Major (Dr.) Ardhendu Pal (Ms 13401 ... vs Union Of India (Uoi) And Ors.
2004 Latest Caselaw 907 Del

JUDGMENT

Gita Mittal, J.

1. By way of the present writ petition, the petitioner is seeking an appropriate writ in the nature of certiorari quashing the order dated 16th January, 2004 whereby the respondents directed the release of the petitioner from short service commission and denied him an extension of five years as a short service commissioned officer. The petitioner has sought further directions to the respondents to reconsider his extension and posting in the light of the policy of the respondents contained in Army Instructions 75/78.

2. The factual matrix is largely not disputed. The parties are differing only on their interpretation of the rule position. The admitted facts, as emerging on record, are that the petitioner is a qualified doctor and possessed of an M.B.B.S. degree. The petitioner initially joined the Indian Army as a permanent commissioned officer on 22nd June, 1992. On account of certain problems in his family, the petitioner sought premature release from the Indian Army in April, 1997, which was granted. After settling the problems in his family, the petitioner applied for short service commission on 21st April, 1998. The petitioner was appointed as a short service commissioned officer with the Army Medical Corps for a period of five years which he rejoined.

3. The petitioner contends that during his period of short service commission, he had throughout earned an average of 8.4 points out of a total 9 points in his Annual Confidential Report and there was nothing on the record of his service which would disentitle him from getting an extension of further service. According to the petitioner, he was entitled to such extension in accordance with the instructions contained in Army Instructions No.75/78 whereby the short service commissioned officer could serve for a maximum of ten years or up to the age of 55 years, whichever is prior. The petitioner also contends that in accordance with the letter of the Army Headquarters bearing No.66754/Exch/2001/DGMS-1A dated 29th November, 2001, the extension of service of the Army Medical Corps/Short Service Commissioned Officer for a second tenure of five years is automatic. For these reasons, the petitioner did not opt for release from the Army. Instead, on 27th January, 2004, the petitioner applied for extension of service through proper channel with an advance copy to DGAFMS as his first tenure of short service commissioned officer was expiring on the 12th February, 2004. The petitioner has placed on record an order dated 23rd January, 2004 issued by the DGAFMS (Army) whereby the petitioner was transferred to Jhansi. The Petitioner states that he was on leave till 1st February, 2004. On joining duty, he received the impugned order dated 16th January, 2004 whereby the DGAFMS passed the order releasing the petitioner from service. According to the petitioner, the said order is without jurisdiction and is contrary to the instructions governing the issue of extension for a further tenure of short service commissioned officer.

4. According to the respondents, the period of service rendered by the petitioner on permanent commission with his coloured service is to be included in reckoning the permissible tenure as short service commissioned officer. Therefore, the respondents have included the period of 4 years 9 months and 11 days of service rendered by the petitioner on permanent commission to the period of five years of service as short service commissioned officer. Hence, according to the respondents, the petitioner has completed the period of 10 years 8 months and total service disentitling him to extension as per Army Instructions 75/78. The respondents further contend that the release of the petitioner is justified and also on account of cadre management process claiming surplusage of available doctors with the Army Medical Corps.

5. The respondents also contend that the petitioner was not entitled to even the initial engagement on short service as he had resigned from the Indian Army on 3rd April, 1997. However, while applying for the short service commission, instead of mentioning that he had "resigned" on his application form, the petitioner had mentioned the word "release". In the event that the petitioner had mentioned resigned, he would not have been considered at all for engagement as a short service commissioned officer and that an error had resulted in the case of the petitioner on account of wrong information furnished by him in his application form.

6. The respondents further contend that extension of service is not as of right. Cases of officers seeking extension of short service commission are considered and examined by a duly constituted Board under the Chairmanship of the Additional Director General Armed Forces Medical Services. Extension to the short service commissioned officer is granted only after approval by the Screening Board which assembles two months prior to the release of the officer in the ensuing half year. Cases of extension of short service commission are considered and examined on a case to case basis keeping prescribed eligibility criteria in mind.

