Gauhati High Court
Sri M.N.Bhardwaj vs Union Of India And Ors on 4 November, 2011
Bench: T.Vaiphei, S.C.Das
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM; NAGALAND; MEGHALAYA;
MANIPUR; TRIPURA; MIZORAM;AND ARUNACHAL PRADESH)
WRIT APPEAL NO.(SH) 43 OF 2010
Sri M.N.Bhardwaj,
Assistant Commandant(Retired),
Son of (Late) Parmanand Bhardwaj,
Resident of Laxmipur Bania,
P.O.Ramnagar(Chilkia),
District: Nanital,Uttaranchal-244715
.... Appellant/Writ Petitioner
-Vs.-
1. Union of India,
Represented by the Secretary,
Ministry of Home Affairs,
Government of India, New Delhi
2. The Director General of Assam Rifle,
Laitumkhrah, Shillong,
Meghalaya-793011.
3. The Commandant, Ist Assam Rifle,
C/O 99 A.P.O.
.....Respondents
BEFORE
HON'BLE MR. JUSTICE T.VAIPHEI
HON'BLE MR. JUSTICE S.C.DAS
For the petitioner : Mr.B.Bhattacharjee,
Mr.S.Chaykija,
Mr.S.Lenthang
Ms.B.Das
Advocates
For the respondents : Mr.S.C.Shyam, CGC
Date of hearing : 20.10.2011
Date of judgment : 4.11.2011
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JUDGMENT & ORDER
This appeal is directed against the judgment and order
dated 29.7.2010 passed by learned Single Judge in Writ
Petition (C) No. 126(SH)/2007 filed by the appellant as
petitioner before this Court.
The appellant in the writ petition had prayed for
following relief amongst others:-
(i) a writ in the nature of certiorari and mendacious
shall not be issued for calling the records pertaining to
medical category and compulsory retirement of the
petitioner and for setting aside and quashing the
impugned Order dated Ist July, 2002 and 18th November
,2003.
(ii) a writ in the nature of Mandamus shall not issued
after quashing the impugned Order of dismissal,
directing the respondents reinstate the petitioner in
service with all consequential benefits including back
wages.
(iii) to direct the respondents to declare the petitioner in
SHAPE-I category and be considered for promotion as
Deputy Commandant from the date of his batch mates
had been promoted in the year 1998 with grant of all
consequential benefits.
2. Learned Single Judge dismissed the writ petition
observing thus:-
"for the forgoing reason and having considered the basis
on which the decision was taken to prematurely retire the
petitioner from service and the decision of the Supreme Court
3
in Umedbhai M. Patel(supra), I find no merit in this writ
petition and the same is hereby dismissed."
3. Being aggrieved with the judgment and order passed by
learned Single Judge, the appellant preferred this appeal
assailing the judgment dated 29.7.2010 on two fold arguments
--
(i) That the learned Single Judge did not at all consider the
case of the appellant on his prayer for promotion and recorded
no finding at all.
(ii) That the decision holding premature retirement of
appellant as justified was bad in law in fact.
4. We have heard learned counsel Mr.B.Bhattacharjee for
the appellant and learned CGC, Mr.S.C.Shyam for the
respondents .
5. Let us see whether the issue of premature retirement of
the appellant taken by the respondents and upheld by learned
Single Judge, is justified or not.
The appellant has been put to compulsory retirement as
per provision prescribed in FR 56 (J). For ready reference the
provision is reproduced as under:-
"(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
4
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;"
The impugned order dated 1.7.2002 putting the
appellant in compulsory retirement goes as under :
" MAHANIDESHALAYA ASSAM RIFLES
DIRECTORATE GENERAL ASSAM RIFLES:: SHILLONG-
11
ORDER
A/V-M/258-02 Dated Shillong, the 01 Jul,2002
1. Whereas the President is of the opinion that it in the public interest to do so.
2. NOW THEREFORE, in exercise of the powers conferred by clause(j) of Rule 56 of the Fundamental Rules, the President hereby gives notice to Mr MN Bhardwaj(AR-175), Assistant Commandant, 1 Assam Rifles, that he having already attained the age of fifty years as on 5th Jan 02, shall retire from service with effect from the date of receipt of this order with three months full pay and allowance.
3. The President is further pleased to give an opportunity to Mr MN Bhardwaj (AR-175), Assistant Commandant, 1 Assam Rifles to submit representation, if any, within three weeks, from the date of receipt of this order.
