ABHIRAM VERMA Vs. UNION OF INDIA
HIGH COURT OF JAMMU AND KASHMIR
UNION OF INDIA
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(1.) PETITIONER was commissioned in the Army Medical Corps under Short Service Commission (here -in -after referred to as the Commission) and
appointed as Medical Officer on 27th of March92, for a period of five
years at the first instance. The age of the petitioner at the relevant
time was 33 years 10 months. Thereafter the petitioner was granted
permanent commission on 20th of Jan98, at the age of 39 years 2 months.
The petitioner was accorded the status of graded Specialist on 1st of
June 94 and then Classified Specialist in Medicine on 1st of June 99
respectively. The petitioner having joined the Commission at a later
stage has no chance of promotion to the first selection i.e. to the rank
of Colonel in the Army Medical Corps. Petitioner moved an application dt.
15th of April 2000, before the respondents seeking resignation from the army on the ground of non availability of promotional prospects and
ineligibility to acquire technical skill. The said application has been
rejected by respondent No.2 vide order impugned dated 4th of Sept. 2000.
It is this order which has been impugned in the present writ petition.
(2.) PETITIONER has made following substantive prayers in this petition: - -
"1. Quash and set aside the order Annexure C dated 4th of Sept 2000, being illegal, unfounded and against the provisions of law.
2. Command the respondents to grant resignation to the petitioner on the ground of supersession and ineligibility to acquire 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 is not maintainable as the petitioner has filed
a statutory complaint under Section 27 read with Defence Service
Regulation Para 364, which is pending for consideration before
respondents. On merit, it was pleaded that an officer seeking a career in
armed forces is aware of his career prospects at the time of his entry
into service and as such, it would not be in the interest of service to
allow the officer to seek resignation on this ground. It is stated that
the petitioners request for resignation was examined under para 2(f) of
the Policy letter MOD/D (Pens/Serv) letter No.8(5)/78D(MS)/D(Pens/Ser)
dated 20th of Jan 79, and the same has been rejected keeping in view the
manpower and operational requirement of the service.
I 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 case of J.K. Cotton Spinning &
Weaving Mills Co. Ltd. v. State of UP & Ors., (1990)4 SCC 27, wherein it
was held as under: - -
"When an employee resigns his office, he formally relinquishes or withdraws from his office. It implies that he has taken a mental decision to sever his relationship with his employer and thereby put an end to the contract of service. As pointed out earlier just as an employer can terminate the services of his employee under the contract, so also an employee can inform his employer that he does not desire to serve him any more. Albeit, the employee would have to give notice of his intention to snap the existing relationship to enable the employer to make alternative arrangements so that his work does not suffer. The period of notice will depend on the period prescribed by the terms of employment and if no such period is prescribed, a reasonable time must be given before the relationship is determined. If an employee is not permitted by the terms of his contract to determine the relationship of master and servant, such an employment may be branded as bonded labour. That is why in Central Inland Water Transport Corporation v. Brojo Nath Gangly, this court observed as under: SCC p.228 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 of his right to resign. A resignation by an employee would, however, normally require to be accepted by the employer in order to be effective."
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