Union Of India & Ors. vs Major S.S. Suhag
2001 Latest Caselaw 556 Del

ORDER

Sharda Aggarwal, J.

1. The present appeal has been directed against the judgment dated 14th October, 1999 of the learned Single Judge whereby the appellants were directed to consider the case of the respondent herein for re-employment.

2. The short point for consideration in this appeal is as to whether the respondent herein was entitled to re-employment in the army after taking premature voluntary retirement. The respondent being a low medical category officer had applied for this premature retirement on medical grounds and on account of some domestic problems vide his request dated 8th May, 1986. The relevant portion of the request letter is reproduced as under:

"Apex `A' to Army HQ letter No.

3887/MS 7C dt. 25 Apr.81        

APPLICATION FOR PREMATURE RETIREMENT/RESIGNATION

SECTION 1

(Particulars of the Officer)

XXXXX

SECTION-II

(Request of the Officer)

1. I am a low medical category officer w.e.f. 17th February, 1986 for 24 weeks and am going to be made permanent low medical category because of Sensory neural Deafness (both ears). This disability has no cure an I am supposed to take precautionly measures (advised by ENT specialist to avoid loud noises) to avoid further deterioration of my hearing standard. Keeping this in view I had applied for posting to static fun/non-Armour environment. My request was not accepted an I was posted to my parent unit 6-Armed Regt. I had also applied for grant of two years study leave so that I could do L.Lb, and change over to JAG Branch.My application for study leave has also been rejected.

2. I have had no staff tenure and my career prospects are bleak and dismal.

3. Till 1983 we had a joint family but now due to break ups in the family, my mental worries have increased so much so that I can not do full justice to my profession.

4. I may please by granted premature retirement at the earliest.

 Station:C/O 56/80      -------------
Date: 08 May 86       (signature of the Officer)"

 

3. After nine years of his taking premature retirement, respondent applied for reemployment vide his letter dated 27th October, 1995 on the ground that he has recovered from his ailment and was having good health to perform routine army duties. This letter is reproduced as a under:

 "Ref" SS/786/RE       27th October, 1995
 


The Military Secretary, 

MS 3A (MS Branch) 

Army Head Quarters, 

South Block, 

New Delhi 0 110011
 

 RE-EMPLOYMENT IN THE ARMY
 


Dear Sir, 
 

Reference AI24/58, I am enclosing herewith my application for re-employment in the Army.

Sir, I had taken premature retirement from the Army in 1987 due to medical problems. During my service as an Armored Corps Officer due to continuous exposure of my ears to the tank firing and noise I had developed Sensory Neuro Deafness (both ears). There was no care for this disability as much. I was forced to seek premature retirement to avoid further damage to my ears.

ter taking premature retirement I took Ayurdvedic medicines for seven years and now my ears are in satisfactory condition. Also I am in good health to perform routine Army duties. an extremely keen to serve the Army once again. Kindly consider my case favorably and issue orders for my re-employment at the earliest. I would like to inform you that I am on the Reserve List (X-List)up to 2006 under which I can be recalled by the Army as and when required.

Thanking you,

Yours faithfully,

URINDER SINGH SUHAG)"

4. Vide letter dated 8th December, 1995 the request of re-employment of the respondent was declined in view of the provisions of Special Army Instruction No.1/S/80 which did not permit the grant of re-employment in the army to the officers who proceeded on premature retirement.

5. The respondent's case is that Army Instruction No.1/S/80 regarding the terms and conditions of service for re-employment of retired officers also include the officers who take premature voluntary retirement. The learned counsel for the appellants has referred to Army Instruction No.1/7/80 in order to point out that according to these Instructions only regular army officers who retire in substantive rank on superannuation are entitled to re-employment by Army Head Quarters for service in regular army for a maximum period of three years. The relevant Army Instructions are reproduced as under:

"SPECIAL"

ARMY INSTRUCTION NO.1/S/80

New Delhi, Monday, February 4,1980/Magha 15,1901

...........................................

1/S. Re-employment of Retired Regular Terms and Conditions of service

INTRODUCTION:

1. Regular Army Officer who retired in the substantive rank of Lt.Col and below may be re-employed by Army Headquarters for service in the Regular Army for a maximum period of three years and minimum period of two years in the first instance under the terms and conditions stated in the succeeding paragraphs. Extension(s) beyond the above period may also be granted at the discretion of Army headquarters limit to the age of 55 years (56 years at the discretion of COAS on the merits of each case). The service for the officers may be terminated by the Army Headquarters at any time, by giving three months notice on the ground that their services are no longer required.

