SUNIL AMBWANI, J. Heard Sri Chandrajeet Yadav Counsel for petitioner and Sri Narendra Kumar Chatterjee, Additional Standing Counsel appearing for respondents. 2. Brief fact giving rise to this writ petition are that petitioner was enrolled in Defence Security Corps on 21st March, 1986. He was last posted at 103 D. S. C. Platoon, Company Defence Security Corps, Rifle Factory, Ishapore, 24 Parganas (North), West Bengal which comes under Defence Security Corps, Eastern Command, Fort William, Kolkata. Petitioner was promoted to the rank of Naib Subedar with effect from 9th March, 1998. On promotion to the rank of Naib Subedar for the year 1998-99 he was graded in Annual Confidential Report as high Average. As per D. S. C. , R. O. I. (Record Office Instruction) 1/94, which amended in para 5 (c) of R. O. I. 14/92 a Naib Subedar is entitled to promotion as Subedar and thus extension in service, if he has atleast one above Average and one high Average report, and does not have any below Average report. If he has earned only two reports, one should be Above Average, and one High Average. If he has earned only one report it should be Above Average. If no report has been earned in the rank, A. C. R. criteria is not to be applied. The note appended to the amended para 5 (c) (iv) provides that no cognizance of the report initiated after initiation of recommendation, will be taken into consideration, for the purpose of regulating extension of service. 3. Petitioner applied and filled up all necessary forms for extension of service. The application for extension with all completed formalities was forwarded to next higher authority through proper channel. The petitioner was not informed of any order on his application. By order No. CA- 1/1612/c/do/ser 09 dated 4th May, 2000, including petitioners name in appendix c at serial No. 12, the petitioner was discharged from service, with effect from 31-3-2001/1-4-2001, on the ground of his re-transfer to pension establishment, not fulfilling the ACR criteria of ex-pensioner. It is averred the petitioner was surprise to receive the order of discharge, as his services were always excellent and he was not served with any kind of counseling/warning nor any disciplinary action was taken against petitioner during his entire service. It is averred the petitioner was surprise to receive the order of discharge, as his services were always excellent and he was not served with any kind of counseling/warning nor any disciplinary action was taken against petitioner during his entire service. He was promoted as J. C. O. (Junior Commissioned Officer) in the rank of Naib Subedar, after fulfilling all eligible conditions which included Above Average and High Average ACRs in the last five years, preceding his promotion on 9-3-1998, and was thus entitled to extension of service. 4. Counsel for petitioner submitted that petitioners initial ACR as JCO was initiated on 31st May, 1999. He had performed his duties as Platoon Commander of 103 Platoon Coy. , DSC, Rifle Factory Ishapore, with full satisfaction of his superior officer. There was no comment made in his ACR. Petitioner was assessed as high Average, which is just below Above Average. It is contended that in the next year the petitioner was assessed as above Average, and thus according to his last assessment made upto 31st May, 2000, during the calendar period from 1st June, 1999 to 31st May, 2000, his two assessments made him eligible for extension. According to him even under the amended record of instruction 1/94 which amended in para 5 (c) of ROI 14/92, the petitioner was entitled for promotion and consequential extension of service. 5. Petitioner made representation dated 3-6-2000, 22-11-2000 and 29-12-2000 to next higher authority through proper channel but no response was received. By this writ petition he has prayed for quashing the order of his discharge dated 4th May, 2000 and for a writ of mandamus directing respondents to grant extension of service with all consequential benefits. During the pendency of Writ Petition, Statutory complaint dated 22nd November, 2002 submitted by petitioner was rejected by COAs on 19th June 2001, and an order was communicated to petitioner vide letter dated 28th June, 2001, by Service Records Officer, for OIC Records. 6. In the counter-affidavit of Major V. N. Apaswamy, Personnel Officer (Civ) of COD Chowki, it is stated that petitioner initially served with Raj Rifles from 31st January, 1969 to 30th September, 1984. He is drawing service pension with effect from 1st October, 1988 for services rendered with Raj Rifles. 