V. M. KRISHNAN v. UNION OF INDIA — 1978 DIGILAW 128 (KAR)

( 1 ) THE petitioner is Major and Second in Command of the 106, Infantry battalion of the Territorial Army, Bangalore. Aggrieved by the order of the Director of Territorial Army, Territorial Army Directorate, New Delhi, issued with the approval of the Central Government ordering his premature retirement, he has presented this writ petition. ( 2 ) THE petitionen was an officer of the Income-tax Department. He applied for a Commission in the Territorial Army (hereinafter referred, to as 'ta' ). After successful completion of the Service Selection Board Examination, he was granted a Territorial Army Commission on 23-8-1957 and he wa,s attached to 105 Heavy Anti-Aircraft Regiment Artillery (TA), bangalore. The Air Defence Regiment (TA) were converted, into regular army Units in a phased programme from 1973-76. This resulted in surplus of staff. Among large number of officers, who became surplus, the petitioner is one of them. Option was given to the officers rendered surplus for the aforesaid reason either to relinquish the Territorial Army Commissions voluntarily or to retire prematurely or to give a certificate of willingness for a change from Artillery to Infantry. By a communication dated 11-5-1976, the willingness of the petitioner was called for by the third respondent. The said communication reads as follows :"recommendation for appointment of the permanent staff of INF bns (TA) 1. TA-40650 Maj. V. M. Krishnan whose disembodiment orders from the appointment of OC, 5 Kerala Girls Bn NCC, Kozhikode have already been issued by us, fulfills the criteria for appointment aq 21c on the permanent staff of an Inf Bn (TA ). 2. Please, therefore, ascertain from him whether he is willing to be considered for being appointed as such anywhere in India. If so, his willingness certificate as well as 'no objection' certificate from his employers if applicable may please be obtained on the prescribed forms and forwarded to this Headquarters by 31 May 76. "the petitioner gave his willingness. Thereafter by an order dated 3rd august 1976, the petitioner was appointed as Second in Command on the permanent staff of 106 Infantry Battalion (TA), Bangalore. The relevant portion of the order reads are follows :"postingitransfersiappointments : TA OFFICERS 1. "the petitioner gave his willingness. Thereafter by an order dated 3rd august 1976, the petitioner was appointed as Second in Command on the permanent staff of 106 Infantry Battalion (TA), Bangalore. The relevant portion of the order reads are follows :"postingitransfersiappointments : TA OFFICERS 1. The following positing/transfers/appointments have been approved :_ (a) TA-40650 Major V. M. Krishnan, Arty (TA (A/o No. XXIII/222/101595), transferred to Inf (TA) on part-time TA engagement in 106 Inf Bn (TA) wef 07 Jun 76, on disembodiment from service under) TA Rule 33 in 5 Kerala Girb Bn NCC, Kozhicode and to be 21c oil the permanent staff on the same unit in the existing vacancy. * * * * * 2. The officers at (a) and (d) above will be instructed to assume the appointments immediately. The officers at (g), (h) and (j) will move without relief and will be instructed to report to their new appointments by 31 Aug 76 at the latest. The officers at (b), (c) and (e) will move on relief. The officer at (f) will move latest by 15 Aug 76 even without rtelief. 3. Annual or Interim Confidential Reports, if due, will be initiated on the officers as, per SAO 9/s/71". By virtue of the aforesaid order, the petitioner joined duty as Second in command of 106 Infantry Battalion (TA), Bangalore and was continuing in the said post. By an order dated 25-10-1977 Issued by the third respondent with the approval of the Central Government (1st respondent) premature retirement of the petitioner was ordered with effect from 31st march 1978. It is the raid order that is impugned in this writ petition, ( 3 ) THE case of the petitioner jp that in terms of the statutory provisions governing the tenure of his appointment, his tenure is three years from the date of appointment or till the completion of 50 years of age which is the age of retirement, whichever 'is earlier and, therefore, the impugned order brings about his premature retirement in contravention of the statutory provisions governing his tenure of office and as such the same is liable to be quashed. ( 4 ) THE case of the Respondents is as follows. ( 4 ) THE case of the Respondents is as follows. That even is the process of selection of officers, who were rendered surplus consequent on the disbandment of the Air Defence Regiments (TA) for absorption in Infantry units was in progress the petitioner was given only a temporary appointment as an interim measure, as Second in Command of 106 Infantry battalion; (TA), Bangalore. Therefore the petitioner acquired no right to continue in the post to which he was appointed. After! the screening of officers for absorption in the permanent! staff of Infantry Units was finalised, the petitioner not being one of the officers selected for absorption he had to be retired in order to accommodate officer's who have been, selected. In other words, the case of the respondents is that the appointment