ORDER
Vikramajit Sen, J
1. The prayers in this writ petition are two fold- (a) that the petitioner be awarded the ‘Paschimi Star’ for his alleged participation in the Indo-Pakistan War 1971 and (b) that he be considered for the grant of an Honorary Commission in his last year of service, that is, 2001. On a reading of the original petition it is obvious that the accent was laid on the award of the ‘Paschimi Star’ but after the amendment the emphasis has also been placed on the Petitioner’s entitlement to be considered for the for the Honorary Commission in the last two years of his `colour service’. As I perceive it, the assessment of the Petitioner initially was that if he succeeded in his claim for the Paschimi Star, his Honorary Commission would have been awarded as a natural consequence.
2. The Respondents have categorically denied that the Petitioner participated in the Indo-Pak War from 3.12.1971 to 5.12.1971 or at all. The inordinate delay of 25 years to stake this claim is pressed as sufficient ground for the rejection of this demand. I am of the view that the objection is well-founded and that this prayer in the petition ought not to be entertained on the ground of laches. Hence I do not propose to deal with the rival contentions viz a viz the entitlement to the Paschimi Star in detail. However, to illustrate the time-tested wisdom of delay defecting a claim, it would be appropriate to briefly mention that the Petitioner had submitted that the Respondents are in possession of the relevant records detailing the petitioner on duty in the operational area and that these are being withheld.
3. The Respondents have denied this allegation and have asserted that no such records exist. After the passage of a quarter-century no reasonable person can expect the adjudication of hotly contested facts in this court’s extraordinary writ jurisdiction. Such pleas deserve an unqualified rejection. This point has been raised at this very belated stage only to buttress the Petitioner’s claim for the Honorary Commission. Considering the fact that another writ petition had been filed by the Petitioner this claim should have been raised therein. Thus for these three reasons it should not even be considered at this belated stage.
4. Let me now consider the second point raised by the Petitioner. The Respondent’s reply is that “the petitioner was considered for grant of honorary commission as per the law and was found not eligible for the same. It is submitted that the petitioner was due for transfer to pension establishment w.e.f. 31st october, 1997 in the rank of sub (Clk). As submitted above, the recommendation in case of the Petitioner for grant of Hony Commission on active list (two chance) on Republic Day 1997 and last chance on Independence Day 1997 were submitted to the competent authority. But the Petitioner had not made the grade for the same. It is pertinent to mention that most sub/sub Maj gets only two chances on active list for consideration of honorary commission. In the present case, the Petitioner has already availed four chance, two in the rank of Sub and two chances in the rank of sub Maj in the last year of his colour service respectively. There is no provision for consideration for grant of hony commission more than four chances. In reply to para 20, it is submitted that the petitioner was correctly considered for grant of Hony Commission in the last year of his service as the Petitioner was promoted to the rank of Sub wef 01 Dec 1995 on the basis of court order dated 09, Sep 1997 along with his original slot of 1995 and 1996 the petitioner assumed the rank of Sub Major wef o1 Dec. 1995 as per assumption certificate dated 13 July 1998 assigned by the CO 10 BIHAR and he was being paid and allowance for the rank of sub Maj (Clk) wef o1 December 1995. Hence he was due for transfer to pension establishment wef 30 Nov 1999 as per terms of engagement i.e. four years in the rank of sub maj. The contents of para 20 are misconceived and are denied.”
5. The considerations and criteria relevant for the grant of an Honorary Commission can be found, inter alia, in the Respondent’s letter dated 29.6.1992, annexed by them as Annexure P-13. It reads as follow:
“HONORARY COMMISSION TO JCOs
1. It has been decided that JCOs who have availed one chance or two chances in the rank of Ris/sub and got promoted to the rank of Ris Maj/Sub Maj will be eligible for consideration twice (in two chance and Last Chance Category) for the grant of Honorary Commission in last year of their colour service (ie before retirement) in the rank of Ris decources can be recommended in the last two years of their colour service (in four chances) in each rank of Ris/Sub and Ris Maj/sub Maj.
