Page No.# 1/4 GAHC010022772018 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/661/2018 ASHOK KUMAR S/O. SH. SUBE RAM, VILLAGE- BAKHTAWARPUR, P.O. JAINPUR, DIST. SONITPUR, STATE HARYANA, DISCHARGED FROM THE SERVICE FROM 13 ASSAM RIFLES, C/O. 99 APO, PRESENTLY RESIDING AT MILAN NAGAR, KHANAPARA, GUWAHATI. VERSUS UNION OF INDIA AND 2 ORS. REPRESENTED BY THE MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA, NEW DELHI, PIN-110001 2:DIRECTOR GENERAL ASSAM RIFLES HEAD QUARTER DGAR SHILLONG-10 3:COMMANDANT 13TH ASSAM RIFLES C/O 99APO PIN-93201 Advocate for the Petitioner : MS. S BORA, MS. N CHAKRABORTY Advocate for the Respondent : ASSTT.S.G.I., MR. S. S. ROY (ASGI) BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI ORDER Date : 18-02-2025 Heard Ms. S. Bora, learned counsel for the petitioner. Also heard Shri S. S. Roy, learned CGC. Page No.# 2/4 2. It is the case of the petitioner that he was enrolled in the Assam Rifles as a Rifleman/GD on 01.04.1994 and was Discharged from service on 29.07.2003. The said discharge was a consequence of having recorded 4 Red Ink Entries in the service book of the petitioner. 3. After such Discharge, the respondent authorities had exchanged certain documents with regard to the pension which was not being finalized for one reason or the other. However, after much representation, the impugned communication has been issued on 11.08.2017 by which the claim for pension has been rejected. The reason cited is that the petitioner did not meet the minimum requirement of 10 years of qualifying service to get pensionery benefits. It has also been stated that the petitioner had rendered only 8 years 10 months and 7 days of qualifying service and accordingly, his claim was rejected. 4. Ms. Bora, the learned counsel has submitted that the Discharge from service itself was not in accordance with law. She submits that though the said Discharge is based on certain red ink entries in the service book, the same were made without taking into consideration the facts and circumstances which were available at that point of time. She has submitted that the over stay in leave was for genuine reasons namely the passing away of the parents of the petitioner and ailment of the wife. It is submitted that without taking into consideration, the bona fide and genuine reasons cited, the decision to discharge him from service was taken. On the aspect of pension, the learned counsel has submitted that immediately after passing of the Discharge order, communications were issued on the aspect of grant of pension. In this regard, she has drawn the attention of this Court to the communication dated 10.02.2005 issued by the office forwarding the pension documents. She has also drawn the attention of this Court to the numerous other communications including representations made by him with regard to his claim for pension. Page No.# 3/4 5. With regard to the impugned order by which his claim for pension has been rejected, the learned counsel has referred to Rule 40 of the CCS Pensions Rules which is with regard to “Compulsory Retirement Pension”. It is submitted that under the aforesaid Rules, the competent authority has been vested with powers to release pension or gratuity or both at a rate not less than 2/3 and not more than full compensation pension or gratuity or both admissible to him on the date of his compulsory retirement. It is submitted when the Rules are clear, the impugned communication dated 11.08.2017 could not have been issued. She accordingly submits that appropriate directions be issued for reconsideration of the matter and consequently for release of the pension by invoking the provisions of the aforesaid Rule. 6. Per contra, Shri Roy, the learned CGC has submitted that the appropriate provision of the Rules is Rule 49 which deals with “amount of pension”. By drawing the attention to Rule 49(2) the learned CGC has submitted that the qualifying service for pension has been stated to be not less than 10 years. It is submitted that when an incumbent does not meet the qualifying period of 10 years, the Rules cited on behalf of the petitioner will not come into operation. 7. The learned CGC has also submitted that so far as the order of Discharge is concerned, the same was of the year 2003 and there was no independent challenge to the said aspect and at this stage, the said aspect cannot be gone into. 8. The rival submissions have been duly considered. 9. As noted, the primary grievance of the petitioner is with the aspect of rejection of his claim for pension which has been communicated vide letter dated 11.08.2017. As per the said letter, the reason for such rejection is not fulfilling the minimum 10 years of qualifying service. As mentioned above, the communication has recorded that the Page No.# 4/4 petitioner had rendered only 8 years 10 months and 7 days of qualifying service. The premises on which this writ petition has been structured is by taking recourse of Rule 40 of the aforesaid Rules. Rule 40 empowers the competent authority to pay compulsory retirement pension to a government servant who has been compulsorily retired as a penalty. The said Rule 40 however cannot be read in isolation and has to be read as a part of Rule 49 pertaining to amount of Pension. Rule 49 clearly lays down the qualifying period which is not less than 10 years. It appears that the provisions of Rule 40 would come into operation only when a government servant who had completed the qualify period as per Rule 49 is compulsory retired as a penalty. The reading of both the Rules would lead this Court to a conclusion that unless such a government servant who has been compulsory retired as penalty had completed the qualifying period of service, a claim under Rule 40 would not be maintainable. 10. The learned counsel for the petitioner had tried to argue that there are cases where even when the qualifying period was not met, recourse to Rule 40 was taken. She has submitted that in those cases the 10 years qualifying period was not met by few months. Apart from the distinction in facts of the instant case, the impugned order clearly reflects that the period of service rendered by the petitioner was 8 years 10 months and 7 days which is much less than the qualifying period of 10 months. When the Rules mentioned above, more particular, Rule 49 is clear, it would not be proper on the part of this Court to direct a reconsideration of the case of the petitioner when admittedly he had not fulfilled the qualifying service. 11. In view of the above, this Court is of the opinion that no case for interference has been able to be made out. 12. The writ petition accordingly stands dismissed. JUDGE Comparing Assistant