of the petitioner as Second in Command of 106 Infantry Battalion (TA), bangalore, was only an interim arrangement and, therefore, he has no manner of right to continue in the post. In order to appreciate the respective case of the petitioner and the respondent, it is necessary to refer to the relevant statutory provisions and accordingly they are set out hereunder: (1) Sec. 3 of the Territorial Army Act, 1948 provides for the constitution of the Territorial Army and authorises the Central Govt to disband or reconstitute any unit so constituted. The ,9aid section reads as follows:"3. Constitution of the Territorial Army: (1) There shall be raised and maintained in the manner hereinafter provided an army to be designated the Territorial Army. (2) The Central Govt may constitute such number of unite of the territorial Army as it thinks fit and may disband or reconstitute any unit so constituted. " (2) Sec. 9 (1) of the Territorial Army Act, 1948, provides for the application of the provisions, of the Army Act to the Territorial Army. The said section reads as follows :" 9. Application of the Army Act 1950 (XLVI of 1950)_ (1) Every officer, when doing duty as such officer, and every enrolled person when called out or embodied or attached to the Regular! The said section reads as follows :" 9. Application of the Army Act 1950 (XLVI of 1950)_ (1) Every officer, when doing duty as such officer, and every enrolled person when called out or embodied or attached to the Regular! Army shall subject to such adaptations and modifications as may be made therein by the Central Govt by notification in the Official Gazette, be subject to the provisions of the Army Act, 1950 (XLVI of 1950) and the rules or regulations made thereunder in the same manner and the same extent as if Such officer or enrolled person held the same rank in the regular army as he holds for the time being in the Territorial Army. (2) * * * * (3) Rule 21a of the Territorial Army Act Rules, 1948 provides for the appointment oh the permanent staff of the Territorial Army. "the said Rule reads as follows :"21a. Service on the permanent 'staff_ (a) Every enrolled person who volunteers with the written consent of his employer, if any, for employment of the permanent staff of a Territorial Army Unit, may, if found Suitable by the Commanding Officer of the Unit, be embodied under the orders of the Officer Commanding the Area/ta group Commander in which tthe Unit is located for such period as he is required to fill a vacancy on the permanent staff of the Unit. (b) Every Officer who volunteers with the written consent of his employer, if any for employment on the permanent staff of a Territorial army Unit, may, if found suitable, be embodied under the orders Of the Director, Territorial Army, for such period as he is required to fill a vacancy on, the permanent staff pf that Unit or of any other Unit of the Territorial Army to which he may be transferred. " (4) Regulation 16 of the 'regulations for the Territorial Army, 1948 prescribes the tenure of appointment of permanent officers of the Territorial army, other than the Commanding Officers. The said! Regulation reads as follows:"16. Tenure of appointments on permanent staff_ (a) The tenure of appointment of officers other than Commanding Officer except otherwise ordered by Army Head Quarters, will be 3 years. In case of a Territorial Army Officer the tenure may be extended upto 5 years under orders of Army Headquaters extension, being granted for one year at a time. Tenure of appointments on permanent staff_ (a) The tenure of appointment of officers other than Commanding Officer except otherwise ordered by Army Head Quarters, will be 3 years. In case of a Territorial Army Officer the tenure may be extended upto 5 years under orders of Army Headquaters extension, being granted for one year at a time. (b) Reliefs will be so arranged as to ensure continuity of administration and training. The authority for the secondment or appointment of officer on permanent staff will he Army Headquarters. Note.- The above tenure will start afresh in the case of a Territorial army Officer who is posted to a new appointment on, the permanent staff in the same Unit or in another Unit either in the same rank or in a higher rank. In case such a officer employed on the permanent staff is the only officer in his rank in the entire establishment of the Unit, the above tenure will not apply. " (5) Rule 14 (c) of the Territorial Army Act Rules, 1948, prescribed inter alia, the age of retirement. The said Rule reads as follows :"14. Discharge_ (a) * * * (b) * * * (c) Discharge, dismissal, removal, retirement - Officers_ rules for the discharge, dismissal, removal and retirement of the officers of the Territorial Army shall be the same as for the regular army provided that the retiring age for the officers of the Territorial army shall be as specified in the table below_ rank retiring Age major and below 50 years 52 years in the case of AMC and Electrical and Mechanical Engineers. " (6) Regulation 103 of the Defence Service Regulations prescribes the authorities empowered to retire or accept resignation of Army Officers. The said Regulation applies to the officers of the