Dashrath Prasad Singh @ D.P. Singh Vs. Union of India, Represented by the Secretary - Court Judgment

Padmanabhan Nair, Member (J):

1. This Transferred Application was filed as a Writ Petition before the Honourable High Court of Karnataka by the petitioner for quashing Annexures A, B and C communications and for a direction to the respondents to grant the petitioner the pay and allowances which would have been entitled to him for one year as ruled by the learned Single Judge of the Honourable High Court of Karnataka in Writ Petition Nos.10854-10861 of 1989. The Writ Petition was transferred to this Tribunal consequent to its formation.

2. The petitioner was enrolled in the Army Service Corps on 21.12.1966 with a term of engagement of 18 years of colour service and 3 years in reserve as per Army Instruction 1/S/76. He was promoted to the rank of Naik with effect from 9.4.1972 and Havildar with effect from 6.9.1979. Since he was promoted as Havildar, he was entitled to continue in colour service up to 22 years. The Government of India had increased the service of Havildar from 22 to 24 years. An option was given to the Army personnel either to continue in the old service or to come to the extended period. The petitioner and some others did not exercise this option either way. So, the respondents treated the petitioner as a person to be governed by the old period applicable to Havildar. Accordingly, on completion of 22 years, he was retired on 31.12.1988. Aggrieved by the order of discharge, the petitioner filed Writ Petition No.10856 of 1989. Seven other similarly placed persons also filed Writ Petitions. All those writ petitions were consolidated and heard together. The challenge in all the eight writ petitions was directed against Order No.1831/DO/1/103/CA3 dated 18.12.1987, by which the petitioner and others were discharged from service and also for a direction to promote the petitioner to higher cadre. The prayer was opposed by the respondents. The main contention raised in all the eight Writ Petitions was that, for getting the benefit of extension the petitioners ought to have exercised the option to switchover to the extended period. According to the respondents, the petitioner in W.P. No.10857 of 1989 and the petitioner in W.P. No.10858/89 had opted to remain under the old rule. The petitioner in the other six petitions had not exercised option either way. The Honourable High Court was called on consider the question regarding the claim of other petitioners who had not exercised the option in either way and who had been compulsorily discharged as per the pre-existing terms. The learned Single Judge after considering the rival contentions held that the petitioners would have been entitled to continue in service till they attain the cut off age as per Annexure C order appended to that Writ Petition. It was further held that as they had attained the age of superannuation, they would be entitled to receive the monetary compensation. It was further directed that the compensation and consequential benefits would be awarded to them after re-examining their case. That judgment of the learned Single Judge was challenged in appeal before the Division Bench by the Union of India and others. The Division Bench disposed of the appeal on 26.8.2002. The operative portion of the judgment reads as follows:

“3. On consideration, we find no error or illegality in the order passed by the learned Single Judge so as to call for any interference. The writ appeal is dismissed. However, the dismissal of the appeal will not preclude the parties to approach the concerned Authority and the Authority will consider the case as per law.”

On 10.12.2003, the respondents passed an order by which the claim of the petitioner to continue in service for another two years was rejected.

3. The petitioner filed CCC No.918 of 2005 before the Honourable High Court of Karnataka alleging that the respondents have deliberately flouted the directions issued by the learned Single Judge and are liable to be punished for contempt. When the matter came up for hearing, the counsel who appeared for the petitioner sought permission to withdraw the contempt petition with liberty to question the legality or otherwise of the orders passed by the respondents on 10.12.2003. The permission sought for was granted and the contempt petition was disposed of as withdrawn. It was further held as follows: “However, liberty is reserved to the petitioner to question the correctness or otherwise of the orders passed by the respondents dated 10.12.2003 before the appropriate forum. Ordered accordingly”. Thereafter, the petitioner filed this application as a Writ Petition before the Honourable High Court of Karnataka challenging the order dated 10.12.2003. In this Writ Petition also, the main contention raised is that the order dated 10.12.2003 is passed in violation of the order passed by the learned Single Judge. According to the petitioner, in view of the order, the respondents ought to have granted the benefits to the petitioner and it was not subject to any screening by any Screening Board or verification of service record for any entry of punishment received during service or the medical category of the incumbent. It is contended that petitioner was entitled to continue in service for a minimum period of 23 years. The petitioner has also got a case that he is entitled to get notional promotion to the next cadre as many of his juniors were promoted ignoring his lawful claim. Hence this application to quash Annexure A and B orders and for a direction to grant him pay and allowances for one year as directed by the learned Single Judge in W.P. Nos.10854 – 10861/1989.

