D.K.SETH, J. - (1.) THE petitioners who were Havildars were required to put in 22 years of Service. A circular was issued by the Government of India, Ministry of Defence letter No. A/16099/Policy/AG/PS2 (c)/2085/S/D (AG), dated 16.12.1976 which is contained in Annexure-1 to the writ petition. The said letter was issued in partial modification of the existing Rules as contained in Para 165 of Regulation for the Army (1962), as amended and A19/5/65 governing terms of service/tenure limits for retirements of JCOS and NCOS. Rank, Age, Service-tenure and limits for retirement was specified in clause (a) for Naik as 22 years of service with colours or 47 years of age, whichever is earlier, in clause (b) for Dafadar/Havaldar-on completion of 24 years of service with colours or 47 years of age whichever is earlier. The said circular further proceeded with the note for retention of NCOS beyond their contractual period of engagement as per the Enrolment form as provided under Paras 144 to 147 of the Regulations for the Army (1962) and reserve liability would be regulated under the provisions of AI 2/5/76. In clause (c) the service/tenure limits for retirement for Naib Risaldar/Naib Subedar were or 50 years of age whichever is earlier. While in clause (d) those of Risaldar/Subedar were fixed at 28 years pensionable service or 50 years of age whichever is earlier and so on. We are not concerned with other classes at the present moment. The said circular was followed by another letter being Army Headquarters letter No. A/16099/Policy/AG/PS2 (c), dated 18.12.1976. A copy of the said letter is contained in Annexure 2 to the writ petition. It appears from the said letter that with reference to the letter, dated 16.12.1976, contained in Annexure-1 to the writ petition, provisions for option was provided. All serving JCOS and NCOS were required to give their option, in writing within a stipulated time. Procedure relating to exercising of option for different kinds of persons as well as the procedure for retention in service by reason of increase in the service tenure, age or retirement was provided in the said letter. Option was given either to continue to be governed under the old existing Rules or under new revised Rules. Those who would be interested in exercising option to continue with old Rules were required to exercise their option in Appendix-B while those who would be opting for in the new Rules were required to exercise their option in Appendix-A. All persons who had proceeded on leave preparatory to retirement were also required to exercise option and if they were found fir for retention by the Screening Board, they were required to continue. All those who were preparing to go on leave for prepatory retirement were required to be retained at the centre and asked to exercise their option awaiting the decision of the Screening Board.
(2.) THE very tenure of the said two letters read together shows that the increase in age was allowed to be made available to the persons who are governed under old and existing Rules or bound by contracts of service, provided they opt for the new Rules. A reading of the said rules does not indicate that the said increase in the tenure was an extension of service or that it was excepted from being included in the pensionable service or that it precluded the persons opting for the new Rules from getting promotion. There was no provisions contained in the said letters to indicate such a situation. Relying on these circulars Shri G.D. Mukerji, learned Counsel for the petitioners contends that the petitioners had opted for the new rules under Appendix-A. Before they had completed 24 years service under the new rules they had been, promoted from Havaldars to Naib Subedar and were accordingly allowed to continue for 26 years as increased by the said amendment. After such completion of 26 years, the petitioners were given pension calculated on the basis of 24 years, service, illegally treating the said two years as extension. Though the petitioners were promoted to the post of Naib Subdear on the alleged ground that they were Havaldars exercising option and therefore, they could continue only up o 24 years and could not get pension beyond that. According to him such contention cannot be sustained on the basis of above circulars as stated hereinabove. He further contends that once the age has been revised under the Rule, the rights accrued cannot be taken away even by any subsequent amendment in the Rules though however according to him there was no such amendment in the Rule till the petitioner had retired.
(3.) MR . Shishir Kumar, learned Counsel for the respondents has opposed the said contention and had contended that" since the petitioners opted as Havaldars for an extension of their service for 24 years as mentioned he cannot claim any benefit by reason of such option beyond 24 years, even though they were promoted during the said period of 24 years to the post of Naib Subedar. According to him, the said period of two years both in the case of Havaldars and Naib Subedars respectively were extension and not continuation. He further contends that these circulars however were withdrawn subsequently and that the amendment became ineffective and inoperative. But however in his usual fairness Shri Shishir Kumar, states that he is unable to specify the date of such withdrawal so effected. He also states that he is unable to produce the documents about the withdrawal of the amendment. However, according to him the promotion given to the petitioners on the post of Naib Subedar during 24 years of service cannot be included by reason of the option which was allowed only to the Havaldars who opted for 24 years and 26 years option were given to those who were Naib Subedar. Whereas the petitioners being Havaldars could not have opted for 26 years and they could have opted for 24 years. Therefore, services beyond 24 years cannot be counted as pensionable service for Havaldars who opted under Appendix A which is only provisional or temporary arrangement only in respect of increase of the age or tenure of service as contemplated under the said amendment to the persons holding the respective posts on the effective date. Therefore, no benefit could be claimed on the basis of such limited scope. It was only a benefit given to those who were due to retire earlier under the existing Rules and not a service condition or in other words it was only an extension and not a continuation.;