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Delhi High Court
Union Of India (Uoi) And Ors. vs Lt. Col. K.S. Bhimwal on 22 August, 2000
Equivalent citations: 2000 (55) DRJ 202
Author: C Nayar
Bench: C Nayar, M Siddiqui


C.M. Nayar, J.

1. This appeal is directed against the judgment dated March 22, 1999 passed by K. Ramamoorthy, J. The respondent who served the Indian Army for more than 27 years sought premature retirement on the ground that he is to look after his mother afflicted with cancer and his father, a retired Airforce Officer, who is visually handicapped.

The respondent has given full particulars of the facts as well as other instances where officers similarly situated have been permitted to retire prematurely in his writ petition. However, the request of the respondent was rejected by Adjutant General and as a consequence he filed writ petition under Article 226 of the Constitution of India in this Court.

The learned Single Judge dealt with the question by first holding that it is the Central Government which is Competent Authority to deal with the acceptance of the premature retirement of the respondent. However, for the purposes of administrative convenience Adjutant General is given the power to consider and reject the same. It may not be necessary to deal with the question as it is no longer in dispute. The learned Single Judge next referred in paragraph 8 of judgment the circumstances which led to the respondent to seek premature retirement which will indicate the facts of the case may be referred to as below:

“That, the petitioner ventures to bring to the notice of the Hon’ble Court that the respondents have invidiously discriminated the petitioner in the matter of acceptance of his request for PR in as much as only in the last one year, similar requests made by three similarly placed officers, who were specialists in different disciplines and were posted in the Army Hospital along with the petitioner were accepted in the first instance itself. They were:-(i) Lt.Col, Arun Kumar: A Specialist in Medicine and Super Specialist in Gastroenterology with 24 years service on the ground of his father’s illness (Cancer), the same disease with which petitioner’s mother is affflcted.

(ii) Lt. Col ATK Rau-: A Paediatrician with 18 years of service and his request too was accepted in the first instance. The ground was the property problems.

(iii) Major R.K. Bhardwaj: An ENT specialist with 16 years service was allowed to quit the service prematurely on account of his father’s affliction with Cancer (the same disease with which the petitioner’s mother is suffering from).

It is pertinent to point out that all these three officers were not only Specialists but also super, specialists in their respective disciplines which qualification they had acquired at the expense of the Govt. On the other hand the petitioner is not a specialist nor has he acquired any qualification at Govt. expense. Despite that the respondents chose to accept their re-quest and reject that of the petitioner. There cannot be a worse case of arbitrariness and colourable exercise of power by the concerned authorities.”

The appellants, admittedly, did not dispute the factual averments made by the respondent as well as his obligation to his parents but merely contended that his services were required as they are short of officers in the field of the respondent who is a post graduate in Hospital Administration. In the meanwhile the mother of the respondent who was afflicted with Cancer has expired and he is left with his blind father to take care of and look after in his old age.

The writ petition of the respondent was allowed as the appellants did not dispute the factual position and his right to seek premature retirement. The order rejecting the request of the respondent for premature retirement was, accordingly, quashed and the appellants were directed to intimate to the respondent on or before 30th April, 1999 from which date his premature retirement would be accepted. The appellants did not take any action consequent to the order passed in the writ petition but filed this appeal in this court which is time barred by a period of 62 days. There is no sufficient explanation for condensation of delay but we have the matter on merits and will dispose of the same accordingly.

It may be interesting to mention at the outset that in another connected petition the appellants filed LPA No. 258/99 which was cited in this Court for purposes of condensation of delay. The following paragraphs in the additional affidavit of the appellants may be of some relevance:

“1. That the appellant has filed the above appeal in which there is delay of 63 days. The appellant has also filed an application for condensation of delay under Section 5 of Limitation Act.

