Meghalaya High Court
Rajan K vs The Union Of India on 12 August, 2014
Author: T Nandakumar Singh
Bench: T Nandakumar Singh
THE HIGH COURT OF MEGHALAYA
WP(C)No. 15 of 2013
JC-361495 Nb Sub (CLK) Rajan K S/o Late Kochu Kunju,
Headquarter 6 Sector, Assam Rifles, C/o 99 APO, Pin :
932406.
.......Petitioner
-Versus-
1. The Union of India, represented by the Secretary to the
Government of India, Ministry of Home Affairs, North
Block, New Delhi, Pin-110001.
2. The Director General Assam Rifles, Mahanideshalaya
(The Director General Assam Rifles), Shillong, Meghalaya,
Pin- 793011.
3. The Inspector General Assam Rifles (North) HQ IGAR,
North, C/o 99 APO, Pin : 932554.
4. The Deputy Inspector General Assam Rifles, HQ DIGAR,
6 Sector, Assam Rifles, C/o 99 APO, Pin : 932406.
5. JC-361628 Sub Major (CLK) Mr Paras Nath, HQ 25
Sector, Assam Rifles, C/o 99 APO, Pin : 932425.
6. JC- 363622 Sub Major (CLK) Mr Dwipen Das, HQ 27
Sector, Assam Rifles, C/o 99 APO, Pin : 932427.
7. JC-361810 Sub (CLK) Mr Dev Raj, 9th Battalion, Assam
Rifles, C/o 99 APO, Pin : 932009.
8. JC-361836 Sub (CLK) Mr Tara Ram, The Director
General of Assam Rifles (Record Branch), Shillong,
Meghalaya, Pin : 793011.
....... Respondents
BEFORE
HON'BLE MR JUSTICE T NANDAKUMAR SINGH
Advocate for the Petitioner : Mr HG Baruah, Adv.
2
Advocate for the respondents : Mr SC Shyam, Sr. Adv.
Mr B Deb, Adv.
Date of hearing : 12.08.2014
Date of Judgment and Order : 12.08.2014
JUDGMENT AND ORDER(Oral)
By means of this writ petition, the petitioner
prays for a direction to the respondents to consider his
case for promotion to the post of Sub (CLK) w.e.f. the date
his juniors i.e. respondents No. 7 and 8 had been promoted
to the post of Sub (Clks) w.e.f. 01.01.2012 vide order dated
29.02.2012.
2. Heard Mr HG Baruah, learned counsel for the
petitioner and Mr SC Shyam, learned Senior counsel,
assisted by Mr B Deb, learned counsel for the respondents
No. 1 to 4. None appears for respondents No. 5 to 8 inspite
of proper service of notice to them.
3. The petitioner was enrolled in Assam Rifles on
02.05.1987 as a Lnk/writer against the reserved vacancy of
Scheduled Caste after proper verification of the Scheduled
Caste certificate submitted by the petitioner. The petitioner
also annexed a copy of duly filled-up casualty form- JCO,
3
OR & NCsE dated 25.11.1987 issued by the competent
authority of the Assam Rifles in the writ petition and it
shows that the petitioner had been enrolled in the Assam
Rifles against reserved vacancy of Scheduled Caste. The
said casualty form - JCO, OR & NCsE dated 25.11.1987 is
reproduced below :
"ASSAM RIFLES SERVICE
&
CASUALTY FORM - JCO, OR & NCsE
The entries made on this form must invariably agree with those
recorded the Sheet Roll and/or Casualties published in Part II,
Order of the Assam Rifles C/361495 Rank R_-___ Name Rajan
K Trade Writer Med. Cat ............
