SANJEEV SHARMA Vs. UNION OF INDIA

JUDGEMENT

(1.) In this writ petition, the petitioner is seeking a writ in the Nature of Mandamus, directing respondent No. 2, Chief of Army Staff, to release the pay of the rank of acting Major w.e.f. 9.3.1990 to 18.12.1990, along with consequential benefits in D.A., A.D.A., gratuity etc.

(2.) In brief, the facts are that on 9.3.1983 petitioner was commissioned in the Army. On completion of three years of service, he was promoted to rank of Captain on 9.3.1988. At the time when he was promoted as Captain, he was serving as Deputy Assistant Judge Advocate General at headquarters Northern Command. He was promoted to the rank of Acting Major on 9.3.1990 and was posted to the office of the Deputy Judge Advocate General, headquarters, Western Command, Chandi Mandir (Haryana). When the petitioner was promoted to the rank of acting Major, one Captain V. Chitravanshi was also promoted to the acting rank of Major. Thereafter, within next few months, Major M.M. Sood, Major N.K. Sharma, Major Balasubramaniam, Major C.K. Aggarwal, Major Rakesh, Major Gursharan Singh and Major Rajiv Mehrotra, all course mates of the petitioner, were promoted to the rank of acting Major w.e.f. 9.3.1990, i.e. the date on which the petitioner was promoted. Petitioner, on his own request, was prematurely released from service on 18.12.1990. According to the petitioner, all those persons who were promoted to the rank of Acting Major along with the petitioner, had been paid the pay for the rank of Acting Major, but the petitioner has been denied the pay of the rank of Acting Major. Even the gratuity paid to him on account of his premature release from service at his own request has been calculated and disbursed to him on the basis of his pay in the rank of Captain. Another grievance of the petitioner is that when he was released from service, he was posted at Pune Headquarters Southern Command, Petitioner's home station is at Chandigarh and on his release from service, he was entitled to have transfer grant on permanent move from Pune to Chandigarh and also for costs of warrant for his wife who joined him at his place of duty i.e. Pune. The petitioner has also averred that though he represented even regarding these claims, but even these have not been decided till today. He was appended one of the representations as Annexure P-4 to the writ petition. Petitioner, thus, claims that action of the respondents in not granting him the pay of the rank of Acting Major w.e.f. 9.3.1990 to 18.12.1990 when he was prematurely released from service at his own request and in not paying him the allowances and gratuity on the basis of his pay in the acting rank of Major, and in not allowing compensation for permanent transfer move as also for his wife travel is illegal and unconstitutional, on the ground that he performed the duties of Major and, thus, is entitled to the pay of the said rank and all consequential benefits. This action is also stated to be violative of Articles 14 and 16 of the Constitution of India, being highly discriminatory as the various persons who joined the Army in the Judge Advocate General department along with the petitioner, have been granted the pay and allowances of acting rank pay given to them.

(3.) Respondents in their written statement have stated that the petitioner was not entitled to pay rank of acting Major because of his having put in less than six years of service. For this, they relied upon the instructions issued by the Government from time to time. According to the respondents, the gratuity paid to the petitioner was on the basis of pay of the rank of Captain. As regards promotion to the rank of acting Major of the persons along with the petitioner, the respondents have stated that Captain V. Chitravanshi, Major M.M. Sood and Major Rakesh were granted rank of acting Major before six years of service, but since they were found not entitled for acting promotion, the over payment in their cases was got recovered from them. The averments of the petitioner regarding other persons were not commented upon by the respondents as their place of posting was not known or not given in the writ petition.