Bhagwan Din, J. - (1.) This Special Appeal has been preferred against the judgment and order passed by single Judge dismissing the Writ Petition No. 13165 of 1996 on the ground that there is no provision of counting the intervening period from the date of discharge to the date of re-enrolment towards qualifying service to earn minimum pension and the seniority of the appellant may be counted w.e.f. 10.4.1993, the date on which he was re-enrolled and also no Rule, Regulation or Administrative Order on which the claim rested has been cited, that the appellant may be allowed to continue in service even after attaining the age of 40 years to complete the qualifying service to earn minimum pension.
(2.) The events and the circumstances constituting the facts, having bearing on the decision of this appeal, are that the appellant was enrolled in June, 1977 as Sepoy/Driver (MT) in Army Service Corps, and after requisite training he was posted as class III driver. As the luck would have, he met with an accident in August, 1980. He sustained severe injuries, resulting in fracture of mid shaft femur. Because he met the accident when he was on bona fide Government duty, he was allowed to continue in Army service and was treated at various military hospitals. After completion of the treatment, his disability was surveyed and classified in category "BEE" with disability less than 20%. He was, therefore, discharged from the service in the month of September. 1987. With a view to ventilate grievance, he filed Civil Misc. Writ Petition No. 21823 of 1987. The said writ petition was heard and disposed of by judgment and order dated 28.1.1992 with the observation that- "In the circumstances of the case. If the petitioner is still entitled to get the benefits of the above provisions and he makes appropriate application for it within a month from today, his application shall be considered and decided according to the Rules within a period of three months from the date of its receipt and the decision taken thereon will be intimated to him."
(3.) In pursuance to the above order, the appellant moved an application for re-enrolment and mustering as JCO (RT) Religious Teacher (Pandit). The appellant was re-enrolled as Driver (MT) in SC (NT) w.e.f. 10.4.1993 in terms of the provisions contained in Regulation 143 of the Army Act. However, the claim of the appellant for his mustering as JCO (Pandit) was rejected by the authority concerned. Consequent upon he filed another Civil Misc. Writ Petition No. 13885 of 1995 before this Court. This petition was disposed of by the Judgment and order dated 27.11.1996 with the observation that- "So far as the claim for posting as JCO (RT) is concerned, in paragraph 21 of the counter-affidavit it has been pointed out that the post of J.C.O. (RT) is a Commissioned post of Junior officer, for which certain requisite qualification are necessary. The petitioner do not possess requisite qualification, therefore, he cannot be considered for the same. Admittedly, the petitioner was a Sepoy which is the lowest rank in Army. On re-enrolment he cannot be posted in a post higher than the post he had held. From the Army instruction No. 204 it appears that the recruitment in the post of JCO (RT) is made direct from the rank of Jamadar or Naib Subedar in the ratio of 3:1 provided they fulfil age limit of 25-35 years and are found medically fit in the category "AYE" and possess the educational qualification provided in paragraph 5 thereof and are selected in the manner provided in paragraph 6 by the Recruiting Officer in consultation with Commanding Officer of the unit concerned. Thus. It appears that the petitioner being the Sepoy cannot come within the ambit of consideration for recruitment to the said post. Therefore, the said claim cannot be maintained by the petitioner.";