The main legal point established in the judgment is that the Commandant of the Assam Rifles is not the competent authority for dismissing the service of the personnel under Section 11(2) of the Assam Rifles Act, 2006.

Judgment

1. By this writ petition, the petitioner is assailing the impugned order dated 14.09.2009 passed by the respondent No. 5 Commandant 35th Assam Rifles C/o 99 APO for dismissing the petitioner from service.

2. Heard Mr. R. Jha, learned counsel for the petitioner and Mr. S.C. Shyam, learned senior counsel assisted by Mr. B. Deb, learned counsel appearing for the respondents.

3. At the very outset of the hearing, Mr. R. Jha, learned counsel for the petitioner contended that the present writ petition is squarely covered by the judgment and order of the Division Bench of the erstwhile Gauhati High Court (Hon'ble Mr. Justice T.N.K. Singh and Hon'ble Mr. Justice H. Baruah) dated 29.08.2011 passed in WA No. (SH)33/2011 wherein and where-under, the Division Bench of the erstwhile Gauhati High Court upheld the judgment and order of the learned Single Judge dated 20.07.2011 passed in WP(C) No. (SH)148/2010 that the Commandant of the Assam Rifles is not the competent authority under Section 11(2) of the Assam Rifles Act, 2006 for dismissing the service of the Rifleman as well as Havildar of the Assam Rifles and this Court also in the judgment and order of the Division Bench dated 30.07.2014 passed in WA No. 45/2014, is of the same view that the Commandant of the Assam Rifles is not the competent authority under Section 11 of the Assam Rifles Act, 2006 for dismissing the service of the Rifleman and Havildar.

4. The fact leading to the filing of the present writ petition, sufficient for deciding the matter in issue, as to whether the present writ petition is squarely covered by the earlier judgments and orders of this Court as well as the erstwhile Gauhati High Court, is briefly noted.

5. The petitioner joined the Assam Rifles on 31.12.1992 as Rifleman Clerk and after completion of the training, he was posted to various units. On considering the hard work and meritorious services of the petitioner, he was promoted to the post of Havildar Clerk in June, 2011. When the petitioner was posted at 35th Assam Rifle under the command of the respondent No. 5, he had taken 15 days causal leave w.e.f. 01.09.2004 to 17.09.2004 because of personal reason. Later on, the petitioner also had been called on 04.08.2009 and directed to sign one prepared paper by the Commanding Officer. On 14.09.2009, the petitioner was called by the Commanding officer and handed over a copy of charge sheet. The petitioner had been put under suspension by invoking the provisions of the Assam Rifles Act, 1941 on 04.08.2009. After, the summary court martial proceedings for the charge leveled against the petitioner, by the impugned order dated 14.09.2009 issued by the respondent No. 5, the petitioner had been dismissed from service. The main ground for assailing the dismissal order dated 14.09.2009 in the present writ petition is that the respondent No. 5 is not the competent authority for issuing the impugned order for dismissal from service under Section 11 of the Assam Rifles Act, 2006.

6. It is the case of the petitioner that under the provisions of the Assam Rifles Act, 1941, the personnel of the Assam Rifles were subjected to the Army Act, 1950, with regard to penal sections vide Notification No. SRO 318 dated 06.12.1962. The relevant portions of the said SRO 318 dated 06.12.1962 (Annexure-III to the writ petition) is quoted hereunder:-

"Copy of Government of India, Ministry of Defence Gazette

Notification No. SRO 318 dated 6th Dec 62

as amended up-to-date.

"In exercise of the powers conferred by sub-section (II) of Section 4 of the Army Act, 1950 (46 of 1959) and in suppression of the notification of the Government of India, in the late External Affairs Department No. 93-X dated 25th Jun 42, as subsequently amended, the Central Government hereby:-

(i) applies to every units of the Assam Rifles, being a force raised and maintained in India under the auth the central Government, all the provisions of the said Act, except those specified in part 'A' of the