Research › Search › Judgment

Rajasthan High Court · body

2007 DIGILAW 2059 (RAJ)

Jagdish Prasad Chaudhry v. The Union of India

2007-10-25

MAHESH CHANDRA SHARMA, R.M.LODHA

body2007
JUDGMENT 1. (Oral) - The appellant (here-in-after referred to, ‘the petitioner’) filed a writ petition before this court seeking the following relief: "It is, therefore, most respectfully prayed that the relevant record of this case may be called for and Annexure 6 & 5, the orders/letters dated 7.2.92 and 18.2.92 be declared null and void and the petitioner may be declared to be entitled for gratuity with interest as prayed for and cost of the petition, after quashing the above annexures 6 & 5 (dated 7.2.92 & 18.2.92). Any other relief, direction, writ or order which your Lordships deem just and proper in the facts and circumstances may also be granted in favour of the petitioner with cost." 2. The facts and circumstances that have given rise to the controversy are thus : (a) The petitioner was enrolled as Grenadiers (Sepoy) on 08.11.1969 in the Territorial Army. (b) He crossed various promotions on different ranks from time to time and in the year 1990 he was reserved J.C.O. in 123 Infantry Battalion. (c) During the service with Territorial Army, he was awarded with few medals, namely; (one) Sangram Medal; (two) Pashchmi Star; (three) 25th Independence Anniversary Medal; (forth) Nine years long service; and (fifth) Territorial Army Medal. (d) The petitioner applied for joining civil services and he in fact joined civil service in the Commercial Taxation Department in the year 1983 for which No Objection Certificate was given to him. (e) On 16.11.1990, the petitioner made an application for his discharge from service, inter-alia, on the grounds, namely; (i) that he has been in civil service in accord with the Territorial Army Regulations, 1948 and he has not been able to do both the services; (ii) that his wife has been ailing for last three years and for her treatment it is necessary that he stays with her, and (iii) that he has to look after the house and the family. (f) The petitioner also gave a certificate in writing that he would not claim terminal gratuity if he is discharged from Territorial Army. (g) At his request, thus, the petitioner was discharged w.e.f. 13.12.1990. (h) By the communication dated 07.02.1992 and 18.02.1992, the petitioner was communicated that he was not entitled to terminal gratuity. 3. It is the denial of terminal gratuity by the aforesaid communication, that compelled the petitioner to file the writ petition for the relief afore-quoted. (g) At his request, thus, the petitioner was discharged w.e.f. 13.12.1990. (h) By the communication dated 07.02.1992 and 18.02.1992, the petitioner was communicated that he was not entitled to terminal gratuity. 3. It is the denial of terminal gratuity by the aforesaid communication, that compelled the petitioner to file the writ petition for the relief afore-quoted. 4. The writ petition was contested by the respondents. They set up the case that the petitioner was not entitled to the grant of terminal gratuity under the Regulations for Territorial Army, 1948, because his case was not covered by the conditions mentioned in the Appendix XXVI. 5. The Single Judge by his order dated 07.03.2000 dismissed the writ petition holding that the petitioner was not entitled to the terminal gratuity. The petitioner up-set thereby has preferred this special appeal. 6. Para 2(b) and (c) of the Appendix XXVI of the Regulations for Territorial Army, 1948 enumerates the requisite conditions for the grant of gratuity as under: (i) On disbandment/re-organisation/inter-zonal transfer of unit, provided there is no other unit to which the officer/JCO can be transferred, or his consent to a transfer is necessary under the rules and he refuses to consent thereto. (ii) On reaching the retiring age as prescribed in Rule 14(c). (iii) On being declared medically unfit for further service subject to the provisions of sub-para (c) below. (iv) On completion of tenure of appointment or service limits. (v) When services are no longer required only than for disciplinary reasons (in the case of JCOs only). (c) In the case of termination of service on account of medical unfitness, the terminal gratuity will be payable only if the officer/JCO does not qualify for disability pension. 7. The question that falls for consideration is whether the case of the petitioner is covered by any of the categories enumerated in para 2(b) of Appendix XXVI of the Regulations for the Territorial Army, 1948. 8. The duplicate copy of the certificate of discharge has been placed on record by the petitioner. Though in the said discharge certificate Rule 16 has been mentioned but according to the appellant that has been subsequently clarified to have been issued under rule 14(c). Be that as it may, the fact of the matter is that the petitioner was discharged at his own request. Though in the said discharge certificate Rule 16 has been mentioned but according to the appellant that has been subsequently clarified to have been issued under rule 14(c). Be that as it may, the fact of the matter is that the petitioner was discharged at his own request. The discharge certificate records thus : "at his own request on extreme compassionate ground before fulfilling the condition of his enrolment." 9. We are afraid, the discharge of the petitioner at his own request is not covered by any of the clause of Para 2(b) of Appendix XXVI entitling him to the grant of terminal gratuity. More importantly the petitioner has given a certificate while seeking discharge that he would not claim terminal gratuity. In a case like this where the petitioner has been discharged at his own request, inter-alia, on the ground that he was engaged in civil service after obtaining no objection certificate from the authorities and that he was unable to continue with two services and represented to the authorities that he 1 would not claim terminal gratuity, we are afraid that the demand of the petitioner for terminal gratuity was wholly misplaced and misconceived. 10. The counsel for the petitioner would urge that some similarly situated persons who got discharge from the Territorial Army and also joined the civil service after obtaining the permission from the concerned authorities, have been given terminal gratuity while the same benefit has been denied to him. We find that save and except the bald statement, there is no adequate material that may enable the court to compare the case of the petitioner with those which the petitioner claims to be similarly situated and have been given terminal gratuity 11. In our considered view, for the claim of terminal gratuity, the petitioner has to bring his case in one of the Clauses of Para 2(b) of Appendix XXVI of the Regulations of Territorial Army, 1948. However, as noticed by us above, the petitioner’s case does not fall in any of the categories of Para 2(b) of Appendix XXVI since it was at his request that he was discharged and he in unequivocal terms represented to the authorities that he would not claim the gratuity. 12. We are, thus, satisfied that the order of the Single Judge does not suffer from any legal flaw justifying any interference by us. 13. 12. We are, thus, satisfied that the order of the Single Judge does not suffer from any legal flaw justifying any interference by us. 13. Special appeal is dismissed with no order as to costs.Appeal Dismissed. *******