H A KHAN Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner serving in the Army as ËœNaib Subedarâ„¢ seeks a writ of certiorari to quash an order No. 33215/I/ST 12 dated 12.3.1988 passed by respondent No.2 whereby his statutory complaint for ante - date seniority, has been rejected, with further prayer for mandamus against the respondents for promoting him to the next higher rank, to remove his grievance of hostile discrimination in order to get him at par with the personal of his rank and status in the Army. The case of the petitioner is that he got recruited in the Army, as Driver (MT) on 4.10.1962 and got remustered as clerk GD on 1.6.1967. The petitioner according to the Army HQ ruling was entitled to seniority as clerk (GD) from his first enrolment date indicated. The petitioner got promoted to the rank of Naik (clk) from 1.4.1980, again as Havildar (clk) from 1.4.1981 though ha was due for promotion mush earlier, but benefit of seniority having been given to him only from the date of remustering i.e., 1.6.1967 in violation of Army HQ ruling Annexure -P1, to the petition. The petitioner made several representations but without fruit and he got corn -pilled to file a statutory complaint, before respondent No.2 giving in detail injustice meted to him, followed by a reminder dated 16.10.1985 from his commanding Officer, which resulted in reply from respondent No.3 upholding the claim of the petitioner with assurance of direction to the concerned as per annexure P -5, pursuant to which respondent No.4 Record Officer intimated him for refixation of his seniority. The petitioner was brought on promotion cadre in April/May, 1986 on passing his Duty Course in June, 1986 to which he was entitled w.e.f., 1978 -79, if his seniority would have bean given effect from the date of his enrolement i.e., 4.10.1982 which has been denied to him by promoting him as Naib Subedar only w.e.f. 28.6.1986. The petitioner was not treated at par with his equals compelling his Commanding Officer to point out the error vide his communication dated 17.9.1986 but respondent No.4 vide his reply dated 18.10.1986 showed his inability to accept the petitionerâ„¢s claim. The Commanding Officer of the petitioner again prepared a statement of his case to the address of respondent No.4 which was duly recommended by Brigadier concerned also by Major General as per annexures to the writ petition The respondent No.3 turned down the recommendation for ante -date seniority of the petitioner again compelling him to file statutory complaint before the Chief of the Army staff on 1381987, which was rejected vide Order dated 12.3.1988 (impugned), hence this petition to quash the same and for benefit under Article 14 and 16 or the Constitution of India to remove hostile discrimination and to bring him at par with the personnel of his rank from 1.7.1980 like Naib Subedar Shiv Dayal Singh, who was also enrolled on 4.10.1986 as Clerk, given rank of Naib Subedar from 1.7.1980, compared to the petitioner giving him the rank only w.e.f. 23.6.1986 & other similarly situated personnel having preceded rank of Naib Subedar, much earlier. If the petitioner is treated equally with his similarly situated fallows he will as a matter of right extend his service, status and emoluments to which he is entitled to but refused benefit under the impugned order.

(2.) ON admission of the petition, the respondents contested the petition and in the counter -affidavit raised the objection of nan -maintainability of the petition being based on facts short of any right legal or constitutional to the petitioner. The respondents further submitted that the petitioner has been given seniority from the date of remustering i.e., 1.6.1967 which he could not be given from the date of enrolment for the reason he having joined the Force as Driver. (MT) initially and cannot be treated at par with those who joined clerk (GD) from the beginning because of different trade. Further the petitioner has been given promotion after remustering with which the petitioner has remained content for long rather consented to the treatment He cannot now re -open the matter, moreover the petitioner lacks the qualification for the next higher rank and he cannot be treated at par with those who have qualified required course and were initially enrolled as Clerk (GD). It is the discretion of the respondents to accept the claim or to reject the same. The petition being without force deserves to be dismissed.

(3.) THE petitioner has filed rejoinder and written arguments also reiterating his claim for ante date seniority, consequently claims his promotion to next higher rank of Subedar and so on.