The main legal point established is that the dismissal order should be in accordance with the applicable Act at the time of its issuance, and the disciplinary entries in the service book must comply with the relevant rules and laws.

ORDER :

S.R. Sen, J.

1. The instant writ petition is directed against the Impugned Order dated 13th May, 2009 issued by the Commandant 3rd Battalion, Assam Rifles, whereby, the petitioner was dismissed from service. The petitioner's case in a nutshell is that:

This Writ petition has been filed by the petitioner under Article 226 of the Constitution of India for issuance of a Writ of Certiorari and mandamus for setting aside and quashing the Impugned Order dated 13th May, 2009 passed by the Commanding Officer in exercise of power vested under the Assam Rifles Act, 1941. The grounds on which the Petitioner challenged the Impugned Order is that the commanding officer had acted upon the power which is not vested in it and passed the impugned order of dismissal without any authority of law. The petitioner was held to be subjected to the Assam Rifles Act, 1941 in spite of the fact that after the commencement of the Assam Rifles Act, 2006, the Assam Rifles Act of 1941 is repealed.

The Petitioner also challenge the said impugned order of his dismissal on the other grounds that had been mentioned by the Petitioner in Para 8 of the Writ Petition. This instant Writ Petition has been filed challenging the said Impugned Order dated 13th May, 2009, with the prayer to set aside and quashed the said Impugned Order which is arbitrary, illegal, unconstitutional, unwarranted inasmuch as the same is not tenable in the eyes of law and other service Rules and Laws made therein and hence the writ petition of the Petitioner challenging the illegal acts and deeds of the Respondent Authority in spite of the enactment and commencement of the Assam Rifles Act, 2006 and Assam Rifles Rules 2008.

The instant case is covered with the Judgment and Order dated 20th July, 2011 passed in Writ Petition No. 148 (SH) of 2010 which was upheld by the Hon'ble Division Bench of the High Court vide Order dated 29th August, 2011 passed in Writ Appeal No. 33 (SH) of 2011 as well as by the Hon'ble Apex Court as such the impugned order dated 13th May, 2009 is liable to be set aside and quashed and same relief may please be granted to the petitioner.

2. Being aggrieved by the Impugned Order referred above, the petitioner approached this Court by way of this instant writ petition.

3. The learned counsel, Mr. R. Jha appearing for and on behalf of the petitioner submits that, the Impugned dismissal order dated 13th May, 2009 is in contrary to the provision of section 11 of the Assam Rifles Act, 2006. The learned counsel further contended that, the Assam Rifles Act, 2006 came into force vide Gazette Notification dated 20.02.2009. Therefore, the said Assam Rifles Act came into force with effect from 20.02.2009. And the instant dismissal order in question has been issued on 13th May, 2009; hence the instant order in question is contrary to the Assam Rifles Act, 2006 which was in force at the time and day when Impugned Order was passed. The learned counsel also further argued that, as per Section 11 of the Assam Rifles Act, 2006, it is the Deputy Inspector-General of the Assam Rifles who has been authorized to dismiss or remove from service a person under his command not by a Commandant. Hence, the impugned order is not in conformity with the Assam Rifles Act, 2006, so it needs to be set aside. The learned counsel further contended that the 5(five) Nos. of Red Ink entries in the service book of the petitioner was also not in conformity with the Rules 22 of the Army Rules, 1954. So, the 5(five) Nos. of Red Ink entries also may be quashed.

4. On the other hand, the learned Sr. counsel, Mr. S.C. Shyam appearing for and on behalf of the respondents submits that, it is a fact that the impugned Order dated 13th May, 2009 was passed, the Assam Rifles Act, 2006 was already in force. However, the learned Sr. counsel did not agree that, the 5(five) Nos. of Red Ink entries were not in conformity with the mandatory provision of Rule 22 of the Army Rules, 1954. The learned counsel also contended that