Gauhati High Court
Sharda Nand Misra vs Union Of India (Uoi) And Ors. on 10 February, 2004
Equivalent citations: (2004)2GLR128
Author: I.A. Ansari
Bench: I.A. Ansari
JUDGMENT I.A. Ansari, J.
1. The petitioner has been serving in Assam Rifles, a paramilitary force of the Government of India, since 26.11.1970, the petitioner having joined the said force as a Rifleman (Nursing Assistant). In the year 1982, the petitioner was promoted to the post of Havildar (Pharmacist) and, thereafter he received his further promotion as Naib Subedar (Pharmacist) annd on 5.10.1999, he was upgraded as Subedar Major (Pharmacist), The petitioner maintained an unblemished service record to the best satisfaction of his superiors. Pursuant to the recommendations of the 5th Central Pay Commission, the Government of India, Ministry of Home Affairs, issued Office Memorandum, dated 14.5.1998 (Annexure 1 to the writ petition) raising the age of retirement from 58 years to 60 years with direction to amend the respective Acts and Rules and acting upon the said office Memorandum, Instruction No. 4/99 was issued by the Assam Rifles authority prescribing the superannuation age of all trades of Assam Rifles personnel including JCOs/Subedar (Majors) as 60 years. As per the Instruction No. 4/99 aforementioned, there will be for the JCOs of Assam Rifles, who are willing to serve upto the age of 60 years, review of their careers before completion of 55 years of age or 30 years of qualifying service. By order, dated 5.10.1999 (Annexure 3 to the writ petition), the petitioner was promoted as Subedar Major (Pharmacist) with effect from 1.10.1999. As per the notification of the Director General, Assam Rifles, which was published on 31.10.2000 (Annexure 5 to the writ petition), the petitioner was approved for retention in service beyond 30 years of qualifying service, i.e., upto 60 years of age and this was confirmed by another letter, dated 3.11.2000, issued by the Commandant of Assam Rifles. However, overriding the effect of the said notification, dated 31.10.2000 and the subsequent letter, dated 3.11.2000, aforementioned, respondent No. 2, namely, the Director General of Assam Rifles, Shillong, published an order, dated 11.10.2002 (Annexure 6 to the writ petition) retiring the petitioner with effect from 30.9.2003 in exercise of powers conferred by FR 56 and Rule 48(1)(b) of the CCS (Pension) Rules, 1972.
2. With the help of the present writ application, the petitioner has approached this Court impugning the notice of retirement dated 11.10.2002 (Annexure 6 to the writ petition) aforementioned and seeking, inter alia, issuance of Writ(s) setting aside and quashing the impugned order/notice, dated 11.10.2002, aforementioned and commanding the respondents to allow the petitioner to continue to remain in service till he attains the age of 60 years. As an interim measure, the petitioner sought for directions to the respondents to allow him to continue in service till disposal of the writ petition.
3. While issuing rule on 14.3.2003, this Court provided for consideration of interim prayer of the petitioner on the returnable date. Upon considering the matter in its entirety, this Court passed an order, dated 12.8.2003 stating that the matter would be disposed of, as a whole, upon hearing, but making it, at the same time, clear that upon failure to do so, the prayer for interim direction would be considered and, eventually, this Court, for reasons assigned in its order, dated 29.9.2003, allowed the prayer so made by the petitioner.
