CWP No.9636 of 1987 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No.9636 of 1987 Date of Decision:10.9.2008 Ex-Subedar Nirmal Singh ...Petitioner. Versus Union of India and others. ...Respondents. CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present: Mr. Rajesh Sehgal, Advocate for the petitioner. Mr. Anil Rathee, Advocate for the Union of India. Rakesh Kumar Garg, J. 1. The petitioner who is an ex-Serviceman, is seeking a writ of mandamus directing the respondents to implement the contents of the Govt. of India Gazette Notification granting the Honorary Commission of Lieutenant to the petitioner with effect from 26th January, 1986 on the basis of meritorious service rendered and recommendations as per the policy laid down for the grant of Honorary Ranks to the Junior Commissioned Officer, and for a direction to the respondents to grant the pay and allowances of the rank from 26th January, 1986 onwards till the date of retirement i.e. upto 30.11.1986. A further writ of mandamus has been sought directing the respondents to fix/grant the petitioner the pension of the rank of Honorary Lieutenant/Captain as the case may be with all the consequential benefits of increase in Death-cum-Retirement Gratuity, Commutation, Pension etc. as per the scales of pension applicable to the Honorary Commissioned Officers. 2. The petitioner was enrolled in the Indian Army (Corps of Engineers) as Combatant on 20.11.1958 and after completion of training in CWP No.9636 of 1987 2 the relevant field, was inducted into the Army Service. During his entire Army Service, the petitioner's conduct and work was satisfactory. The petitioner was promoted to the rank of Lance Naik, Naik, Havildar, Naib Subedar and Subedar after fulfilling the requisite conditions and passing the various tests prescribed while in the service of the Army. The petitioner was transferred to number of various units both Field as well as the peace area, High Altitude, Active Service War Service and base as well. The petitioner, in 1965 War with Pakistan served in Forward Base. In recognition of his services in the Army, the petitioner was granted various medals, both Long Service as well as War Service Medals. The petitioner got his promotions from the Rank of Sepoy upto the rank of Subedar well in time. The petitioner has since retired on 30.11.1986. 3. As per the averments made in the writ petition, the name of the petitioner was recommended for the grant of Honorary Rank of Lieutenant after fulfilling all the formalities as per the procedure/instructions laid down by the Govt. of India for conferring the rank of the Honorary Commissions on the eve of Republic Day, 1986. 4. It is the case of the petitioner that he was granted Honorary Rank/Commission of Lieutenant by the President of India on the eve of Republic Day, 1986 w.e.f. 26.1.1986. As per the Gazette Notification of the Govt. of India, the said grant of Commission of Honorary Lieutenant to the petitioner was widely reported by the various Newspapers. It is the grievance of the petitioner that despite the fact that he was granted Honorary Commission of Lieutenant, he was not allowed to wear the rank for the unknown reasons. The petitioner submitted a number of times to the higher authorities that he may be allowed the benefits of wearing the rank/crest etc. with the consequential benefits flowing from the rank therefrom including higher pay and allowances for the rank as the same CWP No.9636 of 1987 3 has been granted by the President of India. The petitioner served a Notice of Demand for the implementation of grant of Honorary Commission of Lieutenant and consequential benefits by way of fixation of rank pension of Honorary Lieutenant etc. vide Annexure P-2. However, the respondent gave no reply to the same. The petitioner was retired on 30.11.1986 and he was granted the pension of the rank of Subedar only. Since no response was received to the notice dated 24.11.1986, Annexure P-2, the petitioner served a reminder dated 28.9.1987. Respondent No.4 vide his reply dated 17.10.1987 intimated him that his name was included in the panel drawn for award of Honorary Commission for Republic Day 1986, but it was erroneously included and therefore was deleted by Army Head Quarter. 5. Thus, the petitioner has stated that the action of the respondents in not implementing the grant of Honorary Rank of Lieutenant to the petitioner and withholding the same despite the fact having been published in the Govt. Gazette, and further not considering the petitioner for the rank of Honorary Captain as well as non-payment of pay and allowances of the Honorary Lieutenant Rank w.e.f. 26.1.1986 till the date of retirement as on 30.11.1986 and further withholding of pension of the rank of Honorary Lieutenant's scales w.e.f. 1.12.1986 is wholly illegal, null and void and contrary to the Rules. 6. The writ petition has been contested by the respondents by filing written statement stating therein that the petitioner was recommended for the grant of Honorary Commission in July, 1985 as he met the criteria laid down for such recommendation at that time. Subsequently, the petitioner was involved in a disciplinary case and was awarded “Severe Displeasure” by the General Officer Commanding, 10th Infantry Division. The said order was acknowledged by the petitioner on 14.12.1985 thereby rendering him ineligible for grant of any further promotion/award of Honorary Commission CWP No.9636 of 1987 4 for three years. The facts were intimated to Records Office vide 59 Engineer Registration Letter No.0052/Vol.