Capt Swati Sharma vs Uoi & Ors.
2010 Latest Caselaw 494 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C) No.6827/2009

                  Date of Decision: 29th January, 2010


     CAPT SWATI SHARMA                                   ..... Petitioner
                      Through:         Mr. S.M. Dalal, Advocate

                       versus


     UOI & ORS.                                       ..... Respondents
                            Through:   Ms. Rajdipa Behura with Mr.
                                       Shravanth Shanker, Advcoates

       CORAM:
       HON'BLE MS. JUSTICE GITA MITTAL
       HON'BLE MR. JUSTICE VIPIN SANGHI

       1. Whether the Reporters of local papers may
          be allowed to see the judgment?           :            Yes
       2. To be referred to Reporter or not?              :      Yes
       3. Whether the judgment should be reported
          in the Digest?                                  :      Yes

%                               JUDGMENT (Oral)

GITA MITTAL, J.

1. The present writ petition has been filed by the petitioner

praying for quashing of the order dated 11th of November 2008 passed

by the respondent no.3 rejecting the application for resignation made

by the petitioner.

2. The petitioner is a serving officer of the Military Nursing

Service who was granted permanent commission in the Army on 02nd

of August 2003. She was transferred by an order passed on 26th May

2008 to the 153rd General Hospital at Leh. The petitioner is stated to

have served in Command Hospital Chandimandir as well as in the

Military Hospital, Allahabad during the course of her service.

3. It is urged by Mr. Dalal that in consonance with the traditions

of the conservative Indian society, in July 2008, the parents of the

petitioner were considering marriage proposals for her. A suitable

match was identified by them. The writ petition states that the

proposed match was that of an IT professional, who was permanently

based at New Delhi. It is further submitted that his parents were old

and needing constant care and looking after. The only precondition to

the marriage which was laid down by the prospective in-laws was that

would be wife/daughter-in-law will not work and manage the house,

devote herself to looking after home and in laws.

4. In this background, the petitioner submitted her resignation

from service on 26th of July 2008 to the respondents. This application

was scrutinized and recommended by not only the then Principal

Matron under whom the petitioner was working but also by her

Commanding Officer. It was thereafter forwarded to the Army

Headquarters through proper channel.

5. In the hopeful expectation that her resignation would be

favourably considered, the petitioner advised her parents to finalise

the marriage proposal. However, by the impugned letter dated 11th of

November 2008, the petitioner was informed by the Army

Headquarters that her resignation was rejected by the Director General

Medical Services for the reason that the grounds put forth were not

extreme enough to warrant resignation.

6. The factual narration in the writ petition shows that on 24th of

January 2009, the petitioner was married to Sh. Rajeev Sharma. The

petitioner submits that her husband and in laws insisted that she

should resign from her commission as the present service is not

compatible with the service of her husband. In view of the pressure

from her husband and new in-laws as well as because of the prolonged

separation resulting on account of her Leh posting, the petitioner has

stated that she is mentally disturbed and is not able to focus on her

work and professional duties which are of very sensitive nature and

require full dedication and concentration. In this background, the

petitioner has filed the present writ petition seeking directions to the

respondents to accept her resignation.

7. Mr. S.M. Dalal, learned counsel appearing for the petitioner

has vehemently contended that the action of the respondent is

violative of the rights of the petitioner under Article 21 and 23 of the

Constitution of India. He has placed reliance on the pronouncement of

the apex court reported in JT 2000 (5) SC 135 titled Union of India

& Anr. vs. Charanjit S. Gill & Ors. to contend that fundamental

rights of serving officers of the army have to be protected under all

circumstances.

8. Learned counsel drawn our attention to the pronouncement of

the division bench of this court reported in 60 (1995) 118 (DB) titled

Major Rahul Shukla vs. Union of India & Ors. and submitted that

the action of the respondent in rejecting the resignation application of

the petitioner was contrary to the well settled principles laid down in

this pronouncement to the effect that the continuance in service to

meet exigencies thereof cannot be a ground for rejection of an

application but can only serve as a ground for keeping the application

in abeyance.

9. Learned counsel for the petitioner has also placed strong

reliance on the pronouncement of the Supreme Court reported in AIR

1982 SC 1473 titled People's Union for Democratic Rights and

Ors. vs. Union of India & Ors. in support of the contention that even

a law providing that a person has to be compelled to serve for

specified period, would amount to forced labour and such law would be

void as offending Article 23. It is submitted that the order of the

respondent rejecting the petitioner's application for resignation is in

the teeth of this well settled legal position and runs violative of Article

23 of the Constitution of India and cannot stand.

