The court upheld the enforceability of the Service Guarantee Certificate and Army Instructions 13/78, and found that the recovery of pay and allowances was justified as per the terms of the undertaking.

JUDGMENT :

A.K. SIKRI, J.

Delay condoned. Leave to appeal granted.

2. The appellant herein while working with the Indian Airforce in the rank of Wing Commander has applied for and was granted study leave for a period of two years i.e. from December 27, 2003 to December 26, 2005. At that time, he had submitted an undertaking in the form of a Service Guarantee Certificate to the effect that he would serve for nine years from the date of his return from study leave. On this undertaking, the appellant was also given pay and allowance for the period of study leave. After his return, he started serving but before the completion of nine years period, applied for premature retirement on health grounds. His request for premature retirement was accepted. At the same time, the pay and allowances drawn by the appellant during the period of study leave was deducted from his post retirement dues on the ground that he had committed breach of contract by not serving for nine years.

3. The appellant challenged the order of recovery of pay and allowances by filing the Original Application (OA) before the Armed Forces Tribunal (AFT) which has been dismissed by the AFT vide order dated July 26, 2017. The plea of the appellant before the AFT was that once he was allowed to retire prematurely on medical grounds, his undertaking contained in service guarantee certificate furnished on November 15, 2001 could not have been enforced. The AFT has, however, dismissed the OA preferred by the appellant assigning the reason that the medical ground was taken by the appellant as an additional ground and it was not the sole or main ground for premature retirement. According to the AFT, the main ground for release was entirely different and his premature release was not ordered on the ground of illness. Relevant portion of the order of the AFT is reproduced below:

“13. Thus, from the above facts, it is abundantly clear that the study leave rules mandate that after completing the study leave period, the Applicant will have to serve for a specific period of service. The Applicant was aware of this fact from the very beginning and as per the Service Guarantee, he had given an undertaking to this effect. Admittedly, the aforesaid amount was deducted from his post retiral dues. The grounds raised by the Applicant in the instant O.A. is that because he has taken premature retirement on the ground of his ill health, so the said ground entitles him for the refund of the deducted amount. After perusal of the application of premature release, we are of the considered view that this ground is not tenable in view of the grounds taken by him in his own application. A plain reading of the aforesaid premature release application clearly shows that the main ground for his release was his dis-satisfaction due to delay in promotion and refusal to his posting to Pune, which were mentioned as the first five grounds. The sixth ground was taken as his ill health, wherein he has stated that I am unable to concentrate on my work due to my illness. I want to give off my best to the esteemed organisation which has given me so much and to conclude this application, he has written in paragraph 6, as under:

“6. I was diagnosed with disabilities – primary hypertension & PIVD about ten months after coming to my present unit, which is in Counter Insurgency Operation – CI Ops. Recently I developed target organ involvement – hypertensive retinopathy – necessitating addition of another drug. Multiple factors as enumerated are having a deleterious effect on my health. I am unable to concentrate on my work due to my illness. I want to give off my best to this esteemed organization which has given me so much.”

Contents of paragraph 7 of his own application show that the main ground for premature retirement were the other grounds.

14. It makes it abundantly clear that the main ground for his premature retirement from the service was his supersession and his family issue. It is not the case where the applica