Meghalaya High Court
Union Of India & Ors vs . Chandrika Thakur on 1 April, 2021
Equivalent citations: AIRONLINE 2021 MEG 49
Author: H.S. Thangkhiew
Bench: H.S. Thangkhiew
Serial No.03
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WA No.11/2019
Date of Order: 01.04.2021
Union of India & ors Vs. Chandrika Thakur
Coram:
Hon'ble Mr. Justice Biswanath Somadder, Chief Justice
Hon'ble Mr. Justice H.S. Thangkhiew, Judge
Appearance:
For the Petitioner/Appellant(s) : Dr. N Mozika, ASG with
Ms. L Jana, Adv
For the Respondent(s) : Mr. KC Gautam, Adv
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
JUDGMENT:(per the Hon'ble, the Chief Justice) (Oral) This appeal has been preferred by the Union of India and four others (all officers of Assam Rifles), against the judgment and order dated 23rd January, 2018, passed by a learned Single Judge in WP (C) No.106 of 2017 (Shri Chandrika Thakur v. Union of India & ors).
By the impugned judgment and order, the learned Single Judge was pleased to allow the writ petition with a direction upon the concerned respondent authorities to the effect that the writ petitioner‟s promotion be considered w.e.f. 2006 and to give him all benefits he is entitled as per rule w.e.f. 2006, including further promotion, if any.
According to the appellants, the applicable rules, namely, "The Assam Rifles Subedar Major Store Keeper Technical (Engineers), Group „B‟ (Combatised) Recruitment Rules, 2015", came into effect on and from 5th December, 2015. As such, the appellants submit that the learned Single 1 Judge could not have issued a direction upon the respondent authorities (being the appellants herein), to give the respondent/writ petitioner promotion including all benefits he is entitled as per rules w.e.f. the year 2006, when, in fact, the relevant rule came into effect on and from 5 th December, 2015.
The respondent/writ petitioner‟s case before the learned Single Judge has been quoted in the impugned judgment and order. In order to avoid prolixity, we do not deem it necessary to reproduce the same. The only question of law that requires consideration in the facts of the instant case is whether the learned Single Judge could have issued the following direction or not:-
"9. Therefore, this Court directs that the petitioner's promotion be considered w.e.f. 2006 and to give him all the benefits he is entitled as per rule w.e.f. 2006 including further promotion, if any."
Admittedly and as observed hereinbefore, the relevant rules, being the Assam Rifles Subedar Major Store Keeper Technical (Engineers), Group „B‟ (Combatised) Recruitment Rules, 2015, came into effect on and from 5th December, 2015. In such a fact situation, we are unable to comprehend as to how the learned Single Judge could have issued a direction for giving the writ petitioner benefits as per the rules w.e.f. 2006, when, in fact, the rules came into effect on and from 5 th December, 2015, only.
The learned advocate representing the respondent/writ petitioner has relied on a judgment of the Hon‟ble Supreme Court rendered in the case of Major General H.M. Singh, VSM v. Union of India & Anr reported in (2014) 3 SCC 670, paragraphs 27, 28 and 33. According to the learned 2 advocate representing the respondent/writ petitioner, this judgment is an answer to the question of law as posed by this Court.
A bare perusal of the judgment of the Hon‟ble Supreme Court reveals that its ratio is not applicable in the facts of the instant case. The issue before the Hon‟ble Supreme Court had nothing to do with a situation where the applicable rules were not even in existence when the concerned Army officer was being considered for promotion to the rank of Lieutenant- General. In the facts of the case before the Hon‟ble Supreme Court, there was clear vacancy against the rank of Lieutenant-General, which became available w.e.f. 01.01.2007. At that juncture, the appellant-Lieutenant- General, H.M. Singh had 14(fourteen) months of service remaining. The vacancy had come into existence before the appellant had reached the age of retirement on superannuation. Denial of promotion to the appellant mainly for the reason that the appellant was on extension in service - in the opinion of the Hon‟ble Supreme Court - was unsustainable besides being arbitrary, especially in the light of the fact that the vacancy was clamouring consideration and became available well before the date of his retirement on superannuation. It was in such circumstances that the Hon‟ble Supreme Court proceeded to hold to the effect that the claim of the appellant for onward promotion to the rank of Lieutenant-General had been declined by the Appointments Committee of the Cabinet without any basis.
As stated earlier, the judgment of the Hon‟ble Supreme Court referred to and relied upon by the learned advocate representing the respondent/writ petitioner, does not have any manner of application in the facts of the instant case, especially since there were no rules in existence in 3 the year, 2006. Inspite of non-existence of any applicable rule, the learned Single Judge has proceeded to issue such a direction as reproduced hereinabove.
In such circumstances, we are of the view that the impugned judgment and order is required to be modified in the manner as indicated hereinafter.
The respondent/writ petitioner‟s promotion shall be considered w.e.f. the date of coming into force of the relevant rules, namely, the Assam Rifles Subedar Major Store Keeper Technical (Engineers), Group „B‟ (Combatised) Recruitment Rules, 2015. All entitlements and/or benefits payable to the respondent/writ petitioner shall be calculated on and from that date.
The writ appeal is accordingly allowed and miscellaneous application, being MC (WA) No.28 of 2019, stands disposed of.
(H.S. Thangkhiew) (Biswanath Somadder)
Judge Chief Justice
Meghalaya
01.04.2021
"Lam AR-PS"
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