Territorial Army by virtue of Sec. 9 (1) of the territorial Army Act. The said Rule reads as follows :"103. Retirement and Resignation, (a) The President may call upon any officer to retire or resign his Commission at any time without assigning any reason. (b) The Central Government may call upon any officer to retire or resign his commission at any time subject to thei provisions of the rules in this behalf, asi made under the Army Act. Retirement and Resignation, (a) The President may call upon any officer to retire or resign his Commission at any time without assigning any reason. (b) The Central Government may call upon any officer to retire or resign his commission at any time subject to thei provisions of the rules in this behalf, asi made under the Army Act. (c) No authority other than that specified in sub-paras (a) and (b) above, may call upon an officer to retire or ijesign his commission or exert any pressure on him to do so. (d) An Officer will not be relieved of his duties until receipt of intimation that his application to retire or resign, has been accepted. An officer whose application to retire or resign hag been accepted may apply to the Central Government for his application to be cancelled. In the case of officers who have once proceeded on leaving pending retirement, permission to withdraw such applications will only be granted on exceptional circumstances. The decision of the Central government on all applications to retire will be final. (e) An officer of the Army who resigns from the service, vacates any civil appointment under the Central Government that he may be holding unless the Central Government otherwise directly. "the combined effect of the aforesaid statutory provisions is that the tenure of office of a person who if appointed under 21-A of the Territorial army Act Rules is three years by virtue of Regulation 16 of the Regulations for the Territorial Army, unless a shorter period is specified in the order of appointment Or till he attains the age of 50 years as provided under Rule 14 (c) of the Territorial Army Act Rules, whichever is earlier. The tenure of office could be extended upto a maximum period of five years from the date of appointment if the concerned officer is below 50 years of age. The President has the power to call upon any officer to retire or resign his commission at any time without assigning any reason as provided in regulation 103 (a) of the Defence Services Regulation. The Central government is also empowered to call upon any officer to retire or resign his commission at any time subject to the provisions of the Rules in this behalf as made under the Army Act. The Central government is also empowered to call upon any officer to retire or resign his commission at any time subject to the provisions of the Rules in this behalf as made under the Army Act. ( 5 ) SRI K. R. D. Kamanth, learned counsel for the petitioner, raised the following contentions: (1) The impugned order or retirement is illegal as it contravenes rule 14 (c) of the Territorial Army Act Rules and Regulation 16 of the regulations for the Territorial Army as the petitioner, has neither completed 50 years of age nor completed three years of service from the date of his appointment on the permanent staff. (2) The impugned order is violative of principles of natural justica as it bringa about the petitioner's premature retirement from the post to which he was appointed resulting in serious civil consequences. In support of the above submission, he submitted that as per Regulation 16 of the Regulations, the tenure of appointment of officers on permanent staff of the Territorial Army, except when otherwise ordered, by Army headquarters, is three years. This tenure can be extended upto five years and therefore, as the petitioner was appointed on 3rd August 1976 on the permanent staff of the Territorial Army and he being an officer other than commanding Officer, he has a right to continue till 3-8-1979 by virtue of regulation 16 of the Regulations as the Army Headquarters had not fixed any shorter period of tenure in the appointmelnt order. In the alternative, he contended that if only he had completed 50 years of age, he could have been retired under Rule 14 (c) of the Territorial Army Act Rules, but as he was 47 years of age when he was appointed, he could not have been asked to retire on 31-3-1978. He pointed out that the impugned order itself states that the petitioner is being retired prematurely. He further submitted that as the impugned order is issued in accordance with the decision of the Government of India, and as the power of the Government of India to order retirement of an officer is subject to the provision of the Rules governing retirement as provided under Regulations and as the impugned order contravenes Regulation 16 of the Regulation for the Territorial army and Rule 14 (c) of the Territorial Army Act Rule, the impugned order is liable to be quashed. ( 6 ) WITH reference to the second contention, the learned counsel for the petitioner submitted that in any event, as the impugned order of premature retirement brings about an unexpected curtailment of the tenure of the petitioner resulting in serious civil consequences, Such