V. Gopala Gowda, J.

1. The Petitioner in this case has challenged the impugned order dated 20.12.1994 passed by the 4th Respondent-Chief Engineer (Air Force) (CE, AF), Shillong Zone, Meghalaya reverting the Petitioner from Subedar Major to Subedar with effect from 19th October, 1994 and also sought for quashing the impugned order dated 19.12.1994 passed by third Respondent-Commandant and Officer-in-charge (OIC) Records, MEG by which the Petitioner has been discharged from the services with effect from 30.4.1995 in the rank of Subedar and further sought for writ of mandamus directing Respondents 1, 2 and 3 to re-instate the Petitioner into service without break in service from 1st May, 1995 in the rank of Subedar Major and grant all consequential service benefits including conferment of substantive rank as Subedar Major urging various facts and legal contentions.

2. Certain undisputed facts are stated hereunder for the purpose of considering the rival contentions urged by the learned Counsel for the parties:

The Petitioner, after completing the military and the technical training in the MEG as a Clerk, served in various Military Engineering Service (MES) units and formations deployed both in the peace areas and in the operational areas all over the country. After passing various tests and fulfilling the criteria for promotions, the Petitioner earned promotions and risen through the non-commissioned ranks of Naik and Havildar and through the gazetted JC Os rank of Naik Subedar to reach the senior rank of Subedar by the year 1990.

3. It is the case of the Petitioner that, he joined the Unit under the fourth Respondent CE(AF) at Shillong as Subedar Clerk on 5th December, 1993, on his posting to that unit ordered by the third Respondent. While serving there, Petitioner was selected for promotion by a duly constituted Selection Board of Officers. Consequently, Petitioner was promoted to the rank of Subedar Major vide the third Respondents order dated 3.5.1994. Petitioner was successfully qualified at the Head Clerk training course long ago. Pursuant to the said promotion, the Petitioner assumed duties and functioned as office superintendent in charge of a section in the office under the fourth Respondent. Further, the Petitioner, after assuming the charge completed 28 days continuous physical service vide notification dated 5.9.1994 (Annexure-D).

4. It is the further case of the Petitioner that, new promotees like the Petitioner serve as Paid Acting Subedar Majors and in due course they are made substantive. They are made substantive most often with effect from back dates, against vacancies which would have existed but only periodically identified and acted on by the third Respondent who compiles such cases and periodically publish the casualty of the grant of substantive rank to take effect from the date of promotion made to the unpaid acting rank, or even from a date earlier when the vacancy would have arisen. It is stated that, the Petitioner performed his duties well as Subedar Major Clerk during the next two months. It is the grievance of the Petitioner that, though vacancies for posts of Subedar Majors had already arisen in the Corps, the third Respondent had not published substantive rank for the Petitioner in the next five months of his service earlier to 19th October, 1994. Petitioner therefore continued to hold paid acting rank of Subedar Major during the said period. In these circumstances, the Petitioner fell ill with a complaint of chest pain on 26.7.1994 and on the same he was admitted for treatment in Military Hospital (MH) Shillong, which is under command of fifth Respondent, but under the technical control of the Director of Medical Services (Army) functioning under the second Respondent COAS at Army Headquarters.

5. Further, the Petitioner was diagnosed as a case of Ischaemic Heart Disease and was detained and treated in MH, Shillong till 18.8.1994. Upon discharge from the MH on 19.8.1994, Petitioner rejoined his unit. He was, however, re-admitted in the said MH on 20.8.1994, and detained there till 25.8.1994 awaiting availability of some diagnostic test facilities through arrangements which were to be made with some private civil hospital in Guwahati. The Petitioner was discharged therefrom for the time being. Accordingly, on 26.8.1994, the fifth Respondent discharged the Petitioner from MH. Petitioner returned to his unit with directions issued to the Petitioners Commanding Officer that the Petitioner should be sent on four weeks Sick Leave. The Petitioner protested against sending him on said sick leave when he had already finished his two months annual leave entitled for the year 1994 in June 1994. On expiry of said leave, Petitioner reported to the 5th Respondent as he had been directed in MH Shillong on 24.9.1994. The Petitioner was discharged from MH Shillong on 4.10.1994 and was directed to report to 151 Base Hospital at Guwahati to get the tests done in a civil hospital known by name Down Town Hospital and further the Petitioner was re-directed to report to MH Shillong on 8.10.1994 wherein the specialist did not give opinion as the same was not sought for.

