Gauhati High Court
No. G/56702L Prodip Kumar Haloi vs The Union Of India And 2 Ors on 12 February, 2021
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/34
GAHC010123872017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1421/2017
NO. G/56702L PRODIP KUMAR HALOI
S/O. LT. MOHENDRA RAM HALOI, HAVILDAR GD, ASSAM RIFLES,
PERMANENT RESIDENT OF NEW LABARGHARI, P.O. LOKHRA, P.S.
CHARIDUAR, PIN.- 784102, DIST. SONITPUR, ASSAM.
VERSUS
THE UNION OF INDIA and 2 ORS.
REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY
OF HOME AFFAIRS, NORTH BLOCK, NEW DELHI- 110001.
2:THE DIRECTOR GENERAL OF ASSAM RIFLES
LAIKORE
SHILLONG
PIN.- 793011.
3:THE COMMANDANT
5TH ASSAM RIFLES
C/O. 99 APO
PIN.- 932005
Advocate for the Petitioner : MR.A AHMED
Advocate for the Respondent : ASSTT.S.G.I.
Linked Case : WP(C)/3680/2017
Page No.# 2/34
DAYAL SINGH BISHT
S/O LT. DALPAT SINGH BISHT HQ COY 4TH ASSAM RIFLES C/O 99 APO.
VERSUS
UNION OF INDIA and 2 ORS
REP. BY THE SECRETARY THE GOVT. OF INDIA
MINISTRY OF HOME AFFAIRS
NEW DELHI- 110001.
2:DIRECTOR GENERAL OF ASSAM RIFLES
SHILLONG MEGHALAYA -11.
3:THE COMMANDANT 4TH ASSAM RIFLES
C/O 99 APO
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Advocate for : MS.S BORA Advocate for : MR.S P CHOUDHURY appearing for UNION OF INDIA and 2 ORS Linked Case : I.A.(Civil)/2907/2019 SUNDER SINGH YADAV S/O LATE CHHAJU RAM YADAV VILL. KAKRALA P.O. KAKRALA P.S. KANINA DIST. MAHENDRAGARH STATE HARYANA PIN 123027 PRESENTLY POSTED AT NO. 3 WORKSHOP ASSAM RIFLES C/O APO JORHAT ASSAM.
VERSUS UNION OF INDIA AND 2 ORS.
REPRESENTED BY THE SECY. THE GOVT. OF INDIA MINISTRY OF HOME AFFAIRS NEW DELHI 110001 2:DIRECTOR GENERAL ASSAM RIFLES DIRECTORATE GENERAL OF ASSAM RIFLES SHILLONG-11 Page No.# 3/34 3:THE COMMANDANT NO 3 WORKSHOP ASSAM RIFLES C/O 99 APO JORHAT ASSAM.
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Advocate for : MS. S BORA Advocate for : MR. K K PARASAR appearing for UNION OF INDIA AND 2 ORS. Linked Case : WP(C)/5483/2017 PRANAB KUMAR KALITA S/O. LT. NABIN KALITA NO. 355434 HAV/ ORL HQ COY 24 ASSAM RIFLES C/O. 99 APO PIN-932024.
VERSUS THE UNION OF INDIA and 2 ORS.
REP. BY THE SECRETARY MINISTRY OF HOME AFFAIRS NEW DELHI-110011.
2:THE DIRECTOR GENERAL ASSAM RIFLES DIRECTORATE GENERAL OF ASSAM RIFLES MAHANIDESHALAYA ASSAM RIFLES SHILLONG PIN-783011.
3:THE COMMANDANT 24 ASSAM RIFLES C/O.99 APO PIN-932024.
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Advocate for : MS. S BORA Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA and 2 ORS. Linked Case : WP(C)/5774/2017 Page No.# 4/34 SUNIL KUMAR SHAHI S/O KADEER SHAHI R/O VILL and P.O. HARKA MAN SHAHI P.S. MEENAPUR DIST. MUZZAFURPUR BIHAR PIN - 843128. VERSUS THE UNION OF INDIA and 2 ORS.
REP. BY THE SECRETARY TO THE GOVT. OF INDIA MINISTRY OF HOME AFFAIRS NEW DELHI - 110001.
2:THE DIRECTOR GENERAL ASSAM RIFLES DIRECTORATE GENERAL OF ASSAM RIFLES SHILLONG
-11.
3:THE COMMANDANT 8 ASSAM RIFLES C/O 99 APO
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Advocate for : MRSP RAI Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA and 2 ORS. Linked Case : WP(C)/5875/2017 NO. G/3600164W HAV/GD RAJEN SINGH PALIYAL S/O- NAYAN SINGH PRESENTLY POSTED AT 36 ASSAM RIFLES R/O- VILL- DALI GANGOLIHAL PITHORAGARY UTTRAKHAND PIN- 262527 VERSUS THE UNION OF INDIA and 2 ORS.
REP. BY THE SECRETARY TO THE GOVT OF INDIA MIN OF HOME AFFAIRS NEW DELHI- 110001 Page No.# 5/34 2:THE DIRECTOR GENERAL ASSAM RIFLES DIRECTORATE GENERAL OF ASSAM RIFLES SHILLONG- 793011 3:THE COMMANDANT 36 ASSAM RIFLES C/O- 99 APO
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Advocate for : MR SP RAI Advocate for : appearing for THE UNION OF INDIA and 2 ORS. Linked Case : WP(C)/7783/2017 NO.M/371073 P HAV/NA DILWAR SINGH CHAUHAN S/O- LT AVTAR SINGH CHAUHAN R/O- VILL- BALASOUR KOTDWARA DIST-PURI GARHWAL UTTARAKHAND PIN-246149 VERSUS THE UNION OF INDIA and 3 ORS REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA MINISTRY OF HOME AFFAIRS NEW-DELHI-1 2:THE DIRECTOR GENERAL ASSAM RIFLES DIRECTORATE GENERAL OF ASSAM RIFLES SHILLONG-793011 3:THE COMMANDANT 27 ASSAM RIFLES C/O. 99 APO UKHRUL MANIPUR PIN-975145 4:THE OFFICER COMMANDING TRANSIT CAMP ASSAM RIFLES KHANAPARA GUWAHATI-ASSAM
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Advocate for : MS U DAS Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA and 3 ORS Page No.# 6/34 Linked Case : WP(C)/1145/2017 ABANTI SINGHA S/O SUBIDAR SINGHA VILL- SARADAMANI LANE P.O- VIVEKANANDA ROAD DIST- CACHAR ASSAM PRESENTLY SERVING AT 39 ASSAM RIFLES C/O 99 APO VERSUS UNION OF INDIA and 2 ORS.
