# No. Jc-58164m Sub Maj Clk(Sd) Manoj Kumar Pandey v. The Armed Forces Tribunal Lko. & Ors

- **Citation:** (2024) 1 ILRA 617
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-05
- **Case number:** Writ-A No. 8700 of 2023
- **Bench:** Attau Rahman Masoodi, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/no-jc-58164m-sub-maj-clk-sd-manoj-kumar-pandey-v-the-armed-forces-tribunal-lko-51381
- **Pages:** 9

## Headnote

Service Law - Army Rules, 1954 - Rule 13
(3) item 1 (i) (a) - Petitioner enrolled in Army
on 04.05.1990, placed in low medical category
P2 (permanent), promoted to rank of Subedar
Major w.e.f. 01.04.2020 - Petitioner did not
submit two-year unwillingness certificate before
retirement as required under letter/policy dated
20.09.2010, and thus deemed willing for
extension under para 2(a) of Appendix 'A' of
said letter - After his promotion to Subedar
Major, screening for extension could not be held
due to nationwide lockdown in April-May 2020 -
Following phased lifting of lockdown from
01.06.2020, procedure for such screening
amended
by
policy
dated
05.05.2020
-
Petitioner promoted prior to amended policy
which came into force on 01.06.2020 - His
willingness for two years' extension later
submitted on 29.07.2020, after coming into
force of amended policy - Considering deeming
clause enunciated in Old Policy coupled with fact
that petitioner promoted on 01.04.2020 i.e.
before coming into force of amended policy,
thus petitioner's case for extension of service for
two years comes under Old Policy, action of
respondents
in
considering
willingness
of
petitioner under amended policy is contrary to
'deeming clause' of Old Policy. (Para 15, 19, 21,
22)

Writ petition allowed. (E-13)

List of Cases cited:

## Text

1 All. No. Jc-58164m Sub Maj Clk(Sd) Manoj Kumar Pandey Vs. The Armed Forces Tribunal
 Lko. & Ors.
617
bonafide requirement was to be established
by the landlord.

20.

Exclusions
of
bonafide
requirement of landlord as a ground for
eviction has, in fact, materially altered the
law in this regard.

21. In absence of the word "bonafide
requirement" under the Tenancy Act, 2021
the landlord has to demonstrate that the
premises are required by him in its existing
form or after demolition for the purpose of
its occupation by him. This aspect of the
matter has not been disputed by the
petitioner nor is there averment or material
either before the rent authority or rent
tribunal or before this Court to show that
the landlord does not require the tenanted
premises for his own occupation. In
absence of any such averment or material
there would not be any occasion to interfere
in the order passed by the rent authority or
the rent tribunal.

22. Accordingly, there is no merit in
the
present
writ
petition
which
is
accordingly dismissed.
----------
(2024) 1 ILRA 617
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.01.2024

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Writ-A No. 8700 of 2023

No. Jc-58164m Sub Maj Clk(Sd) Manoj
Kumar Pandey ...Petitioner
Versus
The Armed Forces Tribunal Lko. & Ors.
 ...Respondents
Counsel for the Petitioner:
Mohd. Murtaza Hasan, Anshuman Srivastava,
Manoj Kumar Awasthi

Counsel for the Respondents:
A.S.G.I.

Service Law - Army Rules, 1954 - Rule 13
(3) item 1 (i) (a) - Petitioner enrolled in Army
on 04.05.1990, placed in low medical category
P2 (permanent), promoted to rank of Subedar
Major w.e.f. 01.04.2020 - Petitioner did not
submit two-year unwillingness certificate before
retirement as required under letter/policy dated
20.09.2010, and thus deemed willing for
extension under para 2(a) of Appendix 'A' of
said letter - After his promotion to Subedar
Major, screening for extension could not be held
due to nationwide lockdown in April-May 2020 -
Following phased lifting of lockdown from
01.06.2020, procedure for such screening
amended
by
policy
dated
05.05.2020
-
Petitioner promoted prior to amended policy
which came into force on 01.06.2020 - His
willingness for two years' extension later
submitted on 29.07.2020, after coming into
force of amended policy - Considering deeming
clause enunciated in Old Policy coupled with fact
that petitioner promoted on 01.04.2020 i.e.
before coming into force of amended policy,
thus petitioner's case for extension of service for
two years comes under Old Policy, action of
respondents
in
considering
willingness
of
petitioner under amended policy is contrary to
'deeming clause' of Old Policy. (Para 15, 19, 21,
22)

Writ petition allowed. (E-13)

List of Cases cited:

1. Kamraj Nadar Vs Kanju Thevar : (1959)
S.C.R. 583(602), A.I.R. 1958 SC 687, (Para 28)

(Delivered by Hon'ble Om Prakash Shukla,
J.)