6. In the counter-affidavit of Major V. N. Apaswamy, Personnel Officer (Civ) of COD Chowki, it is stated that petitioner initially served with Raj Rifles from 31st January, 1969 to 30th September, 1984. He is drawing service pension with effect from 1st October, 1988 for services rendered with Raj Rifles. The petitioner was re-enrolled into DSC (Defence Security Corps), on 21st March, 1986, in the rank of Naik initially for five years upto 20th March, 1991. His term of engagement was extended for five years each from 21st March, 1991 to 20th March, 1996, and thereafter 21st March, 1996 to 30th March, 2001, as he was meeting the eligibility criteria for such extensions. As per Government of India, Ministry of Defence letter dated 5th December, 1981 the initial period of employment of Naik rank with five years which can be extended by five years each upto age of superannuation i. e. 55 years, subject to granting selection for further extension. ACR criteria required for granting further extension to DSC personnel is laid down in ROI 2/96. Petitioner was promoted to the rank of the Naib Subedar on 9th March, 1998. His term of engagement was due to expire on 20th March, 2001. He sent willingness certificate for further extension of his service from 21st March, 2001 to 28th March, 2006. As per para I (IV) of ROI 2 of the ACR grading required for granting extension in respect of Naib Subedar and Subedar is one above Average and one high Average , and that he should not have any below average report. The petitioner had earned one ACR for the year 1999, at the time of considering his extension of service. It was graded as high Average by his officer commanding. As per ACR grading laid down in ROI 2/96 the JCO was found lacking in required criteria for extension of his service. His case was thereafter referred to Army Headquarter vide DSC record letter dated 25th January 2000, for decision of DDG/dsc, Army Headquarter. They did not agree for further extension of service vide Army Headquarter letters No. 7/00585/bsc-1 dated 8th February, 2000 and as such discharge order was issued vide DSC record letter dated 4th May, 2000. As per note given in ROI 2/96 no cognizance of any report initiated after initiation of recommendations is to be taken into consideration for the purposes of regulating extension of service. As per note given in ROI 2/96 no cognizance of any report initiated after initiation of recommendations is to be taken into consideration for the purposes of regulating extension of service. The petitioners representation is still under process and has not been finalised. 7. During the pendency of the writ petition para 5 (c) (iv) of ROI 14/92 as amended by ROI 1/94, re- constructed vide ROI 2/96 and amended vide ROI 4/98 was again re-constructed by ROI 2/2001 as annexed in Annexure-1 to the supplementary affidavit of Cap. R. J. Randhwa are quoted as below; ROI No. 02/96 TERMS AND CONDITIONS OF SERVICE: DEFENCE SECURITY CORPS: JCOS/or 1. Para 5 (c) of ROI 14/92 as amended vide ROI 1/94 is further re-constructed as under: 5 (c) ACR Criteria during last 3 Reports (i) Sep and L/nk (where applicable ). No Report should be below Average. One Report should be high Average or above. (ii) Naik. At least one Report should be high Average or above and none should be below Average. If earned only two Reports one should be high Average or above and none should be below Average. If only one Report earned it should be high Average. If not earned any report in the rank, ACR criteria will not be applied. (iii) Hav. Two Reports should be high Average or above and none should be below Average during the last 3 reports. If only earned one or two reports in the rank, it should be high Average. If no reports earned in the rank, ACR criteria will not be applied. (iv) Nb Sub and Sub. Should have at least one above Average and one high Average report and should not have any below Average report. If only earned two reports one should be above Average and one high Average. If only earned one report it should be above Average. If not earned any Report in the rank, ACR criteria will not be applied. Note.-"no cognizance of report initiated after initiation of recommendation will be taken into consideration for the purpose of regulating extension of service. (Authority: Army HQ letter No. A/00583/dsc-1 dated 2 Apr 96 ). "terms AND CONDITIONS OF SERVICE: JCOs/or 1. If not earned any Report in the rank, ACR criteria will not be applied. Note.-"no cognizance of report initiated after initiation of recommendation will be taken into consideration for the purpose of regulating extension of service. (Authority: Army HQ letter No. A/00583/dsc-1 dated 2 Apr 96 ). "terms AND CONDITIONS OF SERVICE: JCOs/or 1. Para 5 (c) of ROI 14/92 (Re-constructed vide ROI 02/96 and amended vide ROI 04/98) is hereby cancelled and reconstructed as under: - (a) Nb Sub and Sub: Minimum three reports in the rank of JCO should be taken into account. However, where the JCOs have not earned three reports in JCO ranks, last three reports should be taken into consideration. Out of three reports, two should be above Average reports and one high Average reports. Note: "no cognizance of report initiated after initiation of recommendation will be taken into consideration for the purpose of regulating extension of service". 