The rejection of the application of the petitioner for his promotion by the Assam Rifles is the subject matter of dispute raised in this petition filed under Article 226 of the Constitution of India.

2. The facts projected in this petition are that in the year 1995, the petitioner was enrolled as Lance Naik/Writer in the Assam Rifles and was accordingly posted and thereafter had served in various places of postings. In September, 2005, the petitioner while undergoing the Battle Physical Efficiency Test held in Shillong had suffered an injury. Subsequently, in the year 2014, when the time came for consideration of the promotion of the petitioner, since he was categorized to low medical category and pursuant to a representation for such consideration, vide order dated 03.05.2018, a Court of Inquiry (C.O.I) was convened to examine the petition. The aforesaid Court of Inquiry had accordingly given an opinion on 30.05.2018 recording the below mentioned finding:

(a) The injury was sustained by No C/362491H WO/CIK Kishore Chand during qtly BPET test held at ARASU, Shillong.

(b) The injury sustained was beyond his control and indl should not be held responsible for the same.

(c) The individual was on Govt bonafide duty and so the injury sustained by the indl is attributable to Assam Rifles service.

The Commandant vide order dated 06.06.2018 had also concurred with the aforesaid finding. The petitioner accordingly submitted further representation dated 12.03.2019 to consider his case for promotion as all his contemporaries were promoted in the meantime. However, vide the impugned communication dated 08.11.2019, the Deputy Commandant had rejected the representation of the petitioner on the ground that the injury sustained by the petitioner was during a training and not during Active Government duty. For ready reference, the observations in the impugned order is extracted herein below:

“3. However, it is seen that No C/362491H WO/CIK Kishore Chand of your org has been injured during QE BPET held at HQ DGAR and not on Active Government duty.”

3. I have heard Shri B. Pathak, learned counsel for the petitioner whereas the respondents are represented by Shri S.S. Roy, learned C.G.C.

4. Shri Pathak, the learned counsel for the petitioner has submitted that denial of promotion on the grounds cited in the impugned communication dated 08.04.2019 is absolutely unfair and unreasonable. He submits that the training in which the petitioner had sustained the injuries were not the induction training but the routine training which is conducted periodically and there could be no difference in sustaining injuries during such training and during Active Government Duty. He submits that such training is a part of the Active Government Duty and therefore, the grounds of rejection is liable to be interfered with.

5. By drawing the attention of this Court to the stand of the respondents put on record by way of affidavit, Shri Pathak, the learned counsel has submitted that reading of the same would reveal that two grounds of defence have been projected. The first ground is that the injury was sustained in a training and not on Active Government Duty and secondly, the findings of the Court of Inquiry was a vague one, which is not acceptable. It is submitted that neither of the defence is sustainable.

6. In support of his submissions, the learned counsel for the petitioner has relied upon the decision of the Hon’ble Supreme Court in the case of Union of India & Anr. Vs. Surendra Pandey reported in (2015) 13 SCC 625. Specific reference has been made to paragraphs 10, 11 & 12 which are extracted herein below:

“10. In R. v. National Insurance Commr., ex p Michael, the Court of Appeal in England had to construe phrase “caused by accident arising out of and in the course of employment” appearing in the 1965 Act mentioned above. Lord Denning M.R. started his judgment with the observation: (WLR p. 112 C-D)

“… So we come back, once again, to those all too familiar words ‘arisi