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1996 Supreme(All) 1024
HIGH COURT OF ALLAHABAD
R.A.Sharma, D.K.Seth
MAJ DEVENDRA PAL
Versus
UNION OF INDIA MINISTRY OF DEFENCE NEW DELHI
Decided On : 12 September 1996
C. M. W. R No. 18978 of 1990
AMAR SARAN, SUSHIL HARKAULI,
The seniority of Short Service Commissioned Officers, commissioned permanently in the Army, is regulated by Army Instruction-AI-3/s/70 as amended by Amendment No. AI-93/73. The seniority is granted on anti-dated equivalent to their full pay commissioned service as SSC Officer less period of shortfall in their training of the training prescribed for grant of SSC from that prescribed for the particular type of permanent Commission entry at the IMA.
Headnote:
ARMY SERVICE - SENIORITY - FIXATION - SHORT SERVICE COMMISSIONED OFFICERS - PERMANENT COMMISSION - TRAINING PERIOD - DEDUCTION - INTERPRETATION OF ARMY INSTRUCTIONS - WRIT PETITION - QUASHING OF ORDERS - MANDAMUS - ISSUANCE.
Fact of the Case:
The petitioner, commissioned in the Army Education Corps (AEC) through Short Service Commission (SSC), challenged the fixation of his seniority by deducting one year and two months from his full pay commissioned service in SSC, while granting permanent commission at the Indian Military Academy (IMA). He contended that the deduction should be limited to two months, the difference between the training period at the Officers Training School (OTS) and AEC at IMA.
Finding of the Court:
The court held that the petitioner's seniority should be fixed in terms of clause (b) of Army Instruction No. AI-3/s/70 in AEC, after deducting the period of training in SSC at OTS, Madras from the period prescribed for training for the type of permanent commission entered in AEC at IMA. The deduction of training period for fixation of seniority would be for a period of two months only and thereby seniority of the petitioner is to be fixed on 29-6-1973.
Issues: 1. Whether the deduction of one year and two months from the petitioner's full pay commissioned service in SSC for fixation of seniority was justified? 2. Whether the petitioner's seniority should be fixed from the date of his full pay commission service in SSC less by two months, being the difference of the training period of OTS and AEC at IMA?
Ratio Decidendi: 1. The court interpreted clause (b) of Army Instruction No. AI-3/s/70 and held that the period of short fall in training is to be calculated from the period of training prescribed for grant of Short Service Commission from that prescribed for a particular type of permanent Commission entry at the IMA. 2. The court found that the petitioner's entry in SSC was in AEC and he was inducted at IMA in AEC being the same stream. Therefore, the period prescribed for training in AEC is the period from which deduction of the period of training at OTS is to be deducted.
Final Decision: The court quashed the orders dated 29-2-1988 and 11-7-1989, which had rejected the petitioner's claim for fixation of seniority from 29-6-1973. It issued a writ of mandamus commanding the respondents to fix the petitioner's seniority as on 29-6-1973 instead of 29-6-1974.
The petitioner was commissioned in the Army Education Corps (hereinafter referred to as AEC) through the short Service Commission (Non-Technical) by an order dated 24-4-1973 with effect from 29-4-1973 - for five years in the Army in the rank of Second Lieutenant under the terms and conditions of service as contained in Army Instructions No. ll/s/64. He had undergone training for ten months at the Officers Training School (hereinafter referred to as OTS) at Madras.
Subsequently, the petitioner was granted permanent/regular commission in AEC at Indian Military Academy, Deh-radun (hereinafter referred to as IMA ). The fixation of seniority of Short Service Com mission (hereinafter referred to as SSC) Of ficers, commissioned permanently in the Army is regulated by Army Instruction-AI-3/s/70 as amended by Amendment No. AI-93/73, dated 28-7-1973. The said instruc tions in clause (v) provides that the seniority of SSC Officers would be granted on anti-
dated equivalent to their full pay commis sioned service as SSC Officer less period of shortfall in their training of the training prescribed for grant of SSC from that prescribed for the particular type of per manent Commission entry at the IMA. Ac cording to the petitioner the training period of direct recruit officer commissioned in AEC at IMA is 12 months and he is granted seniority from the date of his completion of such training. Therefore, the petitioner is entitled to the grant of seniority from the date of his full pay commission service in SSC less by two months, being difference of the training period of OTS and AEC at IMA. Whereas while fixing the seniority one year two months instead of two months was deducted from the period of full pay com mission service in SSC Being aggrieved the petitioner made an application to the Military Secretary, Headquarter, through the Commanding Officer (Annexure-1 to the petition ). The Commanding Officer while forwarding the said application recommended that seniority due to the petitioner rightfully be restored (Annexure-2 to the petition ). By a letter dated 29-2-1988 (Annexure-3) the petitioner was in formed about the rejection of his aforesaid application which was a non- statutory com plaint, on the ground that the petitioners entry in SSC was for non-technical stream of OTS, at Madras. Therefore for the purposes of fixation of his seniority he was to be compared with the non-technical can didates granted permanent commission at IMA, who were required to under-go two years training and, therefore, difference of the training period, being one year and two months, was deducted while fixing the petitioners seniority, from the period of full Pay Commission in SSC Aggrieved thereby the petitioner preferred a statutory com plaint on 27-6-1988 to the Central Govern ment through proper channel. While for warding the statutory complaint the Presi dent, 19-Service Selection Board, Al lahabad (SSB) endorsed the recommenda tion that the petitioners contention ap pears to be genuine (Annexure-5 ). By an order dated 11-7-1989 (Annexure- SAl) the petitioners statutory complaint was rejected by the Central Government. The information about the rejection of statutory complaint was intimated to the petitioner on 29-12-1989 (Annexure-6 to the writ peti tion and annexure-SA 1 to the Supplemen tary affidavit. ). The petitioner was facilitated with a copy of the said order dated 11-7-1989 only through the said letter dated 24-6-1990, after the petitioner had sent three letters dated 29-1-1990, 15-2-1990 and 21-3-1990 respectively, requiring copy of the said order. It is this order (An-nexure-SA2) which is the subject-matter of challenge in the. present proceedings filed by the petitioner, who prayed for quashing of the said order contained in annexure- SAz and fixation of his seniority from 29-6-1973 instead of 26-6-1974.
2. In the counter-affidavit the respon dents had contended that the petitioner having commissioned in AECas SSC (Non techni
