PRAMOD KUMAR WILLIAM Vs. UNION OF INDIA

JUDGEMENT

(1.) IN this writ petition, the petitioner is questioning the legality of the order/notice dated 7. 8. 2007 (Annexure-II) under FR 56 (j) and Rule 48 (1) (b) of the Central Civil Services (Pension) Rules, 1972 issued by the Director General of Assam Rifles (the respondent No. 2) compulsorily retiring him from service on his attaining the age of fifty-five years.

(2.) TO appreciate the controversy, the undisputed facts on record may be noticed at the very outset. The petitioner was enrolled as a recruit General Duty in the Assam Regiment on 17. 12. 1966, was subsequently promoted to Havildar in the year 1987, and was further promoted to Naib Subedar in the year 1997. He was again promoted to the post of Subedar on 1. 2. 2001; this was the post held by him when the impugned notice was issued. On completion of 30 years of service at the age of 47 years, the service of the petitioner has been reviewed by the Reviewing Committee in the year 1996. The Review Committee, after reviewing the entire service record of the petitioner, had recommended the retention of his service with effect from 17. 9. 96 till he would attain the age of superannuation. The retirement age of Assam Rifles personal is admittedly 60 years. The recommendation of the Review Committee was approved by the competent authority. The petitioner was on the date of the impugned notice attached to the EME Branch in the Directorate General, Assam Rifles at Shillong, and was performing the following duties as assigned by the respondents:-

(3.) THE writ petition is vehemently opposed by the respondents by filing their opposite affidavit-in-opposition. They remind this Court of their absolute power to retire the personnel of the Assam Rifles in terms of FR 56 (i), on their completion of 30 years of qualifying service or on their attaining the age of 50 years, by giving them notice in writing of not less than three month or three months pay and allowances in lieu of such notice. According to the respondents, the petitioner, holding the rank of Subedar in the Motor Vehicle Branch of the Force, was placed in permanent low medical category by a duly constituted Medical Board and his further retention in service is, therefore, against the interest of the Force and that the recommendation by the Review Committee for his retention in service with effect from 17. 12. 1996 till the age of 60 years, cannot preclude the competent authority from reviewing his case subsequently. It is pointed out by the answering respondents that when the impugned notice was issued on 7. 8. 2007, and when he would be retiring from service on reaching the normal age of superannuation on 31. 12. 2008, there is a gap of more than a year from the date of such notice, and, as such, the provision of Rule 3 (ii) of Clauses 3 (iii) of the Office Memorandum dated 15. 10. 1977 (Annexure-R/3) is not attracted. It is asserted by the respondents that the retention of the petitioner was allowed by the Review Board w. e. f. 20. 5. 2005 subject to up-gradation of the Medical Category to SHAPE-1 or AYE in the next Medical Review Board and that the impugned notice has been issued on the recommendation of the Madical Review Board. According to the respondents, the physical fitness of the petitioner is of utmost importance to provide leadership to his subordinates, and a group leader must not only be of sound mind but must be of sound health; the petitioner, who cannot even work properly, cannot reasonably be expected to discharge his duties satisfactorily. It is also asserted by the respondents that Para Military Forces like Assam Rifles have been exempted from the provision of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act. 1995 in terms of the Notification dated 10. 9. 2002 issued by the Central Government under the proviso to Section 47 thereof. The writ petition has been filed by the petitioner with the mala fide intention of clinging on to his post irrespective of his medical fitness, and the same, being devoid of merits, is liable to be dismissed with cost.