Meghalaya High Court
Md. Munna vs . Union Of India & Ors. on 11 July, 2022
Author: W. Diengdoh
Bench: W. Diengdoh
Serial No. 01
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WP(C) No. 64 of 2015 with
WP(C) No. 41 of 2016
Date of Decision: 11.07.2022
Md. Munna Vs. Union of India & Ors.
Shri Radha Mohan Yadav Vs. Union of India & Ors.
Coram:
Hon'ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. M. Chanda, Adv.
For the Respondent(s) : Dr. N. Mozika, ASG. with
Ms. S. Rumthao, Adv.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
JUDGMENT AND ORDER
1. These two writ petitions filed separately were taken up and heard together since the issues and questions involved are common, inasmuch as, it relates to similar and almost identical impugned orders wherein, the respondent taking recourse to the provision of Clause 56 (j) of the Fundamental Rules and Rule 48 (1) (b) of the Central Civil Services (Pension) Rules, 1972 had caused retirement of the petitioners herein on their completion of thirty years of qualifying service. Accordingly, it is 1 deemed expedient and convenient for these matters to be taken up together and a common order to be passed thereto.
2. The petitioner in WP(C) No. 64 of 2015, Md. Munna was serving as Naib Subedar Clerk at Headquarter 5 Sector Assam Rifles at the relevant period when he was served with an order dated 18.02.2015 (Annexure-5) passed by the respondent No. 2 by virtue of exercise of power conferred by Clause 56 (j) of the Fundamental Rules and Rule 48 (1) (b) of the CCS (Pension) Rules, 1972, wherein he was given notice that on completion of thirty years of qualifying service for pension, he shall retire from service on the forenoon of 1st September, 2015.
3. Being aggrieved by the said order dated 18.02.2015, the petitioner has approached this Court with a prayer to set aside and quash the said order impugned.
4. Similarly, the petitioner in WP(C) No. 41 of 2016, Shri Radha Mohan Yadav also being aggrieved by an order dated 07.08.2015 (Annexure-VIII) passed by the Commandant, Assam Rifles who, taking recourse to the provision of Rule 48 (1) (b) of the CCS (Pension) Rules, 1972 had permitted the petitioner herein to retire from service with effect from the afternoon of 30.06.2016, had approached this Court with a prayer to set aside and quash the said impugned order.
5. In the case of Md. Munna, the respondents in their affidavit-in- opposition has averred that this petitioner was enrolled in Assam Rifles on 19.08.1985 as a Water Carrier. He was then given progressive promotion and was serving in the rank of Naib Subedar (Clerk) with effect from 2 10.01.2010.
6. It is also said that the terms and conditions of service as far as Assam Rifles is concerned is that an employee is entitled to serve till the age of superannuation i.e. 60 years which is subject to the said employee being found fit for grant of extension of service beyond thirty years of qualifying service or fifty-five years of age whichever is earlier.
7. The petitioner who will be completing thirty years of qualifying service on 19.08.2015, as per procedure, was sent up before the Service Review Board to ascertain his suitability for further retention in service. However, the petitioner was then placed in Low Medical Category E3 (Temporary) for disability 'PSEUDOPHAKIA (OU)' with effect from 06.06.2014. The Service Review Board recommended his retention beyond thirty years of qualifying service subject to his upgradation to Medical Category SHAPE-1 before completing thirty years of service. Two other further reviews were carried out in the case of the petitioner and the last Medical Review Board conducted on 15.05.2015 had also recommended him to continue in Low Medical Category and accordingly, having been found unfit by a duly constituted Service Review Board, his in-eligibility for retention in service was thus attributed to his being placed in Low Medical Category E2 (Permanent) for disability of 'PSEUDOPHAKIA (OU)'.
8. The medical category of the petitioner notes that he has moderate eyesight and corrected vision with conventional spectacles for Myopia or Manifest Hypermetropia which means that he cannot withstand rapid firing as well as reading official correspondence having light prints. 3
9. Mr. M. Chanda, learned counsel for the petitioner has submitted that the service review of JCOs for retention in service beyond 30 years of service or 55 years of age whichever is earlier relevant as on 27.05.2014 would show that the petitioner Md. Munna was placed in SHAPE-1 in the medical category. There were also no adverse remarks in his ACRs nor was any penalty imposed during the entire service and also no details of disciplinary proceedings contemplated against him is found. The fitness and acceptance certificate also indicates that he is found physically fit to remain in service and acceptable for continuation in service up to 60 years or beyond 30 years of service.
