JUDGMENT Bhagwan Din, J.
1. This Special Appeal has been preferred against the judgment and order passed by single Judge dismissing the Writ Petition No. 13165 of 1996 on the ground that there is no provision of counting the intervening period from the date of discharge to the date of re-enrolment towards qualifying service to earn minimum pension and the seniority of the appellant may be counted w.e.f. 10.4.1993, the date on which he was re-enrolled and also no Rule, Regulation or Administrative Order on which the claim rested has been cited, that the appellant may be allowed to continue in service even after attaining the age of 40 years to complete the qualifying service to earn minimum pension.
2. The events and the circumstances constituting the facts, having bearing on the decision of this appeal, are that the appellant was enrolled in June, 1977 as Sepoy/Driver (MT) in Army Service Corps, and after requisite training he was posted as class III driver. As the luck would have, he met with an accident in August, 1980. He sustained severe injuries, resulting in fracture of mid shaft femur. Because he met the accident when he was on bona fide Government duty, he was allowed to continue in Army service and was treated at various military hospitals. After completion of the treatment, his disability was surveyed and classified in category "BEE" with disability less than 20%. He was, therefore, discharged from the service in the month of September. 1987. With a view to ventilate grievance, he filed Civil Misc. Writ Petition No. 21823 of 1987. The said writ petition was heard and disposed of by judgment and order dated 28.1.1992 with the observation that--
"In the circumstances of the case. If the petitioner is still entitled to get the benefits of the above provisions and he makes appropriate application for it within a month from today, his application shall be considered and decided according to the Rules within a period of three months from the date of its receipt and the decision taken thereon will be intimated to him."
3. In pursuance to the above order, the appellant moved an application for re-enrolment and mustering as JCO (RT) Religious Teacher (Pandit). The appellant was re-enrolled as Driver (MT) in SC (NT) w.e.f. 10.4.1993 in terms of the provisions contained in Regulation 143 of the Army Act. However, the claim of the appellant for his mustering as JCO (Pandit) was rejected by the authority concerned. Consequent upon he filed another Civil Misc. Writ Petition No. 13885 of 1995 before this Court. This petition was disposed of by the Judgment and order dated 27.11.1996 with the observation that--
"So far as the claim for posting as JCO (RT) is concerned, in paragraph 21 of the counter-affidavit it has been pointed out that the post of J.C.O. (RT) is a Commissioned post of Junior officer, for which certain requisite qualification are necessary. The petitioner do not possess requisite qualification, therefore, he cannot be considered for the same. Admittedly, the petitioner was a Sepoy which is the lowest rank in Army. On re-enrolment he cannot be posted in a post higher than the post he had held. From the Army instruction No. 204 it appears that the recruitment in the post of JCO (RT) is made direct from the rank of Jamadar or Naib Subedar in the ratio of 3:1 provided they fulfil age limit of 25-35 years and are found medically fit in the category "AYE" and possess the educational qualification provided in paragraph 5 thereof and are selected in the manner provided in paragraph 6 by the Recruiting Officer in consultation with Commanding Officer of the unit concerned. Thus. It appears that the petitioner being the Sepoy cannot come within the ambit of consideration for recruitment to the said post. Therefore, the said claim cannot be maintained by the petitioner."
4. The appellant was not satisfied with the above order, therefore, he moved a review application which also met the same fate. Ultimately he filed Special Appeal Nos. 132 of 1997 and 164 of 1997. Both of them have been dismissed by a Division Bench of this Court on 1.9.1997. The appellant refused to leave the field and accept his defeat in the fight with the respondents. He filed another Civil Misc. Writ Petition No. 13165 of 1996 before this Court and also SLP Nos. 14190 and 14191 of 1998 before the Apex Court. Both the SLP's were dismissed as withdrawn primarily on" the ground that the petitioner was pursuing his remedy in the Writ Petition No. 13165 of 1996 pending in the High Court.
5. In the Writ Petition No. 13165 of 1996, the appellant challenged the validity of the order dated 14.8.1995 discharging him w.e.f. 31.7.1996 basically on the ground that immediately after the notice of discharge was served on him, he lodged a complaint dated 19.9.1995 before the respondent No. 1 for cancellation of the discharge order, to be given effect from 31.7.1996. The respondent No. 1 ought to have decided the same within the period of 90 days as provided in sub-clause 4 (b) of para 361 of the Defence Service Regulation which he did not and has illegally discharged him from the service. He, therefore, prayed for issue of writs :
(a) in the nature of certiorari quashing the order dated 14th August. 1995 discharging him in the afternoon of 31st July, 1996.
(b) in the nature of mandamus commanding the respondents not to discharge him and not to give effect of the order dated 14.8.1995, prior to a decision on the statutory complaints dated 19.9.1995 pending before the respondent No. 1.
(c) in the nature of mandamus commanding the respondents to issue identity card, pay books, hit, etc. to the petitioner and also to give all consequential service benefits to him.