as deprivation of the status as Major and Second in Command, 106 Infantry Battalion, (TA) and also loss of emoluments, the impugned order could have been passed only after complying with the principles of natural justice. He submitted that the respondents ought to have communicated to the petitioner the grounds for premature termination of his tenure of office and should have given him an opportunity of showing clause against the premature retirement. As this cardinal principle of audi alteram partem which is an accepted principle of natural justice has not been complied with, the impugned order ir liable to be quashed. ( 7 ) SRI U. L. Narayana Rao, learned Senior Standing Counsel for the central Government, appearing for the respondents urged the following points: (1) The appointment of the petitioner made as per order dated 3-8-1976 (Ex. A) was only by way of interim arrangement until further orders and not for) a period of three years or upto 50 years of age as contended by Mm and, therefore, the impugned order does1 not contravene rule 14 (c) of the Territorial Army Act Rules or Regulation 16 of the regulations for the Territorial Army. (2) Even in terms of Regulation 16 of the Regulations for the Territorial army, as the tenure of the petitioner was not specified in the appointment order, it could be brought to an end at any time by the Army Headquarters. For this reason also, the impugned order doen not contravene any of the rules on which the petitioner relies. (3) As the petitioner had no right to continue for three years or upto completion of 50 years of age, the impugned order does not deprive him of any right and does Mot result in any civil consequence and, therefore there was no necessity to comply with the principles of natural justice by way of issuing a show cause notice in the petitioner against the proposed termination. As regards the first point urged for the respondents as already pointed our earlier, the fact that by notification d/11-5-76 the Army Headquarters proposed to appoint the petitioner on the permanent staff of the Infantry battalion (TA) and the willingness Of the petitioner was asked for is not in dispute. There is absolutely no indication in the said communication that the proposal was to appoint the petitioner on the permanent staff as an interim arrangement or until further orders. Similarly the order or appointment d/3-8-76, the contents of which have been set out earlier, also shows that the petitioner was appointed as Second in Command on, the permanent Staff of 106, Infantry Battalion (TA ). In the order also there is absolutely no indication that the appointment was an, interim arrangement subject to the final decision on the question of absorption of the officers rendered surplus consequent on the disbandment of the Air defence Eegiments (TA ). In view of the unconditional offer and, also in the absence of any condition in the appointment order, it is impossible to hold that the appointment of the petitioner made as per order d/3-8-76 was by way of an interim arrangement or as aj stop-gap arrangement or as an appointment until further orders. The said appointment is fully in conformity with Rule 21a of the Territorial Army Act Rules and consequently the period of tenure fixed in Regulation 16 of the Regulations for the Territorial Army as well as the age of retirement fixed under Rule 14, (c) of the Territorial Army Act Rules are attracted. It is for the first time in the statement of objection that the respondents Wave come forward with the plea that the appointment of the petitioner on the permanent staff of 106, Infantry Battalion (TA) was only by way of interim arrangement subject to the final decision regarding absorption of officers rendered surplus consequent on the dishandment of Air Defence Regiments. In the absence of such condition express or even implied in the appointment order of the petitioner, I am unable to accept the first point urged for the respondents. ( 8 ) THE second point urged for the respondents depends on the interpretation of Regulation 16 of the Regulations for the Territorial Army. In the absence of such condition express or even implied in the appointment order of the petitioner, I am unable to accept the first point urged for the respondents. ( 8 ) THE second point urged for the respondents depends on the interpretation of Regulation 16 of the Regulations for the Territorial Army. According to the said Regulation, the tenure of appointment of officers other than the Commanding Officers appointed on the permanent staff of the Territorial Army is except when otherwise ordered by the Army headquarters, will be three years. The interpretation placed by the learned counsel for the respondents is that if no period is specified in the appointment order, then the tenure of office is three years or any shorter period at which the Army Headquarter thinks fit to put a;n end to the tenure of office. The learned Counsel for the petitioner, on the other hand, contended that the tenure of office of an officer to whom Regulation 16 of the regulations for the Territorial Army applies is three years, unless a shorter period is specified in the appointment order itself. In other