MAJOR YOGESH Vs. UNION OF INDIA AND OTHERS

JUDGEMENT

(1.) This writ petition seeks the issue of a writ of Mandamus declaring the proceedings of the Military Secretary, Army Headquarters, Sainik Sachiv Shaka, New Delhi, the second respondent herein, dated 16.10.1985 as illegal and further restrain the respondents from taking any action in the matter of retiring the petitioner from service pursuant to the said proceedings. Major Yogesh, the petitioner herein, was appointed as an emergency commissioned officer in the Indian Army on 24.9.1963 and was granted permanent commission on 27.1.1968. In the year 1979, he was selected for the Defence Services Staff College, Wellington and after duly qualifying in the test, he was appointed in Nov., 1979, as and Brigadier Major. He was transferred in the year 1983 from 78 Medium Regiment to the Artillery Centre, Hyderabad. He could not get selection for the higher post, though he had put in good service in the Army.

(2.) While so working, the petitioner requested the Government of India, the 1st respondent herein, by his letter dated 31.5.1985 to allow him to retire prematurely with effect from 1.10.1985. By another letter dated 29.7.1985, he requested the 1st respondent to post - pone his date of premature retirement to 1.9.1985, as he was offered a coveted job in a private company, on which the authorities directed him on 5.8.1985 to send a formal application for post-phoning his date of retirement as sought for. Accordingly he submitted an application on 14.8.1985. Then, as per the averment in the affidavit, the petitioner re-considered his decision of premature retirement as he lost the opportunity of getting the job in the private company and so saying submitted an application dated 3.9.85 to the respondents requesting them to postpone his premature retirement to 1.7.86. Surprisingly, however, as further averred, the petitioner received a telegram dated 16.10.85 followed by a letter of the same date stating that his application dated 31.5.85 for premature retirement has been approved by the Government and he should be relieved of his duties as early as possible, but not later than 30 days from the date of the letter. The last date for relieving the petitioner from the said post will be 14.11.85. It is this order that is challenged.

(3.) The counter averments in the affidavit filed on behalf of the respondents inter alia are that the petitioner had submitted an application on 31.5.85 for premature retirement wherein he had not mentioned about the offer of a job by a private company. His application dated 29.7.85 was not received in army headquarters. However, a signal dated 21.7.85 from his unit for amending the date of retirement as 1.9.85 was received in army headquarters on 6.8.85. His application dated 14.8.85 for change in date of retirement as 1.9.85 was received through Headquarters Southern Command on 1.9.85. Yet another application dated 3.9.85 for changing the date of retirement as 1.7.86 was received in the Army Headquarters on 8.10.85 after the competent authority had approved the petitioner's request for premature retirement. The competent authority had approved the petitioner's request for premature retirement on 17.9.85. So the application dated 3.9.85 did not merit acceptance and orders were issued for his premature retirement based on the unconditional application given by him on 31.5.85. It is further averred that paras 103 and 104 of the Regulations for the Army do not provide that applicant will be permitted to retire from the date indicated by him and that date once given by the officer can be changed by him subsequently to suit his convenience . Army Rule 16(b) does not give any choice to applicant to specify a date for retirement. The petitioner has attempted to take undue advantage of the provisions of para 104(a) of Regulations for the Army which are only Regulatory in nature by first preponing the date of premature retirement. It is further averred in para 10 of the said counter asunder: