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Judgment
M.V. Muralidaran, J
This writ petition has been filed by the petitioners to issue a writ of mandamus directing the respondents to remuster/ upgrade/re-designate the post of the petitioners to the rank of Nb/Sub (E&M) and Nb/Sub (B&R), JE as initial rank with effect from the date of completion of Diploma course as far as petitioner Nos.1, 2, 3, 6, 7, 8, 9 and 10 are concerned and with effect from 19.01.2007 i.e., from the date of Nos.4 and 5 are concerned with an financial benefits and subsequently to the post of Subedar and Subedar Major.
The case of the petitioners is that the petitioners were initially joined as Riflemen in Assam Rifles and they have been provided an opportunity to undergo Diploma course in Electrical and Mechanical Engineering to be held in the College of Military Engineering, Pune and Mizoram State Polytechnic, Lunglei. It was declared that Diploma in Electrical and Mechanical Engineering (DEM) course is a remusteration course for Engineering trade. Accordingly, the petitioners had gone Diploma course and had completed the Diploma Course in Electrical and Mechanical Engineering and Diploma in Civil Engineering from College of Military Engineering, Pune and Mizoram State Polytechnic, Lunglei. After completion of the course, the petitioners were discharging their duties as an Electrical and Mechanical Engineer and Boarder and Road (B&R, JE) and also performing duties of E&M and B&R, JCO. A certificate of Technical Proficiency was issued, in which it was stated that petitioners were eligible for remustering as per Qualification Regulation for Soldier, 1958 as amended from time to time.
As far as petitioner Nos.4 and 5 are concerned, they were given posting and utilized as B&R and they should be given Nb/Sub from the date of recognition and utilization as B&R Engineers by the respondents i.e., from 19.1.2007. The petitioners were treated as Engineers and even given posting along with the other Engineers and even some of the petitioners were appointed as Engineer-in-charge for some of the Work Orders and had discharged the same work of JCO Engineer.
Further case of the petitioners is that Assam Rifle issued an advertisement in respect of Technical and Tradesman Recruitment calling interested person to apply for the post of B&R by offering the rank of Nb/Subedar and the eligible qualification of Nb/Sub, B&R is matric or equivalent from a recognised Board or University and Diploma in Civil Engineering from a recognised Institution. The petitioners submitted application/representation on 21.11.2015 and 28.11.2015 respectively to the Directorate General of Assam Rifles requesting for remusteration from Rfn/GD (E&M) to Nb/Sub (E&M) with a recommendation from their Commander. The representations were forwarded by the respective Commandant along with a recommended application form for remusteration for approval, but till date no action was taken by the respondents to remuster from Rfn/GD (E&M) and RFN/GD (B&R) to the post of Nb/Sub (E&M) and Nb/Sub (B&R). Hence, the petitioners have filed the writ petition seeking the relief supra.
Respondents 1 and 2 filed affidavit-in-opposition stating that petitioner Nos.1, 2, 3, 6, 7 to 10 were detailed for Diploma course in Electrical and Mechanical at College of Military Engineering (CME), Pune after their enrolment as they were willing for the same, but they were not given any type of assurance by the Department before sending them for the courses or thereafter that they will be remustered into Engineer trade as Naib Subedar (E&M) after completion of Diploma course. They attended the course at the expenses of the Government and were also given full pay and allowances during the course period. It is further stated that as per the Assam Rifles Recruitment Rules, 2000, 100% posts of Naib Subedar (E&M) and Naib Subedar (B&R) are subject to be filled up by direct recruitment only by the candidates fulfilling prescribed conditions and qualifications mentioned therein. There are no provisions for filling up the said posts by remusteration from any other category of serving Assam Rifles personnel as per the recruitment rules. Since the petitioners have attended the Diploma course after 31.05.2000 i.e. after notification of the Recruitment Rules, 2000, their demand of remusteration is not valid in any way and prayed for dismissal of the writ petition.
