MAJOR ARDHEND PAL Vs. UNION OF INDIA

JUDGEMENT

(1.) By way of the present writ petition, the petitioner is seeking an appropriate writ in the nature of certiorari quashing the order dated 16th January, 2004 whereby the respondents directed the release of the petitioner from short service commission and denied him an extension of five years as a short service commissioned officer. The petitioner has sought further directions to the respondents to reconsider his extension and posting in the light of the policy of the respondents contained in Army Instructions 75/78.

(2.) The factual matrix is largely not disputed. The parties are differing only on their interpretation of the rule position. The admitted facts, as emerging on record, are that the petitioner is a qualified doctor and possessed of an M.B.B.S. degree. The petitioner initially joined the Indian Army as a permanent commissioned officer on 22nd June, 1992. On account of certain problems in his family, the petitioner sought premature release from the Indian Army in April, 1997, which was granted. After settling the problems in his family, the petitioner applied for short service commission on 21st April, 1998. The petitioner was appointed as a short service commissioned officer with the Army Medical Corps for a period of five years which he rejoined.

(3.) The petitioner contends that during his period of short service commission, he had throughout earned an average of 8.4 points out of a total 9 points in his Annual Confidential Report and there was nothing on the record of his service which would disentitle him from getting an extension of further service. According to the petitioner, he was entitled to such extension in accordance with the instructions contained in Army Instructions No.75/78 whereby the short service commissioned officer could serve for a maximum of ten years or up to the age of 55 years, whichever is prior. The petitioner also contends that in accordance with the letter of the Army Headquarters bearing No.66754/Exch/2001/DGMS-1A dated 29th November, 2001, the extension of service of the Army Medical Corps/Short Service Commissioned Officer for a second tenure of five years is automatic. For these reasons, the petitioner did not opt for release from the Army. Instead, on 27th January, 2004, the petitioner applied for extension of service through proper channel with an advance copy to DGAFMS as his first tenure of short service commissioned officer was expiring on the 12th February, 2004. The petitioner has placed on record an order dated 23rd January, 2004 issued by the DGAFMS (Army) whereby the petitioner was transferred to Jhansi. The Petitioner states that he was on leave till 1st February, 2004. On joining duty, he received the impugned order dated 16th January, 2004 whereby the DGAFMS passed the order releasing the petitioner from service. According to the petitioner, the said order is without jurisdiction and is contrary to the instructions governing the issue of extension for a further tenure of short service commissioned officer.