2. That it is submitted that along with this LPA another appeal bearing No. LPA 258/99 was also filed, UOI v. Lt. Col. P.C Madan. In that LPA there was a delay of 81 days. The said LPA was on a similar point and is an absolutely identical case of premature retirement.

3. That on 26th October, 1999 the said LPA came up for hearing and on that day the Hon’ble Division Bench was pleased to condone the delay of 81 days which was exactly on similar lines as in the present case and was also pleased to make the stay absolute.”

The delay in the above matter was condoned though the appellants have contended that similar point arose for consideration in the other appeal. An order of premature retirement was passed in favour of the Officer in that appeal on 25th April, 2000 approving the premature retirement but no such relief has been granted to the respondent in the present appeal.

The learned counsel for the appellants has contended that the Competent Authority is entitled to accept or not to accept an application for voluntary discharge as the appellants were facing acute shortage of Medical Officers. On the other hand the learned counsel for, the respondent has vehemently argued that the appellants are adopting a different Yardstick for some officers and permitting them to seek premature retirement whereas in the case of the respondent they are adopting a very harsh attitude without taking into consideration the facts of the present case where the mother of the respondent who was afflicted with Cancer has since expired and his father is visually blind and handicapped. He has also cited the cases of other officers who are similarly situated and who have been granted the relief which has been withheld from the respondent. The following officers who have been granted premature retirement from May, 1999 to 7th July, 1999 are referred to as below:

1. Brig. A.K. Hukko (MR-2340) AFMSD Lucknow
02 May, 99

2. Brig. RN Mehrishi (MR-2449) R & R Hospital, Delhi Cantt -10
02 May, 99

3. Brig. Manohar Lal (MR-2426) Army Hospital (R&R), Delhi Cantt.

02 May, 99

4. Col. Narendra Saxena, (MR-2415) AMC Centre & School, Lakhnow
06 June, 99

5. Col. M Sitaram (MR3556) 151 BH
10 June, 99

6. Lt. Col. G. Dhanan Jayan (MR-3498) CH (SC) Pune
12 April, 99

7. Lt. Col. MI Hasan (MR-3881)MH Jodhpur
02 May, 99

8. Lt. Col. PS Roy (MR-3423) MH Bareilley
24 May, 99

9. Lt. Col. S.K. Gupta (MR-3337) HQ BRTF(Gret)
06 June, 99

10. Lt. Col. Asis De (MR-3851) 4033 FB Amb
06 June, 99

11. Lt. Col. (Mrs.) P. Joshi (MR-4864) Base Hospital, Delhi Cantt.

06 June, 99

12. Lt. Col. R.K. Sharma (MR-4204) MH Agra
08 April, 99

13. Lt. Col. C.M. Gupta (MR-3611) MH Kirkee
10 June, 99

14. Lt. Col. GU Deshpande (MR-4091) AFMC Pune
28 June, 99

15. Lt. Col. RK Bindra (MR-4604) Mh Bareilley
28 June, 99

16. Lt. Col. S.K. Thakur (MR-3584) Army Hospital (R&R) Delhi Cantt
15 July, 99

17. Lt. Col. A Bharadwaj (MR-3619) IMHS Asvini
15 July, 99

18. Lt. Col. MS Saluja (MR-2871)
04 June, 99

19. Major KS Dhillon (Mr-5554)
07 July, 99

We have examined the pleas of the parties and come to the conclusion that the respondent Officer has not been fairly treated by the learned Single Judge has, therefore, correctly analysed the law and facts as placed on record and given appropriate directions to the appellants to intimate to the respondent as to from which date his premature retirement would be accepted. We may refer to the Division Bench judgment of this Court in CWP No. 770/1995 (Major Rahul Shukla v. Union of India and Ors.) comprising of R.C. Lahoti (as his lordship then was) and Lokeshwar Prasad, JJ., in similar circumstances where the learned Judges have clearly laid down the law relating to concept of resignation. The following paragraph may be reproduced as below:

