Jammu (J & K) – 181132 v. 1. 2. 3. The Union of India represented by the Secretary, Ministry of Home
Case Details
THE HIGH COURT OF MEGHALAYA WP(C) No.143/2012 ::::: Petitioner Ex – JC – 192277 Sub/GD, Shri. Uttam Chand, S/o Shri.Bhagmal Sharma, R/o Chumbian Pandita, P.O. Bana Chak, Tehsil: Bishana, District: Jammu (J & K) – 181132. VERSUS 1. 2. 3. The Union of India represented by the Secretary, Ministry of Home Affairs, Govt. of India, New Delhi. The Directorate General of Assam Rifles, Laitkor, P.O. Happy Valley, Shillong, Meghalaya-793011. The Section Officer-2, Directorate General of Assam Rifles, Laitkor, P.O. Happy Valley, Shillong, Meghalaya-793011. 4. Commandant, H.Q.: 19th Assam Rifles, C/o 99 A.P.O. :::: Respondents BEFORE THE HON’BLE MR JUSTICE T NANDAKUMAR SINGH For the Petitioners For the Respondents Date of hearing Date of Judgment & Order : : : :
Legal Reasoning
Mr. R Jha, Adv Mr. SC Shyam, Sr. Adv 13.11.2013 13.11.2013 Page 1 of 9 (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:7)(cid:3)(cid:9)(cid:11)(cid:12)(cid:3)(cid:6)(cid:12)(cid:13)(cid:11)(cid:12)(cid:10)(cid:14)(cid:15)(cid:9)(cid:9)(cid:9)(cid:9) (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:7)(cid:3)(cid:9)(cid:11)(cid:12)(cid:3)(cid:6)(cid:12)(cid:13)(cid:11)(cid:12)(cid:10)(cid:14)(cid:15) (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:7)(cid:3)(cid:9)(cid:11)(cid:12)(cid:3)(cid:6)(cid:12)(cid:13)(cid:11)(cid:12)(cid:10)(cid:14)(cid:15) (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:7)(cid:3)(cid:9)(cid:11)(cid:12)(cid:3)(cid:6)(cid:12)(cid:13)(cid:11)(cid:12)(cid:10)(cid:14)(cid:15) Heard Mr. R Jha, learned counsel appearing for the petitioner and Mr. SC Shyam, learned senior counsel for the respondents. 2. By this writ petition, the petitioner is assailing the impugned order dated 17.12.2008 passed by the respondent No.2 that the petitioner shall retire from service after expiry of three months from the date of service of notice to him. For easy reference, the impugned order dated 17.12.2013 (Annexure-I to the writ petition) is quoted hereunder:- “MAHANIDESHALAYA ASSAM RIFLES DIRECTORATE GEERAL ASSAM RIFLES: SHILLONG-11 REC(Adm-III)/Review/159 Dated 17 Dec.2008. WHEREAS the Director General Assam Rifles is of the opinion that In compliance of proceedings of the Review Committee for grant of extension of service beyond 30 yrs of service or 55 yrs of age whichever is earlier, the competent authority hereby gives notice to No.JC-192277L Sub/GD Uttam Chand of 19 Assam Rifles to retire from service from the date following the date of expiry of three months from the date of service of this notice to him. Sd/- (Onkar Chand) Maj SO-2 (Docu & Coord) for DGAR” 3. The petitioner was enrolled as a recruit General Duty in Assam Rifles on 09.02.1978 and after completion of training at Assam Rifles Training Centre, he was posted to 19th Assam Rifles as his parent unit. On 25.08.1985, the petitioner was promoted to the post of Lance Naik/G.D. on the basis of good performance in sports and thereafter, he was promoted to the post of Naik/G.D. on 01.10.1985. In the month of September, 1991 the petitioner was promoted to Havildar/G.D. In the year 1996-97, the Chief of Army Staff awarded a certificate Page 2 of 9 of commendations to the petitioner for his dedicated service and directed the said certificate to be incorporated in the service records of the petitioner. On 01.03.1999, the petitioner was promoted to the post of Naib Subedar/G.D and on 15.06.2004, the petitioner was promoted to the post of Subedar/G.D. 4. While the petitioner was serving as Subedar, he was furnished with the impugned order dated 17.12.2008 asking him to retire from service on the expiry of three months from the date of service of notice on him. On bare perusal of the impugned order dated 17.12.2008, it is clear that no reasons have been recorded or no reasons have been assigned for asking the petitioner to retire from service w.e.f. the date of expiry of three months from the date of service of notice to him. 5. The respondents filed joint affidavit-in-opposition. In para 4 of the affidavit-in-opposition, it is stated that as per Rule 48 of the CCS (Pension) Rule, service of the Assam Rifles personnel are required to be reviewed for further retention on attaining 55 years of age or on completion of 30 years in service whichever is earlier. The petitioner was due for service review during the month of February, 2008. After the received of the service record in respect of all the JCOs of Assam Rifles personnel, a duly constituted board i.e. service review board at HQ DGAR conducted review of the service records of the JCOs including the writ petitioner and the board found the petitioner in a low medical category P-2 (Permanent) and recommended further retention of service subject to up-gradation to medical category SHAPE-I. The impugned order was issued under Rule 48 of the CCS (Pension) Rules, 1972 and FR 56(j) in public interest giving three months notice as provided under the Rules. On perusal of the affidavit-in-opposition filed by the respondents, it appears that by the impugned order dated 17.12.2008 the petitioner had been asked to retire from service because of low medical category P-2 (Permanent). The respondents in their Page 3 of 9 affidavit-in-opposition also annexed the proceedings and recommendations of the Medical Board held on 18.01.2008 as Annexure-III to the affidavit-in- opposition filed by the respondents. Para 17 of the proceedings/report of the Medical Board states that the petitioner was suffering from primary hypertension and para 19 of the medical report reads as “medical category now recommended with duration – P-2 (P) w.e.f. 23.Sept.2007 (duration 2 years) and re- categorization board date and place of next board on 23 Sept. 2009 at 19th Assam Rifles”. 