2. JCOs who become Low Medical Category in the last year of their colour service will be eligible for consideration for the award of honorary commissions/ranks.
3. Recommendation forms complete in all respects will be forwarded through proper channel to this Headquarters. In exceptional cases where ACR for the last year or OC Certificate is not available, the recommendation from of the JCO will not be held up at any level and the ACR and OC Certificate should reach this HQs not later than 25 Nov and 14 June for Republic Day and Independence Day respectively.
4. This policy letter supersedes this Headquarters letter No. A/62204/AG/CW-2 dt 15 Apr 91, A/62204/AG/CW dt 07 Aug 91 and A/62204/AG/CW-2 dt 01 oct 91.
5. Please ack.
Sd/
(RC Bhatia)
Brig
DDG(Cer)
for Adjutant General”
5. Annexure P-11 reproduces Army Headquarter letter No. 8/43410/AG/CW-3 dated 28th October 1998. It reads as follows:
“1. Reference our policy letter No. A/62204/AG/CW3 dt 28 Jun 93 and foot note of Army Headquarters ( AG/PS-2(c) letter No. B/33127/AG/PS-2(c) dt. 14 Oct 98.
2. It has been decided that JCOs who have opted for extension in service & have either availed one choice or both the chances for grant of hony commission, now will be considered for grant of hony commission as per their date of retirement as under :
(a) JCOs who have already - No fresh chance
availed both the chances will be given.
for grant of hony commission.
(b) JCOs who have only - last chance will
availed one chance for be given as per
grant of hony commission chance their new
date of retirement
is the last
occasion before
their retirement.
(c) Ris/Sube promoted to - Two chance will be
Ris Maj/during the pd of given in accordance
extension and who have with our letter
availed one chance or No. A/62204/AG/CW-2
both the chances. dt 29 Jun 92.
3. All recommendation forms for grant of hony commission of JCOs opted for extension in service and who have availing an chance, when due for retirement and to be considered for last chance cat, their recommendation forms will be address with the following datail in the red ink on the top of, DATA SHEET.
(a) The occasion on which the JCO availed his first chance ( Two chance cat.
(b) If the JCO has been promoted in Sub Maj/Ris Maj rk, the number of chances he has availed and the details of the occasions.”
6. The Petitioner was due for promotion to the rank of Subedar Major (Clerk) in December 1995, but was not promoted. He, thereupon, filed Writ Petition No. 820/97, which was disposed off with the direction that a special Board be constituted before the end of September 1997 or first week of October, 1997 so that his case could be considered. It was ordered that “in case he is promoted, he would get four years”. The Petitioner was granted promotion to the rank of Subedar Major (Clerk) on 27.10.1997. However he was allowed to serve for only two years and hence another Writ Petition No. 3136 of 1999 was filed. One of the contentions mentioned by N.G. Nandi, J. was that the Petitioner should be permitted to earn four ACRS. It was observed as follows:
“It appears that the respondents decided to give the petitioner rank of Subedar Major w.e.f. 1.12.95. The pay and allowances have been credited to the petitioner’s account. It is not the say of the respondent that it was at the instance/request of the petitioner the pay and allowances have been credited in the account of the petitioner with effect from 1.12.1995. The action of crediting the pay and allowances w.e.f. 1.12.95 being unilateral can not justify the respondents’ action of giving promotion ante date i.e. w.e.f. 1.12.1995 since the petitioner would be entitled to the pay and allowances attached to the rank of Subedar Major with effect from the date he physically assumed the charge of said rank and not earlier. The effect of giving promotion to the rank of Subedar Major to the petitioner w.e.f. 1.12.1995 would be that the petitioner would not be able to work/serve as Subedar Major for a full tenure of four years and the aforesaid action of the respondents would tantamount to curtailing the tenure of the petitioner as Subedar Major by two years and thereby the petitioner required to be superannuated w.e.f. 1.12.1999. It may bear repetition but the direction issued in CW 820/97 does not require the respondents to give, subject to favorable consideration by the Selection Board, promotion to the petitioner to the post of Subedar Major effective from any early date. It only directs the consideration of petitioner’s case for the rank of Subedar Major in the slot of 1995-96, meaning thereby that the original seniority of the petitioner was not to be affected though he would get promotion subject to consideration of petitioner’s case favorably pursuant to the directions issued in the aforesaid writ petition and his entitlement to rank of Subedar Major and higher pay, allowances would be from the date he physically assumed the rank of Subedar Major. Now when the respondents is directed to consider the petitioner for the slot of 1995-96, for the purpose of maintaining his original seniority, then why the petitioner should be made to suffer curtailment of tenure as Subedar Major by two years for no fault of his.
