Major S.K. Jain vs Union Of India & Ors.
2000 Latest Caselaw 204 Del

ORDER

A.K. Sikri, J.

1. Petitioner is working in Indian Army as Captain. He had submitted his application for premature retirement in view of domestic problems being faced by him. His application for premature retirement having been rejected by the orders dated 23.7.1999 by the respondents, in this petition he challenges the said rejection and prays for quashing of the orders dated 23.7.1999 and seeks mandamus directing the respondents to consider afresh application of the petitioner seeking premature retirement from the army services in accordance with the policies of the respondents.

2. Petitioner was enrolled in the army SEP. Clerk(GD) in Bengal Engineering Group. Thereafter he was promoted to rank of Havaldar. In July 1987, he got initial rank of Sec. Lieutenant in the Army serving as administration officer and thereafter he was promoted from time to time and ultimately got the rank of Captain and was posted at Delhi in May 1996. The petitioner submits that he had to face the series of changed circumstances on the domestic front after grant of PRC in the Army, wherein his old age mother (father having expired earlier)of about 70 years being fully dependent upon is staying with him, and needs continuous supervision and looking after by the petitioner for her treatment/consultation from Doctors as she is suffering from oldage diseases. Further petitioner's wife and his mother have since embraced Jainism in totality, which religion needs regular visits to Jain Temple on daily basis. Further even the petitioner has decided to adopt Jainism on permanent basis which demands orthodox compliance of religious rituals, customs and ceremonies by the follower of religion of Jainism which is not feasible while being in uniform. Accordingly, the petitioner submitted an application for premature retirement from Army service in accordance with the Govt. letter dated 20.1.1979 as amended and Rule 16B of the Army Rules and para 104/105 of the Regulations for the Army which application was duly verified by the commanding officer as to the genuineness of the facts and circumstances set out in the said application. After fully satisfying himself about the correctness and genuineness of the petitioner's application, the aforesaid application was forwarded to the intermediate authorities for further necessary action vide forwarding letter dated 4.3.1999. The said application duly recommended by the RO and SRO was forwarded to the controlling branch of the MS(MS-12) who is responsible for the officer's management in the corps of Engrs. The said branch after fully satisfying itself with the genuinenes of the petitioner's application vis-a-vis the availability of the State of officers in the said category in the corps, recommended the case of the petitioner for premature retirement after taking into consideration the facts that there was neither any shortage of officer in the said cadre,nor there were any exigencies of service forwarded the application of the petitioner to the concerned branch (MS-7) dealing with the premature retirement of the officers of the Army. The MS-7(retirement), on receipt of the petitioner's application for premature retirement sought some clarifications vide letter dated 5.4.1999 which clarifications duly scrutinised by the intermediate authorities and recommended were forwarded to the aforesaid MS Branch vide letter dated 19.4.1999,28.4.1999 and 10.5.1999. It appears that after satisfying with the correctness and genuineness of the petitioner and being in accordance with the policy instructions issued from time to time and the provisions in the ARs and RAs forwarded the petitioner's application duly recommended for premature retirement to the respondent No.1 for appropriate sanction. However by order dated 23.7.1999 respondents rejected the application for premature retirement of the petitioner from the Army service. Petitioner contends that this rejection is without assigning any reasons/grounds whatsoever and is violative of provisions contemplated in Government letter dated 20.1.1979 and the impugned order has been made without application of mind to relevant facts and provisions and without giving opportunity to the petitioner of having been heard and is therefore violative of principles of natural justice also. Accordingly petitioner made representation dated 9.8.1999 seeking personal interview of the Military Secretary directly working under respondent No. 2 that is Chief of Army Staff but no such interview is granted.

3. The submissions made by the learned counsel for the petitioner on the basis of which the impugned order is challenged may be summarised as under:

"(a) Army Rules 1954, as amended, provide for premature retirement and the application of the petitioner was not considered in the light of those rules. He referred to Para 105 of the Army Rules which deals with applications for resignation retirement. He made specific mention to Subrules F & G of para 105 which reads as under :

(f) The applications for premature/resignation will be examined by Army HQ and submitted for consideration and approval of the COAS who may reject an application which is not based on adequate and justifiable reasons at his level without reference to the Government or recommend for acceptance by the Central Government. In case, the officer feels aggrieved by the decision of the COAS, he can, if he so chooses, file a statutory complaint addressed to the Central Government under the provisions of Section 27 of the Army Act. The decision of the Central Government on application to retire premature/resign will be final."

