Ex. Havildar Satyavir Singh vs Union Of India (Uoi) And Ors.
2007 Latest Caselaw 379 Del

ORDER

T.S. Thakur

1. The petitioner is serving as a Havildar in the Indian Army. For promotion to the next higher post of Naib Subedar, he appears to have undergone the prescribed test in the year 1998. The result of the said test, a copy whereof has been produced as Annexure P1 to the petition, shows that the petitioner had failed in Drill, Tactics and Field Engineering. He appears to have appeared in the said subjects again in the year 1999. The result of the said subsequent test has been enclosed with the petition as Annexure P3 and shows that the petitioner had failed in the BPET i.e. Battle Physical Efficiency Test. His grievance in the present writ petition now is that since the petitioner had qualified in the BPTE in the year 1998, the said result ought to have sufficed for purposes of promotion to the post of Naib Subedar. He has in the present writ petition prayed for a declaration to the effect that he has passed the promotion test in the year 1999 and is therefore entitled to be promoted as a Naib Subedar from the date he did so.

2. Mr. Deo, learned Counsel appearing for the petitioner strenuously argued on the strength of Army Order No. 45/1980 that once a candidate qualify in a particular test, he would not be required to appear for the same again. In particular, he relied upon para 13 of the order which states that if a candidate fails, he will be re-tested only in the subjects in which he has failed. It was contended by the learned Counsel that since the petitioner had qualified the BPET in the year 1998, there was no need for him to qualify in the said test again in the year 1999 and that even if he had failed in the BPET for the year 1999, it did not affect his entitlement for promotion to the rank of Naib Subedar.

3. On behalf of the respondents, it was on the other hand contended that Army Order No. 45/1980 did not exempt the officers, NCOs and JCOs from remaining physically fit to fight at all times. It was urged that Army Order No. 45/1980 relied upon by the petitioner related only to the subjects enumerated in para 7 of the said order. BPET was not one of the tests or subjects covered by para 7. Para 13 of the Army Order No. 45/1980, therefore, had no application to the requirement of the officers remaining physically fit to fight at all times and that qualifying BPET every year was a condition which had to be satisfied by anyone who had appeared and passed in the written examination for promotion to the next rank. Reliance was placed in support of that submission upon Section 13 of the Army Regulations governing physical efficiency test which inter alia prescribe that every soldier is expected to remain physically fit to fight at all times and that the physical efficiency and physical proficiency test shall be conducted for all such officers, JCOs and trained soldiers once a year. The annual test conducted in the year 1998 was no doubt passed by the petitioner but for the year 1999, the petitioner had failed in the said test. Not only that, the result according to the learned Counsel shows that the petitioner had failed in subsequent annual BPETs also till the year 2001. He was thus not eligible for promotion to the next higher rank of Naib Subedar even when he had qualified in the written test.

4. There is, in our opinion, considerable merit in the submission made on behalf of the respondent. Para 13 of the Army Order No. 45/1980 relied upon by Mr. Deo uses the word 'Subjects' which must necessarily be read in the context of para 7 of the said order which enumerates the syllabus and the subjects in which a candidate has to appear and qualify before being considered for promotion to the next higher rank of Naib Subedar. BPET is not admittedly one of the tests or subjects enumerated in para 7 which reads as under:

7. Syllabus

The syllabus for the cadre course will include the following subjects:

(a) Part I, General Military Subjects.

(i) Drill.

(ii) PT and organized sports.

(iii) Weapon training.

(iv) Field craft and battle drill.

(v) Signal procedure.

(vi) Administration and Morale.

(vii) MT driving (in case of infantry applicable to Infantry Battalions mechanised only)

(viii) Elementary knowledge of and co-operation with other arms.

(ix) Field Engineering.

(b) Part II, Special to Corps Subjects.

(i) Tactics - Organisation and employment

(ii) Technical subjects (where applicable).

5. We have, on a conjoint reading of the two provisions, no hesitation in holding that a candidate who has passed in anyone of the subjects enumerated in para 7 of the Army Order No. 45/1980 would not be required to clear the said subject again. But thay does not mean that the candidate would become eligible for promotion to the next higher post of Naib Subedar even when he fails in the annual Battle Physical Efficiency Test which is an essential requirement in terms of Section 13 of the Basic and Battle Physical Training Pamphlet No. 3 for trained soldiers and Physical and Battle Efficiency Test, 1994. A closer reading of the said provision would show that the requirement prescribed for every officer, JCO and trained soldier is to remain physically fit to fight at all times. This is evident from the following passage:

(a) It is the primary duty of every soldier to develop and maintain a satisfactory degree of personal physical fitness and be fit to fight at all the times. There are various methods of evaluating individual physical fitness. One of the most reliable means of evaluation is by use of standardized tests.

6. It is also evident from a reading of the above regulations that the Battle Physical Efficiency Test has to be conducted once a year. This is evident from the following passage appearing in the said regulation : "(a) All officers, JCOs and trained soldiers of Medical category 'A' will undergo both Battle Physical Efficiency and Physical Proficiency Tests once a year. Personnel in low medical category because of congenital or some other disability, which will not aggravate as a result of physical exercise will not be excused from these tests. Commanding Officer should take the advice of medical officer in this matter."

7. In the light of above, we have no difficulty in holding that even when an officer, JCO or trained soldier may have qualified in the written examination, his promotion to the next higher rank of Naib Subedar would depend upon whether he is physically fit for such promotion which fitness is determined on an annual basis by subjecting the officers to what is called a Battle Physical Efficiency Test. It is not in dispute that the petitioner had failed in the said test in the year 1999. He was not, therefore, qualified or eligible for promotion to the next higher rank of Naib Subedar either in the year 1999 or in any subsequent year till such time he was found to be physically fit. According to the respondents, the petitioner did not pass the BPET examination till the year 2001. We are not concerned here with the question whether he passed the said examination in any subsequent year. We say so because the petitioner has not made any prayer for promotion by reference to any such subsequent test or his success in the same. The prayer in the petition is limited to his having become eligible for promotion in the year 1999 only. That part of relief, we are of the view, the petitioner is not entitled to for the reasons given by us earlier.

8. In the result, this writ petition fails and is hereby dismissed but in the circumstances without any order as to costs.