1. This petition is filed by a temporary Commissioned Officer to quash the Order of the Officer Commanding, Military Hospital, Madras dated 20-3-1967 in consequence of an order of the Ministry of Defence issued by the Director General, Armed Forces, Military Service dated 27-2-1967 terminating the services of the petitioner as a Commissioned Officer.
2. The petitioner was enrolled in the Army Medical Corps on 8-12-1953 as a Sepoy Nursing Assistant. After about 10 years of service, he was promoted in 1963 as Lance Naik; and in 1964, as Naik. The petitioner appeared before the Service Selection Board at Kolhapur and before the Medical Board at Delhi and was selected for grant of Permanent Regular Commission in the Army Medical Corps by the Director General, Armed Forces Medical Services by his order dated 22-4-1965. The petitioner reported himself for duty on 2-5-1965. The Petitioner's Commission was gazetted in the Gazette of India on 18-2-1967. Nine days after the Commission was granted, the President of India terminated the petitioner's Commission on 27-2-1967. The termination of the Commission is stated to be under Paragraph 12 of the Army Instructions 231. The petitioner filed a review petition to the Director General, Armed Forces Medical Service on 7-3-1967 under Section 27 of the Army Act, 1950, and as the petitioner did not receive any immediate redress on his application for review, he submitted a petition on 9-3-1967 to the President of India. The petition to the President of India was rejected on 21-9-1967 and hence this Writ Petition,
3. In this petition, it is unnecessary to go into the competency or otherwise, of the petitioner to continue as a Commissioned Officer, for, the petitioner challenged the order terminating his service as not in accordance with law. Shortly put, the contention of the learned counsel for the petitioner is that he being a Commissioned Officer, is governed by the Army Act and any dismissal and the termination of his service can only be under Section 19 of the Act, i. e. subject to the provisions of the Army Act and the Rules and Regulations made thereunder. On behalf of the Central Government, it is submitted that the petitioner was appointed as a Commissioned Officer under the Army Instructions and as he was only a temporary Commissioned Officer, he was governed by Army Instructions dated 20th October, 1962, paragraph 12, which provides that if an officer, during the probationary period, is reported as unsuitable to retain his Commission, it will be terminated at any time during or after the probationary period. In order to appreciate the contention of the learned counsel, it is necessary to refer to the relevant provisions of the Act, the Rules and the Army Instructions.
4. The facts are not in dispute. The petitioner was appointed as a Commissioned Officer by the President on 18-2-1967 and was a temporary Commissioned Officer, The Army Act, 1950, is applicable to the persons mentioned in Section 2 of the Act. Section 2(1)(a) states that Officers, Junior Commissioned Officers and Warrant Officers of the Regular Army are persons subject to the Act. An 'Officer' is defined under Section 3(xviii) as meaning 'a person Commissioned, Gazetted or in pay as an officer in the Regular Army' and includes persons enumerated in Clauses (a) to (f) in me definition. Section 10 provides that the President is the authority to grant a Commission to an Officer. It cannot be disputed that the petitioner is an Officer within the definition as he is a person Commissioned and Gazetted as an Officer in the Regular Army. Section 18 of the Act provides that every person subject to the Army Act, shall hold office during the pleasure of the President. Section 19 specifies that subject to the provisions of the Act and Rules and Regulations made thereunder, the Central Government may dismiss, or remove from the service, any person subject to this Act. Section 20 prescribes a procedure by which a person could be dismissed, removed or reduced in rank. The Chief of the Army Staff, may dismiss or remove from service any person other than an Officer. Section 191 enables the Central Government to make rules for the removal, retirement, release or discharge from service o persons subject to this Act. For persons who are subject to this Act, the termination of service will be according to the provisions of the Army Act and the Rules and Regulations framed thereunder. The Act does not specifically provide for the dismissal or removal or reduction of Officers and, therefore such dismissal or removal can only be by the Rules framed or Regulations made under the Act. The rule-making power is under Section 191(1)(a).
5. Rule 15 of the Army Rules, 1954, prescribes the procedure for termination of service by the Central Government on grounds other than misconduct. The rule provides :
'(1) When the Commander-in-Chief is satisfied that an officer is unfit to be retained in the service due to inefficiency, or physical disability, the officer-
(a) shall be so informed,
(b) shall be furnished with the particulars of all matters adverse to him, and
(c) shall be called upon to urge any reasons he may wish to put forward in favour of his retention in the service.
(2) In the event of the explanation being considered by the Commander-in-Chief unsatisfactory, the matter shall be submitted to the Central Government for orders together with the Officer's explanation and the recommendation of the Commander-in-Chief as to whether the Officer should be-
(a) called upon to retire; or
(b) called upon to resign,
(3) The Central Government after considering the reports, the explanations, if any, of the Officer and the recommendation of the Commander-in-Chief, may call upon the Officer to retire or resign, and on his refusing to do so, when called upon, may take action to have him gazetted out of the service on pension or gratuity, if any, admissible to him.'