H/Name - Pachali Tharai
ENLISTMENT PERSONAL PARTICULARS POSTAL
PARTICULARS PARTICULARS
ARTC Father' Name: Kochu Kunju Village:
Religion: Hindu Sooranad North
Engagement:4/8 Class or Tribe: Keralite (SC) Post Office:
Yrs MRRG Do II No. 53/58/2Kd Anayadi
Enrolment 26/9/2K Telegraph
11.5.68 Next-of-kin: Kunju Pennu Office:
02.5.87 (mother) Sastamcot Quil
Nearest Railway
Station and
distance from
the residence
Thana/Police
Station, Tehsil
and D
Chakkirally
Educational COURSES PASSED HONOURS & AW
Qualifications
Le Military
PROMINENT OPERATIONAL
OCCURENCES THEATRE
ADMISSTION TO ANNUAL
HOSPITAL WEAPON
TRAINING
Casualties affecting the military history of personnel including
important items mentioned above will be recorded with
appropriate authority on the......"
4
4. Later on the petitioner was promoted to the rank
of Nk/CLK w.e.f. 02.02.1994 in common roster of the
seniority of gradation list against reserved vacancy of
Scheduled Caste; and rank of NK/CLK was merged with
the rank of Hav/CLK w.e.f. 10.10.1997. As on 23.03.2001,
the petitioner had completed 7 years, 2 months and 22
days in the rank of Hav/CLK.
5. By an order dated 10.09.1999, promoted
respondents No. 5 and 6 from the rank of Hav/CLK to the
rank of WO/CLK w.e.f. 01.09.1999 against reserved
vacancy of the Scheduled Caste. By an order being Rec
(Adm-IV)/Promotion/208 dated 07.08.2006, the petitioner
was promoted to the rank of Nb Sub (Clk) w.e.f. 29.04.2006
against reserved vacancy of Scheduled Caste. A copy of the
said order dated 07.08.2006 is available at Annexure V to
the writ petition; and on perusal, it is clear that the
petitioner had been shown as a member of the Scheduled
Caste and his promotion was against reserved vacancy of
Scheduled Caste. For easy reference, the relevant portions
of the said order dated 07.08.2006 are quoted hereunder :
"MAHANIDESHALAYA ASSAM RIFLES
DIRECTORATE GENERAL ASSAM RIFLES
SHILLONG-793011
ORDER
Rec(Adm-IV)Promotion/208 Dated Shillong, the 07 Aug 2006 5
1. The following WO (Clk)/Hav (Clk) are hereby temporarily promoted to the rank of Nb Sub (Clk) with effect from date shown against each individual subject to fulfillment of discipline and medical criteria as mentioned in Appx 'A' to ROI 4/2002:-
WO (Clk) to Nb Sub (Clk)
1. ........
2. ........
3. 360928 WO (Clk) Ranjit Singh Guleria- 16 AR- to be promoted wef 29 Apr 06 in situ.
.........
142. 361495 WO(Clk)- HQ DGAR- to be promoted wef 29 Apr 06 in situ.
Rajan K (SC) (Med Branch)
.........
172. 361810 WO(Clk) - ARTS&S - to be
promoted wef 29 Apr 06 in situ.
Dev Raj (SC).
2. In case any of the above individual is involved in a disciplinary case or placed in low medical category and do not fulfill following discipline criteria, will not be promoted to the aforesaid rank and intimate to this effect will be given to this Directorate for cancellation of promotion order:-
(a) An individual should not have more than a total of three red ink entries in the entire service, including not more than one red ink entry during last five years.
(b) No red ink entry has been incurred during last one year.
3. Option to be exercised within one month from the date of assumption of duty by the individuals for fixation of pay in the new post either straightway from the date of assumption to the new post or from the date of their next increment in the old post vide GID (17), FR-22.
4. Personal occurrences relating to promotion be notified in BRO Part II order allowing them to pay and allowances from the date of assumption of duty.
5. The assumption certificate as per Appx K to ROI 4/2002 may please be furnished to this Directorate (Adm-IV) at the earliest. A copy of the same and option certificate as mentioned in Para 3 above may also be enclosed alongwith the BRO Part II (Doc Group) of this Directorate.
