Suresh Kumar vs Uoi And Ors
2010 Latest Caselaw 5601 Del

4
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                      +      W.P.(C)NO. 7569/2010

                                Date of Decision : 8th December, 2010
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      SURESH KUMAR                          ..... Petitioner
                             Through : Mr. D.S. Kauntae, Adv.

                      versus

      UOI AND ORS                       ..... Respondents
                             Through : Ms. Raman Oberoi, Adv.

CORAM :-
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may                          NO
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?                         NO

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

GITA MITTAL, J. (Oral)

1. The instant case is a worst example of judicial

adventurism. The petitioner had joined service as a

recruit/General in Assam Rifles Regiments. While undergoing

training, he was diagnosed as suffering from Tuberculosis and

an order dated 31st August, 2003 discharging the petitioner

from service was passed. This order had resulted from his

invalidation by the Medical Board on 23rd July, 2003 which

found him unfit for retention in service.

2. The petitioner filed W.P.(C)No.577/2006 in Gauhati High

Court assailing his discharge and seeking the following

prayers:-

"In the premises aforesaid, it is respectfully prayed that your Lordship may be pleased to admit this petition, call for the records of the case and issue a Rule calling upon the Respondents to show cause as to why a writ in the nature of Certiorari be not issued.

i) To set aside and quash the impugned order of discharge dated 31.07.2003; And/or

ii) issue a writ in the nature of Mandamus directing the respondents to reinstate the petitioner in service with immediate effect;

iii) issue a writ in the nature of mandamus directing the respondents to forthwith release the 50% disability pension to the petitioner as admissible under the Rules;"

3. This writ petition came to be dismissed by a judgment

dated 28th April, 2009 rejecting all the prayers of the petitioner.

The present writ petition has been filed on 10th November,

2010 more than seven years after the discharge of the

petitioner and after dismissal of his writ petition seeking

reinstatement.

4. The petition is premised on a contention that the

petitioner's medical condition is required to be reviewed by a

fresh medical board in terms of circular dated 7th February,

2010. Interestingly, the first request for any such medical

board has also been advanced by the petitioner after the

dismissal of the writ petition by the Gauhati High Court in 2001.

It is apparent that such request has been mooted only with the

intention of creating a cause of action for seeking

reinstatement.

5. It is trite that merely because more than one ground of

challenge or basis for seeking relief may be available, the

litigating party is required to premise the prayers in a case on

all such grounds which would be available to him. Nothing

precluded the petitioner from urging the grounds or seeking

the prayer which he is making in this writ petition when he had

filed the writ petition before the Gauhati High Court while the

same remained pending.

6. So far as the present writ petition is concerned, it has

been pointed out on behalf of the respondents that the Circular

relied upon by the petitioner pertains to requests for review of

medical boards by serving defence personnel to the Director

General Military Services. The petitioner who was admittedly

employed with the Assam Rifle, was not governed by the Army

Act and, therefore, was never a defence personnel under the

Army Act. The request being made is not tenable for this

reason as well.

7. Learned counsel for the respondents has also contended

that no part of the cause of action is arisen in Delhi. Mere

issuance of circular in 2001 under which the petitioner is

wrongly claiming entitlement would not certainly confer

jurisdiction on this court.

8. The above narration would show that this writ petition is

merely abuse of the process of law.

We find no merit in the writ petition, which is hereby

dismissed with costs which are quantified at `10,000/-. The

costs shall be deposited with the Delhi Legal Services

Authority.

9. At this stage Mr. D.S. Kauntae, learned counsel for the

petitioner submits that the litigant is very poor and therefore,

he would pay costs which have been imposed by this Court. A

further prayer is made that the same may be reduced. Having

regard to the fair stand taken by Mr. Kauntae, learned counsel

for the petitioner in this matter, we direct that in case a sum of

`500/- is paid towards cost to Delhi Legal Services Authority by

learned counsel appearing for the petitioner within a period of

two weeks, the rest of the costs would stand waived.

Dasti.

GITA MITTAL, J

J.R. MIDHA, J DECEMBER 08, 2010 HL