2. This policy will come into force from the date of issue of this ROI. Past cases will not be re-opened. (Auth: Army HQ letter No. A/00585/dsc-1 dt. 7 Mar. 2001)". 8. Counsel for petitioner Shri Chandrajeet Yadav submits that petitioner has been severely wronged and discriminated in refusing extension of service whereas he was meeting the ACR criteria for extension of service. According to him after his promotion as Naib Subedar (Junior Commissioned Officer) he was awarded high Average report for the year 1999. After his case was referred to Army HQ vide ROI record letter dated 2-5-2000 for final decision and was considered for further extension of service vide Army HQ letter No. 8th February, 2000 and issuance of discharge order dated 4th May, 2000, he was awarded above Average report for the year 2000. The said report of the year 1999-2000, should have been taken into consideration for the purposes of regulating extension of service. According to petitioner, ROI 02/2001 was not applicable to the present case as it came into force with effect from 29th March, 2001, and thus the minimum required three reports in the JCO ranks were not required to be considered. According to petitioner, ROI 02/2001 was not applicable to the present case as it came into force with effect from 29th March, 2001, and thus the minimum required three reports in the JCO ranks were not required to be considered. He was regulated by ROI 14/92 as reconstructed vide ROI 2/96 and amended ROI 4/98 and that since before expiry of the period of his last extension he had earned one above Average report and had one above Average and one high Average report, he met the criteria for extension of service. Sri Yadav states that the fact that the willingness certificate has to be obtained 18 to 21 months in advanced and a long drawn procedure including scrutiny of certificate, scrutiny of ACRs including necessary enclosures and service documents have to take place much in advance, the petitioner can not be denied promotion. His ACR become available before his period of extension was over. He submits that modern methods of communication, and, of compilation of data and computation, are available with Indian Armed Forces and thus the Army cannot be heard to say that it will not take into consideration the last ACR. He also submits that he has been discriminated as against JCG-840736 Naib Subedar Gyan Chand, as he was similarly situate and has been given extension of service. 9. Sri N. K. Chatterjee, Additional Standing Counsel, Central Government, on the other hand submits that procedure of extension of service is regulated by various Defence Security Corps Records of Instructions the last of which was issued on 9th March, 2001 as above. Petitioner was Hawaldar in 1996-97 and had earned above Average and high Average reports respectively. In the year 1998 his ACR was not initiated due to his promotion to the rank of Naib Subedar on 9th March, 1998. In the year 1999 as Naib Subedar he earned one high Average report. Under ROI 2/2001 which is the revised ACR criteria for extension of service, last three ACRs in respect of rank and status were required to be taken into consideration for granting further extension and out of these three ACRs two should be above Average and one high Average. Under ROI 2/2001 which is the revised ACR criteria for extension of service, last three ACRs in respect of rank and status were required to be taken into consideration for granting further extension and out of these three ACRs two should be above Average and one high Average. Keeping in view of the revised policy, the case of both Sri Gyan Chand and petitioner were reviewed in accordance with last ACR grading one in the rank of Naib Subedar and two in the rank of Hawaldar. On revision it was found that Gyan Chand has two above Average gradings as Hawaldar in the year 1996 and 1997 respectively and in the year 1999 he was given a high Average grading and thus Naib Subedar Gyan Chand fell into ACR criteria under ROI 2/2001 was given extension of service, whereas petitioner had earned only one above Average report and denied for extension of service. Cases were examined under ROI 2/01 dated 29th March, 2001 and while discharge order of Naib Subedar Gyan Chand was cancelled, the petitioner was required to proceed on discharge. Sri Chatterjee submits that granting of extension of service to defence security corps personnel is a lengthy and time consuming process. Willingness certificate is to be obtained by Unit concerned about 18 to 21 months in advance to be forwarded the Joint Director Defence, Security Corps, who forwards it to Director with his recommendation 17 to 19 months in advance. The Director