words, this submission is that it is open for the Army Headquarters to fix the tenure of an officer appointed, under Rule 21a of the Territorial Army Act Rules on the permanent staff of the Territorial Army, at any shorter period than three years, but the same has to be done while issuing the appointment order and if Army Headquarters does not fix any shorter period in the appointment order, the tenure will be three years as prescribed in Regulation 16 of the Regulations for the Territorial Army. In my opinion, the interpretation placed, by the petitioner has to be acceptance. Under Regulation 16 of the Army headquarters is empowered to fix the tenure of office, ot an officer appointed on the permanent staff of the Territorial army under Rule 21a of the Territorial Army Act Rules at any period shorter than three years, but this power has to be exercised, at the time when appointment is made and not subsequently. Under Regulation 16 of the Army headquarters is empowered to fix the tenure of office, ot an officer appointed on the permanent staff of the Territorial army under Rule 21a of the Territorial Army Act Rules at any period shorter than three years, but this power has to be exercised, at the time when appointment is made and not subsequently. If the Army Headquarters does not choose to fix any shorter period of tenure of office in, respect of an officer appointed on permanent Staff of the Territorial Army in the order of appointment, in such a case the tenure of three years fixed in Regulation, 16 of the Regulations comes into operation. This, however, will be subject only to the age of retirement fixed under Rule 14 (c) ot the Territorial Army Act Rules. The construction suggested for the respondents on the wording of Regulation 16 to the effect that if the tenure of office of an officer appointed on the permanent staff of the; Territorial army is not fixed, the Army Headquarters can determine the tenure at any time, is impossible on the wording of the Regulation 16. The tenure of office of an officer has to be determined at the time of appointment. It is for this reason Regulation 16 of the Regulations having fixed tenure of three years, empowers the Army Headquarters to fix a shorter period if it considers necessary in a given case. The, power to fix a shorter period of tenure of office is given as an exception to the general, rule of the tenure of office of three years. Unless the Army Headquarters makes an exception to a given case at the time of appointment itself by fixing a tenure of office shorter than three; years or by imposing a condition that the appointment is purely ad hoc or temporary and terminable at any time, or that it enures only until further orders, the rule of three years' tenure begins to operate. Once the rule begins to operate, there is no Scope for the exception to operate. In the present case, the Army Headquarters has not chosen to make any such exception to the tenure of office of the petitioner at the time of appointment. Once the rule begins to operate, there is no Scope for the exception to operate. In the present case, the Army Headquarters has not chosen to make any such exception to the tenure of office of the petitioner at the time of appointment. The appointment of the petitioner not having been made as an, interim arrangement or until further orders by the use of express words in the order of appointment and no shorter period of tenure than, three years having been fixed, as permitted under Regulation 16 of the Regulations in the appointment order, tenure stood regulated by the provisions of Regulation 16 of the Regulations and rule 14c of the Rules. The petitioner is entitled to continue either for a period of three years or till he attains the age of 50 years, whichever is earlier. Even if premature termination, or retirement from the office to which he was appointed could be brought about on valid grounds such as to accommodate officers rendered surplus consequent on the disbandment of Air Defence Regiments, having claim for absorption in, preference to the petitioner even by way of cancelling his appointment, as the petitioner had acquired a right and as deprivation of that right undoubtedly results in serious civil consequences to the petitioner, the impugned order could not have been made without the petitioner being informed of the grounds on which his tenure was sought to be curtailed and giving him an opportunity of making representation against the proposed action. ( 9 ) IT is well settled that though the impugned order is an administrative order, even an administrative decision or order resulting in civil consequences, has to be made in conformity with the principles ot natural justice as laid down in the following decisions: (i) State of Orissa V. Dr. (Miss) Binapani Dei, AIR. 1967 SC. 1269. ; (ii) A. K. Kaipak v. Union of India, AIR. 1970 SC. 150, 154. ; (iii) Mohindersingh Gill v. Chief Election Commissioner, (1978) 1 SCC. 405 . But the question which arises for consideration, in all such cases is whether, really there is civil consequence. In Mohindersingh Gill's case (3) (supra) the Supreme Court has given the widest possible interpretation for the words 'civil consequences'. 