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Judgment
By way of the present petition, the petitioners seek setting aside of the speaking order dated 20th December, 2012 passed by the respondents.",,,
The petitioners No. 1 and 2 have also prayed for promotion to the rank of Subedar (B&R) and petitioners No. 3 to 5 have also prayed for,,,
upgradation to the post of JCO (B&R)/Naib Subedar to the rank of Subedar.,,,
Briefly stated, the facts leading to the filing of the present petition are that the petitioners were initially appointed in the cadre of JCO (B&",,,
R)/Naib Subedar having recruitment qualification in diploma in Civil Engineering.,,,
The petitioners stated that due to non-availability of adequate promotional avenues they were stagnating in the same rank and status of Naib,,,
Subedar since the last more than 20 years. It is stated that though Record Office Instructions (ROI) 4/2002 provide promotional avenues to the,,,
Grade of Subedar on completion of three years service in the rank and status of JCO (B&R)/Naib Subedar, but such promotion is subject to",,,
availability of vacancy.,,,
It is further stated that the ROI 4/2002 also provided further promotion to the post of Subedar Major, subject to availability of vacancy due to",,,
limited scope of promotional avenue in the engineering trade of Assam Rifles, as such the petitioners are stagnating in the same post.",,,
It was intimated to the petitioners vide letter dated 5th January, 2010 that Director General Assam Rifles (DGAR) has already taken up the case",,,
with the Ministry of Home Affairs for upgradation vide letter dated 29th December, 2009 but the same is still pending with the Ministry.",,,
The petitioners further state that the post of Surveyor Assistant II in Assam Rifles, having similar requirement qualification in civil engineering",,,
having been upgraded to the rank of Subedar following revision of Peace Establishment issued by the Ministry of Home Affairs vide its letter dated,,,
26th August, 2003, but no steps were taken for upgradation of the post of JCO (B&R)/ Naib Subedar, as a result the petitioners were further",,,
discriminated.,,,
The petitioners contended that the Government of India, Ministry of Finance vide resolution dated 20th September, 1997 decided to maintain",,,
parity in the rank, pay and status of all CPOs as indicated in the Ministry of Home Affairs letter dated 10th October, 1997, but such parity in rank,",,,
status and pay has been implemented in the Assam Rifles except in the trade of JCO (B&R)/Naib Subedar.,,,
The petitioners having faced acute stagnation due to inadequate promotional avenue had approached this Court by filing writ petitions bearing,,,
WP(C) (SH) No. 228/2010, 229/2010, 230/2010, 261/2010 and 262/2010. This Court vide judgment and order dated 22nd December, 2011",,,
disposed of the said writ petitions with the directions to the respondent No. 2, the Director General of Assam Rifles to take up the matter again",,,
with the Secretary, Ministry of Home Affairs, Govt. of India for upgradation from the post of JCO (B&R)/Naib Subedar to the rank of Subedar",,,
w.e.f. 1st January, 1996 in terms of Government of India, Ministry of Finance resolution dated 20th September, 1997 and also in the light of the",,,
Government of India''s letter dated 10th October, 1997 with all consequential service benefits. The Court further directed to complete the whole",,,
exercise within a period of four months from the date of receipt of the certified copy of the judgment and order.,,,
The respondent No. 2 vide the speaking order dated 20th December, 2012 rejected the claim of the petitioners. Aggrieved by this impugned",,,
order the petitioners approached this Court by filing the present petition.,,,
The petition is opposed by the respondents. The respondents have filed an affidavit-in-opposition denying the averments made in the petition,,,
by the petitioners.,,,
Learned counsel for the petitioners contended that in the other forces like BSF and ITBP promotional avenues were created for diploma,,,
holder engineers by amending the Recruitment Rules whereby 50% posts have been earmarked, however, no such promotional avenues have been",,,
created in Assam Rifles at par with the other Central Para Military Forces thereby discriminating the petitioners in the matter of creation of,,,
promotional avenues.,,,
It was also contended on behalf of the petitioners that diploma holders, subordinate engineers or senior engineers working in other Central",,,
Government Organizations such as MES under the Ministry of Defence are getting promotion in Group-A cadre after rendering regular services of,,,
seven years, but such avenues of promotions are not available to the petitioners in Assam Rifles. The Scope of promotion is very limited in Assam",,,
Rifles, therefore, even after rendering services of more than 20/25 years employees working in the cadre of JCO (B&R) are retiring in the same",,,
capacity on superannuation without availing any promotion.,,,
The counsel for the petitioners also contended that there is selective promotion policy in the Assam Rifles, which is arbitrary, illegal,",,,
discriminatory and opposed to the provisions of Articles 14 and 16 of the Constitution of India. It is further contended that those who are working,,,
as Naib Subedar (Surveyor Assistant) having diploma in civil engineering have opportunity of promotion just after completion of three years of,,,
service by way of introduction of ROI 2002 (RPE 2003), but the respondents are hostile against the petitioners who were working as Naib",,,
Subedar for long 22 years in the same department.,,,
It is also argued on behalf of the petitioners that the impugned order rejecting the claim of the petitioners was passed mechanically and,,,
arbitrarily.,,,
Placing reliance on the judgment of the Hon''ble Supreme Court in the case of ''Union of India v. Dineshan K.K.'', (2008) 1 SCC 586, the",,,
counsel for the petitioners urged that the case of the petitioners is squarely covered with this judgment where Radio Mechanics of Assam Rifles,,,
approached the Court claiming parity in the pay scale with their counterparts in other Central Para Military Forces which was granted by the,,,
Court.,,,
Per contra, learned counsel for the respondents submitted that rank, pay and allowances have been given to the petitioners as applicable to all",,,