REPRESENTED BY THE SECRETARY THE GOVT. OF INDIA MINISTRY OF HOME AFFAIRS NEW DELHI- 11001 2:DIRECTOR GENERAL OF ASSAM RIFILES SHILLONG MEGHALAYA -11 3:THE COMMANDANT 39 ASSAM RIFILES C/O 99APO PIN- 932039
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Advocate for : MS.S BORA Advocate for : MS.R DEVI appearing for UNION OF INDIA and 2 ORS. Linked Case : WP(C)/6184/2017 ASFAQUE AHMED SIDDIQUE S/O LT. SHAMSUDDIN NO. 355076 HAV/ORL HQ 25 SECTOR ASSAM RIFLES PRESENTLY AT HQ. DIRECTOR GENERAL ASSAM RIFLES SHILLONG.
VERSUS THE UNION OF INDIA and ORS REP. BY THE SECRETARY MINISTRY OF HOME AFFAMRS NEW DELHI - 110011.
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Advocate for : MS.S BORA Advocate for : C.G.C. appearing for THE UNION OF INDIA and ORS Page No.# 7/34 Linked Case : WP(C)/1017/2019 SUNDER SINGH YADAV S/O. NO CHHAJU RAM YADAV VILL. KAKRALA P.O. KAKRALA P.S. KANINA DIST. MAHENDRAGARH STATE HARYANA PIN-123027 PRESENTLY POSTED AT NO. 3 WORKSHOP ASSAM RIFLES C/O. APO JORHAT ASSAM.
VERSUS UNION OF INDIA AND 2 ORS.
REP. BY THE SECRETARY THE GOVT. OF INDIA MINISTRY OF HOME AFFAIRS NEW DELHI-110001.
2:DIRECTOR GENERAL ASSAM RIFLES DIRECTORATE GENERAL OF ASSAM RIFLES SHILLONG-11.
3:THE COMMANDANT NO. 3 WORKSHOP ASSAM RIFLES C/O. 99 APO JORHAT ASSAM.
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Advocate for : MS. S BORA Advocate for : ASSTT.S.G.I. appearing for UNION OF INDIA AND 2 ORS. Linked Case : WP(C)/381/2018 RAMESH CHANDER S/O- LATE DINA NATH VILL- CHANNIMORH P.O- SATHANI Page No.# 8/34 DIST- UDHAMPUR STATE J AND K PRESENTLY WORKING AS A WO/GD AT THE 13TH ASSAM RIFLES C/O- APO VERSUS UNION OF INDIA REP. BY THE SECRETARY MIN OF HOME AFFAIRS NEW DELHI- 110011 2:THE DIRECTOR GENERAL ASSAM RIFLES DIRECTORATE GENERAL OF ASSAM RIFLES SHILLONG PIN- 793011 3:THE COMMANDANT 13TH ASSAM RIFLES C/O- 99 APO PIN- 932013
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Advocate for : MS. S BORO Advocate for : ASSTT.S.G.I. appearing for UNION OF INDIA Linked Case : WP(C)/2644/2018 DALIP SINGH AND 2 ORS S/O. LATE GANGA RAM VILL.- TIKKAR P.S. TAUNI DEVI DIST HAMIRPUR (H.P.) PRESENTLY WORKING AS WO/GD AT 13 ASSAM RIFLES C/O. 99 APO.
2: AMAR KRISHAN SARKAR VILL. AND P.O. DHAKURIA DIST- 24 PARGANAS (N) W.B. WORKING AS HAVILDAR/ORL AT 13 ASSAM RIFLES C/O. 99 APO.
3: BOJOY SHANKER TIWARI VILL. AND P.O. GRAMPATON PURA DIST. BUXAR BIHAR Page No.# 9/34 WORKING AS RFN/ GD AT 13 ASSAM RIFLES C/O. 99 APO.
VERSUS UNION OF INDIA AND 2 ORS REPRESENTED BY THE SECRETARY MINISTRY OF HOME AFFAIRS NEW DELHI- 110011 2:THE DIRECTOR GENERAL ASSAM RIFLES DIRECTORATE GENERAL OF ASSAM RIFLES SHILLONG- 793011 3:THE COMMANDANT 13 ASSAM RIFLES C/O. 99 APO PIN- 932013
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Advocate for : MS. S BORA Advocate for : ASSTT.S.G.I. appearing for UNION OF INDIA AND 2 ORS Linked Case : WP(C)/6688/2017 YAMUNA SINGH S/O. HARI KRISHNA SINGH NO. 134440 RANK RIFLEMAN/GD HQ. COY 13TH ASSAM RIFLES C/O. 99 APO.
VERSUS THE UNION OF INDIA and 2 ORS.
REP. BY THE SECRETARY THE GOVT. OF INDIA MINISTRY OF HOME AFFAIRS NEW DELHI-110001.
2:DIRECTOR GENERAL OF ASSAM RIFLES SHILLONG MEGHALAYA-11.
3:THE COMMANDANT 13TH ASSAM RIFLES C/O. 99 A.P.O.
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Page No.# 10/34 Advocate for : MS. S BORA Advocate for : MR. K K PARASAR R- 1-3 appearing for THE UNION OF INDIA and 2 ORS.
Linked Case : WP(C)/1088/2017 NAWAL KISHORE THAKUR NO.G/183940W PRESENTLY SERVING AS HAVILDAR GD 18 ASSAM RIFLES C/O. 99 APO.
