JUDGMENT

ARUNA SURESH, J.

1. The present appeal is the outcome of judgment and decree passed by the learned Single Judge of this Court on 5.11.2001 whereby the suit of the respondent (the plaintiff in the suit) was decreed with the directions to reinstate the plaintiff in the service ASC forthwith with consequential benefits like salary, wages and allowances etc. The respondent herein had joined army in the Ranks as a clerk in the clerical post (General Duty) in March 1991. He was promoted as 'Naik' in the ranks and his name was also recommended for higher departmental promotion through Army Cadet College (in short ACC) to the post of potential service cadet. The respondent qualified the written examination and interview in between the year 1986-87 and was appointed as Service Cadet. He was sent for training to ACC Wing, Indian Military Academy (in short IMA), Dehradun, where he took training for three and a half years and on completion of the training, he was sent for further training to IMA in December 1990. On successful completion of training, he was appointed as Second Lieutenant in the regular Army and was commissioned by the President of India on 14.12.1991.

2. During his training, he was asked to give options of his service and also the same at SSB interview forms. The respondent opted for service cadre of the army giving reasons that he was above 30 years old and had no technical aptitude for artillery and related fields. However, he was posted as officer into Fighting Arm, Regiment of Artillery form instead of posted in service branch as opted by him. Reluctantly, the respondent joined the Artillery School Deolali on 6.1.1992. He continued to send his representations to the concerned authorities for considering his transfer to service branch of the army vide letters dated 5.2.1992, 11.5.1992 and 4.3.1993.

3. When the respondent was making representations for transfer of his cadre from Arms to Service, he was required to qualify Young Officers Course which he could not succeed. His Commanding Officer favourably recommended his letter dated 4.3.1993 and further recommended by the Formation Commander vide endorsement dated 31.3.1993 for change of cadre of the respondent from Arms to Service. But no action was taken. Vide letter dated 21.8.1993, the respondent was asked by the authorities to submit a detailed case for transfer from Arms to Service as requested which was duly submitted by him. In spite of the details provided by the respondent as well as protests by him for his placement to Platoon Weapons to the Infantry School, Mhow, his request was rejected vide letter dated 10.11.1993.

4. The show cause notice dated 23.9.1994 was served upon the respondent under Army Rule 13A to show cause why he should not be removed from service as he had not qualified examination of Young Officers Course twice within four years of his service which was duly replied vide letter dated 7.10.1994. The respondent was asked to resign or otherwise he would be compulsorily retired vide letter dated 10.2.1995. Since the respondent refused to take voluntarily retirement giving reasons in the communication dated 14.2.1995 and 20.2.1995, he was compulsorily retired vide order dated 27.3.1995 under Section 19 of the Army Act read with Army Rule 13A on payment of pension and gratuity etc. This termination order and the action on the part of the authorities was challenged by the respondent by way of a suit.

5. The appellants before us were duly served with summons for settlement of issues but none appeared on their behalf; despite the fact that opportunities were given to file written statement on different dates. They were ordered to be proceeded ex parte vide order dated 26.7.1999. After considering the evidence and the documents on record, the learned Single Judge was pleased to decree the suit of the respondent vide his judgment and decree dated 5.11.2001.

6. The appellants filed an application under Order 9 Rule 13 CPC for setting asid