The learned counsel for the petitioners submitted that the purpose of selecting and/or sending the petitioners for Diploma course at the College of Military Engineering, Pune and Mizoram State Polytechnic, Lunglei by the respondents is not only discharge, but also had provided career opportunity to undergo Diploma course so as to remuster to Engineering trade. He would submit that the purpose of providing Diploma course is to make the petitioners well qualified for the job of doing Engineering works and in reality also the petitioners are being utilised/treated as Engineers and even given posting along with the other Engineer persons. He submitted that even some of the petitioners were appointed as Engineer-in-charge for some of the Work Orders, however, denied the rightful claim of the petitioners for remusteration to the post of Nb/Sub (E&M) and (B&R), JE having the same qualification as prescribed in the advertisement dated 17.11.2017.
The learned counsel then submitted that denial by merely stating that the post of Naib Subedar is of direct recruitment is totally false and misleading as it can be seen from the Order dated 14.1.2009 issued by the Director General of Assam Rifles in which the civil technical groups i.e., non-combatised ranks/cadres to combatised cadres such as Pharmacist, Sister, Hindu Teacher (Graduate), Hindi Teacher (Under Graduate), Junior Teacher, Draughtsman, Hindi Translator Grade-I and Stenographer (Grade- III) were given the post and rank of Naib Subedar if they opted for combatisation from civil. The above cadres were not recruited direct but in their later service, they were given opportunity to combatised in the said rank i.e. Naib Subedar.
Per contra, Mr. S. Samarjeet, learned appearing for the respondents submitted that merely passing of Engineering Diploma course in E&M and B&R from the College of Military Engineering (CME), Pune and Mizoram State Polytechnic, Lunglei does not make the petitioners eligible for remusteration from Riflemen (General Duty) and Havildar (Electrician) to the post of Naib Subedar (E&M) and Naib Subedar (B&R) as these vacancies are supposed to be filled up by way of direct recruitment in terms of the Recruitment Rules, 2000. Therefore, the request of the petitioners for remusteration is not reasonable as they were temporarily employed for duties in Engineer trade due to shortage of Electrical and Mechanical and Bridge and Roads Junior Commissioned Officers in the Force.
Mr. S. Samarjeet, learned CGC further submitted that the petitioners seniority is being maintained in their respective trades and will be eligible for promotion in their own trade as per their seniority as and when the vacancy will be available. Further, no such provisions of remusteration exist in the Recruitment Rules, 2000 and the writ petition is liable to be dismissed.
I have given anxious consideration to the arguments advanced by the learned counsel appearing on either side and also perused the materials available on record.
The Petitioner Nos.1 to 6, 8 to 10 belong to General Duty trade and petitioner No.7 belongs to Electrician trade and they are serving in the rank of Riflemen and Havildar and have been posted in various formations/units of the Assam Rifles. The petitioners are posted in lieu of Engineer category personnel and are performing duties of Engineer trade/category.
In the instant writ petition, the petitioners are seeking direction to the respondents to remuster them from present post of Riflemen and Havildar to the post of Naib Subedar (E&M) and Naib Subedar (B&R) on the plea that they possess two years Diploma in Electrical and Mechanical Engineering from College of Military Engineering, Pune and three years Engineering Diploma in Bridge and Road from Mizoram State Polytechnic, Lunglei and have been performing duties as E&M and B&R in Engineer category as per their qualifications.
On the other hand, it is the say of the respondents that there is no provisions for remusteration exist in the Recruitment Rules, 2000 to full up the vacancies of Naib Subedar (B&R) in the Assam Rifles through remusteratlon. Hence, the prayer of the petitioners for remusteratlon from Riflemen General Duty to Naib Subedar (B&R) on the grounds that they have the requisite qualification and are performing the duties In the Engineer trade cannot be considered.