6. Further, the Petitioner was referred to Command Hospital, Eastern Command at Calcutta to obtain specialists opinion. The Petitioner was again driven back to Down Town Hospital, Guwahati for specialists opinion. The specialist gave the opinion that Petitioners ailment was Ischaemic Heart Disease (IHD) and recommended for placing him in appropriate medical category. Petitioner rejoined his unit namely the CE (AF) Shillong Zone at Shillong on 17.11.1994 and resumed duties in his original post itself as Office Superintendent till 20.12.1994. On 20.12.1994 the Unit Daily Orders Part-II was published by 4th Respondent reducing the Petitioners rank to a Subedar retrospectively with effect from 19.10.1994 without assigning any reason without serving any notice or affording any opportunity to show cause against it. Further, the third Respondent-Officer-in-Charge Records, MEG had invoked the provisions of Army Instructions No. 84 of 1968 against the Petitioner reckoned retrospectively that the Petitioner had forfeited the rank of Subedar Major from 19.10.1994 due to his having stayed off-duties in the hospitals and in sick leave for a period exceeding 60 days and consequently issued order dated 19.12.1994 discharging the Petitioner from service with effect from 30th April, 1995 vide Annexure-A. The Petitioner is before this Court assailing the said orders passed by the said authorities.

7. The learned Counsel for the Petitioner Col. V.K.K. Nair contends that the impugned orders passed by the 4th Respondent and third Respondent are contrary to the Army Instructions and Rule 61-B of the Leave Rules and further has contended that the Army Instructions has been inapplicable. It is further contended that, the said provisions have been misplaced contrary to the internment and object. The said provisions are intended to apply to described person who get sick while he was engaged in the duty while he was admitted to Military or Civil Hospital. It is further contended that he was admitted in the Hospital referred to supra on 26.1.1994 he was tested, diagnosed, treated and discharged with prescriptions by the Hospital since 1994. It is further contended that, the Petitioner was wrongfully deprived of his entitlement to serve three and half years in the higher rank with its salary and perks. The Counsel further contends that, the reliance placed on Army Rules 13(3) is inapplicable to the facts of this case. On 19th December, 1994 the third Respondent Officer-in-Charge Records MEG, issued an order addressed to the fourth Respondent Chief Engineer at Shillong. In that order, the third Respondent referred to the Petitioner who was functioning as Subedar Major, as Subedar and stated that the Officer-in-Charge Records had already approved the discharge of the Petitioner to take effect from 30th April, 1995. It is stated thus:

On completion of his service/tenure or age limit under item 1(i)(a) of the table annexed to Army Rule 13(3).

It is contended that, fourth Respondent was accordingly directed to discharge the Petitioner from his unit in Shillong to report on 5th April, 1995 to the Depot Battalion of the MEG in Bangalore, intimating that his final date of discharge from service would be April 1995. When the said order was signed and discharged it would have been authorised under I(iii)(b) of Amendment to Army Rules 13(3). It is further contended that, 4th Respondent Chief Engineer as that of Superintendent could not have passed the order as the Petitioner continued to perform duties till 20.12.1994 is evidence by the reversion order and as on that date he has been performing his duties upto 20.12.1994 and third Respondent vide his signal dated 11.1.1995 requested the 4th Respondent to notify relinquishment of rank forthwith, the third Respondent being a competent authority in the matter. On 19.12.1994, the third Respondent Officer-in-Charge Records MEG, issued an order addressed to the fourth Respondent Chief Engineer at Shillong. In that order, the third Respondent referred to the Petitioner who was functioning. It is contended that, the 4th Respondent had already passed an order dated 20.12.1994 reverted the Petitioner with retrospective effect, this is opposed to the law. Therefore, the same is vitiated in law and liable to be quashed. It is further contended that Petitioners promotion with effect from 23rd June, 1994 was duly authenticated and notified in the said Units Daily order Part-II.

8. The Respondents have filed statement of counter justifying the impugned orders for the reasons stated in the order as well as the counter statement. They placed reliance upon Army Instructions of 1968 sub-paragraphs (i) and (ii) of paragraph (g) in support of his submission. It is further stated that substantive rank in Subedar Major upon any other rank is based on quota basis taking into account the total authorisation/holding of particular rank in the Group. The senior JCO to the Petitioner by name Subedar Sundararajan Jaganathan (JC139022) who was promoted to the rank of paid acting rank of Subedar Major with effect from 25th May, 1994 that is one month before the Petitioners promotion was promoted to the substantive rank of Subedar Major only with effect from 1st July, 1995. Therefore the Respondents contended that, the contention of the Petitioner in this regard does not disclose any valuable grounds.