7. The respondents also contend that at the time of his entry into the short service commission, the petitioner had claimed antedate of seniority for pay and promotion for the service rendered by him as a permanent commissioned officer in the post. Accordingly, his seniority was fixed as 21st November, 1993 after taking into consideration his first tenure of service rendered on permanent commission. The petitioner was granted the rank of Major at the appropriate pay scale after granting him benefit of such service. The petitioner having got the benefits of his previous service commission as regular commissioned officer, has completed 10 years of service in the cadre in February, 2004.

8. The respondents contend that as the petitioner had completed the maximum service permissible for a short service commissioned officer, he was disentitled to extension of service. Consequently, his application was considered by a duly constituted Board of officers on 17th December, 2003. A total number of 69 short service officers were considered for extension. After due consideration by a duly constituted Board, 9 officers, including the petitioner, were not recommended for grant of extension of service by the duly constituted Board. The petitioner was not granted extension as he would have completed 10 years of coloured service in the Armed Forces Medical Service.

9. According to the respondents, for all these reasons, the decision of the respondents for the petitioner's release issued vide order dated 16th January, 2004 were valid and, therefore, liable to be upheld. The respondents contend that they have fairly issued the movement order after giving the petitioner benefit of the annual leave with effect from the date of release as well as his entitlement to 28 days of terminal leave. The respondents contend that on the date of passing of the interim order dated 5th May, 2004, the petitioner already stood relieved. . This position is refuted by the petitioner.

10. The respondents have produced before us the original records relating to service of the petitioner and the proceedings of the Board which examined the applications of officers seeking extension of service to the Army Medical Corps/Short Service Commissioned Officer beyond five years of service.

11. The issues involved in the present case are within a narrow compass. It would be useful to refer to the provisions of Army Instructions 75/78 on which reliance has been placed by both the parties in support of their cases. These instructions provide for the length of Short Service Commission and its further extension as well as the maximum age up to which an officer can render short service commission. The relevant extracts thereof are as under:-

"4. Commissions will be granted for a period of 5 years in first instance and will be extended for such period as the DGA-FMS may decide subject to the conditions that the total SSC service of the officer does not exceed 10 years or beyond the age of 55 years.

On being granted a commission, the officer will be subject to the Army Act, 1950 (XLVI of 1950) under Section 2(1)(a) thereof."

12. Perusal of the Army Instructions shows that the authorities were conscious of the distinction and therefore drew a clear distinction between service rendered as Permanent Commission/Full Pay Commission and Short Service Commissioned Officer. Therefore, the Army Instructions clearly mandate that total service of an officer as a Short Service Commissioned Officer, should not exceed ten years. An officer cannot be considered for extension if he would fall beyond the age of 55 years. In our view, the contention of the respondents that a period of service rendered as permanent commissioned officer, will be included while computing the period of ten years to decide an application for extension of Short Service Commission, is clearly contrary to the specific proceedings contained in Army Instructions 75/78.

13. Adverting to the respondents contention that the petitioner has taken the benefit of permanent commission at the time of his entry as Short Service Commissioned Officer, he cannot be permitted to contend that the period of such service rendered by him should not be included in the 10 year permissible period of the total duration of service on Short Service Commission. This submission might have attained some force if there were no Army instructions governing this field. We find that the army authorities themselves have anticipated such a contingency and have made appropriate provisions on para 9 of Army Instructions 75/78, relevant portion whereof read as hereunder:-

"9 Antedate of Commission

(a) xxx xxx xxx

(b) xxx xxx xxx

(c) xxx xxx xxx

(d) xxx xxx xxx

(e) Previous commissioned service in a non-medical Corps or service in the IMD will not count for purpose of increments of pay, promotion and seniority; but full pay commission service as a medical officer will so count provided the candidate was in possession of a medical qualification as laid down in para 3 above. However, in all cases periods of service forfeited by sentence of Court-Martial or by summary award under Section 84 of the Army Act (Act XLVI of 1950) will be deducted from the total service reckonable for seniority and/or promotion, as the case may be.