2. Retired substantive Colonels, other than those belonging to AMC, may also be re-employed as provided for in Para 16 below.

3. On re-employment, the officers will be subject to the Army Act, 1950 (Act XL VI of 1950) under Section 2(i)(a) thereof.

ELIGIBILITY:

4. Officers whose services were terminated as a result of-

(a) an adverse report.

(b) Disciplinary grounds

(c) Misconduct and

(d) Inefficiently

Will not be eligible.

5. Officers who have been retired on account of mental incapacity, certified by the proper medical authority, will also be eligible to apply for re-employment under this Army Instruction.

AGE LIMIT:

6. Officers, must not be over 53 years of age on the date of reemployment. No officer re-employed under this Army Instruction will be retained beyond the age of 56 years.

MEDICAL STANDARD:

7(a) Officers must normally be in S1 H1 A1 P1 E1 factor in grade 2 in one of the above SHAPE factors. Officers who are placed in Grade 2 if more than one SHAPE factors can be re-employed only if suitable appointments are available where their medical category shall not interfere with their work. Officer in temporary low medical grades will be considered for re-employment only when their grading in SHAPE is stabilizer.

(b) Officers with the following medical grading under various SHAPE factors are not eligible for re-employment under this at:

i) Grade 2 under "S" or "P" factors.

ii) Grade 3 in more than one of the other HSAPE factors.

8. Where the last medical board held on an officer is more than one year old (six months in case of an officer in medical grade lower than S1 H1 A1 P1 E1)a fresh medical board will be necessary before an officer is re-employed.

9. In the case of officers who are in medical category lower than S1 H1 A1 P1 E1, Government will not accept responsibility for an aggravation of the disability from which the officers may be suffering at the time of re-employment and they or their families will not become entitled to any disability - special family pensionary awards as the case may be, due to such aggravation or consequences thereof. A categorical undertaking to this effect in the specified forms, which is published as Annexure I to this aI, would be taken form the officer concerned prior to their re-employment.

SELECTION:

10. Applications for the grant of re-employment will be submitted in the form at Appendix `A' to this AI to Army Headquarters (MS Branch, M53-A).

11. Application for re-employment will be scrutinized by an ad-hoc Section Board at Army Headquarters (MS Branch).

12. Those selected will be re-employed under the orders issued by Army Headquarters (MS Branch)and the re-employment will be effective from the date they report for duty.

traveling CONCESSIONS:

XXXXX"

5. Later on 7th January, 1992 a clarification/policy letter was issued form the Army Head Quarters confirming that in terms of Special Army Instruction 1/S/80, the officers who take premature retirement are not eligible for re-employment in service. The relevant portion of this letter is reproduced as under:

"Telephone:3018163 Sena Sachiv Shakha, Military Secretary's Branch (MS-3A) Thal Sena Mukhyalaya, Army Headquarters, DHQ, PO New Delhi-110011

0480/XVII/MS:Policy 07 January, 1992

Headquarters,

Southern Command,

Eastern Command,

Central Command,

Western Command,

Northern Command,

AGEMENT RE-EMPLOYED OFFICERS

A large number of regular/retired officers are approaching this Headquarters seeking clarification if officers who have proceeded on premature retirement are eligible for re-employed service.It is confirmed in terms of SAI 1/S/80, such officers are not eligible for re-employed service.

XXXXX

XXXXX

XXXXX

Sd/-          

(Basand Singh)       

Colonel, Col MS-3      

Kritey Sona Sachiv/   

For Military Secretary"

6. A perusal of the Special Army Instructions No.1/S/80 clearly show that the same is applicable only to regular army officers who retire in substantive rank superannuation. Under the terms and conditions and the policy of the Department, there is no scope for re-employment of an officer who seeks premature voluntary retirement. The respondent in this case had taken premature voluntary retirement in the year 1986 and applied for re-employment in October, 1995 i.e. after nine years on the ground that he had recovered from his ailment. In fact, the respondent having recovered from the ailment cannot be a factor or criteria to consider him for re-employment in view of Special Army Instruction No.1/S/80 as reproduced above read with the Policy letter dated 7th January, 1992 confirming the position that an Officer taking premature retirement is not entitled for re-employment. In fact, the respondent is barred under the relevant policy and Special Army Instructions to seek re-employment.

