Meghalaya High Court
Mr.Radhakrishnan Nair vs Union Of India And Ors on 27 March, 2014
Author: T Nandakumar Singh
Bench: T Nandakumar Singh
THE MEGHALAYA HIGH COURT
WP(C) No.188/2012
Mr.Radhakrishnan Nair,
Seconds-in-Commandant (2IC)
H.Q. Inspector General Assam Rifles (South)
[H.Q. I.G.A.R. (S)]
C/o 99 APO, PIN-932555. :::: Petitioner
-Vs-
1. Union of India,
represented by the Secretary to the Govt. of India,
Ministry of Home Affairs, North Block, New Delhi-110001.
2. The Director (Personnel),
Ministry of Home Affairs, North Block, New Delhi-110001.
3. Director General Assam Rifles,
Mahanideshalaya (The Directorate General,
Assam Rifles, Shillong, Meghalaya PIN-793011.
4. The Inspector General, Assam Rifles (South)
[H.Q. I.G.A.R. (S)], C/o 99 APO, PIN-932555.
5. Mr. Diwan Singh,
Commandant H.Q. 22 Sector, Assam Rifles,
C/o 99 APO, PIN-932422.
6. Mr. C.K. Gurung,
Commandant H.Q. 5 Sector, Assam Rifles,
C/o 99 APO, PIN-934825.
7. Mr. A.K. Rana,
Commandant Inspector General Assam Rifles (South),
C/o 99 APO, PIN-932555.
8. Mr. N.K. Gurung,
Seconds-in-Command (2IC),
13th Battalion, Assam Rifles,
C/o 99 APO, PIN-932013.
9. Mr. Om Prakash,
Seconds-in-Command (2IC),
17th Battalion, Assam Rifles,
C/o APO, PIN-932017.
Page 1 of 20
10. Mr. Subrata Deb,
Seconds-in-Command (2IC),
19th Battalion, Assam Rifles,
C/o 99 APO, PIN-932019.
11. Mr. Ganesh Kumar,
Seconds-in-Command (2IC),
the Assam Rifles Training Centre & School,
Dimapur, C/o 99 APO PIN-900300.
12. Mr. Rikhi Ram Sharma,
Seconds-in-Command (2IC),
22nd Battalion, UN MSN-11,
C/o 99 APO, PIN-932022.
13. Mr. Prasad Thapa,
Seconds-in-Command (2IC),
38th Battalion, Assam Rifles,
C/o 99 APO, PIN-932038.
14. Mr. C.G. Baby,
Seconds-in-Command (2IC),
26th Battalion, Assam Rifles,
C/o 99 APO, PIN-932026.
15. Mr. D.S. Negi,
Seconds-in-Command (2IC),
32nd Battalion, Assam Rifles,
C/o 99 APO, PIN-932032.
16. Mr. M.S. Sillen,
Seconds-in-Command (2IC),
40th Battalion, Assam Rifles,
C/o 99 APO, PIN-932040. :::: Respondents
BEFORE
THE HON‟BLE MR JUSTICE T NANDAKUMAR SINGH
For the Petitioner : Mr. HG Baruah, Adv
For the Respondents : Mr. SC Shyam, Sr. Adv.
Mr. B Deb, Adv.
None appears for the respdt.No.5-16.
Date of hearing : 18.03.2014
Date of Judgment & Order : 27.03.2014
Page 2 of 20
JUDGMENT AND ORDER
The main relief sought for in the present writ petition filed by the
petitioner, Second-in-Command, Assam Rifles are that:- (i) The petitioner on
regaining SHAPE-I will retain his original seniority and accordingly, praying
for a direction to the respondent authorities to prepare afresh Gradation or
Seniority List of the Seconds-in-Command; (ii) for a direction to the
respondent authorities to promote the petitioner to the post of Commandant
w.e.f. the date his juniors had been promoted to the post of Commandants
i.e. w.e.f. 01.04.2012; (iii) for quashing the impugned Seniority List or
Gradation List of the Seconds-in-Command dated 05.11.2011, in which the
name of the petitioner had been shown below the Assistant Commandants of
1997 batch and also the impugned Seniority List of the Seconds-in-
Command dated 01.05.2012, in which the name of the petitioner had been
shown below the Assistant Commandants of 1997 batch and (iv) quashing
the impugned Message No. A 1736 dated 30th day of April, 2012 and the
impugned Message No. A 1450 dated 4 th day of July 2012 and other relief.