forwards the certificate to DSC record office with his recommendations or non recommendations, 16 to 18 months in advance. On receipt by the DSC record office steps namely scrutiny of the certificates with supportive of service documents in aspect of discipline, medical and education criteria and scrutiny of ACRs takes place atleast 13 months in advance. Thereafter Part-II orders are published for willingness and eligible personnel for grant of extension, necessary entries are made on record regarding grant of extension and thereafter orders are issued in respect of the cases which do not fulfil the eligibility criteria. Thereafter Part-II orders are published for willingness and eligible personnel for grant of extension, necessary entries are made on record regarding grant of extension and thereafter orders are issued in respect of the cases which do not fulfil the eligibility criteria. Since petitioners ACR for the year 2000, was not initiated before the records had been forwarded, and a decision was taken, that he was not found to meet the eligibility criteria even in accordance with the unamended ROI before its amendment on 29th March, 2001 and even subsequently on review under revised ROI 2/2001 the petitioner was not found meeting the ACR criteria and was accordingly discharged. 10. In order to verify the assertion whether petitioner had earned above Average report for the year 2000, Sri Chatterjee was required to produce the records. The records were produced on 20-2-2003 and the zerox copies were retained. The records show that annual confidential report for the period from 1st January, 1999 to 31st May, 2000 in respect of petitioner as Naib Subedar 103 DSC Platoon Company DSC Rifle Factory Ishapore was initiated on 23-6-2000. On 26-6-2000 the reviewing officer Lt. Col. R. P. G. Ghai found made to be above Average JCO who is hardworking. Petitioner was promoted to the rank of Naib Subedar on 9th March, 1998, his extended term was due to come an end on 20th March, 2001. He sent willingness certificate for extension of his service from 21st March, 2001 to 20th March, 2006. As per para 1 (4) of ROI 2/96, the ACR grading required under the then prevailing ROI 4/98 for grant of extension of service in respect of Naib Subedar and Subedar was one above Average and one high Average and should not have any below average report. His ACR for the period 1998-99 was high Average. For the year 1999-2000 ending to 31st May, 2000 his ACR was initiated on 23rd June, 2000 and that on 26th June 2000, he was awarded above Average grading, much before his extended term of engagement was due to expire. 11. Sections 191 and 192 of the Army Act, 1950 (the Act) provides for making Rules and Regulations respectively, for purpose of carrying out provisions of the act. As per Rule 187 of Army Rules, 1954, Defence security Corps is a Corps defined under Section 3 (iv) of the Army Act. 11. Sections 191 and 192 of the Army Act, 1950 (the Act) provides for making Rules and Regulations respectively, for purpose of carrying out provisions of the act. As per Rule 187 of Army Rules, 1954, Defence security Corps is a Corps defined under Section 3 (iv) of the Army Act. All DSC personnel as such are administered by the Act, Rules and Regulations. Regulation 26 of Army Regulations the General Staff Branch, Army HQ are responsible to issue policies. Deputy Directorate General, DSC is the Department Head of DSC and is responsible to issue such policies. He is also responsible for issuing instructions, including instructions spelling out policies for extension of service. 12. The question which calls for consideration in this case is whether his ACR for the year 1999-2000 initiated on 23rd June, 2000 and awarded on 26th June 2000, could be taken into consideration for taking decision of extension of his service beyond 20th March, 2001. For this purpose the validity of the note appended 2 para 5 (c) of the amended ROI 1/94 has been challenged. Counsel for petitioner states that where the ACR for the last year becomes available before the term of engagement expired, it can not be ignored and that the note appended-2 in ROI 1/94 to para 5 (c) so far as it provides otherwise is whole arbitrarily, discriminatory and violative of Articles 14 & 16 of Constitution of India. The note is quote as below; "note.-No cognizance of report initiated, after initiation of recommendation will be taken into consideration for the purpose of regulating extension of service". 