6. From the records, it appears that the petitioner was offered to receive his identity card, pay book, kits, etc.. and also pension papers from the Army Head Quarter which he refused to collect therefrom. Seemingly for this reason, the last relief has not been pressed by the petitioner before the single Judge. The petitioner contended only for quashing the order, discharging him until the complaint against his discharge pending before respondent No. 1 and also that the order discharging him from service is illegal and not in consonance with the Rules and Regulations.
7. The learned single Judge on the view that the petitioner had completed 40 years of age on 31.7.1996 and in no case he could serve in the Army beyond the age of 40 years and, therefore, of necessity, he was to stand discharged in the afternoon of 31.7.1996. So also no rule could be cited for counting intervening period from the date of discharge in the year 1987 till the date of re-enrolment towards qualifying service pension and claim for seniority, dismissed the petition. Not being satisfied with the Judgment and order of the learned single Judge, the petitioner preferred this special appeal.
8. It is submitted by the learned counsel for the appellant that the petitioner was engaged in regular Army in 1977 and medically boarded out and discharged from the services in September, 1987. Thus he remained engaged in the service for a period of 10 years. In pursuant to the order of this Court, he was re-enrolled on 10.4.1993 and again discharged on 31.7.1996 and thereby could get re-enrolment. In the Army for a period of three years only. The total period of his engagement in the colour service was thus for a period of thirteen years. He contends that according to the instruction No. 1/S/1976, the duration of engagement of the persons enrolled under Army Act is 15 years (now 17 years) service with colours and two years in reserve or till the attainment of age of 40 years whichever is earlier. He further contends that para 143 of the Defence Service Regulations provides that duration of engagements of the persons re-enrolled for the full period of combined colour and reserve service, if has not completed minimum period of colour service, he will be allowed to continue his engagement until completion of 15 years' service with colours and two years in reserve. Thus the petitioner is entitled to complete seven years' more of his service with colours and two years reserve service. It is urged that the learned single Judge has failed to appreciate the difference between the conditions of enrolment and re-enrolment, as provided in the instructions and Regulations cited above and thereby the decision of the learned single Judge suffers from inherent error and illegality and deserves to be set aside.
9. We have also heard the learned counsel appearing for the respondents. The Army instructions l/S/76 dated January 14, 1996 relates to the duration of the engagement of the persons enrolled under the Army Act. It provides that the period of engagement of Group-1 personnel shall be 15 years' service with the colours and 2 years in reserve or till the attainment of 40 years of age, whichever is earlier and the period of engagement of Group-11 personnel shall be 18 years service with the colours and 3 years in the reserve or till the attainment of 46 years of age, whichever is earlier. The para (2) of the instruction provides that all the personnel, discharged from service at their own request before completion of the colour service referred to above Will also carry reserve liability for a period of 2 years or till attainment of 40 years of age in the case of Group-1 categories and 46 years of age in the case of Group-11 categories, whichever is earlier. The appellant since was enrolled in Group-1 and never mustered or promoted in Group-11. So also petitioner could not have the continuous engagement. He was discharged in 1987 on medical ground and subsequently re-enrolled on 10.4.1993 in view of the provisions of para 143 of Defence Service Regulations, therefore, the instruction No. 1/S/76 as depicted above, is not applicable and is of no gain sake for the petitioner.
10. As we have mentioned above that the petitioner was boarded out and discharged from the service in 1987 and later on re-enrolled in 1993 in view of the provisions of para 143 of the Regulations, therefore, the case of the petitioner is squarely governed by the para 143 of the Regulations. The perusal of this para is, therefore, essential for the correct decision in appeal.
The para 143 is reproduced below :
143 (a) "Ex-Service men, who are in receipt of disability pension, will not be accepted for re-enrolment in the Army.
(b) Ex-Servicemen, medically boarded out without any disability pension or those whose disability pension have been stopped because other disability having been reassessed below 20% by the Re-Survey Boards, will be eligible for re-enrolment, either in combatant or non-combatant (enrolled) capacity in the Army, provided they are re-medically boarded and declared fit by the medical authorities. If such an ex-serviceman applies for re-enrolment and claims that he is entirely free from the disability for which invalided, he will be medically examined by the Rtg. MO and if he considers him fit, the applicant will be advised to apply to officer-in-charge, Records Office concerned, through the Recruiting Officer, for getting himself re-medically boarded. The Officer-in-charge. Records Office concerned, on receipt of the application, will arrange for his medical examination at a Military Hospital nearest to his place of residence. The individual concerned will have to pay all his expenses, including that on accommodation and journey to and from the place of medical examination."
11. The appellant had been re-enrolled under para 143 of the Army Regulations hence the terms of para 143 shall be applicable for counting the period for pensionary benefit. The para 143 of the Army Regulations lays down that if the individual is found fit and re-enrolled on regular engagement, he will be enlisted for the full period of combined colour and reserve service, subject to the following conditions :
(i) If he had not previously completed the minimum period of colour service after which he could be transferred to the reserve, he will rejoin the colours and his previous colour service will count towards the minimum service required for transfer to the reserve.
(ii) If he had previously completed the minimum period of colour service required for transfer to the reserve and is fully trained and suitable in all other respects, he may be re-enrolled, provided a vacancy in the reserve exists, and be immediately transferred to the reserve."
