KARNAIL SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) Appellant Shri Karnail Singh joined on March 23, 1955 Indian Air Force as Clerk-cum-Pay Accountant in Group III. He was promoted to the rank of Corporal. Air Field Safety Operators (AFSO for short) constitute a technical branch in Group II in the Indian Air Force. The post in this branch carry better pay scales and swifter promotions compared to post in Group III. The appellant applied for and obtained enrolment in Air Field Safety Operators branch in the year 1961. This movement by change of trade is styled as remustering in the technical parlance of the Air Force. The appellant was thus remustered on July 1, 1961. The appellant alleged that in the manner of seniority, he was entitled to get credit for the service rendered by him prior to his remustering in Group II and if his seniority is thus correctly reckoned he has become eligible for promotion to the rank of Flight Sergeant, a cadre now redesignated as Junior Warrant officer long before many persons junior to him have been promoted. The appellant alleged that persons junior to him have already been promoted as Junior Warrant Officers in violation of Regns. 265, and 282 of the Regulations for the Air Force ('Regulation' for short), read with the instructions contained in A.F.I.-12/s/48. As he failed to get his promotion, the appellant filed a Writ Petition No. 1474 of 1977 in the Allahabad High Court inter alia contending that promotions given to the persons who are junior to him in the seniority list is violative of his fundamental right under Art. 16 of the Constitution and that therefore, writ be issued directing the respondents to promote him as Junior Warrant Officer from a retrospective date when persons junior to him were promoted.

(2.) The respondents in the affidavit-in-opposition contended that when the appellant was permitted to change the trade, he had given an undertaking that he would not claim any benefit of his previous service in the trade of clerk. It was submitted that when remustering is permitted from a lower group to a higher group, such a person is not entitled to get credit for his service in the lower group while reckoning his seniority in the higher group. It was pointed out that the appellant belonged to Group III when he was remustered and on remustering he was placed in Group II and therefore, he was not entitled to get credit for his service in the lower group for adjusting his seniority in the higher group. It was stated that the appellant was remusterad on July 1, 1961 and was restored to the rank of Corporal on June 1, 1963. He was promoted to the rank of Sergeant on Nov. 1, 1969. It was also contended that in view of the instructions contained in the Communication RD/600 dated Nov. 20, 1959, the appellant was not entitled to promotion as Flight Sergeant until he completed a total period of 12 years of service or 4 years' service as Sergeant which in the case of appellant would be as July 1, 1973 or Nov. 1, 1973 respectively.

(3.) The High Court held that in view of the provisions contained in Regulation 265 unless a specific provision is made for giving benefit of service in the former trade for reckoning seniority in remustered higher group, the same is not available. It was further held that the appellant was not entitled to get credit for any portion of his service in the earlier trade for adjusting his seniority in the remustered trade, more so because before remustering he was in Group III while on remustering he was brought to Group II and two trades were not alike. The High Court rejected the contention of the appellant that his case would be covered by para 282 holding that it covers the cases of promotion of direct entrants to a particular trade and governs the cases of Airmen who are mustered in particular trade and were to be promoted in the same trade. The claim advanced by the appellant for promotion relying upon Communication No. HO/40653/56/PA-III dated September 10, 1970 was rejected holding that it applies to the case of future promotion in Group I so as to give full benefit of period of service in Group II as well as the period spent in the course for remustering in Group II and as the appellant was originally mustered in a trade in Group III and later on remustered in Group II he was not entitled to the benefit of it. Accordingly, the High Court rejected his writ petition. Hence this appeal by special leave.