(A) Introduction

(1) The challenge in the present writ
petition
under
Article
226
of
the
618 INDIAN LAW REPORTS ALLAHABAD SERIES
Constitution of India is to the impugned
order dated 29th of March, 2023 passed
by the Armed Forces Tribunal, Regional
Bench, Lucknow (hereinafter referred to
as 'the Tribunal') in Original Application
No.649 of 2022, whereby, a challenge
laid by the petitioner to his discharge
from service on May 31, 2022 was
dismissed..

(B) Factual Matrix

(2) The petitioner was enrolled in
the Indian Army (JAK RIF Regiment) on
May 4, 1990. Subsequently, he was
granted promotion to the rank of Naik
w.e.f. 01st December, 1995; to the rank of
Havildar w.e.f. 01st December, 1999; and
to the rank of Naib Subedar w.e.f. 01st
June, 2013.

(3) While continuing to work as
Naib Subedar in the Indian Army, he was
diagnosed "Coronary Artery DiseaseInterior
Wall
Myocardial
Infraction
(ICD-121.0)" by 92 Base Hospital and
accordingly, he was downgraded to low
medical category P3 (T-24) with effect
from 08th October, 2013 to 25th March,
2014. Subsequently, petitioner's case was
reviewed,
upon
which
his
medical
category was upgraded to P2 (T-24) w.e.f.
25th March, 2014 to 09th September,
2014 and thereafter P2 (Permanent) with
effect from 09th September, 2014.

(4) Apparently, even after placing the
petitioner in low medical category P2
(Permanent), he was promoted to rank of
Subedar Major w.e.f. 01st August, 2016.
Again while he was posted with 119
MC/MF Detachment, he was promoted to
the rank of Subedar Major Clerk (Staff
Duty) w.e.f. 01st April, 2020. After
assuming the rank of Subedar Major Clerk
(Staff Duty), the petitioner was required to
be screened for extension of service as per
the provisions of Integrated Headquarters
of
Ministry
of
Defence
letter
No.
B/33098/AG/PS-2(c)
dated
20th
September, 2010. The procedure and
criteria
for
promotion
dated
20th
September, 2010 reads as under:-

"PROCEDURE & CRITERIA FOR
SCREENING OF PBOR IN THE ARMY

Aim. To screen PBOR for the grant of
extension by two years.

Criteria.
The
following
guiding
principles will be adhered to while
considering
the grant of
two years
extension in age/service.

(a) Willingness of the Individual. An
individual will be deemed to be willing for
2 years extension in age/service unless he
submits his unwillingness certificate two
year before his retirement date duly counter
signed by OC unit.

(b)
Medical
Classification
The
medical criteria for 2 years extn in
age/service will be same as for promotion
in respect of JCOs and OR as laid down
vide IHQ of MoD (Army) letter No.
B/33513/AG/PS 2(c) dt 10 Oct 97. They
should be in medical category ;AYE'.
However personnel in lower medical
category (both temporary and permanent)
as a result of the circumstances indicated
below would be eligible :-

(i) Eligibility upto Medical Category
'CEE'

(aa) Battle casualties as defined
in special Army Order 8/S/85 including
those casualties in fighting against armed
hostiles shall also be treated as battle
casualties.
1 All. No. Jc-58164m Sub Maj Clk(Sd) Manoj Kumar Pandey Vs. The Armed Forces Tribunal
 Lko. & Ors.
619

(ab) Personnel wounded/injured
during deployment in 'Op Meghdoot','Op
Rhino', 'Op Rakshak', 'Op Pawan', 'Op
Bajrang', Op Bluestar', 'Op Cactus
Lilly' and other similar CI Operations
involving
fighting
against
Militants/
Terrorists and consequently placed in
medical
category
CEE
(Permanent/
Temporary) will be treated at par with
'Battle Casualties'.