2. Heard Mr. HG Baruah, learned counsel for the petitioner and
Mr. SC Shyam, learned senior counsel assisted by Mr. B Deb, learned
counsel appearing for the respondents No.1-4. None appears for the
respondents No.5-16 without showing any cause inspite of proper service of
notice of the present writ petition to them.
3. Factual Background:-
The petitioner was initially enrolled in Assam Rifles on
30.05.1979, and he was commissioned as Assistant Commandant w.e.f.
08.02.1995. In the year 2000, the petitioner was posted in the 25th Battalion,
Assam Rifles, Ukhrul, Manipur to fight/combat against the militants/armed
Page 3 of 20
hostiles etc. and while operating in the insurgency affected area of Ukhrul,
Manipur, because of the extreme hazardous operating field, the petitioner
came under low medical category. The Directorate General, Assam Rifles by
a Message No. A 1422 dated 01.04.2002, promoted the petitioner (in the
medical category P-2 permanent) to the post of Deputy Commandant along
with his batch mates but by another Message No. A 1465 dated 23.04.2002,
denied the said promotion till he regains medical category SHAPE-I.
Promotion to the post of Deputy Commandant along with his batch mates as
early as April, 2002 was denied to the petitioner because of low medical
category. After a gap of 3(three) years, by a Message No. A 1402
dated11.04.2005, the petitioner was promoted to the rank of Deputy
Commandant in the said existing low medical category, P-2 permanent w.e.f.
01.04.2005.
4. The petitioner who was promoted to the rank of Deputy
Commandant along with his batch mates on 01.04.2002 was not actually
allowed to hold the rank of Deputy Commandant because of low medical
category but only on 01.04.2005, the petitioner was promoted to the post of
Deputy Commandant. It is an admitted fact of both the parties that the
petitioner was commissioned as Assistant Commandant on 08.02.1995. The
Commandant 32nd Battalion, Assam Rifles, under whom the petitioner was
working as Deputy Commandant, under his letter dated 15.02.2008,
requested the Directorate General, Assam Rifles to make necessary
amendment of the seniority list so as to give seniority to the petitioner along
with his batch mates, who were promoted to the rank of Deputy
Commandant w.e.f. 01.04.2002 as the petitioner was promoted to the post of
Deputy Commandant along with his batch mates on 01.04.2002 but denied
due to low medical category and again, he had been promoted on
01.04.2005. The Commandant 32nd Battalion, Assam Rifles in his said letter
Page 4 of 20
dated 15.02.2008 also mentioned that the petitioner had given his seniority
wrongly below the officers commissioned as Assistant Commandants w.e.f.
22.01.1997 and the seniority position of the petitioner should be along with
the batch mates of 1995 inasmuch as, the petitioner was commissioned as
Assistant Commandant on 08.02.1995.
5. In response to the said letter of the Commandant 32 nd
Battalion, Assam Rifles dated 15.02.2008, the Directorate General, Assam
Rifles vide Message No. A 2640 dated 25.02.2008, accepted the requests of
the Commandant 32nd Battalion, Assam Rifles and informed him that the
records of the Directorate had been amended and asked the Commandant
32nd Battalion, Assam Rifles to amend his record. For easy reference, the
said letter of the Commandant 32nd Battalion, Assam Rifles dated
15.02.20087 and the said Message No. A 2640 dated 25.02.2008 of the
Directorate General, Assam Rifles are quoted below:-
"32 Assam Rifles
PIN-932032
C/o 99 APO
A/1120/2008/1286 15th Feb 2008.
Mahanideshalaya Assam Rifles,
Directorate General Assam Rifles
(A Branch), Shillong-793001.
SENIORITY LIST: AR CADRE OFFICERS
1. Ref your Dte letter No.A/IV-A/198-97/2008 dated 30 Jan
2008.
2. On Scrutiny of gradation list in respect of AR Cadre Officer, it
is observed that AR-202 by Comdt. Radha Krishnan Nair of this
Unit was commissioned as Asst.Comdt. on 08 Feb 1995. The
Officer was promoted to Dy. Comdt. alongwith his batch mates
on 01 Apr 2002, but denied due to LMC. Again he has been
promoted on 01 Apr 2005. But Officer has been given seniority
below the officers who commissioned as Asst.Comdt. w.e.f. 22
Jan 1997.
Page 5 of 20
3. As per Ministry of Home Affairs letter No.I.19013/1/2002/MS
dated 09 Sep 2002, the seniority of the officer should have
been 01 Apr 2002.
