Subodh Khare

IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 270 OF 2002

Surg CDR Subodh C. Khare 173 A NOFRAI DABOLIM VASCO DA GAMA, INHS, JEEVANTI

... Petitioner.

versus

1.

Union of India through the Secretary, Ministry of Defence, New Delhi.

2.

Ministry of Defence, Government of India, through its Under Secretary, New Delhi.

3.

Flag Officer Commanding Goa Naval Area, Vasco Da Gama, Goa.

... Respondents.

Mr. A. N. S. Nadkarni, Advocate General with Miss Shweta Sabnis, Advocate for the Petitioner. Mr. V. P. Thali, Senior Central Government Standing Counsel for the Respondents.

CORAM: P. V. KAKADE & P. V. HARDAS, JJ. DATED: 29TH OCTOBER, 2002. ORAL JUDGMENT(PER P. V. HARDAS, J.) JUDGMENT

In challenged

the present Petition, the Petitioner the

impugned Order dated 12th June,

has 2002,

-

refusing

2

-

to consider his request for premature release

from service.

2.

The facts in brief necessary for the decision

of this Petition are set out hereunder:-

The having and

Petitioner

is a Doctor

by

profession,

graduated from the Armed Forces Medical College

was

commissioned

in

From

the

Indian

Navy

on

25th

20th December,

1991

to

10th

December,

1987.

December,

1993, the Petitioner successfully

completed

an advanced course in Radio Diagnosis from Armed Forces Medical 7th a

October, 1992. Doctor.

wife of

College, Pune.

The Petitioner was married

The wife of the Petitioner is also

In November, 1994, the Petitioner and

were blessed with a daughter. the

1997,

prematurely.

newly

did

not

Petitioner

was

diagnosed

1997

The

was

travails

16th

as

of

the

1997,

the

and

was

Tuberculosis

From

till August, 1997, the Petitioner It

wife

delivered

end here as in March, of

his

diagnosed

for a period of three months.

Vishakapatnam. the

born son

dermatitis.

Petitioner

hospitalised

on

the wife of the Petitioner

The

Atopic/Seborrhoic

1987,

In 1996, the

Petitioner underwent an abortion and

February,

June,

on

21st

was

at

is stated in the Petition that

in

Petitioner’s father had undergone

Coronary

-

Angiography Coronary father

Pune.

Angiography thereafter

abdomen

He

-

had

undergone

in 1997 also.

started

The

suffering

a

similar

Petitioner’s

from

recurring

pain and had undergone several tests including

endoscopy the

in

3

etc..

In the backdrop of all these

facts,

Petitioner in May, 2000, submitted his resignation

on extremely compassionate grounds.

On 4th July, 2002,

the

by

Petitioner

Commanding,

was

interviewed

Flag

Goa Area and the Flag Officer

Officer

Commanding,

Goa

Area by his letter dated 10th July, 2000, approved

the

Petitioner’s

services

and

Petitioner August, Mumbai

request

held

that

for the

resigning grounds

were correct and genuine.

from

cited

therefore, submitted

on

the 25th

an

Petitioner’s

the

However, on 14th

2000, the Headquarters Western Naval rejected

by

the

Command,

application

September, 2000,

the

application for premature

and,

Petitioner

release

from

service on extremely compassionate grounds.

3.

In

2000,

application

dated

25th

September,

the Petitioner in ground 2 has pointed out

during case

the

the pregnancy of his wife she was diagnosed of placenta previa.

granted

annual

leave,

as

Since the Petitioner was not this led

to

relations

between

wife

delivered the child on 16th

had

that

souring

the Petitioner and his

of

the

wife.

His

February,

1997

-

prematurely. infection,

Since,

4

the son was suffering from

skin

he was required frequent consultation

with

Pedetrician/Dermatologist. that

-

In ground 5, it is

stated

two months of intense mental tension and physical

exertion

manifested

Petitioner

was

Tuberculosis. where

on

his personal health

diagnosed

to

have

Pleura

and

the

Pulmonary

He was then transferred to Vishakapatnam

despite of having eleven months seniority he was

denied

Naval base being posted on deputation on

Guardship.

