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2016 Supreme(Gau) 665
GAUHATI HIGH COURT
Ujjal Bhuyan, J.
Sunil Kumar Shahi - Appellant
Versus
Union of India & 3 Ors - Respondent
WP(C) Nos.1250, 1573, 2740, 7680, 3029, 4516, 2400, 3030, 3031, 3097, 7702 and 7077 of 2015 and 48, 412, 2021, 2019, 2020, 2018, 1524, 1567 of 2016
Decided On : 15-06-2016
For the Respondents:Mr. M. Phukan, Mrs. A. Gayan, Ms. B. Sarma, Mr. S.S. Roy, Mr. K.K. Parasar, Ms. R. Devi, Ms. A. Das and Mr. S.C. Keyal, Advocates.
Headnote:
Assam Rifles Act, 2006 - Section 165 - Matter relates to premature retirement of personnel belonging to the Assam Rifles - Risen through the ranks and at the relevant point of time was serving as Havildar - Petitioner was permitted to retire from service on retiring pension - Learned counsel for the petitioner submits that the present age of the petitioner is about years and he has about years of service left in the normal course - He did not seek permission of the higher authority to go on premature retirement - Impugned order is untenable and unjust - Held, Expression "permitted to retire from service" appearing in the impugned order has been dealt with while passing the interim which has been extracted in the initial stage of this order - Therefore, it may not be necessary for further dilation on this aspect - All the decisions cited at the bar by the learned Central Govt. Counsel have been perused and on due consideration, Court is of the view that while there can be no dispute to the ratio laid down in those decisions, however, those decisions would not be attracted to the facts and circumstances of the present bunch of cases - Decisions rendered by the High Court have also been carefully perused, but with utmost respect, having regard to the discussions made above which were not canvassed before the High Court, this Court is unable to accept the view taken in those decisions - Petition Allowed.
This order will dispose of the above bunch of cases.
2. Subject matter of all the writ petitions being identical, those were clubbed and heard together.
3. Heard Mr. R Mazumdar, Mr. TN Srinivasan, Mr. B Pathak and Mrs. S Bora, learned counsel for the petitioners and a host of learned Central Govt. Counsel, namely, Mr. M Phukan, Mrs. A Gayan, Ms. B Sarma, Mr. SS Roy, Mr. KK Parasar, Ms. R Devi and Ms. A Das. In course of the hearing, Mr. SC Keyal, learned Assistant Solicitor General had also made submissions.
4. Matter relates to premature retirement of personnel belonging to the Assam Rifles.
5. For the sake of convenience, pleadings made in WP(C) No.1250/2015 are being referred to. In fact, Mr. SC Keyal, learned Assistant Solicitor General had submitted on 06.05.2016, as recorded in the order sheet of WP(C) No.1250/2015, that counter-affidavit filed by the respondents in WP(C) No.1250/2015 may be treated as the lead affidavit covering all the cases.
6. Petitioner in WP(C) No.1250/2015 (referred to as the petitioner hereinafter) had joined service in the Assam Rifles as Rifleman/Nursing Assistant on 04.03.1985. In the course of his service, he had risen through the ranks and at the relevant point of time was serving as Havildar. By the impugned order dated 15.10.2014, issued by the Commandant, 12th Assam Rifles, petitioner was permitted to retire from service on retiring pension w.e.f. 31.03.2015 under provisions of Rule 56 of the Fundamental Rules (FR)/Rule 48(1) of the Central Civil Services (Pension) Rules, 1972 (Pension Rules).
7. This order came to be challenged by the petitioner before this Court by filing WP(C) No.1250/2015.
8. Notice was issued on 09.03.2015 and thereafter, an interim order was passed on 26.03.2015 staying the impugned order dated 15.10.2014. Since a somewhat detailed order was passed, relevant portion of the order dated 26.03.2015 is extracted hereunder:-
"2. Notice in this case was issued on 09.03.2015 and the case is taken up today for consideration of the interim prayer.
3. Petitioner is a Havildar in the Assam Rifles. He is aggrieved by the impugned order dated 15.10.2014, issued by the Commandant, 12 Assam Rifles, permitting him to retire from service on retiring pension with effect from 31.03.2015.
4. Learned counsel for the petitioner submits that the present age of the petitioner is about 49 years and he has about 11 years of service left in the normal course. He did not seek permission of the higher authority to go on premature retirement. Impugned order is untenable and unjust.
5. The impugned order dated 15.10.2014, reads as under:
"Under the provision of Rule 56 of FR/Rule 48 (1) of CCS (Pension) Rules, 1972 No.M/370704A Rank Hav/NA Name Sunil Kumar Shahi of this unit is hereby permitted to retire from service on retiring pension with effect from 31st March, 2015 (AN) and SOS/SORS wef 01st April, 2015 (FN)"
6. From a perusal of the impugned order it is seen that it has been issued under the provisions of FR 56/Rule 48(1) of the CCS (Pension) Rules, 1972, permitting the petitioner to retire from service.
7. FR 56 deals with retirement of Government servant. FR 56 (j) has some relevance. It says that if the appropriate authority is of the opinion that it is in the public interest, to retire any Government servant he has the absolute right to do so either by giving 3 (three) months notice or by paying salary of 3 (three) months in lieu of such notice. If the Government servant does not belong to Grade-A or Grade-B service, he can be retired under this provision if he has attained the age of 55 years. It is submitted at the bar that the post of Havildar is a Grade-C post. Therefore, under this provision, the exercise of power has to be in the public interest and the concerned Government servant in Grade-C must have attained the age of 55 years. Admittedly, petitioner has not attained the age of 55 years. The impugned order also does not disclose any element of public interest.
8. The use o
