HAVALDAR SHITAL PRASAD SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) THE Petitioner prays for the issuance of a writ of certiorari calling for the records of the case and for the quashing of the Instructions dated 9. 5. 2002; and for a direction to promote the petitioner to the rank of Naib subedar and that his seniority be counted with effect from 1. 6. 2002 having passed the Army English Certificate-II (AEC-II ). The Petition discloses that the Petitioner was enrolled in the Army on 27. 5. 1982 in the rank of Sepoy. At that time the Petitioner was a matriculate, however without English being one of his subjects. There is some controversy as to whether the petitioner was an Infantry Soldier or a Gunner. From the Counter of the respondent it appears that he could have fulfilled these dual roles. The petitioner has been promoted to the rank of havaldar on 1. 1. 1999 without having cleared the AEC-II. It is not in dispute that the Petitioner has cleared the Promotion Cadre Test on 27. 6. 2001, making him partially eligible for the promotion of Naib Subedar. The Petitioner makes a grievance of the fact that after about one year of that event, on 9. 5. 2002, he was informed that his promotion could not be effected as he had not passed the AEC-II examination. According to the Petitioner this is the first time he came to know that an essential prerequisite for being promoted to the rank of Naib subedar was passing of this Examination. The letter dated 9. 5. 2002 is annexure P-2 to the Petition. The letter also mentions that the said precondition would apply to drivers/operators/gunners, and obviously for this reason a controversy has been raised as to whether the Petitioner was in the Infantry or was a Gunner.

(2.) THE immediate question that arises is whether the Petitioner learnt of the necessity to pass the AEC-II in May 2002 or even prior thereto. Learned counsel for the Respondent has drawn our attention to Appendix 'c' to the letter dated 9. 5. 2002 containing a note which reads thus:-Personnel who have passed Matric or equivalent exam without English and with Maths subjects need not to pass any Army Certificate of education and Army English Certificate but required to pass Army english Certificate of initial mustering and subsequent upgradation.

(3.) INSTEAD, learned counsel for the Petitioner seeks to rely on Appendix 'd' which refers to personnel enrolled in the army under Matric prior to 1/4/1986 and personnel enrolled in the Army under dispensation in education standard for recruitment vide Army hq letter No. B/10133/mp3 (PBOR) dated 19. 3. 2001 are required to pass only Army Certificate of education for initial mustering and subsequent upgradation. However, on a proper perusal of Appendix-C it will become evident that in the case of the petitioner it was necessary for him to have cleared AEC-II as he was a normal Entry Rate, that is, a Matriculate with Maths but without English. A letter vide dated 19. 3. 1991 given under annexure-I reiterates that 'normal Entry Rate' personnel who are lacking mandatory requirement ot passing a particular subject are required to qualify the same before they are detailed to undergo the promotion cadre. Although the question does not arise in this case, for the Petitioner to be eligible for further promotion to subedar, he would have to clear AEC-II. It is worth emphasising that these requirements have been laid down in Qualification regulations for Soldiers, 1958 (for short Regulations) dated AI115/70 (CS No. 306/10/70 ). Rule 8 of the Regulations specifically states that persons who have passed matriculation examination without English as one of the subjects will require to pass the Army English Certificate examination as prescribed for the concerned category in Chapter-IV for initial mustering and subsequent upgradation. It is noteworthy that these regulations predate the petitioner's engagement in the Army.