M. M. Dutt, J. - (1.) This appeal his been preferred by the appellant against the judgment of a learned single Judge of this Court whereby the lea net Judge dismissed the application of the appellant under Article 226 of the Constitution of India. In the writ application, the appellant challenged certain orders of the respondents refusing to grant to the appellant promotion to the post of Naik Subedar.
(2.) It appears that by a Memo No. A/16099/Policy/AG(c)/2085/S/D(AG) dated 16th December, 1976 issued by the Government of India, the existing terms and conditions of service of Junior Commissioned and Non-Commissioned Officers were revised, whereby, inter alia, the retirement age of Habildars was raised to 47 years and their age for promotion to the rank of Junior Commissioned Officers was also raised to 42 years from 40 years, The Officers in Charge, Records were directed to take immediate action to obtain option certificates from all Junior Commissioned and Non Commissioned Officers (JCOs and NCOs). The forms of the option certificates were also sent along with the said Government Order. If one opts for the revised terms or wishes to be governed by the existing terms of service, in either case, one has to sign an option certificate in the presence of the Officer Commanding.
(3.) The appellant is a Habildar Draftsman, Grade II. He successfully completed the Promotion Cadre Course at Roorkee. On February 7, 1980 he was selected and recommended by the Departmental Promotion Committee for his promotion to the post of Naik Subedar. The appellant's name was placed by the Departmental Promotion Committee at Serial No. 29 in the list of candidates recommended by the said Committee. At the material time, the appellant crossed the age of 40 years After he was recommended by the Departmental Promotion Committee, he was transferred to the office of the Commander Works Engineer, Vinaguri on July 13, 1980. Thereafter he made representations to the respondents for giving effect to the recommendation of the Departmental Promotion Committee But, ultimately the respondent no 3 by his memo dated February 9, 1981 informed the appellant that the appellant not having opted for the revised terms of service in accordance with the said Government Order dated 16th December, 1976, he was eligible for promotion only upto the age of 40 years, but not after he crossed the age of 40 years. If he had opted for the revised terms of service, in that case as stated already, his age for promotion would have been 42 years. Be that as it may, the appellant was not promoted to the post of Naik Subedar as he had not opted for the revised term of service. After he was denied promotion on the ground of age bar, the appellant made representations which were all rejected and, ultimately, he preferred a statutory complaint under Section 26 of the Array Act to the Chief of the Army Staff which was rejected, and he was informed of the rejection in November, 1981. He, however, filed the writ petition on July 1982, that is, about eight months after the rejection of his statutory complaint under b 46 of the Army Act.;