4. You are requested to issue necessary amendment at your
end and given the seniority of AR-202 by Comdt. Radha
Krishnan Nair along with his batch mates, who were promoted
to the rank of Dy. Comdt. w.e.f. 01 Apr 2002.
5. An early action on the subject is requested.
Sd/-
(Sahil Kochhar)
Maj
Adjt
for Comdt.
NR 14/25
DE SHG SER NO 250641
RR DTG 251800
FROM DGAR
TO 32 AR
INFO 9 SECTOR
BT
UNCLAS A 2640
SENIORITY LIST AR CADRE OFFRS [.] REF YOUR LETTER
NO.A/1120/2008/1277 DT 14 FEB 2008 AND
A/1120/2008/1286 DT 15 FEB 2008 [.] RECORD OF THIS DTE
HAS BEEN AMENDED [.] AMEND YOUR COPY
ACCORDINGLY.
BT
CFN A 2640
SD AKR
TOR 2250/25/SHG/POL/MP
25KTM1"
Page 6 of 20
6. Because of the failure to correct the seniority position of the
petitioner for placing him along with his batch mates of 1995 inspite of the
said Message of the Directorate General, Assam Rifles dated 25.02.2008
(Annexure-V to the writ petition) the petitioner was not promoted along with
his batch mates to the rank of Second-in-Command. In the month of October,
2009, the petitioner was upgraded to medical category SHAPE-I. The
Directorate General, Assam Rifles by a Message No. A 1734 dated
13.05.2010, promoted the petitioner to the post of Second-in-Command in
the normal DPC w.e.f. 01.04.2010 subject to remaining in medical category
SHAPE-I. The Instructions for medical examination and classification of
personnel serving in the CPMF issued by the Ministry of Home Affairs vide
Ministry‟s U.O. No.I45024/3/2004-Pers-II dated 31.07.2007, had been
followed by the respondent authorities (Annexure-XXII to the writ petition) in
the promotion of the officers. Para 4.13 " the mandatory for the purpose of
promotion" clearly provides that the officers, who had been promoted subject
to attaining SHAPE-I medical category shall retain his seniority position as
and when the officers regain SHAPE-I medical category. Para 4.13 read as
follows:-
"4.13 Mandatory for the purpose of promotion:
Medical Category SHAPE-I will be an essential condition for
promotion of all combatised personnel in all
groups/ranks/cadres in the CPMFs. In case of those, whose
illness is of permanent nature and who are not SHAPE-I, they
will be considered for promotion by DPC but will be declared
unfit for promotion, even if, they are otherwise fit for promotion.
In case of those personnel, whose illness is of temporary
nature after considering their cases for promotion alongwith
others, if they are otherwise fit, the DPC will grade them as „fit
for promotion‟ subject to attaining SHAPE-I medical category.
As and when they regain the SHAPE-I medical category, they
will be promoted as per recommendations of DPC. But they will
not be entitled to back wages. However, they will retain their
seniority."
Page 7 of 20
7. In the Seniority List of the Seconds-in-Commands, Assam
Rifles dated 01.05.2012 (Annexure-XV to the writ petition), the name of the
petitioner had been shown below the Assistant Commandants commissioned
in the year 1997. It is further case of the petitioner that as the petitioner had
regained SHAPE-I medical category, he shall retain his seniority along with
his batch mates of the year 1995 and his name in the Seniority List should be
above the respondent No.8 Mr. N.K. Gurung (1997 batch) and below
Somaranjan MK (1995 batch). The relevant portion of the impugned Seniority
List of the Second-in-Commands, Assam Rifles dated 01.05.2012 is quoted
below:-
SENIORITY LIST OF SECOND-IN-COMMAND (ASSAM RIFLES)
01 MAY 2012
Sr. AR Name Educa Date of Asst. Dy 2IC w.e.f. Com Promoti Date of Fmn/Unit
No No. tional birth Comdt. Comdt. dt. on confirma
. qualifi w.e.f. w.e.f. W.e.f exam tion
cation . passed
1. 199 Somarajan SSLC 26-04-56 08-02-95 01-04-02 09-10-06 - XYZ 20-09-90 20 AR
MK