VERSUS THE UNION OF INDIA and 2 ORS.
REP. BY THE SECRETARY MINISTRY OF HOME AFFAIRS NEW DELHI- 110001.
2:THE DIRECTOR GENERAL ASSAM RIFLES DIRECTORATE GENERAL OF ASSAM RIFLES MAHANIDESHALYA ASSAM RIFLES SHILLONG PIN.- 793011.
3:THE COMMANDANT 18 ASSAM RIFLES C/O. 99 APO PIN.- 932018.
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Advocate for : MR.T N SRINIVASAN Advocate for : MS.H TERANGPI appearing for THE UNION OF INDIA and 2 ORS. Linked Case : WP(C)/3051/2017 JALALUDDIN KHAN NO.G/183838N PRESENTLY SERVING AS HAVILDAR GD Page No.# 11/34 18 ASSAM RIFLES C/O 99 APO VERSUS THE UNION OF INDIA and 2 ORS.
REP. BY THE SECRETARY MINISTRY OF HOME AFFAIRS NEW DELHI-110011.
2:THE DIRECTOR GENERAL ASSAM RIFLES DIRECTORATE GENERAL OF ASSAM RIFLES MAHANIDESHALYA ASSAM RIFLES SHILLONG PIN - 793011.
3:THE COMMANDANT 18 ASSAM RIFLES C/O 99 APO PIN - 932018.
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Advocate for : MR.N BARUAH Advocate for : appearing for THE UNION OF INDIA and 2 ORS. Linked Case : WP(C)/1087/2017 SHESH KANT SHARMA NO.G/184001A PRESENTLY SERVING AS HAVILDAR GD 18 ASSAM RIFLES C/O 99 APO PIN-932018 VERSUS THE UNION OF INDIA and 2 ORS.
REP. BY THE SECY.
MINISTRY OF HOME AFFAIRS NEW DELHI-11 Page No.# 12/34 2:THE DIRECTOR GENERAL ASSAM RIFLES DIRECTORATE GENERAL OF ASSAM RIFLES MAHANIDESHALYA ASSAM RIFLES SHILLONG PIN-793011 3:THE COMMANDANT 18 ASSAM RIFLES C/O 99 APO PIN-932018
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Advocate for : MR.T N SRINIVASAN Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA and 2 ORS. Linked Case : WP(C)/6674/2017 MOHAN DEV S/O LT. LACHHI RAM NO. 134346 RANK HAVILDAR/GD B COY 13TH ASSM RIFLES C/O 99 APO VERSUS THE UNION OF INDIA and 2 ORS REP. BY THE SECRETARY THE GOVT. OF INDIA MINISTRY OF HOME AFFAIRS NEW DLEHI - 110001.
2:DIRECTOR GENERAL OF ASSAM RIFLES SHILLONG MEGHALAYA-11 3:THE COMMANDANT 13TH ASSAM RIFLES C/O 99 APO
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Advocate for : MS.S BORA Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA and 2 ORS Linked Case : WP(C)/5776/2017 SUSHIL GOHAIN Page No.# 13/34 S/O- LATE KESHAB GOHAIN R/O- VILL- NIZ LAHOWAL P.O AND P.S- LAHOWAL DIST- DIBRUGARH ASSAM VERSUS THE UNION OF INDIA and 2 ORS.
REP. BY THE SECRETARY TO THE GOVT OF INDIA MIN OF HOME AFFAIRS NEW DELHI- 110001 2:THE DIRECTOR GENERAL ASSAM RIFLES DIRECTORATE GENERAL OF ASSAM RIFLES SHILLONG-11 3:THE COMMANDANT 8 ASSAM RIFLES C/O- 99 APO
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Advocate for : MR.H BEZBARUAH Advocate for : C.G.C. appearing for THE UNION OF INDIA and 2 ORS. Linked Case : WP(C)/6256/2017 JEEWAN SINGH S/O LT. MAHANT RAM VILL- MANJHOT DIS.T HAMIRPUR HIMACHAL PRADESH PRESENTLY SERVING IN 33 ASSAM RIFLES C/O 99 APO PIN - 932033.
VERSUS THE UNION OF INDIA and 2 ORS REP. BY THE SECRETARY TO THE GOVT. OF INDIA MINISTRY OF HOME AFFAIRS NORTH BLOCK NEW DELHI- 110001.
2:THE DIRECTOR GENERAL ASSAM RIFLES SHILLONG MEGHALAYA- PIN -973011.
3:THE COMMANDANT 33 ASSAM RIFLES Page No.# 14/34 C/O 99 APO PIN - 932033.
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Advocate for : MS.S BORA Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA and 2 ORS Linked Case : WP(C)/4716/2019 RAVIKANT YADAV S/O- SRI CHANDRAJEET YADAV VILL- JAMALPUR BHELKHRA P.O- SIRSAL DIST- AZAMGARH STATE UP PRESENT SERVING IN THE 16TH ASSAM RIFLES C/O- APO PIN- 932016 VERSUS UNION OF INDIA AND 2 ORS REP. BY THE SECRETARY TO THE GOVT OF INDIA MIN OF HOME AFFAIRS NEW DELHI- 110001 2:DIRECTOR GENERAL ASSAM RIFLES DIRECTORATE GENERAL OF ASSAM RIFLES SHILLONG- 11 3:THE COMMANDANT 16TH ASSAM RIFLES C/O- 99 APO PIN- 932016
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Advocate for : MS. S BORA Advocate for : ASSTT.S.G.I. appearing for UNION OF INDIA AND 2 ORS Linked Case : WP(C)/6649/2017 LALLAN YADAV S/O- LATE CHANDER DEV YADAV NO. 134446 RANK HAVILDAR/GD A COY 13TH ASSAM RIFLES C/O 99 APO Page No.# 15/34 VERSUS THE UNION OF INDIA and 2 ORS.