4. The respondents have contested this case by filing their affidavit-in-opposition, their case being, briefly stated, thus : The Assam Rifles, being an armed force is deployed mainly in insurgency prone areas of North Eastern States of India, which require examplary competence, efficency and effectiveness. The Assam Rifles authority prefer to have more efficient officers rather than to have efficient officer only ; hence, and order retiring the Government servant in public interest on completion of 32 years 4 months of service cannot be considered as a punishment. The petitioner has completed 50 years of age and has rendered 30 years of service on 30.9.2003. During this period, the petitioner was given maximum opportunity to serve in Assam Rifles with the highest rank (Subedar Major) in the JCOs. On completion of 32 years 4 months of service concerned authority has served the petitioner with three months' prior notice, on 11.10.2002, retiring him in the public interest under the provisions of Rule 48(1)(b) of CCS (Pension) Rules, 1972. The petitioner acknowledged the said notice on 13.11.2002, i.e., 11 months before his due date of retirement on 30.9.2003. On the date of retirement, so fixed, the petitioner has completed more than 32 years of service. The authority under the relevant Rules are required to review the service career of those employees who have completed 30 years of service and take a decision on their further retention. In the present case the authority concerned having considered the case, of the petitioner, decided to retire him from service in terms of the aforesaid Rules. The act of the authority concerned suffered from no illegality or arbitrariness. While accepting the rank of JCO, i.e., Subedar Major, the petitioner had given an undertaking that the would retire from service after completion of 4 years of tenure as the Subedar Major. The petitioner is unable to make out any case for interference in exercise of Article 226 of the Constitution of India.
5. I have perused the materials on record. I have finally, heard Mr. M. Chanda, learned counsel for the petitioner, and Mrs. G. Singh, learned Additional CGSC, appearing on behalf of the respondents.
6. It is submitted by Mr. Chanda that in consequence of the Office Memorandum, dated 14.5.1998, aforementioned issued by the Government of India, Ministry of Home Affairs, read with Instruction No 4/99 aforementioned issued by the Assam Rifles Authority, the retirement age stood raised from 58 to 60 years. As the petitioner was approved for retention in service beyond 30 years of qualifying service as per the notification issued in this regard, there could not have been, contends Mr. Chanda, any further review of his service career, particularly, when there was no complaint on any count against him as regards his medical fitness, his efficiency, integrity, etc., and, hence, according to Mr. Chanda, there was no reason to issue the impugned order, dated 11.10.2002, retiring compulsorily the petitioner from service on completion of 30 years of service in exercise of powers contained in FR 56 and/or Rule 48(1)(b) of the CCS (Pension) Rules, 1972. This apart, points out Mr. Chanda, the respondents have not been able to make out any case for issuing the impugned order, dated 11.10.2002. The affidavit filed by the respondents in this regard, contends Mr. Chanda, is completely vague inasmuch as it is not averred therein that the petitioner had ceased to have his efficiency and/or competency and/ or that the petitioner had made himself unfit for retention. There is absolutely no material on record to show, according to Mr. Chanda, as to what was the consideration and what was the material against the petitioner compelling the authorities concerned to review their own order of retention of the petitioner in service and thereby retiring him from service. As regard the contention of the respondents that the petitioner had given an undertaking to retire on completion of four years of service. Mr. Chanda submits that such an undertaking even if given by the petitioner was for the tenure of Subedar Major and nor for his entire service. This apart, contends Mr. Chanda, the undertaking given by the petitioner cannot bind him with an unconscionable contract and contrary to law. In support of his submissions, Mr. Chanda has placed reliance on (1986) 3 SCC 156, (1998) 5 SCC 87 and (2001) 1 SCC 158. Having allowed the petitioner to be retained in service beyond 30 years of qualifying service and having already promoted him recently by order, dated 5.10.1999, to the post of Subedar Major (Pharmacist), there was, contends Mr. Chanda no valid reason for the authorities concerned to retire him from service prematurely. Support for his submissions is also sought to be derived by Mr. Chanda from the case reported in 2003 (2) GLT 398.
7. Controverting the above submissions made on behalf of the petitioner, Mrs. Singh has contended that when the petitioner was to be promoted to the post of Subedar Major, the petitioner gave an undertaking to retire after putting 4 years of service, and having already given such an undertaking, the petitioner cannot, now, go back from this undertaking. This apart, there is no limitation, according to Mrs. Sinha, on the powers of the respondents to review the career of a person in service at any stage if he is found not fit to be retained in service. The authorities concerned, according to Mrs. Sinha, have exercised their powers in accordance with the law and the same do not suffer from any arbitrariness and/or unreasonableness and, hence, the impugned order may be maintained.
