Meghalaya High Court
Shri. Radha Krishna Nair K.M & 96 Ors. vs . Union Of India & Ors. on 17 September, 2018
Serial No.5
Supp. List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WP(C). No. 319 of 2017 and
WP(C). No. 377 of 2017
Date of Decision: 17.09.2018
Shri. Radha Krishna Nair K.M & 96 Ors. Vs. Union of India & Ors.
AND
Shri. Nand Kishore Yadav & Ors. Vs . Union of India & Ors.
Coram: Hon'ble Mr. Justice S.R.Sen, Judge (Oral)
Appearance:
For the Petitioner/Appellant(s) : Mr. M.Chanda, Adv.
For the Respondent(s) : Mr. R.Debnath, CGC.
i) Whether approved for reporting in Yes/No Law journals etc.:
ii) Whether approved for publication in press: Yes/No
1. Heard Mr. M. Chanda, learned counsel on behalf of the petitioners in both WP(C). No. 319 of 2017 as well as WP(C). No. 377 of 2017 who submits that both the writ petitions are covered by the judgment and order dated 20-11-2014 passed by this Court in WP(C). No. 61 of 2013. The said judgment was upheld by the Hon'ble Division Bench in WA. No. 30 of 2013 and subsequently, it was upheld by the Hon'ble Supreme Court in SLP. No.13534-13535 of 2015, 13537-13538 of 2015 and 15447-15448 of 2015. Petitioner counsel also submitted that the writ petitioners were 1 initially appointed in different ranks as mentioned in page 12 paragraph 2 of the writ petition which is as follows:
"2. That it is stated that, all the writ petitioners were initially appointed in different Ranks, such as Recruit/ (GD), ORL, WC, WM etc. In the Assam Rifles on different dates since 1979 onwards. Subsequently all the petitioners after being found suitable as clerk as in- service candidates, after passing of the limited departmental competitive examination, also eligible having required recruitment qualification for the post of Warrant Officer and also after declared qualified in the selection proceeding and thereafter all of them have been remustered as Warrant Officer (Erstwhile Lance Naik Writer) after passing of the limited departmental competitive examination as entry grade on different dates as indicated herein below:
S/No Regtl No Rank Name Unit DOE DOR
1. JC-361315 Sub (Clk) Radha Krishnan Nair HQ DGAR 09-12-1983 01-07-1986
2. JC-361249 Sub (Clk) Biren Singha HQ DGAR 08-07-1980 01-04-1986
3. JC-361343 Nb Sub(Clk) P S Jhijaria HQ DGAR 23-07-1985 02-08-1986
4. JC-361266 Sub (Clk) Ramjit Yadav DGAR 14-11-1982 01-04-1986
5. JC-361857 Nb Sub(Clk) Netra Singh ARTC&S 25-11-1981 01-04-1988
6. JC-362345 Nb/Sub/ Clk Brojen Chetia HQ DGAR 22-05-1986 17-05-1994
7. JC-361891 Nb Sub(Clk) Jaikant Mandal HQ 28 SECT 19-05-1986 01-04-1988
8. JC-361264 Sub (Clk) Huidram Tunal 6 AR 01-09-1982 01-04-1986
Singh
9. JC 362317 Nb Sub(Clk) Jyoti Kumar Mallick DGAR 21-07-1989 05-06-1993
10. JC-361931 Nb Sub(Clk) M Gopala Krishan HQ DGAR 01-05-1987 01-02-1989
