EX HAVILDAR SATYAVIR SINGH Vs. UOI

JUDGEMENT

(1.) The petitioner is serving as a Havildar in the Indian Army. For promotion to the next higher post of Naib Subedar, he appears to have undergone the prescribed test in the year 1998. The result of the said test, a copy whereof has been produced as Annexure P1 to the petition, shows that the petitioner had failed in Drill, Tactics and Field Engineering. He appears to have appeared in the said subjects again in the year 1999. The result of the said subsequent test has been enclosed with the petition as Annexure P3 and shows that the petitioner had failed in the BPET i.e. Battle Physical Efficiency Test. His grievance in the present writ petition now is that since the petitioner had qualified in the BPTE in the year 1998, the said result ought to have sufficed for purposes of promotion to the post of Naib Subedar. He has in the present writ petition prayed for a declaration to the effect that he has passed the promotion test in the year 1999 and is therefore entitled to be promoted as a Naib Subedar from the date he did so.

(2.) Mr. Deo, learned counsel appearing for the petitioner strenuously argued on the strength of Army Order No. 45/1980 that once a candidate qualify in a particular test, he would not be required to appear for the same again. In particular, he relied upon para 13 of the order which states that if a candidate fails, he will be re-tested only in the subjects in which he has failed. It was contended by the learned counsel that since the petitioner had qualified the BPET in the year 1998, there was no need for him to qualify in the said test again in the year 1999 and that even if he had failed in the BPET for the year 1999, it did not affect his entitlement for promotion to the rank of Naib Subedar.

(3.) On behalf of the respondents, it was on the other hand contended that Army Order No. 45/1980 did not exempt the officers, NCOs and JCOs from remaining physically fit to fight at all times. It was urged that Army Order No. 45/1980 relied upon by the petitioner related only to the subjects enumerated in para 7 of the said order. BPET was not one of the tests or subjects covered by para 7. Para 13 of the Army Order No. 45/1980, therefore, had no application to the requirement of the officers remaining physically fit to fight at all times and that qualifying BPET every year was a condition which had to be satisfied by anyone who had appeared and passed in the written examination for promotion to the next rank. Reliance was placed in support of that submission upon Section 13 of the Army Regulations governing physical efficiency test which inter alia prescribe that every soldier is expected to remain physically fit to fight at all times and that the physical efficiency and physical proficiency test shall be conducted for all such officers, JCOs and trained soldiers once a year. The annual test conducted in the year 1998 was no doubt passed by the petitioner but for the year 1999, the petitioner had failed in the said test. Not only that, the result according to the learned counsel shows that the petitioner had failed in subsequent annual BPETs also till the year 2001. He was thus not eligible for promotion to the next higher rank of Naib Subedar even when he had qualified in the written test.