HAVALDAR TEJBALI SINGH Vs. MAJOR NACHHATTAR SINGH

JUDGEMENT

(1.) IN this petition under Section 12 of the Contempt of Courts Act, 1971 read with Article 215 of the Constitution the petitioner makes a prayer to punish the non-petitioners for not complying the order of this Court dated July 23, 1996 passed in Misc. Petition No. 1101/90 and to direct the non-petitioners to promote the petitioner to the cadre of Subedar and to pay interest at the rate of 12 percent per annum on the amount due on account of pay and allowances and also Rs. 1 lac as compensation for not reinstating the petitioner in service.

(2.) THE facts giving rise to this petition are thus: Petitioner was a Havaldar No. 776624 in 8th Infantry Brigade, who was served with a charge sheet on March 9, 1989. In Summary Court Martial held under Section 116 of the Army Act, 1950 the petitioner was found guilty and was dismissed from service. However, the Brigade Commander of the Unit under Section 162 of the Army Act converted the sentence of dismissal into one of discharge. The petitioner challenged the order by a petition- M. P. No. 1109/90. The order of discharge and also the order passed by Summary Court Martial was set aside and the petitioner was ordered to be entitled to reinstatement and all consequential benefits. However, the petitioner was not reinstated as having completed 24 years of service on July 7, 1994. His case for payment of pay and allowances from March 10, 1989 to July 24, 1994 and revised pensionary benefit was sent to Record Office for payment treating the petitioner in service till the date of his retirement.

(3.) LEARNED counsel for the petitioner submitted that his case was bound to be considered for promotion and if promoted he would have served till 1998. He would have cleared the promotion Cadre Criteria if he would have been in service. Therefore, the petitioner cannot be denied his right for consideration of his case for promotion to the higher rank. Therefore, the non-petitioners are guilty of contempt. Counsel relied on Lt. Colonel K. D. Gupta v. Union of India and Ors. (1989-II-LLJ-143) (SC) Raghunandan Prasad Sharma v. State of Madhya Pradesh and Anr. 1984 MPU 422 and an unreported decision of this Court in M. C. C. No. 452/1993 decided on February 3, 1994 arising out of M. P. No. 3384/92 decided on April 29, 1993 (Shivanand Prasad v. Chief of Army Staff and Ors.),