9. Further, it is stated in the counter that, as per Para (g) of Army Instruction 84 of 1968, a person holding paid acting rank can continuously hold the said rank upto a period of maximum 60 days during the period of hospitalisation and period of sick leave granted to him. In case period exceeds 60 days continuously off duty due to hospitalisation one has to relinquish the paid acting rank. It is stated that, Petitioner while holding the paid acting rank of Subedar Major was continuously in the hospital from 20th August, 1994 to 16th November, 1994 without any break. As a result of which he was reverted to substantive rank of Subedar due to his hospitalisation more than 60 days period with effect from 19th October, 1994 on completion of the permissible period of more than 60 days in accordance with para (g) of Army Instruction 84 of 1968. Therefore, they contend that reversion order passed against the Petitioner is within the purview of the Rules.

10. Further, it is stated in the counter statement that, the Petitioners promotion to the rank of Paid Acting Subedar Major was not considered on discharge from hospital as low medical category CEE personnel whether temporary or permanent are not eligible for promotion except in the case of battle casualty. The Medical Board recommended the degree of his disablement Ischeamic Heart Disease at 30% for two years in medical category CEE (Permanent) as due to stress and strain of service in the Army. But the competent Medical Advisor (Pensions) attached to CCDA(P), Allahabad and Ministry of Defence did not consider the same as attributable to military service. Further it is specifically stated in the counter statement that, the Petitioner was never denied the rank of Subedar Major provided he was eligible within the rules. Promotion of the Petitioner was not deprived at any stage. The Respondents have prayed for dismissal of the writ petition.

11. After hearing the learned Counsel for the parties at length and perusing the impugned orders and considered the rival contentions urged on behalf of the parties, this Court has to answer whether the reversion order passed by 4th Respondent lowering the rank of the Petitioner without giving opportunity to him in compliance with principles of natural justice. The 4th Respondent has exercised his power under Regulation 163 of the Defence Service Regulation (Regulations of the Army Vol. I), 1987 which have been framed in exercise of Section 192 of Army Act, 1950 under heading Retirement of JC Os. According to the Petitioners Counsel, 32 years of pensionable service, 4 years tenure or 52 years of age whichever is earlier is applicable to the Riseldar Major post, the Petitioner was holding Riseldar/Subedar Major as on the date of passing of the order. It is an undisputed fact that Petitioner was holding the post of Subedar Major. The case of the Petitioner is, that the aforesaid exercise of power by the 4th Respondent, he was reverted from the post of Subedar Major to the post of Subedar with retrospective effect from 19.10.1994 vide order dated 20.12.1994 to bring the case of the Petitioner within Regulation 163(ii) of the Defence Service Regulations for the Army and retired him from service on ground of 28 years of pensionable service or 50 years of age whichever is earlier. In the background of the abovesaid Regulations, keeping in view the Army Instructions 84 of 1968, the impugned orders having regard to the undisputed fact that the Petitioners admission in various hospitals at Shillong, Guwahati and Calcutta have been taken into consideration by this Court to find out whether the fourth Respondent had the power to exercise his power under the Regulations to demote the Petitioner from the post of Subedar Major to the post of Subedar retrospectively with effect from 19.10.1994. The contention urged by the learned Standing Counsel appearing on behalf of Respondents relying on Army Instructions 84 of 1968 paragraph (i) and (ii) wherein any individual who is holding Paid Acting Rank and falls sick while serving in peace area and admitted to Hospital is permitted to retain Paid Acting Rank upto a period of 60 days. If he remains in hospital beyond 60 days he loses his paid acting rank. The correctness of this submission and the ground on which the order of reversion is passed against the Petitioner is also examined and considered with reference to Leave Rules for the Services Volume I 61(b) which states thus:

Annual Leave one month during each calendar year subject to the condition that such leave will not be granted until completion of one year of service. Leave can be accumulated upto 60 days. It will, however, be availed of in one lot.

12. Further, with regard to sick leave it is stated thus:

Sick leave: One month for every year of service, only whole years beginning from the date of initial engagement being counted for this purpose and the rest of the period being ignored. It may be taken at any time during the service. Sick list concession will not be admissible.

