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2011 Supreme(Bom) 263
2011 (3) ALL MR 530
High Court of Judicature at Bombay
THE HONOURABLE CHIEF JUSTICE MR. MOHIT S. SHAH & THE HONOURABLE MR. JUSTICE S.J. VAZIFDAR
Major Yogesh Chandra Madhav Sayanakar & Another
Versus
The Chief of Army Staff Integrated Head Quarters (Army) Ministry of Defence & Others
WRIT PETITION NO.289 OF 2011
Decided on : 25-03-2011
For the Petitioners:Anand Grover, Senior Advocate with Lorrain Misquith i/by Prakash Mahadik, Advocates. For the Respondents:R6, Ms. Gauri Godse with Jaydeep S. Deo, Advocates.
Headnote:Constitution of India - Articles 226 and 227-Army Rules, 1954, Rule 16-C-Army order 14/2004 MI-Resignation-Application for-Marriage with foreign national-Petitioner, Army Personnel desires to marry foreign national girl-Application for resignation made by petitioner prior to his marriage-Not premature as per Army Order 14/2004-Rule 16-C not requires application to be made after marriage.-The respondents’ stand that the application of petitioner No. 1 for resignation is pre-mature and that such an application can be made only after the officer contracts marriage with a foreign national cannot be accepted. Further, there is nothing in Rule 16-C which requires an application for resignation to be made only marriage. It may be made on the basis of the applicant intending to get married.
Constitution of India - Articles 226 and 227-Army Rules, 1954, Rule 16-C-Army order 14/2004 MI-Resignation by Army Personnel-On ground of marriage with foreign national girl-Application for resignation-Rejection of as deficiency of officers-Improper-Application can only be held in abeyance-Rejection cannot upheld.-Court fail to sees how the decisions of the Delhi High Court can be distinguished merely because in those cases the petitioner was a Medical Doctor or a Nursing Officer and not an Engineer. The principles laid down in the aforesaid decisions are very clear, that while an application seeking for voluntary retirement is fettered by several riders and discretion lies with competent authority to accept or not to accept the prayer, a prayer for resignation has to be dealt with on different footing as the discretionary power vested in the authorities taking decision on application for resignation is limited and circumscribed. Even where the officer’s continuance in service is necessary on the ground that alternate arrangement cannot be made, even in such a case the application for resignation cannot be rejected and can only be held in abeyance.
Constitution of India - Articles 226 and 227-Army Rules, 1954, Rule 16-C-Army order 14/2004 MI-Resignation by Army Personnel/petitioner-On ground that he desire to marry with foreign national girl-Application for-Apprehension that petitioner may not marry after acceptance of resignation-Resignation can be accepted w.e.f. date of marriage subject to proof of marriage being furnished.-Coming to the apprehension that petitioner No. 1 may not marry after acceptance of resignation, can be easily taken care of by accepting resignation with effect from the date of marriage which is going to be on 28th May, 2011 and subject to proof of the marriage being furnished.
Constitution of India - Articles 226 and 227-Army Rules, 1954, Rule 16-C-Army order 14/2004 MI-Resignation-Marriage with foreign nationals-Petitioner, Army Personnel desired to marry foreign national girl- Army Order 14/2004 clearly provides desire to marry foreign national as ground for resignation-Order 14/2004 under category of "Customs of service" in consonance with Army Act, 1950- Instructions dated 20.1.1979 mere executive instructions prior to Army Order relied upon by respondents-Army Order 14/2004 consistent with Rule 16-C of Army Rules, 1954-Matter governed by Army Order 14/2004.-Instructions dated 20th January, 1979 were mere executive Instructions. Paragraph 13 of the affidavit- in-reply says that Army Order 14/2004 MI is issued by the "Commanding Officer" and falls under the category of "customs of the service" which is in consonance with the Army Act, 1950 and applies in full force to the guidelines and rules/procedures laid down for marriage with a foreign national. Army Order 14/2004 having been made after the said Instructions and the said Army Order specifically deals with situation where Army personal desirous of marrying foreign national is required to obtain prior Government sanction for such marriage and Paragraphs 17 and 20 of the said Army Order specifically provide for an application for resignation in order to be able to marry a foreign national clearly provides for desire to marry a foreign national as a valid ground for resignation.
In Court’s view, therefore, the matter is governed by Army Order 14/2004 which is not inconsistent with Rule 16-C of the Army Rules, 1954.