(g) Where the Central Government are satisfied that the officer's continuance in service for a specified period is necessary to meet exigencies of service and alternative arrangements cannot be made, they may order holding the retirement/resignation order in abeyance."

4. The submission of the learned counsel was that as per Subrule (f), the application submitted by an officer for premature retirement is to be examined by Army Headquarters and submitted for consideration and approval of the Chief of Army Staff, respondent No. 2 in this case and he can reject the said application at his level or recommended for acceptance by the Central Government. According to him, therefore, the consideration has to be by Respondent No. 2, who in the instant case had recommended the application of the petitioner for acceptance by the Central Government. It was submitted that whether the officer is needed in the service or not or whether there was shortage of officers of the category of petitioner which could warrant rejection of the application of the petitioner is to be decided by the respondent No. 2. Once respondent No. 2 recommended the application the implication thereof is that the petitioner could be relieved from duties as there was no shortage of officers of the rank of the petitioner. Further, as per Subrule (g) the Central Government could reject the application only after it was satisfied that officer's contingencies of service and alternative arrangements cannot be made.

(b) He further submitted that there was no shortage of officers in the rank of the petitioner. He has produced the documents to show that authorised strength of the Major/SAO was 13 which includes civilian and persons in uniform and the total number of Major in position as on today was 18 and the petitioner among them junior most. Considering these aspects, respondent No.2 had recommended the application of the petitioner and therefore the Central Government should have accepted the same.

(c) The ground on which he submitted his application for premature retirement was covered by the policy guidelines of the Ministry of defense dated 20.1.1979 issued for this purpose and he relied upon the following portion of the same:

"It has been decided that, in future, requests for premature retirement/resignation from defense Service officers will continue to considered on individual merits on the recommendation of Chief of Staff concerned who will keep in view the manpower situation and the operational requirements of the services. The grounds on which applications should normally be recommended to the Government for consideration will be as under:-

(a) xxxxxx

(b) EXTREME COMPASSIONATE GROUNDS:

Request on extreme compassionate grounds will be considered after the facts represented by the officer are verified to the extent possible, by the service headquarters. Such verification is necessary to ensure that the grounds are genuine. Domestic problems such as need to look after ailing parents, inheritence problems, need to look after family business, serious illness of wife requiring officer's presence at home, possibility of breakup of conjugal life if the officer continues in service etc. would be treated as compassionate grounds depending on the circumstances of each case.

5. He submitted that the grounds stated by him in the application come under the clause specifying "extreme compassionate grounds". His submission was that the circumstances given in the clause were only illustrative as is clear from the word "etc."

6. The Central Government while rejecting the application of the petitioner had not applied its mind to the recommendation of respondent No.2. He submitted that on his application, Army headquarters had written letter dated 5.4.1999 in which it was mentioned that to enable the respondent No.2 to process his request, the detailed compelling domestic problems may be submitted by him and pursuant thereto his response dated 19.4.1999 submitting the domestic reasons as under:

"(a) RELIGIOUS OBLIGATIONS: My mother who stays with me being wholly dependent and my wife, have adopted a JAINISM OBLIGATION under which daily visit to a Jain Temple is required. I will also be adopting the same religious obligation after my release from the Army. In view of nonavailability of Jain Temples at all the stations as also considering the advanced age (late 70s) of my mother, I intend to settle down at one station so that my family can perform our religious obligations. Also, I am not in a position to keep my family separately in view of old age of my mother and due to financial problems in maintaining of two establishments.

(b) CHILDREN'S EDUCATION : My elder son is studying in IX class. These four classes (from IX to XII) are very crucial and any change of institution during this period will certainly affect the child's education specially in view of introduction of new policy by CBSE under which a separate certificate is to be awarded by the institution in which the child is studying. My continuance in Army shall involve my two postings during this period (one during 1999 and another during 2002) wherein midsession shifting of family is also expected, the shifting being related with the availability of married accommodation. In the meantime my younger son will also enter this crucial stage of his education. I, therefore, intend to settle down at one station so that my children can get undistrubed education during their crucial stage of education.

