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2019 DIGILAW 133 (MEG)

Union of India v. Joginder Singh

2019-05-02

H.S.THANGKHIEW, MOHAMMAD YAQOOB MIR

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JUDGMENT : Mohammad Yaqoob Mir, J. Impugned is the judgment dated 21.07.2015 passed by the learned Single Judge in WP (C) No.383 of 2013 in terms whereof, the Director General Assam Rifles has been directed to remuster the petitioner (respondent herein) with immediate effect and to grant him pay and allowances as admissible to the post of Nursing Assistant. The exercise shall be completed within a period of three months. Same has remained to be done in view of pendency of this appeal. 2. Learned CGC would submit that the rules do not permit remustering, therefore, representation has been rightly rejected by the Director General Assam Rifles vide his order dated 30.09.2010. It has been observed that the claim of the petitioner is not tenable under the Recruitment Rules of 2000. Furthermore, petitioner is in low medical category P2 (permanent). Aggrieved whereof, writ petitioner (respondent herein) filed writ petition which has been allowed. 3. From perusal of the record and rival submissions of learned counsel for the parties what emerges is that admittedly the petitioner was enrolled in Assam Rifles on 05.09.1998 as Rifleman (General Duty). During the period of his training, an opportunity was provided by the authority of Assam Rifles to the interested armed personnels having requisite qualification for remusteration into nursing trade. Petitioner possessing the requisite qualification availed the opportunity as such applied for remusteration of trade from General Duty category to Nursing Assistant. 4. Director General Assam Rifles vide Signal No. unclass A.3550 dated 12.06.2000 attached the petitioner with 31st Battalion MI Room for practical knowledge till detailment of Nursing Assistant Class IV and Class III courses and vide Signal No. unclass A.4438 dated 06.06.2000 had assured the petitioner that after completion of Nursing Assistant course he will be remustered from Rifleman (General Duty) to Rifleman (Nursing Assistant) at the earliest. In pursuance whereof, petitioner successfully completed the following courses:- "a. Nursing Assistant Clas-IV from No.-2, Tech.Trg.Bn. AMC Centre & School, Lucknow-2 in the year 2000. b. Nursing Assistant Class-III from No.-2, Tech.Trg.Bn. AMC Centre & School, Lucknow-2 in the year 2002." 5. On the recommendation of the Command Hospital (EC), Calcutta vide order No.130019/Coy/2002 dated 04.01.2002 published the Nominal Roll of Nursing Assistant Class-III, Assam Rifles wherein the name of the petitioner figured at serial No.30. AMC Centre & School, Lucknow-2 in the year 2000. b. Nursing Assistant Class-III from No.-2, Tech.Trg.Bn. AMC Centre & School, Lucknow-2 in the year 2002." 5. On the recommendation of the Command Hospital (EC), Calcutta vide order No.130019/Coy/2002 dated 04.01.2002 published the Nominal Roll of Nursing Assistant Class-III, Assam Rifles wherein the name of the petitioner figured at serial No.30. Vide order dated 21.08.2008, Director General Assam Rifles attached the petitioner with Assam Rifles Administrative Support Unit for working with ARASU Hospital, Happy Valley but did not take step for conversion of his trade as a result whereof, petitioner filed WP (C) No.3399 of 2010 which was disposed of by the High Court of Gauhati as it then was vide order dated 16.06.2010 directing the respondents therein (appellants herein) to dispose of the representation submitted by the petitioner by passing a speaking order with further liberty to the petitioner to invoke jurisdiction under Article 226 of the Constitution of India, if aggrieved. 6. Vide order dated 30.09.2010 representation of the petitioner was rejected so petitioner again filed WP (C) No.383 of 2013 in this Court. 7. Learned Single Judge after noticing in detail position of the respondent having qualified the two above referred Nursing Assistant courses, then, quoting Signal in para-4 of the judgment observed that there was a promise of remustering the petitioner to Rifleman (Nursing Assistant). Then, has also quoted the order dated 21.08.2008 issued by Director General Assam Rifles wherein, it is recorded:- "Rifleman Joginder Singh is ordered to be attached with ARASU, Happy Valley for working with ARASU Hospital, Happy Valley as the individual is qualified Nursing Assistant Class-IV and Class-III for all purposes including pay and allowances". 8. The contention as raised before the learned Single Judge is again raised today to the effect that applicable rules did not permit conversion of trade from Rifleman (General Duty) to Rifleman (Nursing Assistant). Considering the same submission, learned Single Judge has made it clear that the rules are relaxable, has quoted from the annexure of the counter affidavit relevant portion regarding relaxation of the rule same reads as under:- "Power of relaxation: The power to relax any of the eligibility criteria will rest with the Director General of Assam Rifles." 9. Considering the same submission, learned Single Judge has made it clear that the rules are relaxable, has quoted from the annexure of the counter affidavit relevant portion regarding relaxation of the rule same reads as under:- "Power of relaxation: The power to relax any of the eligibility criteria will rest with the Director General of Assam Rifles." 9. Learned Single Judge has observed that since there is power to relax the rules, therefore, the authority concerned cannot backtrack has to keep the promise and to give it effect. In support of the said opinion has relied upon the judgment rendered in the case of M/s Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh & ors reported in (1979) 2 SCC 409 . The following portion of para-24 of the said judgment shall be advantageous to be quoted hereunder:- "24. ..... Where the Government makes a promise knowing or intending that it would be acted on by the promisee and, in fact, the promisee, acting in reliance on it, alters his position, the Government would be held bound by the promise and the promise would be enforceable against the Government at the instance of the promisee, notwithstanding that there is no consideration for the promise and the promise is not recorded in the form of a formal contract as required by Article 299 of the Constitution. It is elementary that in a Republic governed by the rule of law, no one, howsoever high or low is above the law. Everyone is subject to the law as fully and completely as any other and the Government is no exception. It is indeed the pride of constitutional democracy and rule of law that the Government stands on the same footing as a private individual so far as the obligation of the law is concerned: the former is equally bound as the latter. It is indeed difficult to see on what principle can a Government, committed to the rule of law, claim immunity from the doctrine of promissory estoppels. Can the Government say that it is under no obligation to act in a manner that is fair and just or that it is not bound by considerations of "honesty and good faith"? Why should the Government not be held to a high "standard of rectangular rectitude while dealing with its citizens"? ....." 10. Can the Government say that it is under no obligation to act in a manner that is fair and just or that it is not bound by considerations of "honesty and good faith"? Why should the Government not be held to a high "standard of rectangular rectitude while dealing with its citizens"? ....." 10. The contention of learned CGC that the respondent was placed in low medical category, therefore, trade was not permissible to be changed. The said argument is totally baseless and unacceptable. Such a contention is refuted by the appellants themselves as it is the appellants who have issued the order dated 21.08.2008 as quoted by the learned Single Judge in the judgment where-under, the Director General Assam Rifles has attached the petitioner with ARASU, Happy Valley for working with ARASU Hospital, Happy Valley. It is further added that the individual (respondent) is a qualified Nursing Assistant Class-IV and Class-III for all purposes including pay and allowances. 11. We have not been persuaded to take a different view than the one taken by the learned Single Judge, appeal being devoid of merit is dismissed.