10. Our attention is also drawn to Article 16 of the Universal

Declaration of Human Rights, 1948 which has been signed and ratified

by India, which recognizes right to life as a human right. It also

provides that men and women of full age have the right to marry and

found a family without any limitation and further that they are entitled

to equal rights as to marriage during its subsistence as well as

dissolution. The Universal Human Rights Declaration also recognizes

that family is a natural and fundamental group unit of society which is

entitled to protection by society and the state.

11. Our attention is also drawn to Article 23 of the International

Covenant on Civil and Political Rights, 1966, which provides that the

family is a natural and fundamental group unit of society which is

entitled to protection by society and the state. It is further stated that

the right of men and women of marriageable age to marry and to

found a family shall be recognized. The state parties to the covenant

undertook to take appropriate steps to ensure equality of rights and

responsibilities of spouses as to marriage during its subsistence as well

as at its dissolution. Learned counsel for the petitioner contends that

the action of the respondent is violative of the rights of the petitioner

under the International Covenants as well.

12. On the other hand, learned counsel appearing for the

respondent has vehemently contended that on the date of her

marriage, the petitioner was aware that her application for resignation

stood rejected and that she got married despite this fact. It is

contended that therefore there was no unforeseen circumstances

which would now entitle the petitioner to resign her commission.

Reliance has been placed on pronouncement dated 16th December,

2005 passed in W.P. (C) No.4646/2005 titled Shakul Tyagi vs.

Union of India & Ors. to contend that the petitioner has no absolute

right to grant of an application for resignation. It has been vehemently

urged that this court has limited powers of judicial review so as a

challenge to the action of the respondent based on policy is concerned.

The submission is that the petitioner has also undergone extensive

training and has acquired her expertise in the field only on account of

the training imparted to her by the respondents, which is followed by

her experience on account of her employment with the respondent in

the nursing service. It is argued that it cannot be ruled out that the

petitioner was seeking to quit service on account of better civilian

prospects. It is also urged that there is deficiency so far as availability

of personnel in the service is concerned. The submission is that public

interest demands rejection of the request for resignation.

13. Learned counsel has further contended that the petitioner

never approached the respondents placing her marriage or any marital

difficulties in support of an application for resignation. The

respondents also challenge the jurisdiction of this court to grant such a

prayer in the present proceedings.

14. The petitioner was not married when she made the earlier

application which resulted in the impugned order dated 11th November,

2008. The order dated 11th of November 2008 has to be tested on the

basis of facts and material then placed before the respondents and not

in the light of facts which were not even in existence on the date when

the application was made or order passed. This order obviously cannot

impact consideration of the fresh application on the aforestated facts

and grounds.

15. We find substance in the last objection on behalf of the

respondent to the effect that the petitioner has come to this court

without approaching the respondent seeking resignation from the

service after her marriage. The petitioner was also required to place

difficulties in her marital life, if any, on account of the exigencies of the

service and its requirement of frequent postings for consideration

before the respondents. Any other reason and material necessitating

the petitioner leaving the employment is also required to be placed

before the respondents for consideration. There is merit in this

contention. This writ petition certainly cannot be treated as an

application for resignation, to be granted by this court without its

consideration or rejection if at all by the respondents.

16. Our attention is drawn to the fact that the petitioner has been

posted in Leh since May 2008 and that the maximum prescribed

tenure in such posting is for a period of two years. Therefore, in any

case, the petitioner is required to be posted out of her current posting

on completion of the prescribed tenure, which event is to occur in the

near future.

17. Without in any manner opining on the issues which have been

urged by both sides and considering the aforesaid facts and

circumstances, we dispose off this writ petition, with the following

directions:

(i) The petitioner shall be at liberty to make an application afresh

for resignation from the Military Nursing Service placing before

the respondent the material which has been placed before us

including copies of the judicial precedents which have been

relied upon, the extract of the International Covenants which

have been noted herein above as well as any other relevant

material, within a period of four weeks from today along with

the prescribed format of the application;

(ii) The respondents shall consider the application of the petitioner

within a period of four weeks thereafter and the order thereon

shall be communicated to the petitioner;

(iii) In case, the petitioner is still aggrieved by the order passed by

the respondents, the petitioner shall be at liberty to assail the

same by way of an appropriate proceedings;

(iv) Appropriate steps for posting of the petitioner on completion of

the tenure may be considered pending receipt and

consideration of the resignation application keeping in view

the difficulties which have been expressed by her in marital

life;

(v) The respondents shall consider the application of the petitioner

uninfluenced by the order dated 11th November 2008 as well

as the filing of the present writ petition.

(vi) It is clarified that nothing herein contained is an expression of

opinion on the merits of the case.

Dasti to parties.

GITA MITTAL, J.

VIPIN SANGHI, J.

JANUARY 29, 2010 sr