6. On bare perusal of the said medical report/proceedings of the Medical Board, it is crystal clear that the medical category of the petitioner was at P-2 (Permanent) for duration of two years w.e.f. 23.09.2007 and re- categorization board was to be held on 23.09.2009. It appears that next re- categorization board for the petitioner was to be on 23.09.2009 and in the interregnum, the petitioner had a chance to improve the medical category. It is an admitted case of both the parties that Assam Rifles followed the Rules called Assam Rifles Medical Examination (Categorization and Invalidation) Rules, 1988 for the purpose of discharging the Assam Rifles personnel on medical grounds. Under Rule 7(t) of the said Rules “SHAPE” means functional capacity and represents following factors for assessment of fitness of Cadre Officers:- (i) (ii) (iii) S H A (iv) P (v) E - - - - - Psychological Hearing Appendages Physical Capacity Eye Sight. Functional capacity of an officer under each factor shall be denoted by numerals 1 to 4 against each letter, indicating declining Page 4 of 9 functional efficiency. The numerals shall be written next to the code letter, except that, where a cadre officer is Grade-I in all the factors, his category shall be denoted by writing SHAPE-I instead of writing S1H1A1P1E1 General evaluation of these numerals are:- 1. Fit for all duties. 2. Fit for all duties by may have limitation as to type of duties and areas of employability depending on whether the duties involve are severe stress or demand acuity of hearing/vision of both eyes and ears. 3. Excepting ‘S’ factor, fit for routine or sendentary duties but may have limitations of employability at high altitude (above 2,700 meters, extreme cold areas/hilly terrain and for long assignments. 4. Permanently unfit for duties in the Force. Elaboration of factors/grade under SHAPE classification are set in Appendix I”. 7. Under the said Rules, medical category i.e. P-2 means “fit for all duties but may have limitation as to type of duties and areas of employability depending on whether the duties involve are severe stress or demand acuity of hearing/vision of both eyes and ears. It is nobody’s case that the petitioner who was holding the post of Subedar had to discharge the duties which involves severe, stress and strain and very active duties. In this regard the petitioner filed the rejoinder affidavit wherein it is stated that the post of Subedar is the second highest post in the General Duty trade and his work as a Subedar or Company 2 In-charge is an administrative post and guiding the subordinate staff. The respondents in their affidavit-in-opposition also admitted that the criteria, procedure and guidelines issued by the Govt. of India for the purpose of deciding the retention of the Govt. employees beyond 50/55 years or completion of 30 Page 5 of 9 years of service are also followed by the Assam Rifles. The copy of the said criteria prescribed by the Govt. of India is also annexed as Annexure-R/III to the affidavit-in-opposition filed by the respondents. For easy reference, the said criteria, procedure and guidelines issued by the Govt. of India is quoted hereunder:- “II. Criteria, Procedure and Guidelines In order to ensure that the powers vested in the appropriate authority are exercised fairly and impartially and not arbitrarily, it has been decided to lay down the procedures and guidelines for reviewing the cases of Government employees covered under the various aforesaid rules as mentioned below – (1) The case of Government servant covered under FR 56 (j) or Rule 48 of the CCS (Pension) Rules, 1972, or CSR 459 (h) should be reviewed six months before they attain the age of 50/55 years or complete 30 years, service/30 years of qualifying service, whichever occurs earlier. (2) each be Committees Ministry/Department/Office as shown in Annexure-II to which all such cases shall be referred for recommendation as to whether the officer concerned should be retired from service in the public interest or whether he should be retained in service. (3) The criteria to be followed by the Committee in making their recommendations would be as follows:- constituted shall in (a) Government employees whose integrity is doubtful, will be retired. (b) Government employees, who are found to be ineffective will also be retired. The basic consideration in identifying such employee should be the fitness/competence of the employee to continue in the post which he is holding. (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 years’ period, his service in the highest post, has been found satisfactory. (d) No employee should ordinarily be retired on ground of ineffectiveness, if, in any event, he would be retiring on superannuation within a period of one year from the date of consideration of his case.” Page 6 of 9 8. There is not even a whisper in the affidavit-in-opposition filed by the respondents that the integrity of the petitioner is doubtful, and found ineffectiveness. The Criteria No.