MOHAMMAD RAFIQ, J. - (1.) UNION of India has come up in appeal against the judgment of the Single Bench of this Court dated July 2 2007 whereby and whereunder, the writ petition filed by the respondent -Group Capt. M.S. Bhatnagar was dismissed wherein he had challenged the orders dated 19/5/1998 and 21/5/1998 asking him to proceed on premature retirement by 15/6/1998. These two orders were passed on the basis of application submitted by the respondent to the appellants on 26/8/1997. Respondent was commissioned in the Army Medical Corps on 8/9/1963 and was seconded to Indian Air Force on 23/3/1988. He was posted as Commanding Officer in the Air Force Hospital, Kanpur Cant on 23/1/1995. When superseded by his juniors, the respondent in such state of mind requested the authorities to release him on premature retirement w.e.f. 1/4/1998. In fact, prior to making that application, he had filed writ petition before the Allahabad High Court raising the grievance that inspite of his possessing meritorious record throughout, he was over looked for promotion to the post of Brigadier in the Army Medical Corps, which was equivalent to Air Commander in Air Force, consecutively for the years 1994, 1995 and 1996. Many of his juniors were however in the meantime promoted. The said writ petition was disposed off by the Allahabad High Court vide judgment dated 16/4/1998 with a direction to the authorities to consider and decide his representation within two months. Such representation was dismissed by the authorities which appears to have prompted the respondent to request for his premature retirement. The appellants however did not accede to his request for premature retirement from 1/4/1998. They instead permitted him to proceed on premature retirement w.e.f. 15/6/1998. An order to this effect was communicated to him by the Director General, Medical Services (Air) vide communication dated 19/5/1998 followed by the order of the Army Headquarters dated 21/5/1998 to the same effect. But the respondent in the meantime had a change of mind and submitted an application to the Air Officer Commanding -in - Chief, Headquarters Central Air Command, Bamrauli, Allahabad on 28/5/1998 that the orders dated 19/5/1998 and 21/5/1998 be cancelled and that he may be permitted to continue in service till the age of superannuation so as to enable him to get his NE benefits in time upto 31/8/1998. In the meantime, Government of India, Ministry of Defence vide Circular dated 13/5/1998 announced a new policy on the retirement age of the Air Force Officers. Writ petitioner -respondent thereafter immediately again requested the above referred to authorities vide application dated 9/6/1998 that the order dated 21/5/1998 permitting him to proceed on premature retirement w.e.f. 15/6/1998 be cancelled and that he may be given a chance to serve as per the new policy of the government.
(2.) THE writ petition has been allowed by the learned Single Judge by the impugned -order quashing thereby the order dated 19/5/1998 and 21/5/1998 with a further direction that the respondent shall be deemed to have continued in service and retired thereafter on 31/5/2000 when he superannuated as per the new policy of the government. Hence, this special appeal. We have heard Shri Ramgopal Choudhary, learned Counsel for the appellants and Shri A.K. Bhandari, learned Senior Advocate assisted by Shri Rizwan Ahmed for the respondent writ petitioner -respondent.
(3.) SHRI Ramgopal Choudhary, learned Counsel for the appellants argued that writ petitioner -respondent after completing the qualifying period of service on his own submitted an application seeking premature retirement on 26/8/1997. Once the application for premature retirement was accepted and requisite order passed, option exercised by the respondent for premature retirement became absolute. Respondent then after the lapse of seven months had no legal right to request for cancellation of the order of his premature retirement. It was argued that the fact that date with effect from which the respondent was permitted to proceed on premature retirement was yet to reach, would not make any difference because the option exercised by the respondent had already been accepted by the appellants and it was not obligatory for the appellants thereafter to accept the request of the respondent revoking such an option and permit him to continue in service. Learned Counsel argued that the learned Single Judge has failed to appreciate that the respondent in his application dated 28/5/1998 had requested for permitting him to continue in service only for 21/2 months till 31/8/1998, the date on which he would superannuate as per the extant policy. He could not thereafter avail of the benefits of the changed policy enhancing the date of retirement. The learned Counsel argued that the policy contained in the circular dated 13/5/1998 itself made an exception for such of the employees who were proceeding on voluntary retirement. He in this connection referred to the circular dated 13/5/1998 which inter -alia provides that the President has been pleased to defer the retirement of all air force personnel who are to retire on 31/5/1998 and thereafter till final orders are issued except those proceeding on voluntary retirement. This aspect of the matter has not at all been considered by the learned Single Judge. Learned Counsel produced for perusal of the court copy of the order dated 11/6/1998 whereby prayer of the petitioner for cancellation of his order of premature retirement was considered and not agreed to.;