S K JAIN Vs. UNION OF INDIA

JUDGEMENT

(1.) Petitioner is working in Indian Army as Captain. He had submitted his application for premature retirement in view of domestic problems being faced by him. His application for premature retirement having been rejected by the orders dated 23.7.1999 by the Respondents, in this Petition he challenges the said rejection and prays for quashing of the orders dated 23.7.1999 and seeks mandamus directing the Respondents to consider afresh application of the Petitioner seeking premature retirement from the army services in accordance with the policies of the Respondents.

(2.) Petitioner was enrolled in the army SEP. Clerk(GD) in Bengal Engineering Group. Thereafter he was promoted to rank of Havaldar. In July 1987, he got initial rank of Sec. Lieutenant in the Army serving as administration officer and thereafter he was promoted from time to time and ultimately got the rank of Captain and was posted at Delhi in May 1996. The Petitioner submits that he had to face the series of changed circumstances on the domestic front after grant of PRC in the Army, wherein his old age mother (father having expired earlier) of about 70 years being fully dependent upon is staying with him, and needs continuous supervision and looking after by the Petitioner for her treatment/consultation from Doctors as she is suffering from old-age diseases. Further Petitioner's wife and his mother have since embraced Jainism in totality, which religion needs regular visits to Jain Temple on daily basis. Further even the Petitioner has decided to adopt Jainism on permanent basis which demans Orthodox compliance of religious rituals, customs and ceremonies by the follower of religion of Jainism which is not feasible while being in uniform. Accordingly, the Petitioner submitted an application for premature retirement from Army service in accordance with the Govt. letter dated 20.1.1979 as amended and Rule 16B of the Army Rules and para 104/105 of the Regulations for the Army which application was duly verified by the Commanding Officer as to the genuineness of the facts and circumstances set out in the said application. After fully satisfying himself about the correctness genuineness of the Petitioner's application, the aforesaid application was forwarded to the intermediatory authorities for further necessary action vide forwarding letter dated 4.3.1999. The said application duly recommended by the RO and SRO was forwarded to the controlling branch of the MS (MS-12)who is responsible for the officer's management in the Corps of Engrs. The said branch after fully satisfying itself with the genuineness of the Petitioner's application vis-a-vis the availability of the State of officers in the said category in the corps, recommended the case of the Petitioner for premature retirement after taking into consideration the facts that there was neither any shortage of officer in the said cadre, nor there were any exigencies of service forwarded the application of the Petitioner to the concerned branch (MS-7) dealing with the premature retirement of the officers of the Army. The MS-7(retirement), on receipt of the Petitioner's application for premature retirement sought some clarifications vide letter dated 5.4.1999 which clarifications duly scrutinised by the intermediate authorities and recommended were forwarded to the aforesaid MS Branch vide letter dated 19.4.1999,28.4.1999 and 10.5.1999. It appears that after satisfying with the correctness and genuineness of the Petitioner and being in accordance with the policy instructions issued from time to time and the provisions in the ARs and RAs forwarded the Petitioner's application duly recommended for premature retirement to the Respondent No. 1 for appropriate sanction. However by order dated 23.7.1999 Respondents rejected the application for premature retirement of the Petitioner from the Army Service. Petitioner contends that this rejection is without assigning any reasons/grounds whatsoever and is violative of provisions contemplated in Government letter dated 20.1.1979 and the impugned order has been made without application of mind to relevant facts and provisions and without giving opportunity to the Petitioner of having been heard and is therefore violative of principles of natural justice also. Accordingly Petitioner made representation dated 9.8.1999 seeking personal interview of the Military Secretary directly working under Respondent No. 2 that is Chief of Army Staff but no such interview is granted.

(3.) The submissions made by the learned counsel for the Petitioner on the basis of which the impugned order is challenged may be summarised as under:- a) Army Rules 1954, as amended, provide for premature retirement and the application of the Petitioner was not considered in the light of those rules. He referred to Para 105 of the Army Rule which deals with applications for resignation/retirement. He made specific mention to Sub-rule F & G para 105 which reads as under: