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Tarif Singh Shanti Saroop Vs. Union of India, Through the Secretary, Ministry of Defense, Government of India, New Delhi and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtDelhi High Court
Decided On
Case NumberCivil Writ Nos. 262, 393 and 704 of 1968
Judge
Reported inAIR1971Delhi233
ActsArmy Act, 1950 - Sections 10, 18 and 22; Army Rules - Rule 16
AppellantTarif Singh Shanti Saroop
RespondentUnion of India, Through the Secretary, Ministry of Defense, Government of India, New Delhi and ors.
Appellant Advocate B.R. Trikha, Adv
Respondent Advocate R.M. Mehta, Adv.
Excerpt:
.....of article 352 of the constitution. they also objected that they could not be released from the army service before the president of india had revoked the proclamation on emergency .it was as well averred that according to the canone of justice the selection board having once selected them for the grant of commission in the regular army they should not have been rejected later or by the selection board when they had proved their worth in the army for a period of four to five years and were highly recommended by the superior officers under whom they had worked. bal raj trikha, on behalf of tarif singh, as well urged that even if the petitioners could somehow be regarded to have been released from service under orders of the president of india still the orders were not valid as those..........released from service of the army on october 1, 1967. capital tarif singh was granted release from army service on november 1, 1967. through their writ petitions they claimed that their release from service of the army was in flagrant violation of the terms and conditions of their appointment. they also objected that they could not be released from the army service before the president of india had revoked the proclamation on emergency . it was as well averred that according to the canone of justice the selection board having once selected them for the grant of commission in the regular army they should not have been rejected later or by the selection board when they had proved their worth in the army for a period of four to five years and were highly recommended by the superior officers.....
Judgment:
ORDER

1. It will be convenient to dispose of three writ petitions by one judgment as the points involved there in are the same. Petition No. 262 was filed on February 29, 1968 by Tarif Singh. The other two petitions Nos. 393 and 704, are on behalf of Jitendra Bir Anand and Jagmohan Lal Sabharwal respectively and were filed on May 16, 1966 and August 2, 1968.

2. On October 26th, 1962, the President of India, on being satisfied that a grave emergency existed whereby the security of India was threatened by external aggression, made a declaration to that effect in exercise of the powers conferred by clause (1) of Article 352 of the Constitution. Admittedly the proclamation of emergency was not revoked till January 10, 1968.

3. An advertisement was published in the Tribune, a daily newspaper, on June 13, 1963 inviting applications fro grant of Emergency Commissions in the Regular Army. It was also mentioned in the advertisement that an officer granted an Emergency Commission may be considered at the appropriate time for a permanent Regular Commission in the Regular Army if found eligible and suitable in all respects.

4. The three petitioners named above applied for grant of Emergency Commissions. They were selected for training. Instructions were issued to them for undergoing training with the second emergency course commencing at the Indian Military Academy, Dehra Dun, on April 12, 1963. They reported for training and on the successful completion of the training course were granted under orders of the President of India Emergency Commissions as Second Lieutenants in the Regular Army, with effect from September 27th, 1963. From the rank of the Second Lieutenants they were promoted in due course as Lieutenants and then as acting Captains.

5. In reply to an application of Capital Jitendra Bir Anand for grant of permanent Regular Commission in the Army he was informed on September 15, 1966, by the Army Head Quarters, Adjutant General's Branch, that he had not been assessed suitable for grant of a permanent Commission by the Services Selection Board so he was likely to be released after April 1, 1967.

6. The Army Head Quarters Military Secretary's Branch, New Delhi on June 24, 1967 sent a Commission to the Head Quarters, Southern Command, regarding release of certain Emergency Commissioned Officers, with effect from October 1, 1967. Capital Jagmohan Lal Sabharwal was one of those officers. On the same subject another communication dated July 6/7 1967, was issued to the Headquarters of Southern Eastern-Western and Central Commands, regarding release of some more Emergency Commissioned Officers, including Capt. Tarif Singh, from November 1, 1967.

