Tripura High Court
The Union Of India vs 354609K Hav/Ciph Alok Chaudhuri on 26 September, 2018
Bench: Ajay Rastogi, Arindam Lodh
HIGH COURT OF TRIPURA
AGARTALA
WA 31 of 2018
1. The Union of India, represented by its
Secretary, Ministry of Home Affairs,
Government of India, New Delhi.
2. The Director General,
Assam Rifles, Shillong, Meghalaya.
3. The Controller of Accounts,
Ministry of Home Affairs,
Pay and Accounts Office, Assam Rifles,
Old DGAR Complex, Laitumkhrah, Shillong.
----Appellant(s)
Versus
354609K Hav/Ciph Alok Chaudhuri,
HQ 21 Sector, Assam Rifles, C/O 99 APO.
----Respondent(s)
Connected with WA 33 of 2018
1. The Union of India, represented by its Secretary, Ministry of Home Affairs, Government of India, New Delhi-1.
2. The Director General, Assam Rifles, Shillong, Meghalaya.
3. The Controller of Accounts, Ministry of Home Affairs, Pay and Accounts Office, Assam Rifles, Old DGAR Complex, Laitumkhrah, Shillong.
----Appellant(s) Versus JC353183F Hav/Cipher Arun Kumar Pandey, HQ 21 Sector, Assam Rifles, C/O 99 APO.
----Respondent(s) WA 34 of 2018
1. The Union of India, represented by its Secretary, Ministry of Home Affairs, Government of India, New Delhi-1.
Page 2 of 5
2. The Director General, Assam Rifles, Shillong, Meghalaya.
3. The Controller of Accounts, Ministry of Home Affairs, Pay and Accounts Office, Assam Rifles, Old DGAR Complex, Laitumkhrah, Shillong.
----Appellant(s) Versus JC353120Y, SUB/Cipher Provakar Chakraborty, HQ 21 Sector, Assam Rifles, C/O 99 APO.
----Respondent(s) WA 35 of 2018
1. The Union of India, represented by its Secretary, Ministry of Home Affairs, Government of India, New Delhi.
2. The Director General, Assam Rifles, Shillong, Meghalaya.
3. The Controller of Accounts, Ministry of Home Affairs, Pay and Accounts Office, Assam Rifles, Old DGAR Complex, Laitumkhrah, Shillong.
----Appellant(s) Versus 354230A Hav/Ciph Govind Bahadur Gautam, HQ 21 Sector, Assam Rifles, C/O 99 APO.
----Respondent(s) For Appellant(s) : Mr. Biswanath Majumdar, CGC. For Respondent(s) : Mr. CS Sinha, Adv.
HON'BLE THE CHIEF JUSTICE MR. AJAY RASTOGI HON'BLE MR. JUSTICE ARINDAM LODH Order 26/09/2018 The present writ appeals are directed against the self same judgment of the learned Single Judge impugned dt.01.02.2018 filed at the instance of the Union of India. Page 3 of 5
2. The facts are almost indisputed on record. The writ petitioners initially joined service as Riflemen and on qualifying departmental examination each of them was appointed to the post of Hav/Cipher. The question arose as to whether they are entitled for grant of ACP on completion of 10 years of service to be counted from the date of joining service or it should be counted from the day when on musteration they were appointed as Hav/Cipher.
3. Before the Central Administrative Tribunal, Ernakulam, Kerala the same question came for interpretation of the circular of the DOPT dt.10.02.2000 providing clarification to the points of doubt raised by the department and it was clarified that the relevant recruitment rules provide for filling up of vacancy by direct recruitment, induction through limited direct recruitment may be treated as direct recruitment for the purpose of benefit under the ACP Scheme and such other persons who are appointed on qualifying departmental examination as Hav/Cipher shall be treated as promotion.
4. In the instant case, no departmental examination has been prescribed under the recruitment rules and specific provision has been made regarding constitution of the DPC and accordingly, it was clarified that it is not applicable to the members of Assam Rifles for conversion from Cipher category is not considered as promotion, and accordingly, it was observed that they are entitled for ACP on completion of their 10 years of service. Page 4 of 5
5. The order of the Central Administrative Tribunal came to be challenged before the High Court of Kerala at the instance of the Union of India in WP(C)32624 of 2008 and that came to be dismissed by a detailed judgment dt.04.12.2008.
6. The selfsame question raised at the instance of the writ petitioners, the learned Single Judge also placed reliance on the judgment of the Division Bench of the High Court of Kerala and observed that the fact situation which has been examined by the High Court of Kerala is on the same footing as that of the fact situation of the instant case, and accordingly, disposed of the writ petitions under the impugned judgment dt. 01.02.2018.
7. It was not disputed before the learned Single Judge that each of the writ petitioner was remustered as Hav/Cipher of which a reference has been made in para 3 and 4 of the impugned judgment and taking assistance of the judgment of the High Court of Kerala, which has been implemented by the appellant-Union of India, has been further relied upon by the High Court of Meghalaya, of which a reference has been made in para 12 and 14, respectively.
"12. On the face of such stance a group from the Cipher cadre, who were remustered, approached the High Court of Meghalaya and the High Court of Meghalaya by the said judgment had allowed the writ petition by directing the respondents to extend the similar benefit to the petitioners meaning on completion of 10/12 years of service, the respondents were directed to release the 1st financial up-gradation, whichever is applicable, and thereafter on completion of 20 years and 30 years of service respectively the 2 nd and 3rd financial up-gradation would be entitled to the petitioners. The writ petitioners were not given the benefit like the writ petitioners who had Page 5 of 5 approached the High Court of Meghalaya. Hence, they have approached this court.
13. .................
14. As consequence thereof, the opinion of the Ministry of Home Affairs is reflected in 28.11.2011 (Annexure R-2 to the writ petition) is interfered with and set aside. Further, the decision contained in the letter no. 19012/09/ACP/Adm- I/Sig/2015/2012 dated 15.07.2016 (Annexure 7 to the writ petition) shall be treated as in- operative and cancelled. The petitioners shall be granted such benefits within a period of 3(three) months from the date when the petitioners shall produce a copy of this order."
8. After we have heard the counsel for the parties, counsel for the appellants is unable to distinguish either on facts or on law which has been considered by the High Court of Kerala, of which a detailed reference has been made by the learned Single Judge in the impugned judgment.
9. We have also gone through the judgment of the High Court of Kerala and we are in full conformity with the view expressed and once the judgment of the High Court of Kerala has been implemented by the Union of India, in the absence of any distinguishing circumstances on facts or law being forthcoming, which the counsel for the appellant is unable to justify before us, we find no reason to interfere with the order of the learned Single Judge impugned before us in the instant proceedings.
10. Consequently, the appeals fail and are accordingly dismissed. No costs.
(ARINDAM LODH), J (AJAY RASTOGI), CJ. lodh