N RANGA RAO Vs. GOVERNMENT OF INDIA

JUDGEMENT

(1.) "To be" or "not to be" was the question with which like Hamlet, the appellant was confronted with and in the conflagration thereof he opted to relinquish his office as Major in Army EME to assuage from domestic tribulations and sent letter dated 29/10/1982 for voluntary retirement. Though he retraced the step after reflection he is landed in legal tangle and knocked the door of this Court under Art. 226 of the Constitution to extricate therefrom. For the elaboration thereof, it is necessary to delineate in a nutshell the undisputed facts : While having Bachelors course of Engineering and N.C.C., the appellant had the short service commission on 22/02/1965 and in a short span scaled over to higher echelons of service in quick succession, as a Major and was discharging his duties in the Military College of Electrical and Mechanical Engineering at Secunderabad. He has exhibited undaunted exemplary valour on war front in 1971 and devotion to duty unmindful of consequences to his person and brought two abandoned enemy tanks after due repair and earned unquestioned reputation to be an Officer of efficiency, integrity and relentless devotion to duty, in fairness to the respondents, they accepted this as a fact at more than one place in the note file. In August 1982, he was transferred from Secunderabad and was posted at Assam. At that juncture he was baffled with domestic tribulations to look after all his ailing dependents, etc. and he was in a fix and even was prepared to forego sixteen years benefit of service and opted to lay down the office in peace time military service and submitted an application dated 29/10/1982. In the interregnum he was screened by a Selection Board in December 1982 for promotion as Asst. Lt. Colonel and selected him. Having had reflections and got mitigated domestic problems, he submitted his application dated 27/05/1983 through proper channel withdrawing his letter 29/10/1982. But a day interluded i.e., 28/05/1983, the Army Headquarters communicated an order accepting his request for premature retirement and it was served on the appellant on 2/07/1983. On receipt of the letter dated 27/05/1983, the Army Headquarters suo motu kept in abeyance the operation of the letter dated 28/05/1983 accepting his request to voluntarily retire, and he was allowed to continue in uninterrupted service. His request withdrawing the application for premature retirement was rejected by order dated 19/10/1983, and was communicated resulting in his filing the writ petition. This Court suspended the operation of the order dated 28/05/1983 (accepting his request for premature retirement) and the appellant has been continuing in service. At final hearing the writ petition was dismissed and hence this appeal.

(2.) Mr. Chandrasekhara Rao, his learned counsel though raised several contentions before the learned single Judge, has pressed two contentions for out considerations, viz. (1) that the Defence Minister is responsible to pass orders. The Minister of State was authorised for the first time by the Defence Minister by Office order No. 51 dated 16/08/1984, to dispose of the files relating to premature retirement of the armed service. The order accepting his premature retirement was made by the State Minister on 28/05/1983 by which date he was not invested with authority to accept it. Therefore, the impugned order is devoid of jurisdiction and hence a nullity. The next contention is that before the appellant was relieved of his duty, he had already submitted his application dated 27/05/1983 i.e., before accepting his request for retirement by withdrawing his application and he has an unbridled right to do so. The respondents are bound to accept the same and should cancel the order dated 28/05/1983. The rejection order was served on 22/10/1983 till which date he was not relieved from the duty. The order accepting voluntary retirement becomes effective only from the date of relief under Regn. 103(d) of the Defence Service Regulations, 1962 (for short, "the Regulation"). Since the appellant was not relieved of his duties by the date on which he submitted his application i.e., 27/05/1983, withdrawing his request for premature retirement, the rejection thereof (i.e., 19/10/1983) is therefore per se illegal. He relied on Bachhittar Singh v. State of Punjab, A.I.R. (1963) S.C. 395; State of Punjab v. Amarsingh, A.I.R. (1966) S.C. 1313 and Oriental Fire & General Insurance Co. v. Kamal Kamini, A.I.R. (1973) Orissa 33. The above contentions were strenuously resisted by the respondents and was elaborated by their standing counsel, Sri Nagaraja Rao. It is contended that under the business rules the competent authority is the Minister concerned and in this case the Defence Minister authorised State Minister to dispose of the files relating to premature retirement. Even oral instructions by the Defence Minister under the business rules are sufficient. Therefore, the State Minister is fully competent to pass orders on the application for premature retirement. This Court cannot interfere with such an order in exercise of the power under Art. 226 of the Constitution. Though the appellant has unilateral right to withdraw his request for premature retirement before acceptance and the authorities are bound to accept the same, but that position stands altered into one of discretion after it was accepted. In this case, his application withdrawing the request for premature retirement was received after the acceptance of his request and hence the authorities are not bound to consider that request, yet, for valid reasons it was rejected. Therefore, the appellant does not have any valid jurisdiction to assail its correctness.

(3.) The diverse contentions claim adjudication of two important questions of law viz;