It appears that while serving as Riflemen, the petitioners having the qualification of 10 +2 passed in Science and the respondents have provided career opportunity to undergo Diploma course as stated supra and as such the petitioners had gone for pursuing the Diploma in Electrical and Mechanical Engineering (DEM) course with a legitimate expectation that after completion, they shall be remustered to Engineering trade.
The purpose of providing Diploma course is to make the petitioners well qualified for the job of doing Engineering works and In reality the petitioners were utilized/treated as Engineers and even given posting along with the other Engineers and even some of the petitioners were appointed as Engineer-in-charge for some of the Work Orders. The said fact has not been denied by the respondents and the respondents have failed to show any material to disprove the plea of the petitioners that they were not appointed as Engineer-in-charge for some of the Work Orders.
The admitted position, as could be seen from the pleadings of parties, is that the petitioners were initially joined as Riflemen in the Assam Rifles and they had been serving with great dedication to their duty and to the entire satisfaction of the higher officials. They had been maintaining law and order by protecting the life and public properties day and night risking their life, facing dangerous situation in many occasions with the hope and trust and also with the legitimate expectation for getting appreciation by way of remusteration/upgradation/redesignation, as the case may be, to the next higher post as per their eligible technical and educational qualification which were completed through career opportunity provided by the respondents. After providing career opportunity by the respondents, the petitioners had gone for Diploma course and had passed out the Diploma course In Electrical and Mechanical Engineering and Diploma in Civil Engineering. The petitioners were issued with certificate of Technical Proficiency, in which it was stated that they were eligible for remusterlng as per Qualification Regulation for Soldier, 1958 as amended from time to time. However, the respondents denied remusteration on the ground that In terms of Recruitment Rules, 2000, method of recruitment of Naib Subedar Is 100% by direct recruitment and that remusteratlon is not permissible.
During the course of arguments, the Iearned counsel for the petitioners, placed reliance upon the order passed in W.P. (C) No.327 of 2014, dated 06.08.2018 passed by the Meghalaya High Court.
I have perused the order of the Meghalaya High Court In W.P.(C) No. 327 of 2014, dated 06.08.2018. In the said case, the petitioner was enrolled in Assam Rifles as Riflemen (GD) and he attended Diploma course in Civil Engineering conducted at College of Military Engineering (CME), Pune while serving with Construction and Maintenance Company, Assam Rifles Laitkor, Shillong. The request of the petitioner for his remusteration was denied by the authority and hence he preferred the writ petition. After considering the submissions of both sides, the Meghalaya High Court, held as under:
"1. The admitted position as emerged from the records as well as from the pleadings of the respective parties is, that the petitioner was enrolled in Assam Rifles as Riflemen (GD) on 30.11.1991. He attended Diploma Course in Civil Engineering conducted at College of Military Engineering (CME) Pune from 05.05.2003 to 30.04.2005, while serving with Constr. & Main. Coy, Assam Rifles Laitkor, Shillong. Vide order No. 1.21022/06/Engr/2007/Adm-II dated 19.01.2007 he was posted to 26th Assam Rifles in lieu of an Engr JCO (B&R) with a clarification that his services will be gainfully utilized in supervision works and for making estimates. The petitioner has been performing his duties as Engineer Bridge and Road since 29.01.2007.
The petitioner seems to have represented for his remusteration from Rfn/GD (B&R) to Nb.Sub (B&R) same has been denied on the ground that in terms of Recruitment Rules, 2000, method for recruitment of Naib Subedar is 100% by direct recruitment. In short, it is the stand of the respondents that remusteration is not permissible vis-a-vis posts of Naib Subedar, which are to be filled up 100% by direct recruitment.
