Major Gaurav Bhandari vs Union Of India & Anr
2008 Latest Caselaw 1528 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI


+                       WP (C) No.6435/2008


%                                 Date of decision: 03.09.2008


MAJOR GAURAV BHANDARI                          ...PETITIONER
                  Through:          Mr.N.L.Bareja, Advocate.


                                Versus


UNION OF INDIA & ANR                          ...RESPONDENTS
                    Through:        Ms.Barkha Babbar, Advocate




CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.     Whether the Reporters of local papers
       may be allowed to see the judgment?          No

2.     To be referred to Reporter or not?           No

3.     Whether the judgment should be
       reported in the Digest?                      No

SANJAY KISHAN KAUL, J. (Oral)

1. The petitioner joined the Army Corps of EME as a

Commissioned Officer on 12.12.1998. The petitioner after

having served the respondents for a period for two and half

years, reported to the CME, Pune for undergoing a degree

engineering course in October, 2001. There were some

interruptions in the course on account of Operation

Prakaram. The petitioner completed the course in July,

2006. The petitioner while pursing the course is stated to

have got married on 22.06.2004 and claims that after

marriage, he was having problems on the domestic front on

account of psychological differences with his wife, but

completed the course despite this fact. The petitioner, prior

to completion of his course, submitted an application on

04.04.2006 seeking to resign his service. The said

application is stated to have been recommended by the

appropriate authorities, but the Chief of Army Staff rejected

the request vide order dated 18.09.2006. It is the plea of

the petitioner that such a rejection was without appreciating

the scope and ambit of the revised policy dated 22.11.2001

of the respondents for premature retirement/resignation.

2. The petitioner aggrieved by the said decision, submitted a

statutory complaint to the Union of India, but the same was

also rejected by the letter dated 28.11.2007. The ground

for such rejection was that the petitioner belonged to the

technical arm and there was acute shortage of officers in

the said department and thus the resignation of the

petitioner could not be accepted at that juncture.

3. The petitioner made a renewed request vide application

dated 06.05.2008 seeking to quit the Army by resigning his

commission unconditionally without even terminal benefits.

The petitioner filed WP(C)4141/2008 before this Court

during the pendency of the application and this Court by an

order dated 28.05.2008 directed that the petitioner's

application should be disposed of within two months giving

him liberty to challenge any adverse decision. The

application of the petitioner has been thereafter rejected

vide letter dated 25.07.2008. It is this decision which the

petitioner now seeks to challenge.

4. The petitioner's case is that his wife is not happy with his

service with the respondents and despite four years of

marriage, there is no offspring. In fact, the plea of the

petitioner is that his wife does not want to go in for a family

till the petitioner is serving the respondents. Insofar as this

aspect is concerned, we may observe that the Army can

hardly be blamed for the wife of the petitioner refusing to

go in for a family till he is with the Army. The connected

plea raised is that the petitioner has to look after his aged

parents who are suffering from depression. Interestingly, it

is pointed out by the respondents, which is not disputed by

the learned counsel for the petitioner, that the father of the

petitioner is still in service with the Government of Madhya

Pradesh in the Forest Department. The father of the

petitioner has not put in his papers. It is the duty of the

father of the petitioner to look after the mother of the

petitioner and the parents of the petitioner can hardly be

said to be aged where the father of the petitioner is still in

service; more so, in this day and age. The petitioner also

claims that his sister is having matrimonial problems, who is

based in the USA.

5. We may notice that a number of petitions are coming up

where service personnel are seeking discharge from service

or seeking to resign and the Army is unable to accept such

cases because of shortage of requisite qualified personnel.

We find that suddenly people are wanting to look after their

parents or are developing family problems. Alternative

opportunities available in the country now seem to be

encouraging this trend. The problem, however, remains

that the respondents cannot discharge them for the reason

of inadequate alternative personnel of requisite

qualifications. It cannot be lost sight of that the Army

service has a special position in the country since it looks

after the integrity and security of the country and that is

why it has been repeatedly observed in respect of various

aspects of service jurisprudence that it stands on a separate

footing. Even in matters of discipline of Army service, the

norms of the service jurisprudence relating to civil service is

not applicable. In order to make the Army service

lucrative, steps are being taken by the Central Government

to remedy the grievance of the service personnel of the

Army service. A decision whether the respondents are able

to release a person or not has to be taken by the

respondents. This Court does not sit as a court of appeal

and all that has to be seen by this Court is whether the

decision is as per the norms. The grounds given in the

earlier rejection and the subsequent rejection, in our

considered view, are not different. The mere fact that the

petitioner keeps on renewing the request at short intervals

would make no difference. We are, however, conscious of

the fact that a situation should not arise where such a

request is postponed for an indefinite period of time.

