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CASE NO.: Appeal (civil)  2084 of 2003

PETITIONER: Union of India and Ors.

RESPONDENT: Capt. Satendra Kumar

DATE OF JUDGMENT: 18/07/2006

BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J

       Challenge in this appeal is to the legality of the judgment  rendered by a Division Bench of the Allahabad High Court  holding that the respondent is entitled to be re-instated and is  to be given time upto 9.6.2004 to pass the Part B examination.  

       The background facts in a nutshell are as under:

       Respondent was commissioned on 9.6.1984 as an Officer  in the Indian Army. In terms of Rule 13-A of the Army Rules,  1954 (in short the ’Rules’) read with para 79 of the Defence  Service Regulations (in short the ’Regulations’) all  commissioned officers were required to pass, in terms of the  existing rules, the promotional examination (Part B) within 13  years of reckonable service. Thereafter, they were required to  pass Part D examination for promotion within 20 years.  

       The respondent making apparently wrong and erroneous  representation that he had completed Part B course and had  passed, applied for next promotional Part D examination  without indicating correct particulars regarding the results of  Part B examination in the application form. When the  authorities found that he was not eligible, his result in Part D  examination was declared to be void. Since the respondent had  not completed Part B examination as per the existing rules and  Special Army Instructions a show cause notice was issued in  terms of Rule 13-A of the Rules.  Respondent replied to the  show cause notice and made a statutory complaint. While the  matter was pending, on 8.1.1998 the respondent was awarded  severe dis-pleasure (non-recordable) for filing false application  form for Part D examination. This was, however, un-connected  with the show cause notice issued earlier under Rule 13-A. On  20.8.1999 the Government of India amended Army Instructions  whereby the time limit for completing the examination was  extended from 13 years to 20 years. It was however made  applicable with effect from 24.4.1998. On 5.7.2000 the  appellant communicated its decision not to retain the  respondent in service as he had failed to qualify in Part B  examination within the prescribed time limit. On receipt of the  order in question which permitted the respondent to make a  representation, if any, within 15 days, the respondent made a  representation on 2.8.2000. On 21.9.2001 order was passed  retiring the respondent from service in terms of Section 19 of

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the Army Act,  1950 (in short the ’Act’) read with Rule 13-A of  the Rules.  

       Respondent filed a Writ Petition before the Allahabad  High Court challenging the order dated 5.7.2000. The primary  stand was that by the time the order was passed, period for  passing the examination was extended upto 20 years and,  therefore, he had time till 9.6.2004 to pass the examination in  question. The present appellants pointed out that by the time  the amendment was made the period of 13 years prescribed  under the Army Instructions was already over and in any  event the amendment was operative with effect from 24.4.1998  and was not applicable to the respondent.  

       The High Court, however, was of the view that when the  impugned order of voluntary retirement was passed in  September, 2001 the period had been amended from 13 years  to 20 years and, therefore, the respondent was entitled to re- instatement.  

       Learned counsel for the appellants submitted that the  High Court clearly erred in holding that the amendment was  applicable to the respondent. By the time the amendment was  introduced the period of 13 years originally stipulated was  over so far as the respondent is concerned and in any event  the amendment was made specifically operative with effect  from 24.4.1998 and was clearly inapplicable to the  respondent.  No one appears for the respondent.

         We find that the High Court’s approach is clearly  untenable. The relevant Rule and the instructions read as  follows:

"Promotion Examination Part B(Lt. to Captain)

As per SAI 1/S/85 amended vide  SAI/26/S/89:

15(a) Promotion Examination Part B. Officers  who fail to qualify in Promotion Examination  Part B till completion of 13 years reckonable  service for officers commissioned before 31  July 1984 and 11 years  reckonable service in  the case of officers commissioned on or after  31st July, 1984 will be issued a show cause  notice under AR 13-A for termination of  service. The services of these officers will be  terminated as per the provisions contained in  Army Rule 13-A."

Rule 13-A.  Termination of Service of an officer  by the Central Government on his failure to  qualify at an examination or course \026(1) when  an officer does not appear at or, having  appeared fails to qualify at the retention  examination or promotion examination or any  other basic course or examination within the  time or extended time specified in respect of  that examination or course, the Chief of the  Army Staff (or the Military Secretary) shall call  upon the officer to show cause why he should  not be compulsorily retired or removed from  the service.

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(2)     In the event of the explanation being  considered by the Chief of the Army Staff (or  the Military Secretary) to be unsatisfactory, the  matter shall be submitted to the Central  Government for orders, together with the  officer’s explanation and the recommendations  of the Chief of the Army Staff (or the Military  Secretary) as to whether the officer should be-

                 (a) called upon to retire; or

   (b)  called upon to resign.

(3)     The Central Government, after  considering the explanation if any, of the  officer and the recommendation of the Chief of  the Army Staff (or the Military Secretary), may  call upon the officer to retire or resign, and on  his refusing to do so, the officer may be  compulsorily retired or removed from the  service on pension or gratuity, if any,  admissible to him."      

       So far as the amendment to the Army Instructions and  Regulations are concerned, the amended Army Instructions  issued on 20th August, 1999 were applicable with effect from  24.4.1998. That is clearly indicated in the amended  instructions issued on 20th August, 1999. The President had  sanctioned the amendment to be operative from 24.4.1998. By  the time the amendment came into effect, the 13 years period  which was available to the respondent to pass Part B  examination was over. The notice regarding non success in the  examination within the stipulated time had also been given to  the respondent on 11.9.1997. Merely because the final order  was passed on 21.9.2001 that did not change the position so  far as the respondent is concerned. The High Court is,  therefore, clearly in error in holding that the extended period  of 20 years was applicable to the respondent. The High Court’s  order is indefensible and is set aside. The appeal is allowed.   No costs.