KULWANT SINGH HALVINDAR Vs. UNION OF INDIA

JUDGEMENT

(1.) In this writ petition under Article 226 of the Constitution of India, the petitioner prays for direction to the respondents to consider the petitioner's fresh option certificate for extension of two years's Army service.

(2.) The say of the petitioner is that the petitioner joined the Army service on 30.9.1975 at the age of 18 years and presently servicing with 53 Engineer Regiment completing his 24 years of service by 30.9.1999: that the Government of India, vide their Signal No. 351706/A5/PS-2 (C) dated 15.5.1998 had asked to submit the option/non-option certificate for extension /enhancement in retirement age by two years in all ranks in a specific form : that the Havildar is authorised for 24 years of service and age limit of 45 years, whichever is earlier; that a privilege/ opportunity has been given for those effected personnels who were going to discharge before completing their terms of engagement of service due to completing their early retirement age; that the petitioner being non-effected has submitted his non-option certificate for enhancement/extension in retirement age by two years and forwarded to Records Bengal Engineer Group Roorkee vide 53 Engineer Regiment Letter No. 1190-A/86/47 dated 20.7.1998; that as per Singal No. A-5600 dated 6.6.1998 issued by the Records Office, Option/Non-option certificate for extension/enhancement in retirement age by two years was asked for but as per contentsofpara(2)of53 Engr.Regt. Letter dated 20.7.1998, it was forwarded for extension of service limit by two years which is in violation of Letter and spirit of Government order dated 15.5.1998 : that the petitioner, as per his present terms of engagement, after completion of 24 years, has been sanctioned to be struck off from the Army service w.e.f. 30.9.1999 (A.N.), vide Records Bengal Engineer Group Roorkee letter No. 1458/27/53 ER/R/D-3 (A), dated 23.10.1998; that the Army Headquarters issued another amendment in the above signal and an opportunity was given also for extension of service by two years as well in retirement age vide their letter No. B/33098/AG/PS-2(c) dated 9.10.1998, which was communicated vide Records Letter No. 5211-A/49/Vol.-lll/R/CA 3 dated 28.10.1998 and the petitioner's service would be extendable from 24 years to 26 years and hence submitted fresh option certificate dated 11.2.1999 for extension of service and retirement age by two years to the commanding officer 53 Engineer Regiment; that the Officiating Chief Records Officer has intimated the inability to accept the fresh option certificate as it would disturb their ongoing process of grant of extension to those retiring within next three years; that the petitioner belongs to District Shamba Sector, Village Rangoor Camp, J & K; that due to present situation in Kargil, it is not possible to survive for the petitioner and his family members after retirement ;that JC-199753F Sub/SKT Biru Ram Radhe of the same unit who had earlier submitted his non option certificate later on submitted his option certificate for extension of service by two years has-been considered for retention inservice vide Group Part -II Order No. 1/143/99 dated 1.3.1999. .

(3.) Vide counter affidavit the respondent states that the writ petition is not maintainable as there is no cause of action disclosed inasmuch as there is no infringment of petitioner's legal or fundamental right; that the petitioner seeks to retract his own voluntary decision to opt out from the extension of option given to all the personnel in the Army for extension of their retirement age/service limit, whichever is earlier; that the petitioner way back on 16.7.1998 conveyed his decision not to opt for extension of his retirement age/service limit; that the petitioner in the normal course would retire from service on completion of 24 years of service or on attaining age of 47 years of age whichever is earlier; that the petitioner would thus retire from service in the normal course on 30.9.1999: that on the basis of nonoption certificate dated 16.7.1998 the case of the petitioner was put before the Screening Committee constituted by the respondents, who, after screening the petitioner's case have vide their order dated 14.12.1998 cleared the petitioner's case for discharge from service in the normal course upon completion of service tenure as on 30.9.1999; that Sub. Biru Ram Radhe retracted his decision prior to his case being submitted to the screening Committee for scrutiny; that the case of Sub. Biru Ram Radhe falls in a separate class ; that as per the policy guide-lines a personnel decision to opt out the extension offer given by the respondents becomes final and irrevocable after the case has been scrutinized by the screening committee. In fact, the screening committee in the case of Sub. Biru Ram Radhe after screening his case (subsequent option Certificate ) recommended his name for retention in service: that the petitioner made a representation through his Commanding Officer on 28.2.1999 which was rejected on 16.3.1999; that the petitioner had made a second representation on 6.6.1999, which was again rejected on 14.6.1999 and that the present petition has been filed after a gap of 13 months from the date of decision not to accept the extension offer given by the petitioner; that the petitioner was issued a warning order informing him about his impending retirement 18 months in advance and the final discharge order at least 12 months in advance and that the petition is liable to be dismissed on the ground of latches and delay also.