Avadh Behari Rohtagi, J.
(1) This is an appeal from the judgment and decree of the Subordinate Judge dated 15th May, 1976.
(2) These are the facts. The plaintiff/respondent Hans Raj brought a suit against the Union of India on 16th August, 1971 challenging the order of his retirement which took effect from 24th July, 1968. His case was that as a Subedar he was entitled to go up to 24th July, 1970. The second plank of his claim was that he was also entitled to be considered for promotion to the post of Subedar Major in 1969 when his junior Har Milapi J.C. was promoted. But he having been retired in 1968 he was not considered for promotion nor promoted in fact. He claimed a decree for declaration and for Rs. 14,352-70. The particulars of the claim made in the plaint are these :
(I) On account of salary @ Rs.500.00 Rs. 8,112.70 per month as Subedar from 25-7-1968 to 30-11-1969. (ii) On account of salary @ Rs. 600.00 Rs. 12,000.00 per month as Subedar Major from 1-12-1969 to 31-7-1971. Rs. 20,112.70 Less received by way of pension. Rs. 5,760.00 Rs. 14,352.70
The learned Subordinate Judge passed a decree for declaration that the order of retirement of the plaintiff was illegal and that he was entitled to Rs. 12,000..00 on account of salary minus the amount of pension which he had received during the period from 25th July, 1968 to 17th August, 1970.
(3) As regards promotion the learned Judge rejected the claim on the ground that it was a selection post and there was no knowing whether the plaintiff would have been promoted to the post of Subedar Major. From the decree of declaration and pay the Union of India appeals to this Court. The plaintiff-respondent has filed cross-objections as regards his claim for promoti.
(4) On the question of compulsory retirement the learned Subordinate Judge, in our opinion, was perfectly right. Admittedly the plaintiff could have been retired compulsorily after he had completed qualifying service of 28 years. He joined the army as a non-combatant when he was 18 years of age. From 18 years of age till he attained the age of 20 years he served as a non-combatant. At the age of 20 years he opted for the service of a combatant. thereforee as a combatant he had put in only 26 years of service. This is the admitted case. What the Union did was that for purposes of retirement they added his first two years during which he had served as a non-combatant. The rule applicable in this case is Regulation 358 in Chapter Xii of the Civil Service Regulations. That rule says that no period for the purposes of qualifying service can be computed until a man has attained 20 years of age except for compensation gratuity. thereforee on the construction of the rule it appears to us that the plaintiff is right in saying that the period of his two years service, namely, the period served by him between 18 to 20 years of age, ought to have been excluded for purposes of qualifying service. He could have been retired only after 28 years of service. This has to be computed from the time he attained the age of 20 year. On this view of the matter his retirement on 24th July, 1968 must be held to be illegal. He was entitled to go up to 24th July, 1970 when the Government had the right to retire him. He could have been retired only on 24th July, 1970 when he had completed 28 years of qualifying service.
(5) Miss Sharma on behalf of the Union of India referred us to the amendment vide notification No. F2 (30)-EVA/60 dated September 1, 1960. In our opinion this amendment has nothing to do with the plaintiff's case. The amendment was made 'in relation to persons serving in the Indian Audit and Accounts Deptt.' The plaintiff was never in the Indian Audit and Accounts Deptt. He was in the Army. thereforee the amendment has not application to his case.
(6) On the question of promotion we do not think the learned Judge was right. If we hold, as he did, that the plaintiff was entitled to go up to 24th July, 1970 when only he could have been retired after completing 28 years of qualifying service, it must necessarily follow that he was entitled to be considered for promotion in 1969 when his junior was promoted. That his junior was promoted was admitted by the Union of India in the cross-interrogatories. The post of Subedar Major is a selection post. The promotion to that post will have to be considered by a selection board. We, thereforee, direct the Union of India to consider the case of the plaintiff for purposes of promotion as Subedar Major as if he had been in service in 1969 and had not been retired on 24ih July, 1968. This is the inevitable corollary of our finding in his favor that his retirement was illegal. He will be deemed to have been in service from 24th July, 1968 to 24th July, 1970. thereforee he is entitled to the relief of being considered for promotion to the post of Subedar Major. We make the direction in the terms aforesaid.
(7) For these reasons the appeal of the Union of India fails. The cross-objections succeed to the extent indicated above. The parties are, however, left to bear their own costs.
(8) Another grievance which the plaintiff made before us was this. In any event, he said, he was entitled to increased pension on the basis that he continued in service till 24th July, 1970. We have no doubt that pension of the plaintiff will be determined on the basis as if he had continued in service till 24th July, 1970 and had been retired on that date after putting in the qualifying service of 28 years. This is the true effect of the declaration in his favor.