Jaya Shree Dey vs Uoi And Ors
2012 Latest Caselaw 4217 Del

3
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                       +      W.P.(C)No.896/2012

%                                   Date of decision: 17th July, 2012

       JAYA SHREE DEY                     ..... Petitioner
                           Through : Mr. Mohan Kumar, Adv.

                     versus

       UOI AND ORS                    ..... Respondents
                           Through : Ms. Barkha Babbar, Adv.

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

                           JUDGMENT (ORAL)

1. This matter has been repeatedly adjourned on the

request of the petitioner urging that some additional

documents have to be filed. At least four adjournments have

been granted since 6th March, 2012 for this purpose. No

additional documents have been brought on record. No

particulars or relevance thereof are disclosed. We are not

inclined to adjourn this matter for this purpose any more.

2. We may also note that when the matter was called out,

learned counsel for the petitioner opened arguments in the

matter and only after we indicated that we were unable to find

any infirmity in the order, the adjournment is requested by

learned counsel to place additional documents. In any case,

this writ petition assails the judgment dated 21 st April, 1990

passed by the Armed Forces Tribunal in TA No.732/2009. The

judgment of the tribunal has to be tested on the material which

was before the tribunal and not on additional material.

3. The petitioner before this court was granted Short

Service Commission on 16th December, 2005 in the Army

Medical Corps vide an appointment letter dated 17th

November, 2005. The petitioner has claimed that she joined

the service under the impression that she would be completing

her five years tenure at Delhi. She was initially posted for two

years at the Base Hospital, Delhi and thereafter vide posting

order dated 2nd January, 2009, she was transferred to the

Military Hospital at Akhnoor (J & K).

4. We find that the impugned order notices the stand of the

respondents to the effect that subsequent to commission,

officers on Short Service Commission with the Armed Force

Medical Corps are detailed for the Medical Officer Basic Course

(MOBC) at Lucknow. It was customary to post officers to field

area on completion of MOBC. Out of the total of 73 officers

who attended the course with the petitioner, 70 officers were

posted to field unit and only three officers including the

petitioner were posted to peace stations. The posting order

mentions that the posting was for a period of two years only

and the applicant, therefore, knew that her tenure at Delhi was

limited and was to expire in June, 2008. The posting order

posting the petitioner was issued after completion of this

tenure, only on 2nd January, 2009 with instructions to the

petitioner to report to 310 Field Hospital by 5 th February, 2009

after the petitioner had served three years in the Base

Hospital, Delhi. The petitioner preferred an application dated

27th January, 2009 for cancellation of the posting with the

condition that if the request was not acceded to, she may be

released from the army. The petitioner simultaneously applied

for 60 days annual leave.

5. The respondents urged before the Armed Forces Tribunal

that as per para 9 of Annexure A to army instructions 75/78,

(as amended), the permission to resign before completion of

five years of service is to be granted by the Directorate

General, Armed Forces Medical Services.

6. The petitioner was advised by the Base Hospital, Delhi to

apply for release from her new unit where she stood posted.

7. It is noteworthy that the petitioner‟s application for 60

days annual leave was also processed by her new unit which

was along with 15 days furlough leave.

8. The petitioner failed to report to the place of posting

instead she filed a writ petition bearing No.852/2009 in this

court challenging the posting order which was withdrawn by

her on 10th February, 2009.

9. The petitioner again applied for release from service and

also for furlough leave in addition to the 60 days annual leave

already granted. This application was received on 4th March,

2011 by the new unit of the petitioner in Akhnoor.

10. The respondents have pointed out that an application for

release requires an interview with the Commanding Officer of

the unit who is to endorse his recommendation before

forwarding the application for release to the higher authorities.

It appears that the petitioner was also informed that since she

failed to report for duty by the due date, she had been

declared „overstay of leave‟ and disciplinary proceedings

against her were being contemplated. The application for

release was returned without any action thereon on 14 th May,

2009 informing the petitioner that she was required to report

to her new unit for duty on 16th April, 2009. The petitioner also

stood notified that her application for release could not be

processed till disciplinary proceedings against her were

completed.

11. Before this court and Armed Forces Tribunal, the

petitioner has set-up a plea that she was seeking release from

military on account of her family circumstances. The

respondents urged that the petitioner was aware of her family

circumstances when she applied for Short Service Commission

as well as the nuances of the service which require posting. In

fact, there is nothing to support the petitioner‟s contention that

she was under the impression that her five years in Short

Service Commission would all be spent at Delhi. On the

contrary her first posting order was for a fixed tenure at the

Base Hospital only. We find no substance in this plea which is

urged by the petitioner.

12. The respondents informed the Armed Forces Tribunal

that as the petitioner failed to report to new unit on 14 th April,

2009, she was declared as deserter and an apprehension roll

was raised on 27th April, 2009. With effect from 14th July, 2009,

she was placed under Disciplinary and Vigilance Ban-„type D‟.

Her case for release could not be processed in view of the

pending disciplinary case against her.

13. It is trite that leave is not a right. The petitioner‟s leave

in the instant case was not processed by the new unit as the

petitioner did not report to it. The petitioner has accepted her

posting when she made the applications for leave and the

release to the new unit. The petitioner has not urged before

the Armed Forces Tribunal or before this court that it was not

the new unit which was to process her application for leave as

well as her release. She also does not dispute that she has to

appear before the Commanding Officer to be interviewed

before he can make appropriate recommendations to the

competent authorities on her application for release.

14. The petitioner has urged that she was discriminated

against inasmuch as one Lieutenant Colonel Kritika Kaushik,

who was similarly placed, was granted release which has been

denied to the petitioner. The respondents point out (and as

also noticed by the tribunal) that the Lieutenant Colonel Kritika

Kaushik had completed her initial five years of commission and

was in the extended spell of her short service. More liberal

rules are applicable to officers on extended service as against

those on the initial tenure of the commission. As per the

applicable rules, officers on extended commission are normally

sanctioned release as and when they apply. The petitioner

admittedly was only into about three years of her commission

that is in the first spell of the commission tenure. As such the

petitioner can seek no parity with the manner in which

Lieutenant Colonel Kritika Kaushik was treated.

15. We find that the Armed Forces Tribunal has

sympathetically considered the case of the applicant and

observed as follows:-

"12. We have heard the arguments at length and perused the records. There terms and conditions for SSC officers in their first tenure of five years and those on extended SSC tenure are different. Thus her case was different from Mrs. Lt Col Kaushik. The case of release is to be considered by DGAFMS vide letter dated 5.2.2009. She was advised to apply for premature release from her new unit as per the proforma enclosed. The applicant willingly sought a short service commission despite her domestic problems, which are common to most married officers. The applicant being a women officer can expect some consideration but cannot willfully disobey orders and bypass the procedure. In military custom when an officer submits an application he/she is interviewed to enable the commanding officer to endorse his recommendations on the application. She is presently under a DV ban. We therefore direct that if the applicant reports to her new unit and applies for premature release the same be considered. Her status as a deserter and imposition of DV ban will not prejudice her move to her new unit and applying for premature release. Her application for premature release be considered on merits. The application is partly allowed accordingly. No costs."

16. The petitioner is unable to point out any infirmity entitling

interference with the order passed by the Armed Forces

Tribunal imposed by way of the present writ petition which is

hereby dismissed.

GITA MITTAL, J

J.R. MIDHA, J JULY 17, 2012 mk