WA 43(SH)/2010 - Gauhati High Court

IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM; NAGALAND; MEGHALAYA;
MANIPUR; TRIPURA; MIZORAM;AND ARUNACHAL PRADESH)
WRIT APPEAL NO.(SH) 43 OF 2010
Sri M.N.Bhardwaj,
Assistant Commandant(Retired),
Son of (Late) Parmanand Bhardwaj,
Resident of Laxmipur Bania,
P.O.Ramnagar(Chilkia),
District: Nanital,Uttaranchal-244715
-Vs.-
1. Union of India,
Represented by the Secretary,
Ministry of Home Affairs,
Government of India, New Delhi
2. The Director General of Assam Rifle,
Laitumkhrah, Shillong,
Meghalaya-793011.
3. The Commandant, Ist Assam Rifle,
C/O 99 A.P.O.
…. Appellant/Writ Petitioner
BEFORE
HON’BLE MR. JUSTICE T.VAIPHEI
HON’BLE MR. JUSTICE S.C.DAS
For the petitioner : Mr.B.Bhattacharjee,
Mr.S.Chaykija,
Mr.S.Lenthang
Ms.B.Das
Advocates
For the respondents : Mr.S.C.Shyam, CGC
Date of hearing : 20.10.2011
Date of judgment : 4.11.2011
…..Respondents

2
JUDGMENT & ORDER
This appeal is directed against the judgment and order
dated 29.7.2010 passed by learned Single Judge in Writ
Petition (C) No. 126(SH)/2007 filed by the appellant as
petitioner before this Court.
The appellant in the writ petition had prayed for
following relief amongst others:-
(i) a writ in the nature of certiorari and mendacious
shall not be issued for calling the records pertaining to
medical category and compulsory retirement of the
petitioner and for setting aside and quashing the
impugned Order dated Ist July, 2002 and 18 th November
,2003.
(ii) a writ in the nature of Mandamus shall not issued
after quashing the impugned Order of dismissal,
directing the respondents reinstate the petitioner in
service with all consequential benefits including back
wages.
(iii) to direct the respondents to declare the petitioner in
SHAPE-I category and be considered for promotion as
Deputy Commandant from the date of his batch mates
had been promoted in the year 1998 with grant of all
consequential benefits.
2. Learned Single Judge dismissed the writ petition
observing thus:-
“for the forgoing reason and having considered the basis
on which the decision was taken to prematurely retire the
petitioner from service and the decision of the Supreme Court

3
in Umedbhai M. Patel(supra), I find no merit in this writ
petition and the same is hereby dismissed.”
3. Being aggrieved with the judgment and order passed by
learned Single Judge, the appellant preferred this appeal
assailing the judgment dated 29.7.2010 on two fold arguments
--
(i) That the learned Single Judge did not at all consider the
case of the appellant on his prayer for promotion and recorded
no finding at all.
(ii) That the decision holding premature retirement of
appellant as justified was bad in law in fact.
4. We have heard learned counsel Mr.B.Bhattacharjee for
the appellant and learned CGC, Mr.S.C.Shyam for the
respondents .
5. Let us see whether the issue of premature retirement of
the appellant taken by the respondents and upheld by learned
Single Judge, is justified or not.
The appellant has been put to compulsory retirement as
per provision prescribed in FR 56 (J). For ready reference the
provision is reproduced as under:-
“(j) Notwithstanding anything contained in this
rule, the Appropriate Authority shall, if it is of the
opinion that it is in the public interest so to do ,
have the absolute right to retire any Government
servant by giving him notice of not less than three
months in writing or three months‟ pay and
allowances in lieu of such notice:
(i) If he is, in Group „A‟ or Group „B‟ service or
post in a substantive, quasi-permanent or
temporary capacity and had entered
Government service before attaining the age of