REP. BY THE SECRETARY TO THE GOVT OF INDIA MIN OF HOME AFFAIRS NEW DELHI- 110001 2:DIRECTOR GENERAL OF ASSAM RIFLES SHILLONG MEGHALAYA-11 3:THE COMMANDANT 13TH ASSAM RIFLES C/O- 99 APO
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Advocate for : MS. D BHUYAN Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA and 2 ORS.
BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA JUDGMENT & ORDER Heard Mr. R. Mazumdar, Mr. A. Ahmed, Ms. S. Bora, the learned counsels for the writ petitioners. Also heard Ms. A.Gayan, , Mr. K.K. Parasar, , Mr. S.S.Roy, the, Mr. B. Sarma, , Mr. S.K. Medhi, , Mr. D.C. Borah and Mr. S.P. Choudhury, the learned CGCs for the Union of India.
2. The subject matter in all the writ petitions being identical, the writ petitions are being disposed of by this common judgment and order.
3. The matters relate to the premature retirement of the petitioners in exercise of the powers conferred by Rule 48(1)(b) of the Central Civil Service (Pension) Rules, 1972 (hereinafter referred to as Pension Rules, 1972) and Rule 56(j) of the Fundamental Rules. Though some of the impugned orders in the various petitions show that the premature retirement of the petitioners has been done either by way of Rule 48(1)(b) of the Pension Page No.# 16/34 Rules, 1972 or FR 56(j), the process undertaken by the respondents for prematurely retiring the petitioners have been done by applying both Rule 48(1)(b) and FR 56(j).
4. The facts in W(C) No. 5774/2017 are being referred to for disposal of all the writ petitions. The petitioner, who is a Havilder Nursing Assistant in the Assam Rifles in WP(C) No. 5774/2017 is aggrieved by the Order dated 10.08.2017, issued in exercise of Rule 48(1)(b) of the Pension Rules, 1972, by which the petitioner has been prematurely retired from service w.e.f. 01.11.2017. The petitioner's counsel submits that the impugned Order dated 10.08.2017, by which the petitioner has been given notice that he will be prematurely retired from service w.e.f 01.11.2017 has to be set aside, inasmuch as, the said order, though purportedly retiring the petitioner on grounds of public interest, has actually prematurely retired the petitioner due to his low medical category of SHAPE-II.
5. The petitioner's counsel submits that a Government servant, who has completed 30 years of qualifying service, may be retired by the authority in public interest as per Rule 48(1)
(b) of the Pension Rules or if the Government servant has attained the age of 50 years as per Clause (i) or 55 years as per Clause (ii) of Rule 56(j) of the Fundamental Rules. However, while invoking Rule 48(1)(b)/ FR 56(j), an opinion has to be formed by the authorities that it is in public interest to do so, which would require the respondents to come to a finding that the Government servant's integrity was doubtful or he was found to be ineffective in his service. He submits that the petitioner has however been prematurely retired on the ground of having low medical category, which in fact should have attracted Rule 26 of the Assam Rifles Rules, 2010. He submits that the action of the respondents in retiring the petitioner on grounds of his low medical category, by applying Rule 48(1)(b) of the Pension Rules is not in consonance with the Order dated 15.06.2016 passed by this Court in a batch of writ petitions, Page No.# 17/34 the lead case being, WP(C) No. 1250/2015, "Sunil Kumar Shahi Vs. Union of India & 3 Ors".
He also submits that there are many Assam Rifles personnel who have completed 30 years of service and/or have completed 50 years of age, who are still being retained in service, though their medical category is not SHAPE-1. In this regard, he has relied upon the "Nomino Roll of Permanent Low Medical Category Persons in respect of 11 Assam Rifles for the month of December, 2020" issued by the respondents.
6. The counsels for the respondents submit that the petitioner has a low medical category, i.e. SHAPE-II and as such, the premature retirement of the petitioner in terms of Rule 48(1)(b) of the Pension Rules, 1972 was justified. They also submit that the members of the Armed Forces should be in the medical category SHAPE-I and if they do not have the medical category SHAPE-I, their premature retirement would be in public interest.
The counsels for the respondents also submit that the High Court of Meghalaya has upheld the premature retirement orders issued by the respondents in similar cases i.e. WA No. 12/2014, "Sh. Tikendra Singh Vs. Union of India & Others , WA No. 52/2013, "Union of India Vs. Sh. Uttam Chand " and WP(C) No. 12/2015, " Ravi R, Service No. G/2201010M Vs. Union of India".
7. I have heard the learned counsels for the parties.
8. This Court in its Order dated 15.06.2016, passed in Sunil Kumar Shahi Vs. Union of India & 3 Ors (supra), has dealt with FR 56 (j), Rule 48 of the Pension Rules, Rule 26 of the Assam Rifles Rules, 2010 extensively. The above order was upheld by the Division Bench and the appeal filed by the respondents in the Supreme Court has been dismissed. The facts of the case in "Sunil Kumar Shahi Vs. Union of India & 3 Ors" (supra) is that the petitioner had been permitted to retire from service under the provisions of Rule 48(1) of the Pension Page No.# 18/34 Rules, 1972 and FR 56(j) vide Order dated 15.10.2015. The petitioner therein challenged the said Order dated 15.10.2015 on the ground that he had not made any prayer for premature retirement. However, in the affidavit filed by the Union of India in the above case, it was shown that the petitioner had been retired under FR 56 read with Rule 48 (1)(b) of the Pension Rules, as the petitioner was in the low medical category of SHAPE-II. This Court vide Order dated 15.06.2016 held that as the petitioner had been retired on the basis of his low medical category, the respondents should have followed the appropriate procedure under Rule 26 of the Assam Rifles Rules, 2010, which provides a detailed procedure for retirement or discharge by reason due to medical unfitness and that the respondents could not have retired him prematurely under FR 56(j) and Rule 48(1) of the Pension Rules due to his medical disability/ low medical category.
