R.A. Sharma, J. - (1.) IN 1962 the Government of India, in order to meet Chinese aggression, called upon its employees as well as employees of State Governments, Public Undertakings, Semi Government Organisations etc. to join the armed forces and in connection therewith issued various orders announcing several incentives to those who join the armed forces. Petitioner, who was in 1962 working as Higher Grade Assistant in Life Insurance Corporation of India (hereinafter referred to as the L.I.C.), also joined the army in pursuance of the Government policy, mentioned above, and was granted emergency commission. While Petitioner was serving in the army L.I.C. created certain posts of Junior Officers which were later on designated as Assistant Administrative Officer (hereinafter referred to as A.A.O.). One of the essential qualifications for promotion to the post of A.A.O. was minimum five -years service of Higher Grade Assistant. Petitioner was also called upon to appear in the interview, bat he could not appear before the interview board in view of absence of permission from the army. Petitioner accordingly made representations to the authorities of L.I.C. for permission to appear on subsequent dates. But these representations were rejected on the ground that as the appointment of A.A.O. were to be made immediately and as there was no likelihood of the Petitioner being relieved from army in near future the question of considering his case for promotion does not arise. In this connection the Petitioner made several representations subsequently, but without any result. The Petitioner was subsequently relieved from the army and joined LLC. Again On 30 -12 -1970 he was promoted to the post of A.A.O. The Petitioner made representations before the authorities for giving him promotion of A.A O. and seniority with effect from 20 -11 -1963. These representations having been rejected the Petitioner filed this writ petition for quashing the orders rejecting his representations and for promotion and seniority with effect from 20 -11 -63.
(2.) GOVERNMENT of India has issued orders from time to time in 1962 and 1963 regarding the incentives and conditions of service of those who join the armed forces in 1962 -63. These orders have been quoted by the Petitioner in para 21 of the writ petition and according to these orders the employees who have joined army in 1962 -63 have to retain their lien in their department and period of their military service shall be treated as service outside ordinary line for the purposes of Fundamental Rule 30(1), as a result of which these employees would be entitled to proforma promotion in parent department under next rules. Relevant extract from one of these orders is quoted below: The Government of India Ministry of Home Affairs Office Memorandum No. F35/1/62 -ESTS (B) dated 4th December 1962 regarding lien of Civil Government servants who are permitted to take up Military service during the present Emergency the period of their Military service shall be treated as service outside the ordinary line for the purpose of the provision of FR 30 (1) as a result of which they will be entitled to proforma promotion in their parent department under the next below rules and also to seniority in higher posts to which they would otherwise have been entitled, if they had not proceeded on military service. By orders dated 4 -12 -1962 and 20 -3 -1963 of the Government of India the aforesaid orders have been applied mutatis mutandis to the employees of State Government, Semi Government Organisations, Public Undertakings etc. By another order dated 20 -4 -1965 the Government has reiterated and elucidated the principle of proforma promotions, method of determination of seniority, fixation of arrears etc. Relevant extract from this Government is as follows: Government of India Ministry of Home Affairs Memo No. 35/15/63 ESTS (B) dated 28th April 1965 further elucidates the method of determination of seniority, fixation of arrears as under: III Promotion -(a) As already provided in Home Ministry's Office Memo No. 35/1/62 ESTS (B) dated 4th December 1962, and 12th September 1963 respectively, regarding lien all Civil Government servants whether permanent or temporary will be eligible for proforma promotion in their parent department/office during their absence on military service. (e) In the case where the passing of any departmental examination (s) is a condition precedent to promotion, a Civil Government servant who had not already passed such examination before taking up military service should not be promoted while he is away on such service. On reversion form military service he should be allowed to take as many chances to pass the prescribed examination (s) as he might have missed because of joining military service. If he passes the examination (s) on one of these chances he would be promoted with retrospective effect from the date he would have been so promoted if he had passed the examination (s) in the corresponding chance that he could have otherwise availed himself of, but for his joining military service. (g) Civil Government servants who on reversion from military service are promoted to higher post in their parent department/office with retrospective effect from earlier dates, will be eligible for the difference between the Civil Pay and allowance where the former are higher as a result of such promotion and also for the arrears of pay and allowance for the period intervening between their reversion from military service and actual promotion in their parent department/office provided that all the condition precedent to grant of benefit under the below rule are fulfilled to the extent necessary. Copy of Ministry of Defence letters Nos. 0515/1/EST/4909/D dated 15 July 1963 reveals that the Central Civil Department (now State Government and State Enterprises) have undertaken to contribute to their employees taken into emergency commission to hold their department and then all services benefits for the period one remains in the emergency commission. From perusal of the Governments Orders, mentioned above, it is clear that the employees who have joined defence forces in 1962 are entitled to proforma promotions and seniority in their parent department under next below rules, with retrospective effect from the early dates on which they would have been promoted had they not joined armed forces. They were thus liable to be given promotion and seniority from the date on which their other colleagues were promoted/appointed. After the Petitioner was relieved from the army he was promoted to the post of A.A.O. in 1970. In view of Government Orders, referred to above, the Petitioner is entitled to be given promotion and seniority with retrospective effect from 20 -11 -1963, the date on which his colleagues and other juniors were promoted as A.A.O. In the counter -affidavit filed on behalf of L.I.C. it has been stated mat a new scheme, "own your own house" was initiated by L.I.C. in 1963 on account of which immediate appointment of Junior Officers (later on designated as A.A.O.) were required to be made. It has further been averred therein that eligibility qualification of five -years' service in the cadre of Higher Grade Assistant was relaxed so as to make immediate appointment. It is admitted in the counter -affidavit that on account of relaxation of the minimum qualifications persons who were juniors to the Petitioners were promoted to the post of A.A.O. and as the Petitioner was not available to take up the assignment immediately on account of enrolment in the army he was not considered for promotion/appointment, in 1963. In para 26 of the counter -affidavit it has also been mentioned that orders, circulars and directions of the Government of India providing for proforma promotions with retrospective effect apply to the Government servants and not to the employees of the Public Undertakings, like L.I.C.
(3.) THE stand of L.I.C. is not justified as the orders, circulars and directions of the Government of India, mentioned before, had been made applicable to the employees of the Public Undertakings, Semi Government Organisations etc. In this connection reference may be made to the Government Orders dated 4 -12 -1962 and 20 -3 -1963, relevant extract from which is reproduced below: These instructions will also be applicable mutatis mutandis to employees of such Semi Government Organisations, Public Undertakings, State Government etc. In view of Government Orders the Respondents are bound to give promotion and seniority to the Petitioner with retrospective effect. If such promotion and seniority is not given with retrospective effect, it will work very hard on the Petitioner as his juniors become senior to him and they will get promotion to the higher post much earlier. It is in order to avoid such contingencies that the Government of India has issued orders from time to time. Had these incentives, by means of Government Orders, not been announced, the employees may not have been joined the defence services. The Government Orders being clear, action of the Respondents in Refusing to give promotion and seniority to the Petitioner with retrospective effect is arbitrary, illegal and cannot be sustained.;