S.P. KURDUKAR, J. - (1.) THE Judgment of the court was delivered by -
(2.) .The central government vide its order dated 13/2/19900 called upon the respondent to retire (sic resign) and on his refusal to do so, he be compulsorily retired from the service on payment of pension and gratuity as admissible to him. This order came to be challenged in a Writ Petition No. 2492 of 1990 before the High court and the learned Single Judge by his judgment and order dated 18/5/1992 dismissed the same. The respondent preferred Special Appeal No. 83 (S/B) before the division bench of the Allahabad High court, Lucknow bench which came to be allowed vide order dated 8/2/1994, granting desired reliefs to the respondent. The appellants thereafter filed a Civil Miscellaneous Application No. 2787(W) of 1984 for further hearing in the matter, however, the same was rejected by the division bench vide its order dated 8/4/1994. The appellants have filed these two appeals by special leave assailing the legality of both these orders. . The controversy in these appeals relates to the promotion of the respondent to the substantive rank of Captain in the following circumstances: The respondent after obtaining B.Sc. degree in Agriculture and Animal Husbandry in 1969 from the Punjab Agricultural University obtained M.Sc. degree (Agriculture) in Soil Science from Haryana Agricultural University. The respondent also claimed to his credit merit scholarship from 1965 to 1969 and junior fellowship from Punjab Agricultural University and junior fellowship from Indian council of Agricultural Research from 1969 to 1971. He applied for the 35th Technical Graduate Course and was commissioned on 17/6/1973 in the Army as a Second Lieutenant in the Corps of Military Farms. It was the claim of the respondent that having obtained technical qualification, he was treated as a Technical Graduate and as such was granted permanent commission. According to him, the Army Officers have to pass promotional examination Part B, if applicable, for grant of 514 substantive rank from Lieutenant to Captain. The promotion examination Part B was abolished in the year 1971 and was reintroduced in 1976 vide government of India, Ministry of Defence letter dated 21/8/1976. It was his claim that the reintroduction of Part B examination would be applicable prospectively and he being the officer commissioned after abolition of the said examination and before the introduction thereof in the year 1976 and he being a Technical Graduate was covered by the exempted category, he was not required to appear for Part B examination. . The appellants disputed the assertion of the respondent that he belonged to the exempted category of Technical Graduate. It was admitted that the respondent was commissioned on 17/6/1973 but he did not fall in the exempted category. He was, therefore, required to pass Advance Administrative Course (equivalent to BYO's Course) by 17/6/1976. He was detailed on the said course in 1974 as well as in 1975 but he failed in one subject. He was again detailed on three consecutive chances till October 1978, however, he did not attend the examination and instead applied for re- marking of the marks obtained by him in the said paper. His request was rejected as he failed to deposit the re-marking fee. After lapse of about three years, on 23/10/1978, he deposited the requisite fee. Board of Officers assembled on 1/4/1980 and on rechecking of the said paper, he was declared failed. In the meantime, the respondent completed eight years of service without qualifying the said course. On 28/12/1979, he was served with a show-cause notice in accordance with SAI 23/S/68 but instead of responding to the same, he filed a statutory complaint which was rejected by the central government. The central government vide its order dated 23/12/1979 called upon the respondent to resign from his Commission and on his refusal to do so, it was ordered that he be removed from service on payment of pension or gratuity, if any, admissible to him. The respondent challenged this action of the central government by filing a writ petition in the Calcutta High court in the year 1982 which was contrary to Army Rule 13-A. In the meantime, the Board again reassembled on 21/8/1980 and on reconsideration of the result, the Board declared him having passed the BYO's course which was held in January 1975. In view of this decision of the Board, the respondent withdrew his writ petition and was retained in the service with a rider that he was liable for all future liabilities like passing of promotion examinations for his promotion and retention in service.
(3.) . It is a common premise that the respondent did not pass promotion examination Part B within six years of reckonable service i.e. by 17/6/1979 for his promotion to the substantive rank of Captain. He did not qualify the same until completion of thirteen years' reckonable service. It is in these circumstances that in terms of Army Rule 13-A, a show-cause notice was issued to him on 2/1/1986. The respondent filed his reply which was considered by the Chief of Army Staff who recommended his case as a special case to give him two more chances to appear and qualify Part B of promotion examination beyond thirteen years of reckonable service by the end of 1989. This order was issued on 24/8/1984. The respondent did not 515 appear for Part B promotion examination and consequently a show-cause notice under Army Rule 13-A was issued to him on 19-8-1989. The central government after considering the recommendations of the Chief of Army Staff on 13/2/1990 issued an order calling upon the respondent to retire from service and on his refusal to do so, he would stand retired compulsorily on payment of pension and gratuity, if any, admissible to him. It was this order which was challenged by the respondent in the writ petition. . The learned Single Judge on perusal of the pleadings of the parties as well as the relevant documents on record by his judgment and order dated 18/5/1992 dismissed the writ petition. However, on special appeal preferred by the respondent to the Division bench, it was allowed vide impugned judgment and order dated 8/2/1994 and the orders passed by the learned Single Judge as well as by the central government on 13/2/1990 were set aside and the respondent was ordered to be retained in service with all consequential reliefs. It is this order which is the subject-matter of challenge in these appeals.;