7. According to him, after being satisfied that aforesaid domestic reasons fall under the category 'extreme compassionate grounds' that the application of the petitioner was recommended for acceptance by the respondent No. 2 and forwarded to Central Government. Rejection of the application by the Central Government without stating any reasons according to the petitioner is without application of mind and violates principles of natural justice.

8. He also referred to order dated 9.7.1997 passed by this Court in CW No. 2708/97 wherein in a similar case, respondents were directed to obtain instructions as to why the application of the said petitioner seeking retirement cannot be accepted and in the meantime, the transfer of the petitioner in the said writ petition to Gauhati was stayed. He also relied upon the judgment of this Court in the case of Major Rahul Shukla Vs. UOI & Ors. .

9. On the other hand, Mr. Neeraj Kaul, learned counsel appearing for the respondents submitted that the case of the petitioner was not covered by the policy as it was not a case which could be covered under the clause 'extreme compassionate grounds'. His submission was that the examples of such compassionate grounds were given in the policy itself, quoted above, and religious obligations or children's education could not be treated as compassionate grounds. His submission was that if these grounds are treated as valid for acceptance of application under compassionate grounds, any person would make such excuses of adopting religion or children's education and could seek premature retirement. His further submission was that the ultimate authority to accept the application for premature retirement was the Central Government and the recommendation of the respondent No. 2 was not binding on the Central Government. He referred to Rule 16B of the Army Rules as per which such premature retirement requires sanction of the Central Government. Even Para 105(f) clearly stated that the respondent No. 2 could only recommend the application for acceptance by the Central Government but the ultimate decision rested with the Central Government and Para 105(f) clearly provided that decision of the Central Government in this respect will be final. Respondents joined issue with the petitioner on the availability of the officers. His submission was that petitioner was wrong in isolating strength of Majors only and it was the Cadre strength which was to be seen and not the ranks. In the entire cadre, the sanctioned strength of officers was 53 against which only 45 officers were working. He further submitted that even out of 18 Majors, one had retired on attaining the age of superannuation. One was given premature retirement already and 4 were on deputation and therefore only 13 Majors were in position. It was further submitted that even rankwise, petitioner was not Major and was only a Captain and he was only discharging the duties of Major at present with substantive rank of Captain. In this respect, he referred to paras 4(viii) and 4(x) of the counter affidavit which deal with the cadre position in the following manner :

"4(viii). The contents of corresponding paragraph are wrong and are denied. The contention of the petitioner about satisfaction of the controlling branch of Military Secretary (MS-12) on the aspect of availability of the officer's strength in the particular cadre is incorrect. The controlling branch of MS-12 did not go into this aspect and forwarded the case of the petitioner for premature retirement only on the basis of representation made by the petitioner. It is respectfully submitted that the authorised strength of SL (Adm officer) Cadre in Corps. of Engineers is 53 and the officers held on strength as on date is 45. It is, therefore, incorrect to contend that there is no shortage of officers in the Administrative Cadre of Corps of Engineers. Similarly contention of the petitioner pertaining to commissioning of officers into administrative Cadre of Corps. of Engineers between 97 to 99 is also incorrect."

"4(x). In reply to contents of corresponding paragraph it is respectfully submitted that the petitioner's application for premature retirement was forwarded to respondent No.1 for consideration in view of his length of service and domestic problems as averred in his application. After due consideration of the same and keeping in mind the existing policy and permissible grounds for the premature retirement, respondent No.1 rejected the same.

10. On the basis of aforesaid factual position, the respondent submitted that the application of the petitioner was rightly rejected as there was not only shortage of officers but case of the petitioner was also not covered under the policy' of premature retirement. Mr. Neeraj Kaul further submitted that the case of Major Rahul Shukla (supra) decided by this Court rather supported the contention of the respondents and referred to paras 11 & 12 of the judgment wherein the Court has drawn distinction between voluntary retirement and resignation and submitted that the said case was that of resignation and not premature retirement.