10. It is further submitted that the petitioner was admitted into the Assam Rifles Composite Hospital, Shokhuvi, Nagaland on 05.06.2014 and was discharged on 06.06.2014. The observation made by the attending doctor is as follows:-
"Nb/Sub M.D. Munna required from 11 AR Unit as per opinion of Eye Specialist, ARCH recommended to be placed in Low Medical Category E-3 (T-24) (opinion attached)"
11. Again, the opinion of the attending doctor in the case of the petitioner is as follows: -
"1. Recommended to be placed in Low Medical Category E- 3 (T-24) as per Ministry of Home Affairs letter No: I- 45024/3/2004-Pers-II dated 31 July 2007 regarding Health care system in Central Para-Military Forces-Instructions for Medical examination and Classification of Personnel in CPMFs.
2. Employability Restriction: Fit for duties anywhere excepting jobs which require very accurate and frequent/rapid firing (As per Ministry of Home Affairs letter No. I- 45024/3/2004-Pers-II dated 31 July 2007)."4
12. The learned counsel for the petitioner has submitted that in view of the medical opinion stated above, since there is no allegation of unsatisfactory work or adverse report in his ACRs for the last five years, therefore compelling the petitioner to retire prematurely under the provisions of Clause 56 (j) of the Fundamental Rules and Rule 48 (1) (b) of the CCS (Pension) Rules, 1972, cannot be sustained in the eyes of law.
13. In the case of Radha Mohan Yadav, the respondents in their affidavit-in-opposition has stated that the petitioner was enrolled in the Assam Rifles on 20.06.1986 and is presently serving with 11 Assam Rifles. He was accordingly ordered to be retired from service w.e.f. 30.06.2016, after serving for 30 years, vide order No. 14013/Rec-05/2015/227 dated 07.08.2015, the impugned order herein since he is physically incapable and medically unfit as he is suffering from "Primary Hypertension" for which he has been placed in Low Medical Category P2 (Permanent).
14. The recommendation is on the basis of the opinion of the Service Review Board held on 24.05.2015 which was constituted in compliance with Rule 48 (1) of the CCS (Pension) Rules, 1972 to ascertain the fitness of the employees before they complete 30 years of qualifying service. The criteria being:-
(a) ACR- Out of last five ACR gradings, minimum three should be 'High Average' and rest to should not be below 'Average'
(b) Medical Standard- Individuals should not be placed in medical category below SHAPE-1 except for battle casualty.5
(c) Discipline- Individuals should not be involved in any disciplinary case.
(d) Integrity- Individual's integrity should be beyond doubt.
Therefore, the petitioner having been found lacking in one of the abovementioned criteria, i.e., medical standard, he was accordingly not recommended for retention in service beyond 30 years of service
15. The learned counsel for the petitioner in response to this has submitted that in 2009, the petitioner was placed in Low Medical Category P-2 (Permanent) and was sought to be ousted from service in the guise of voluntary retirement on the basis of some fabricated documents alleged to have been signed by him. On being approached, this Court (the then Shillong Bench of the Guwahati High Court) in WP(C) No. 223 (SH) 2009 has restrained the respondent from compelling the petitioner to go on voluntary retirement.
16. Similarly, in the year 2010 acting on the recommendation of the Release Medical Board (RMB) and acting on the medical report dated 28.04.2010 had again attempted to remove the petitioner from service, compelling the petitioner to once again come before this Court (the then Shillong Bench of the Gauhati High Court) by way of writ petition being WP(C) No. 264 (SH) 2010 and this Court vide order dated 27.02.2014 had accordingly set aside the impugned recommendation. It may also be mentioned that the respondent has appealed against the said order dated 27.02.2014 before a Division Bench of this Court which was also dismissed vide order dated 08.01.2015 and now vide the impugned order has once 6 again sought to oust the petitioner from employment by refusing to extend his service beyond 30.06.2016.
17. Maintaining that the respondent No. 2 while passing the impugned order has acted in a selective manner discriminating the rights of the petitioner, the learned counsel has submitted that before the Review Board, as many as 24 Assam Rifles Personnel were considered for retention of service beyond 30 years of qualifying service or 55 years of age (whichever is earlier), the Board did not approved the retention in service of the petitioner and another personnel namely Shri Uma Shankar. However, the said Shri Uma Shankar has been retained in service though his case was not approved by the Review Board.
18. Another contention of the petitioner is that there are as many as 72 combatant employees who were placed in Low Medical Category under P- 2 and P-3 on 07.04.2010, but none of them have been referred for further medical examination before the Release Medical Board whereas, only the case of the petitioner was referred before the Release Medical Board.