2. 207 N K BA 11-01-62 22-01-97 01-04-04 01-04-08 - XYZ 01-01-96 13 AR
Gurung
3. 208 Om HSLC 03-03-53 22-01-97 01-04-04 01-04-08 - XYZ 01-10-96 17 AR
Prakash
4. 209 Subrata BA 25-04-54 22-01-97 01-04-04 01-04-08 - XYZ 14-01-92 CPFCS (19
Deb B.Ed AR)
5. 272 Ganesh BA 20-05-58 22-01-97 01-04-04 01-04-08 - XYZ 14-10-92 ARTC & S
Kumar
6. 210 Rikhi Ram HSLC 10-03-61 17-04-98 01-04-05 01-04-09 - XYZ 01-07-91 22 AR UN
Sharma Msn-II
7. 211 Prasad HSLC 10-11-58 17-04-98 01-04-05 01-04-09 - XYZ 11-10-94 38 AR
Thapa
8. 212 C G Baby PU 21-11-57 17-04-98 01-04-05 01-04-09 - XYZ 28-07-94 26 AR
9. 213 D S Negi MA 04-08-59 17-04-98 01-04-05 01-04-09 - XYZ 14-03-96 32 AR
10. 203 M S Sillen Matric 05-11-56 22-01-97 01-04-06 01-04-09 - XYZ 20-07-94 40 AR
11. 202 R K Nair SSLC 16-11-57 08-02-95 01-04-05 01-04-10 - XYZ 14-03-96 IGAR (S)
(writ
petitioner)
12. 214 Mani HSLC 26-09-57 01-10-99 01-04-06 01-04-11 - XYZ 10-11-94 ARTC & S
Prasad
13. 215 A K XII 14-01-63 01-10-99 01-04-06 01-04-11 - XYZ 22-11-94 7 AR
Pandey,
SM
Page 8 of 20
8. Headquarters Inspector General of Assam Rifles (South) under
his letter being No.1539/A/Offr/2012/750 dated 03.08.2012, requested the
Directorate General, Assam Rifles for correcting the seniority position of the
petitioner as the petitioner had regained SHAPE-I since October, 2009 and
also to consider the petitioner for promotion to the next rank as his seniority
had been approved by the H.Q. DGAR (Branch) vide letter dated 25.02.2008
with his batch mates (1995) (Annexure-V to the writ petition. Copy of the said
letter dated 03.08.2012 is available at Annexure-XXV to the additional
affidavit of the petitioner and reads as follows:-
"Headquarters
Inspector
General
Assam Rifles
(South)
Pin - 932 555
c/o 99 APO
1539/A/Offr/2012/750 03 Aug 2012
Mahanideshlaya Assam Rifles
Directorate General Assam Rifles
(MS Branch)
Shillong - 11
SENIORITY LIST : ASSAM RIFLES OFFRS
FOR THE YEAR 2012
1. Ref:-
(a) HQ IGAR(S) letter No. 1539/offr/2012/542 dated
27 Jun 2012
(b) DGAR letter No. I.12030/1/2011 - MS dated 04
Jul 2012
2. Dated quoted in para 1 of your letter does not tally with our
letter mentioned in para 1 (a) above. As per Para 4.13 of MHA
letter I.45024/3/2004-Pers-II dated 31 Jul 2007 clarified that,
offrs who were placed under LMC will get back their seniority
after being upgraded to SHAPE I.
Page 9 of 20
3. Mecial category of 2IC Radhakrishnan Nair is SHAPE I since
Oct 2009, and his seniority has been approved by HQ DGAR
(A branch) vide their sig No. A 2640 dated 25 Feb 09 and MS
Branch letter No I.19030/1/2008-MS/02 dated 27 Apr 2011.
4. In view of above you are requested to reconcile the facts at
your end and rectify the status of the offr concern for his
promotion to next rk.
Sd/-
(GP Keshav)
Maj
SO 1 A
For IGAR"
The President of India in exercise of the powers conferred by
proviso to Article 309 of the Constitution of India makes the rules called
"Assam Rifles Group „A‟ Combatised Posts Recruitment (Amendment) Rules,
2003" and under that Rules, for promotion from amongst the Second-in-
Commands of Assam Rifles to the Commandants, there shall be minimum
qualifying service of 2(two) years as Second-in-Command and total
15(fifteen) years Group-A service provided they are following acceptable
medical category SHAPE-I or relaxation given by the Government to certain
categories from time to time. The said Recruitment Rules was notified by
Notification No.G.S.R. 896(E) New Delhi dated 20.11.2003 and reads as
follows:-
"MINISTRY OF HOME AFFAIRS
NOTIFICATION
New Delhi, the 20th November, 2003
G.S.R.. 896 (E) - In exercise of the powers conferred by the
proviso 309 of the Constitution, the President hereby makes the
following rules, further to amend the Assam Rifles Group „A‟
Combatised Posts Recruitment Rules, 2003.