8. Upon hearing the rival submissions made on behalf of the parties and upon perusal of the materials on records, what I find to be the admitted case of the parties is that as a result of the recommendations made by the 5th Central Pay Commission, the Government of India, Ministry of Home Affairs, issued an Office Memorandum, dated 14.5.1998 (Annexure 1 to the writ petition) making 60 years as retirement age for the persons who, before the recommendations so made by the 5th Central Pay Commission were to retire at the age of 58 years. There is no dispute before me that all trades of Assam Rifles Personnel including the JCOs/Subedar Major were to retire at the age of 58 years before the Office Memorandum, dated 14.5.1998, aforementioned, was issued but by virtue of this Office Memorandum and subsequent necessary instructions issued in the form of Instruction No. 4/99, the retirement age of all grades of Assam Rifles personnel including the JCOs/Subedar Major has been raised to 60 years. While retirement age has, thus been fixed as 60 years for persons like the petitioner, Rule 48(1)(b) of the CCS (Pension) Rules, 1972, lays down that on completion of 30 years of qualifying service, a government servant may retire from service either on his own volition or he may be retired from service in the interest of public. A conjoint reading of the Government of India's Office Memorandum, dated 14.5.1998, aforementioned and the said Instruction No. 4/99, on the one hand and Rule 8(1)(b) aforementioned, on the other, reveals that if a person is found, on review of his service career, fit for retention in service beyond the qualifying period of service of 30 years, such a person shall, normally, retire from service on superannuation at the age of 60 years. Once a person has been allowed to continue after the review of his service career in terms of Rule 48(1)(b) of CCS (Pension) Rules, 1972, his service cannot be terminated by, once again, invoking the provisions of Rule 48(1)(b). In a situation, such as this, the authorities concerned are not powerless and can retire a person, who is retained in service on completion of 30 years of his qualifying service, by invoking the provisions of FR 56 which embodies provisions for compulsory retirement of Government employees. However, resort to FR 56 cannot be arbitrary.
9. What crystallizes from the above discussion is that the case at hand, there is no dispute before me that by the order, dated 31.10.2000 (Annexure 5 to the writ petition) and consequential order, dated 3.11.2000, the petitioner was approved for retention in service up to the age of 60 years. Thus, having given approval for retention of the petitioner in service upto the age of 60 years after review of his service career on completion of 30 years of qualifying service, the authorities concerned could not have invoked Rule 48(1)(b) once again for retiring him from service. Hence, reference made by the respondents to Rule 48(1)(b) for the purpose of retiring the petitioner from service has no legs to stand.
10. Assuming for a moment that the respondents could have considered the service of the petitioner in terms of Rule 48(1)(b) and/or FR 56, the fact remains that having given the petitioner the approval for retention in service beyond qualifying period of service of 30 years, something adverse to such retention of the petitioner ought to have been found in order to enable the authorities concerned to decide to retire the petitioner before allowing him to continue upto the age of 60 years. In this regard, the respondents have not been able to assign any cogent and convincing reason. One of the reasons, which the respondents have assigned is that the petitioner himself had given an undertaking, while he was promoted to the rank of Subedar Major on 6.10.1999, that he would retire on completion of four years of further service. The impugned order, dated 11.10.2002, is, however, completely silent in this regard. This apart, no Government servant can be retired on the strength of such an undertaking by invoking the provisions of FR 56 and/or Rule 48(1)(b). Such an undertaking is contrary to the provisions of law governing service conditions of the Government servants. Since a Government servant, on rendering 30 years of satisfactory service, if found fit for retention, has to be allowed to continue until he retires on superannuation, such a protective provisions cannot be set at naughty by taking recourse to the provision of Rule 48(1)(b) and/or FR 56 unless the service rendered by the person concerned after his retention has been approved, indicates that he is no longer fit for retention.