12. The para 143 envisages certain conditions for the enrolment of a discharged Army personnel. The condition No. 1 is that he had not completed 15 years' of colour service and his previous colour service will be counted towards the minimum service required for transfer to reserve. The condition No. 2 is that in case the personnel had already completed the colour service, he will be re-enrolled and transferred to reserve service provided vacancy is available in reserve service. This para does not provide that the intervening period between the date of discharge and the date of re-enrolment will be counted for transfer to reserve service and also that that period shall be reckoned for the purpose of pensionary benefits.
13. In this context, a reference to letter No. A/32395/VIII/Org. 2 MP (C)/ 713-S/A/D/(AG) dated 10 May, 1977 issued in supersession of the Ministry's letter No. A/18219/V/AG/ Org 2 (MP) (C)/3298/D(AG-II), dated 18 June, 1971, may also be made. In this letter, it is indicated that President of India was pleased to decide that in respect of JCOs and OR who are placed permanently in a medical category lower than "A", every effort would be made to provide alternative employment in their own trade category commensurate with their medical categorisation, provided it is in the public interest to do so. The competent administrative authority should consider each case on merits and record a certificate in the individuals service documents that his continued retention in service is in the public interest. In the event of retention, any person willing to remuster in other arm or branch will not be denied the opportunity of such a transfer, if it is possible to try him out in the new arm/branch despite his low medical category. Their pay on remustering will be fixed as for surplus personnel in accordance with Al 169/59 for JCOs and Al 4/S/55 for OR as amended.
14. Retention in service in alternative employment, in terms of para 1 above, will ordinarily be for a period of 15 years in the case of JCOs and 10 years for OR. On completion of the aforesaid period of service, personnel will be discharged with all convenient speed. However, personnel placed in permanent low medical category may continue to be retained beyond the period specified above, until they become due for discharge in the normal manner, subject to their willingness, provided they can be employed in sheltered appointments, their retention is in public interest and their retention will not exceed the sanctioned strength of the regiment/corps.
15. General provision for retirement is that ordinarily low medical category personnel will be retained in service till completion of 15 years service with colours in the case of JCOs and 10 years in the case of OR (including NCOs). However, such personnel may continue to be retained in service beyond the above period until they become due for discharge in the normal manner subject to the willingness and the fulfilment of the stipulation laid as above. The para 3 of the letter referred to above consists a condition that all personnel retained in service in terms of para 2 above will under all circumstances, be discharged on completion of their engagement periods/retiring service limits. For this purpose. NCOs and JCOs will be treated as under :
(a) NCOs will be discharged on completion of the retiring service limits appropriate to their marks as opposed to the extended limits laid down in AO 13/77. However, their retention beyond the contractual period of engagement will be regulated under the provisions of paras 144 to 147 of Regulations for the Army 1962.
(b) JCOs will be discharged on completion of the normal retiring service limits as opposed to the extended limits laid down in AC 13/77.
16. The appellant admittedly has been re-enrolled in obedience of the Courts order on the terms and conditions given in the letter referred to above and as provided in para 143 of the regulation. In terms of the Government of India, Ministry of Defence letter No. A/37/395/A/2 IMP) 1C) 713-S/A/D dated 10th May, 1977, the personnel with permanent low medical category will be retained in service till the completion of 15 years in the case of JCOs and 10 years in the case of OR. They may, however, be allowed to continue in service beyond the above period until they became due for discharge in normal manner. The appellant before being discharged in normal manner was OR, therefore, he could have been retained in service only for a period of 10 years and could be in all circumstances be discharged on completion of his retiring service limit. However extended limit of discharge of such personnel as laid down in AO 13 of 1977 shall not be allowed to be availed. Besides the above, regularisation and terms and conditions laid down by the instructions issued time to time, no other Rule. Regulation or the instruction has been cited and referred which provides that even after completion of the retiring age-limit, the re-enrolled personnel may be retained with a view to complete the period of service in colours and service in reserve. There is nothing in the instruction No. 1/S/76 or in para 143 of the Regulations or in the letter No. A/32395/VllI/Org-2 MP (CJ/713-S/A/D (AG) dated 10.5.1977 to indicate that the intervening period between the date of discharge and re-enrolment shall be counted for reckoning the pensionary benefits.
17. It is not disputed that complaint filed by the appellant before respondent No. 1 was not disposed of prior to his discharge from service. However, the contention of the appellant's counsel that the respondent No. 1 could not discharge the petitioner until the disposal of his complaint is without substance for two reasons, first that there is no regulation dealing with such situation and providing that the Army personnel shall not be discharged before disposal of a complaint if it is so made, second that the confirmation of the order dated 14.8.1995 and discharge of the appellant amounts to an automatic rejection of his complaint.
18. For the above reasons, we are of the definite opinion that the learned single Judge committed no error in dismissing the writ petition and refusing to grant relief as prayed by the appellant. The appeal is without merit and deserves to be dismissed.
It is accordingly dismissed.