In the above view of the matter, the writ petition deserves to be granted and the respondents directed to allow/permit the petitioner to serve/work as Subedar Major for a full tenure of four years from the date he physically assumed the rank of Subedar Major AND not to superannuate the petitioner w.e.f. 1.12.1999 as he has not completed 34 years of Army service. The respondent would, however, be entitled to adjust the amount credited w.e.f. 1.12.1995 to 26.10.1997 on the basis of promotion to the rank of Subedar Major w.e.f. 1.12.1995 since the petitioner assumed physical charge of PA Subedar Major (Clerk) w.e.f. 27.10.1997.
In the result, the writ petition is granted. The respondents are directed to permit/allow the petitioner to physically serve/work in the rank of Subedar Major (Clerk) for a full tenure of four years w.e.f. 27.10.1997 or till completion of 54 years of age whichever is early. The respondents are also restrained from retiring the petitioner in the rank of Subedar. Major (Clerk) on 1.12.1999. However, the respondents will be entitled to adjust the amount of pay and allowances credited in the account of the petitioner for the period 1.12.1995 to 26.10.1997.
The writ petition stands disposed of accordingly.”
7. From the above it will be seen that the Petitioner was compelled to file two previous writ petitions for the vindication of his rights. Unfortunately the Respondents have adopted an obdurate stand which has precluded them from implementing their own orders in accordance with their spirit, and in an unbiased manner. The logic and relevance of being considered for Honorary Commission in the last two years of service is at once apparent. It has not been contested that the greater the number of years of service, the better are the chances for earning sufficient merit for consideration for the Honorary Commission. It may well be that the Petitioner was considered four times previously. The last two occasions were not contemporaneous with the Petitioner’s last two years of service. There may be a valid explanation in favor of the Respondents having considered him earlier. As per their reckoning the Petitioner should have retired not on 31.10.2001 but on 31.10.1999. This is not sufficient warrant for over looking the fact that, consequent on orders passed by this Court, the Petitioner was found entitled to serve for a full term of four years as a Subedar Major (Clerk) and hence was to retire on 31.10.2001. Fortuitously for the Petitioner, he has served for two years beyond the period that the Respondents would ordinarily have allowed him to. When the extant Rule is considered and analysed, it is apparent that the emphasis should not be placed on the number of occasions on which the Petitioner was considered for promotion as otherwise it would render superfluous and otiose the twin stipulations viz. that this consideration/assessment should be carried out in the last two years of the service. It is not in every case that a JCO continues in service against the volition of the Respondent and in compliance with Court’s order. The normal sequence of events is that all concerned are aware of his date of retirement and, therefore, the person is considered for an Honorary Commission in the last two years. An exceptional case, such as the present, cannot be allowed to affect a plain construction of the relevant Rules. Extraordinary circumstances call for an extraordinary application of conditions of service.
8. In these circumstances the second prayer of the Petitioner has considerable merit. The Respondents are accordingly directed to consider the case of the Petitioner for grant of Honorary Commission. Since the only remaining occasion is 15th August, 2001, immediate steps be taken by the Respondents. Since the relevant date for receiving ACRs and OC Certificate etc. is 14th June, 2001, the Respondents shall act with immediate dispatch.
9. Ordinarily I would have imposed costs in favor of the Petitioner especially since this is the third writ petition which he has been compelled to file. However, keeping in view the exceptional and extraordinary facts of the case, especially since it was not specious and absurd for the Respondents to perceive two possible interpretations to their Rules, I refrain from doing so.
10. Writ Petition stands disposed off accordingly. dusty.