11. C/362554 WO (Clk) Yaswant Kumar DGAR 18-01-1993 15-07-1995
12. JC-361387 Nb Sub(Clk) Saheb Yadav HQ DGAR 12-05-1983 01-10-1986
13. JC-361878 Nb Sub(Clk) Ganga Dutt HQ DGAR 28-08-1985 01-04-1988
Chandola
14. JC-362548 Nb Sub(Clk) PC Sarkar ARGIS Dte 21-07-1989 15-07-1995
15. JC-361333 Sub (Clk) Balendra Saharia HQ DGAR 28-05-1985 01-07-1986
16. C/362553 WO (Clk) Ramesh Chand HQ DGAR 06-07-1992 15-07-1995
17. JC-361884 Nb Sub(Clk) Suleman Kutty HQ DGAR 12-03-1986 01-04-1988
18. JC-361856 Nb Sub(Clk) U S Bhandari 1MGAR 13-12-1979 01-04-1988
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19. JC-361695 Nb Sub(Clk) SP Sharma HQ DGAR 05-05-1986 03-09-1987
20. JC-361955 Nb/Sub(Clk) Safdar Imam HQ DGAR 12-09-1986 05-04-1989
21. JC-361929 Nb Sub (Clk) Muhmmad Aladdin HQ DGAR 02-06-1985 01-02-1989
22. JC-362267 Nb/Sub(Clk) S Binanta Singh AR CH 06-11-1987 24-10-1992
23. JC-361272 Sub (Clk) Y I Singh HQ IGA 10-06-1983 01-04-1986
24. JC-361320 Sub(Clk) R N Sahoo 45 AR 17-10-1984 01-07-1986
25. JC-361647 Nb Sub(Clk) Balbir Kumar 5 DUAR 17-11-1984 07-08-1987
26. JC-361923 Nb Sub(Clk) Ratnakar Jena HQ IGA 05-05-1986 01-10-1988
27. JC-361644 Nb Sub(Clk) Babu P K 34 AR 27-08-1985 07-08-1987
28. JC-361393 Nb Sub(Clk) Devarajan K HQ DGAR 08-08-1985 01-10-1986
29. JC-361330 Nb Sub(Clk) Omana Kuttan Pillai 23 AR 15-03-1985 01-07-1986
30. JC-361254 Sub (Clk) G K Sharma ART C&S 10-06-1981 01-04-1986
31. JC-362474 Nb Sub(Clk) Samrendra Adhikari 29 AR 21-07-1989 31-12-1994
32. JC-361370 Nb Sub(Clk) SP Singh 42 AR 31-12-1985 01-10-1986
33. JC-361414 Nb Sub(Clk) Bijendra Kumar HQ DGAR 07-08-1985 01-10-1986
34. JC-361424 Nb Sub(Clk) Dilbag Singh 40 AR 04-06-1985 01-10-1986
35. JC-361457 Nb Sub(Clk) Chanderswar Rai HQ DGAR 31-12-1985 19-01-1987
36. JC-361468 Nb Sub(Clk) Virendra Singh 19 AR 14-08-1985 01-03-1987
37. JC-361312 Nb Sub(Clk) DS Basera 25 AR 01-09-1983 01-07-1986
38. C/362482 WO (Clk) Pradeep Kumar G 25 AR 07-06-1993 31-12-1994
39. JC-361452 Sub T J Kuki 7 AR 16-09-1982 02-03-1987
Maj(Clk)
40. JC-361415 Nb Sub(Clk) Mahendra Singh 7 AR 27-09-1982 01-10-1986
41. JC-361867 Nb Sub(Clk) A K Sharma 7 AR 16-07-1985 01-04-1988
42. JC-361883 Nb Sub(Clk) M A Matlip 7 AR 21-02-1986 01-04-1988
43. C/362348 WO(Clk) SC Burman 7 AR 11-11-1986 17-05-1994
44. C/362476 WO(Clk) R Murugesan 7AR 28-10-1988 31-12-1994
45. JC-361428 Nb Sub(Clk) Satyander Kumar NSG 27-09-1984 01-10-1986
46. JC-362365 Nb Sub(Clk) Masedur Rahman HQ DGAR 12-08-1989 13-09-1994
47. C/362545 WO(Clk) Mantu Nath Roy ART C&S 01-07-1989 15-07-1995
48. C/362555 WO(Clk) Birendra Singh Negi HQ 10 SECT 16-12-1991 15-07-1995
49. JC-361340 Nb Sub(Clk) Hari Singh Rauthan 11 AR 16-07-1985 02-08-1986
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50. JC-360784 Sub Shiv Singh Rana DGAR 29-10-1977 31-07-1980
Maj(Clk)