1. (1) These Rules may be called the Assam
Rifles Group „A‟ Combatised Posts Recruitment
(Amendment) Rules, 2003.
(2) They shall come into force on the date of
their publication in the Official Gazette.
2. In the schedule to the Assam Rifles Group „A‟
Combatised Posts Recruitment Rules, 2001:-
Page 10 of 20
(a) against serial number 4 relating to the post
of Commandant:-
(i) In column 5, for the entry, the
following entry shall be substituted,
namely:-
"Not applicable for Army deputationist
selection post for Departmental Promotee.
(ii) In column 12, for item (a) and the
entry thereto, the following shall be
substituted namely:-
"(a) By promotion from amongst the
Second-in-Commands of Assam Rifles
who have minimum eligible service of 2
years as Second-in-Command and total 15
years Group - „A‟ service provided they are
following acceptable medical category
SHAPE-1 or relaxation given by the
Government to certain categories from
time to time.
(b) against serial number 10 relating to the
post of Second-in-Command:-
(i) in column 5, for the entry, the following
entry shall be substituted namely:-
"Not applicable for Army deputationist,
Selection post for Departmental
Promotees"
(ii) in column 12, for item (a) and the entry
thereto, the following shall be substituted
namely:-
(a) Have a minimum service of 2 years as
Deputy Commandant on regular basis and
total (sic) year service in Group A and
(c) against serial number 16 relating to the
post of Deputy Commandant:-
(i) in column 5, for the entry, the following
entry shall be substituted namely:
"Not applicable for Army deputationist
Selection post for Departmental
Promotees.
(ii) in column 12, for item (a) and the entry
thereto, the following shall be substituted
namely:
"Having a minimum service of 6 years as
Assistant Commandant on regular basis
and total 6 years service in Group - A and"
[F.No. 1.11011/LOAR/MS/2003]
DURGA SHANKER MISHRA, Director (Personnel)
The principal Rules i.e., the Assam Rifles Group -A
Combatised Posts Recruitment Rules, 2001 were notified vide
G.S.R. 34 dated the 10th January, 2001."
Page 11 of 20
9. The Department of Personnel and Training Establishment (RR),
Ministry of Personnel Public Grievances and Pensions (Department of
Personnel and Training), Govt. of India had agreed to the proposal for
relaxation of some days of the qualifying service of the petitioner and 8(eight)
others (i.e. respondent No.5 Mr. Diwan Singh, respondent No.6 Mr. C.K.
Gurung, respondent No.7 Mr. A.K. Rana and respondent No.8 Mr.N.K.
Gurung) as Seconds-in-Command on 01.01.2012 for considering their
promotions to the post of Commandants of Assam Rifles for the vacancy
year 2012-13. For easy reference, the relevant portion of the decision of the
Department of Personnel & Training Establishment (RR) for relaxation of the
qualifying service of the petitioner and 8(eight) others (i.e. respondent No.5
Mr. Diwan Singh, respondent No.6 Mr. C.K. Gurung, respondent No.7 Mr.
A.K. Rana and respondent No.8 Mr.N.K. Gurung) is quoted below:-
"Department of Personnel & Training
Establishment (RR)
Dy.No. 20720/CR/12
Reference notes at pre-page.
2. MHA has sent proposal for relaxation of eligibility service
in the grade of Commandants (PB-4 GP Rs. 8700) in Assam
Rifles. The proposal was examined earlier at p.7/N & p.9/N.
MHA was requested to give a copy of decision where 7 newly
created posts of Commandant which are to be filled by
promotion of officer‟s rank of Second-in Commandants tenable
by Assam Rifles Cadre Officers as per Peace Establishment at
F/E.
3. It is submitted that as per RRs. 2001, out of 50 posts of
Commandants, 39 posts are tenable by Army offices on
deputation and remaining 11 posts are tenable by Assam Rifles
Cadre Officers to be filled by promotion of 2IC having eligibility
service of 2 years in the grade and a total of 15-years Grade „A‟
Service. The 7 posts of Commandant have been created in
2003 for Peace Establishment and are being filled up by MHA
from the Assam Rifles Cadre Officers.
Page 12 of 20
4. MHA has sought relaxation of eligibility service of 22
days in Gr. „A‟ posts in respect of Shri Diwan Singh and 7
others 2IC and 92 days in the present rank in respect of Shri.
R.K.Nayar, 2IC.
5. As the relaxation in eligibility service sought is less than
6 months we may agree to the proposal for relaxation of
requisite eligibility service as on 1.1.2012 in respect of Shri
Diwan Singh and 8 others 2IC of Assam Rifles for considering
promotion to the post of Commandants, Assam Rifles for the
vacancy year 2012-13.