Coast

The Petitioner’s wife refused to join

him

at Vishakapatnam and the Petitioner had to take a house on

lease

in

civil locality

in

Vishakapatnam.

The

Petitioner’s wife ultimately joined him in 1998 after a lot

of

persuasion and convincing.

In ground 10,

Petitioner has highlighted his plight.

His marriage is

tethering and he is going for a break down. has

begun

to

tell on the

the

Petitioner’s

The stress health.

In

ground 11, it is stated that the Petitioner’s father is an two

old case of heart disease who has already undergone Coronary

mother

of

in 1987

and

the Petitioner is suffering from

Heart Disease. Petitioner

Angiographies

1997.

The

Ischaemic

In the backdrop of all these facts, the

had submitted his application for premature

release which is Exh.’G’ to the Petition.

-

4.

5

-

Part II of the said application for premature

release

contains

Officer

that

a

certificate from

the

Commanding

the grounds urged for premature

release

have been verified as genuine and correct.

5.

By

letter

Headquarters

Goa

dated Naval

Petitioner’s application.

27th

October,

Area

turned

2000,

the

down

the

The Petitioner by his letter

dated 15th March, 2002, requested for an interview with the

Flag

Command,

Officer

Commanding-in-Chief

Mumbai

and

Services(Navy). letter

dated

His 16th

Director

Western

General

Medical

request was turned down April, 2001.

Naval

Left with

by no

the other

alternative, the Petitioner filed a statutory complaint on

18th May, 2001.

Petitioner

was

By letter dated 6th May, 2002, the

informed that his

representation

had

been referred to the Ministry of Defence and a decision would

be

intimated to him.

Petitioner been

was

rejected.

Petition rejection

as:

service

speciality Services.

the

intimated that his representation

had

Order impugned

in

the

present

dated 12th June, 2002, states the reason

considered the

2002,

The

On 24th June,

(1)

The

grounds

advanced

are

for not

adequate for seeking premature release from and of

(2)

There

Radiology

in

is

also

Armed

shortage

Force

of

Medical

-

6.

6

-

The Respondents in their Affidavit state that

there

is

that

a shortage of Radiologist in Navy

and

the grounds were routine in nature did not

also merit

release.

The Petitioner in his Affidavit has

pointed

out

certain

granted

that

premature

other personnel have

been

release and the Petitioner who was similarly

circumstanced

has not been granted any response.

The

Affidavit

on behalf of the Respondents states that one

Lt.

P.

Col.

ground

Joshi was given premature release on the

of illness of parents and property dispute

and

in respect of the others, it is stated that the reasons were

altogether different.

the

learned

that

there

On a query from the Court,

Counsel for the Respondents has was

no shortage of Radiologist

admitted when

the

application of the Petitioner for premature release was made.

7.

The relevant Rule 5 reads as under:"5. Compassionate grounds. Applications are to contain details and attending circumstances and must be supported by documentary proof. Domestic problems relating to inheritance of property, need to look after ailing parents, family business, serious illness of wife requiring officer’s presence at home, possibility of break up of conjugal life if the officer continues in service etc. will be treated

-

7

-

as compassionate grounds depending on the circumstances of each case. The facts represented by the officer are to be verified by his Commanding Officer/Administrative Authorities to ensure that the grounds are incontrovertible. In all compassionate cases documentary evidences are to be produced and are to be verified by the superior authorities before the cases are recommended to Naval Headquaters". 8.

A

amongst look

perusal of the above Rule would show

the

various grounds, the ground for

that

need

to

after ailing parents and possibility of break

up

of

conjugal life are treated as compassionate grounds.