These Rules have got statutory force. From the statement of facts and the documents produced by the Respondents do not disclose and in the order of reversion it is not mentioned that the Sick Leave/Casual Leave/Annual/Accumulated Leave at the credit of the Petitioner were not available during the period from July 1994 to November, 1994, when the Petitioner was in various hospitals referred to in the earlier paragraphs of this judgment for his sickness. Therefore, he was not liable for reduction of rank in exercise of power under the Army Instructions 1968 placing reliance upon the power of 4th Respondent at paragraph g(ii). In the absence of relevant record or not mentioning anything with regard to casual, annual, accumulated and sick leave to the credit of the Petitioner, the services of the Petitioner could not have been reverted from the post of Subedar Major to Subedar by the 4th Respondent. The order of reversion is also bad in law for another reason that the reversion order is passed without compliance of principles of natural justice and the same has been passed with retrospective effect only with a view to exercise of power by the 4th Respondent under Regulation 163(ii), to discharge the Petitioner from service is totally inapplicable to the case of the Petitioner. Therefore, this Court has to record a finding with regard to reversion order which is impugned in this writ petition holding that the order of reversion is bad in law for the reasons recorded above. Hence, the reduction of the post of the Petitioner from Subedar Major to Subedar vide impugned order at Annexure-G is wholly unsustainable in law, hence the same is liable to be quashed.

13. Having held that passing of the impugned order at Annexure-G is bad in law, the next question for consideration by this Court is, whether the exercise of power under Regulation 163(ii) of the Regulations referred to supra and discharging the Petitioner from service vide Annexure-A is sustainable in law or not. As I have already recorded a finding that reversion order passed against the Petitioner is bad in law as the same is contrary to Leave Rules and also the Army Instructions read with Section 13 of Army Act, 1950, the discharge of the Petitioner from the post of Subedar on the ground that he was reverted to the said post on account of exercise of power conferred on the 4th Respondent under the Army Instructions 84 of 1968 is bad in law for the reason that, the reversion of the Petitioner to the lower rank of Subedar itself is illegal as the same is violative of Articles 14, 16 and 21 of the Constitution of India. Therefore, exercise of power by the 4th Respondent under Regulation 163(ii) and discharging the Petitioner from his post on the premises that, he had acquired 28 years of pensionable service or 50 years of age is not applicable to the facts of this case under law, as the same is contrary to Army Instructions and 163(ii) of the Regulations and the law laid down by the Apex Court upon which the reliance is rightly placed by the learned Counsel for the Petitioner in the case of K.D. Gupta v. Union of India reported in : AIR 1983 SC 1122 [LQ/SC/1983/191] . By reading the said judgment at paragraphs-4 and 5, the law laid down in the said case with all force applicable to the facts of this case. Therefore, law laid down in the said case has to be applied to the facts of this case and the reliance placed upon the said judgment by the learned Counsel for the Petitioner is well founded and the same must be accepted and grant the reliefs as sought for in this petition.

14. The reliance placed by the Respondents Standing Counsel upon the judgment of Supreme Court reported in : AIR 1981 SC 947 [LQ/SC/1980/205] and AIR 1987 SC 230 are not applicable to the facts of this case having regard to the findings and the reasons recorded by me in the earlier paragraphs of this judgment for the reason that order of reversion reverting the Petitioner to the post of Subedar from Subedar Major and the order of discharge is also bad in law. Hence, the reliance placed upon the judgments of the Supreme Court by the Standing Counsel on behalf of the Respondents are wholly inapplicable to the facts of this case. For the reasons stated supra, the Petitioner must succeed. Accordingly, I pass the following order:

The Writ Petition is allowed. Rule made absolute. Impugned orders vide Annexure-G dated 20.12.1994 passed by Respondent-4 and Annexure-A dated 19.12.1994 passed by Respondent-3 are hereby quashed. Further, the Respondents are hereby directed to re-instate the Petitioner notionally and pay all the consequential benefits of continuity of service without break in service from 1st of May, 1995 in the rank of Subedar Major, service benefits of conferment of substantive rank as Subedar Major including the back-salary and other benefits for which the Petitioner is legally entitled under the provisions of the Act and the Rules treating that he had attained the age of 32 years of pensionable service. This order must be complied with within eight weeks from the date of receipt of the same.