Rakesh Sharma, J. - (1.) Heard Sri K.N. Misra learned Counsel for the petitioner and Sri Anil Kumar, who has put in appearance on behalf of opposite parties.
(2.) Learned Counsel for the petitioner has submitted that the petitioner was enrolled on 20.1. 1966 in the Indian Army and was posted to 5 Kumaon Regiment. The petitioner's work, conduct and performance has always remained satisfactory. He was awarded Paschimi Star Medal and Meghdoot Seachin Area Medal. His character was assessed as exemplary and a mention to this effect has also been made in discharge certificate issued to the petitioner. On completion of 22 years service, petitioner was given enhancement of two years till 19.1.1990. While the petitioner was serving in Siachin Glacier from 9.9.1988 to 28.2.1989 where he fell sick due to hypertension. The petitioner was treated downgraded to temporary medical category "B.E.E. (P)" for six months on 18.7.1989. The petitioner's retirement order was issued and he was asked to report to Regimental Centre, Ranikhet on 7.1.1990 and it was ordered that his name be struck off strength with effect from 1.2.1990. However, in the meantime, the petitioner was formally promoted to the substantive rank of Naib Subedar with effect from 1.1.1990 vide the Kumaon Regimental Centre letter No. 302202/R&D dated 24.1.1990. This promotion order was issued by the Commanding Officer of 5 Kumaon, competent authority, and necessary entries were also made in the record of Kumaon Regiment. Thus, according to the learned Counsel for the petitioner, he became a Naib Subedar w.e.f. 1.1.1990, before his formal retirement from service from Indian Army, the petitioner was entitled for all the benefits including the post retiral benefits admissible to the post. The petitioner being Naib Subedar was also entitled to complete 26 years of services as was applicable to Naib Subedars in the Indian Army. Later on, the petitioner was sent to Kumaon Regimental Centre to proceed on pension establishment as Naib Subedar. The petitioner reported to the Regimental Centre on 26.3.1990 as Naib Subedar. A clearance certificate dated 21.3.1990 duly signed by the Commanding Officer 5 Kumaon was also issued to the petitioner showing him as Naib Subedar. In a movement order issued by the Centre on 27.4.1990, petitioner was again shown as Nb. Subedar. The petitioner remained on duty till 31.7.1990, a copy of which has been annexed as Annexure No. 8 to the writ petition.
(3.) The grievance of the petitioner is that in the discharge certificate the petitioner has been shown as Havaldar. His discharge from service has been shown with effect from 1.2.1990 while as per records of Kumaon Regiment he had worked upto July 1990. The petitioner was promoted as Naib Subedar and he ought to have been treated as retired Naib Subedar and be also given the benefits of said post. He is entitled for pension as Naib Subedar. However, the petitioner admits that he was declared as in permanent low medical category B (B.E.E.) but it do not prevent him from being promoted as Naib Subedar with effect from 1.1.990. The petitioner ought to have been allowed to serve till 31.1.1992 i.e. 26 years. The petitioner has wrongly been sanctioned retiral benefits and pension for the post of Havaldar. Learned Counsel for the petitioner has pointed out that in the Pension Order No. 5/047762/90 issued by C.D.A. (Pension), Allahabad petitioner has been shown as Naib Subedar in column 9 but in fact his pension was settled for the rank of Havaldar. The petitioner's representations, appeal etc. were arbitrarily dismissed by the opposite parties. The petitioner has not been paid his monthly salary and allowance for the period from 1.2.1990 to 31.7.1990.;