G.R. Majithia, J. - (1.) THIS is an appeal under clause X of the Letters Patent against the order of a learned Single Judge whereby he directed that the writ -Petitioner should be restored the acting rank of Lt. Colonel from the date it was taken away from him and he should be paid arrears of salary of the acting rank of Lt. Colonel within two months from the date of the order along with interest at the rate of 12 per cent per annum.
(2.) FACTS first: The Respondent, who will hereinafter be referred to as the Petitioner, was commissioned to the Armed Forces on June 13, 1963. He was promoted to the rank of Selection Grade Lt. Colonel on June 9, 1983 and was posted to the newly raised 18 Mechanised Infantry. Prior to his assuming the command of the Unit, Major Surinder Kumar officiated as Commanding Officer from March 1, 1983 to June 8, 1983. He made various appointments in the Unit, including that of Capt. J.P.S. Toor as Technical Officer. On January 6, 1984, two persons of the Unit allegedly took out a vehicle containing petrol barrels. They were detected and as they could not explain their conduct, they were placed under arrest and investigation was started' against them. The detailed investigation brought out the involvement of Capt. J.P.S. Toor in the sale of fuel. Capt. J.P.S. Toor, in order to save his skin, made a bald statement that Havildar responsible for accounting the fuel items, used to obtain signatures of the Petitioner on emergent demands. This statement was made the basis to implicate the Petitioner. The Petitioner was attached to HQ 39 Mechanised Brigade with effect from April 15, 1985. As a result thereof, he was brought down to a substantive rank of Major. The army authorities took this action under Army Instructions l/S/74, as amended by Army Instructions 2/76, further amended by Army Instructions 31/86,
(3.) THE Petitioner was informed that he would be tried by a General Court Martial and would be jointly tried with Capt. J.P.S. Toor on the basis of the charge -sheet served upon him. The Petitioner objected to the joint trial with Capt. J.P.S. Tear since this was likely to prejudice his defence. He also sought a direction from this Court to the Appellants to restore him the acting rank of Lt. Colonel.;