-1- Civil Writ Petition No.15137 of 2007. IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Date of Decision: January 31, 2008. Mohan Singh ... Petitioner VERSUS Union of India and others ... Respondents CORAM : HON'BLE MR.JUSTICE HEMANT GUPTA. HON'BLE MR. JUSTICE MOHINDER PAL. 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 ? Present: Mr. G.S.Ghuman, Advocate, for the petitioner. Mr. Tribhuvan Dahiya, Advocate, for the respondents. -.- MOHINDER PAL, J. The petitioner was enrolled as Sepoy in the Indian Army on January 21, 1984. He was promoted to the rank of Havildar on October 01, 1995 as per seniority. The terms of engagement as applicable to the petitioner's rank are 24 years. -2- Civil Writ Petition No.15137 of 2007. The petitioner is due to retire on January 31, 2008 (Afternoon). As per letter dated May 06, 2003 (Annexure P-2), terms of engagement in respect of Personnel Below Officer Rank (for short `PBOR') are extendable by two years based on the option exercised by an individual. On August 28, 2004, the petitioner submitted his Unwillingness Certificate to service the extended tenure of two years beyond his term of engagement while forwarding his Last Lap of Posting application. Thereafter on January 04, 2006, the petitioner submitted his Willingness Certificate. Based on his Unwillingness Certificate, screening was carried out by the Screening Board and the petitioner was not considered eligible for grant of extension in service in revocation of his earlier option by the Screening Board in its meeting held on February 14, 2006. The petitioner submitted Statutory Complaint dated February 25, 2007 (Annexure P-10) against the decision taken by the Screening Board on February 14, 2006. The Statutory Complaint was rejected by the Chief of the Army Staff vide his order dated December 26, 2007. In this petition, the petitioner has challenged the orders passed by the respondents whereby he has been ordered to be discharged from service with effect from January 31, 2008. In the written statement filed by the respondents, it has been pleaded that the petitioner was not found eligible to -3- Civil Writ Petition No.15137 of 2007. review his case for extension in service in terms of the letter dated May 06, 2003 (Annexure P-2). It has been further pleaded that the Statutory Complaint of the petitioner has been rejected after due consideration of all the facts and relevant rules. Further that the Willingness Certificate dated January 04, 2006 cannot have the effect of revoking the earlier Unwillingness Certificate dated August 28, 2004. The petitioner had applied for Last Lap Posting on August 24, 2004 and had sought posting at one of his choice stations i.e Lucknow, Dehradun or Haldwani. His case was considered by the competent authority and he was ordered for posting at Dehradun vide letter dated January 10, 2005. It is further averred that since the petitioner had already submitted his unwillingness, he was rightly not considered fit for grant of extension in service by the Screening Board in its meeting held on February 14, 2006. The discharge order dated December 21, 2006 (Annexure P-12) has been rightly issued twelve months in advance of the retirement of the petitioner i.e on January 31, 2008 (Afternoon). We have heard the learned counsel for the parties and have gone through the records of the case. The letter dated May 06, 2003 (Annexure P-2) lays down the following criteria and conditions under which an opportunity under Regulation 146 of the Regulations For The Army, 1987 (hereinafter referred to as `the Army Regulations'), -4- Civil Writ Petition No.15137 of 2007. can be provided to the individuals who had initially given unwillingness to service for two more years:- “ (a) Retention will in no case exceed two years. (b) Retention will not be granted beyond the maximum age or service limit of retirement laid-down for that rank. ( c ) Retention will not be permitted when the strength of that particular category, trade or establishment reaches 98 % of authorisation.” In the written statement, it has been stated that as holding strength in the petitioner's trade was 99 % and 100.41 % as a whole in the corps, the petitioner was not considered eligible for grant of extension in service by revoking his earlier option. The petitioner was, therefore, not entitled to extension of service under Regulation 146 of the Army Regulations. It has been further mentioned in Annexure P-2 that “willingness/unwillingness once extended cannot be changed”. Thus, no fault can be found with the decision dated February 14, 2006, taken by he Screening Board which was passed as per the guide-lines/criteria laid down in the letter dated May 06, 2003 (Annexure P-2). -5- Civil Writ Petition No.15137 of 2007. We have perused the order dated December 26, 2007, annexed with Annexure R-1, passed by the Chief of the Army Staff, whereby Statutory Complaint dated February 25, 2007 (Annexure P-10) of the petitioner has been rejected. It is a well-reasoned one and has been passed after due application of mind. It reads as under:- “1. xx xx xx. 2. xx xx xx. 3. I have perused the Statutory Complaint by the NCO (Non Commissioned Officer) and examined the same along with his overall profile, recommendations of intermediary authorities, rule position and other relevant documents. After consideration of all aspects of the complaint and viewing it against the redress sought, it has emerged that the NCO's request for extension of service cannot be accepted, as he himself had exercised the option for non grant of extension of service in August 2004, along with his request for last leg posting. The option exercised by the individual once, is irrevocable and hence the request for grant of two years -6- Civil Writ Petition No.15137 of 2007. extension lacks merit. 4. I, therefore, direct that the complaint of the NCO be rejected. 5. The NCO be informed accordingly.” Learned counsel for the petitioner has cited the case of Shambhu Murari Sinha v. Project Development India Ltd. & Anr., JT 2002 (3) SC 37 to contend that an employee has a right to withdraw his proposal for voluntary retirement before the jural relationship of employer and employee comes to an end. No doubt, in that case it was held by the Apex Court that the appellant therein had locus poenitentiae to withdraw his proposal for voluntary retirement before the relationship of employer and employee came to an end, but the ratio of that case is not applicable in the instant case as the appellant therein was in civil employment of the respondent-Company whereas the petitioner being in the Indian Army was governed by the Army Regulations. In view of the above, we do not find any merit in this writ petition. Hence, it is dismissed. ( HEMANT GUPTA ) ( MOHINDER PAL ) JUDGE JUDGE January 31, 2008. ak