Seetharaman Reddy, J. - (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 November, 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: 'The premature retirement of the petitioner was approved by the competent authority based on his application dated 31.5.85. However, on receipt of the application dated 3.9.85 the same was considered on merits and rejected. Thereafter, the orders for pre-mature retirement were issued vide Army Headquarters letter No.38176/1796/MS7c dated 16.10.1985." The relevant enabling statutory provisions in respect of premature retirement may now be set out: Army Rules: "16-B Retirement of an officer at his own request:- (1) The retirement of an officer at his own request before he becomes liable to compulsory retirement under Rule 16-A shall, require the sanction of the Central Government. (2) An officer whose request to retire is granted may, before he is retired, apply to the Central Government for withdrawal of his request. The Central Government may, at his discretion grant such withdrawal of his application." Defence Service Regulations: "Regulation 103 : Retirement And Resignation- [(a) to(c) not necessary] 103(d) An officer will not be relieved of his duties until receipt of intimation that his application to retire or resign has been accepted. An officer whose application to retire or resign has been accepted may apply to the Central Government for his application to be cancelled. In the case of officers who have once proceeded on leave pending retirement, permission to withdraw such applications will only be granted in exceptional circumstances. The decision of the Central Government on all applications to retire will be final." Regulation 104 APPLICATIONS FOR RESIGNATION/RETIREMENT:- (a) Applications of officers of the Army to resign their commission or to retire from the service will be forwarded through the authorised channels to Army HQ. The applicant will give a prospective date from which it is desired that the retirement should take effect and will if possible, submit his application not less than four months before that date. In case of retirement, the applicant will also state where he wishes to draw his pension. An officer desirous of resigning or retiring on the expiry of leave to which he may be entitled under the rules in force, will submit his application to retire together with his application for leave to which he may be entitled, through the authorised channels to Army HQ (See also para 340)";