(ac)
JCOs/NCOs
Wounded/
Injured during battle inoculation, field,
mine training using live ammunition and
while handling/disposing live ammunition,
explosives,
bombs
and
Improvised
Explosive Devices and placed in Medical
Category CEE (Permanent/ Temporary)
will also be treated as battle casualtiies.

(ad) JCOs and NCOs who sustain
injuries or are wounded as a result of
accidental explosion of mines caused while
laying operationally oriented mine fields or
lifting or negotiating mine fields laid by the
enemy or own forces in operational areas,
near the international borders or the Line of
control and consequently placed in Medical
Category CEE (Permanent/Temporary) will
also be treated as battle casualties.

(ae)
JCOs/NCOs,
who
are
wounded/injured
during
UN
Mission,
where such a deputation is to count as
active service in field, will also be treated
as battle casualties.

(iii) In exceptional cases, such as
distinction achieved by an individual in
War or Peace, the GOC-in-C Command, on
the recommendation of the OIC Records,
may waive the stipulations given in Sub
Para (i) & (ii) above.

Note : This criteria will be
applicable to all Regt/Corps less DSC, in
whose regards orders issued separately vide
letter No. B/33513/AG/PS-2 (c) dt 18 Jun
2009 will be applicable.

Method of Screening. Screening of
the affected PBOR for the grant of extension
should be carried out 24 months prior to their
reaching the current laid down service limits.
It should be conducted by the same boards
which are constituted and assembled for the
purpose of deciding promotions, should also
undertake the following additional tasks,
whenever required :-

(a) Screen affected PBOR for the
grant of extension.

(b) Consider PBOR for continued
retention during the extended tenure in case
there is drop in any criteria as mentioned at
Appx 'B' to this letter.

(c) Consider Ris Maj/Sub Maj
who do not complete 34 yrs pensionable
service or 4 yrs tenure by the time they
reach 52 yrs of age, for screening for extn
in service up to the age of 54 yrs to 34 yrs
of pensionable service or 4 yrs of tenure
whichever is earlier.

Note : In exception to the above,
the PBOR who could not be screened for
extn of service under the existing policy as
per the laid down screening schedule given
at Para 4 below due to the LMC, court
cases or any other circumstances beyond
his control, will be screened by the
Screening Board before retirement.

4. Scheduling of Screening
Shall be regulated on attaining the
following service limits :-

S/No. Rank Service of years

(a) Sub/Ris 26th year

(b Nb Ris/Nb Sub 24th year

(c) Dfr/Hav 22nd year

(d) Nks 20th year
 (e) L/NK/Sepoy/TSLNk/TS Nk 15th year/18th year

5.

Board
Proceeding
On
completion, one copy of the board
620 INDIAN LAW REPORTS ALLAHABAD SERIES
proceeding shall be forwarded to the
concerned
OIC
Records.
Necessary
casualties will, however, be published by
units concerned.

6. Applicability. The revised
policy will be made applicable with effect
from 01 Apr 2011.

(5) In view of the aforesaid letter
dated 20th September, 2010, the petitioner
among other affected personnel were
requested
to
submit
their
willingness/unwillingness certificate for
extension for service vide Records JAK
RIF letter 1428/S/C/RA-2 dated 08th June,
2020, however, even thereafter required
certificate was not submitted by the
petitioner and as such, reminders were
issued for the same vide letter dated 26th
June, 2020 and 07th July, 2020. Apparently,
even after the issuance of the aforesaid
reminder, the required certificate for
extension of service was not submitted.

(6) In the meantime, due to country
wide lockdown on account of pandemic
'Corona', all the offices were closed, hence
Screening Board for grant of two years
extension of service in respect of centrally
controlled category was not held during the
month of April, 2020 and May, 2020.

(7)

Thereafter,
Integrated
Headquarters of Ministry of Defence had
issued certain amendments in the procedure
and criteria for screening of personnel for
grant of extension of service by two years
vide letter No. B/33098/AG PS 2(c) dated
05th May, 2020, by which it has been stated
that the personnel placed in permanent low
medical category would be screened with a
view to assess their suitability for grant of
extension of service, if they are due for recategorization medical board prior to
commencement of their extension and such
personnel can be declared provisionally fit
for extension subject to their medical
category being upgraded to acceptable level
before
expiry
of
normal
terms
of
engagement. It is also stated that if the
personnel are not assessed fit by screening
board or not upgraded to acceptable
category
prior
to
commencement
of
extension,
these
personnel
shall
be
disposed of in normal manner and not be
granted benefit of extension of time.