“Let us first proceed to examine the concept of resignation as known to service jurisprudence. Fortunately we have a pronouncement of the Supreme Court wherein their Lordships, having made a comparative reading of voluntary retirement qua resignation, have proceeded to state the law as to resignation in J.K. Cotton Sipinning & Weaving Mills Co. Ltd. v. State of UP. and Ors., , as under:-

“When an employee resigns his office, he formally relinquishes or withdraws from his office. It implies that he has taken a mental decision to sever his relationship with his employer and thereby put an end to the contract of service. As pointed out earlier just as an employer can terminate the services of his employee under the contract, so also an employee can inform his employer that he does not desire to serve him any more. Albeit, the employee would have to give notice of his intention to snap the existing relationship to enable the employer to make alternative arrangements so that his work does hot suffer. The period of notice will depend on the period prescribed by the terms of employment and if no such period is prescribed a reasonable time must be given before the relationship is determined. If an employee is not permitted by the terms of his contract to determine the relationship of master and servant, such an employment may be branded as bonded labour. That is why in Central Inland Water Transport Corporation v. Brojo Nath Ganguly this Court observed as under: (SCC P.228 para 111).

“By entering into a contract of employment a person does not sign a bond of slavery and a permanent employee cannot be deprived of his right to resign. A resignation by an employee would however, normally require to be accepted by the employer in order to be effective.”

There may be substance in the submission of learned counsel for the respondent that the service jurisprudence applicable to the civil services cannot be ipso facto extended and applied to defense services which are a class by themselves and therein considerations of secrecy and of safety, Security and sovereignty of the country have vital role to play enabling personal interest to be sacrificed for or giving way to the larger interests of the nation. Yet it cannot be forgotten that the persons serving the army are citizens of the country and the authorities in the army are subject to the Constitution.

Assuming that the right of an army personnel to resign from his commission in army may not be so wide and absolute as it may be in civil services, yet the authorities in the army are bound to follow the regulations of the army and they have to pay within the four corners laid down thereby subject to provision of law. A reading of the several provisions of that Section of the Army Manual Which deals with the removal resignation and retirement of army personnel, specially the provisions which we have quoted hereinabove, in our opinion, leads to a few inferences. The application for voluntary retirement or resignation though dealt with on similar footing do not in fact deserve so. While an application seeking voluntary retirement is fettered by server riders and discretion lies with competent authority to accept or not to accept the prayer; a prayer for resignation has to be dealt with own different footing as the discretionary powers vested in the authorities taking (sic) application for resignation is circumscribed.”

The learned Judges further stated that an application for resignation may be rejected if it is not based on adequate and justifiable reasons. The over-riding consideration is whether the officer’s continuance in service for a specific period is necessary to meet exigencies in a service and alternative arrangements cannot be made. In the present case the appellants have merely averred that the services of the officer who is only trained in Hospital Administration is urgently required. The Officer approached this Court as far back as in the year 1998 and his plea of premature retirement has not yet been allowed. The facts of the present case can squarely be compared with the facts as will be evident from the judgment as referred to above. The following paragraph may also be stated as below:

“Before concluding we may make it clear that we have not entered into appreciating and comparing the case of the petitioner with the cases of the four doctors cited by him in support of his plea of hostile discrimination. On the, admitted facts we cannot resist observing that the case of the petitioner did stand on a better footing than the cases of the doctors on whom the respondents had spent substantial amounts in bringing them up as doctors for utility in the army.”‘

The respondent in the present case is placed on a better footing than some of those officers who have already been discharged from service. The decision of appellants rejecting the plea of the respondent is clearly arbitrary and discriminatory. We, therefore, do not find any ground to interfere in the judgment of the learned Single judge. The present appeal, as a consequence, is dismissed. The appellants are
directed to intimate the respondent on or before 30th September, 2000 as to the date rom which his application for premature retirement would be accepted. There will be no order as to costs.

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