JUDGMENT
A.K. Sikri, J.
1. The petitioner feels aggrieved by Order dated
28.3.1995 as per which the respondents have raised a
demand of Rs.1,57,665/- against him. Since the
petitioner had taken voluntary retirement, the
aforesaid amount is sought to be deducted from his
pension. The petitioner, therefore, seeks quashing of
the aforesaid order dated 28.3.1995 and also prays for
writ of mandamus directing the respondents not to give
effect to the impugned order and make any deductions
from his pension which is payable to the petitioner.
2. In order to appreciate the controversy, it
would be appropriate to state the factual matrix.
3. CWP.No.1825/95:
The petitioner is a Doctor who joined Armed
Forces in August,1971 and awarded regular commission as
a short service office in May,1972. At the time when
he joined Armed Forces he was a final year student of
M.B.B.S. He completed his internship in February,1973.
During his service he was detailed on various postings
by the Army and it may not be necessary to give details
thereof. However, what is important to notice is that
the petitioner did his M.D. course and obtained a
degree in Nuclear Medicine in August,1989. Thereafter
he applied for classification on 16.2.1989 in radiation
medicine. His case was, however, rejected. He was
granted study leave for obtaining the Post Graduate
Degree in Nuclear Medicine. It is alleged by the
petitioner that due to the action of the respondent in
not giving the classification, he submitted an
application for pre-mature retirement on 30.9.1992.
After he submitted this application, by order dated
15.10.1992 he was transferred to Administrative Cadre
with immediate effect. Prior thereto he was posted at
Command Hospital (Northern Command) C/o 56 APO. By
order dated 12.1.1995 his application for premature
retirement was approved. On the day when he was
retiring he was given an order dated 28.3.1995 by which
respondent No.4 demanded a sum of Rs.1,57,665/-. This
demand was raised on the ground that the petitioner did
not serve for 7 years after his return from study leave
as per the Army Instructions (AI) and his undertaking
and therefore became liable for refund of the amount
received during study leave period. Feeling aggrieved,
he has filed the present writ petition.
4. In the counter-affidavit filed by the
respondents, it is explained that Armed Forces Medical
Services comprises of two streams of officers, one of
Medical Officers with or without any Post Graduate
Qualifications and the other of Specialist Officers
having Post Graduate Qualifications and appointed as
Specialist Officers. The Specialist Officers are
appointed as Graded Specialists, Classified Specialists
or as Senior Advisers/Consultants depending upon their
educational qualifications, length of service, service
seniority and on being recommended by the Senior
Adviser of the concerned speciality. These
appointments are governed by the Training, Grading and
Classification Rules (TGC Rules) which are
revised/updated from time to time depending upon the
Service requirements. While so appointed as Specialist
Officers, they are entitled to Specialist Pay. Further
it is explained that the petitioner, after having
fulfillled the eligibility criteria laid down, was
appointed as a Graded Specialist in Radiation Medicine
with effect from 8th April,1982. Therefore, the
petitioner was appointed as Graded Specialist only. To
become eligible for next appointment as a Classified
Specialist the petitioner was required to fulfill
following various conditions as per the TGC Rules,1979
then in force:
(a) Should have been a Graded Specialist for
five years.
(b) Should have acquired a Post Graduate
Degree within the period of five years since the date
of Grading (Para 15 of TGC Rules 1979).
(c) Must have been recommended by the Senior
Adviser.
5. The petitioner applied for study leave to do
Post Graduate Degree which was granted to him. It is
stated in the counter-affidavit that the study leave is
granted to officers of the Army Medical Corps under the
provisions of Army Instructions 13/78 as amended from
time to time. Under the provisions of Army
Instructions, all officers are required to give an
undertaking to serve for a minimum period of seven
years from the date of return from study leave. Should
an officer put up for premature retirement/resignation
and if the same is accepted by the Government before
the completion of seven years, the officers are
required to refund all pay and allowances drawn by them
from whatever source during the period of study leave.
There is no provision for partial recovery. In support
of this plea, the respondents have filed Army
Instructions 13/78. It is also clarified that the
petitioner was not given category of Classified
Specialist as he was not able to comply with the TGC
Rules,1979. On the other hand as the petitioner did
not serve for a minimum period of 7 years after the
study leave, in terms of Army Instructions 13/78 and
the undertaking given by him, the recovery of the
amount in question has been made which represents the
pay and allowances received by the petitioner during
the study leave period as he had signed an agreement to
this effect just prior to proceeding on premature
retirement.
6. The submission of learned counsel for the
petitioner was that the petitioner was granted study
leave for acquiring Post Graduate qualification to
enable him to get category of classified specialist.
Therefore, it was incumbent upon the respondents to
classify him as such. Had he been given this
classification then as a specialist he was required to
serve only for 5 years and not 7 years after the expiry
of study leave and as he had served for 5 years, no
such recovery could be made.
7. This contention of the petitioner is totally
misconceived. The petitioner had made a request for
appointing him as Classified Specialist which request
was specifically turned down by order dated 27.3.1990
on the ground that he was not eligible for
classification in radiation medicine as per TGC Rules.
The petitioner had made another request dated 30.4.1990
which was also turned down by communication dated
27.12.1990. The petitioner never challenged these
rejections. As a result thereof he remained Graded
Specialist only. In fact when the petitioner was
posted in Administrative Cadre vide order dated
15.10.1992 he did not challenge even this order. Thus
insofar as the respondents are concerned the petitioner
did not belong to the category of Classified
Specialist. The orders of the respondents to this
effect passed in relation to petitioner’s case remained
unchallenged by the petitioner and thus attained
finality. The petitioner retired as a Graded
Specialist and not Classified Specialist. Therefore,
when the recovery is sought to be made on that ground,
at this distance of time while challenging the recovery
the petitioner cannot be permitted to urge that his
case should have been treated as Classified Specialist.
Consequently, the petitioner cannot be allowed to urge
that he was required to serve only for 5 years after
the study leave which is required in the case of
Classified Specialist as in the category to which
petitioner belonged the requirement is 7 years. The
petitioner admittedly having not completed that period
and took premature retirement, the respondents were
well within their right to effect the recovery. No
other contention was raised. This petition which is
devoid of any merit is accordingly dismissed.