(8) Thereafter, the petitioner was
posted to Records JAK RIF w.e.f. 09th
July, 2020 and on physical reporting at
Records JAK RIF, the petitioner submitted
his willingness certificate for extension of
two years of service on 29th July, 2020.
After receipt of said willingness certificate,
re-categorization Medical Board of the
petitioner was conducted at Military
Hospital, Jabalpur on 08th February, 2021,
wherein he continued to remain in the same
medical category i.e. P2 (permanent) for
another two years w.e.f. 05th February,
2021 to 05th February, 2023.

(9) Based on the fact that the
petitioner was not upgraded to medical
category
'SHAPE-1',
his
claim
for
extension was not accepted in terms of the
revised policy letter dated 05.05.2020 and
consequently, since his extension was not
granted, he was discharged from service on
completion of terms of engagement w.e.f.
31.05.2022 (AN) under Rule 13 (3) item 1
(i) (a) of Army Rules, 1954 having
rendered 32 years and 28 days of service.

(10) Feeling aggrieved by the order of
discharge dated 31.05.2022, the petitioner
preferred Original Application No. 649 of
2022 before the Tribunal. The Tribunal,
after appreciating the fact that the petitioner
1 All. No. Jc-58164m Sub Maj Clk(Sd) Manoj Kumar Pandey Vs. The Armed Forces Tribunal
 Lko. & Ors.
621
had submitted his willingness for extension
on 29.07.2020 and the revised policy dated
05.05.2020 came into existence w.e.f.
01.06.2020, had returned a finding that the
case of the petitioner for grant of extension
could not be considered in accordance with
old policy as the applicant submitted his
willingness
for
extension
only
on
29.07.2020, by which time the new policy
was in force. The learned Tribunal also
gave a passing reference, in as much as it
observed that had the old policy been in
force, the applicant would have been
benefitted for service extension of eleven
months as by that time he would have
attained the age limit of 54 years. In this
backdrop,
the
learned
Tribunal
has
dismissed the original application vide
judgment/order dated 29.03.2023. It is this
judgment/order dated 29.03.2023, which
has been challenged in the instant writ
petition.

(11) Heard Shri Manoj Kumar
Awasthi, learned Counsel representing the
petitioner and Shri S.B. Pandey, learned
Senior Advocate/Deputy Solicitor General
of India assisted by Shri Varun Pandey,
representing
the
Union
of
India/respondents.

 C. Contentions of the parties

(12) Learned Counsel representing the
petitioner
drawing
our
attention
to
reasoning given by the learned Tribunal
while dismissing the original application,
has submitted that the learned Tribunal has
not appropriately considered the issues
involved in this matter inasmuch as the
petitioner was promoted to the rank of
Subedar Major w.e.f. 01.04.2020 and at that
relevant time, the petitioner was governed
by
the
procedure
and
guidelines
enumerated in the letter of Integrated
Headquarter of Ministry of Defence Army
20.09.2010, from which willing for two
years extension in age/service is deemed
unless
the
officer
may
submit
his
unwillingness certificate two years before
his retirement date duly counter signed by
authority concerned. Learned Counsel has
submitted that admittedly, the petitioner
was promoted to the rank of Subedar Major
on 01.04.2020 i.e. during the lockdown
period w.e.f. 25.03.2020 to 31.05.2020 and
at that relevant time, the petitioner was not
screened due to complete lockdown under
old policy i.e. dated 20.09.2010. In the
meanwhile, the amended policy dated
05.05.2020 came into existence by which
the individual who have been under the
permanent low medical category prior to
commencement of extension would be
discharged on completion of normal terms
of engagement without extension which
was not available in the old policy.
Submission
of
the
learned
Counsel,
therefore, is that once the promotion of the
petitioner to the rank of Subedar Major was
made w.e.f. 01.04.2020 and the petitioner's
case is covered under policy dated
20.09.2010, therefore, the amended policy
dated 05.05.2020, which was applicable
w.e.f. 01.06.2020, would not be made
applicable in the case of petitioner.
However, while considering the claim of
the petitioner for extension of service, the
respondents have erroneously applied the
amended policy 05.05.2020 and declined
the claim of the petitioner for extension of
service, which according to him, is per se
illegal and arbitrary. In this backdrop,
learned Counsel submits that the learned
Tribunal has erroneously returned a finding
that the petitioner's case for grant of
extension could not be considered in
accordance with old policy, therefore, the
impugned judgment/order as well as
622 INDIAN LAW REPORTS ALLAHABAD SERIES
impugned rejection of extension of service
are not sustainable and the same are liable
to be set-aside.

