SWP/1573/2001 of ABHIRAM VERMA Vs UNION OF INDIA AND ORS on 11 October 2006

JUDGEMENT

1. Petitioner was commissioned in the Army Medical Corps under Short Service|Commission (here-in-after referred to as the Commission) and appointed as MedicalOfficer on 27[th]of March’92, tor a period of five years at the first instance. The age of thepetitioner at the relevant time was 33 years 10 months. Thereafter the petitioner was|granted permanent commission on 20[th]of Jan’98, at the age of 39 years 2 months. The)petitioner was accorded the status of graded Specialist on 1[St]ot June’94 and thenClassified Specialist in Medicine on |[St]of June’99 respectively. The petitioner having|joined the Commission at a later stage has no chance of promotion to the first selection 1.e.to the rank of Colonel in the Army Medical Corps. Petitioner moved an application dt.15[th]of April’2000, before the respondents seeking resignation from the army on theeround of non availability of promotional prospects and ineligibility to acquire technicalSkill. The said application has been rejected by respondent No.2 vide order impugneddated 4[th]of Sept’2000. It 1s this order which has been impugned in the present writ)petition.

2 |Petitioner has made following substantive prayers 1n this petition:- “T.Quash and set aside the order Annexure “CC” dated4[th]of Sept 2000, being illegal, unfounded and against theprovisions oflaw.

2. Command the respondents to grant resignation to thepetitioner on the ground of supersession and ineligibility toacquire technical skill.

3. Declare the order Annexure “B” as null and void and|against the rules provided under law.”

3. On notice, respondents have taken a preliminary objection that the present writ|petition 1s not maintainable as the petitioner has filed a statutory complaint under Section|

27 read with Defence Service Regulation Para 364, which is pending for considerationbefore respondents. On merit, 1t was pleaded that an officer seeking a career in armed.forces 18 aware of his career prospects at the time of his entry into service and as such, itwould not be in the interest of service to allow the officer to seek resignation on thiseround. It is stated that the petitioner’s request for resignation was examined under para2(f) of the Policy letter MOD/D (Pens/Serv) letter No.8(5)/78D(MS)/D(Pens/Ser) dated&,[th]of Jan’79, and the same has been rejected keeping in view the manpower andoperational requirement of the service. |

4 |] have heard learned counsel for the parties and perused the record. The concept|of voluntary retirement by resignation has been considered by the Apex Court in the caseof J.K. Cotton Spinning & Weaving Mills Co. Ltd. v. State of UP and ors , (1990)4 SCC2/7, wherein it was held as under:-

“When an employee resigns his office, heformally relinquishes or withdrawsfromhis office. It implies that he has taken a mental decision to sever his relationship with hisemployer and thereby put an end to the contract ofservice. As pointed out earlierjust asan employer can terminate the services of his employee under the contract, so also anemployee can inform his employer that he does not desire to serve him any more. Albeit,the employee would have to give notice ofhis intention to snap the existing relationship toenable the employer to make alternative arrangements so that his work does not suffer.The period ofnotice will depend on the period prescribed by the terms ofemployment andifno such period is prescribed, a reasonable time must be given before the relationship isdetermined. If an employee is not permitted by the terms of his contract to determine therelationship of master and servant, such an employment may be branded as bondedlabour. That is why in Central Inland Water Transport Corporaion v. Brojo NaTH Ganglythis court observed as under: SCCp.226 para 111)

“By entering into a contract of employment a person does not sign a bond of|slavery and a permanent employee cannot be deprived ofhis right to resign. A resignationby an employee would, however, normally require to be accepted by the employer in orderto be effective.”

5Respondents while rejecting the request of the petitioner have passed the followingorder:- Directorate General of Medical Services(Army)Adjutant General’s Branchy*L’ Block, Army HeadquartersNew Delhi-110001

66797/PR&R/A V/2000/DGMS-[A153 General HospitalC/o 56 APO|

04 Sept 2000_

#RESIGNATION ; MAJOR A VERMA (MR7145)

1. Reference your letter No.117/2/M-1 dated 28 Apr 2000 addressed toADGAFMS(MR).

2 Application dated 15 Apr 2000, seeking resignation from service in respect ofMajor A Verma (MR-7145) Cl Spl (Med) &RPO of HAMRC C/o 153 GH hasbeen considered and rejected by the competent authority.

3. The concerned officer may be informed accordingly.

Sd/-

(CL Khaitan)CSO.DDMS-]1AFor DGMS(Army).......