(f) The eligibility of each candidate for grant of an antedate in accordance with the preceding sub-paragraphs will be decided by the DGAFMS."

14. In view of specific provisions governing the field, the respondents were bound to consider full pay commission service of a medical officer towards increments of pay, promotion and seniority, provided a candidate seeking entry into the Army Medical Corps as Short Service Commission shall possess of medical qualifications as laid down in para 3 of the instructions.

15. Admittedly, the petitioner was possessed of the prescribed qualification and had rendered full pay commission service as a Medical Officer. It was for this reason and in accordance with Army Instructions 75/78 alone that the petitioner was given the benefit of his prior permanent commission service for the purposes of pay and rank and he was appointed as a Major instead of Captain.

16. The same Army instructions draw a distinction between full pay commission and service rendered as a Short Service Commissioned Officer. For the purposes of deciding eligibility for extension of a short service commission tenure, it is service rendered on short service commission alone which should not exceed 10 years.

17. Additionally, the petitioner has impugned the order of refusing the extension and release on the ground that it suffers from the vice of hostile discrimination. According to the petitioner, the period of permanent commission has not been included while granting extension for a second tenure of Short Service Commission to scores of persons similarly situated as him wherein Army Medical Corps Officers were released from permanent commission and rejoined the Short Service Commission for a second tenure. In this behalf, the petitioner has specifically cited a the case of serving officer detailed as MR05589 Y, Lt. Col. Sanjeev Tewari Ex-MS-10520 Y. The petitioner has contended that further particulars of these officers are available on page No.583, Ministry of defense, Government of India, Army List part IV 1982-83 and page No.320, Ministry of defense, Government of India, Army list, Part IV, 1988-89. The case of an another officer namely V.V. Naresh was cited as an instance in this behalf. The petitioner has also placed on record notifications relating to several officers who had rendered service as permanent commissioned officer and later sought appointment as short commissioned officer. xxx

18. The only distinction orally sought to be drawn on behalf of the respondents was that the instances cited by the petitioner were not relating to cases where the officer had earlier resigned from permanent commission. There were no pleadings to this effect nor any records placed before us to support this submission.

19. There is an inherent contradiction in the plea with regard to the alleged misrepresentation on the application form taken by the respondents in as much as the other plea urged in the counter affidavit and before us is that the petitioner was given benefit of his prior service at the time when he was granted entry in the Short Service Commissioned Officer. Admittedly, the respondents were possessed of the entire service record of the petitioner as the same was scrutinised by the respondents for granting benefit to the petitioner of his prior colour service while inducting him into the Short Service Commission.

Perusal of the application form for Short Service Commission in the Army Medical Corps placed before us shows that there is no specific column requiring details of service rendered earlier in the Army Medical Corps. There is only a column at serial No.Q headed as "Additional information" wherein the petitioner mentioned details of the service rendered by him giving particulars of the number given to him by the Army Medical Authority etc. It is not the respondents' case that they took any action against the petitioner for having made any misrepresentation of any kind.

Upon acceptance of a resignation tendered by an officer, he/she is required to be released from service. There appears to be no good reason or reasons to contend that the petitioner is not entitled to extension of service because he had made a misrepresentation and stated that he was released from service whereas he could have mentioned that he has resigned.

For the foregoing reasons, it would be unfair to disentitle the petitioner to extension of service on such ground.