19. Yet again, another case cited by the petitioner is that of one Shri Pradeep Kumar Pradhan whose name appeared at Sl. No. 35 in the list of the 72 Low Medical Category employees mentioned above, but has been recommended for retention in service till the age of 60 years vide letter dated 07.08.2010.
20. The learned counsel for the petitioner has submitted that the provision of law relating to Rule 48 (1) (b) of the Central Civil Services (Pension) Rules, 1972 and Clause 56 (J) of the Fundamental Rules requires 7 that resorting to these rules should not be arbitrary, but only upon forming of an opinion based on materials by the competent authority and thereafter in public interest, an employee can be compulsorily retired.
21. In the case of the petitioners in both the writ petitions under consideration, the service record of the petitioners have not been taken into account, in fact in the case of Md. Munna, his record shows that there is no adverse remark against him except for being placed in Low Medical Category. The respondent authority while passing the impugned order has also failed to follow the instructions contained in sub-Clause 3 of Clause 5 of the Office Memorandum dated 21.03.2014, annexed to the affidavit-in- opposition of the respondents which reads as follows: -
"(c). While the entire service record of an Officer should be considered at the time of review, no employee should ordinarily be retired on grounds of ineffectiveness if his service during the preceding 5 years or where he has been promoted to a higher post during that 5 year period, his service in the highest post, has been found satisfactory..."
22. Yet another contention raised by the petitioner is that no notice was served in its true sense before the decision to retire the petitioner compulsorily was taken vide the impugned order and as such, the impugned order is liable to be set aside and quashed.
23. In support of his case, the learned counsel for the petitioners has cited the following judgments: -
(i) Union of India & Ors. v. Rajpal Singh: (2009) 1 SCC 216 para 18, 19, 24, 27 & 28.
(ii) Judgment and Order dated 27.02.2014 in W.P.(C) No. 264 of 2010 by the Hon'ble Gauhati High Court Shillong 8 Bench in the case of Radha Mohan Yadav v. Union of India & Ors, para 3, 4, 5 & 6.
(iii) Judgment and Order dated 08.01.2015 passed by the Division Bench of this Hon'ble Court in Writ Appeal No. 36/2014 in W.P.(C) No 264/2010 in the case of Union of India & Ors. v. Radha Mohan Yadav, Para 4, 5, & 6.
(iv) Union of India & Ors v. Man Bahadur Chhetri & Ors:
2008(1) GLT 1
(v) Uttar Pradesh Power Corporation Limited v. Ayodhya Prasad Mishra & Anr: (2008) 10 SCC 139 para 36.
(vi) Judgment dated 15.06.2016 passed in W.P.(C) No 1250 of 2015 by the Hon'ble Gauhati High Court.
24. Finally, the learned counsel has submitted that while issuing the impugned orders respectively, the respondent authority has failed to follow the provisions of Rule 26 of the Assam Rifles Rules and on this ground alone the impugned orders are liable to be set aside and quashed.
25. This Court on careful consideration of the arguments advanced and on perusal of the petition as well as the affidavit-in-opposition, is of the view that the matter would revolve around the impugned orders, whereby by such orders, the petitioners herein were directed to be retired compulsorily on completion of 30 years of qualifying service.
26. While passing the said impugned orders, the respondent authority has taken recourse to Clause 56 (j) of the Fundamental Rules and Rule 48 (1) (b) of the Central Civil Services (Pension) Rules, 1972.
27. It would be prudent to go through the relevant rules mentioned above before coming to any decision as to whether reliance on the same would justify the action of the respondent authority or whether the same was 9 issued arbitrarily without following due process and being violative of the principles of natural justice as regard the petitioners herein.
28. Rule 56 of the Fundamental Rules is found in chapter IX under the heading 'Retirement' in the Fundamental Rules and Supplementary Rules, which rules are applicable to Government servants. Rule 56 (j) relevant for consideration herein reads as follows: -
"(j). Notwithstanding anything contained in this rule, 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:
(i) If he is, in Group 'A' or Group 'B' service or post in a substantive, quasi-permanent or temporary capacity and had entered Government service before attaining the age of 35 years, after he has attained the age of 50 years;
(ii) in any other case after he has attained the age of fifty-
five years;"
29. The intent of the Rule 56 can be summed up as follows: -
(i) That the Appropriate Authority has the absolute right to retire a Government servant;
(ii) That it should be in public interest to do so;
(iii) That notice of not less than three months in writing or three months' pay and allowances in lieu of such notice should be given; and
(iv) That such retirement can be affected after the Government servant has attained the age of 50 years or in other cases after he has attained the age of 55 years.10
30. On perusal of Rule (jj) (i) of the said Rule 56, it is noticed that there is a provision for review of the case either on a representation from the Government servant retired prematurely or in case it is decided to re-instate the Government servant in service.