51. JC-361349 Nb Sub(Clk) S Maha Patra 12 AR 06-11-1985 02-08-1986
52. C/361952 Nb Sub(Clk) Madhusudanan PD DGAR 28-10-1986 09-03-1989
53. JC-361335 Nb Sub(Clk) Omanakuttan K HQ DGAR 13-06-1985 01-07-1986
54. JC-361381 Nb Sub(Clk) Binod Kumar HQ DGAR 10-08-1981 01-10-1986
55. JC-361873 Nb Sub(Clk) MD Munna HQ DGAR 19-08-1985 01-04-1988
56. C/362481 WO(Clk) Amar Lal Bhojel AR SU 18-01-1993 31-12-1994
57. JC-361329 Nb Sub(Clk) Bahadur Nishad 39 AR 21-05-1985 01-07-1986
58. JC-361348 Nb Sub(Clk) Brija Shanker Tiwari 39 AR 09-11-1985 02-08-1986
59. JC-361311 Sub(Clk) SC Pal HQ 26 SECT 15-07-1983 01-07-1986
60. JC-362272 Nb Sub(Clk) Mahipal Singh Ravi 38 AR 13-11-1988 24-10-1992
61. JC-361270 Sub(Clk) Rudha Bahadur Rai 38 AR 12-04-1983 01-04-1986
62. JC-361280 Sub(Clk) DD Sharma IGAR(S) 20-08-1984 01-04-1986
63. JC-361638 Nb Sub(Clk) Sree Kumar TC Dmp 22-05-1986 22-05-1987
64. C/362546 WO(Clk) Dhan Bahadur Sunar 10 AR 22-07-1989 15-07-1995
65. JC-361894 Nb Sub(Clk) RS Sahoo 39 AR 02-07-1986 01-04-1988
66. C/362477 WO(Clk) DK Thapa 38 AR 15-10-1991 31-12-1994
67. JC-361375 Sub Maj Sivan Kutty T 11 AR 21-08-1985 01-03-1987
68. C/362352 Nb Sub(Clk) Ram Singh Rawat 42 AR 05-12-1987 17-05-1994
69. JC-361416 Nb Sub(Clk) Bhim Singh HQ 28SECT 28-07-1981 01-10-1986
70. JC-361897 Sub(Clk) GS Ram HQ 28 SECT 03-02-1983 01-04-1988
71. JC-361932 Nb Sub(Clk) Ratnesh Thakur 13 AR 28-04-1985 01-02-1989
72. JC-361653 Nb Sub(Clk) Rabindra Roy HQ 5 SECT 20-11-1985 07-08-1987
73. C/362487 WO(Clk) Sandeep Kumar 23 AR 07-07-1992 18-02-1995
74. JC-361869 Nb Sub(Clk) Madan Singh Bisht HQ DGAR 27-07-1985 01-04-1988
75. JC-360794 Sub Pritam Singh DGAR 30-09-1978 31-07-1980
Maj(Clk)
76. JC-362552 Nb Sub(Clk) Charan Jeet Meena ART C &S 17-06-1988 15-07-1995
77. JC-361697 Nb Sub(Clk) Pradeep Kumar HQ DGAR 05-05-1986 03-09-1987
78. JC-361930 Nb Sub(Clk) Jainendra Kumar ARTC 29-04-1986 01-02-1989
79. JC-361928 Nb Sub(Clk) Abu Shama Ahmed DGAR 09-09-1986 01-02-1989
80. JC-361394 Nb Sub(Clk) Surender Rawat 6 AR 22-03-1983 01-10-1986
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81. JC-361344 Nb Sub(Clk) Jagat Singh Sah HQ DGAR 23-07-1985 02-08-1986
82. JC-361316 Nb Sub(Clk) Haridasan T HQ 22 SECT 29-06-1984 01-07-1986
83. C/362367 Nb Sub(Clk) Shree Kutan DGAR 22-07-1989 13-03-1994
84. JC-361350 Nb Sub(Clk) Bishwajit Goswami 27 SECT 25-11-1985 02-08-1986
85. JC-361866 Nb Sub(Clk) Surender Pal Singh 9 AR 15-05-1985 01-04-1988
86. C/362350 WO(Clk) Ajit Kumar Thakur 12 AR 01-12-1986 17-05-1994
87. JC-361377 Nb Sub(Clk) Ramjeet Sharma 12 AR 19-02-1983 01-10-1986
88. JC-361253 Sub R Buni Pani 26 AR 09-06-1981 01-04-1986
Maj(Clk)
89. JC-361109 Sub (Clk) Ramjee Prasad HQ DGAR 07-12-1981 02-08-1985
90. JC-361304 Nb Sub(Clk) Surendra Singh 27 SECT 28-08-1982 01-07-1986
91. JC-361118 Nb Sub(Clk) Sarat Konwar DGAR 12-05-1983 02-08-1985