The contention of the learned counsel for the petitioner is that in the year 2014, a signal has been sent suggesting that the Diploma qualified NCO/OR not authorized to sign MBS till remastered. In addition thereto also referred to the order dated 19.01.2007 issued by the office of Directorate General Assam Rifles, Shillong in terms whereof, number of Diploma qualified personnel which include the petitioner were posted in various units with a condition that the Diploma qualified persons will be gainfully utilized to supervise the works and to make estimates, however, as these persons have not been remustered into Engr. Trade, the Engr. JCO posted at Sector HQ will verify and sign all the technical documents put up by these Diploma qualified persons. It is the contention that there is scope for remustering in view of its reference in the order dated 29.01.2017 as well as in the signal dated 14.05.2014.
It is further contention of the learned counsel for the petitioner that remusteration in effect is a direct recruitment. Therefore, the respondents cannot take a stand adverse to the interest of the petitioner under the guise of the Recruitment Rules of 2000.
Confronted with the said position, learned CGC would submit that the position has not been clarified. In case, remusteration is equivalent to direct recruitment then, such personnel have to satisfy the conditions as incorporated in the Record Office Instruction No.2/2012 for their remusteration.
In the stated given circumstances, petition is disposed of with a direction to the respondents to take all necessary steps at their respective levels for according consideration to the case of the petitioner for remusteration from an/GD (B&R) to Nb.Sub (B&R) and to pass appropriate orders thereon as shall permissible under the law within a period of six weeks from today. The decision whatever taken shall be conveyed to the petitioner. is reserved to the petitioner to re-agitate subject to survival of cause.
Disposed of as above."
The case on hand is similar to the case dealt with by the Meghalaya High Court as the present petitioners were joined as Riflemen in Assam Rifles. It is seen that the order passed in W.P.(C) No.327 of 2014 dated 06.08.2018 has not been appealed and the said order attained finality.
The learned counsel for the petitioners submitted that the respondents have failed to remuster/upgrade the rank of the petitioners to Nb/Sub (E&M) and (B&R) despite being possessing eligible Diploma course which is required for Nb/Sub (E&M) and Nb/Sub (B&R) and moreover, the respondents are taking others on deputation to the said posts, thereby violating Article 14 of the Constitution of India which guarantees equality before the law and confers equal protection of law. The aforesaid submission of the learned counsel for the petitioners merit acceptance.
This Court is of the view that the respondents cannot take a stand adverse to the interest of the petitioners under the guise of the Recruitment Rules, 2000. Remusteration, in effect, is a direct recruitment, which fact also admitted by the learned counsel for the petitioners. The Meghalaya High Court in W.P.(C) No.32? of 2014 held that in case, remusteration is equivalent to direct recruitment, then, such personnel have to satisfy the conditions as incorporated in the Record Office Instruction No.2 of 2012 for their remusteration. This Court is in full agreement with the aforesaid views taken by the Meghalaya High Court.
The petitioners have submitted their applications/representations dated 21.11.2015 and 28.11.2015 to the Directorate General of Assam Rifles requesting for remusteration from Rfn/GD (E&M) to Nb/Sub (E&M) with a recommendation from their Commander and the same were also forwarded by their respective Commanders along with recommended application form for remusteration for approval. This Court perused the representations submitted by the petitioners, wherein they have requested the respondents to consider their case for upgradation of the rank from Rfn/GD (E&M) to Nb Sub (E&M). The said representations were also forwarded to the Directorate General Assam Rifles, Shillong. Along with the representations, the petitioners have also enclosed certificates given by their respective Commandant. In the certificates, the respective Commandant stated that the petitioners are technically qualified and good experience holders. When that being the factual aspect, till date no action was taken by the respondents on the applications/representations of the petitioners.
In the result,
a) the writ petition is allowed.
b) the Respondents are directed to remusteration of post of the petitioners to the rank of Nb/Sub (E&M) and Nb/Sub (B&R), JE as Initial Rank the petitioners 1,2,3,6,7,8,9 & 10 w.e.f. the date of completion of Diploma Course and the petitioners 4 & 5 w.e.f. 19.01.2007 and pay all the service benefits, and subsequent post of Subedar and Subedar Major.
c) the said exercise shall be completed within a period of 3 months from the date of receipt of this order.