11. From the submissions noted above, it may be seen that following two questions arise for consideration:

(i) Whether the case of the petitioner falls in the category of "extreme compassionate grounds" and therefore he could seek premature retirement on the grounds stated by him?

(ii) Whether the decision of the Central Government even application of the petitioner for premature reitredment was recommended for acceptance by the Chief of Army Staff is proper and based on valid considerations?

12. Before proceeding to answer to the aforesaid questions, it would be fulfilll to ascertain as to what Major Rahul Shukla (supra) decides. That was the case where petitioner had submitted application for resignation and the main ground given by him in his application for resignation was that his mother was earlier living in joint family alongwith his two sisters, after the death of his father. However due to some domestic problems, family decided to adopt nucleus family system which left his mother alone altogether as nobody was willing to take her responsibility. Accordingly, the responsibility to look after his mother who was 62 years of age and suffering from various ailments fell upon him and being the only son he had to live with her in the ancestral house as his mother was unwilling to live with his family at the place of his duty and was insisting upon him to leave the army. Due to this sudden destabilisation in the family petitioner no longer, mentally and physically, wanted to continue in service. With his application he had appended a certificate stating that he was resigning from his commission voluntarily and unconditionally without any terminal benefits and obligation to serve in the regular reserve of officers. The army authorities felt satisfied that the grounds mentioned by him were valid and his request for resignation on compassionate grounds was recommended for acceptance. However the competent authority having rejected the same, he filed the writ petition challenging that action. In that case also, the respondents pleaded shortage of officers. The Court noticed provision contained in Army Rules 104(d) and 105(a) (f) & (g) and thereafter proceeded to examine the concept of resignation and the right of an army personnel to seek resignation/retirement. This discussion is found in paras 9 to 12 of the judgment which may be reproduced at this stage:

"9. Let us first proceed to examine the concept of resignation as known to service jurisprudence. Fortunately we have a pronouncement of the Supreme Court wherein their Lordships, having made a comparative reading of voluntary retirement qua resignation, have proceeded to state the law as to resignation in J.K. Cotton Spinning & Weaving Mills Co. Ltd. Vs. State of UP and Ors., as under:-

"When an employee resigns his office, he formally relinquishes or withdraws from his office. It implies that he has taken a mental decision to sever his relationship with his employer and thereby put an end to the contract of service. As pointed out earlier just as an employer can terminate the service of his employee under the contract, so also an employee can inform his employer that he does not desire to serve him any more. Albeit, the employee would have to give notice of his intention to snap the existing relationship to enable the employer to make alternative arrangements so that his work does not suffer. The period of notice will depend on the period prescribed by the terms of employment and if no such period is prescribed, a reasonable time must be given before the relationship is determined. If an employee is not permitted by the terms of his contract to determine the relationship of master and servant, such an employment may be branded as bonded labour. That is why in Central Inland Water Transport Corporation Vs. Brojo Nath Ganguly this Court observed as under: (SCC P.228, para 111)

"by entering into a contract of employment a person does not sign a bond of slavery and a permanent employee cannot be deprived of his right to resign. A resignation by an employee would however normally required to be accepted by the employer in order to be effective."

10. There may be substance in the submission of learned counsel for the respondent that the service jurisprudence applicable to the civil services cannot be ipso facto extended and applied to defense services which are a class by themselves and therein considerations of secrecy, and of safety, security and sovereignity of the country have vital role to play enabling personal interest to be sacrificed for or giving way to the larger interests of the nation. Yet it cannot be forgotten that the persons serving the army are citizens of the country and the authorities in the army are subject to the constitution.

11. Assuming that the right of an army personnel to resign from his commission in army may not be so wide and absolute as it may be in civil services, yet the authorities in the army are bound to follow the regulations of the army and they have to play within the four corners laid down thereby subject to provision of law. A reading of the several provisions of that Section of the Army Manual which deals with the removal resignation and retirement of army personnel, specially the provisions which we have quoted hereinabove, in our opinion, leads to a few inferences. The applications for voluntary retirement or resignation though dealt with on similar footing do not in fact deserve so. While an application seeking voluntary retirement is fettered by several riders and discretion lies with competent authority to accept or not to accept the prayer; a prayer for resignation has to be dealt with on different footing as the discretionary power vested in the authorities taking decision on application for resignation is limited and circumscribed.

