JUDGMENT D.K. Seth, J.
1. The petitioners who were Havildars were required to put in 22 years of service. A circular was issued by the Government or India, Ministry of Defence letter No. A/16099/Policy/AG/PS2 (c)/2085/S/D (AG), dated 16.12.1976 which is contained in Annexure-1 to the writ petition. The said letter was issued in partial modification of the existing Rules as contained in para 165 of Regulations for the Army (1962), as amended, and A-I 9/5/65 governing terms of service/tenure limits for retirement of J.C.Os. and N.C.Os. Rank. Age. Service, tenure and limits for retirement was specified in clause (a) for Naik as 22 years of service with colours or 47 years of age, whichever is earlier ; in clause (b) for Dafadar/Havildar-on completion of 24 years of service with colours or 47 years of age whichever is earlier. The said circular further proceeded with the note for retention of N.C.Os. beyond their contractual period of engagement as per the Enrolment form as provided under Paras 144 to 147 of the Regulations for the Army (1962) and reserve liability would be regulated under the provisions of A-I 2/5/76. In clause (c) the service/tenure limits for retirement of Naib Risaldar/Naib Subedar were fixed at 26 years of pension service or 50 years of age whichever is earlier. While in clause (d) those of Risaldar/Subedar were fixed at 28 years pensionable service or 50 years of age whichever is earlier and so on. We are not concerned with other classes at the present moment. The said circular was followed by another letter being Army Headquarter Letter No. A/16099/Policy/AG/PS 2 (c), dated 18.12.1976. A copy of the said letter is contained in Anncxure-2 to the writ petition. It appears from the said letter that with reference to the letter dated 16.12.1976, contained in Annexure-1 to the writ petition, provisions for option was provided. All serving J.C.Os. and N.C.Os. were required to give their option, in writing, within a stipulated time. Procedure relating to exercising of option for different kinds of persons as well as the procedure for retention in service by reason of Increase in the service tenure, age or retirement was provided in the said letter. Option was given either to continue to be governed under the old existing Rules or under new revised Rules, Those who would be interested in exercising option to continue with old Rules were required to exercise their option in Appendix-B while those who would be opting for in the new Rules were required to exercise their option in Appendix-A. All persons who had proceeded on leave preparatory to retirement were also required to exercise option and if they were found fit for retention by the screening Board, they were required to continue. All those who were preparing to go on leave prepatory retirement were required to be retained at the centre and asked to exercise their option awaiting the decision of the Screening Board.
2. The very tenure of the said two letters read together shows that the increase in age was allowed to be made available to the persons who were governed under old and existing Rules or bound by contracts of service, provided they opt for the new Rules. A reading of the said rules does not indicate that the said increase in the tenure was on extension of service or that it was excepted from being Included in the pensionable service or that it precluded the persons opting for the new Rules from getting promotion. There was no provision contained in the said letters to Indicate such a situation.
3. Relying on these circulars. Shri G. D. Mukerji, learned counsel for the petitioners contends that the petitioners had opted for the new rules under Appendix-A. Before they had completed 24 years service under the new rules, they had been promoted from Havildars to Naib Subedar and were accordingly allowed to continue for 26 years as increased by the said amendment. After such completion of 26 years, the petitioners were given pension calculated on the basis of 24 years service, illegally treating the said two years as extension. Though the petitioners were promoted to the post of Naib Subedar on the alleged ground that they were Havildars exercising option and, therefore, they could continue only upto 24 years and could not get pension beyond that. According to him such contention cannot be sustained on the basis of above circulars as stated hereinabove. He further contends that once the age has been revised under the Rule, the rights accrued cannot be taken away even by any subsequent amendment in the Rules though however according to him there was no such amendment in the Rule till the petitioner had retired.