20. In order to appreciate the argument of efficacious cadre management raised by the respondents, our attention has been drawn to the policy guidelines for posting Army Medical Corps officers issued by the Army Headquarters bearing No.13192/Policy/DGMS-1(b) dated 16th January, 2004. In para (p) of these guidelines, it has been noticed by the respondents as hereunder:

"(p) Keeping in view the manpower availability, establishment and functional deficiency of medical officers, Regimental Medical Officers/Medical Officers to Field formations will be posted as per following guidelines:-

(i) Intense Counter Insurgency - 70% (at Division operations Field Ambulances Level) and Non Medical Units

(ii) Formation Committed in - 55-60% (at Division Low Intensity Conflict operations Level)

Level (Field Ambulance and Non Medical Unit)

(iii) Formation Deployed on Inter- - 50-55% (at national Border/Line of Control/High Division Level)

Altitude (Field Ambulance and Non

Medical Units)

(iv) Formation located in Peace - 40-45% (at Division Station/Soft Field Stations (Filed Division

Ambulance and Non Medical Units) Level

(v) Peripheral Hospitals under orbat - Specialist Officers of Corps/Division will be posted as per requirement and availability."

21. Perusal of these guidelines clearly shows that as late as on 16th January, 2004, the respondents were finding it difficult to find the necessary manpower to effect 100% posting of the necessary and prescribed medical officers in a different field formations. These policy guidelines have been issued at the highest level. According to the respondents, it is the Army Medical Corps who is responsible for providing comprehensible multi-facet and multi-dimensional primary, secondary and tertiary health care to entitled personnel and their families. The Directorate General of Medical Services (Army) provides manpower to medical (Hospitals and Field medical units) and non-medical units of the Army, Inter Service Organisations, Paramilitary Organisations, defense Research Development Organisation, National Cadet Corps, Border Roads, Coast Guards, Indian Military Training Teams abroad, United Nation missions and to Foreign Human Assistance Programme. The policy guidelines dated 16th January, 2004 states that placement and postings of officers are an important factor in ensuring qualify medical care efficiently and effectively, ensuring organizational affectively, taking care of Human Resources Development (HRD) planning and execution, as well as fulfillling officers' individual career aspirations and their growth requirements.

22. In the face of the foregoing, we are unable to hold that the refusal to grant extension to the petitioner was based on consideration of cadre management as has been asserted on behalf of the respondents. Admittedly, the respondents are grossly in shortage of qualified manpower especially in the highly sensitive area of dispensation of medical assistance to needy army personnel.

23. Perusal of the record of the Board proceedings produced before us shows that screening board held its meeting on 17th December, 2003 wherein the petitioner was also considered, but along with nine other officers, the application of the petitioner for grant of extension of service on completion of the initial tenure of five years was not recommended. The Board was persuaded to reject the application largely for the reason that it had erred in computing the tenure of service rendered by the petitioner on Short Service Commission. The Board was of the impression, as contended by the respondents, that in case the extension was granted, the petitioner would have put in 15 years of service on Short Service Commission which was contrary to the provisions of Army Instructions 75/78.

24. According to the respondents, the cases for extension of Short Service Commission are considered and examined on the case to case basis, broadly keeping the following eligibility criteria in mind:-

(a) the officer should have an average of at least 06 in numerical grading in the latest available ACR;

(b) there should be no adverse remarks in any of the ACR;

(c) there should not be a drop in the performance in the latest ACR;

(d) the officer should be in acceptable medical category;

25. There is no dispute before us that the petitioner had a good service record and his annual confidential rating was also above the required six points which were envisaged by the respondents.

26. Therefore, there was no objection whatsoever by the Screening Board with regard to the eligibility of the petitioner for extension of service other than the computation of his afore-stated erroneous service tenure.

