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Allahabad High Court · body

2009 DIGILAW 2713 (ALL)

ASHOK KUMAR v. UNION OF INDIA

2009-07-30

A.P.SAHI, C.K.PRASAD

body2009
JUDGMENT By the Court.—Writ petitioner-appellant, aggrieved by order dated 6th of July, 2009 passed by a learned Judge in Civil Misc. Writ Petition No. 32563 of 2009, has preferred this appeal under Rule 5 Chapter VIII of the Allahabad High Court Rules, 1952. 2. Short facts giving rise to the present appeal are that the writ petitioner-appellant (hereinafter referred to as the ‘appellant’) was Naib Subedar (Nb Sub)/Driver, Mechanical Transport in the Army. After completing 26 years’ of service, he was granted extension of services by two years. Later on, it was found that he was not entitled to be given the extension on the ground that he was awarded 10 days’ detention on 6.1.1981, which permanently debars extension of service in terms of the Army Headquarters’ letter dated 22nd November, 2005 and the extension given to the appellant was withdrawn on 31.8.2006. The statutory appeal filed against the said order was also rejected and the same was intimated to him vide letter dated 5th July, 2007. The appellant unsuccessfully challenged the aforesaid orders, which have given rise to the present appeal. 3. Mr. R.A. Pandey appears on behalf of the appellant. Mr. Ajai Bhanot appears for the respondents. 4. Mr. Pandey, counsel for the appellant, submits that in view of the letter dated 13th of May, 1998, the age of retirement of the personnel of the Armed Forces has been enhanced by two years and hence the extension of two years’ service to the appellant was rightly given and wrongly withdrawn. It is also the plea of the appellant that once the aforesaid letter provides for enhancement of age by two years, it was beyond the jurisdiction of the Army Headquarters to impose conditions for grant of extension. 5. Mr. Pandey further submits that the age of retirement of the personnel of the Armed Forces has been increased by two years across the board and, therefore, the extension granted to the appellant ought not to have been withdrawn. In this connection, he has drawn our attention to paragraph 6 of the letter dated 13th of May, 1998, which reads as follows : “6. It has also been decided that the age of retirement of the personnel of the Armed Forces and the Central Para Military Forces, be enhanced by two years. In this connection, he has drawn our attention to paragraph 6 of the letter dated 13th of May, 1998, which reads as follows : “6. It has also been decided that the age of retirement of the personnel of the Armed Forces and the Central Para Military Forces, be enhanced by two years. Necessary orders and amendments to the respective rules, etc., will be issued by the Ministry of Defence and the Ministry of Home Affairs, as the case may be, in consultation with Department of Personnel and Training.” 6. From a plain reading of the aforesaid provision, it is evident that for enhancing the age of retirement, necessary orders and amendments to the respective rules etc. were required to be issued by the Ministry of Defence and the Ministry of Home Affairs. It is an admitted position that no such amendment has been made. Therefore, we are of the opinion that benefit of the aforesaid decision shall not be available to the appellant. We may hasten to add that in the present case, the appellant was granted extension of service by two years not on account of enhancement of the age of retirement. Later on, it was found that the extension granted to the appellant was in teeth of the decision of the Army Headquarters and, accordingly, the same was withdrawn. 7. Mr. Pandey then submits that the condition imposed by the Army Headquarters in the letter dated 22nd November, 2005 debarring the personnel, who have been awarded punishment under Section 39(b) of the Army Act, permanently for extension of service, is beyond the power of the Army Headquarters. 8. We do not have the slightest hesitation in rejecting the submission of Mr. Pandey. As observed earlier, the age of retirement of Army Personnel has not been enhanced by two years. Further, we are of the opinion that for the purpose of granting extension in service, conditions can be imposed including the condition of debarring permanently or withdrawal of extension of service of the personnel, who have undergone punishment under Section 39(b) of the Army Act, the same cannot be said to be, in any way, illegal. 9. We do not find any merit in the appeal and it is dismissed accordingly. ————