13. The next question which calls for consideration is whether the respondents rightly exercised power of review in terms of ROI 2/2001. According to counsel for petitioner the ROI 2/2001 dated 29th March, 2001 was not applicable as the amendment came into force much after decision was taken to discharge him. It is submitted that the amended ROI 2/2001 had not seen lie of the day when the decision was taken for discharge petitioner i. e. 8th February, 2000 and the date of order of discharge dated 4th May, 2000 and the actual discharge dated 20th March, 2001. It is submitted that the amended ROI 2/2001 had not seen lie of the day when the decision was taken for discharge petitioner i. e. 8th February, 2000 and the date of order of discharge dated 4th May, 2000 and the actual discharge dated 20th March, 2001. It is contended that the review ROI 2/2001 has been applied only to justify the extension of service of Naib Subedar Gyan Chand who was otherwise similarly situate as petitioner and that his term could not have been extended as he also did not meet the ACR criteria according to unamended ROI as ACR reports for the period prior to his promotion as Naib Subedar could not have been taken into consideration when a decision was taken to give him extension having same ACR criteria namely one high Average report after their promotions and thus petitioner has been discriminated as against Naib Subedar Gyan Chand. 14. Petitioner was given promotion as Naib Subedar during his last extension of the terms of his engagement on 21st March, 1996 to 20th March, 2001. Prior to his promotion as Hawaldar he was awarded one above Average and one high Average report in the year 1996 and 1997. In the year 1998 his ACR was not initiated due to his promotion to the rank of Naib Subedar on 9th March, 1998. The present case is not a case of discharged on the ground of unsuitability and thus the decisions cited by counsel for the petitioner in respect of compulsory retirement are not applicable. It is a case of selection for extension of service on the basis of ACR criteria as eligibility for further extension of service. The respondents have not pleaded that the petitioner was either unsuitable for further extension in service or that he was discharged as a measure of punishment. The discharge order is on the ground that petitioner was not selected for further extension in service, as he did not meet the eligibility criteria basis on annual confidential reports. 15. It is surprising that With modern means of communication and compilation of date, available to a efficient disciplined and modern armed force of our country, it takes about one and a half years for compilation of date. 15. It is surprising that With modern means of communication and compilation of date, available to a efficient disciplined and modern armed force of our country, it takes about one and a half years for compilation of date. In the present case the only ground taken for not considering the ACR for the year 1999-2000 which became available to the respondents on 26-6-2000 i. e. about 9 months before the petitioners last extension was due to expire, is the period of time, which the Records office takes to compile data processing and recommendations. The matter of petitioners extension was initiated with his willingness certificate for consideration, which was referred to Army HQ vide DSC record letters dated 26th January, 2000 and it was disapproved on 23rd February, 2000 i. e. about nine months before the last extension came to an end. On the date when the petitioner was considered for further extension of service he had almost one year left to serve. The decision not to extend his service was taken much before the initiation of his ACR for the year 1999-2000. The policy decision of the selection for further retention in service did not restrict the consideration of the last ACR report, and that on the date when petitioners extension came to an end, he met the ACR criteria vide ROI 4/1998 as the petitioner had one high Average and one above Average reports. The last report was not taken into consideration only on the ground that decision for extension of his service has to be taken in advance, and thus the last ACR can not be taken into consideration. In fact as promoted JCO, the petitioner got his assessment by the respondents for his performance only one of year, where as after promotion he served for more than two years. There was nothing adverse against him and he was graded above Average hard working officer. In Lt (Mrs) Indira Kumari Kartiayoni v. Mahanideshak Raksha Mantralaya, Shastra Sena, Chikitsa Seva New Delhi, 1991 Supp (2) SCC 149, the apex Court held that according to departmental instructions for periodical review of performance for retention in service, petitioner who was in Military Nursing Service was required to be allowed to proved her ability in the two years following her marriage. But for marriage, her performance was sufficiently good average to be retained in service. But for marriage, her performance was sufficiently good average to be retained in service. Notwithstanding her fairly good average record, her services were discontinued because of her marriage coupled with the fact that she had not obtained high efficiency performance rate during last three years of marriage. Having laid down criteria of assessment for two years after marriage the Army Authorities could not have relied upon her performance prior to marriage. In the present case two ACRs were available much before (nine months) the date of actual discharge, out of which one which entitled him for extension was not considered, only due to administrative efficiency. 