1970 SC. 150, 154. ; (iii) Mohindersingh Gill v. Chief Election Commissioner, (1978) 1 SCC. 405 . But the question which arises for consideration, in all such cases is whether, really there is civil consequence. In Mohindersingh Gill's case (3) (supra) the Supreme Court has given the widest possible interpretation for the words 'civil consequences'. 'the lelevant passage in paragraph 66 at page 440 read :" It was argued, based on rulings relating to natural justice that unless civil consequence ensued hearing was not necessary. A civil right being adversely affected is a sine qua non for the invocation, of the audi alteram partem rule. This submission was supported by observations in Ram Gopal Ram Gopal Chaturvedi v. State of M. P. (1970) 1 SCR 472 , Col Sinha, Union of India v. Col J. N. Sinha. (1971) 1 SCR 791 ). Of course, we a,gree that if only spiritual censure Is the penalty, temporal laws may not take cognisance of such consequences since human law operates in the material field although its vitality vicariously depends On its morality. But what is a civil consequence, let us ask ourselves, by parsing verbal booby-traps? ' Civil consequences' undoubtedly cover infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its comprehensive connotation, everything that affects a citizen in his civil Life inflicts a civil consequence. " (emphasis supplied ). In the light of the principles laid down in the above cases and more particularly in the latest decision of the Supreme Court in Mohinder singh Gill's case (3) referred to above regarding as to what constitutes civil consequences, i hold that as a result of the impugned ordei' the petitioner suffers serious civil consequences such aq premature termination of office and status and also emoluments and, therefore, the impugned order could have been passed by the respondents only after complying with the rules of natural justice. The soul of the principles of natural justice ingrained in the audi alteram partem rule consists of two important facets, viz, (i) notice of the grounds on which action, is proposed to be taken and (ii) opportunity to show cause against the, proposed, action. The soul of the principles of natural justice ingrained in the audi alteram partem rule consists of two important facets, viz, (i) notice of the grounds on which action, is proposed to be taken and (ii) opportunity to show cause against the, proposed, action. Fairplay in action which equally applies to administrative decision, as it applies to judicial and quasi-judicial decisions, demands that before inflicting civil consequences on an individual, the aforesaid rule of natural justice must be complied with. Therefore the impugned order which resulted in civil consequences to the petitioner made without giving him an opportunity of showing cause against his premature retirement from the office he held indicating the basis for such an action, is a nullity on account of the aforesaid requirement of the principles of natural justice. ( 10 ) BESIDES concluding, it is necessary to deal with, two more submissions made on behalf of the respondents. Along with the additional statement of objections a copy of the willingness certificate given by the petitioner in reply to the offer of appointment made vide communication d/11-5-76 from the third respondent (Ext. E) is produced. With reference to the said certificate, it was submitted that the petitioner himself had clearly stated that he was willing to be appointed on the permanent staff of the Territorial Army Unit till such time his services are required and, therefore, the appointment of the petitioner should be construed as an appointment until further orders. I am unable to accept this submission for the reason that in the order d/11-5-76 the petitioner was asked to give his willingness, in the prescribed form. Consequently all that the willingness given by the petitioner to be appointed as a member of the permanent staff till such time his services are required, only indicate that he agreed to the Army Headquarter appointing Mm for three years or for any shorter period than three years fixed in Regulation 16 of the Regulations. Therefore on the basis of the willingness certificate given by the petitioner read with Regulation 16 of the Regulations, it was open for the army Headquarteifs to have appointed him for a tenure shorter than three years, or on temporary basis and until further orders. Therefore on the basis of the willingness certificate given by the petitioner read with Regulation 16 of the Regulations, it was open for the army Headquarteifs to have appointed him for a tenure shorter than three years, or on temporary basis and until further orders. The Army Headquarters not having fixed any shorter tenure in the appointment order, cannot now introduce a new condition in the appointment order which they did not choose to incorporate in the impugned order on the basis of the willingness certificate furnished by the petitioner. Therefore, in order to find out what is the tenure to which the petitioner was appointed, we have to look into the order of appointment and Regulation 16 of the Regulations. As I have already held thiat on the wording of the appointment order read