(13) On the other hand, learned Senior
Counsel representing the respondents has
submitted that the learned Tribunal has
taken into account all relevant aspects of
the matter and has returned a finding that
the petitioner's case for grant of extension
could not be considered in accordance with
old policy and further the petitioner could
not be granted service extension due to
extant policy which specifically provides
that service extension cannot be granted to
personnel placed in low medical category,
which medical category the petitioner was
holding and it could not be upgraded in recategorization medical board. In this
backdrop, learned Senior Counsel submits
that the Tribunal has rightly dismissed the
original application preferred by the
petitioner. The instant petition lacks merit
and is liable to be dismissed.

D. Findings & Analysis

(14) Having regard to the submissions
advanced by the learned Counsel for the
parties and going through the record
available before this Court in the instant
writ petition, it is required to be noted
herein that a bare perusal of the impugned
judgment/ order passed by the learned
Tribunal, what we find is that the learned
Tribunal, after analyzing the facts of the
case, has drawn an inference that had the
old policy would have in force, the
petitioner could have been benefitted for
service extension of 11 months as by that
time he would have attained the age of
limit of 54 years. Meaning thereby if the
old policy would have applied to the case
of the petitioner, apparently, the petitioner's
service would have extended by the
respondents.
Therefore,
to
test
the
correctness
of
the
impugned
judgment/order passed by the learned
Tribunal, we deem it apt to consider first
the issue 'whether the petitioner's case for
grant of extension of service is to be
considered under the old policy dated
20.09.2010 or the new amended policy
dated 05.05.2020 w.e.f 01.06.2020

(15) Apparently, the petitioner was
enrolled in Army on 04.05.1990 and
being placed in low medical category P2
(permanent), he was promoted to the rank
of Subedar Major w.e.f. 01.04.2020. It is
an admitted fact that in normal course of
service, a Subedar Major can serve up to
four years in the rank or 54 years of age,
whichever is earlier. At the relevant time
i.e. on 01.04.2020, when the petitioner
was promoted to the rank of Subedar
Major, the procedure and criteria for
screening of Personnel Below Officer
Rank (hereinafter referred to as 'PBOR')
for grant of extension of service by two
years was the letter dated 20.09.2010.
Para-4 of the letter dated 20.09.2010
stipulates that all PBOR will be screened
for extension by two years by Screening
Board
to
be
held
on
Unit/
Regiment/Corps/Records Office basis, as
applicable to access their suitability for
extension. The procedure and criteria for
screening is laid down in Appendix 'A' to
the letter dated 20.09.2010. Para 2 (a) of
Appendix
'A'
of
the
letter
dated
20.09.2010 deals with willingness of the
individual, which stipulates that an
individual will be deemed to be willing
for 2 years extension in age/service
unless he submits his unwillingness
certificate two years before his retirement
date duly counter signed by the OC unit.
Thus,
unwillingness
certificate
was
required to be submitted rather than a
1 All. No. Jc-58164m Sub Maj Clk(Sd) Manoj Kumar Pandey Vs. The Armed Forces Tribunal
 Lko. & Ors.
623
willingness certificate under the old
regime.

(16) At this juncture, it is significant
to notice that the conditions enumerated in
para 2 (a) of the Appendix 'A' of the letter
dated 20.09.2010 (hereinafter referred to as
'old policy dated 20.09.2010') are coached
with deeming provisions and also with nonobstante clause having overriding effect
upon the other provisions of the Act,
therefore, full effect of the provisions has to
be given by the Courts.