4
35 years, after he has attained the age of 50
years;
(ii) in any other case after he has attained the
age of fifty-five years;”
The impugned order dated 1.7.2002 putting the
appellant in compulsory retirement goes as under :
“ MAHANIDESHALAYA ASSAM RIFLES
DIRECTORATE GENERAL ASSAM RIFLES:: SHILLONG-
11
ORDER
A/V-M/258-02 Dated Shillong, the 01 Jul,2002
1. Whereas the President is of the opinion that it
in the public interest to do so.
2. NOW THEREFORE, in exercise of the powers
conferred by clause(j) of Rule 56 of the Fundamental
Rules, the President hereby gives notice to Mr MN
Bhardwaj(AR-175), Assistant Commandant, 1 Assam
Rifles, that he having already attained the age of
fifty years as on 5 th Jan 02, shall retire from
service with effect from the date of receipt of this
order with three months full pay and allowance.
3. The President is further pleased to give an
opportunity to Mr MN Bhardwaj (AR-175), Assistant
Commandant, 1 Assam Rifles to submit
representation, if any, within three weeks, from the
date of receipt of this order.
Authority:- Government of India, Ministry of
Home Affairs letter No. A- 19011/1/2002-Pers-III dt.
11 Jun 02.
By order and in the name of the President.
Sd/-
(GK Duggal)
Lt.Gen
Director General Assam Rifles
Memo No. A/V-M/258-02/58 Dated Shillong,the
01/Jul 02
Copy forwarded to:-
1.Government of India, Ministry of Home
Affairs,(Pers-III),New Delhi-110001
2. Pay and Accounts Office (Assam
Rifles),Laitumkhrah, Shillong-793001
3. HQ Mizoram range, Assam Rifles, C/o 99 APO
4. Mr.MN Bhardwaj(AR-175), Assistant
Commandant,1 Assam Rifles, C/o 99

INTERNAL
6. MS Branch
7. Record Branch(NE)
8. ARGIS Dte
9. D&V Branch
10.Legal Branch
11.Office Copy
5
Sd/-Illegible
(BK Chowdhury)
Colonel
Deputy Director(A)
For Director General Assam Rifles”
6. There is no challenge that FR 56 (J) is not applicable
in the case of the appellant. Only contention of the appellant
is that he was wrongly considered as „Low Medical Category‟
and other allegations as made in the para-19 of the affidavit-
in-opposition regarding various mis-conduct on the part of the
appellant, has not been substantiated by any documentary
proof .
It is settled law that the Court should be slow in
interfering in the decision of domestic tribunal in disciplinary
matter and that it should not ordinarily sit as an appellate
authority and scrutiny the evidence of the case. If there is
some material on record, in support of taking a decision by
the Disciplinary Authority, it should not be disturbed. In this
case, the appellate authority considered the entire service
record of the appellant and arrived at a decision to put him in
compulsory retirement, in public interest as his continuous
utility in the service was found to be not required. Law
prescribes the right of appropriate authority to take such
decision as absolute. The Court will interfere only in the event,
it is shown that the decision is perverse and not supported
by any material. In this case in hand, there is enough
materials that the appellant was in low medical category and
sometimes he was found to be in S1H1A1P1E1. Referring to

6
Annexure-H to the writ petition, the learned Advocate,
Mr.Bhattacharjee has argued that the appellant was upgraded
to medical category SHAPE-1 w.e.f.4 th December, 2001 and
therefore the decision of the respondents in placing the
appellant in compulsory retirement on that ground was
uncalled for. The learned CGC has submitted that the
appellant petitioner was categorised as low medical category
from the year,1994 and therefore, the decision taken by the
appropriate authority was justified. The documents so
annexed shows that the appellant petitioner was categorised
thus:-
“P3(T-24) with effect from 26.09.1994
P2(T-24) with effect from 15.04.1995
P2(T-24) with effect from 16.10.1995
P2(Permanent ) with effect from 16.04.1996
P2(T-24) with effect from 16.04.1998”
In view of above categorisation, learned CGC has
submitted that the appellant petitioner was never wrongly
categorised with malafide intention and that the other
materials which is considered by appropriate authority as
detailed in para-19 of the affidavit-in-opposition were also
rightly considered for which interference in the decision of the
appropriate authority is not called for by this Court.
Learned Single Judge while considering the rival
contention on the issue, in para-7,8 and 9 of judgment and
order dated 29.7.2010 held as thus:-
“ 7. Having regard to the rival contention of the
learned counsels and also upon consideration of the
pleadings as well as the original ACR records
produced before the Court, it appears that adverse
remarks on the integrity of the petitioner have been
recorded by his superiors and such remarks have

7
also been made known to the petitioner as can be
gathered from the delinquent‟s signature on the
relevant portion of the ACR.
8. It further appears from the averments made in
the counter affidavit that relevant factors were
taken into account by the Committee while deciding
to prematurely retire the petitioner from service by
exercise of power under FR 56 (J) and therefore the
impugned decision in my view is based on
acceptable grounds.
9. In so far as the allegation of malafide made by
the petitioner, no specific averments have been
made nor any material has been adduced in support
of such allegation. The persons/ officers who have
allegedly exercised power malafide have also not
been named by the pettionner. Therefore such bald
and unsubstantiated allegation of malafide can
have no place in considering the present case.”
On a careful consideration of the facts and
circumstances and the legal position explained above, it
cannot be said that the decision taken by the disciplinary
authority is based on no material and therefore does not
deserve interference.
7. The appellant petitioner in view of order dated 1.7.2002
submitted his representation against the order of compulsory
retirement and that representation was disposed of by order
dated 18.11.2003(Annexure K to the writ petition) which is
also challenged and the order so passed by the appropriate
authority is reproduced as under:
“ REGISTERED
Mahanideshalaya Assam Rifles
Directorate General Assam Rifles
Shillong-793011
I. 39013/1/2003-MS 18 Nov.2003
Asstt. Comdt. MN Bhardwaj(Retd)
Vill- Laxmipour Bania,P.O Ramnagar(Chilkiya)
Dist.Nainital 244715, Uttaranchal
REPRESENTATION AGAINST THE ORDER OF
RETIREMENT FROM SERVICE

