Allowed

M/380838 Hav/Na Murali Kumar P. v. the Union of India and 3 Ors.

Gauhati HC9 Dec 2021WP(C)/9571/2019

Case brief

AI extract

What is this about?

The High Court held that an Assam Rifles employee is covered by the Supreme Court's ruling in Dev Dutt v. Union of India regarding non-communication of adverse ACR entries. The court ruled that denying MACP based on an uncommunicated low grade was unsustainable and directed the respondents to grant the benefit.

What did the court decide?

Directing respondent authorities to provide MACP benefit to the petitioner from 01.09.2015.

M/380838 Hav/Na Murali Kumar P. Vs the Union… — Pension and Retirement Benefits | Gauhati HC (2021)

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Page No.# 1/4

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GAHC010308742019

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/9571/2019

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M/380838 HAV/NA MURALI KUMAR P.

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S/O- LT. RAMAN KUTTY, PUTHEN VEETHIL HOUSE, VILL- AMBALAPARA, P.O. CHURANGAD, DIST.- PALAKKAD, KERALA, PIN- 679511, PRESENTLY WORKING AS HAVILDAR/NA WITH, 39TH ASSAM RIFLES, C/O 99 APO, PIN932039

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VERSUS

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THE UNION OF INDIA AND 3 ORS.

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REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, NORTH BLOCK, NEW DELHI- 110001

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2:THE DIRECTOR GENERAL OF ASSAM RIFLES MAHANIDESHALAYA (THE DIRECTORATE GENERAL OF ASSAM RIFLES) SHILLONG MEGHALAYA- 793011

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3:THE COMMANDANT 8TH ASSAM RIFLES C/O 99 APO PIN- 932008

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4:THE COMMANDANT 39TH ASSAM RIFLES C/O 99 APO PIN- 93203

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Advocate for the Petitioner : MS. S BORA

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Advocate for the Respondent : ASSTT. S.G.I.

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Page No.# 2/4

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BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

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JUDGMENT & ORDER (ORAL)

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Date : 09-12-2021

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Heard Ms. S Bora, the learned counsel for the petitioner. Also heard Mr. K Gogoi, the learned CGC for the respondents in the Union of India.

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The petitioner is an employee in the rank of Havildar in the respondent Assam Rifles having been appointed on 24.08.1985. The petitioner was subjected to a Screening Board for the purpose of availing the benefit of third MACP upon completion of thirty years of service in the same grade. The Screening Board which was held on 21.01.2015 took into account the ACRs of the year 2011-2012, 2012-2013 and 2013-2014. The Screening Board was of the view that as the petitioner had earned the grade average which bears two points, therefore, was not recommended for promotion to the next rank on the basis of the ACR of the year 2012-2013. As the petitioner was held to be not entitled for promotion on the basis of the aforesaid ACR, the resultant claim for third MACP was also rejected. Being aggrieved, this writ petition is instituted.

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It is taken note that from 01.09.2016, the petitioner had been given the benefit of third MACP. In the circumstance, the question is to be decided in this writ petition is whether he would also be entitled to the benefit of third MACP from 01.09.2015 upto 01.09.2016.

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Ms. S Bora, the learned counsel for the petitioner relies on a proposition of law that an un-communicated low grade in the ACR cannot be made to be a basis to arrive at any decision for promotion. As the third MACP to the petitioner from 01.09.2015 was rejected on the ground of having low grade in the ACR of the year 2012-2013 and the said low grade having being not communicated to the petitioner, it is the contention raised before the Court that the existence of such low grade which remained un-communicated cannot be a basis to not give the benefit of MACP from 01.09.2015.

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Mr. K Gogoi, the learned CGC for the respondents in the Union of India opposes the said proposition put-forth by the learned counsel for the petitioner.

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The law in this respect is settled by the Supreme Court in Dev Dutt v. Union of Indiaand ors. reported in (2008) 8 SCC 725 wherein in paragraph 41, it had been provided as extracted below:

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“41. In our opinion, non-communication of entries in the annual confidential report of a public servant, whether he is in civil, judicial, police or any other service (other than military), certainly has civil consequences because it may affect his chances of promotion or get other benefits (as already discussed above). Hence, such noncommunication would be arbitrary, and as such violative of Article 14 of the Constitution.”

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A reading of the provision of paragraph 41 of the Dev Dutt (supra) goes to show that a non-communication of the entries in the ACR of a public servant, whether he is in civil, judicial, police or any other service other than military, certainly have adverse civil consequences because it may affect his chances for promotion or to get other benefits. Accordingly, it was held that non-communication of the adverse entry would be arbitrary and in violation of the Article 14 of the Constitution of India. An issue is raised by Mr. K Gogoi, the learned CGC for the Union of India that the petitioner is an employee in the Assam Rifles and therefore, it requires an examination whether he is in military service.

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It is stated that Assam Riffles has a dual-command, where military also has its own independent control over the force. The Assam Rifles is constituted as per the Assam Rifles Act, 2006 (in short, the Act of 2006)

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In this respect, we have been told that a judicial proceeding is presently pending before the Delhi High Court on the question as to whether the Assam Rifles is a military organization or it is a paramilitary organization and the said question is yet to be decided meaning thereby that the issue as to whether the Assam Rifles is a military or a paramilitary force is yet to be decided.

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Section 3 (iii) of the Act of 2006 inter-alia provides that notwithstanding anything contained in sub-section (1) thereof, any person who is employed in the force on deputation from the regular Army as defined under clause (xxi) of Section 3 of the Army Act, 1950 (46 of 1950) shall not be subject to the Act of 2006 and during the period of such deputation, be

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deemed to be subjected to the Army Act, 1950. The provisions of Section 3(iii) of the Act of 2006 providing for the distinction between the personnel who are drawn on deputation from the Army and those serving in the Assam Rifles, who are personnel of Assam Rifles per-say gives an indication that a distinction is maintained in the Assam Rifles between the military personnel and non-military personnel who are paramilitary force in nature.

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When we refer to the provision of paragraph 41 in Dev Dutt (supra) that a public servant in civil, judicial, police or any other service other than military service, would be subject to the provision of the paragraph 41 thereof, we have to understand that a personnel per-say of the Assam Rifles without being on deputation from the regular army in view of the provision of Section 3(iii) of the Act of 2006 thereof, would have to be construed to be a personnel other than military. It is further taken note that the Assam Rifles is under the Ministry of Home Affairs unlike the regular army which is under the Ministry of Defence.

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For the forgoing reasons, we accept the proposition that the petitioner would also be covered by the provision of paragraph 41 of Dev Dutt (supra) and therefore, there is a requirement under the law that the adverse entry in the Assam Rifles be communicated before such entry can be acted upon. In the instant case, the adverse entry in the ACR of the year 2012-2013 having not been communicated to the petitioner and the same having been relied upon to deny the petitioner from the benefit of MACP from 01.09.2015, the denial for promotion/MACP from 01.09.2015 would be unsustainable.

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In view of the conclusion, we direct the respondent authorities in the Assam Rifles to provide MACP benefit to the petitioner from 01.09.2015.

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Writ petition stands allowed as indicated above.

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JUDGE

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Comparing Assistant

M/380838 Hav/Na Murali Kumar P. v. the Union of India and 3 Ors.

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M/380838 Hav/Na Murali Kumar P. v. the Union of India and 3 Ors.

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