(17) In Kamraj Nadar Vs. Kanju
Thevar : (1959) S.C.R. 583(602) = A.I.R.
1958 SC 687, the Apex Court has held that
a deeming provision creates a legal fiction.
The effect of such a legal fiction is that a
position which otherwise would not obtain
is
deemed
to
obtain
under
certain
circumstances. For ready reference the
pertinent observation made by Apex Court
in para 28 of the decision is reproduced as
under:-

""28. ....... The provision is therefore
made in Section 55-A (5) that any person
who has given a notice of retirement under
Section 55-A (2) is deemed not to be a
contesting candidate for the purposes of
Section 52. This is a deeming provision and
creates a legal fiction. The effect of such a
legal fiction however is that a position
which otherwise would not obtain is
deemed
to
obtain
under
those
circumstances..........."

(18) Thus, it is well settled that a
deeming provision is an admission of the
non-existence of the fact deemed. The
Legislature is competent to enact a
deeming provision for the purpose of
assuming the existence of a fact which does
not even exist. It means that the Courts
must assume that such a state of affairs
exists as real, and should imagine as real
the consequences and incidents which
inevitably flow therefrom, and give effect
to the same.

(19) In the instant case, undisputedly,
after getting promotion to the rank of
Subedar
Major
on
01.04.2020,
the
petitioner has not submitted unwillingness
certificate
of
two
years
before
his
retirement date as is mentioned in the
letter/policy dated 20.09.2010. Meaning
thereby as per para-2 (a) of the Appendix
'A' of the letter/policy dated 20.09.2010,
the petitioner will be deemed to be willing
for two years extension in age/service. It is
also an admitted fact that after getting
promotion to the rank of Subedar Major,
the screening of the petitioner for extension
by two years by the Screening Board has
not been done due to country wide
lockdown during the month of April, 2020
and May, 2020. However, apparently, when
the
lockdown
was
removed
w.e.f.
01.06.2020
in
a
phased
manner,
amendment in the procedure and criteria
for screening of PBOR for grant of
extension of service by two years was made
vide letter dated 05.05.2020 (hereinafter
referred to as 'amended policy dated
05.05.2020'). For ready reference, the
relevant para 2 (b) and para-4 of the
amended policy dated 05.05.2020 is
reproduced as under :-

"2 (b) Med Classification The
Med Criteria for grant of two yr extn in
age/service limit will be as follows :

(i) Must continue to remain in
Med Cat SHAPE-1

(ii) Tem LMCs

(aa) Those pers who are in temp
Low Med Cat at the time of screening
bd/prior to commencement of extn will
624 INDIAN LAW REPORTS ALLAHABAD SERIES
continue to be in service. If downgraded
to permt. Low Med Cat during recat
prior to commencement of extn pd indl
would be disch on completion of normal
terms of engagement (without extn).
Those downgraded to permit low med
cat during extn pd will be disposed of in
accordance with procedure for drop in
med criteria. ]

.....

(iii) Permt. LMC The pers in
Permn LMC would be screened with a
view to assess their suitability for grant of
extn in service. If pers are due to recat med
bd prior to commencement of extn the
screening bd can declare such pers as
provisionally fit for extn subject to med cat
being upgraded to acceptable level before
expiry of normal terms of engagement. If
not assessed fit by screening bd or not
upgraded to acceptable med cat prior to
commencement of extn. these pers will be
dispose of in normal manner and not be
granted benefit of extn. in service."

4. Applicability. The changes to
criteria for grant of extn in service issued
vide this letter would be applicable for
screening bds conducted on or after 01 Jun
2020. Indis screened for extn in service
prior to this dt would continue to be
governed by the provisions contained in
our letter No.B/33098/Screening/AG/PS-2
(c) dt. 20 Sep 2010."

(20) Apparently, when the petitioner
was promoted to the rank of the Subedar
Major on 01.04.2020, the petitioner had not
submitted any certificate, however, when
willingness certificate was sought from the
petitioner after removing the countrywide
lock down, the petitioner had submitted his
willingness certificate for extension of
service on 29.07.2020 and thereafter,
screening for extension of service of the
petitioner was carried out on 25.08.2020,
whereby it was found that petitioner was
still in P2 (permanent) medical category,
therefore, his extension was not accepted in
terms of the amended policy letter dated
05.05.2020.
Consequently,
since
his
extension was not granted, he was
discharged from service w.e.f. 31.05.2022
(AN). Thereafter, the petitioner had filed
original application before the learned
Tribunal, seeking to grant him for extension
of tenure i.e. upto 30.04.2023 i.e. till he
completes 54 years age.

