UNION OF INDIA Vs. CAPT SATENDRAKUMAR

JUDGEMENT

(1.) Challenge in this appeal is to the legality of the judgment rendered by a Division Bench of the Allahabad High Court holding that the respondent is entitled to be re-instated and is to be given time upto 9.6.2004 to pass the Part B examination.

(2.) The background facts in a nutshell are as under: Respondent was commissioned on 9.6.1984 as an Officer in the Indian Army. In terms of Rule 13-A of the Army Rules, 1954 (in short the Rules) read with para 79 of the Defence Service Regulations (in short the "Regulations) all commissioned officers were required to pass, in terms of the existing rules, the promotional examination (Part B) within 13 years of reckonable service. Thereafter, they were required to pass Part D examination for promotion within 20 years.

(3.) The respondent making apparently wrong and erroneous representation that he had completed Part B course and had passed, applied for next promotional Part D examination without indicating correct particulars regarding the results of Part B examination in the application form. When the authorities found that he was not eligible, his result in Part D examination was declared to be void. Since the respondent had not completed Part B examination as per the existing rules and Special Army Instructions a show cause notice was issued in terms of Rule 13-A of the Rules. Respondent replied to the show cause notice and made a statutory complaint. While the matter was pending, on 8.1.1998 the respondent was awarded severe displeasure (non -recordable) for filing false application form for Part D examination. This was, however, un-connected with the show cause notice issued earlier under Rule 13-A. On 20.8.1999 the Government of India amended Army Instructions whereby the time limit for completing the examination was extended from 13 years to 20 years. It was however made applicable with effect from 24.4.1998. On 5.7.2000 the appellant communicated its decision not to retain the respondent in service as he had failed to qualify in Part B examination within the prescribed time limit. On receipt of the order in question which permitted the respondent to make a representation, if any, within 15 days, the respondent made a representation on 2.8.2000. On 21.9.2001 order was passed retiring the respondent from service in terms of Section 19 of the Army Act, 1950 (in short the Act) read with Rule 13-A of the Rules.