Habildar Bhagat Singh v. Union of India — 1984 DIGILAW 384 (CAL)

Judgment M.M. Dutt, J. This appeal has been preferred by the appellant against the judgment of a learned single Judge of this Court whereby the learned Judge dismissed the application of the appellant under Article 226 of the Constitution of India. In the writ application, the appellant challenged certain orders of the respondents refusing to grant to the appellant promotion to the post of Naik Subedar. 2. It appears that by a Memo No. A/16099/Policy/AG(c)/2085/S/D(AG) dated 16th December, 1976 issued by the Government of India, the existing terms and conditions of service of Junior Commissioned and Non-Commissioned Officers were revised, whereby, inter alia, the retirement age of Habildars was raised to 47 years and their age for promotion to the rank of Junior Commissioned Officers was also raised to 42 years from 40 years. The Officers in-Charge, Records were directed to taka immediate action to obtain option certificates from all Junior Commissioned and Non-Commissioned Officers (JCOs and NCOs). The forms of the option certificates were also sent along with the said Government Order. If one opts for the revised terms or wishes to be governed by the existing terms of service, in either case, one has to sign an option certificate in the presence of the Officer Commanding. 3. The appellant is a Habildar Draftsman, Grade II. He successfully completed the Promotion Cadre Course at Roorkee. On February 7, 1980 he was selected and recommended by the Departmental Promotion Committee for his promotion to the post of Naik Subedar. The appellant's name was placed by the Departmental Promotion Committee at Serial No. 29 in the list of candidates recommended by the said Committee. At the material time, the appellant crossed the age of 40 years. After he was recommended by the Departmental Promotion Committee, he was transferred to the office of the Commander Works Engineer, Vinaguri on July 13, 1980. Thereafter he made representations to the respondents for giving effect to the recommendation of the Departmental Promotion Committee. But, ultimately the respondent no. 3 by his memo dated February 9, 1981 informed the appellant that the appellant not having opted for the revised terms of service in accordance with the said Government Order dated 16th December, 1976, he was eligible for promotion only upto the age of 40 years, but not after he crossed the age of 40 years. 3 by his memo dated February 9, 1981 informed the appellant that the appellant not having opted for the revised terms of service in accordance with the said Government Order dated 16th December, 1976, he was eligible for promotion only upto the age of 40 years, but not after he crossed the age of 40 years. If he had opted for the revised terms of service, in that case as stated already, his age for promotion would have been 42 years. Be that as it may, the appellant was not promoted to the post of Naik Subedar as he had not opted for the revised terms of service. After he was denied promotion on the ground of age bar, the appellant made representations which were all rejected and, ultimately, he preferred a statutory complaint under S. 26 of the Army Act to the Chief of the Army Staff which was rejected, and he was informed of the rejection in November, 1981 He, however, filed the writ petition on July 1982, that is, about eight months after the rejection of his statutory complaint under S. 26 of the Army Act. 4. The learned Judge dismissed the writ petition on the ground of inordinate delay in filing the same. Hence this appeal. 5. The first question is whether the writ petition should be entertained eight months after the appellant's statutory complaint was rejected by the Chief of the Army Staff. In the peculiar facts and circumstances of the case, we do not thank that the learned Judge was justified in dismissing the writ petition of the appellant because he filed the same eight months after his statutory complaint was dismissed by the Chief of the Army Staff. It is true that the appellant should have filed the Writ petition within a reasonable time and not after eight months of the dismissal of the said complaint. But at the same time the Court should also take into consideration whether the delay was made by the appellant deliberately. It appears that after his complaint was dismissed, be again bona fide appealed to the authorities concerned in the hope of getting relief, but when they turned a deaf ear to his appeal and entreaties, he filed the writ petition. In our opinion, the writ petition should not have been dismissed on the ground of delay. 6. It appears that after his complaint was dismissed, be again bona fide appealed to the authorities concerned in the hope of getting relief, but when they turned a deaf ear to his appeal and entreaties, he filed the writ petition. In our opinion, the writ petition should not have been dismissed on the ground of delay. 6. Now the question is whether the respondents were justified in not giving effect to the recommendation of the Departmental Promotion Committee on the ground of age bar of the appellant. Under the Government Order dated December 16, 1976, the maximum age for promotion was raised from 40 years to 42 years. Admittedly the appellant did not within the specified time exercise his option for the revised terms and conditions of service. The case of the appellant is that he was not award of the issuance of the said Government order Paragraph 2(a) of the Government Order provides that all serving JCOs and NCOs shall be asked to give their options in writing for the new terms or for the contiunance of the existing terms of service applicable to them, by April 30, 1977. It is true that it might not be possible to directly communicate to each and every individual the purport of the said Government Order. But at the same time, the said Government order should be published and circulated in such manner as would bring the same to the notice of all concerned Moreover, the Officer-in-Charge, Records were directed to take immediate action to obtain option certificates from the JCOs and NCOs, as stated already No affidavit has been filed by the respondents in the trial court, nor has any affidavit been relied in this Court. There is, therefore, no material before us to show how the said Government Order was circulated among the Army Staff concerned or the steps that were taken to obtain from them the option certificates. If we are to accept the appellant's case, it must be held that the appellant had no notice of the said Government Order before the time fixed for exercising option by signing the option certificate. The allegation of the appellant goes uncontroverted. At this stage, it may be stated that the appellant exercised his option sometime in 1981 after he had come to know of tile Government Order. The allegation of the appellant goes uncontroverted. At this stage, it may be stated that the appellant exercised his option sometime in 1981 after he had come to know of tile Government Order. The authorities could accept the option and grant promotion to the appellant in accordance with the recommendation of the Departmental Promotion Committee. It is also not under standable why the appellant was sent up before the Departmental Promotion Committee for the consideration of his promotion if be had actually crossed the age of 40 years. 7. Be that as it may, after considering the facts and circumstances of the case, we set aside the impugned orders of the respondents and direct that the appellant be treated as a person eligible for promotion and the authorities concerned shall consider the question of giving promotion to the appellant in accordance with the said recommendation of the Departmental Promotion Committee, within two months from date. 8. The judgment of the learned Judge is set aside and the appeal is allowed. There will, however, be no order for costs. Paritosh Kumar Mukherjee, J : I agree Appeal allowed impugned order set aside.