9. The extract of the Order dated 15.06.2016 passed by this Court in the case of Sunil Kumar Shahi Vs. Union of India & 3 Ors (supra) is reproduced below:-
"FR 56 deals with retirement of Government servant at the age of 60 years. As perFR 56 (j), notwithstanding anything contained therein, the appropriate authority shall, if it is of the opinion that it is in the public interest so to do, have the absolute right to retire any Government servant by giving him notice of not less than three months in writing or three months' pay and allowances in lieu of such notice. As per Clause (i), in respect of Group-A and Group-B personnel, such retirement can be effected after attaining the age of 50 years and as per Clause (ii) in any other case after attaining the age of 55 years. Thus, from ananalysis of FR 56(j) what can be deduced is that the appropriate authority must first form an opinion that it would be in the public interest to prematurely retire a Govt. servant. Once such opinion is formed, Page No.# 19/34 the appropriate authority would have the absolute right to retire such Government servant; but, before doing so, the Government servant must be given notice in writing of not less than three months or three months' pay and allowances in lieu of such notice. FR 56 (jj) provides that if on a review of the case either on a representation from the Government servant retired prematurely or otherwise, it is decided to reinstate the Government servant in service, the authority ordering reinstatement may regulate the intervening period between the date of premature retirement and the date of reinstatement by treating the intervening period as a period spent on duty for all purposes, including pay and allowances if it is held that premature retirement was not justified or if such premature retirement is set aside by a Court of law. From a cumulative reading of FR(j) and FR(jj) what transpires is that prior to taking a decision to retire a Government servant prematurely, three months notice is required to be given to the Government servant or in lieu thereof, three months' pay and allowances. This is so to enable the Government servant to make a representation against his premature retirement. If such a representation is submitted, the same is required to be considered by the appropriate authority who may even direct reinstatement, if he comes to the conclusion that premature retirement was not justified. Rule 48 of the Pension Rules provides for retirement on completion of 30 years' qualifying service. As per Clause-1, at any time after a Government servant has completed thirty years' qualifying service, he may retire from service or he may be required by the appointing authority to retire in the public interest and incase of such retirement, a Government servant would be entitled to a retiring pension. As per the first proviso (b), the appointing authority may give a notice in writing to the Government servant at least Page No.# 20/34 three months before the date on which he is required to retire in the public interest or to provide 3 months' pay and allowance in lieu of such notice. Thus from a careful reading of Rule 48 of the Pension Rules, it is evident that a Government servant may be retired by the appointing authority on completion of thirty years' of qualifying service in the public interest provided a notice in writing is given to the Government servant at least three months before the date on which he is required to go on retirement in public interest or to provide three months' pay and allowances in lieu of such notice. The instructions relating to implementation of Rule 48 of the Pension Rules are laid down in Appendix-9 to the Pension Rules. While Part-1 deals with the rules position, Part-II deals with criteria, procedure and guidelines. On the other hand, Part-III deals with procedure for consideration of representation and Part-IV lays down the time-schedule for review. In the rules position reference has been made to FR 56
(j) and Rule 48 of the Pension Rules. In so far criteria, procedure and guidelines are concerned, it is stated that in order to ensure that the powers vested in the appropriate authority are exercised fairly and impartially and not arbitrarily, procedures and guidelines have been laid down to review the cases of Government servants being considered for premature retirement. As per Clause (1), case of a Government servant covered by FR 56 (j) or Rule 48 of the Pension Rules should be reviewed six months before attaining the age of 50 or 55 years or on completion of 30 years of qualifying service, whichever is earlier. Clause (2) provides for constitution of committees to recommend whether the Government servant should be retired from service in the public interest or whether he should be retained in service. Clause (3) lays down the criteria to be followed by the committee while making the recommendation.
Page No.# 21/34 Government employees whose integrity is doubtful, should be retired. Government employees, who are found to be ineffective should also be retired. The basic consideration in identifying such employee should be the fitness/competence of the employee to continue in the post which he is holding. At the time of review, the entire service record of the Government servant should be considered. No Government servant should ordinarily be retired on the ground of ineffectiveness, if his service during the preceding 5 years has been found to be satisfactory or where he has been promoted to a higher post during the preceding 5 years. No employees should ordinarily be retired on ground of ineffectiveness if in any event he would be retiring on superannuation within a period of one year from the date of consideration. Clause (4) provides that such decision to prematurely retire a Government servant must strictly be in public interest and should not be an arbitrary decision or decision based on collateral grounds. The appropriate authority should record in the file that it has formed its opinion that it is necessary to retire the Government servant in pursuance of the aforesaid rules in the public interest. The rules relating to premature retirement should not be used to retire a Government servant on grounds of specific acts of misconduct as a short cut to initiating formal disciplinary proceeding or as a measure of reduction of surplus staff without following the rules and instructions relating to retrenchment. Clause (8) provides that when the appropriate authority has come to the conclusion that the Government servant may be prematurely retired, the three months' notice may be given before the Government servant attains the specified age or completes 30 years of service, as the case may be. While notice of such retirement could be given before the Government servant actually completes 30 years of service Page No.# 22/34 qualifying for pension, the date of expiry of the notice on which the Government servant's retirement would be effective should be one falling on or after the date of his completing 30 years of service qualifying for pension. Part-III deals with procedure for consideration of representation. It says that a Government servant who has been served with a notice/order of premature retirement may submit a representation within 3 weeks from the date of service of such notice. Thereafter how the representation is to be considered is laid down. However, it is mentioned that as and when representations are received, those should be examined by the appropriate committee. Petitioner has placed on record a copy of instructions regarding premature retirement of Central Government servants as contained in the Government of India, Ministry of Home Affairs Office Memorandum dated 05.01.1978 which are almost pari materia to the provisions contained in Appendix 9 to the Pension Rules. Additionally, it is however mentioned that if the Government servant is not found fit to continue in his present post, his fitness/competence to continue in the lower post from where he had been previously promoted, should be considered. In the part dealing with procedure for consideration of representations, it is mentioned that the appropriate Representation Committee should take special care to see that over-rigorous standards were not applied at the time of original review in the matter of judging ineffectiveness of the employee on account of mistaken sense of overzealousness and that pre-mature retirement was not resorted to as a means of political or personal victimization. It also provides that review of cases of the employees prematurely retired be conducted by a committee of officers of appropriate status unconnected with the original decision to retire the employee prematurely. Having noticed and Page No.# 23/34 discussed the above, relevant provisions of the Assam Rifles Rules may now be adverted to. The Assam Rifles Rules have been framed by the Central Government in exercise of powers conferred by section 165 of the Assam Rifles Act, 2006. Rule 26 is relevant and the same is extracted hereunder:-
_ 26. Retirement or discharge of subordinate officers and enrolled persons on grounds of physical unfitness - (1) Where a Commandant is satisfied that a subordinate officer or an enrolled person is unable to perform his duties by reason of his physical disability, he may direct that the said subordinate officer or enrolled person, as the case may be, be brought before a medical board.
