- (1.) ALOKE Chakrabarti, J. The peti tioner, a diploma holder in Mechanical En gineering, joined Indian Army and was en rolled as Junior Commissioner Officer in the rank of Naib-Subedar on 2-3-1964. He was promoted to the rank of Subedar on 21-3-1970 and was finally promoted to the rank of Subedar Major on 1-7-1985. The date of birth of the petitioner was 1-7-1940. The only dispute, as argued by both the parties, is as to whether the tenure of service of Subedar Major is four years or five years and what law applies in relation thereto. Learned Counsel for the petitioner referred to the Army Order No. 13/77 at Annexure No. 1 to the rejoinder affidavit, in paragraph No. 1 (e) whereof the tenure limit for the rank of Subedar Major has been provided as 32 years of pensionable service or four years tenure or 52 years of age whichever is earliest. Paragraph No. 2 of the said Army Order provides for option in writing to accept the new terms or continue to be governed by the existing terms of ser vice applicable to them by 30-4-1977. Learned Counsel for the petitioner states that the petitioner having not opted for new terms the law applicable in case of the petitioner are the existing Regulations. The relevant portion thereof has been annexed as Annexure No. 2 to the rejoinder affidavit. Regulations 152 and 163 are relevant for the present purpose and the relevant portion of the said Regulations are set-out below. "152. Tenure of Appointment- (a) The tenure of appointment of Risaldar Majors and Subedar Majors is 5 years. This tenure includes the total time spent in the rank specified and cannot be exceeded even if posted to another unit in the same capacity. If, therefore, an individual is posted to another unit, the combined service in the rank of Risaldar Major/subedar Major must not exceed the limit mentioned. 163. Retirement.-J. COS:- (a) Retirement of J. COS of ail Arms of the services, who opted for revised terms operative from 01 Dec. 76, is compulsory on completion of the following service tenure of age limits:- (i)NB Ris/nb Sub 26 years pensionable service or 50 years of age, whichever is earlier. (ii) Ris/sub. 28years pensionable service or 50 years of age, whichever is earlier. (iii) Ris Maj'/sub Maj. 32 years pensionable service, 4 years tenure or 52 years of age whichever is earliest. NOTe Ris/sub, Nb Ris/sub Clerks GD, GD (SD) and store. Nb Ris/nb Sub storeman, Technical, NB/ris/nb Sub Ammunition Examiner, NB Sub Personal Assistant ASC Nb Sub Instructor AEC and Nb R/s/nb Sub Bandmaster who did not opt for the new terms and still governed by old terms will be retired on completion of 28 years pen sionable service 55 years of age, whichever is ear lier. (b) The JCOs enrolled prior to 25 Jan 65 still serving on old terms will be retired on completion of following service of age limits: - (i)Nb Ris/nb Sub 24 years pensionable service or 55 years of age, whichever is earlier (ii) Ris Sub 28 years pensionable service or 55 years of age, whichever is earlier. (iii) Ris/sub, Nb Ris/nb Ris/nb Sub clerks GD, GD (SD) and store Nb Ris/nb Sub Am munition Examiner, Nb Sub personal Assistant ASC. Nb Sub Instructor AEC and Nb Ris/nb Sub Bandmaster. 26 years pensionable service or 55 years of age, whichever is earlier. (iv)Rismaj/submaj. 32 years pensionable service, 5 years tenure or 55 years of age, whichever is earliest. "
(2.) LEARNED Counsel forr then petitioner contends that as the petitioner did not complete 32 years of pensionable service or 55 years of age, the tenure in the rank of Subedar Major is to be 5 years and as such the petitioner being a non optee of the new terms, is entitled to continue for complete period of five years in the rank of Subedar Major. LEARNED Counsel for the petitioner states that when the said benefit of five years tenure was being not extended and the petitioner was apprehensive of losing the benefit of one year's service as Subedar Major on issuance of letter dated 22-3-1982 (Annexure No. 3, 1 to the writ petition), he filed the present writ petition claiming relief for commanding the respondents not to retire of the petitioner before completion of his full tenure of five years as Subedar Major as provided in Regulations and for other consequential reliefs. Learned Counsel for the respon dents did not dispute the relevant facts as stated in the writ petition and the aforesaid provisions relied on by the learned Counsel for the petitioner. But, he referred to counter affidavit and in particular para graph No. 10 thereof. In the said paragraph the case made out by the respondents is that the terms and conditions of five years of Subedar Major were revised with the is suance of Army Order 13/77 and since the petitioner was non-optee and his regular JCO Commission was confirmed after 25-1-1965, the tenure applicable to the petitioner as Subedar Major was four years and not five years. After considering the respective contentions of the parties and the materials available on record, we are of the opinion that the petitioner is admittedly a non-optee of the new terms. Moreover the petitioner was directly enrolled as Junior Commissioner Officer on the rank of Naib-Subedar on 2-3- 1964. This statement made in paragraph No. 1 of the writ petition has not been denied in the counter affidavit. But the respondents have made out a case that the petitioner's regular J. C. O. Commission was confirmed after 25-1-1965. On such ground the respondents contended that the petitioner was entitled to four years tenure as Subedar Major. The petitioner in his rejoinder affidavit stated that the confirma tion in Army are with effect from the very date of their enrolement on particular rank and the same did not affect at all the right of the petitioner to enjoy five years tenure as provided under the Regulations.
(3.) ON perusal of the said relevant Regulation 163 as quoted in Annexure No. 2 to the rejoinder affidavit and relevant por tion having been set-out herein above, we find that the said Regulation only provides for date of enrolement of J. C. O. to be prior to 25-1-1965 and the same did not make a reference of confirmation? In such circumstances, the petitioner having admittedly been enrolled as J. C. O. in year 1964, that is, prior to 25-1-1965 comes within Sub-clause (b) of Regulation 163. In the facts of the case as the petitioner was enrolled as J. C. O. on 2-3-1964 and his date of birth was 1-7-1940 and he is admittedly a non-optee, the Army Order 13/77 does not make new terms ap plicable in the case of the petitioner. In the aforesaid facts, applying the Regulation 163 (b), the petitioner having not completed 32 years pensionable service or 55 years of age, is entitled to five years tenure as Subedar Major.;