6. Thereafter, as noticed above, the petitioner filed a statutory complaint before the|Central Government, which complaint stands also rejected vide order dt. 14[th]oft.March’02. The said order passed by the Under Secretary to the Government of India 1s also being reproduced below:- eee No.15(10)/2002/D( Med)Government of IndiaMinistry of DefenceNew Delhi, the 14[th]March, 2002.

Order

Central Government, after considering the Statutory Complaint dated 24.03.2001 submitted by Maj Abhiram Verma (MR-7145) against rejection of his application seekingresignation from service, hereby reject the same as rejection of the officer’s applicationfor.resignationfrom.service,ordered|bytheDGMS(Army)vide.letterNo.66797/PR&R/AV/2000/DGMS-1A dated 04 September, 2000, 1s in order and in|CONSONANCEwiththecriteria.for.acceptanceot|requestfor.prematureretirement/resignation of Defence Service officers, as laid down by the Government ofIndia, Ministry of Defence. There is no injustice done to the officer and the complaint isdevoid of substance and merits rejection.

By order and on behalf of President of India Under Secretary to the Government of India.....

7The Directorate General of Medical Services (Army) while considering the request of the petitioner has not given any reason whatsoever for rejection and same is the casewith the order passed by the Central Government noticed above. While rejecting the claimof the petitioner the said authorities should have passed a speaking order by givingreaSons.

Issues

8S.A Division Bench of Delhi High Court in the case of Major Rahul Shukla v. Union|of India and ors, Civil Writ No. 770 of 1995 decided on 9[th]of Aug’95, while considering a |similar question of law whether the request for resignation from service can be rejected onthe ground of shortage of Medicine Specialists in the army has observed as under:- “Assuming that the right of an army personnel to resign from his commission in army may not be so wide and absolute as it may be in civil services, yet the authorities inthe army are bound tofollow the regulations ofthe army and they have to play within thefour corners laid down thereby subject to provision of law. A reading of the severalprovisions of that Section of the Army Manual which deals with the removal, resignation and retirement of army personnel, specially the provisions which we have quotedhereinabove, in our opinion, leads to a few inferences. The applications for voluntaryretirement or resignation though dealt with on similar footing do not in fact deserve so.While an application seeking voluntary retirement is fettered by several riders anddiscretion lies with competent authority to accept or not to accept the prayer, a prayerforresignation has to be dealt with on different footing as the discretionary power vested inthe authorities taking decision on application for resignation is limited andcircumscribed.

An application for resignation may be rejected it if is not based on adequate andjustifiable reasons. The over-riding consideration is whether the officer’s continuance in|service for a specific period is necessary to meet exigencies in a service and alternativearrangements cannot be made. Even in such a case the application for resignation cannotbe reject. It can only be held in abeyance.” |

QIn the case in hand, respondents have not given any cogent and convincing reasons|for rejecting the application of the petitioner for resignation. An application forresignation cannot be rejected when it is based on adequate and justifiable reasons. It canbe kept in abeyance till an alternate arrangement 1s made. In the instant case, the petitionermoved the application for resignation on 15[th]of April, 2000, which was rejected on 4[th]oT|Sept’2000. Thereafter the statutory complaint was filed by the petitioner on 24[th]of|March’01, the same was decided on 1|[th]of March’02. During this period, the respondentsshould have made an alternate arrangement 1f the services of the petitioner were required. |The plea taken by respondents that the resignation 1s not being accepted on the ground thatthere is shortage of medical officers is belied by their own circular dated 11[th]of.

July’2000, placed on record as Annexure A.1 to the rejoinder filed by the petitioner. Inpara 3 of the said circular it has been mentioned as under:- “3. It is intimated that the number of specialist officers is far in excess of|authorization ofspecialist pool resulting in the back log ofapprox 4-5 years. ”’

10. From the above said circular, it 1s crystal clear that the Specialist Officers 1n pool|are in excess with them. Therefore, the respondents have rejected the resignation of thepetitioner without considering their own circular, referred to above.

11. For the reasons mentioned above, this petition is allowed. Orders impugned dated|/[th]of Sept’2000, passed by respondent No.2 and 14[th]of March’02, passed by the Under|Secretary to the Government of India, rejecting the request of the petitioner for resignation are quashed. Respondents are directed to consider the case of the petitioner for resignationafresh, with sympathy and compassion and pass an order within a period of three months|from the date of receipt of a copy of this order.

No order as to cost.