The main legal point established in the judgment is that the petitioner's claim for promotion and pay fixation was not barred by delay and latches, and that the 1975 rules applied to his case, entitling him to the benefit of counting past service for pay fixation.

Alok Aradhe, J.

1. In this writ petition preferred under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir State, the petitioner inter-alia seeks quashment of order dated 13.08.2010, by which claim of the petitioner for promotion and for counting service rendered by him in the Army for the purpose of pension has been rejected. The petitioner also seeks a direction to the respondents to accord him promotion in terms of Rules, namely, Released Emergency Commissioned Officers and Short Service Commissioned Officers (determination of eligibility for promotion) Rules, 1975 (hereinafter to be referred as the Rules of 1975) and to decide his claim for fixation of pay in terms of the Central Civil Services (Fixation of pay of reemployed pensioners) Orders, 1986 (hereinafter to be referred as the Orders 1986) and to accord him all consequential benefits. In order to appreciate the grievance of the petitioner, few facts need mention, which are stated infra.

2. The petitioner was appointed as Short Service Commissioned Officer in the Army on 02.05.1986 and completed the training on 06.03.1987. The petitioner was promoted up to the rank of Major and was released as Short Service Commissioned Officer from the Army on 07.03.1992. The petitioner was selected and appointed against the 10% quota reserved for the Short Service Commissioned Officers in the Border Security Force on 14.12.1994 and joined the Border Security Force on 14.07.1995 as Assistant Commandant in the pay scale of Rs. 2200-4000/-. The petitioner submitted a representation that he should be given promotion to the post of higher rank in the Border Security Force by counting his past service rendered in the Army as Short Commissioned Officer and he be also granted pensionary benefits. It is case of the petitioner that under the Rules of 1975, the petitioner is entitled for counting the service rendered by him in the Army for the purpose of promotion as well as fixation of pay in terms of the Orders 1986, which he was drawing at the time of his release as Short Service Commissioned Officer from the Army. The petitioner submitted repeated representations in this regard. However, the Director General of the Border Security Force vide impugned order dated 23.08.2010 rejected the claim of the petitioner for promotion and for fixation of the pay. In the aforesaid factual background, the petitioner has approached this Court seeking relief as stated supra.

3. Learned counsel for the petitioner submitted that respondent No. 3 grossly erred in not appreciating that the petitioner was claiming promotion under the Rules of 1975, which were in force at the time of appointment of the petitioner and are still in vogue, which is evident from the information furnished to the petitioner under the Right to Information Act. It is further submitted that the definition of word incorporated in an enactment would remain operative even if an Act or rule has ceased to exist. It is also submitted that the decision of the Supreme Court in case of Ravi Paul and Ors. Vs. Union of India, (1995) 3 SCC 300 has no application to the fact situation of the case as in the aforesaid decision, the Supreme Court had dealt with the claim with regard to the fixation of the seniority, whereas the petitioner does not claim seniority but claims promotion. It is argued that there is clear distinction between the seniority and eligibility for promotion. It is urged that Rule 3 of the Border Security Force (Seniority, Promotion and Superannuation of Officers) Rules 1978 (hereinafter to be referred as the Rules of 1978) do not apply to the case of the petitioner and the statutory rules would prevail over the conditions contained in the letter of appointment. It is contended that the petitioner was appointed to the post of Assistant Commandant and was not reemployed, therefore, the case of the petitioner will be governed by the Rule 4(iii) of the Orders 1986 and not