4. Mr. Shishir Kumar, learned counsel for the respondents has opposed the said contention and had contended that since the petitioners Opted as Havildars for an extension of their service for 24 years as mentioned, he cannot claim any benefit by reason of such option beyond 24 years, even though they were promoted during the said period of 24 years to the post of Naib Subedar. According to him, the said period of two years both in the case of Havildars and Naib Subedars respectively were extension and not continuation. He further contends that these circulars, however, were withdrawn subsequently and that the amendment became ineffective and inoperative. But however in his usual fairness Shri Shishir Kumar, states that he is unable to specify the date of such withdrawal so effected. He also states that he is unable to produce the document about the withdrawal of the amendment. However, according to him the promotion given to the petitioners in the post of Naib Subedar during 24 years of service cannot be included by reason of the option which was allowed only to the Havildars who opted for 24 years and 26 years option were given to those who were Naib Subedar. Whereas the petitioners being Havildars could not have opted for 26 years and they could have opted for 24 years. Therefore, services beyond 24 years cannot be counted as pensionable service for Havildars who opted under Appendix-A which is only provisional or temporary arrangement only in respect of increase of the age of tenure of service as contemplated under the said amendment to the persons holding the respective posts on the effective date.
Therefore, no benefit could be claimed on the basis of such limited scope. It was only a benefit given to those who were due to retire earlier under the existing Rules and not a service condition or in other words it was only an extension and not a continuation.
5. I have heard learned counsel for the petitioner and learned counsel for the respondents at length.
6. A plain reading of the said two circulars as indicated in first two paragraphs does not reveal that it had intended extension of service. It was simply an amendment in the Rules increasing the age or tenure or age of retirement. It had not indicated anything with regard to depriving of promotion once the option is exercised by a person holding the lower rank. If the promotion comes in the normal way during continuance by reason of exercising of option. In that event it cannot deprive the benefit of such promotion as well as the benefit of increase in the service tenure or the age of retirement. As soon as the person had exercised option as Havildar he was allowed to continue for 24 years and it is not an extension as it appears from the reading of the said Rules and if during the said period, he becomes eligible for promotion to the post of Naib Subedar and was so given promotion to the post of Naib Subedar for reason of his exercising option, he is entitled and eligible to continue till the age of tenure as provided in such Rules for the post of Naib Subedar.
7. Then again the contention of Shri Shishir Kumar, learned counsel for respondents cannot be supported by reason of the expressed provision contained in clause (c) of Annexure-1 as 26 years of pensionable service for Naib Subedar. Therefore, it was the intention that the whole period of service could be a pensionable service and as such, the pension for two years cannot be deducted simply because the person exercising the option was Havildar at the material point of time and allowed to complete 24 years. Had he not been promoted to the post of Naib Subedar. he would have certainly been retired on completion of 24 years and that 24 years service was also pensionable for a Havildar which is admitted by respondents by grant of pension on the basis of 24 years service as Havildar. Thus by virtue of such admission that 24 years service of Havildar was pensionable service, if during that period promotion was given to the post of Naib Subedar, he is eligible to continue in service in terms of class (c) for two years that too on pensionable service. By no stretch of imagination, such provision of clauses (b) and (c) could be interpreted to mean that the period increased in the service was extension of service. On the other hand, it clearly indicates that the refixation of age tenure or retirement making the same as continuation of the service with pensionary benefits by reason of express provision contained in clause (c) and the admission by the respondents as indicated above.
8. Since the petitioners had opted under Appendix-A in view of provision contained in Annexures-1 and 2, they are eligible and entitled by reason of promotion to the post of Naib Subedar to continue till 26 years of pensionable service and as such having retired after completion of 26 years are eligible for pension on the basis of 26 years of pensionable service.
9. In the result, the writ petition succeeds and the order dated 11.1.1989 contained in Annexure-3 to the writ petition by which the petitioners were denied the benefit of pension on the basis of 26 years of pensionable service is liable to be quashed and accordingly is hereby quashed. Let a writ of certiorari do accordingly issue.
10. Respondents are hereby directed to calculate the petitioners' pension on the basis of 26 years service provided they have been promoted to the post of Naib Subedar and have been allowed as such to continue till 26 years accordingly and make available the pension to the petitioners as early as possible preferably within a period of six months from the dale a copy of this order is communicated to the concerned respondents. Arrears of difference of pension be calculated and paid to the petitioner within a period of one year from the date of communication of this order together with simple interest calculated at the rate of 12% per annum from the respective date when difference of pension amount became due and payable and till the amount is paid to the petitioners.
11. The writ petition is thus disposed. However there will be no order as to costs.