Authority:- Government of India, Ministry of Home Affairs letter No. A- 19011/1/2002-Pers-III dt. 11 Jun 02.
By order and in the name of the President.
Sd/-
(GK Duggal) Lt.Gen Director General Assam Rifles Memo No. A/V-M/258-02/58 Dated Shillong,the 01/Jul 02 Copy forwarded to:-
1.Government of India, Ministry of Home Affairs,(Pers-III),New Delhi-110001
2. Pay and Accounts Office (Assam Rifles),Laitumkhrah, Shillong-793001
3. HQ Mizoram range, Assam Rifles, C/o 99 APO
4. Mr.MN Bhardwaj(AR-175), Assistant Commandant,1 Assam Rifles, C/o 99 5 INTERNAL
6. MS Branch
7. Record Branch(NE)
8. ARGIS Dte
9. D&V Branch
10.Legal Branch
11.Office Copy Sd/-Illegible (BK Chowdhury) Colonel Deputy Director(A) For Director General Assam Rifles"
6. There is no challenge that FR 56 (J) is not applicable in the case of the appellant. Only contention of the appellant is that he was wrongly considered as „Low Medical Category‟ and other allegations as made in the para-19 of the affidavit- in-opposition regarding various mis-conduct on the part of the appellant, has not been substantiated by any documentary proof .
It is settled law that the Court should be slow in interfering in the decision of domestic tribunal in disciplinary matter and that it should not ordinarily sit as an appellate authority and scrutiny the evidence of the case. If there is some material on record, in support of taking a decision by the Disciplinary Authority, it should not be disturbed. In this case, the appellate authority considered the entire service record of the appellant and arrived at a decision to put him in compulsory retirement, in public interest as his continuous utility in the service was found to be not required. Law prescribes the right of appropriate authority to take such decision as absolute. The Court will interfere only in the event, it is shown that the decision is perverse and not supported by any material. In this case in hand, there is enough materials that the appellant was in low medical category and sometimes he was found to be in S1H1A1P1E1. Referring to 6 Annexure-H to the writ petition, the learned Advocate, Mr.Bhattacharjee has argued that the appellant was upgraded to medical category SHAPE-1 w.e.f.4th December, 2001 and therefore the decision of the respondents in placing the appellant in compulsory retirement on that ground was uncalled for. The learned CGC has submitted that the appellant petitioner was categorised as low medical category from the year,1994 and therefore, the decision taken by the appropriate authority was justified. The documents so annexed shows that the appellant petitioner was categorised thus:-
"P3(T-24) with effect from 26.09.1994 P2(T-24) with effect from 15.04.1995 P2(T-24) with effect from 16.10.1995 P2(Permanent ) with effect from 16.04.1996 P2(T-24) with effect from 16.04.1998"
In view of above categorisation, learned CGC has submitted that the appellant petitioner was never wrongly categorised with malafide intention and that the other materials which is considered by appropriate authority as detailed in para-19 of the affidavit-in-opposition were also rightly considered for which interference in the decision of the appropriate authority is not called for by this Court.
Learned Single Judge while considering the rival contention on the issue, in para-7,8 and 9 of judgment and order dated 29.7.2010 held as thus:-
" 7. Having regard to the rival contention of the learned counsels and also upon consideration of the pleadings as well as the original ACR records produced before the Court, it appears that adverse remarks on the integrity of the petitioner have been recorded by his superiors and such remarks have 7 also been made known to the petitioner as can be gathered from the delinquent‟s signature on the relevant portion of the ACR.
8. It further appears from the averments made in the counter affidavit that relevant factors were taken into account by the Committee while deciding to prematurely retire the petitioner from service by exercise of power under FR 56 (J) and therefore the impugned decision in my view is based on acceptable grounds.
9. In so far as the allegation of malafide made by the petitioner, no specific averments have been made nor any material has been adduced in support of such allegation. The persons/ officers who have allegedly exercised power malafide have also not been named by the pettionner. Therefore such bald and unsubstantiated allegation of malafide can have no place in considering the present case."
On a careful consideration of the facts and circumstances and the legal position explained above, it cannot be said that the decision taken by the disciplinary authority is based on no material and therefore does not deserve interference.