7. The learned counsel for the appellants contends that even otherwise the respondent being of medical category H3 is not entitled for re-employment. Reference has been made to Army Instruction No.36/81 (Amendment to Army Instruction No.1/S/80), according to which the medical category of only H2 is acceptable for the grant of re-employment.The relevant portion of Army Instruction No.36/81 dated 1st September, 1981 is reproduced as under:

ARMY INSTRUCTION

Delhi, Tuesday, September 1, 1981/Bhadrapad 10, 1903

58/81, RE-EMPLOYMENT OF RETIRED REGULAR OFFICERS

TERMS & CONDITIONS OF SERVICE

1/S/80 is amended, See Corrigendum 36 of 1981.

Case No.A/39260/AG/PS2(a)/689-S/D(AG)

M of F.(Def)Dy.No884-PA of 1981

Mrs.M.R.Nath, Dy.Secry

....................................................

CORRIGENDUM

81 Army instruction 1/S/80 regarding re-employment of retired regular officers-Terms and conditions of service is amended.

(1) Substitute the following as sub Para(a) of Para 7 under the heading Medical standard.

(A) The following medical classification for re-employment will be acceptable:-

Initial re-employment and extension up to 55 year's age

i) Shape 1 or equivalent(H2 or E2 or P2 Dental)

ii) A2 or P2 or H2 E2

iii) Either A2 or P2 combined with H2 to E2

iv) Officers placed lower than grade 1 in 'S' factors will not be re-employed.

Extension beyond the age of 55 years

v) for extension form 55 years of age to 56 years, only SHAPE 1 or equivalent.

Acceptable medical standards for war wounded officers

vi) SHAPE 1 or equivalent

vii) A2 or P2 or H2 E2

viii) Either A2 or P2 combined with H2 or E2

ix) H3 or A3 or P3 or E3

XXXXX"

8. Looking from any angle, the respondent in not entitled to re-employment under the relevant policy and Army Instruction. The learned counsel for the respondent has referred to letter dated 23rd October, 1986 regarding the premature retirement of the respondent which refers to the acceptance to the request of the officer for premature retirement. Specific reference has been made to Para 4 of this letter, which is reproduced as under:

"Tele:8018823 Sainik Sachiv Shakha(MS 7C) Thai Send Mukhaya, Military Seretary's Branch(MS 7C) Army Headquarters, BHQ, PO New Delhi-110011 38176/2001/MS 7C 23rd October, 1986

HQ Western Command,

Chandimandir-141107

PREMATURE RETIREMENT:A/MAJ SS SUHAG (IC-31215) ARMY CORPS

1. Reference your letter No.11686/10/MS 3 dated 21 Jun 86 and our Signal No.384441/MS 7C dated 23 Oct 86.

2. The application of A/Maj SS Suhag (IC-31215), Armed Corps., for premature retirement from the Army has been approved by the Government.

3. The officer will be relieved of his duties as early as possible but not later than 30 days from the date of issue of this letter. 6 Armed Regt. Will forward a copy of Part II Order notifying the details of the period of leave for which cash payment is allowed, leave pending retirement, if any, his effective date of retirement and permanent home address to this HQ (MS Branch/MS 7B & MS 7C), (GS Branch/Dte of MIS), Zila Sainik Board and to all concerned.

4. Under the provision of AI 10/S/63, A/Major SS Suha will be transferred to the Regular Reserve of Officers (Class X) from the date of his retirement and will be liable to be recalled to Army service up to 30th June,2004.

5. Attention is invited to:

XXXXX

sd/-       0

(S. Thankappan)

Civilian Staff Adhikari/CSO  

Up/Sahayak Sainik Sachiv/DAMS 7C

Kritey Sena Sachiv     

For Military Secretary"

9. Interpreting this letter dated 23rd October, 1986, learned counsel for the respondent contends that the respondent was liable to be recalled to army service up to 30th June,2004 as his name was transferred to the Regular Reserve of Officers (Class X)from the date of his premature retirement. In fact recalling of the respondent in view of his name being transferred to Regular Reserve of Officers means that in case of any emergency or war,the officer can be recalled to render his service to the Army. It cannot be inferred from this clause in the letter that the respondent could be re-employed on his request.

10. In view of the observation made above, the appeal is allowed and the impugned judgment of the learned Single Judge is set aside. There will be no order as to costs.