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IN THE HIGH COURT OF MEGHALAYA
T. NANDAKUMAR SINGH, J.
JC – 3101022 H Nb (Sub) Banbari Lal - Petitioner
Vs
The Union of India - Respondent
WP (C)No.32/2014
Decided On : 04.03.2015
Seniority - Challenge to re-fixation of seniority position - Recruitment Rules, 2000, Office Memorandum dated 08.09.1998 - The court discussed the settled inter-se seniority list of Naib Subedars (GD) working at 31 Assam Rifles, the Recruitment Rules, 2000, and the Office Memorandum dated 08.09.1998. The court highlighted the interpretation of the Recruitment Rules, the nature of the Office Memorandum, and the settled legal principle that seniority once fixed and followed for a reasonable period should not be unsettled.
Fact of the Case:
The petitioner challenged the re-fixation of his seniority position in the inter-se seniority list of Naib Subedars (GD) working at 31 Assam Rifles. The petitioner was initially appointed as Rifleman and was subsequently promoted to the rank of Naib Subedar (GD). The dispute arose when the petitioner's seniority was re-fixed below another Naib Subedar (GD) due to an alleged failure to meet the qualifying service requirement for promotion.
Finding of the Court:
The court quashed and set aside the impugned orders re-fixing the petitioner's seniority position, emphasizing that the settled seniority list should not be unsettled after a lapse of time. The court held that the Office Memorandum dated 08.09.1998 should be interpreted as directory, not mandatory, and should be observed to achieve its purpose.
Issues: The issues revolved around the re-fixation of the petitioner's seniority position based on the alleged failure to meet the qualifying service requirement for promotion, the interpretation of the Recruitment Rules, 2000, and the nature of the Office Memorandum dated 08.09.1998.
Ratio Decidendi: The court emphasized the settled legal principle that seniority once fixed and followed for a reasonable period should not be unsettled. It also highlighted the interpretation of the Recruitment Rules, the nature of the Office Memorandum, and the principle that an instruction specifying a time for completion without penal consequences should be treated as directory.
Final Decision: The writ petition was allowed, and the impugned orders re-fixing the petitioner's seniority position were quashed and set aside. The judgment was specific to the petitioner's case and should not be taken as a precedent for non-compliance of the Office Memorandum dated 08.09.1998 in any other case.
By this writ petition, the petitioner is challenging the impugned order dated 05.07.2013 and impugned letter dated 11.09.2013 for re-fixation of his seniority position in the inter-se seniority list of Naib Subedars (GD) working at 31 Assam Rifles disturbing the inter-se seniority list which had been settled as early as 2005 and remained undisturbed for a considerable number of years by placing the name of the petitioner, who was promoted on 15.05.2005 to the post of Naib Subedar (GD) below one Naib Subedar (GD) S.D. Joshi, who was promoted only on 01.12.2005 to the post of Naib Subedar (GD).
2. Heard Mr. S Nath, learned counsel for the petitioner and Mr. SC Shyam, learned senior counsel assisted by Mr. B Deb, learned counsel appearing for the respondents No.1-3. None appears for the respondent No.4.
3. The concise fact of the respective case of the party sufficient for deciding the matter in issue in the present writ petition is noted. The petitioner was initially appointed as Rifleman (Cook/WC) on 24.03.1987 and he was remustered from Rifleman (Cook/WC) to Rifleman (GD) on 11.08.1988. The petitioner was promoted to the rank of Lance Naik (GD) on 04.12.1989. Considering his good service, the petitioner was promoted to the rank of Nk (GD) on 27.10.1990 and further promoted to the rank of Havildar (GD) on 10.10.1997. In the Assam Rifles, promotion from the rank of Havildar (GD) to the Naib Subedar (GD) is made on the basis of selection through Departmental Promotion Committee (for short ‘DPC’). The DPC and promotion is made Unit wise. When the petitioner was working at 31 Assam Rifles in the year 2005, there was a vacancy of Naib Subedar (GD) occurred due to promotion of one Shri. Surendra Prasad and the petitioner being the senior most Havildar (GD) at that point of time in the Unit was recommended by the DPC for promotion against the vacant post of Naib Subedar (GD). The Commandant, 31 Assam Rifles vide letter No. 2301/31/AR/2005/1355 dated 20.03.2005 forwarded the recommendation of the DPC to HQ 5 Sect. Assam Rifles and same was further forwarded to the DGAR, Shillong vide letter bearing No. 21016/31 AR/DPC/A-2005/1990 dated 22.05.2005. Vide order No. I.19012/31/2004/Adm-I (A) dated 31.05.2005 (translated from Hindi), promoted the petitioner to the rank of Naib Subedar (GD) against the vacancy due to promotion of JC – 3100218 Naib Subedar (GD) Surendra Prasad w.e.f. 15.05.2005. On the day of promotion of the petitioner to the post of Naib Subedar (GD), the petitioner had completed his 18 years 1 month 23 days of service and also he had already completed more than 18 years on 15.05.2005 from this date, the promotion of the petitioner to the post of Naib Subedar (GD) became effective. The next promotional avenue of the petitioner is to the post of Subedar (GD). The 31 Assam Rifles vide Signal No. A 1944 dated 15.01.2011 forwarded the service record of the petitioner to HQ 25 Sector/ARTC & S for DPC and the DPC proceeding had been forwarded to the HQ 7 Sector vide 31 AR letter No. 31 AR/A/13/1415 dated 20.07.2013 for promotion of the petitioner to the rank of Subedar (GD). The inter-se seniority list of the Naib Subedars working at 31 Assam Rifles, which was fixed in the year 2005 and remained undisturbed for a number of years is as follows:-
“1. Nb Sub (GD) Rupa Chandra
2. Nb Sub (GD) L.P. Phukan
3. Nb Sub (GD) Banbari Lal (Petitioner) Promoted on 15.05.2005
4. Nb Sub (GD) Anand Singh Bisth Promoted on 01.07.2005
5. Nb Sub (GD) Sohan Singh Promoted on 01.08.2005
6. Nb Sub (GD) Om Prakash Promoted on 01.11.2005
7. Nb Sub (GD) S D Joshi (respondent No.4) Promoted on 01.12.2005”
4. Most surprisingly after 8 years of promotion of the petitioner to the rank of Naib Subedar (GD), the Captain SO3 (Coord) for Brigadier (Pers), Directorate General Assam Rifles vide impugned order bearing No. I.19012/31/2013/Adm-I (A)/561 dated 05.07.2013, had informed that the petitioner is assumed to have been promoted w.e.f. 01.05.2006 and his senio
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