(c) issued by the Govt. of India is that “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 for his service during the preceding 5 years period or where he has been promoted to a higher post during that 5 years period, his service in the highest post, has been found satisfactory.” In the present case, it is an admitted fact that the petitioner was promoted to the post of Subedar G.D. on 15.06.2004. Therefore, 5 years was not completed from the date of his last promotion at the time of issuing the impugned order dated 17.12.2008 for retiring the petitioner from service. The impugned order i.e. 17.12.2008 is not a speaking order inasmuch as, no reasons had been mentioned for retiring the petitioner from service. 9. Mr. SC Shyam, learned senior counsel appearing for the respondents strenuously contended that the reasons for retiring the petitioner from service under the impugned order dated 17.12.2008 had been mentioned in the Affidavit-in-opposition filed by the respondents. It is fairly settled law that the validity or otherwise of an order passed by the authority is to be decided on the record or reasons mentioned in the order itself. Otherwise an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. The order passed by a statutory authority, must be supported either on the reasons stated therein or the grounds available therefor in the record. Regarding this point, it would be sufficed to refer to the decision of the Apex Court in Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chenai & Ors i.e. Appeal (Civil) 2254 of 2005. The relevant portion of the decision reads as follows:- Page 7 of 9 “……………..Submission of Mr. Chaudhary to the effect that the circumstances pointed out in the counter-affidavit filed in WPMP No. 27633 of 2003 should be held to be substitute for the reasons which the State must be held to have arrived at a decision, cannot be countenanced. When an order is passed by statutory authority, the same must be supported either on the reasons stated therein or the grounds available therefore in the record. A statutory authority cannot be permitted to support its order relying on or on the basis of the statements made in the affidavit de’hors the order or for that matter de’hors the records. In Commissioner of Police, Bombay vs. Gordhandas Bhanji (AIR 1952 SC 16), it is stated: “ We are clear that public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind; or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself’. Yet again in Mohinder Singh Gill (supra), this Court observed: “The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw the attention to the observations of Bose, J. in Gordhandas Bhanji.” Referring to Gordhandas Bhanji (supra), it was further observed : “Orders are not like old wine becoming better as they grow older”. [The said decisions have been in Bahadursinh Lakhubhai Vs. Jagdishbhai M. Kamalia and Others [(2004) 2 SCC 65] followed by this Court Although assignment of reasons is the part of principles of natural justice, necessity thereof be taken away by a statute either expressly or by necessary implication. A declaration contained in a notification issued under Section 6 of the Act need not contain any reason but such a notification must precede the decision of the appropriate Government. When a decision is required to be taken after giving an opportunity of hearing to a person who may suffer civil or evil consequences by reason thereof, the same would mean an effective hearing. The Act is an expropriatory legislation. This Court in State of Madhya Pradesh and Ors. Vs. Vishnu Prasad Sharma and Ors. [1966 (3) SCR 557] observed that in such a case the provisions of the statute should be strictly construed as it deprives a person of his land without consent. [See also Khub chand and Ors. Vs. State of Rajasthan and Ors., 1967 (1) SCR 120 and Collector of Page 8 of 9 Central Excise, Ahmedabad vs. Orient Fabrics (P) Ltd., (2004) 1 SCC 597].” 10. For the foregoing reasons, this Court has no alternative but to
Decision
interfere with the impugned order dated 17.12.2008; in the result, the impugned order dated 17.12.2008 is hereby set aside. The petitioner should be reinstated in service within a period of three months from the date of receipt of a certified copy of this judgment and order. 11. Regarding the arrear pay and allowance of the petitioner, it is left to the authority to decide the quantum of arrear pay and allowances but it should not be less than 50% of the arrear pay and allowance. 12. With the above observations, this writ petition is allowed. (cid:1)(cid:2)(cid:3)(cid:4) JUDGE Page 9 of 9