92. JC-360957 Sub(Clk) Swadesh Boruah DGAR 02-01-1981 01-06-1983
93. JC-361341 Nb Sub(Clk) Jagdish Prasad 28 AR 10-07-1985 02-08-1986
94. JC-361106 Sub(Clk) Kamalasanan Pillai 32 AR 29-07-1981 02-08-1985
K
95. Ex-361875 WO (Clk) Jaram Singh Thakur 10 SECT 23-08-1985 01-04-1988
96. Ex-JC- Nb Sub(Clk) PC Joshi 33 AR 18-05-1985 01-07-1986
361331
97. JC-361467 Nb Sub(Clk) Ramjeet Singh 34 AR 18-07-1985 01-03-1987
It is specifically stated that the petitioners were initially wrongly declared as Lance Naik Writer on their remusteration instead of Warrant Officer. Be it stated that in all other Central Paramilitary Force, the entry grade in the clerical category, appointed in the rank, status and pay with a designation of Warrant Officer/ASI, but under DGAR Assam Rifles, the writ petitioners were wrongly placed in lower rank, status and pay on their remusteration i.e. in the rank of Lance Naik Writer instead of Warrant Officer. The entry grade of Warrant Officer in the clerical category is a post higher in rank & status and pay than the post of Lance Naik Writer."
2. The brief facts of both the cases in a nutshell are that:
"The writ petitioners have preferred this writ petition before this Hon'ble Court against the impugned order dated 29.08.2016, whereby benefit of 1 st ACP due and admissible to the writ petitioners has been declared 5 as 2nd ACP, treating the date of remustration as promotion of the writ petitioners as Warrant Officer (Erstwhile Laince Naik Writer) and also for denial of benefit of 2nd MACP and 3rd MACP as due and admissible to the individual writ petitioner in terms of the provision laid down in the statutory scheme of MACP issued vide O.M. dated 19.05.2009. All the petitioners are serving in the clerical trade under the Administrative Control of Director General of Assam Rifles. The case of the writ petitioners for grant of benefit of ACP & MACP scheme without treating the remustration as promotion is squarely covered by the decision rendered by this Hon'ble Court following the law laid down by the judgment and order dated 10.04.2013 passed in WP(C) SH 256/2012, and also vide judgment and order dtd. 20.11.2014 passed in WP(C). No. 61/2013, however the writ petitioners have been wrongly granted the benefit of 2nd ACP instead of 1st ACP, taking into consideration the date of remustration as Warrant Officer (Erstwhile Laince Naik Writer) as promotion, as such the impugned order dated 29.08.2016 is liable to be modified to the extend, declaring the 2nd ACP as 1st ACP to all the individual writ petitioner with a further direction upon the respondents to grant the benefit of 2nd & 3rd MACP as due and admissible to the individual writ petitioner on completion of 20 years and 30 years, strictly as per the terms and conditions laid down in the Govt. of India O.M. dated 19.05.2009.
