Lt. Col. Y.N.I. Anand (Retd.) vs Union Of India (Uoi) And Ors.
2002 Latest Caselaw 188 Del

JUDGMENT

A.K. Sikri, J.

1. The petitioner feels aggrieved by Order dated 28.3.1995 as per which the respondents have raised a demand of Rs.1,57,665/- against him. Since the petitioner had taken voluntary retirement, the aforesaid amount is sought to be deducted from his pension. The petitioner, therefore, seeks quashing of the aforesaid order dated 28.3.1995 and also prays for writ of mandamus directing the respondents not to give effect to the impugned order and make any deductions from his pension which is payable to the petitioner.

2. In order to appreciate the controversy, it would be appropriate to state the factual matrix.

3. CWP.No.1825/95:

The petitioner is a Doctor who joined Armed Forces in August,1971 and awarded regular commission as a short service office in May,1972. At the time when he joined Armed Forces he was a final year student of M.B.B.S. He completed his internship in February,1973. During his service he was detailed on various postings by the Army and it may not be necessary to give details thereof. However, what is important to notice is that the petitioner did his M.D. course and obtained a degree in Nuclear Medicine in August,1989. Thereafter he applied for classification on 16.2.1989 in radiation medicine. His case was, however, rejected. He was granted study leave for obtaining the Post Graduate Degree in Nuclear Medicine. It is alleged by the petitioner that due to the action of the respondent in not giving the classification, he submitted an application for pre-mature retirement on 30.9.1992. After he submitted this application, by order dated 15.10.1992 he was transferred to Administrative Cadre with immediate effect. Prior thereto he was posted at Command Hospital (Northern Command) C/o 56 APO. By order dated 12.1.1995 his application for premature retirement was approved. On the day when he was retiring he was given an order dated 28.3.1995 by which respondent No.4 demanded a sum of Rs.1,57,665/-. This demand was raised on the ground that the petitioner did not serve for 7 years after his return from study leave as per the Army Instructions (AI) and his undertaking and therefore became liable for refund of the amount received during study leave period. Feeling aggrieved, he has filed the present writ petition.

4. In the counter-affidavit filed by the respondents, it is explained that Armed Forces Medical Services comprises of two streams of officers, one of Medical Officers with or without any Post Graduate Qualifications and the other of Specialist Officers having Post Graduate Qualifications and appointed as Specialist Officers. The Specialist Officers are appointed as Graded Specialists, Classified Specialists or as Senior Advisers/Consultants depending upon their educational qualifications, length of service, service seniority and on being recommended by the Senior Adviser of the concerned speciality. These appointments are governed by the Training, Grading and Classification Rules (TGC Rules) which are revised/updated from time to time depending upon the Service requirements. While so appointed as Specialist Officers, they are entitled to Specialist Pay. Further it is explained that the petitioner, after having fulfillled the eligibility criteria laid down, was appointed as a Graded Specialist in Radiation Medicine with effect from 8th April,1982. Therefore, the petitioner was appointed as Graded Specialist only. To become eligible for next appointment as a Classified Specialist the petitioner was required to fulfill following various conditions as per the TGC Rules,1979 then in force:

(a) Should have been a Graded Specialist for five years.

(b) Should have acquired a Post Graduate Degree within the period of five years since the date of Grading (Para 15 of TGC Rules 1979).

(c) Must have been recommended by the Senior Adviser.

5. The petitioner applied for study leave to do Post Graduate Degree which was granted to him. It is stated in the counter-affidavit that the study leave is granted to officers of the Army Medical Corps under the provisions of Army Instructions 13/78 as amended from time to time. Under the provisions of Army Instructions, all officers are required to give an undertaking to serve for a minimum period of seven years from the date of return from study leave. Should an officer put up for premature retirement/resignation and if the same is accepted by the Government before the completion of seven years, the officers are required to refund all pay and allowances drawn by them from whatever source during the period of study leave. There is no provision for partial recovery. In support of this plea, the respondents have filed Army Instructions 13/78. It is also clarified that the petitioner was not given category of Classified Specialist as he was not able to comply with the TGC Rules,1979. On the other hand as the petitioner did not serve for a minimum period of 7 years after the study leave, in terms of Army Instructions 13/78 and the undertaking given by him, the recovery of the amount in question has been made which represents the pay and allowances received by the petitioner during the study leave period as he had signed an agreement to this effect just prior to proceeding on premature retirement.

6. The submission of learned counsel for the petitioner was that the petitioner was granted study leave for acquiring Post Graduate qualification to enable him to get category of classified specialist. Therefore, it was incumbent upon the respondents to classify him as such. Had he been given this classification then as a specialist he was required to serve only for 5 years and not 7 years after the expiry of study leave and as he had served for 5 years, no such recovery could be made.

7. This contention of the petitioner is totally misconceived. The petitioner had made a request for appointing him as Classified Specialist which request was specifically turned down by order dated 27.3.1990 on the ground that he was not eligible for classification in radiation medicine as per TGC Rules. The petitioner had made another request dated 30.4.1990 which was also turned down by communication dated 27.12.1990. The petitioner never challenged these rejections. As a result thereof he remained Graded Specialist only. In fact when the petitioner was posted in Administrative Cadre vide order dated 15.10.1992 he did not challenge even this order. Thus insofar as the respondents are concerned the petitioner did not belong to the category of Classified Specialist. The orders of the respondents to this effect passed in relation to petitioner's case remained unchallenged by the petitioner and thus attained finality. The petitioner retired as a Graded Specialist and not Classified Specialist. Therefore, when the recovery is sought to be made on that ground, at this distance of time while challenging the recovery the petitioner cannot be permitted to urge that his case should have been treated as Classified Specialist. Consequently, the petitioner cannot be allowed to urge that he was required to serve only for 5 years after the study leave which is required in the case of Classified Specialist as in the category to which petitioner belonged the requirement is 7 years. The petitioner admittedly having not completed that period and took premature retirement, the respondents were well within their right to effect the recovery. No other contention was raised. This petition which is devoid of any merit is accordingly dismissed.