DRF SATVIR SINGH Vs. UOI

JUDGEMENT

(1.) The short question that falls for consideration in this petition is whether the respondents could have cancelled the result of a promotion examination in which the petitioner had appeared and was declared successful year and a half after such declaration. The cancellation, it is common ground, was not on account of any inherent ineligibility suffered by the petitioner but on account of his failure to seek prior permission of the Commanding Officer of his Unit to write the examination. The respondents argue that any Non Commissioned Officer like the petitioner eligible for appearing in the promotion examination was required to take prior permission of the Commanding Officer concerned before he actually appeared in such examination. This permission was not in the case of the petitioner obtained before he was permitted to appear in the examination by the competent authority in the Automotive Regiment, Ahmednagar where he was sent on Extra Regimental Employment. Nearly 18 months after the declaration of the result, an order of cancellation was passed on the ground that the prior permission of the Commanding Officer of his parent unit had not been taken. The petitioner was sent home upon completion of 24 years of service as a Havildar. Aggrieved, he has in the present writ petition, not only assailed the order cancelling the result of his examination but prayed for a mandamus directing the respondents to reinstate him with all consequential benefits including promotion to the next higher rank of Naib Risaldar/Naib Subedar.

(2.) The petitioner was serving as a Dafedar in 63, Cavalry. He was eligible for appearing in the promotion examination for his promotion to the next higher rank of Naib Subedar/Naib Risaldar as per the existing rules on the subject. He appeared for the said examination between 25th March, 2004 to 27th April, 2004 and cleared 7 out of 11 subjects in all. Before he could reappear in the subjects in which he had failed, he was sent on an Extra Regimental Employment to Automotive Regiment, Ahmednagar where he appeared in the remaining 4 subjects between 6th to 9th September, 2004. His result was declared by the concerned Board of Officers who conducted the examination. A copy of the Board proceedings and Part 2 Order notifying the result of the petitioner has been enclosed with the petition.

(3.) The petitioner returned to his parent unit, i.e., 63 Cavalry in October, 2005. He was then asked to appear again for the remaining 4 subjects which, he had already passed while he was on Extra Regimental Employment. He appears to have made yet another attempt to appear in the said examination between 4th October, 2005 and 3rd November, 2005 and passed for the second time 2 out of the 4 subjects in which he had failed in his first attempt. In the meantime, the result of the examination taken by the petitioner in Automotive Regiment, Ahmednagar between 6th to 9th September, 2004 was cancelled by the respondents on 12th January, 2006. Because of the said cancellation and keeping in view the fact that the petitioner had not cleared the remaining 2 subjects, he no longer remained eligible for promotion to the rank of Naib Risaldar. He was, therefore, sent home on superannuation w.e.f. 28th February, 2007 in the rank of a Havildar in terms of a certificate dated 28th February, 2007 enclosed to the writ petition as Annexure-P12. Aggrieved the petitioner has questioned the order of cancellation and discharge and prayed for a mandamus, as already indicated earlier.