8
1. please refer to your letter No PERS/MNB/AR-
175/03/09 dated 03 rd Oct, 2003 addressed to
Hon’ble President Government of India, Rastrapati
Bhawan, New Delhi with copy to Hon’ble Home
Minister and Hon’ble Law Minister, New Delhi.
2. It is for kind information that your case has been
examined in detail. As per the existing policy vide
Ministry of Home Affairs Office Memorandum No.
25013/14/77-Estt(A) Dated 05 Jan 78, 25013/30/85-
Estt(A) dated 7/8 August 85 and GoM(Group of
Ministers) reported on “ REFORMING THE NATIONAL
SECURITY SYSTEM” the case was placed before the
Review Committee to asses the suitability for
retention in service beyond the age of 50 years. The
Review Committee had not considered your further
retention in service beyond 50 years of age and as
such the you were sent on pre-mature retirement
from service under FR 56(j).
3. In view of above, you can not be re-instated in
service as requested for.
Sd/-(KK Chopra)
Colonel, Colonnel(Military Secretary)
For Director General, Assam Rifles.
Copy to:
Shri A Samuel for information please
Under Secretary(P), President’s Secretariat
Public-1 Section, Rastrapati Bhawan
New Delhi 110004
The Secretary to the Govt of India do
(Pers III)
Ministry of Home Affairs
North Block, New Delhi-110001”
The above order makes it clear that the authority
considered the submission of the appellant petitioner and
rejected the same. In our considered opinion, for the reasons
set forth above, the decision so taken by the appropriate
authority does not call for interference.
8. Let us now come to the other part of the appellant
petitioner‟s case i.e. non-consideration of his promotion by
the respondents in the year 1998 alongwith his other batch
mates. Learned Single Judge did not record any observation

9
regarding that prayer of the appellant. Since the issue has
been agitated before us, we think, we should dispose of it on
merit without referring it again to the learned Single Judge.
9. Learned counsel of the appellant Mr.Bhattacharyya has
strenuously argued that the petitioner was denied due
promotion without any valid reason inspite of the fact that all
criteria for promotion were fulfilled by the appellant
petitioner. He has also submitted that in the year, 1988, the
petitioner was categorised in SHAPE-1medical category i.e
S1H1A1P1E1 and refusal of his promotion was a blow to his
unblemished service carrier. Learned counsel also contended
that the annual confidential report of the year 1998 was
considered by the DPC in its meeting held on 27.3.1998, was
not at all true in view of the fact that ACR of the year 1998
was not in existence on the date of DPC meeting. On the
contrary, learned CGC has submitted that before the date of
DPC meeting held on 27.3.1998, the petitioner appellant was
categorised as of low medical category and the subsequent
categorisation as prayed by the petitioner appellant was not
before the DPC held on 27.3.1998. The Departmental enquiry
was initiated against him on various charges and that two of
the charges i.e. for not adhering to the Rules and procedure
and borrowing money from subordinate were proved against
the appellant petitioner and therefore he was not
recommended for promotion by the Departmental Promotion
Committee. We have considered the rival contention and
examined the documents placed on record.
In course of hearing copies of minutes of DPC meeting
held on 27.3.1998 for promotion of Assistant Commandant to
Deputy Commandant with copies of some relevant Rules and
procedure were also produced by learned CGC and on going