Constitution of India - Articles 226 and 227-Army Rules, 1954, Rule 16-C-Army Order 14/2004 MI-Resignation-Petitioner, Army Personnel desires to marry foreign national girl-This ground for resignation based on Instructions dated 20.1.1979- Denied by respondents-Instructions mere executive instructions prior to Army Order 14/2004-Army Order clearly provides desire to marry foreign national as ground for resignation-Contention of respondents not tenable-Rejected.-Army Order (14/2004) which clearly deals with the case of Army personnel desirous of marring foreign nationals. It is true that Rule 16-C of the Army Rules, 1954 provides that an officer shall have not right to resign his commission and that he has only right to submit and application to resign his commission, but reliance placed by the respondents on Instructions dated 20th January, 1979 is thoroughly misconceived.
In this petition under Article 226 of the Constitution, petitioner No.1 a Major in the Engineering Regiment of the Indian Army, has challenged the communication dated 8th December 2010 of Joint Director MS/Premature Retirement for Military Secretary (Exhibit “A” to the petition) informing petitioner No.1 that the application of petitioner No.1 for resignation from Army service has been rejected by the competent authority.
2. The Petitioners’ case is that petitioner No.1 obtained a degree in Civil Engineering in first class from the Maharashtra Institute of Technology, Pune in June 2005 and immediately thereafter petitioner No.1 joined the Indian Military Academy and underwent training from 11th July 2005 to 10th June 2006 at the said Academy at Dehradun. Upon completion of the training, petitioner No.1 was commissioned in the same regiment, 109 RAPID (Strike) Engineer Regiment which was commanded by his father Col. (Retd) M.B. Sayankar in 1990-92. On 1st July 2006, petitioner No.1 was granted substantive promotion to the rank of Captain. Petitioner No.1 was promoted as Acting Major on 26th July 2009 and is presently rendering his services as Major in Jammu & Kashmir.
3. Sometime in March 2009, petitioner No.1 was on leave and went to Pune to spend his vacation where he met petitioner No.2 through a common friend. Petitioner Nos.1 and 2 got engaged on 25th December 2009. Petitioner No.2, Ms.Shruti Kulkarni is a US citizen and also holds status of an Overseas Citizen of India (OCI). Since the application of petitioner No.1 for resignation in order to marry petitioner No.2 Ms.Shruti Kulkarni has been rejected and the challenge in the present petition is to the said decision, it is necessary to give some background facts about petitioner No.2-Ms.Shruti Kulkarni, which facts were also pointed out by petitioner No.1 to the respondents in the Statutory Complaint dated 9th June 2010:-
“(c) I have been engaged to Miss Shruti Kiran Kulkarni since 25 Dec 2009. She was born in Mumbai (then Bombay), India on 23 Sep 1983. Her father Mr. Subahu Mehta met with a fatal accident within two months of her birth. Her mother Mrs. Paru Mehta married Mr. Kiran Kulkarni when Shruti was two yrs. old. Mr. Kiran Kulkarni adopted her and changed her name to Miss Shruti Kiran Kulkarni. She is currently a citizen of the United States of America (USA) and holds the status of an Overseas Citizen of India (OCI). Her parents, Mr. Kiran Vyankatesh Kulkarni and (Mrs. Paru Subahu Mehta) now Mrs. Paru Kiran Kulkarni were both born in traditional hindu families and raised in India, however are now settled in USA and are citizens of USA.
(d) My fiancee lived in Mumbai until 1990 and subsequently moved to the USA with her parents when they migrated to that country. Most of her close relatives are in Pune and Mumbai and she is a frequent visitor to India to meet her relatives. She also lived and studied in Pune from Aug 1996 to Oct 1998 in 8th and 9th standard at Vikhe Patil Memorial School. Most recently, she was staying in Pune with her grandparents from August 2008-Apr. 2009, when I met her while on leave there in Mar 2009 through a mutual friend."
The above statutory complaint was given by petitioner No.1 against Respondent No.2 not being granted permission to marry petitioner No.2 an Overseas Citizen of India and holding citizenship of USA.
4. In view of Army Regulations, petitioner No.1 is required to obtain prior permission of the higher authorities to marry petitioner No.2, who is a foreign national. Under Army Order 14/2004-MI-Marriage with Foreign Nationals- army personnel desirous of marrying foreign nationals except the nationals of Bhutan, are required to obtain prior Government sanction for such marriages. The Army Order lays down guidelines and rules/procedure governing marriage of serving service personnel with foreign nationals. Application for such prior sanction is required to be given through proper channels 120 days prior to the proposed