6. Since the latest information regarding discipline and medical criteria is not available in the documents, fmns/ests/units are requested to make a fresh check of these aspects, before 6 implementing promotion orders in each case. In case any of the above mentioned individuals is found ineligible, Record Branch this Directorate shall be apprised by signal within 72 hours for further clarification.
7. Holding str of Nb Subs of a No of units/fmns will be more than the auth due to these bulk promotions. The str is being rationalized separately keeping service/sector profiles of the affected pers in view. Representation on this account be therefore, avoided.
8. Please acknowledge on receipt.
(J S Guleria) Lt.Col SO-1(Adm & Docu) For DGAR"
6. The next higher promotional post of Nk Sub (CLK) is Subedar (CLK). It is not disputed by the parties that under relevant Recruitment Rules, Nb Sub (CLK) with 3 years regular service in the grade and Medical Category Shape-I is eligible for promotion to the post of Subedar (Clerks). The relevant portion of Recruitment Rules, 2006 for promotion to the post of Subedar (Clerks) are quoted hereunder :
1 2 3 4 5
23. 98* (2000) Group 'B' Rs. 6500- Selection-
Subedar * Subject to (Non- 200-10500 cum-
(Clerks) variation Gazetted, seniority
dependent Combatised,
on Ministerial).
workload
6 7 8 9 10
Not Not Not Not Not
applicable applicable applicable applicable applicable
11 12
7
By Promotion
promotion from
amongst
the
members of
Assam
Rifles
holding the
rank of
Naib
Subedar
(Clerk),
with three
years
regular
service in
the grade,
Medical
category
must be
SHAPE-I.
The petitioner on 29.04.2012 had completed 6 years of service in the rank of Nb Sub (CLK). The qualifying service for promotion under the Recruitment Rules, 2006 for the post of Sub (CLK) is only for 3 years.
7. It is the further case of the petitioner that respondent No. 7 i.e. JC-361810 Mr Dev Raj and the respondent No. 8 i.e. JC-361836 Mr Tara Ram were promoted to the post of Nb Sub (CLK) only on 01.01.2012. Therefore, the petitioner is senior to respondents No. 7 and 8 in the Grade of Nb Sub (CLK), inasmuch as, they were promoted to the post of Nb Sub (CLK) only on 01.01.2012 and the petitioner was promoted to the post of Nb Sub (CLK) w.e.f. 29.04.2006.
8
8. The Headquarters DGAR under WT Message dated 03.12.2009 requested the concerned Commandants to send Caste Certificate of the petitioner and others for verification as to whether they are members of the Scheduled Caste or not. In response to the said WT message dated 03.12.2009, the Commandant 6th Assam Rifles under his letter dated 08.12.2009 forwarded the Scheduled Caste Certificate in original as well as attested copies of the certificates of the petitioner to the Director General Assam Rifles for verification. The Director General Assam Rifles verified the Scheduled Caste certificate of the petitioner forwarded by the Commandant under said letter dated 08.12.2009 and issued the order that the Scheduled Caste certificate of the petitioner had been duly verified vide order of the DGAR dated 26.09.2009, a copy of which is available at Annexure IV to the writ petition which is reproduced hereunder :
"Extract of part two Order ser 53 Unit : HQ Mizoram Range Assam Rifles Station: Field Present Part Two Order Ser 53 dt 26 Sep 2000 Sheet No: 7(Seven) CASTE CERTIFICATE
58. 3614956 M Hav/Clk (** the petitioner) Individual declared as Schedule Caste in the State of Kerela, issued by Tehsildar KUNNATHU, Kerela, Vide cert 9 No A3/6965/2000/L Dis dated 26 June 2000.
Auth:- DGAR Ltr No Rec/463/Adm-II/284 dated 15 Sep 2000.
Typed by No 355061 W Hav/Ciph Checked by no360655pJayachandran G R Das S/D M S Yadav Asst Comdt Camp Comdt For Ex-Officio-Comdt"
.