Submitted please.
Sd/-
(Rajiv R. Singh)
US (RR - II)
28/3/12
Sd/-
Sd/-"
10. Despite the said approval to the proposal for relaxation of some
days of the petitioner‟s service in completing the qualifying service of 2 (two)
years as Second-in-Command as on 01.01.2012 and also the orders
mentioned above for correcting the Seniority List for placing the petitioner
with his batch mates i.e. 1995, the case of the petitioner was not considered
for promotion to the post of Commandants, Assam Rifles for the vacancy
year 2012-13; but his juniors were considered and promoted to the rank of
Commandants by the impugned Message dated 30.04.2012 issued by the
Directorate General, Assam Rifles (Annexure-XIII to the writ petition). By the
said impugned Message dated 30.04.2012, the respondent No.5 Mr. Diwan
Singh, respondent No.6 Mr. C.K. Gurung and respondent, No.7 Mr. A.K.
Rana and respondent No.8 Mr. N.K. Gurung were promoted to the rank of
Commandants, Assam Rifles. Accordingly, the petitioner filed this present
writ petition challenging the impugned Message dated 30.04.2012.
11. The respondents No.1-4 filed joint affidavit. Justifications for not
considering the case of the petitioner when his juniors i.e. respondent No.5
Mr. Diwan Singh, respondent No.6 Mr. C.K. Gurung, respondent No.7 Mr.
Page 13 of 20
A.K. Rana and Mr. N.K. Gurung were promoted to the post of Commandants
are mentioned in Para 11 of the affidavit-in-opposition which read as follows:-
"11. That with regards to the statements made in para 10, it is
respectfully submitted that respondent Numbers 5, 6 & 7 had
rendered 03 years 09 months service in the rank of 2IC
whereas the petitioner (R K Nair) had completed 01 year 09
months as on 01 Jan 2012 for which the petitioner stands junior
to the respondent Numbers 5, 6 and 7 in the name of rank
seniority. Hence, after regaining medical category SHAPE-I,
petitioner‟s seniority list was fixed by the authority as per
correct order. In this connection, a case was taken by the
DGAR regarding fixation of seniority as fixed by the DGAR by
stating that "it would be seen from the above, that the
seniority of 2IC R K Nair has been fixed correctly which is
as per recommendation of the DPC. The officer is
approved for promotion to the rank of Commandants as
per his seniority and will get promotion as per seniority as
and when vacancy created with the vacancy year 2012-13."
That is why the respondents No.5, 6 & 7 have been promoted
to the rank of Commandant as they were senior to the
petitioner in the name of rank seniority as such contention of
the petitioner does not merit any consideration."
12. On perusal of the stand taken by the respondents No.1-4 in
their joint affidavit, it appears that the respondents No.1-4 had completely
lost sight of (i) approval of the concerned Ministry for relaxing some days of
the petitioner‟s service in completing the qualifying service of 2 (two) years
as Second-in-Command as on 01.01.2012 and also by the same decision of
the concerned Ministry the qualifying service of the respondent No.5 Mr.
Diwan Singh had been relaxed for consideration for promotion to the post of
Commandant, Assam Rifles for the vacancy year 2012-13 (ii) the earlier
decision of the Directorate General, Assam Rifles for correcting the seniority
position of the petitioner so that the petitioner could regain his seniority with
his batch mates of 1995 as soon as he regained medical category SHAPE-I
and also (iii) the said "4.13 mandatory for the purpose of promotion". The
respondent No.5 Mr. Diwan Singh, respondent No.6 Mr. C.K. Gurung,
Page 14 of 20
respondent No.7 Mr. A.K. Rana and respondent No.8 Mr. N.K. Gurung are
the commissioned Officers of 1997 batch i.e. 22.01.1997.
13. The petitioner is the commissioned officer of the year 1995 i.e.
08.02.1995 and the petitioner had admittedly regained SHAPE-I. Under the
mandatory for the purpose of promotion i.e. para 4.13, which had been
quoted above, he shall retain his seniority. Respondents No.1-4 in their
affidavit are not denying that the mandatory for the purpose of promotion i.e.
para 4.13 of the Ministry‟s U.O. No.I.45024/3/2004-Pers-II dated 31.07.2007
are binding to the Assam Rifles. The Apex Court in a catena of cases held
that on the inaction of the Government or the authority, employee cannot
suffer. One of the cases is Amrik Singh & Ors vs. Union of India & Ors:
(1980) 3 SCC 393.