12. An application for resignation may be rejected if it is not based on adequate and justifiable reasons. The overriding consideration is whether the officer's continuance in service for a specific period is necessary to meet exigencies in a service and alternative arrangements cannot be made. Even in such a case the application for resignation cannot be rejected. It can only be held in abeyance. In the case at hand it is not the case of the respondent that the facts stated by the petitioner in his application for resignation were false or were not adequate or not justifiable. That finding could not have been arrived at inasmuch as the Colonel Commanding officer having personally reviewed the application, was satisfied of the validity thereof. Any higher authority to form an opinion different from the one expressed by the Colonel Commanding officer must have been possessed of material concrete enough to form a different opinion which it is not so."

13. Thereafter the Division Bench noted that the ground on which application of the said petitioner was turned down was necessity of the petitioner continuing in service to meet exigencies and held that this could not be a ground for rejecting the application but on this ground as per para 105(g) it could only be kept in abeyance. It further observed that the respondent should have formed an opinion about the period for which petitioner's continuance in services was necessary and how much time it would taken to make alternate arrangements.

14. The Court in that case accordingly quashed the rejection letter dated 15.2.1995 and directed the respondent to consider the petitioner's application afresh for resignation with sympathy and pass order consistently with clauses (f) & (g) of para 105 of Regulations of Army.

15. The aforesaid decision covers the following aspects:

1. Service jurisprudence applicable to civil services cannot be ipso facto extended and applied to defense services which are a class by themselves.

2. In any case the action of the authorities has to be subject to the constitution as person serving in army are also citizens of the country.

3. Applications for voluntary retirement and resignation are to be dealt with on different footing. The application seeking voluntary retirement is fettered by several riders and discretion lies with competent authority to accept or not to accept the prayer. On the other hand in the case of resignation, discretionary power vested with the authority is limited and circumscribed.

4. The application for resignation or voluntary retirement cannot be rejected on the ground of shortage of officers or necessity of concerned employee continuing in service to meet exigencies on that ground it can only be kept in abeyance.

16. One has to bear in mind that in the instant case application submitted was for premature retirement/voluntary retirement and not resignation. Of course such an application could not be rejected on the ground that petitioner's services were not required to meet exigencies of service and on this ground it can only be kept in abeyance. Thus as far as arguments relating to shortage of officers are concerned, one need not come to the dispute raised by respective parties and come to the conclusion as to whether there was shortage of officers or not. Even if it is presumed to be so, the respondents could only keep the application of the petitioner in abeyance and could not reject it.

17. Since it is a case of premature retirement the main question to be decided is as to whether it falls within the policy of the respondents on which such applications can be accepted. The petitioner has tried to cover his case under 'extreme compassionate grounds. The para relating to 'extreme compassionate grounds' in this policy guidelines stipulates that: (i) request on extreme compassionate grounds are to be considered if the facts represented by the officer are verified to the extent possible by the service Hqrs; (ii) such verification is necessary to ensure that the grounds are genuine; (iii) domestic problems such as need to look after ailing parents, inheritence problems, need to look after the family business, serious illness of wife requires officer's presence at home, possibility of break up of life if the officer continuance in service etc. are treated as compassionate grounds depending on circumstances of each case.