16. It has been stated in paragraph 12 of the second supplementary counter-affidavit of Cap. R. J. Randhwa that D. S. C. is a corps having more than 45000 troops and it is necessary to follow the laid down policy of each and every subject strictly in accordance with proceeding. The policy laid down in ROI 14/92 in 2/96 are very clear in granting of extension of terms of engagement as para-II of ROI 14/92. DSC record office is the authority to ensure proper eligibility of DSC personnel for granting extension of service and thus action taken for discharge is as per Rule and subject, and such cases cannot be a ground for granting of extension ignoring the laid down policy. 17. The fact that thousands of persons have to be considered for extension of service can not by itself be a ground to deny extension of service to those who meet ACR criteria. The note appended to ROI 14/92, 2/96 and 4/98 takes away a right of the DSC personnel to be considered for extension on his performance only on the ground on administrative delays. It defeats his rights, and is counter productive to the efficiency and performance of the personnel. A JCO of the rank of Naib Subedar promoted two years giving above average, performance can not be discharged only on the ground that DSC does not have infrastructure and means to examine his case and needs one and half years for processing. He is denied for consideration of extensdion of service only on the ground that the Army does not have inclination and equipment to consider his last report which due despatch. He is denied for consideration of extensdion of service only on the ground that the Army does not have inclination and equipment to consider his last report which due despatch. A person, who serves Army with full devotion and shows exemplary performance, can not be denied for consideration for extension of service only on the ground that the Army takes a long time to process his case. Such a restriction is grossly arbitrarily, discriminatory and takes away his rights guaranteed to him by Articles 14 & 16 of Constitution of India. Having laid down the criteria no further restriction can be put as to whittle it down and deny its full benefit to the persons who demonstrate best performance is discharge of their duties. In the present case petitioners ACR for the year 1998 was not initiated because in the year he was promoted as Naib Subedar. He got high Average rating for the year 1999 and for 1999-2000 he got above Average report which is the highest rating. He therefore meets the eligibility ACR criteria for further extension of service but was denied only on the ground that his ACR for the year 1999-2000 was not initiated, before this case was taken up for processing for extension of service. Petitioner has been grossly wronged and discriminated. 18. Now coming to the question whether this case could have been reviewed under ROI 2/2001, I find that it was not even in force when the petitioners case considered for the extension of service. This amendment allowed consideration of ACRs awarded even prior to the promotion as Naib Subedar. Naib Subedar Gyan Chand had two above Average report prior to his promotion when as petitioner has only one. And thus Naib Subedar Gyan Chand was retained. On the date the decision was taken to discharge their services of both Naib Subedar, Gyan Chand and petitioner this criteria was not even applicable and could not have been pressed into service to review the case of Gyan Chand and allow him to continue. 19. For the aforesaid reasons the writ petition is allowed. The note appended to ROI 2/96 as amended by ROI 4/98 is declared to be illegal, arbitrary and violative of Articles 14 & 16 of Constitution of India and principles of equity and thus inoperative in law. The discharge order dated 4th May, 2001 is set aside. 19. For the aforesaid reasons the writ petition is allowed. The note appended to ROI 2/96 as amended by ROI 4/98 is declared to be illegal, arbitrary and violative of Articles 14 & 16 of Constitution of India and principles of equity and thus inoperative in law. The discharge order dated 4th May, 2001 is set aside. The petitioner meets the ACR criteria under the aforesaid. ROI, for extension of service and shall be entitled to extension of his service from 21st March, 2001 to 20th March, 2007. He will be allowed to join and serve with full consequential benefits. There shall be no order as to costs. Petition allowed. .