UNION OF INDIA Vs. SHARDA DEVI

JUDGEMENT

(1.) This is defendants appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') against the judgment of reversal dated 21.5.2003 passed by the Additional District Judge, Gurdaspur. The Additional District Judge has decreed the suit by holding that the plaintiff-respondent is entitled to a declaration that the order dated 4.9.1996 passed by the defendant-appellants accepting her resignation w.e.f. 2.1.1999 is illegal and relief has been granted to the plaintiff-respondent that she would be entitled for counting her service from 9.2.1979 to 4.9.1996 for the purposes of pension. Her earlier service rendered as Military Officer in Military Nursing Service w.e.f. 5.10.1968 to 16.2.1977 has also been allowed to be qualifying service for the purposes of pension.

(2.) Brief facts of the case are that Mrs. Sharda Devi plaintiff-respondent filed Civil Suit No. 274/97 on 7.4.1997 seeking declaration that the order dated 4.9.1996 passed by respondent No. 1 is illegal and unlawful. It was further claimed that the plaintiff-respondent was entitled to all service benefits including pay and allowances till the date of passing of the order dated 4.9.1996 along with compound interest at the rate of 18 per cent per annum. The plaintiff-respondent served as a Second Lieutenant-cum-Nursing Officer in Military Nursing Service w.e.f. 5.10.1968 to 16.2.1977. Thereafter she was appointed as Nursing Officer in Military Nursing Service (Local) w.e.f. 9.2.1979. She submitted an application stating that her telegraphic request dated 5.1.1989 may be considered as a notice required to be given under paragraph 5 of the Army Instructions of 1977. She also requested that earned leave credit may be adjusted in deciding her leave. It is appropriate to mention that before filing the instant suit, she filed another suit for damages against Shri K.P. Saxena, the then Colonel-cum-Commanding Officer of 172 Military Hospital alleging that he had become vindictive and started harassing her. She apprehended risk to her life and proceeded on 55 days leave upto 1.1.1989. She applied for extraordinary leave which was denied to her and the Commanding Officer - defendant-appellant 5 declined her leave and declared her as deserter. It was further alleged that she applied for pre-arrest bail from this Court which was granted. Her house was broken into by the defendant-appellants 4 and 5 i.e. Station Commander and Commanding Officer and they sealed all her household articles. A civil suit was also filed seeking declaration that the order of military authorities declaring her deserter was bad and the suit was decreed. Even the appeal has also been dismissed.

(3.) It is further appropriate to mention that the plaintiff-respondent filed another civil suit for mandatory injunction directing the defendant-appellants to accept her resignation and to clear her accounts. During the pendency of the suit, the resignation of the plaintiff-respondent was accepted vide order dated 4.9.1996 and the same was made effective w.e.f. 2.1.1989. As a consequence, the suit having been rendered infructuous was withdrawn by her. It is the aforementioned order which has been made subject-matter of challenge in Civil Suit No. 274 of 1997 from which the instant second appeal has arisen.