(21) A bare perusal of old policy
dated 20.09.2010 reveals that this policy on
willingness/unwillingness for extension of
service categorically states that unless an
individual explicitly gives 'unwillingness
for extension', he will be deemed as
willing. The petitioner was promoted to the
rank of Subedar Major on 01.04.2020 even
he being placed in low Medical Category
P2 (Permanent) i.e. before coming into
force the amended policy dated 05.05.2020
as the amended policy dated 05.05.2020
came into force on 01.06.2020. It appears
that the petitioner submitted his willingness
for extension of service for two years on
29.07.2020 on being sought by the
respondents after coming into force the
amended policy dated 05.05.2020.

(22) Considering the facts and
circumstances of the case, particularly the
deeming clause enunciated in para 2(a) of
the Appendix 'A' of the Old Policy dated
20.9.2010 coupled with the fact that the
petitioner was promoted to the rank of
Subedar Major on 01.04.2020 i.e. before
coming into force the amended policy, we
are of the considered that the petitioner's
case for extension of service for two years
comes under Old Policy dated 20.09.2010
and the action of the respondents in
considering the willingness of the petitioner
1 All. Mahendra Kumar Yadav Vs. State of U.P. & Ors.
625
under the amended policy dated 05.05.2020
is contrary to 'deeming clause' of para 2(a)
of the Appendix 'A' of the Old Policy dated
20.9.2010.

(23) From perusal of the impugned
judgment/order dated 29.03.2023, what we
find is that the learned Tribunal, while
adjudicating the issue, has not considered
the para 2(a) of the Appendix 'A' of the Old
Policy dated 20.9.2010 in the aforesaid
aspect of the matter and has erroneously
came to the conclusion that the petitioner's
case for extension came under amended
policy
dated
05.05.2020.
Thus,
the
impugned judgment/order passed by the
learned Tribunal is not sustainable and the
same is liable to be set-aside.

E. Conclusion

(24) In view of the aforesaid, the
instant writ petition is allowed. The
impugned judgment and order dated
29.03.2023 passed by the learned Tribunal
in Original Application No. 649 of 2022 is
hereby set-aside. The impugned order of
discharge dated 31.05.2022 is also quashed.

(25) Having said so, since in terms of
para 2 (a) of Appendix 'A' of Old Policy
dated 20.09.2010, the petitioner is entitled
to be retained for two years being in the
rank Subedar Major. Since, he joined rank
of Subedar Major on 01.04.2020, he would
be deemed to be discharged only on
30.04.2023 i.e. till he completed 54 years
of age, however, 30.04.2023 has already
been passed.

(26) As a consequence thereof, the
petitioner became entitled to pension in
addition to other benefits which was
granted to him. However, the petitioner will
not be entitled to arrears of salary for the
period up to the date of discharge inter alia
on the ground of 'no work no pay' but he
shall be entitled to arrears of pension for a
period of two years prior to filing of
original application before the Tribunal.
The arrears of pension be paid to the period
within a period of six months from the date
of receipt of copy of this order.

(27) For the facts and circumstances
of the case, there shall be no order as to
costs.
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(2024) 1 ILRA 625
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.12.2023

BEFORE

THE HON'BLE VIKAS BUDHWAR, J.

Writ-A No. 13676 of 2023
with
Writ-A No. 18299 of 2023

Mahendra Kumar Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Abhishek Kumar Saroj, Sri Prabhakar Awasthi

Counsel for the Respondents:
C.S.C., Sri Rajneesh Tiwari, Sri Siddharth Khare,
Sri Vimal Chandra Mishra, Sri Jigar Khare, Sri
Asok Khare(Sr. Advocate)

A. Service Law - Promotion - U.P.
Secondary Education Service Selection
Board Rules, 1998 - Year of Recruitment -
Petitioner, an Assistant Teacher, challenged
denial of promotion to Lecturer (Sanskrit) in
favor of respondent no. 6 - Vacancy arose on
31.3.2022 - Petitioner acquired M.A. (Sanskrit)
degree on 16.11.2021, after the first day of the
year of recruitment (1.7.2021) - Held, under
Section 2(l) of U.P. Act No. 5 of 1982 and Rule
14 of the 1998 Rules, eligibility for promotion
must be assessed on the first day of the year of