We

may

again

application

repeat that in response to

dated

10th

July,

2000,

Officer

had

release

had been genuine and correct.

the

rejecting in

the

Order,

need

not

assign

earlier

Commanding

of

premature

It is true that

any

reason

while

the application for premature release. present case, it is seen that in the

it

is

stated that the grounds

Petitioner are not considered adequate. according grounds

the

certified that the grounds

authorities

an

to

urged

by

the Petitioner.

impugned by

the

This reasoning

us, is not justified on perusal

urged

But

The need

of to

and ailing parents and the possibility

the look

after

aged

break

down of marriage are recognised as compassionate

grounds for seeking premature release.

of

The adequacy or

-

inadequacy

of

the

8

-

ground is

wholly

turned down on the

immaterial.

request

can

be

ground

that

reasons

are

not genuine and are found to be false

A the on

examination but if, the grounds are so found as genuine grounds for stating

seeking premature release, the application

those

inadquate. Joshi

grounds

cannot

be

turned

down

Also as stated by us earlier, one Lt.Col.P.

was allowed to prematurely retire on grounds

ailment

as

and

Respondents

property dispute. in

This is stated by

their Affidavit at para 38.

If

of the

these

grounds are adequate in respect of one Officer, how can they

be

Officer? the

treated

are

to

to

been

be verified

ensure

incontrovertible. has

of

another

In fact, Rule 5, quoted above mandates

grounds

Officer

as inadquate in respect

that

by the

the

that

Commanding

grounds

are

In the case of the Petitioner, this

done so.

The other ground for turning

down

the request of the Petitioner is that there is shortage of

Radiologist.

initially down. of has

the

This was not a ground available request

of the Petitioner

This is a subsequent development.

was

when turned

The rejection

the Petitioner’s application for premature

release

to be tested on the bonafides of the reasons which

were

available

application. turning

This

when

the

cannot

Petitioner be

used as

a

down the request of the Petitioner.

made

his

lever

for

In

fact,

-

in

-

the Affidavit which has been filed on behalf of the

Respondents para

2

dated 28th October, 2002, it is stated

that

requirement,

"when

Armed

retire/resign. of

9

Radiologists

there

forces

is let

no

in

scarcity/service

persons

prematurely

I say that presently there is scarcity in

the

armed forces

and

when

the

shortage of skilled and professionally trained manpower in

his speciality will be over, the Petitioner’s

for

case

premature release/retirement will be considered at

appropriate stages". stated

"I

say

Petitioner fresh

In para 3 of the Affidavit, it is

that the Respondents

sympathetic

consideration

application for premature

will

allow

if he

the

makes

a

release............".

Thus, from the Affidavits, which have been filed, it is clear are

that

the grounds for seeking premature

release

certainly not alien to the relevant rules.

Affidavit request

referred

to

above, it is

clear

In the

that

the

of the Petitioner is being turned down only on

the

ground

of scarcity of Radiologist.

Just to

the

Order impervious to judicial review, it is

make

stated

that the grounds are not found adequate.

9. where

In our considered opinion, this is a fit case the

reasons

justified at all.

supporting the rejection

are

not

-

10.

We

are

10

-

conscious of the fact that

a

Court

exercising powers under Article 226 of the Constitution of India does not sit in a Court of appeal scrutinising and We

evaluating are

also

substitute

conscious

our

authorities. authorities

the reasons given by the of the fact

authorities.

that

we

cannot

opinion to that of the opinion of However,

if

the reasons given

are not germane and are totally

by

the the

perverse,

judicial review is permissible.

11. in

For our

the reasons which we have stated

considered

opinion,

the

reasons

above,

given

are

completely perverse and do not justify the rejection of the Petitioner’s application for premature release.

12.

In

the result, therefore, the Writ

Petition

is allowed.

The Order impugned in the present Petition

is

and set aside.

quashed

Rule is made

absolute

in

terms of prayer clauses (a) and (b) with no order as to costs.

P. V. KAKADE, J.

P. RD.

V.

HARDAS,

J.