Gauhati High Court
Kashi Nath Mishra vs The Union Of India And 2 Ors on 30 July, 2024
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/5
GAHC010206252023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5624/2023
KASHI NATH MISHRA
EX JC -54724,
SUB MAJOR (GD), ,
S/O- LATE BRAJA NATH MISHRA,
VILL - NAKATAHAN,
P.O- NAKATAHAN MISHRA,
DIST- KUSHINAGAR,
U.P
PIN-274401
VERSUS
THE UNION OF INDIA AND 2 ORS
REP. BY THE SECRETARY , MINISTRY OF HOME AFFAIRS, NORTH BLOCK,
NEW DELHI
2:THE DIRECTOR GENERAL
ASSAM RIFLES
SHILLONG
PIN-783010
3:THE COMMANDANT
5 ASSAM RIFLES
C/O99 AP
Advocate for the Petitioner : MR. G K GUPTA,
Advocate for the Respondent : DY.S.G.I., MR. K GOGOI
Page No.# 2/5 BEFORE HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI For the Petitioner : Shri GK Gupta, Advocate.
For the Respondents : Shri K Gogoi, CGC.
Date of Hearing : 30.07.2024.
Date of Judgment : 30.07.2024.
JUDGMENT & ORDER
The instant writ petition has been filed with the following prayers:
"31. The Petitioner most respectfully prays your Lordship, 31.1 That a writ of mandamus or any other appropriate writ be issued to the Union Of India / Assam Rifles quashing Petitioner's forced retirement from service after completion of service 55 years of age and terming it as "Voluntary Retirement and Order for Superannuation Pension to the Petitioner taking in to account his left over 5 (five) years of service.
31.2 That the Pension entitlement of the Petitioner be revised / reworked after re- fixation of 'Retirement' salary removing anomalies referred to in the Petition.
31.3 That any such order or reliefs as deemed fit and proper in fact and circumstances of the case may kindly be passed."
Page No.# 3/5
2. As per the facts projected in the petition, the petitioner was appointed as a Rifleman with the Assam Rifles in the year 1961 and in course of his service, he was promoted to the post of Subedar Major. The grievance of the petitioner is related to the issue of his retirement.
3. Heard Shri GK Gupta, learned counsel for the petitioner. Also heard Shri K Gogoi, learned Central Government Counsel (CGC).
4. Shri Gupta, learned counsel for the petitioner has drawn the attention of this Court to the order dated 09.07.1997 pertaining to his retirement. As per the said order, which was issued in exercise of powers under Rule 56(j) FR/Rule 48 of CCS (Pension) Rules, 1972, notice was given to the petitioner that he would be attaining the age of 55 years on 02.01.1998 and would retire w.e.f. 28.02.1998. The learned counsel has submitted that such retirement is forceful in nature and the petitioner should have allowed to continue till attaining the age of 60 years. It is submitted that at no point of time, the petitioner had offered his voluntary retirement and the impugned action amounts to a forceful retirement not contemplated in law. Shri Gupta, learned counsel has contended that similarly situated persons were allowed to continue in their service and certain other persons were also reinstated after the orders of this Court. The learned counsel for the petitioner has relied upon the case of State of Gujarat Vs. Umedbhai M. Patel, reported in 2001 (3) SCC 314. The said case was on the aspect of compulsory retirement wherein certain principles were laid down.
5. Per contra, Shri Gogoi, learned CGC has raised a preliminary objection on the aspect of entertaining the writ petition. It is submitted that the impugned order is of the year 1997 and this writ petition has been instituted in September, 2023. By referring to the affidavit-in-opposition filed on 14.12.2023, the learned CGC has Page No.# 4/5 contended that the preliminary issue of delay and laches has been specifically taken up in the said affidavit-in-opposition. Shri Gogoi, learned CGC has submitted that the aspect of challenge has also been explained in paragraph 9 of the said affidavit-in- opposition. It is submitted that the system in place at that point of time did not have the option of Retiring Pension and had the only options of - 1. Voluntary Pension and
2. Superannuation Pension. Though the petitioner due to necessity was shown to be under the Voluntary Pension, no financial loss of any manner has been caused to him rather, all benefits have been given to the petitioner, including revised pension from time to time. Shri Gogoi, learned CGC has also submitted that since the petitioner has completed the age of 80, he would also be entitled to a hike of 20% in his pension and therefore, the present is not a fit case at all for entertaining.
5. The rival submissions have been duly considered and the materials placed on record have also been carefully examined.
6. The communication dated 09.07.1997 had given notice to the petitioner regarding the aspect of retiring from service on attaining the age of 55 years. A close perusal of the said notice, however, would show that there was an acknowledgment by the petitioner in the following manner:
"I want superannuation pension as per directorate brochure issued to unit and chapter 41 of CCS pension Rule 1972."
7. Though a challenge has been made to the aforesaid order dated 09.07.1997, the acknowledgement made by the petitioner would be in the teeth of the maintainability of such challenge. Apart from the fact that the present petition has been instituted after about 25 years from arising of cause of action, if any, this Court has been informed, which is supported by materials on record, that all retiral benefits have been given to the petitioner, including the timely revision of pension. This Court is of the Page No.# 5/5 considered opinion that the matter of retirement and payment of pension which was made in the year 1997 cannot be allowed to be reopened after about 25 years, more so when this Court does not find any ex facie illegality or irregularity in the aforesaid order.
8. In view of the above, the writ petition is accordingly dismissed.
JUDGE Comparing Assistant