7. Capital Jitendra Bir Anand and Capital Jagmohan Lal Sabharwal were released from service of the Army on October 1, 1967. Capital Tarif Singh was granted release from Army service on November 1, 1967. Through their writ petitions they claimed that their release from service of the Army was in flagrant violation of the terms and conditions of their appointment. They also objected that they could not be released from the Army service before the President of India had revoked the proclamation on emergency . It was as well averred that according to the canone of justice the Selection Board having once selected them for the grant of Commission in the Regular Army they should not have been rejected later or by the Selection Board when they had proved their worth in the Army for a period of four to five years and were highly recommended by the superior officers under whom they had worked. It was stated that the Union of India probably in consultation with Military Secretary and the Adjutant General, Army Headquarters, issued instructions to the various Selection Boards to select only about 33 per cent officers for grant of regular commissions. But for these instructions, it was urged, all the emergency commissioned officers would have been declared fit for grant of permanent Regular Commissions.

8. The petitioners thus wanted the orders by which they were released from service of the Army to be quashed as according to them these orders were illegal. They further asked for directions being given to the respondent to take them back in the Army at the rank to which they were entitled according to their seniority of service and for paying them salary and allowance from the date of the release to the date on which they may be again posted back in the Army.

9. Under the Army Act, 1950 (hereinafter referred to as 'the Act') the President has the power to grant, to such person as he thinks fit a commission as an officer, or as a junior commissioned officer, or to appoint any persons as a warrant officer to the Regular Army (vide Section 10), Chapter Iv of the Act, in which are included Section 18 to 24. deals with conditions of service. Section 18 provides that every person subject to the Act shall hold office during the pleasure to the President. Section 19 of the Act is to the effect that subject to the provisions of the Act and the Rules and Regulations made there under, the Central Government may dismiss or remove the Act. Section 20, subject to the provisions contained in the Act and the rules and regulations made there under, gives certain powers of dismissal, removal or reduction to a lower grade or rank or the ranks to the Chief of the Army Staff and certain other officers. Section 22 provides that any person subject to the Act may be retired, released or discharged from the service by such authority and in such manner as may be prescribed. The provisions of Section 21, 23 and 24 are not relevant for purposes of disposal of these cases.

10. Rules under the Act can be made by the Central Government, as provided by Section 191, for the purpose of carrying into effect the provisions of the Act. Sub-section (2) of Section 191, inter alia, mentions that without prejudice to the generality of the power conferred by sub-section (1) the rules made may provide for the removal, the retirement, release or discharge from the service of persons subject to the Act.

11. The rules made by the Central Government under Section 191 of the Act are called the Army Rules, 1954. Rule 16 related to release from the service and provides that a person subject to the Act may be released from the service in accordance with the Release Regulations for the Army or in accordance with any other regulations, instructions or orders made in that behalf.

12. It was the common case of the parties that no regulations for release of Emergency Commissioned Officers from the Army had been made but it was stated that Army Instructions issued from time to time contained provisions for their release from the service.

13. Army Instructions NO. 9/S of November, 24, 1962, regarding grant of Emergency Commissions in the Regular Army also provided for termination of those commissions by the Government of India, Para 15 of the Instructions was as follows:

'15. Termination of commission.

(a) The commission of an officer may be terminated at any time by the Government of India -

(i) for misconduct or if service are found to be unsatisfactory; or

(ii) on account of medical unfitness, or

(iii) if his service are no longer required.

(b) An officer may on giving three months' notice be permitted to resign his commission on compassionate grounds of which the Government of India will be the sole Judge. An officer who is permitted to resign his commission on compassionate grounds will not be eligible for terminal gratuity.

(c) An officer granted this commission, is eligible and suitable in all respects, may be considered at the appropriate time for permanent regular commission in the Regular Army'.

14. Army Instructions No. 6/S dated April 29, 1965 provided for pension or terminal gratuity. Para 17 provides that these instructions will have effect as if issued with Army Instructions No. 9/S/62 with the exception of the provisions regarding ordinary family pension and ad hoc increase. Army Instructions No. 13/S dated August 8. 1963 by pertained to acceptance of employment by Army Officers who were granted pension, gratuity or any other benefit. Army Instructions No. 13/S dated September 18, 1965 provided that serving Emergency Commissioned officers granted Commission under A.I. 9/S/62 will be eligible for the grant of permanent commissions under the terms and conditions of service as given in those instructions. It required applications to be submitted and selection by screening to be made by the Service Selection Board. It was, however, made clear that no guarantee of a permanent commission was being given or implied even where the name of the officer was included in the Register for the grant of permanent commissions.