31. A look at Rule 48 (1) (b) of the Central Civil Services (Pension) Rules, 1972 would show that this rule contemplates regulation of amounts of pensions when a Government servant on completion of 30 years' qualifying service may be required by the Appointing Authority to retire in the public interest. Proviso (b) to sub-Rule (1) requires that the Appointing Authority may also give a notice in writing to a Government servant at least three months before the date on which he is required to retire in the public interest or three months' pay and allowances in lieu of such notice.
32. The matter under consideration relates to personnel serving in the Assam Rifles which is a para-military force and though the Fundamental Rules and the Central Civil Services (Pension) Rules are applicable to such personnel, in case of retirement or discharge of subordinate officers on grounds of physical unfitness, Rule 26 of the Assam Rifles Rules, 2010 would also be applicable.
33. Rule 26 aforesaid reads as follows: -
"26. Recruitment 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, 11 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 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."
34. On going through the impugned order dated 18.02.2015 wherein, the petitioner Md. Munna was ordered to be retired from service on the forenoon of 01.09.2015, what can be interpreted from the same is that a notice was said to have been issued requiring the petitioner to be retired from service as aforesaid, presumably on the grounds of low medical categorization. However, nothing is indicated as to whether the proper procedure was followed, inasmuch as, there is nothing on record to show that an opportunity was given to the petitioner to prefer a representation against the intention of the Appropriate Authority to retire him prematurely. Even the provision of sub-Rule (3) of Rule 26 of the said Assam Rifles Rules, wherein it is stipulated that on communication of the findings of the 12 medical board that the incumbent is unfit for further service in the force, such incumbent is allowed to make a representation against such decision before the competent authority is not found to have been reflected in the records, which would lead one to presume that no such opportunity was given to the incumbent to make a representation.
35. In the case of the petitioner Radha Mohan Yadav, in the impugned order or the proceedings of the respondent authority which could have been reflected in the affidavit-in-opposition, nothing is evident that opportunity was given to the petitioner to make any representation against his Low Medical Categorization resulting in the recommendation to retire him from service on completion of 30 years of qualifying service. In fact, the impugned order would show that the incumbent is permitted to retire from service, whereas nothing on record reveals that the petitioner has sought for premature retirement. In this regard, what has been adverted to by the petitioner is that at some point of time, he was made to sign some papers which were taken as his consent to seek premature retirement, however on the petitioner approaching this Court in WP(C) No. 223 (SH) 2009, the Court vide order dated 19.12.2009 has held that there is no apprehension on the basis of those documents that the petitioner would be forced to go on voluntary retirement.
36. In the case of Sunil Kumar Shahi v. Union of India & Ors: 2016 SCC OnLine Gau 750, the Hon'ble Guahati High Court dealing with the issue of premature retirement as regard the application of Fundamental Rules being Rule 56 (j) and Rule 48 of the Central Civil Services (Pension) 13 Rules, 1972, on almost similar set of facts and circumstances, as the cases under consideration herein, the Court has set aside the impugned order whereby, the petitioner therein was permitted to retire from service on the ground that the due procedure has not been followed.
37. In response to the argument advanced by the learned counsel for the petitioners, the respondents through the learned ASG have fairly conceded that due procedure was not followed as far as the issuance of the impugned orders are concerned and as such, it is submitted that even if this Court decide to set aside the impugned orders in question, the respondents may be allowed to proceed against the petitioners in accordance with due procedure.
38. In the light of the above discussions and observations, the submission and contention made by the learned counsel for the petitioners has found favour with this Court, though all the authorities cited need not be discussed in detail, suffice it to say that under the circumstances, the petitioners have been able to make out a case for interference by this Court.
39. Accordingly, the prayer made in the two writ petitions mentioned above are allowed. The impugned order being Rec (Adm- III)/Review/2015/40, dated 18.02.2015 and Order No. 14013/Rec- 05/2015/227, dated 07.08.2015 respectively, are hereby set aside and quashed.
40. It may be mentioned that this Court vide order dated 08.04.2015 in W.P (C) No. 64/2015 has suspended the operation of the impugned order. Similarly, vide order dated 14.06.2016 in WP(C) No. 41 of 2016 has directed 14 the respondent authority not to dislodged the petitioner from service. It is also submitted by the learned counsel for the petitioners that the petitioners by virtue of the said interim orders are still continuing in service. This being the case, the said interim orders are hereby made absolute respectively.
41. With the above, the connected writ petitions are accordingly disposed of by this common judgment and order. No costs.
Judge Meghalaya 11.07.2022 "D. Nary, PS"
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