(2) The medical board shall consist of such officers and shall be constituted in such manner as may, from time to time, be laid down by the Director-General. (3) Where the said subordinate officer or the enrolled person is found by the medical board to be unfit for further service in the Force, as the case may be, the authority as specified in Rule 17 shall, if it agrees with the findings of the medical board, communicate to the said person the findings of the medical board and thereupon, within a period of thirty days of such communication, the person may make a representation against it to the competent authority supported by a prima-facie evidence of error of judgment in the opinion expressed by the medical board such an evidence should be from a Government doctor not below the status of civil surgeon and should contain specific mention that he has taken into consideration the findings of the medical board before giving his opinion. (4) Where the person declared to be unfit for further service makes representation under sub-rule (3), the same shall be Page No.# 24/34 forwarded to the next superior officer, who shall have the case reviewed by a fresh medical board constituted for the purpose and order the retirement/discharge of the said person, if the decision of the fresh medical board is adverse to him. (5) Where no representation is made against the decision of the medical board under sub-rule (3), the authority as specified in Rule 17, as the case may be, may (if he agrees with the findings of the medical board) order the retirement or discharge of the person concerned. _ A perusal of Rule 26 as extracted above would go to show that in a case where the Commandant is satisfied that a sub-ordinate officer or an enrolled person is unable to perform his duties by reason of physical inability, such an officer or enrolled person may be brought before a medical board to be constituted in the prescribed manner. If the medical board finds such officer or enrolled person to be medically unfit for further service in the Assam Rifles and if the Commandant agrees with the findings of the medical board, the same shall be communicated to the person concerned whereafter the affected person may make a representation within 30 days of such communication supported by prima-facie evidence of error of judgment in the opinion expressed by the medical board; such evidence being from a Government doctor not below the status of a civil surgeon. When such a representation is received, the same shall be forwarded to the next superior officer, who shall have the case reviewed by a fresh medical board constituted for the purpose. What, therefore, emerges from the above is that whether it is a case covered by FR 56(j) or Rule 48 of the Pension Rules or Rule 26 of the Assam Rifles Rules, a detailed procedure is prescribed if the authority desires Page No.# 25/34 to prematurely retire a Government servant."
This Court thereafter set aside the premature retirement Order dated 15.10.2014 in WP(C) No. 1250/2015, on the ground that the authorities did not apply the proper provision and procedure of law, prior to prematurely retiring the petitioner.
10. Rule 48(1)(b) of the Pension Rules, 1972 provides that a Government servant may be retired from service in the public interest after he has completed 30 years qualifying service. Under FR 56 (j), the Government servant who seeks retirement or is going to be prematurely retired in public interest should have attained 55 years in case of Group C and D personnel. However, the appointing authority has to give in writing to the Government servant under Rule 48(1)(b) /FR 56(j), at least 3 months notice before the date on which he is required to retire in the public interest or to provide 3 months pay and allowance in lieu of such notice, before retiring him.
11. Rule 26 of the Assam Rifles Rules, 2010 deals with retirement or discharge of subordinate officers and enrolled persons on grounds of physical unfitness. It provides that if a Commandant is satisfied that a subordinate officer or an enrolled person is unable to perform his duties by reason of his physical disability, he may be brought before a medical board. If he is found by the medical board to be unfit for further service in the Assam Rifles, and if the Commandant agrees with the findings of the medical board, such findings should be communicated to the person concerned, enabling him to make a representation within a period of 30 days from such communication. If the finding of the medical board is contested, the representation should be supported by prima facie evidence of error of judgment in the opinion expressed by the medical board, through a Government doctor not below the status of civil surgeon. If such representation is made, the case of the concerned person shall be reviewed by a Page No.# 26/34 fresh medical board. The final decision would depend upon the outcome of the review medical board.
12. As can be seen from the extract of the Order dated 15.06.2016 passed by this Court in the case of Sunil Kumar Shahi Vs. Union of India & 3 Ors ( Supra), Clause 3 of appendix 9 to the Pension Rules, 1972 provides that Government employees whose integrity is doubtful should be retired. Government employees, who are found to be ineffective should also be retired. Though this Court in the case of Sunil Kumar Shahi Vs. Union of India & 3 Ors (Supra) has stated that the instructions relating to implementation of Rule 48 of the Pension Rules, 1972 are laid down in Appendix-9 of the Pension Rules, the same seems to be a typographical error, inasmuch as, it is Appendix 10 of the Pension Rules which deals with instructions regarding premature retirement of Central Government servants applicable to FR 56(j) and to Rule 48 of the Pension Rules, 1972. The basic consideration in identifying whether such employee is fit/competent to continue in the post which he is holding would require that the entire service records of the Government servant should be considered at the time of review. Thus, for the purpose of forming an opinion as to whether a Government servant should be retired in public interest, the respondents have a duty to make an opinion regarding the integrity of the person concerned or whether he is ineffective in service, after reviewing the entire service record of the Government servant. However, in the present case, the Selection Board had only considered 5 ACRs of the petitioner covering 5 years of the petitioner's service period, while considering further retention of the petitioner in service, though Clause 3 of Appendix-10 to the Pension Rules required that the entire service record of the Government servant was to be considered.