14. It is fairly settled law that the same yardstick should apply to all
the employees in the selection process for promotion. The Apex Court in
Union Public Service Commission vs. Hiranyalal Dev & Ors: (1988) 2
SCC held that:-
"9. In place of the order quoted hereinabove we substitute an
order in the following terms viz:
The Selection Committee shall reconsider the impugned select
list prepared in 1983 as if it was deciding the matter on the date
of the selection on the footing that the adverse remarks made
against respondent No.11 which were subsequently set aside
did not exist in the records and consider the question as to
whether he would have been appointed or Respondent No. 11
Shri Sardar Pradeep Kar would have been appointed on the
basis of the categorization to which each of them was entitled
having regard to the C.C. Rolls (ignoring the adverse remarks
against Respondent No. 1 which were subsequently quashed)
and pass appropriate orders in the light of the decision taken on
this point. If the Respondent No. 1's claim is accepted upon
reconsideration in the light of the aforesaid exercise, the order
of appointment should provide for his appointment with effect
from the date on which he would have been appointed if he
was selected when the original selection was made in 1983 and
he should be given all the benefits. The Selection Committee
Page 15 of 20
shall complete its exercise within two months from the date of
this order. There will be no. order regarding costs."
15. Mr. Justice S. Ratnavel Pandian (as then he was) in Katar
Singh vs. State of Punjab: (1994) 3 SCC 569(C.B.) observed that:-
"35. ............... When laws ends, Tyranny begins;
Legislation begins where Evil begins.
The function of the Judiciary begins when the
function of the Legislature ends,
because the law is, what the judges say it is since the power to
interpret the law vests in the judges.
36.Law is made not to be broken but to be obeyed and the
respect for law is not retained by demonstration of strength but
by better appreciation of the reasons, better understanding of
its reality and implicit obedience. It goes without saying that the
achievements of law in the past are considerable, its protection
in the present is imperative and its potential for the future is
immense. It is very unfortunate that on account of lack of
respect, lack of understanding, lack of effectiveness, lack of
vision and lack of proper application in the present day affairs,
law sometimes falls in crisis."
The Apex Court (Constitution Bench) in Katar Singh‟s case
(Supra), clearly held that the law is what judges say since the power to
interpret the law vests in the judges. Law is made not to be broken but to be
obeyed. The founding Fathers placed no limitation or fetters on the power of
the High Court under Article 226 of the Constitution of India except self
imposed limitations. The arm of the Court is long enough to reach injustice
wherever it is found. The Apex Court through Justice K. Ramaswamy (as
then he was) in Air India Statutory Corporation & Ors vs. United Labour
Union & Ors: (1997) 9 SCC 377 held that:-
"59. The founding Fathers placed no limitation or fetters on the
power of the High Court under Article 226 of the Constitution of
India except self imposed limitations. The arm of the Court is
long enough to reach injustice wherever it is found.
....................
Page 16 of 20
60. The public law remedy given by Article 226 of the Constitution is to issue not only the prerogative writs provided therein but also any order or direction to enforce any of the fundamental rights and "for any other purpose."............
16. It is well settled law that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other modes of performance are necessarily forbidden. It is all the more necessary to observe this rule where power is of a drastic nature and its exercise in a mode other than the one provided will be violative of the fundamental principles of natural justice. (Ref:-Hukam Chand Shyam Lal vs. Union of India and Ors: AIR 1976 SC 789).
17. It is well settled that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. The State and other authorities while acting under an Act are only creature of statute. They must act within the four corners thereof. (Ref:-
Bhavnagar University vs. Palitana Sugar Mill (P) Ltd. & Ors: (2003) 2 SCC 111).
18. The Constitution Bench in S.G. Jaisinghhani vs. Union of India & Ors: AIR 1967 SC 1427 held that the absence of arbitrary power is the first essential of the rule of law upon which our whole judicial system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be continued within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is.
19. The right to be considered for promotion is a fundamental right under Article 16 of the Constitution of India. (Ref:- (i) Delhi Jal Board vs. Page 17 of 20 Mahinder Singh: (2000) 7 SCC 210 & (ii) Badrinath vs. Government of Tamil Nadu: (2000) 8 SCC 395.