Rule 15, thus contemplates the Officer being informed by the Commander-in-Chief (now the Chief of the Army Staff) along with the particulars of all matters adverse to him, viz., to afford an opportunity to the Officer to urge the reasons in favour of his retention in service. After considering the explanation, the Chief of the Army Staff is required to submit a report to the Central Government and the Central Government after considering all the materials before them should take a decision. It is not in dispute in this case that this procedure was not adopted.
6. The plea of the Central Government is that the petitioner is not an officer contemplated under the Army Act, 1950. In any event it was submitted that the privilege available under the Army Act is only to the permanent Commissioned Officers and not to temporary Commissioned Officers. The plea on behalf of the Central Government is that the petitioner was appointed under Army Instructions and was liable to be removed under paragraph 12 of Army Instructions No. 231.
7. A reading of the Sections cited makes it clear that a temporary Commissioned Officer comes within the definition of Section 3(xviii) of the Act. The Act does not maintain any distinction between a permanent Officer and a temporary Officer. It would have been open to the Central Government to have framed rules under Section 19 providing for the mode of dismissal or removal of a temporary Commissioned Officer. It has also been admitted that no regulations have been framed for dismissal or removal of a temporary Commissioned Officer. The contention of the learned counsel for the Central Government is that the Act is not applicable to a temporary Commissioned officer. This contention cannot be accepted for it will lead to very dangerous results. On a plain reading of Section 3(xviii), all Officers who have been Commissioned, whether temporary or permanent, will be subject to the provisions of this Act. If the construction sought to be placed by the learned counsel for the Central Government is accepted, it would mean that temporary Commissioned Officers would not be governed by the Army Act and would not be subject to the discipline under the Army Act. This situation was considered by a Bench of this Court in Chatterjee v. Sub-Area Commander, Headquarters, Madras, : AIR1951Mad777 . The Court was dealing with the case of a Short Service Commissioned Officer. The Court held that a Short Service Commissioned Officer as soon as he takes up the Commission will become subject to the provisions of the Army Act by virtue of Section 2(2) and he will remain so subject until he is duly discharged. Repelling the contention that the Officer in that case occupied the position of a Reserve Officer ana not subject to any Rules and Regulations, the Court observed:
'Any other decision will result in a piquant situation; for example, if a temporary Commissioned Officer, the moment the term of his service expires, runs away with a equipment that is given to him, according to the petitioner, he cannot be subject to the Military law and discipline and cannot be arrested and produced before a Court Martial but the Military authorities should avail themselves of the ordinary remedies before the criminal Courts of the land. We need only refer to the situation so created to show the untenability of the contention.' These observations are applicable to the case of a temporary Commissioned Officer. He cannot say he is not subject to the Army discipline. Therefore, the contention that a temporary Commissioned Officer is not a person subject to the Act will have to be negatived. If a temporary Commissioned Officer is subject to the provisions of the Army Act, he can only be dismissed or removed under the provisions of the Act, the Rules or Regulations. As already pointed out, the Act does not provide for the procedure for such removal. The procedure provided under Rule 15 which relates to the dismissal and removal had not been followed. It is also admitted that there are no Regulations regarding the procedure for dismissal or removal of a temporary Commissioned Officer. The Central Government only relies on paragraph 12 of the Army Instructions. Under Section 19 of the Army Act, the procedure to be followed is according to the provisions of the Act, the Rules and the Regulations, under the Act. Therefore the petitioner cannot be removed by following Army Instructions. Army Instructions are in the nature of administrative directions and they cannot have the effect of modifying the statutory right of the petitioner. The Central Government, if they wanted to treat the temporary Commissioned Officers on a different footing, ought to have framed appropriate Rules or Regulations. That has not been done.
8. Mr. Govindaraj, the learned counsel for the petitioner, submitted that the Army Instructions paragraph 12 only provided that the Commission of a probationary Officer can be terminated at any time during and after the probation period, but it had not prescribed a procedure and therefore the procedure under the Act and the Rules should be followed. On behalf of the Central Government it was submitted that under the Regulations, the Commission of an Officer during the probationary period could be terminated without observing any formalities.
I do not think it is necessary to go into this question as I am of the view that the petitioner cannot be removed by following the Army Instructions. It is contrary to the rights secured to the petitioner under the Army Act.
9. In the result the petition is allowed and the impugned order set aside. I do not express any opinion about the competency or otherwise of the Officer to continue as a Commissioned Officer. The Defence Department will be at liberty to commence fresh proceedings if they so desire. The petition is allowed with costs. Counsel's fee Rs. 250.