PRATAP SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) This writ petition is directed against the order dated 6.1.1999 passed by the respondents retiring the petitioner from -service upon his failure to successfully clear his promotion examination Part 'B.' within .his 11 . years of reckonable service.

(2.) The petitioner joined the Indian Army on 1.11.1979. He was commissioner into the Indian Army as Second Lieutenant on 14.6.1986 after putting in 7 years and 7 months pre-commission service. In terms of the army orders the due date in the case of the petitioner for passing his promotion examination part 'B' without loss of seniority was within 5 years of reckonable service i.e. on or before 14.6.1991 and the last date for the petitioner to clear his promotion examination part 'B' with loss of seniority was within 11 years of reckonable service i.e. on or before 14.6.1997. On the ground that the petitioner had not cleared his promotion examination part 'B' by 14.6.1997 a show cause notice was issued by the respondents on 11.9.1997 requiring him to show cause as to why he should not be compulsorily retired or removed from service in terms of the provisions of rule 13-A of the Army Rules. On 'receipt of the said notice the petitioner submitted his reply on 5.8.1998 and also submitted a statutory complaint dated 3.8-1998. The aforesaid reply submitted by the petitioner as also on the recommendations of the Military Secretary the Central Government in exercise of the powers conferred,upon *i't by section 19 of the Army Act read with Rule 13-A of the Army Rules issued an order on 6.1.1999 directing that the petitioner be retired from service on payment of pension and gratuity, if any, admissible to him. The statutory complaint dated 3.8.1998 filed by the petitioner was also considered and rejected by the respondents on 22.4.1999. Being aggrieved by the same the present petition was preferred by the petitioner.

(3.) Challenge is made to the aforesaid order by the petitioner on the ground that the impugned order is illegal, arbitrary and without jurisdiction. Counsel appearing for the petitioner during the course of her arguments relied upon the review of the policy on termination of service for failure in promotion examination part's" issued by the respondents on 24.8.1999. A copy of the said review policy of the respondent dated 24.8.1999 is placed on record which, provides that the officer's services would not be terminated due to not passing part "a" examination till 20 years of reckonable service. It was also provided therein that the officers who fail to qualify in promotion examination part 'B' and/or 'D' on completion of 20 years of reckonable service would be' issued show cause notice under Army Rule 13-A for termination of service and their services would be terminated as per provisions of Army Rule 13-A. It is also indicated therein that the aforesaid changes ,in the provisions would be effective with retrospective effect i.e. from 24.4.1998. Relying on the said review policy the counsel for the petitioner submitted that as per the said policy the services of the petitioner were required to be continued until he completed 20 years of reckonable service. It was also submitted by her that as the petitioner has been deprived of his chances to clear the examination twice due to the fault of the respondents the petitioner should have been given the compensatory chances to clear the promotion examination Part "B' and having not done so the impugned order is liable to be set aside and quashed. During the course of her arguments she laid emphasis on the fact that both in 1991 and 1992 when the petitioner was scheduled to appear in his examination he was ordered to be moved out and was thus unable to prepare for the examination and therefore, he could not clear the same.