- (1.) D. K. Seth, J. 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 petitioner's 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 petitioner's 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 petitioner's contention ap pears to be genuine (Annexure-5 ). By an order dated 11-7-1989 (Annexure- SAl) the petitioner's 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 technical) in the month of April 1973 , had undergone ten months training at OTS Madras. Similar category of Officers in ducted into IMA, as permanent Commis sioned Officers, are required to undergo training at IMA for two years before grant ing commission. Therefore, the short fall of the training period applicable to regular officers inducted into Army under the same non-technical stream was deducted from the period of full pay commission of service of the petitioner is SSC in accordance with the Army INstructions number 3/s/70 as amended by Army INstructions number 93/73. Since the petitioner's entry was in non-technical stream, therefore, while granting permanent commission, he is to be treated in the same non-technical stream, for which two years training is prescribed and accordingly one year and two months is deducted as short fall of the training period while fixing seniority. The benefit of train ing period of respect of direct entry (per manent commission) through AEC Of ficers, therefore, cannot be extended to the petitioner. Thus there is no illegality in rejecting the non-statutory complaint by order, dated 29-2-1988 (Annexure-3) or in the order dated 11- 7-1989 (Annexure-SA2 ). Therefore, present writ petition should be dismissed. In the rejoinder-affidavit the petitioner has repeated the statements made in the writ petition while elucidating and elaborating the same further. Sri Amar Saran, learned counsel ap pearing on behalf of the petitioner con tended that the fixation of seniority, in the facts and circumstances of the case, and in view of the Army Instructions, cannot be sustained in law. The petitioner cannot be treated for the purposes of seniority at par with the other officers, granted permanent commission at IMA in non-technical stream, since the petitioner was inducted in AEC which through clubbed with the non technical officers, but the training period of the direct recruits in AEC is one year. Therefore the petitioner has to be treated at par with AEC candidates.
(3.) SRI Sushil Harkauli, learned counsel appearing on behalf of the respondents, on the other hand, contends that the entry in a particular stream is the determining factor. Since the petitioner's entry was in non-tech nical stream in SSC he is to be treated at par with the non-technical stream granted permanent commission at IMA According to him unless it is so determined the petitioner would become senior to his batch-mates, who were inducted at IMA in the branches other than AEC. Inasmuch as all the batch-mate of the petitioner inducted at IMA were given seniority after deducting one year two months from full pay commission service in SSC. Since the petitioner was the only per son, who joined AEC at IMA from SSC and there having been no waste in AEC no fur ther induction in AEC is made, therefore, there can not be any separate kind of treat ment for the petitioner from those of his batch- mates. It is the case of the respondents that in terms of the Army Instruction AI-3/s/70 as amended vide Al- 93/73 the petitioner's seniority is to be fixed after deducting the said short fall period of one year two months from his full pay commissioned service in SSC.;