 291, para 7;

ii) Union of India & Ors. v. Krishna Kumar & Ors: (2019) 4

SCC 3019, para 12 and 13;

iii) Sethi Auto Service Station & Anr v. Delhi Development

Authority & Ors: (2009) 1 SCC 180, para 29, 32 and 33

and

iv) Cauvery Coffee Traders, Mangalore v. Hornor Resources

(International) Co. Ltd: (2011) 10 SCC 420 para 33, 34 and

20. This Court has given due consideration to the submission and

contention of the learned counsels for the rival parties. The basic facts

need not be reiterated as the same has been duly noted based on the

submission of the parties.

21. The moot issue to be decided is whether the petitioner who is

serving as Subedar (Clerk) in the Assam Rifles can be considered for

promotion through the normal channel upto the rank of Second-in-

Command.

22. The petitioner has heavily relied upon the judgment and order

dated 23.08.2012 passed by this Court in WP(C) No. 277 (SH) of 2010,

which judgment was reaffirmed by the Hon'ble Supreme Court vide order

dated 17.11.2015 in SLP (C) No. 29908 of 2013, wherein the authority

concerned was directed to bring parity in respect of rank structure and pay

of the Assam Rifles clerical cadre at par with other CPOs by introducing

rank of Assistant Sub-Inspector (Warrant Officer) at the entry grade. Vide

relevant Sanction order No. A/Pers/II-04/Clk/2016/774 dated 28.06.2016,

the competent authority has implemented the said order and consequently,

the post of Warrant Officer at the entry grade was created.

23. The claim of the petitioner is that he is legally entitled to benefit

of promotional avenues upto the rank of Second-in-Command (2IC) at par

with his counterpart in different CAPFs/CPMF. However, vide

communication dated 19.02.2016 issued by the Ministry of Home Affairs,

the Assam Rifles has intimated that promotion avenues upto the rank of

Second-in-Command (2IC) at par with the other counterpart in CAPF is

not applicable as parity in the upper line of rank structure is only upto

Subedar-Major in Assam Rifles.

24. At this juncture, it may be noted that prior to 10.10.1997, there

was an apparent disparity in the rank and pay structure in Assam Rifles

vis-à-vis the other CAPF/CPOs like the Central Reserve Police Force, the

Border Security Force and the Indo-Tibetan Border Police Force etc. This

disparity was reconciled by way of a Presidential Order dated 10.10.1997

whereby rationalisation of rank structure and pay scale of non-gazetted

cadre of CPOs was directed. To this extent, the rank and pay structure in

the Assam Rifle clerical cadre was brought to parity with other

CPO/CAPF/CPMF with the rank of Warrant Officer (Assistant Sub-

Inspector) at the entry grade.

25. However, as submitted by the learned CGC, over and above this,

the Assam Rifles as well as the other CPOs including the CRPF are

governed by their respective Recruitment Rules indicating the pattern and

procedure of promotion in the ranks, which differs from each other. A

comparative table of this has been set out by the respondents at para 53 (c)

of the affidavit-in-opposition which is reproduced below as:

 S/No                  CAPFs                        Assam Rifles

 (a)       Constable                     Rifleman

 (b)       Head Constable                Havildar

 (c)       Asst Sub Inspector            Warrant Officer

 (d)       Sub Inspector                 Naid Subedar

 (e)       Inspector                     Subedar

 (f)       Assistant Commandant          Capt/Asst Comdt

           i) 50% direct entry           i) 80% deputation from Indian

           ii) 17.5% LDCE                Army

           iii)32.5% Local Promotion ii) 20% from LDCE

26. Again, it is to be noted that the learned CGC has submitted that

in the Assam Rifles, there are different sets of Recruitment Rules for

personnel who are under Group B & C which is the clerical cadre and

those under Group A which is the Officers cadre as indicated at para 16

above. This being so, admittedly, the petitioner falls under Group B & C

and the post of Second-in-Command (2IC) is found in Group A.

Therefore, there is no linear avenue of promotion from the rank of

Havildar (Clk) in Group B & C to the post of Commandant in Group A.

This does not mean that the promotional avenue has been stopped or

blocked altogether since personnel in the clerical cadre are eligible to be

promoted and to come over to the ranks found in Group A, albeit, after

successfully competing or being found suitable within the 20% quota for

Limited Departmental Competitive Examination (LDCE).

27. Since it has been established that there exist two categories of

cadre in the Assam Rifles, that is, Officers cadre and Clerical cadre, the

relevant order of this Court in WP(C) No. 277(SH) of 2010 dated

23.08.2012, particularly at para 14 clearly indicates that parity of rank and

pay structure of the Assam Rifle is to be affected only in the 'Clerical

cadre' and there is no mention of 'Officers cadre' in the said order.

28. This being the case, the petitioner may have been or may be

entitled to a legitimate expectation for promotion in the ranks, but not in

the procedure as demanded. He is however eligible to be granted

promotion under the 20% LDCE quota.

29. This Court has also considered all the authorities cited by the

parties. In the case of Dineshan KK (supra) the Hon'ble Supreme Court

has dealt with the issue of rationalisation of rank structure of non-gazetted

personnel of para military forces vis-à-vis the rank and post of Havildar

(Radio Mechanic) in Assam Rifles and has affirmed the High Court's

order of parity in rank and pay structure of the same. This decision was

relied upon and followed in the said WP(C) No. 277 (SH) of 2010 and the

same cannot be faulted herein. It may be reiterated that this primarily

relates to the Clerical cadre and not the Officer cadre. The other decisions

cited which are not found relevant to the case of the parties herein are not

necessarily discussed here.

30. In view of above findings and observations, the case of the

petitioner herein cannot be accepted as the same is devoid of merits.

Petition is accordingly dismissed.

31. Petition disposed of. There shall be no order as to costs.

Judge

Meghalaya 13.12.2022 "D. Nary, PS"