7. The appellant petitioner in view of order dated 1.7.2002 submitted his representation against the order of compulsory retirement and that representation was disposed of by order dated 18.11.2003(Annexure K to the writ petition) which is also challenged and the order so passed by the appropriate authority is reproduced as under:
" REGISTERED Mahanideshalaya Assam Rifles Directorate General Assam Rifles Shillong-793011 I. 39013/1/2003-MS 18 Nov.2003 Asstt. Comdt. MN Bhardwaj(Retd) Vill- Laxmipour Bania,P.O Ramnagar(Chilkiya) Dist.Nainital 244715, Uttaranchal REPRESENTATION AGAINST THE ORDER OF RETIREMENT FROM SERVICE 8
1. please refer to your letter No PERS/MNB/AR- 175/03/09 dated 03 rd Oct, 2003 addressed to Hon'ble President Government of India, Rastrapati Bhawan, New Delhi with copy to Hon'ble Home Minister and Hon'ble Law Minister, New Delhi.
2. It is for kind information that your case has been examined in detail. As per the existing policy vide Ministry of Home Affairs Office Memorandum No. 25013/14/77-Estt(A) Dated 05 Jan 78, 25013/30/85- Estt(A) dated 7/8 August 85 and GoM(Group of Ministers) reported on " REFORMING THE NATIONAL SECURITY SYSTEM" the case was placed before the Review Committee to asses the suitability for retention in service beyond the age of 50 years. The Review Committee had not considered your further retention in service beyond 50 years of age and as such the you were sent on pre-mature retirement from service under FR 56(j).
3. In view of above, you can not be re-instated in service as requested for.
Sd/-(KK Chopra) Colonel, Colonnel(Military Secretary) For Director General, Assam Rifles. Copy to:
Shri A Samuel for information please Under Secretary(P), President's Secretariat Public-1 Section, Rastrapati Bhawan New Delhi 110004 The Secretary to the Govt of India do (Pers III) Ministry of Home Affairs North Block, New Delhi-110001"
The above order makes it clear that the authority considered the submission of the appellant petitioner and rejected the same. In our considered opinion, for the reasons set forth above, the decision so taken by the appropriate authority does not call for interference.
8. Let us now come to the other part of the appellant petitioner‟s case i.e. non-consideration of his promotion by the respondents in the year 1998 alongwith his other batch mates. Learned Single Judge did not record any observation 9 regarding that prayer of the appellant. Since the issue has been agitated before us, we think, we should dispose of it on merit without referring it again to the learned Single Judge.
9. Learned counsel of the appellant Mr.Bhattacharyya has strenuously argued that the petitioner was denied due promotion without any valid reason inspite of the fact that all criteria for promotion were fulfilled by the appellant petitioner. He has also submitted that in the year, 1988, the petitioner was categorised in SHAPE-1medical category i.e S1H1A1P1E1 and refusal of his promotion was a blow to his unblemished service carrier. Learned counsel also contended that the annual confidential report of the year 1998 was considered by the DPC in its meeting held on 27.3.1998, was not at all true in view of the fact that ACR of the year 1998 was not in existence on the date of DPC meeting. On the contrary, learned CGC has submitted that before the date of DPC meeting held on 27.3.1998, the petitioner appellant was categorised as of low medical category and the subsequent categorisation as prayed by the petitioner appellant was not before the DPC held on 27.3.1998. The Departmental enquiry was initiated against him on various charges and that two of the charges i.e. for not adhering to the Rules and procedure and borrowing money from subordinate were proved against the appellant petitioner and therefore he was not recommended for promotion by the Departmental Promotion Committee. We have considered the rival contention and examined the documents placed on record.
In course of hearing copies of minutes of DPC meeting held on 27.3.1998 for promotion of Assistant Commandant to Deputy Commandant with copies of some relevant Rules and procedure were also produced by learned CGC and on going 10 through the same, we find that the essential eligibility of the candidates for promotion from Assistant Commandant to Deputy Commandant prescribed in the schedule to the Rules which was said to have followed thus:-
"Essentials
(a) Should have minimum qualifying service of six yeas as Assistant Commandant.
(b) Should bhe medically fit.
(c) Should have high average record of service and be recommended for promotion during he last 5 years, two ACR should have been earned in Assam Rifles bn during the last 5 years.
(d) Should not have been awarded punishment under the Army Act or penalty under the CCS(CCA) Rules 1985 or conviction by a criminal court for gross misconduct involving moral turpitude.
(e) Should have passed departmental promotion examination Part-X."
