IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE NINETEENTH DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION NO:36733 of 1998 Between: Gurjit Singh Bajwa JC-144408N S/o. Sardar Amar Singh R/o. Secunderabad. ..... PETITIONER AND 1 Union of India, Rep. by its Secretary Ministry of Defence, South Block New Delhi. 2 Chief of the Army Staff, Army Head Quarters Sena Bhavan, New Delhi. 3 Director General of EME Army Head Quarters DHQ PO New Delhi 4 Officer-incharge, EME Records Secunderabad 5 Colonel Records, EME Records Secunderabad 6 Commanding Officer EME Depot Bn Secunderabad .....RESPONDENTS Counsel for the Petitioner:MR.S.KRISHNA Counsel for the Respondents:MR. DEEPAK BHATTACHARJEE The Court made the following : ORDER: This writ petition is filed for a writ of mandamus to declare proceedings, dated 12.12.1998 retiring the petitioner from service as illegal and arbitrary, to direct the respondents to continue him in service in the rank of Subedar Major till completion of 4 years of physical tenure in the said rank and to consider his case for honorary commission in the Army during the extended physical tenure in the rank of Subedar Major. Heard Sri S.Krishna, learned counsel for the petitioner and Sri Deepak Bhattacharjee, learned counsel for the respondents and perused the record. The petitioner, who joined the Indian Army as a trainee on 26.07.1967 was promoted as Subedar. When he was denied promotion to the rank of Subedar Major, he filed Writ Petition No.6629 of 1995, which was allowed by this Court vide its order, dated 21.09.1995. After the petitioner filed Contempt Case No.944 of 1995 alleging willful disobedience of the said order by not promoting him, the respondents issued proceedings, dated 17.02.1996 promoting the petitioner to the rank of Subedar Major. Writ Appeal No.128 of 1996 filed by the respondents against the order passed in Writ Petition No.6629 of 1995 was dismissed by a Division Bench of this Court on 26.03.1997. Aggrieved by the same, the respondents filed Special Leave Petition (SLP) before the Supreme Court. On 19.09.1997, the Supreme Court granted stay of the order of this Court. Consequently, the petitioner was reverted to lower rank and was discharged with effect from 29.12.1997 as he completed the age of 50 years, which was the age of superannuation for Subedar. Thereafter, SLP was dismissed on 25.09.1998, following which, the petitioner was reinstated into service on 10.12.1998 with effect from 01.08.1995. As the petitioner was considered to have completed 4 years of service in the rank of Subedar Major, he was discharged with effect from 31.12.1998. The petitioner was given promotion to Honorary Lieutenant on his retirement with effect from 01.01.1999. The grievance of the petitioner as projected by the learned counsel for the petitioner is twofold. Firstly, for no fault on his part, he was deprived of the opportunity of physically serving as Subedar Major for a major part of period of 4 years and Secondly, at any rate, the petitioner should have been granted the rank of Honorary Lieutenant with effect from the date preceding his retirement rather than on retirement. Sri Deepak Bhattacharjee, learned counsel representing the respondents submitted that the petitioner has no vested right to the award of the rank of Honorary Lieutenant and, therefore, he cannot have any legitimate grievance in this regard. As regards the first contention of the learned counsel for the petitioner, admittedly, the petitioner was promoted to the rank of Subedar Major under proceedings, dated 17.02.1996 and was recalled to service in pursuance of the said proceedings. However, in view of the interim order passed by the Supreme Court on 19.09.1997, he was reverted to the lower rank and consequently, discharged from service, as he crossed the age of 50 years, which was the age of retirement for the person holding the rank of Subedar. Therefore, the action of the respondents in reverting the petitioner and consequently discharging him being in pursuance of the interim order of the Supreme Court, I do not find any merit in the first contention. As regards the second contention, after the SLP was dismissed on 25.09.1998, the petitioner was reinstated into service on 10.12.1998 but as he completed 4 years of service in the rank of Subedar Major, he was discharged with effect from 31.12.1998. The contention of the learned counsel for the petitioner that after he was reinstated under proceedings, dated 17.02.1996, the petitioner’s name was recommended for the rank of Honorary Lieutenant and that in view of his reversion with effect from 29.12.1997, the said recommendation was not processed further. As not much time was left for conferring him the said rank between the date of his second reinstatement and his retirement on 31.12.1998, he could not be given the rank of Honorary Lieutenant. The learned counsel pointed out that while a person, who is given the rank of Honorary Lieutenant while in service is entitled to pension attached to the said post, a person, who is conferred with the rank on retirement is not entitled to such pension. I find force in the submission of the learned counsel for the petitioner. But for the petitioner’s reversion following the interim order of the Supreme Court, the petitioner perhaps would have been given the rank of Honorary Lieutenant before his retirement. The petitioner, who eventually succeeded in the litigation, is entitled to be restored to his original position, but for the litigation by applying the principle of restitution. In this view of the matter, I find it appropriate to direct the respondents to consider the case of the petitioner for awarding the rank of Honorary Lieutenant while in service by treating the petitioner as being physically continued in service from 01.08.1995. If on such consideration, the petitioner is found entitled to the rank of Honorary Lieutenant, the award of rank of Honorary Lieutenant given to the petitioner on retirement should be modified as having been given while being in service and pensionary benefits shall be accordingly, paid to him. Subject to the above observations, the writ petition is disposed of. As a sequel to disposal of main petition, WPMP.No.45266 of 1998 filed by the petitioner for interim relief is disposed of as infructuous. C.V.NAGARJUNA REDDY, J 19th DECEMBER, 2008. kvni