4. The respondents have filed a statement of objections. It is admitted that petitioner was enrolled in the Army on 21.12.1966 with a term of engagement of 18 years of colour service and 3 years in the reserve. It is admitted that petitioner was promoted to the rank of Naik with effect from 9.4.1972 and Havildar with effect from 6.9.1979. It is also admitted that the Government of India had increased the service of Havildar to 24 from 22 years. But, it is contended that increase of two years was subject to the condition that Army personnel was found suitable for grant of extension by two years by a Screening Board. It is further contended that for being screened, each and every individual has to exercise his option in writing. The petitioner did not exercise his option. So, he continue to be governed by the old rules applicable to Havildar. So, he was retired on completion of 22 years on 31.12.1988. The filing of the Writ Petition and the order passed are admitted. According to the respondents, the only direction issued by the Honourable High Court was that persons who did not exercise option shall be deemed to have come over to the new terms by virtue of clause 3 of Annexure C attached to that Writ Petition. It is contended that the Honourable High Court only held that those petitioners are eligible to be considered whether they are entitled to get extension. It is further contended that extension is not automatic and for getting the extension of two years the army personnel shall fulfil certain conditions. It is contended that the incumbent must be in medical category 'AYE'. He should not have more than three red ink entries (including upto a maximum one in the rank held) and should not have been convicted for an offence given in Appendix A to Army HQ letter dt.16.8.1977 and the Annual Confidential Report should not be less than average for the last five years. It is contended that in pursuance of the order issued by the High Court, four persons including the petitioner claimed the benefit. Three of them were given the benefit as they satisfy all the eligibility criteria, but the petitioner was not given extension because he was placed in law medical category BEE (Permanent) with effect from 6.6.1988 which is lower than 'AYE'. It is also contended that petitioner was awarded the punishment of severe reprimand for an offence under Army Act, Section 41, for disobeying the lawful command given by his superior on 17.3.1975. It is further contended that award of punishment for an offence under Section 41 of Army Act will make a person ineligible for extension for two years. So, the petitioner is not entitled to get the deemed extension for two years. It is also contended that the case of the petitioner that he is entitled to continue at least for one more year as his initial term of engagement was 18 years of colour service and 3 years in reserve is not correct. It is contended that initially it was 18 years colour service and three years in reserve. It was revised to 20 years colour service and 3 years in reserve after the discharge or till attainment of 46 years whichever is earlier. Subsequently it was increased to 22 years and then to 24 years. It is contended that petitioner has failed to distinguish between the service in colours and the Reserve. It is contended that colour service is the service an individual actually puts in the Army and it cannot be combined with the reserve liability. It is contended that he is not included in the Reservist Force and the reserve liability is a liability which an individual carry after his discharge on completion of tenure of service. He is not entitled to get any pay or allowance for this Reserve period. It is intended to recall the retired persons in case of any exigencies of service. In such cases, the individuals carrying reserve liability can be recalled. So, the contention of the petitioner that he is entitled to atleast one year's pay and allowances is untenable. The case of the petitioner that many of his juniors were promoted is also denied. It is contended that no junior of the petitioner was promoted to Naib Subedar before 31.12.1988. The seniority number of the petitioner was 1040. The last individual who was promoted to the rank of Naib Sebedar was seniority No. 1008. So, in between the petitioner and the last rank promoted there were 32 more seniors. Hence the respondents pray for dismissal of the application.

5. The only question arising for consideration in this proceedings is whether the case of the petitioner that in Writ Petition No.10859/1989 and connected cases there was a direction to give extension to the petitioner for two years is correct or not?

6. A reading of the judgment in the above case shows that the learned Single Judge of the Honourable High Court of Karnataka found that persons like the petitioner who did not exercise the option is entitled to be considered as they shall be deemed to have come over to the new term and whatever compensation or consequential benefit shall be awarded to them after re-examining their case. If the intention of the learned Single Judge was to issue a direction to extend their service by two years, there was no need to issue a direction to re-examine their case. The petitioner did not challenge that decision. The respondents filed a Writ Appeal, which was dismissed. But, the Division Bench also observed that dismissal of the appeal will not preclude the parties to approach the concerned authority and the authority will consider their case as per law. So, it is not possible to accept the contention of the petitioner that there was a direction to extend the tenure of the petitioner either for one year or two years. The High Court only said that they are entitled to be considered for getting extension. The respondents have produced the Army Head Quarters letter No.A/16099/Policy/AG/PS2(c) dated 18.12.1976, which enjoins that before granting extension, there shall be a screening of their eligibility. It was stated that all JCOs and NCOs who opt for new term will be screened by the Screening Board to be held at Unit/Regiment/Corps basis, as applicable, to assess their suitability for retention. The procedure and criteria for screening is laid down in Appendix C to that letter. Appendix C shows that there are four criteria. The first is medical classification, second is physical fitness, third is professional competence and fourth is discipline. On 16.8.1977, an amendment to this criteria was ordered as per letter No.A/16099.Policy/AG PS2(C) dated 16.8.1977. The operative portion of that letter reads as follows:

“2. With immediate effect, the following criteria will be followed and consideration of cases of JCOs/NCOs for retention upto the enhanced age/service limits:-

(a) Medical Standards – Must be medical category 'AYE'.

(b) Discipline - Should not have more than three red ink entries (including upto a maximum of one in he rank held) and should not have convicted or awarded a recordable censure (for JCOs only) for offences as given in Appendix A.

(c) ACRs/Character rolls:

(i) NCOs: No report in the last five years should be less than 'average'.

(ii) Nb Ris/Nb Sub: Majority of reports in the last five years, irrespective of rank should be 'High average'. None of these five reports should be less than average.” In paragraph 3 of the above letter, it is stated that the above criteria will be applicable to all who are in service irrespective of the recommendation of the screening board already held on them. The petitioner has got a case that even if a screening is to be done, that should have been done three years prior to the date of retirement as stated in letter dated 18.12.1976. We do not find any merit in this contention because letter dated 16.8.1977, which is marked as Annexure M to this application makes it very clear that the person must be in medical category 'AYE' on the date on which he is entitled to get extension. It is admitted by both sides that petitioner's original term ended on 31.12.1988 and if he is found otherwise suitable he ought to have got extension for two years from that date. In the counter affidavit, the respondents have contended that petitioner was included in low medical category BEE (Permanent) with effect from 6.6.1988, which is lower than 'AYE'. This averment is not disputed by the petitioner. So, the stand taken by the respondents that the petitioner does not satisfy the medical criteria is correct and on that ground alone, the decision of the respondents not to grant him extension is to be upheld. It is also contended that petitioner was severely reprimanded for an offence under Section 41 of the Army Act for not obeying the lawful command of his superior on 18.3.1975. So, the decision taken by the respondents not to grant extension is correct and does not all for any interference.

In the result, the Transferred Application is dismissed.

No costs. Issue free copies of the order to both sides.