10
through the same, we find that the essential eligibility of the
candidates for promotion from Assistant Commandant to
Deputy Commandant prescribed in the schedule to the Rules
which was said to have followed thus:-
“Essentials
(a) Should have minimum qualifying service of six yeas
as Assistant Commandant.
(b) Should bhe medically fit.
(c) Should have high average record of service and be
recommended for promotion during he last 5 years,
two ACR should have been earned in Assam Rifles bn
during the last 5 years.
(d) Should not have been awarded punishment under
the Army Act or penalty under the CCS(CCA) Rules
1985 or conviction by a criminal court for gross
misconduct involving moral turpitude.
(e) Should have passed departmental promotion
examination Part-X.”
On perusal of the DPC minutes , we find that the
petitioner‟s name was also in the zone of consideration for
promotion to the post of Deputy Commandant alongwith other
eligible candidates. Para 8 of the minutes shows that the
recommendation of the DPC in respect of the appellant
petitioner was kept in „sealed cover‟ and the DPC observed
thus:-
“10. Finding of DPC in respect of Assistant
Commandant T.C.Rana and Assistant Commandant
M.N.Bhardwaj have been placed in sealed cover in
view of the departmental enquiry pending against
them.”
The above DPC observation makes it clear that a
departmental enquiry was pending against the appellant
petitioner at the relevant time and as a result recommendation
for his promotion was kept in sealed cover. The further
observation in the DPC minutes is that the integrity of the
appellant petitioner alongwith ten other candidates who were
in the zone of consideration were found to be without any

11
doubt. The internal assessment made by DPC in respect of
ACR of the petitioner for 5 years shows that he was
categorised high average and his rating scale was 6 or 5 and
that category was fit for promotion. It was also recorded that
his medical category S1H1A1P2E1( P2 Permanent) and there
was further note that the officer was involved in a disciplinary
case of over stay un-authorisedly and borrowing money from
subordinates. Though in the affidavit in opposition it is
alleged two of the charges were proved but no documents were
produced to that effect showing that any charges were proved
and therefore, the promotion was denied to the petitioner. The
petitioner- appellant joined in the service in the year 1974 and
was promoted time to time and in the year 1981, he was
promoted to the post of Assistant Commandant. Record shows
that from 1994 he was suffering from hypertension and at the
time of consideration of the promotion , according to the
petitioner , he was categorised as SHAPE-1 vide Annexure-C
to the writ petition . On perusal of the Annexure-C , we find
that it was issued after examination of the petitioner on
22.10.1998 i.e. long after the date of DPC meeting held on
27.3.1998. On the other hand, documents annexure –R2 to
the affidavit-in-opposition , shows that the petitioner was
categorised referring to his previous medical category as
P2(Temporary) and that medical Board proceeding was held on
26.3.1998.
The Assam Rifle order ARO 2/90 in paragraph-7
Clause(t) defines SHAPE thus:-
“(t) SHAPE means functional capacity and represents
following factor for assessment of fitness of Cadre
Officers:-
(i) S Psychological
(ii)H Hearing
(iii)A ` Appendages
(iv)P Physical Capacity
(v) E Eye sight”

12
A person having S1H1A1P1E1 is categorised fit for all
duties . Persons categorised thereafter S2 or S3 have
limitation as to the type of their duties and areas of
employability . Appendix 2 has further defined P1P2P3 etc.
thus:
“ P1 Has fully functional capacity and physical stamina
but may have minor impairments :- Fit for all duties any
where.
P2 Has moderate physical capacity and stamina .
Suffered from constitutional/metabolic affective
disease/operative procedure but now well stabilized. :- fit
for duties not requiring severe stress. May have restrictions in
employability at high altitude(above 2,700 meters) hill terrain
ad extreme cold areas.
P3 Has major disablement with involving Limited
physical capacity and stamina :- Fit for sedentary duties
not undue stress. May have to be employed in areas where
appropriate specialist Facilities are available. May have
restrictions in employment in hilly terrain and extreme cold
climate.
P4 On sick leave in hospital :- Temporary unfit for force
duties.
P5. Gross limitations in physical Capacity and stamina :-
Permanently unfit for force duties.”
So at the time of consideration of the promotion, the
appellant petitioner was categorised in view of R2 to the
affidavit in opposition as P2 temporary which means the

13
petitioner was fit for duties not requiring severe stress may
have restriction in employability at high altitude(above 2700
meter) hill and terrain and cold areas. There is nothing that a
person categorised P2 is not fit for the service and therefore
cannot be promoted. The recommendation of the DPC kept in
sealed cover has not been opened. The disciplinary proceeding
in which the appellant petitioner was found to have guilty as
alleged, has also not produced before the Court to examine as
to whether non-consideration of the promotion of the
petitioner was appropriate or not.
10. In view of the above factual and legal position, we are
constrained to direct the respondents to re-open the matter of
promotion of the petitioner and to examine the
recommendation of the DPC submitted in sealed cover and to
take it in consideration and pass appropriate order regarding
promotion of the petitioner to the post of Deputy
Commandant and to complete the exercise within next three
months. If the appellant petitioner is found to be entitled to
the promotion he should be promoted w.e.f. from the date his
batch mates were promoted and all service benefit accordingly
should be made available to him.
11. With this observation the writ appeal is partly allowed ad
partly dismissed and stands disposed of. A copy of the
judgment may be sent to respondents for compliance.
Pb/-
JUDGE JUDGE