9. It is stated that after the Scheduled Caste certificates of the petitioner had been duly verified by the DGAR, the DGAR under WT Message dated 16.11.2011 again requested the concerned Commandant for submission of the Scheduled Caste Certificate of the petitioner and others. In response to the said WT Message dated 16.11.2011 of the DGAR, the Commandant 6th Assam Rifles under letter dated 21.11.2011informed the DGAR that the Scheduled Caste Certificate of the petitioner had already been verified and that such verification had been intimated to the Commandant by an earlier letter of the DGAR dated 21.05.2010. For easy reference, said letter of Deputy Commandant of 6th Assam Rifles dated 21.05.2010 is quoted hereunder :
"REGISTERED Mahanideshalaya Assam Rifles Directorate General Assam Rifles, Shillong 793011 No. REC/463/2010/Adm-II/325 dated 21.05.2010 6th Assam Rifles Pin No. 932006 10 Co 99 APO CASTE CERT : RETURNING OF
1. Ref you letter No. 6033/A/2009/188 dated 8.12.09
2. Caste cert in r/o following pers of your HQ/Fmn/Unit recd vide your letter under ref is/are returned herewith duly verified :-
(a) JC-361495 Nb/Sub (ClK) K Rajan (SC)
(b)
(c)
(d)
(e)
3. Please pub necy cas on the subject if not pub earlier, and fwd copy of BRO-II along with attested copy of caste cert to this Dte (Doc Group) for making entry/retention in the Sheet Roll.
Sd/ For DGAR"
10. It is categorically stated in the writ petition that because of the lapses on the part of the authority to submit Scheduled Caste Certificate of the petitioner and also failure on the part of the authority to properly verify the Scheduled Caste Certificate submitted by the petitioner, the petitioner was not considered for promotion to the post of Subedar (CLK) against the reserved vacancy of Scheduled Caste but his juniors including respondents No. 7 and 8 had been considered for promotion to the post of Subedar (CLK). As a result of the non consideration of the petitioner for promotion to the post of Subedar (CLK) in the reserved vacancy of Scheduled Caste, the name of the petitioner was not included in the order dated 29.02.2012 for promotion to the post of Subedar (CLK). It is not 11 disputed that respondents No. 7 and 8 who are admittedly juniors to the petitioner in the rank of Nb Sub (CLK) had been promoted to the post of Subedar (CLK) under the said order dated 29.02.2012. Being aggrieved by non consideration of the case of the petitioner for promotion to the post of Subedar (CLK) in the reserved vacancy of Scheduled Caste candidate, the petitioner had approached this Court by filing the present writ petition.
11. The respondents filed affidavit-in-opposition, and the main case of the respondents is that the petitioner was enrolled in the Assam Rifles as General candidate and therefore, the petitioner could not be considered for promotion to the post of Subedar (CLK) in the reserved vacancy of Scheduled Caste. As stated above, the petitioner was enrolled in the Assam Rifles in the reserved category of the Scheduled Caste, in as much as, the said casualty form as quoted above clearly shows that the petitioner had been enrolled in the Assam Rifles in the reserved vacancy of Scheduled Caste. Over and above, the promotion order dated 07.08.2006, clearly shows that the petitioner had been promoted to the rank of Nb Sub (CLK) in the reserved category of Scheduled Caste. In this situation, this Court is not accepting the case of the 12 respondents in the affidavit-in-opposition that the petitioner had been enrolled as General Candidate in the Assam Rifles. The other correspondences clearly show that the petitioner had been treated as a member of Scheduled Caste by the respondents and the Commandant of 6th Assam Rifles, and in the earlier instances, the petitioner had been requested to produce the Caste certificate for verification. The Commandant of the 6th Assam Rifles submitted the Scheduled Caste Certificates of the petitioner to the DGAR for verification and the DGAR, after proper verification of the Caste certificates of the petitioner, had informed the Commandant of the 6th Assam Rifles that Caste certificates of the petitioner had been properly verified by the DGAR.