20. In the month of April, 2011, the petitioner was detailed for "Defence Services Staff College Course" at Wellington as his bench mark was „very good‟ for the last five preceding years and on 15.08.2011, he was awarded with "Presidential Police Medal for Meritorious Service". The Apex Court in Badrinath‟s case (Supra) had set aside the assessment of the DPC as the concerned DPC had taken into consideration certain inadmissible materials and had not given due weight to some very good work done by the officer concerned. The Apex Court further held that the Court can issue writ of mandamus at the same time to the State or Public authority and the Court can mould the relief to meet peculiar and complicated requirements. Para 88 of the SCC in Badrinath‟s case (Supra) reads as follows:-
"88. We may, however, point out that it is not as if there are no exceptions to this general principle. The occasions where the Court issued a writ of certiorari and quashed an Order and had also issued a mandamus at the same time to the State or public authority could be very rare but we might emphasise that the power of this Court to mould the relief in the interests of justice in extraordinary cases cannot be doubted. In Comptroller & Auditor General of India v. K.S. Jagannathan; (1986) 2 SCC 679 : 1986 SCC (L&S) 345 such a power on the part of this Court was accepted by a three- Judge Bench. Madon, J. referred to the observations of Subba Rao, J. (as he then was) in Dwarka Nath v. ITO; AIR 1966 SC 81 : (1965) 3 SCR 536 wherein the learned Judge explained that our Constitution designedly used wide language in Article 226 to enable the Courts to "reach justice wherever found necessary" and "to mould the reliefs to meet peculiar and complicated requirements of this country." Justice Madon also referred to Rochester Corpn. v. R; 1858 EB & E 1024 : 27 LJ QB 434, R. v. Revising Barrister for the Borough of Hanley; (1912) 3 KB 518 : 81 LJ KB 1152, Padfield v. Minister of Agriculture Fisheries and Food; 1968 AC 997 : (1968) 1 All ER 694 : (1968) 2 WLR 924 (HL) and to a passage from Halsbury's Laws of England, 4th Edn. Vol. 1, p. 59. Finally Madon, J. observed: (SCC pp. 692-93, para 20) "20. There is thus doubt that the High Courts in India exercising their jurisdiction under Article 226 have the Page 18 of 20 power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant consideration and materials or in such a manner as implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case in order to prevent injustice resulting to the parties concerned, the court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion."
(emphasis supplied) We emphasis the words underlined in the above passage to the effect that the court may in some rare situations itself pass on order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion. The same view was expressed by another three-Judge Bench in B.C. Chaturvedi v. Union of India; (1995) 6 SCC 749 : 1996 SSC (L&S) 80 : (1996) 32 ATC 44 even regarding disciplinary cases. ..... "
21. For the foregoing discussions, this Court is of the considered view that the petitioner should have been considered with his juniors i.e. respondent No.5 Mr. Diwan Singh, respondent No.6 Mr. C.K. Gurung, respondent No.7 Mr. A.K. Rana and respondent No.8 Mr. N.K. Gurung for promotion to the post of commandants, Assam Rifles in the vacancy year 2012-13 and also this Court in the given case is to mould the relief sough for in this present writ petition to meet peculiar and complicated requirements. Accordingly, the present writ petition is allowed with the following directions:-
(i) Respondents No.1-4 are directed to hold the review DPC for considering the case of the petitioner for promotion to the post of Commandant, Assam Rifles for the vacancy year 2012-13 (i.e. 01.04.2012 - 31.03.2013) inasmuch as, his juniors respondent No.5 Mr. Diwan Singh, respondent No.6 Mr. C.K. Gurung, respondent No.7 Mr. A.K. Rana and respondent No.8 Page 19 of 20 had been considered for promotion to the post of Commandants, Assam Rifles for the vacancy year 2012-13 and promoted them to the post of Commandants under the impugned Message dated 30.04.2012;
(ii) Till the completion of the review DPC in compliance with the direction No.(i) above, respondents No.5, 6 & 7 shall continue as Commandants;
(iii) In case the petitioner can also be recommended by the DPC or/ review DPC for promotion to the post of commandant w.e.f. the date his juniors had been promoted to the post of commandants i.e. 01.04.2012 without demoting the respondents No.5, 6 & 7 from the post of Commandant to Second-in-Command, the status of the respondents No.5, 6 & 7 or their promotions to the post of Commandants may not be disturbed.
(iv) For enabling to hold review DPC indicated above or DPC, the impugned Messages dated 30.04.2012 and dated 04.07.2012 are hereby set aside and quashed.
(v) The whole exercise shall be completed within a period of 3 (three) months from the date of receipt of a certified copy of this judgment and order.
22. The writ petition is allowed to the extent indicated above.
JUDGE Lam Page 20 of 20