13. In the present case, the stand of the respondents is that the petitioner is in the low Page No.# 27/34 medical category of SHAPE-II. The petitioner's service had been terminated by way of premature retirement in the public interest by invoking Rule 48 (1)(b) of the Pension Rules, 1972. However, as stated earlier, the invocation of Rule 48 (1)(b) of the Pension Rules/FR 56(j) to prematurely retire a Government servant, requires the respondents to show that the integrity of the petitioner was doubtful or that he was ineffective in service. There is no finding or recording made by the respondents to the effect that the integrity of the petitioner was doubtful or that the petitioner was ineffective in service. The consideration/review made by the Selection Board, as reflected in annexure-2 of the affidavit-in-opposition does not give any indication that the petitioner was unable to do the work assigned to him.
14. The Selection Board which had reviewed the petitioner's service made the following remarks "not recommended due to employability restrict and opinion of the Board ". The above remarks "opinion of the Board" refers to the medical category awarded to the petitioner by the Medical Board, which is S1H1A2(P) P-2 (P) & P-2 (T-24) E1 and the words 'employability restrict" could mean the petitioner's employability is restricted to a certain nature of work/duty/employment. However, the nature of work done by various Assam Rifles personnel are different. Some do ministerial work, others are cooks, drivers, combatants etc. As such, the use of the words "employability restrict" cannot be used in a general sense, inasmuch as, the said words should have some relation to the nature of work done by the concerned personnel or it should be clarified as to whether he is ineffective in a particular line of work. This would give an opportunity to the government servant to address the particular issue when he is issued the notice. The use of the words "employability restrict" does not, to my mind, satisfy the requirement for forming an opinion that the premature retirement of the petitioner is in public interest, as the ineffectiveness in service has not been stated and the Page No.# 28/34 same does not lead to an inference that the petitioner was ineffective in his service. The respondents have to be more specific while forming an opinion.
15. As can be seen from the remarks made by the Selection Board while reviewing the petitioner's service, there is no opinion/finding made by them that the petitioner was ineffective in his service in respect of the work done by him. The only thing that is discernible is that the petitioner has been found to be in the low medical category of SHAPE-II. However, the above does not take away the fact that a person's medical condition can lead to ineffectiveness in service. In the present case, the petitioner being a Male Nurse, it was incumbent on the part of the respondents to specify/clarify if the medical categorization of the petitioner affected the petitioner's work efficiency as a Male nurse. However the same was not done. Further, the grading given in all the 5 ACRs states "recommended". However, the final grading given says " not recommended due to employability restrict and opinion of the Board". Thus, it appears that final grading given by the Selection Board on the basis of all the 5 ACRs taken together is only due to the low medical categorization of the petitioner.
As the reason for premature retirement of the petitioner has been made due to his low medical category, which has impliedly been related to the words "employability restrict", Rule 26 of the Assam Rifles Rules would have to be followed, prior to applying Rule 48 (1)(b) of the Pension Rules/FR 56(j). The respondents cannot, in the guise of applying Rule 48(1)(b) of the Pension Rules, 1972 or FR 56(j), retire a person due to his low medical categorization, without first following the procedure prescribed under Rule 26 of the Assam Rifles Rules, 2010.
16. In light of the above, it is quite apparent that the State respondents have not been able to make out a case that the petitioner's premature retirement has been made due to Page No.# 29/34 public interest. Similarly, where a Government servant is sought to be prematurely retired under FR 56(j), the appropriate authority has to first form an opinion that it is in public interest to do so and as such, the question of integrity or ineffectiveness in service would have to be gone into. However, even in those cases where FR 56(j) has been applied, the premature retirement of the petitioner has been done only due to the low medical category given to the petitioners, in which case the procedure prescribed under Rule 26 of the Assam Rifles Rules, 2010 would have to be followed.
17. The submission made by the counsels for the respondents that if the members of the Assam Rifles did not have the Medical Category of Shape-1, their premature retirement would be in public interest, is not borne out by the "Nomino Roll of Permanent LMC Persons in respect of 11 Assam Rifles for the month of December, 2020" herein after referred to as the "Nomino Roll". A perusal of the "Nomino Roll" would go to show that G/114432, Rfn./GD Haman Sangma, who is 52 years of age and having 33 years of service is suffering from Hypertension. It is also stated that he is unfit for HAA/ECCA. HAA means high altitude areas. WO/GD, Jai Singh, having Regimental No.G/114059 is 53 years of age and having served for 35 years, is diagnosed with Alcohol Dependence Syndrome and Obesity. Under the Column Remarks, it is stated that he is unfit to handle firearms and he needs to work under direct supervision. Further, he has to abstain from alcohol. In respect of Hav/GD, N.P. Yadav, having Regimental No.114231, who is 53 years old and having 33 years of service, he shown to have Osteoarthritis B/L Knee. Under the Column Remarks it is written Excuse BPET/PPT & Prolong standing duties. All the above three Assam Rifles personnel amongst others are in the Medical Category, Shape-2. Thus the above shows that the respondents are not acting uniformly, while taking decisions in the matter relating to retention of Government servants.
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18. In the case of Vijay Pal Singh vs. Union of India and Others, reported in 2014 Legal Eagle (Utt) 3476, the Uttarakhand High Court was seized of a matter, wherein a Head Constable of the Central Industrial Security Force (CISF) was prematurely retired from service under Rule 56(j) of the Fundamental Rules. The respondents in the above case took the plea that due to the petitioner's medical condition, the said CISF personnel could not be retained in service. The High Court of Uttarakhand held that the termination order of the petitioner did not reflect that he had been terminated due to his medical condition. It also held that the termination of the petitioner due to his medical condition could not be accepted, as there was a specific provision for retiring an enrolled member of the force (CISF) on ground of medical unfitness, as provided in Rule 91B of the CISF Rules, 2001. Thus, the respondents could not take recourse to the medical condition of the petitioner to prematurely retire him under Rule 56(j) of the Fundamental Rules, without following the procedure provided in Rule 91B of the CISF Rules 2001.