15. It was contended on behalf of the petitioners by their learned counsel that the word 'Emergency' was not to be found in the Act and as Section 10 merely used the expression 'a Commission', no distinction could be made between the Commissions grated to the petitioners and the Commissions which are commonly known as permanent Regular Commissions in Regular Army. It was then submitted that in any event as the Emergency Commissions granted to the Petitioners were according to the provisions of Army Instructions No. 9/S of 1962 to be for the duration of the emergency and for such period thereafter as the services of the officers concerned may have been required there could be no release from the Army Service before the revocation of the proclamation of emergency. The validity of the release orders was also questioned on the ground that the release of the petitioners from the service of the Army did not take place under orders of the President of India, Shri. Y.K. Sabharwal, who appeared for Jitendra Bir Anand and Jagmohan Lal Sabharwal, at first raised an additional point that placing any liability for service in the Reserve Forces for a particular period after the release from service of the Regular Army was unjustified. He, however, did not press that contention as admittedly there is no longer any such liability, Shri. Bal Raj Trikha, on behalf of Tarif Singh, as well urged that even if the petitioners could somehow be regarded to have been released from service under orders of the President of India still the orders were not valid as those were not passed in conformity with the provisions of Section 22 of the Act read with rule 16 and para 15 (a) (iii) of Army Instructions No. 9/S/62.

16. The use of the expression 'a Commission' in Section 10 of the Act does not mean that the Commission to be granted should be a permanent Regular Commission. Granting Emergency Commissions by the President was, thereforee, in no way contrary to the provisions of Section 10. The petitioners had voluntary applied for grant of Emergency Commissions which by their very nature had to be of a temporary character. The advertisement by which applications for Emergency Commissions were invited made it clear that the Commissions were not permanent and could at the most be for the duration of the emergency or for so long thereafter as their services may be required. Unless thereforee, an Emergency Commissioned Officer was granted a permanent Regular Commission at the appropriate time on his being found eligible and suitable in all respects he had no right thereto. Para 15 of the Army Instructions No. 9/S/62, as already reproduced, contained specific provisions for termination of Commission by the Government of India 'at any time' for misconduct or when the service was found to be unsatisfactory or an account of medical unfitness or if the services were no longer required.

17. My attention was also invited to the bonds which had to be filled upon the petitioners' selection as cadets. From the words used therein it was tried to be inferred that the intention was to grant them Regular Commissions and not only Emergency Commissions . Para 2 of the Bond contained the following recital:-

'2. Whereas the cadet has been selected by the Government on the terms hereafter appearing for the purpose of receiving initial training with a view to being commissioned as an officer in the Regular Army, provided he is considered by the Government to be suitable in all respects and if there is any vacancy.'

The use of the word 'commissioned' however, was in no way inconsistent with the grant of Emergency Commissions, more particularly when the petitioners had applied for emergency commissions and had been selected as cadets for receiving initial training with a view to their getting Emergency Commissions in the Regular Army. No advantage can, thereforee, be derived from the language of para 2 of the Bonds.

18. Good deal of stress was laid on the opening portion of Army Instructions No. 9/S/62 in support of the submission that the petitioners could not be released from the service of the Army before the revocation of the proclamation of emergency, Para 1 of the Instruction reads as follows:

'Emergency Commissions in the Regular Army will be granted to Civilian gentlemen, including temporary and permanent Central or State Government servants and serving personnel of the Regular and Territorial Army for the duration of the Emergency and for so long thereafter as their services may be required on the terms and conditions as stated below'