11. In the present case, the petitioner was admittedly, promoted to the rank of Subedar Major (Pharmacist) on 5.10.1999, he was also found fit for retention beyond 30 years of qualifying service on 5.10.1999 vide the order, dated 3.11.2000, hence, he could not have been, suddenly, removed from service without assigning any reason therefor. In this regard, the respondents have also contended, inter alia, that the Assma Rifles is a paramilitary force, which is deployed in extremist infested areas, and, hence, the authorities concerned wish to have better performing personnel to meet the situation and the authorities concerned also preferred to have more efficient officer rather than an efficient Officer. These submissions are wholly vague inasmuch as there is nothing in the materials on record nor is it discernible from the averments made by the respondents in their affidavit that the petitioner is inefficient, incompetent and/or physically unfit for further retention in service.
12. I may also point out that no provisions of any Rule or Notification has been brought to the notice of this Court to show that by giving an undertaking, an Assam Rifles personnel can give up his right to retire on superannuation in accordance with law. This apart, such an undertaking, even if given, is contrary to law and the same being against public policy, cannot be treated as enforceable. Reference made, in this regard, by Mr. M Chanda to the case of Secretary cum Chief Engineer, Chandigarh v. Hari Om Sharma and Anr., reported in (1998) 5 SCC 87, is not misplaced.
13. In the case at hand, when the government policy as well as the instructions issued by the Assam Rifles authorities themselves make the age of superannuation of all trades of Assam Rifles personnel 60 years, an undertaking of the kind, as contended by the respondents, even if given by the petitioner, will be contrary to the law and will not be enforceable. This undertaking does not, therefore, debar the petitioner, in the facts and circumstances of the present case, as indicated hereinabove, from being allowed to remain in service up to the age of 60 years. The government has to be a model employer and a model employer cannot force any of its employees to give an undertaking, which is contrary to its own public policy. Thus, the reference made by Mr. Chanda to the case of Central Inland Water Transport Corporation Ltd. and Anr. v. Brojo Nath Gangully and Anr., reported in (1986) 3 SCC 156, is also not misplaced.
14. The Office Memorandum dated 14.5.1998 aforementioned coupled with the Instruction No. 4/1999 aforementioned have given substantive right to the petitioner to remain in service until the age of 60 years and such a right cannot be taken away from the petitioner except in accordance with the provisions of FR 56. For the purpose of taking resort to FR 56, the law is well settled that the authorities concerned cannot arbitrarily retire a person from service without taking into account his old service record including the recent ones. In the case at hand, since the petitioner has already been granted promotion, the inference is that the petitioner was fit for promotion on 1.10.1999 and in absence of anything pointing to the contrary, which could dis-entitled the petitioner for being retained in service, the question of taking resort to FR 56 did not arise at all. Reference may be made to the case of Kiron Ch. Borah v. State of Assam & others reported in (2003) 2 GLT 398.
15. In view of what have been discussed above, there can be no escape from the conclusion that by making vague reference to FR 56 and/or Rule 48(1)(b) of CCS (Pension) Rules, 1972, the service of the petitioner cannot be terminated. The respondents have miserably failed to make out any case for exercise of powers either under FR 56 or Rule 48(1)(b) of CCS (Pension) Rules, 1972. Situated thus, it is abundantly clear that if the impugned order is allowed to stand good on record, it will cause serious miscarriage of justice. Viewed from this angle, I am of the firm view that the impugned order deserves to be set aside and quashed.
16. In the result and for the reasons discussed above, the writ petition succeeds. The impugned order, dated 11.10.2002 (Annexure 6 to the writ petition) is hereby set aside and quashed.
17. In view of the fact that the respondents have not been able to show any legal reason for sustaining the impugned order, I am constrained to hold that the respondents deserve to be saddled with costs for meaninglessly entering into this litigation. The respondents are, therefore, directed to pay a sum of Rs. 2,000/- as costs to the petitioner.
18. With the above observations and directions, this writ petition shall stand disposed of.