with the wording of the Regulations, the period of tenure of the office of the petitioner stood fixed at three years, I do not isee any force in the submission made on behalf of the respondents that the wouding of the willingness certificate has the effect of limiting the tenure of office of the petitioner under Exhibit-A as tenure "until further orders". ( 11 ) THE next submission made On behalf of the respondents on. the basis of Ext. R-3 - Willingnesj Certificate - is that the petitioner has come to this Court by suppressing truth and therefore the petition should be thrown out on that ground only. I ajn unable to appreciate this submission. It was submitted by the learned Counsel for respondent-3 that the petitioner was admittedly an employee of the Income-tax Department and in the willingness certificate he has stated that he, was not a civil employee. As he was actually a civil employee, he could not be appointed on the permanent staff unless a concent certificate of the, employer was also produced. The petitioner has filed a detailed rejoinder. He has statedi that even before he secured the Commission in the Territorial Army, he was an employee of the Income-tax Dept and he had produced consent certificates on earlier occasions and the Army Headquarters was fully awarte that the petitioner is a civil employee. The petitioner has filed a detailed rejoinder. He has statedi that even before he secured the Commission in the Territorial Army, he was an employee of the Income-tax Dept and he had produced consent certificates on earlier occasions and the Army Headquarters was fully awarte that the petitioner is a civil employee. The petitioner has also produced a copy of the no Objection certificate d 9-7-76 issued by the Commr of Income-tax, Bangalore, to the effect that he had no objection in sparing the services of the petitioner for appointment in the Territorial Army for a period of five years maintaining his lien in the department. The petitioner has stated that he had sent this no objection certificate also to the third respondent subsequent to his willingness certificate and there was an inadvertent mistake committed by him in the willingness certificate furnished by him in not striking off the portion indicating that he is not a civil employee and retaining the other portion which is to the effect that he has secured no objection from the employer and in idoing vice-versa. From the several documents produced along with the rejoinder, it appears that respondents 1 to 3 were fully aware that the petitioner, ever since 23-8-57 when he was granted the Territorial Army Commission, was an officer in the Income-tax Dept. It is no doubt true tltat in the willingness certificate produced by him he has struck off the portion which should indicate that he had secured no objection certificate from the civil employer and has given an impression that he was not a civil employee. Whether the said act of the petitioner in creating a wrong impression to the effect that he was not a civil employee by submitting the willingness certificate vide Ext. R-3 is deliberate or otherwise I do not see as to how the said misrepresentation even if true before the 3rd respondent would amount to ruppression of truth in the WP. As far as the WP is concerned, the Petr has stated in the petition that even at the time when Commission was granted in August 1957, he was working in the Income-tax Dept. Therefore it cannot be said that the petitioner has suppressed any material information relevant to the case put forward by him in the writ petition. As far as the WP is concerned, the Petr has stated in the petition that even at the time when Commission was granted in August 1957, he was working in the Income-tax Dept. Therefore it cannot be said that the petitioner has suppressed any material information relevant to the case put forward by him in the writ petition. The highest that can be gaid against the petitioner is that he secured the appointment on the permanent staff of the Territorial Army by misrepresentation. That may be also a good ground for terminating the tenure of office of the petitioner by respondent-3, but even before doing so respondents should determine as to whether in furnishing the willingness certificate the petitioner committed any bona fide mistake or not, after giving opportunity to the petitioner. It is not the case of the respondents that one of the grounds for the impugned order was the alleged misrepresentation. Therefore I am unable to accept the contention urged for the respondents that this writ petition is liable to be dismissed on the ground that the petitioned has suppressed any material information with reference to his case in this writ petition. For the reasons aforesaid, the Rule is made absolute, the impugned order issued by the 3rd respondent d/25-10-77 (Ext. B) with the approval of the lit respondent in so far it relates to the petitioner is quashed. However, if the respondent have sufficient grounds and if the law empowers to order the premature retirement of the petitioner, they are at liberty to do so after giving him an opportunity of making representation aganist such action if proposed hereafter. ( 12 ) NO costs. --- *** --- .