12. It is the case of the petitioner in the writ petition that he had not been considered for promotion to the post of Subedar (CLK) against reserved vacancy of Scheduled Caste because of the lapses on the part of the authorities and there was no lapses on the part of the petitioner. The petitioner further stated in the writ petition that his juniors had been considered for promotion to the post of Subedar (CLK) while his case has been left out. 13
13. Mr HG Baruah, learned counsel appearing for the petitioner strenuously contended that the right to be considered for promotion is a fundamental right provided the concerned employee is eligible for promotion under the relevant Recruitment Rules. In the instant case, the petitioner is admittedly eligible for promotion to the post of Subedar (CLK) under the relevant Recruitment Rules and his case was not considered for promotion for the lapses on the part of the concerned authorities. Learned counsel for the petitioner further contended that the case of the petitioner should be considered for promotion to the post of higher post w.e.f. the date his juniors had been promoted.
Learned counsel for the petitioner by referring to the said promotion order of the juniors i.e. respondents No. 7 and 8 dated 29.02.2012 contended that his juniors i.e. respondents No. 7 and 8 had been promoted to the posts of Subedar (CLK) w.e.f. 01.01.2012. Therefore, it is the case of the petitioner that the petitioner should have been promoted to the post of Subedar (CLK) w.e.f. 01.01.2012.
14. Learned counsel for the petitioner, in support of his submission, referred to the decision of the Apex Court in RK Sethi and Another vs. Oil & Natural Gas Commission and Others, reported in (1997)10 SCC 616 and in Union of 14 India and Another vs. Hemraj Singh Chauhan and Others, reported in (2010) 4 SCC 290.
Para 12 of the SCC in RK Sethi's case (supra) reads as follows :
"12. Once it is held that Telex Operators have been rightly placed en bloc below regular employees in AG
-II cadre as a result of the merger of the said cadre in the cadre of AG-II on 25-4-1980, regular employees in AG -II cadre who were senior to the Telex Operators could rightly feel aggrieved if they were denied promotion while their juniors were promoted as AG-I. The "next below rule" in service jurisprudence seeks to ensure that if a junior employee is given promotion without considering his senior then the senior employee can claim the right to be considered for such promotion with effect from the date on which the junior was so promoted. The action of the Commission in extending the benefit of promotion to regular employees in AG-II cadre as AG- I with effect from the date the Telex Operators were so promoted on account of the 12 years' Policy, being in consonance with this principle, cannot, therefore, be held to be arbitrary or unreasonable. So also the further promotion from AG-I to the post of Superintendent (P&A) under the 18 years' Policy. We are unable to endorse the view of the High Court that since regular employees in AG-II cadre did not fulfill the criteria laid down in those policies, they could not be extended the benefit of the said policies. The High Court has failed to note that when it was found that certain senior employees were left out of consideration for promotion because they did not fulfill the conditions regarding 18 years' service contained in the Office Memorandum dated 27-5-1982, the Commission modified the policy contained in the said Office Memorandum by issuing Office Memorandum dated 3-2-1983 whereby it was decided that such senior employees would be considered for promotion and, if found suitable, senior employees would be promoted with effect from 1-4-1982. In view of the said modification in the 18 years' Policy it cannot be said that regular employees in AG-II cadre could not be considered for promotion since they did not fulfill the criterion of 18 years' service".15
Para 36 of the SCC in Union of India's case (supra) reads as follows :
" 36. It is an accepted legal position that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. The guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution."
15. For the foregoing discussions, this Court is of the considered view that the petitioner could make out a good case for granting the relief sought for in the present writ petition. Accordingly, this writ petition is disposed of by directing the respondent No. 2 i.e. Director General of Assam Rifles to consider the case of the petitioner for promotion to the post of Subedar (CLK) in the reserved category of Scheduled Caste w.e.f. the date his juniors i.e. respondents No. 7 and 8 promoted to the rank of Subedar (CLK) w.e.f. 01.01.2012 within a period of four months from the date of receipt certified copy of this judgment and order.
16. The writ petition is allowed to the extent indicated above.
JUDGE dev