Assam Rifles personnel as per the guidelines and rank structure/pay and allowances applicable as per Recruitment Rules have also been extended,,,
to the persons of Assam Rifles.,,,
It is also argued by learned counsel for the respondents that the promotional avenues for Naib Subedar (B&R) are up to the rank of Subedar,,,
(B&R) and Subedar Major (B&R) as per the authorization of vacancy. The cadre strength of Engineer JCO (B&R) consists of one Subedar,,,
Major (B&R), 12 Subedar (B&R) and 47 Naib Subedar (B&R). There are no further promotional avenues beyond the rank of Subedar Major",,,
(B&R) as per Recruitment Rules, 2000 and Restructured Peace Establishment of Assam Rifles, 2003.",,,
It is further contended by learned counsel for the respondents that direct entry of Naib Subedar (B&R) was introduced in Assam Rifles since,,,
1987 and those who were seniors and fulfilled the requisite qualitative requirement for promotion including the residency period of 3-5 years,,,
required for promotion were promoted and 12 vacancies available were filled up.,,,
Learned counsel for the respondents also urged that the rank and pay and allowances have been given to the petitioners as applicable to all,,,
Assam Rifles personnel as per the guidelines and rank structure/pay and allowances applicable as per Recruitment Rules has also been extended to,,,
the persons of Assam Rifles.,,,
It was also submitted by learned counsel for the respondents that on the recommendation of the 4th Pay Commission w.e.f. 1st January, 1986",,,
the force has been granted pay and allowances entirely on the lines of Central Para Military Forces while no change in the rank structure was,,,
carried out. The petitioners are now seeking higher rank in Assam Rifles is not tenable and the petitioners will be promoted to the next higher rank,,,
as per Recruitment Rules in their trade and seniority as per availability of vacancies and fulfilment of promotion criteria.,,,
The learned counsel for the respondents further argued that the Recruitment Rules and service conditions of the Central Police Organizations,,,
such as CRPF, ITBP, BSF and CISF are governed by their respective Act and Rules framed by the competent authority as such no parallel can",,,
be drawn. It is also stated that every force have their assigned duties and responsibilities and job requirement and the pay and allowances, rank",,,
structure etc. are regulated by the norms prescribed from time to time. As such the rank and designation of the Assam Rifles and the other CPOs,,,
cannot be exactly similar.,,,
It is further submitted on behalf of the respondents that ACP/MACPs introduced by the Government were granted to the petitioners to ensure,,,
protection of their financial interests. The said Scheme was introduced by the Government to ensure protection of financial interests of the,,,
employees in case they do not get promotion due to limited number of vacancy in higher ranks. Under these Schemes, higher pay scales at regular",,,
intervals of service are granted to the employees. In the case of the petitioners they have although not been given promotion due to limited number,,,
of vacancies but were given two financial upgradations to safeguard their financial interests.,,,
The counsel for respondents further contended that in deference of the judgment and order dated 22nd December, 2011 the matte was taken",,,
with the Ministry of Home Affairs wherein the Ministry have examined the matter in detail and rejected the claim of the petitioners.,,,
I have heard learned counsel for both the parties and also gone through the material placed on record.,,,
Admittedly, the petitioners can be considered for promotion only upon the availability of vacancies and there are fewer vacancies in the",,,
promotional cadre of the petitioners. It is also not disputed that the petitioners have been granted the benefits of Assure Career Progression,,,
Scheme (ACP). In terms of the ACP Scheme an employee if not promoted within 12 years is granted one higher scale of pay and another upon,,,
completion of 24 years, if in the meanwhile he had not been promoted despite existence of promotional avenues.",,,
The promotional avenues are provided in the Assam Rifles in the grade of the petitioners, however, since the vacancies are less in the",,,
promotion grade, the chances of the petitioners are bleak. The matter was taken up with the higher authorities, however, the competent authority",,,
considered the matter and did not rule in favour of the petitioners.,,,
In deference to the directions given by this Court, the matter was taken up with the Ministry of Home Affairs which examined and considered",,,
the claim of the petitioners and rejected the same vide speaking order dated 20th December, 2012 with the following observations:-",,,
""(a) The petitioners were enrolled as Naib Subedar (Bridge & Road) in Assam Rifles as per Assam Rifles Recruitment Rules.",,,
Therefore, pay and allowances/rank is applicable to the petitioners as applicable in the line of rank structure granted as per",,,
Recruitment Rules approved by the Government of India. The respondent is bound to follow the laid down Recruitment Rules,",,,
charter of duties and cannot change the criteria which appear to be more intelligible from the petitioners'' point of view. The,,,
petitioners will be promoted to the following ranks in their trade and seniority as per availability of vacancies and fulfilment of,,,
promotion criteria.,,,
(b)The rank structure has been approved by the competent authority and Recruitment Rules framed accordingly. Hence, Recruitment",,,
Rules cannot be termed as unconstitutional. Hence, considering the rank structure existing in the Assam Rifles, absorption of these",,,
persons in higher rank of Subedar will not disturb the hierarchy of the trade but will also be in contravention to the Recruitment Rules,,,
and Restructuring Peace Establishment which are statutory in nature.,,,
(c)Stagnation of a person in a rank despite being qualified for the higher rank cannot be a valid ground for the promotion/up-,,,
gradation as the rank structure in security forces is paramilitary in nature and promotions are always based on vacancies available.,,,
Ser No.,Rank Structure,Rationalised Pre-revised pay Scale (in Rs.),Replacement scales (in Rs.)
(i),Constable/Security Assistant,950-1400,3075-4590
(ii),Head Constable,975-1660,3200-4900
(iii),Assistant Sub-Inspector,1320-2140,4000-6000
(iv),Sub Inspector/ACO-II,1640-2900,5500-9000
(v),Inspector/ACIO-I,2000-3200,6500-10500