6. It is in the aforesaid context that the learned counsel for the

petitioner has made a reference to a Division Bench

judgment of this Court in Major Rahul Shukla v. Union of

India & Ors; 1995 (34) DRJ (DB) 399 where the relevant

regulations for the Army - Volume I - have been considered

in para 8 of the judgment, which reads as under:

"104(d) An officer will not be relieved of his duties until receipt of intimation that his application to retire or resign has been accepted. An officer whose application to retire or resign has been accepted may apply to the Central Government for his application to be cancelled. In the case of the officers who have once proceeded on leave pending retirement, permission to withdraw such applications will only be granted in exceptional circumstances. The decision of the Central Government on all applications to retire will be final.

105(a) Application for resignation/retirement.

(a) Application of officers of the Army to resign their commission or to retire from the service will be forwarded through the prescribed channels to Army HQ. The applicant need not give a prospective date from which it is desired that the retirement/resignation should take effect as it may not be administratively convenient for the competent authority to take a decision by a desired date. However, if an applicant desires to retire from a specified date for any valid reasons, such as commutation of pension or higher rate of pension, he may indicate a prospective date in his application and submit his application not less than 4 months before that date. In the case

of the retirement with requisite qualifying service for pension, the applicant will also state where he wishes to draw his pension.

(f) The applications for premature retirement/resignation will be examined by the 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."

(emphasis supplied)

7. The Division Bench has noticed that there is substance in

the plea of the respondents that the service jurisprudence

applicable to civil services cannot ipso facto be extended

and applied to defence services which are a class by

themselves. Simultaneously, it has been observed that a

reading of the provisions shows that while an application

seeking voluntary retirement is fettered by several riders

and discretion lies with the competent authority to accept or

not 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. An application for

resignation may be rejected if it is not based on adequate

and justifiable reasons. The application can also be kept in

abeyance. In the present case, the request of the petitioner

would have to be examined within the parameters of

clauses (f) and (g) referred to aforesaid. Thus the grounds

given by the petitioner for quitting the Army by resigning his

commission as also the exigency of service by reason of

there being a larger attrition rate can be taken into

consideration by the respondents while rejecting the

request of the petitioner.

8. Learned counsel for the petitioner sought to contend that

the resignation has to be ultimately accepted or rejected by

the Central Government, but a reading of the impugned

decision shows that it has been taken by the competent

authority.

9. The last aspect urged by learned counsel for the petitioner

is about the plea of discrimination. It is the case of the

petitioner that while other people are being permitted to be

discharged from Army service, the petitioner is being

singled out. The illustrations of such cases of discrimination

are set out in the present writ petition at page 16 and the

same is re-produced below:

        S.No.    Particulars                       Month/Year
                                                   Proceeded on retirement
        (a)      IC-56955 Major G.S.Gill           July, 2007

        (b)      IC-57425X Major S.Thomas          August, 2007




          (c)      IC-53372N Major A.Srikanth             September, 2007

         (d)      IC-53767 Major Avi Chandra Sud         February, 2008

10. Learned counsel for the respondents, on instructions,

has explained the peculiar facts which justify the premature

retirement/resignation of the aforesaid four officers. The

officers at Serial Nos.(c) and (d) are in permanent low

medical category and the officer at Serial No.(d) also has

family problems. The factum of officers at Serial Nos.(c)

and (d) being in permanent low medical category itself

makes them a class apart.

11. The wife of the officer at Serial no.(a) is stated to be a

psychiatric patient, who is not improving after the

treatment and the problem got aggravated on account of

her suffering from TB. There were also no issues from the

marriage.

12. The officer at Serial no.(b) was facing divorce

proceedings and had ailing parents.

13. It must be understood that the plea of discrimination

is not absolute in itself. The premise is that similarly

situated persons should not be treated differently.

However, it is not required that differently situated persons

must be treated similarly. The facts in the case of the

petitioner show that the petitioner seems to be desirous of

leaving the Army service and for that, grounds are being

created. The respondents at present need the services of

the petitioner and find themselves unable to accede to the

request of the petitioner. In case, in the future, the

respondents are able to make adequate arrangements or

any further circumstances arise which may enable

consideration of the request of the petitioner, the

observations made herein would not preclude such

consideration by the respondents.

13. We see no reason to interfere under Article 226 of the

Constitution of India.

14. Dismissed.

CM 12302/2008

No further directions are called for on this application.

The application stands disposed of.

SANJAY KISHAN KAUL, J.

SEPTEMBER 03, 2008                           MOOL CHAND GARG, J.
dm