Be it stated that all the writ petitioners have attained the eligibility for grant of 2nd MACP as per O.M. dated 19.05.2009, long back but the same has been denied without any valid reasons. It is also relevant to mention here that some of the writ petitioners also attained eligibility for grant of benefit of 3 rd MACP on completion of the period of 30 years as per O.M. dated 19.05.2009, but the same has not been extended till filing of this writ petition.
Hence this writ petition."
3. Since it is a covered case by WP(C). No. 61 of 2013, the relevant paragraph of the judgment is as follows:
"4. After hearing the submissions advanced by the learned counsel for the parties and after going through the judgment passed by the learned Single Judge dated 10.04.2013 in WP(C) No. (SH) 256 of 2012 6 specially Para 6, 7 and 8 of the said judgment which is reproduced herein below:
"6. Now the questions fall for consideration are:
(i) Whether re-musteration to Cipher Trade i.e. Havildar/Cipher is a promotion from the lower post like Rifleman/ORL and
(ii) Whether re-musteration to the Havildar/ Cipher which is the lowest rank in the trade of Cipher will be taken as a financial up-gradation for the purpose of ACP Scheme.
7. The above two questions are clearly answered by the manner of re-musteration of the petitioner to the Cipher Trade i.e. Havildar/Cipher. There was no promotion to the lowest post in the process for re-musteration of the trade to the Havildar/Cipher. Over and above, the posts of Rifleman/ORL/Naik are not the feeder posts for the post of Rifleman/Cipher. The Rifleman/ORL, who had rendered three years of services are eligible to appear exam for the purpose of changing their trade to Cipher Trade. Therefore, the changing of trade to Cipher Trade i.e. Havildar/Cipher is not a direct recruitment from the fresh.
8. The questions as to:
(i) whether changing of trade through re-
musteration to Cipher Trade i.e. Havildar/Cipher is a promotion or not and
(ii) whether changing of trade to the process of re-musteration to the Havildar/Cipher is a financial up-gradation under the ACP Scheme had already been considered and discussed by the Central Administrative Tribunal (for short "CAT") in Ernakulam Bench (Annexure-A4 to the writ petition) in Sentimon Mathew vs. (i) Union of India represented by the Secretary, Ministry of Home Affairs, North Block, New Delhi (ii) The Secretary, Department of Personnel and Training, Ministry of Personnel, Public Grievances and 7 Pensions, North Block, New Delhi and (iii) The Director General of Assam Rifles, Mabanideshalaya Assam Rifles, Shillong II, Assam State and make a clear cut findings that changing of trade to Cipher Trade i.e. Havildar/Cipher through re-musteration is not a promotion and also for the financial up-gradation, length of regular service is to be counted from the date of appointment to the post of Havildar/Cipher through re-musteration. Accordingly, 1st financial up-gradation is to be made on completion of 12 years by counting from the date of musteration to the trade i.e. Havildar/Cipher".
4. Later on, Mr. R.Debnath, learned CGC appeared and submits that both the cases are not covered by the previous judgment as quoted above.
5. Respondents are directed to comply the petitioner's case in the light of the judgment dated 20-11-2014 passed in WP(C). No. 61 of 2013 within 3(three) months.
6. Accordingly, by this common judgment, WP(C). No. 319 of 2017 and WP(C). No. 377 of 2017 are allowed and stands disposed of.
(S.R.Sen) JUDGE Meghalaya 17.09.2018 "S.Rynjah PS"
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