On perusal of the DPC minutes , we find that the petitioner‟s name was also in the zone of consideration for promotion to the post of Deputy Commandant alongwith other eligible candidates. Para 8 of the minutes shows that the recommendation of the DPC in respect of the appellant petitioner was kept in „sealed cover‟ and the DPC observed thus:-
"10. Finding of DPC in respect of Assistant Commandant T.C.Rana and Assistant Commandant M.N.Bhardwaj have been placed in sealed cover in view of the departmental enquiry pending against them."
The above DPC observation makes it clear that a departmental enquiry was pending against the appellant petitioner at the relevant time and as a result recommendation for his promotion was kept in sealed cover. The further observation in the DPC minutes is that the integrity of the appellant petitioner alongwith ten other candidates who were in the zone of consideration were found to be without any 11 doubt. The internal assessment made by DPC in respect of ACR of the petitioner for 5 years shows that he was categorised high average and his rating scale was 6 or 5 and that category was fit for promotion. It was also recorded that his medical category S1H1A1P2E1( P2 Permanent) and there was further note that the officer was involved in a disciplinary case of over stay un-authorisedly and borrowing money from subordinates. Though in the affidavit in opposition it is alleged two of the charges were proved but no documents were produced to that effect showing that any charges were proved and therefore, the promotion was denied to the petitioner. The petitioner- appellant joined in the service in the year 1974 and was promoted time to time and in the year 1981, he was promoted to the post of Assistant Commandant. Record shows that from 1994 he was suffering from hypertension and at the time of consideration of the promotion , according to the petitioner , he was categorised as SHAPE-1 vide Annexure-C to the writ petition . On perusal of the Annexure-C , we find that it was issued after examination of the petitioner on 22.10.1998 i.e. long after the date of DPC meeting held on 27.3.1998. On the other hand, documents annexure -R2 to the affidavit-in-opposition , shows that the petitioner was categorised referring to his previous medical category as P2(Temporary) and that medical Board proceeding was held on 26.3.1998.
The Assam Rifle order ARO 2/90 in paragraph-7 Clause(t) defines SHAPE thus:-
"(t) SHAPE means functional capacity and represents following factor for assessment of fitness of Cadre Officers:-
(i) S Psychological
(ii)H Hearing
(iii)A ` Appendages
(iv)P Physical Capacity
(v) E Eye sight"
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A person having S1H1A1P1E1 is categorised fit for all
duties . Persons categorised thereafter S2 or S3 have
limitation as to the type of their duties and areas of
employability . Appendix 2 has further defined P1P2P3 etc.
thus:
" P1 Has fully functional capacity and physical stamina but may have minor impairments :- Fit for all duties any where.
P2 Has moderate physical capacity and stamina . Suffered from constitutional/metabolic affective disease/operative procedure but now well stabilized. :- fit for duties not requiring severe stress. May have restrictions in employability at high altitude(above 2,700 meters) hill terrain ad extreme cold areas.
P3 Has major disablement with involving Limited physical capacity and stamina :- Fit for sedentary duties not undue stress. May have to be employed in areas where appropriate specialist Facilities are available. May have restrictions in employment in hilly terrain and extreme cold climate.
P4 On sick leave in hospital :- Temporary unfit for force duties.
P5. Gross limitations in physical Capacity and stamina :-
Permanently unfit for force duties."
So at the time of consideration of the promotion, the appellant petitioner was categorised in view of R2 to the affidavit in opposition as P2 temporary which means the 13 petitioner was fit for duties not requiring severe stress may have restriction in employability at high altitude(above 2700 meter) hill and terrain and cold areas. There is nothing that a person categorised P2 is not fit for the service and therefore cannot be promoted. The recommendation of the DPC kept in sealed cover has not been opened. The disciplinary proceeding in which the appellant petitioner was found to have guilty as alleged, has also not produced before the Court to examine as to whether non-consideration of the promotion of the petitioner was appropriate or not.
10. In view of the above factual and legal position, we are constrained to direct the respondents to re-open the matter of promotion of the petitioner and to examine the recommendation of the DPC submitted in sealed cover and to take it in consideration and pass appropriate order regarding promotion of the petitioner to the post of Deputy Commandant and to complete the exercise within next three months. If the appellant petitioner is found to be entitled to the promotion he should be promoted w.e.f. from the date his batch mates were promoted and all service benefit accordingly should be made available to him.
11. With this observation the writ appeal is partly allowed ad partly dismissed and stands disposed of. A copy of the judgment may be sent to respondents for compliance.
JUDGE JUDGE Pb/-