18. Thus whether the request on 'extreme compassionate grounds' is genuine or not is to be verified by the Service Hqrs., in first instance. Therefore, it is the Service Hqrs. which has to satisfy about this requirement. Reading of this provision alongwith para 105(f) of the Regulations of Army makes this aspect further clear. Para 105(f) stipulates that, if the COAS is not convinced with the grounds stated in the application for premature retirement he can reject the same at his own level. However, if he is satisfied about the genuineness of the grounds he can recommend the same for acceptance by the Central Government. Ultimately, it is the Central Government which as to take the decision and the decision of the Central Government is final. Examples given in para B of policy dated 20.1.1979 are only illustrative and it is clarified that these grounds are to be treated as compassionate grounds. However, the word 'etc.' appearing in this parar makes it clear that apart from these grounds there may be other grounds also which may be treated as 'extreme compassionate grounds' and it would depend upon the circumstances of each case. Therefore, one cannot confine to the specific examples given in para B of the policy guidelines dated 20.1.1979 to decide as to whether particular case falls in that category. As far as grounds mentioned by the petitioner are concerned, COAS/respondent No. 2 treated the same as extreme compassionate grounds and finding the same to be genuine recommended the case to the Central Government for acceptance. However, ultimately decision rests with the Central Government which has to satisfy whether the grounds stated by a particular applicant would fall within the expression 'extreme' compassionate grounds'. It is not that when COAS recommends an application, Central Government has to accept the same mechanically. It is only a recommendation of the COAS and the final authority is the Central Government. However, the Central Government to attach some sanctity to the recommendation made by COAS and if notwithstanding the said recommendation, the Central Government still rejects the application it has to be on relevant considerations and not arbitrarily. In the instant case, the stand taken by the Central Government is that the ground stated by the petitioner do not all under 'extreme compassionate grounds' although the COAS treated these grounds to be falling under 'extreme compassionate grounds'. However, whether the Central Government took the decision on the basis of relevant consideration is to be examined. For this purpose, I called for the original records of the Ministry of defense wherein the request of the petitioner was rejected. The records show that the note which was submitted for consideration by the competent authority gave the grounds as stated by the petitioner in para in the following manner:

"Capt. Sushil Kumar Jain, SL-3669, Engrs. has applied for premature retirement on the grounds that his mother and his wife have adopted Jainism. They have an obligation to visit a Jain temple daily. He would also be adopting this religious obligations after his release from the Army. In view of the non-availability of Jain temples at all the stations, as also considering that his mother is in her seventies, he intends to settle down at one station so that his family can fulfill their religious obligations. Secondly, he does not want to disturb education of his children due to postings at different stations."

19. Thereafter para 4 mentioned that the reasons given by the officer are not specifically covered by the laid down criteria. This para reads as under:

"the reasons advanced by the officer are not specifically covered under the laid down criteria for premature retirement of defense officer, however, the Advisory Board has recommended his case and Army Hqrs. have also forwarded this case to the Ministry for favourable consideration."

20. The competent authority, on the basis of para 4, observed that as grounds advanced by the officer were not covered under the laid down criteria, his application may be rejected. The aforesaid record shows that the authorities were influenced mainly by the consideration that the examples in para B of the guidelines dated 20.1.1979 did not specifically stipulate the grounds mentioned by the petitioner. Thus the approach adopted by the Central Government was clearly erroneous. As already pointed out, the examples in para B are only illustrative. The application of the petitioner was rejected only on the basis that the reasons given by the petitioner are not covered by specific instances mentioned therein and the authorities did not look into this aspect as to whether the grounds mentioned by the petitioner could be considered as 'extreme compassionate grounds'. The Army Hqrs. had recommended the case of the petitioner which clearly implies that reasons given by the petitioner were treated as falling under 'extreme compassionate grounds' by Army authorities. Therefore it was necessary for the competent authority to examine whether the recommendation of the COAS treating the reasons given by the petitioner as 'extreme compassionate grounds' was proper or not, instead of confining the consideration to the specific instances mentioned in para B and coming to the conclusion that the case of the petitioner did not fall in those specific instances. Competent authority thus committed an error in treating these specific instances as exhaustive rather than illustrative.

21. This writ petition is accordingly allowed. Rule is made absolute. Decision dated 23.7.1999 is hereby quashed. The matter is remanded back to the competent authority to examine the case afresh in the light of the recommendations made by COAS and decide the case of the petitioner consistently with para B of the criteria laid down in guidelines dated 20.1. 1979 bearing in mind that the instances given in the said para are illustrative only. I may state here that I am not deciding that whether the reasons given by the petitioner would fall in 'extreme compassionate grounds'. It is for the competent authority to decide this aspect keeping in view the spirit behind para B. Of course in order to meet the requirement of principles of natural justice, incase the competent authority rejects the application, it would be better to give reasons for the same so that it is known to the petitioner as to on what basis the reasons given by the petitioner are not treated as 'extreme compassionate grounds. The decision may be made by the authorities within a period of two months from today.

22. There shall be no order as to costs.