19. The Division Bench of the Meghalaya High Court in WA No. 12/2014 " Sh. Tikendra Singh Vs. Union of India (Supra), which was disposed of vide Judgment and Order dated 22.07.2015 held that for the purpose of considering compulsory retirement of an employee, it is permissible for the employer to take into consideration the adverse entries which were not communicated to the employee and that the rule of audi alteram partem was not applicable while passing the order for compulsory retirement. Further, since the order of compulsory retirement was not penal in nature and carried no stigma, the adverse entries entered prior to promotion or crossing of the efficiency bar for picking up higher rank are not wiped off. The same can be taken into account while considering the overall performance of an employee to form an opinion if it is in public interest to retain the person in service.
Page No.# 31/34 The facts of the above case are not similar to the facts of this case as the Government servant in the above case had been retired due to the adverse entries which had been recorded in his ACR, while in the present case, the petitioner had been prematurely retired due to his medical condition. As such, the Judgment of the Meghalaya High Court in WA No. 12/2014 is not applicable to this case.
20. In WA No. 52/2013 "Union of India Vs. Sh Uttam Chand", which was disposed of vide Order dated 18.08.2015, the Division Bench in a one paragraph order recorded that the Government servant was discharged from service after having served for 30 years and on attaining 55 years of age. The Division Bench also recorded the fact that the standard of medical examination required in the Assam Rifles is a little higher, but that did not mean that only because the Government servant had been detected to have the problems of hypertension, he had ceased to be medically unfit for employment in other organizations. As the impugned order was not stigmatic, the Division Bench held that the compulsory retirement of the Government servant would not come in the way of seeking reemployment in other organizations. The writ appeal was accordingly disposed of.
It is settled law that a decision is only an authority for the case it decides and not what logically follows from it. A little difference in facts changes the precedential value of a decision. In the case of Bharat Petroleum Corporation Ltd. Vs. N.R. Vairamani, reported in (2004) 8 SCC 579, the Apex Court has held that a judgment of a Court of law should not be read as a Euclid's theorem nor as a provision in a statute. Though the premature retirement of the Government servant had been upheld on medical grounds, the above order passed in WA No. 52/2013 does not indicate that Rule 26 of the Assam Rifles Rules, 2010 had been considered by the Division Bench of the Meghalaya High Court. Accordingly, the decisions Page No.# 32/34 rendered by the Division Bench of the Meghalaya High Court in WA Nos. 12/2014 and 52/2013, with utmost respect, in the humble opinion of this Court, are not applicable to the facts of this case.
21. In respect of the Judgment and Order dated 15.03.2016 passed by the Single Judge of Meghalaya High Court in the batch of writ petitions, the lead case being WP(C) No. 12/2015, "Ravi R Service No. G/2201010M Vs. Union of India", the premature retirement of the Government servants therein by application of Rule 48(1)(b) of the CCS(Pension) Rules, 1972, was upheld on the ground that fitness of personnel of the Armed Forces was of paramount consideration and there could not be any compromise on that issue. The Single Judge also held that National interest as well as public interest was much higher than individual interest and accordingly, he could not allow the keeping of deadwood employees, thereby weakening the Armed Forces.
22. An appeal was filed against the common Judgment and Order dated 15.03.2016 passed in the batch of writ petitions, the lead case being WP(C) No. 12/2015. One of the appeals was WA No. 7/2016, which was disposed of by the Division Bench of the Meghalaya High Court on 23.10.2017. The Division Bench held that the writ petitions required reconsideration by the learned Single Judge in view of the fact that the core issues involved had not been considered in the impugned order, which proceeded essentially on the premise that for their low medical category, the Government servant were deadwood for the Assam Rifles and had rightly been discharged from service. The Division Bench held that the issue of whether the compulsory retirement of the Government servant on medical grounds could have been ordered under the Pension Rules, 1972, without following the procedure under Rule 26 of the Assam Rifles Rules, 2010 had not been gone into by the learned Single Judge.
Page No.# 33/34 Accordingly, the Division Bench remanded the writ petitions back to the learned Single Judge for reconsideration. While coming to the above findings that the issue of applicability of Rule 26 of the Assam Rifles Rules, 2010, had not been gone into by the learned Single Judge, the Division Bench of the Meghalaya High Court took into consideration the Judgment of the Apex Court in the case of Union of India & Ors Vs. Rajpal Singh , reported in 2009(1) SCC 2016 and the relevant portion of the Division Bench Judgment is as follows:-
"The learned Single Judge has referred only to paragraph 17 of the decision in Rajpal Singh's case (Supra) wherein, the Hon'ble Supreme Court indicated that fitness of personnel of Armed Forces at all levels was of paramount consideration and there cannot be any compromise on that score. However, while considering discharge of a Junior Commissioned Officer in Army on account of low medical category, the Hon'ble Supreme Court indicated the requirements of following the prescribed procedure in paragraph 27 of the same decision as follows:-
"27. In view of the foregoing interpretation of the relevant rule, we are in complete agreement with the High Court that where a JCO is sought to be discharged on the ground of medical unfitness for further service, his case has to be dealt with strictly in accordance with the procedure contemplated in Clause I(ii) in Column 2 of the Table appended to Rule 13. The Rule prescribes a particular procedure for discharge of a JCO on account of medical unfitness, which must be followed and, therefore, any order of discharge passed without subjecting him to the invalidating Board would fall foul of the said statutory rule."
In view of the above, the issues relating to the applicable rules and the prescribed procedure therein need to be examined in the present matters."
23. Thus, this Court is of the view that the Judgments relied by the counsels for the respondents do not come to the aid of the respondents, as the issue of premature retirement of the Government servant on medical ground would necessarily require that the procedure enumerated in Rule 26 of the Assam Rifles Rules, 2010 should be strictly followed, which has not been done.
24. In view of the reasons stated above, this Court finds that termination of the petitioner's service vide the impugned Order dated 10.08.2017 is unsustainable and Page No.# 34/34 accordingly set aside. All other impugned orders in the connected writ petitions are also hereby set aside.
The writ petitions are accordingly allowed.
JUDGE Comparing Assistant