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 or 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 Regulations for the Army (1962), as amended, and A-I 9/5/65 governing terms of service/tenure limits for retirement of J.C.Os. and N.C.Os. 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/Havildar-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 N.C.Os. 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 A-I 2/5/76. In clause (c) the service/tenure limits for retirement of Naib Risaldar/Naib Subedar were fixed at 26 years of pension service 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 Headquarter Letter No. A/16099/Policy/AG/PS 2 (c), dated 18.12.1976. A copy of the said letter is contained in Anncxure-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 J.C.Os. and N.C.Os. 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 fit for retention by the screening Board, they were required to continue. All those who were preparing to go on leave 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 were 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 on 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 provision contained in the said letters to Indicate such a situation.
(3.) 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 Havildars 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 Subedar on the alleged ground that they were Havildars exercising option and, therefore, they could continue only upto 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.;