The main legal point established is that an individual's unwillingness to continue in a certain position does not necessarily imply unwillingness to be promoted or continue in a higher position, and pensionary benefits should be granted accordingly.

Judgement

JUDGMENT :- Leave granted.

2. The appellants joined Indian Army in the year 1963. In 1967, he joined Defence Security Corps. He was promoted to the rank of Havaldar on 1st July, 1981. The appellant was given extension as Havaldar, the last extension being up to 31st May, 1988. He became entitled to be considered for promotion to the rank of Junior Commissioned Officer (JCO) having passed JCO promotion cadre on 4th December, 1985 and was considered for promotion to the said post in the years 1986 and 1987. In those selections, on the basis of his Annual Confidential Reports, he was not found fit for promotion. On 27th January, 1987, the appellant gave an unwillingness certificate for extension of service as Havaldar w.e.f. 31st May, 1988.

3. The appellant was admittedly considered by screeening board for promotion to the rank of Naib Subedar (JCO) on 12th April, 1988 wherein he was found fit for promotion as he had earned one more above average report during the year 1987. According to respondents as Havaldar had to earn two above average reports out of three for promotion to the rank of Naib Subedar. The appellant was not informed that he had been found fit for promotion in the screening board as above noticed. On the contrary, in response to his telegram dated 20th April, 1988 sent expressing willingness to serve beyond 31st May, 1988 in case he was promoted as JCO, he was informed by the respondents on 24th April, 1988 that since he had already been proceeded on discharge from service on completion of terms of engagement the question of granting any further promotion to him does not arise. He was not even at this stage informed of having been selected for promotion as Naib Subedar. The result was that the appellant retired from service as Havaldar on 31st May, 1988.

4. The appellant challenged his non promotion in a statutory appeal. It seems that at this stage too he was not informed of the proceedings of the screening board dated 12th April, 1988. Having failed to get any relief in the statutory appeal, a writ petition was preferred by the appellant in the year 1990.

5. The appellant learnt about his having been selected for promotion as JCO only when counter-affidavit was filed in the writ petition. The writ petition was, however, dismissed holding that the option for unwillingness certificate once given cannot be changed and, therefore, it was not permissible for the appellant to change his option and that he was entitled to further exten sion only if he had exercised his option to continue beyond 31st May, 1988. The letters patent appeal filed by the appellant was also dismissed. The Division Bench in judgment under appeal has also noticed that while rejecting the statutory appeal of the appellant on 15th May, 1990 he was informed that neither he was considered nor selected for the DPC held in the year 1988.

6. It is not in dispute that if promoted as JCO the appellant could continue in service up to 30th June, 2002. Learned counsel for the appellant relies upon the decision of this Court in Union of India and another v. Wing Commander T. Parthasarthy ((2001) 1 SCC 158) holding that a request of premature retirement which required the acceptance of the competent or appropriate authority will not be complete till accepted by such competent authority and the request could definitely be withdrawn before it became so complete. It is all the more so in a case where the request for premature retirement was made to take effect from a future date. Reliance has also been placed on Shambhu Murari Sinha v. Project and Development India and another ((2000) 5 SCC 621) where this Court while referring to the earlier decision in the cases of Balram Gupta v. UOI (1987 Supp SCC 228), J. N. Srivastava v. UOI ((1998) (9) SCC 559) and Power Finance Corporation Ltd. v. Pramod Kumar Bhatia ((1997) 4 SCC 280) reiterated that the resignation, in spite of its acceptance, can be withdrawn before the effective date. The contention of learned