-VII/172/A1 dated 8.1.1986 and for this reason, the petitioner was not awarded the honorary rank as the nature and gravity of the offence is kept in view by the competent authorities at the time of considering the individuals for promotion/meritorious award. Thus, he is not entitled to relief as prayed for. 7. Mr. Rajesh Sehgal, learned counsel for the petitioner, has vehemently argued that the petitioner was granted Honorary rank of Lieutenant as is evident from Annexures P-1 and P-3 and the same has become absolute hence, no one could withdraw the same and automatic cancellation of the same cannot be permitted. He has also argued that no opportunity of being heard has been given to the petitioner before withdrawing/cancelling the Honorary Commission granted to him which is a must in accordance with the principles of natural justice as enshrined in a catena of judgments of the Hon'ble Apex Court. He has further argued that the award of punishment of “Severe Displeasure” is without jurisdiction and that cannot be a impediment in the way of granting the Honorary Commission to the petitioner as otherwise he fulfilled all other conditions for the grant of such benefit. In support of his contention, the learned counsel has placed reliance on the judgment of the Hon'ble Apex Court in Brij J.S. Sivia Vs. Union of India and others 1994(4) SLR 223. 8. On the other hand, Sh. A.K.Rathee, learned counsel for the respondents, has supported the action of the respondents and has argued that the petitioner was never granted the Honorary Commission as claimed by him. His name was only recommended for the grant of such benefit, however, it was found that he had invited disqualification because he was involved in a disciplinary case in the year 1985 and was awarded severe displeasure by the competent authority vide order dated 11.12.1985 and CWP No.9636 of 1987 5 therefore, his name was deleted by the Army Headquarters i.e. competent authority and there is no infirmity or illegality in such orders. In support of his case, Mr. Rathee has further argued that the petitioner was given an opportunity as he was informed about the punishment of awarding severe displeasure which was acknowledged by him on 14.12.1985 yet the petitioner has failed to challenge the said punishment. Thus, his name from the list of persons who were to be awarded the rank of Honorary Commission on 26.1.1986 was omitted before it could be granted to him though the same was deleted subsequently vide Army Headquarters Signal No.352361/AG/CW-2 dated 30.1.1986. 9. I have heard learned counsel for the parties and find no force in the contentions raised by learned counsel for the petitioner. There is no dispute with the proposition of law as raised by learned counsel for the petitioner to the effect that as per principles of natural justice, opportunity of hearing has to be given before withdrawing or canceling any order affecting adversely, yet in the present case, it needs to be seen that the petitioner was never granted the Honorary Rank of Lieutenant. Since for the grant of award on Independence Day, recommendations for such grant are initiated in the month of October, therefore, the name of the petitioner was included in the list of recommendations on the basis of his record. Admittedly, he incurred the punishment of severe displeasure which was communicated to him on 14.12.1985 i.e. much prior to the grant of award on 26.1.1986. Thus, the competent authority after keeping in view the ineligibility incurred by him decided to delete his name from the grant of award on the Republic Day on 26.1.1986. Undisputedly, these facts were intimated to the Records Office vide 50 Engr Regt letter no.0052/Vol-VII/172/A1 dated 8.1.1986 and therefore, by no stretch of imagination, it can be concluded that the petitioner was granted any Honorary Rank of Lieutenant, as claimed by CWP No.9636 of 1987 6 him. Admittedly, the petitioner has not challenged the punishment of severe displeasure which was conveyed to him on 14.12.1985 i.e. much prior to the grant of award. The second argument of the learned counsel for the petitioner to the effect that the award of punishment of severe displeasure is without any legal sanction and therefore, grant of award of Honorary Rank of Lieutenant to him cannot be withheld on the said basis, is also without any basis. The judgment of Brij J.S. Sivia's case (supra) does not help him in any way. In the case of Maj. Gen. P.C. Puri Vs. Union of India and others C.M.P. No.297 of 1992 it is held that the award of censure or severe displeasure (recordable) is a punishment. Interpreting similar letter/circular issued by the Adjutant General of the Army, same view was taken in Maj.J.S. Kang Vs. Union of India 1987(5) SLR 66 which was approved by the Division Bench of this Court in LPA No.396 of 1987 decided on 14.3.1989 and has been further reiterated in the case on Maj. S.S. Sabharwal v. Chief of Army staff 1989(6) SLR 236. 10. In view of the above, I find no merit in the writ petition and the same is dismissed. September 10, 2008 (RAKESH KUMAR GARG) ps JUDGE