It was contended that as Emergency Commissions were to be granted to the persons selected 'for the duration of the Emergency and for so long thereafter as their services may be required', the release from service of the Army could not take place before the proclamation of emergency had been revoked. I am, however, unable to agree. The grant of Emergency Commissions was on the terms and conditions incorporated in Army Instructions No. 9/S/62. Para 15 give power to the Government of India to terminate the emergency commission of any officer 'at any time'. If the view of the learned counsel for the petitioners was to be accepted even the Emergency Commission of the Officer could not be terminated by the Government of India before the revocation of the proclamation of emergency on the ground of misconduct or when the service were found to be unsatisfactory. The power of termination of Emergency Commissions could, thereforee, be exercised at any time without regard to the fact whether the proclamation of emergency had been evoked or not. There was thus no guarantee that Emergency Commissions shall not be terminated before revoking the proclamation of emergency. Para 1 of A.I. 9/S/62, thereforee, meant nothing more than this that an Emergency Commission unless terminated earlier would for the duration of the emergency or for so long thereafter as the service of the Emergency Commissioned officer were required.

19. It follows that by virtue of Section 22 of the Act read with Rule 16 of the Army rules and Para 15 of the Army Instructions No. 9/S/62 Commission of Emergency commissioned officers could be terminated at any time by the Government of India, if the services of the officers were no longer required. There was no bar to this power being emergency had been revoked. Further as every person subject to the Act holds office during the pleasure of the President as provided by Section 18 of the Act, the President could also order release of any Emergency Commissioned Officer from the service of the Army at any time. Under Article 310 of the Constitution as well every person who is a member of the defense Service holds office during the please of the President. Section 18 of the Act embodies the rule enunciated in Article 310 of the Constitution so far as persons subject to the Act are concerned.

20. Shri. R.M. Mehta, learned counsel for the respondents, relied upon order of the President No. 463, dated 19th February, 1968, as published in the Gazette of India dated the 2nd March 1968 and Order NO. 581 dated February 27th 1968 published in the Gazettee of India dated the 16th March 1968. Relevant extracts from these orders were attached to the counter-affidavits as an annexure. According to these orders, which were authenticated by an Under Secretary to the Government, the president had been pleased to release Jagmohan Lal Sabharwal and Jitendra Bir Anand from Army service 'in terms of A.I. 9/S/62 Para 15 (a) (iii) with effect from October 1, 1967 and Tarif Singh with effect from November 1, 1967. These orders of the President having been duly authenticated cannot be called in question on the ground that these were not orders made by the President. The release of the petitioners from Army service will, thereforee, have to be regarded to have been made under orders of the President, though the orders were published in the Gazettee of India, after the release of the petitioners from service of the Army had already taken place. Even if the Commissions of the petitioners had been terminated by the Government of India on the ground that their services were no longer needed that too would not have been in any way illegal.

21. There is also no force in the contention that the petitioners having been selected by a Selection Board for Emergency Commissions could not after serving the Army for four or five years be rejected from permanent Regular Commissions by the Selection Board. The standards for granting Emergency Commissions not being identical the petitioners can have no grievance because they were not found fit by the Selection Board for grant of permanent Regular Commissions. The efficiency of the Army is a matter of vital importance for the country and slackening of standards can lead to disastrous results. Naturally, thereforee, proper care has to be taken that persons selected for grant of permanent Regular Commissions are eligible and suitable of all respects.

22. It may be true that in applying for Emergency Commissions the petitioners were actuated by patriotic feelings. When, however, their service were no longer needed and they were not found fit for grant of permanent Regular Commissions they had to be released from service of the Army. There has been no violation or contravention of the terms and conditions on which Emergency Commissions were granted to them. The orders of the President releasing them from service of the Army can be considered to have been made under Section 18 of the Act and reference therein to Para 15 (a) (iii) of A.I. 9/S/62 did not mean that the President was acting under Section 22 of the Act read with Rule 16 and A.I. 9/S/62. Instead of saying that the services of the officers concerned were no longer required the same intention was conveyed by making a reference to Para 15 (a) (iii) which relates to termination of Commission when services are no longer required.

23. The orders by which the petitioners were released from the service of the Army ere in no way illegal. They are not entitled to any relief. The petitions are, thereforee, dismissed with costs. The counsel fee in each case shall be assessed at Rs.100/-

24. Writ petition dismissed.


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