LETTERS PATENT APPEAL NO. 169 OF 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: 9-1-2009 Parties Name Union of India and others ...APPELLANTS. VERSUS Jagdish Singh and another ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE T.S.THAKUR, CHIEF JUSTICE HON'BLE MR. JUSTICE JASBIR SINGH PRESENT: Mr. Ajay Kaushik, Advocate, for the appellants. Mr. B.S. Sehgal, Advocate, for respondent No. 1. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Jasbir Singh, J. Judgment. Appellants have filed this letters patent appeal against the judgment dated November 15, 2006, vide which CWP No. 3845 of 1996, filed by respondent No. 1, was allowed and the appellants were directed to consider his case for promotion, to the post of Subedar w.e.f. the date respondent No. 2 was promoted. It was further ordered that respondent No. 1 shall be entitled to get two years' extension of service as 'Subedar' and LETTERS PATENT APPEAL NO. 169 OF 2007 -2- shall be entitled to get all consequential benefits including salary for the above said period. Counsel for the parties heard. It is apparent from the record that respondent No. 1 prayed in his writ petition that he be considered for promotion to the rank of Subedar w.e.f. March 1, 1994, i.e., the date when person(s) junior to him were considered and promoted. It was also prayed that he be granted benefit of two years' extension in service and be deemed to have superannuated on October 1, 1997. It was case of respondent No. 1 that he was senior to respondent No. 2, however, by ignoring his claim, respondent No. 2 was promoted to the post of Subedar on March 1, 1994. Comparative table showing date of entry in service and further promotions of respondents No. 1 and 2 is as under: “Rank Date of Date of Amended seniority of the seniority of dates P.1 petitioner respondent No. 6 Date of 16.09.1969 16-8-1969 -- enrollment L/NK 01-04-1981 01-07-1984 09-12-1983 Naik: Acting Nak 09-12-1983 01-07-1984 09-12-1983 Substantive 01-11-1985 01-04-1986 01-11-1985 HAV: Acting Hav 20-05-1988 20-05-1988 20-05-1988 Substantive 01-06-1988 01-05-1989 01-06-1988 Naib 13.04.1992 04-08-1993 Subedar w.e.f. 01-01-1992 01-01-1992 Subedar Not 20-09-1994 promoted 01-03-1994.” Dates, mentioned above, clearly indicate that respondent No. 1 LETTERS PATENT APPEAL NO. 169 OF 2007 -3- entered service of the Indian Army on September 16, 1969, and respondent No. 2 on August 16, 1969, as such respondent No. 2 was senior to respondent No. 1. However, dates, mentioned above, further prove that during service, against the rank of Lance Naik, Naik, Hawaldar, Naib Subedar, respondent No. 1 was promoted prior in time to respondent No. 2. For a long period of about 12 years, the respondent No.2 did not lay challenge to the promotion given to respondent No. 1. It appears that on receipt of an application, moved by respondent No. 2, he was declared senior to respondent No.1 vide order dated April 16, 1993/ May 18, 1993(P-1). In view of order, referred to above, respondent No. 2 was given ante-dated promotion against the rank of Naib Subedar w.e.f. January 1, 1992. It is an admitted fact that above said orders were passed without any notice to respondent No. 1. One post in the rank of Subedar fell vacant on March 1, 1994. It was case of respondent No. 1 that he, being senior, ought to have been promoted against the above said post as his work and conduct was upto the mark. However, he was ignored and respondent No. 2 was promoted against that post. As the respondent No. 2 had failed to get next promotion, as per rules, he was retired from service on September 30, 1995, after rendering 26 years of service. It was his case that if he had been promoted to the next rank, he would have retired after rendering 28 years of service as per provisions of Regulation 163 of Defence Regulations for the Army(Revised Edition 1987). As per record, before his retirement, respondent No. 1 filed a statutory complaint. However, his grievance was not redressed. Legal notice served by him also failed to yield any result. Compelled under LETTERS PATENT APPEAL NO. 169 OF 2007 -4- the circumstances, respondent No. 1 filed a writ petition in this Court, which was allowed vide the impugned order. The learned Single Judge came to the conclusion that as no notice was served upon respondent No. 1, before order was passed in favour of respondent No. 2 declaring him senior to respondent No. 1, treating it as violation of the principles of natural justice, orders dated April 16, 1993/ May 8, 1993 were held to be unjustified. However, by taking note of a fact that in the meantime, respondent No. 2 had retired as a Subedar, relief was modified and it was ordered that one supernumerary post of Subedar be created and respondent No. 1 be considered for promotion against that post, from the date employee junior to him was promoted against the post of Subedar. As a consequence, it was further ordered that if promoted, as per the provisions of the Regulations, he be given extension in service for two years, all consequential benefits including salary etc. be also paid to him and he shall be deemed to have retired as a Subedar after rendering 28 years of service. After hearing counsel for the parties, this Court is convinced that the order passed is perfectly justified. Above said finding is fortified in view of the fact that after passing of order by the learned Single Judge on November 15, 2006, respondent No. 1 was considered for promotion against the rank of Subedar and vide letter dated October 10, 2008, Army Headquarters gave sanction for his promotion against the above said post. It was further ordered that notional seniority w.e.f. March 1, 1994, with all consequential benefits including two years' extended service, pay and allowances for the extended period and pensionary benefits, as applicable, be paid and respondent No. 1 shall be deemed to have superannuated w.e.f. October 1, 1997, i.e., after rendering 28 years of LETTERS PATENT APPEAL NO. 169 OF 2007 -5- service. Pension payment order was also issued in favour of respondent No. 1 (photo copy of the letter has been placed on record at the time of arguments). Facts, mentioned above, clearly establish that at the time when respondent No. 1 was ignored for promotion, he was fully eligible and the benefit was declined to him without any fault on his part. The authorities were to be blamed for passing an arbitrary order giving post-dated promotion to respondent No. 2 and ignoring rightful claim of respondent No. 1, that too wiithout any notice to him. Counsel for the appellants has failed to show us any legal infirmity in the order, passed by the learned Single Judge. It was then argued by counsel for the appellant that the benefit of salary for a period of two years , in which respondent No. 1 had not worked, be not paid to him. In view of facts of this case, we are not inclined to accept the above said argument. It has come on record that the competent authority has found respondent No. 1 fit for promotion, his right was wrongly denied to him, in that event, it is not possible for us to give benefit to the authorities for a wrong committed by them to the detriment of respondent No. 1, who has served the Indian Army for a period of 26 years. He has sacrificed prime time of his life in service of the nation. He was willing to serve more and was expecting his next promotion, which was denied to him. As such, it cannot be said that he is not entitled to get salary for the extended period of two years. Above said benefit has already been released in his favour by the authorities concerned vide letter dated October 10, 2008. However, we make it very clear that when releasing amount of salary and other benefits to respondent No. 1, the authorities will be at liberty to LETTERS PATENT APPEAL NO. 169 OF 2007 -6- adjust amount, already paid to him, and thereafter refix his pension etc. and make the payment accordingly. No case is made out for interference. Dismissed. ( Jasbir Singh ) Judge 9-1-2009 ( T. S. Thakur ) DKC Chief Justice