27. The last submission made before us was that the audit authorities had raised some objection that the coloured service rendered was to be added to the tenure of SSC service while considering eligibility for extension of the tenure. We find from perusal of the record that no such audit objection was placed before the Screening Board nor has been urged in the counter affidavit. We have been taken through the copy of the letter dated 16th -17th July, 2001. This is a letter issued by Senior Accounts Officers to the Ministry of defense and deals with a first appointment or grant of second tenure to Short Service Commission to medical officers in the Indian Air Force. We find that the observations made in the letter are also not conclusive and it has been left to the consideration of the DGAFMS as to whether the officers, in respect of whom the DGN has been initiated, are authorised for another spell of Short Service Commission, that is, beyond 10 years. Furthermore, the letter refers to officers who have completed 10 years of service on Short Service Commission and reiterates that an officer cannot be retained in Short Service Commission for 10 years. Such retention has been stated to be irregular.

28. This is not so in the case of the petitioner as admittedly he has put in only one five year tenure as Short Service Commission. The reliance placed by the respondents on the alleged audit objection stated to be contained in the letter dated 16th -17th January, 2001, thus, is wholly misconceived and not applicable to the instant case.

29. In view of the foregoing discussion, we hold that the period of service rendered by the petitioner on account of permanent commission in the Army Medical Corps is not liable to be included for computation of his service for extension as a Short Service Commissioned Officer. For this reason, the rejection of the application of the petitioner on such ground is arbitrary, without jurisdiction and illegal. The petitioner is entitled to re-consideration of his application seeking extension of his service on Short Service Commission. The order dated 16th January, 2004 is hereby held to be contrary to law and the applicable policy.

30. So far the contention of the respondents that the petitioner stood released from the Army is concerned, it is necessary to point out that the order dated 16th January, 2004 directed that the petitioner would be granted annual leave, if due, plus 28 days permanent leave. Para 1 of the order reads as under:-

"1. These officers will be granted annual leave, if due plus 28 days terminal leave under para 8(a) of Appendix `A' to AI-75/78. These officers may avail annual leave which may be ontaioned with terminal leave. The terminal leave will not be granted earlier than the date they are relieved of Military duties. However, annual leave may be granted to these officers before or after the date of their release as required. They will relinquish their short service commission from the date following the date on which their terminal leave expires."

31. The petitioner was thereafter issued a movement order dated 12th February, 2004 which directed that the petitioner had been granted 60 days annual leave for the year 2004, that is, with effect from 13th February, 2004 to 12th April, 2004 and 28 days terminal leave with effect from 13th April, 2004 to 10th May, 2004. This order recorded that the petitioner would be struck off the strength from the Indian Army with effect from 11th May, 2004 (F.N.) after completion of terminal leave.

32. Our attention has also been drawn to a letter dated 3rd January, 2004 issued by the Director General of Medial Services (Army) whereby the posting of the petitioner to 331, Field Ambulance, M.O. has been notified.

33. The writ petition was filed on 17th March, 2004 and notice thereof was accepted on behalf of the respondents on 26th March, 2004. Despite opportunity having been granted, the counter affidavit was not filed and vide order dated 5th May, 2004, the interim order, directing that the petitioner shall not be retired was passed.

34. The petitioner had also filed an application being CM No.7044/2004 placing on record that despite intimation of the interim order and repeated letters to the respondents, the respondents were not issuing the appropriate order enabling the petitioner to join his duty. No counter affidavit was filed even at that stage. It is only in the affidavit filed on or about 7th August, 2004 that the respondents have taken the stand that the petitioner stood relieved because his relieving order had been issued on 16th January, 2004.

35. In view of the posting order and the movement order dated 12th February, 2004 issued by the respondents, the submission of the respondents that the petitioner had been struck off the strength by 5th May, 2004, is incorrect.

36. Accordingly, the order dated 16th January, 2004 is quashed. The respondents are directed to forthwith consider the application dated 27th January, 2004 seeking extension of his service in accordance with the applicable procedure and to pass orders thereon in accordance with law.

37. The interim order made on 5th May, 2004 shall continue to operate till the application of the petitioner is considered afresh and orders passed thereon.

The petitioner will be entitled to costs of the petition which are quantified at Rs.5,000.-