Mukundakam Sharma, J.

( 1 ) BY filing present writ petition, the petitioner has prayed for quashing of the orders dated 14th July, 2001 and 21st July, 2000 giving promotion to the petitioner to the rank of Nb. Subedar only with effect from 1st january, 2000 with seniority from 1st of August, 1997 but not granting any benefits of promotion from 1st August, 1997 as payment of salary and other emoluments from the said date in the post of Nb. Subedar.

( 2 ) THE petitioner was enrolled in the Army on 19th March,1983 as Sepoy. The petitioner was promoted to the rank of Havaldar on 1st August, 1989. While working in the aforesaid capacity, a Summary Court Martial was initiated against the petitioner for an offence under Sections 41 (i), 39 (a) and 63 of the Army Act. After completion of the said Court Martial, the petitioner was imposed with the punishment of reduction of the ranks, rigorous imprisonment for one year in civil prison and also dismissal from the service.

( 3 ) AGGRIEVED by the finding and sentence of the Summary Court Martial, the petitioner filed a statutory complaint under Section 164 of the Army Act. The said complaint was considered and disposed of by the order dated 17th august, 1994 by the Central Government by commuting the punishment and sentence of the Summary Court Martial of reduction to ranks and one year rigorous imprisonment to severe reprimand and also remitted the sentence of dismissal with a further direction that the individual would be reinstated in service. It was also observed in the said order that the period between the date of dismissal and date of reinstatement in service will not be treated as duty and he would not be paid pay and allowances due to him for the said period.

( 4 ) CONSEQUENT to the said order passed by the Government of India the petitioner was reinstated in service with effect from 29th October, 1994 in terms of the said order passed by the Government of India. It further transpires from the records that the petitioner was again tried summarily on 18th February, 1995 for an offence under army Act Section 54 (b) and was awarded severe reprimand.

( 5 ) THE case of the petitioner came up for promotion to the rank of Nb. Subedar with effect from 1st August, 1997 and the case of the petitioner was considered by the departmental Promotion Committee held on 17th May, 1997. He was, however, found not fit for promotion and was superceded as he could not meet the criteria having incurred two red ink entries during last five years. It is provided in para 3 (a) of promotion policy issued vide army Headquarters letter dated 10th October, 1997 that the concerned person should not have incurred more than one red ink entry during the last five years.

( 6 ) IT is the case of the respondents that though the petitioner was awarded punishment by Summary Court martial on 3rd June, 1992 but the punishment period of the last five years was counted with effect from 17th august, 1994, the date commutation/remission was granted by the Government.

( 7 ) AS the Government order dated 17th August, 1994 did not specifically spell the date from which the commutation of punishment is deemed to take effect, therefore, in absence of any specific date, it was held that the government order would be deemed to have taken effect from the date of original sentence i. e. from 3rd June, 1992 and not 17th August, 1994. Therefore, a fresh DPC proceeding was ordered. The Departmental Promotion committee considered the case of the petitioner for promotion to the rank of Nb. Subedar on 15th March 2000 and duly recommended for promotion with effect from 1st january, 2000 with ante dated seniority along with his batch mates with effect from 1st August, 1997.

( 8 ) THE petitioner had consequently assumed the rank of Nb. Subedar on 13th November, 2000. It is stated that there was no direction for payment of any pay and allowances to the petitioner in the higher rank as he is entitled to the same from the date he actually assum

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