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2022 DIGILAW 36 (JK)

Ajay Sharma v. Union of India

2022-02-11

RAJNESH OSWAL

body2022
JUDGMENT : Rajnesh Oswal, J.-The petitioner has claimed the following reliefs through the medium of the present writ petition: a. Certiorari, seeking to quash communication No. 00226/2/A1 dated 13/12/2011, from the then Commanding Officer, 106 Inf Bn (TA) PARA, addressed to the petitioner, whereby and whereunder, it has been conveyed to the petitioner that since the petitioner is serving in J&K Police, as such, the petitioner became ineligible for grant of Commission in Territorial Army by virtue of Para No.126 (C) of Territorial Army Regulations 1948 (Revised Edition 1976). b. Mandamus, commanding the respondent Nos. 1, 2, 4 and 5, to allow the petitioner to join as Commissioned Officer in the rank of Lieutenant in the Territorial Army in terms of communication No. 84881/273/TA-4 dated 19.10.2011, with consequential benefits of higher rank and other financial benefits, which would have accrued to the petitioner, had the petitioner been allowed to join the Territorial Army, pursuant to his commissioning in the said Army, with further direction to respondent No. 3, to relieve the petitioner from the service of the J&K Police, as and when required by the Territorial Army, while being gainfully employed in J&K Police. Facts: 2. The petitioner after completing his B.Sc. Part-II examination, got employment in the Merchant Navy and remained in the employment till 2010. In the meanwhile, the petitioner completed his B.Sc. (Electronics) from University of Jammu. After acquiring qualification of graduation, while the petitioner was working in Merchant Navy, he in response to Advertisement Notice issued by the Territorial Army in the year 2009-10, applied for grant of commission in the rank of Lieutenant in Territorial Army. As per the notice, only such male citizens of India and Ex-Service Officers of the three services, who were medically fit, aged between 18 to 42 years as on 15.03.2010 with the qualification of graduation from the recognized University and those gainfully employed in the Central Government, Semi-Government/private firm/own business could apply. It was nowhere provided in the said notice that the applicant should not have been gainfully employed while working in the State Police. During the period of ongoing selection process for grant of commission in the Territorial Army, the petitioner was selected as Deputy Superintendent of Police and appointment order was issued in favour of the petitioner vide Government Order dated 08.04.2011. The petitioner joined Jammu and Kashmir Police, as Deputy Superintendent of Police on 13.04.2011. During the period of ongoing selection process for grant of commission in the Territorial Army, the petitioner was selected as Deputy Superintendent of Police and appointment order was issued in favour of the petitioner vide Government Order dated 08.04.2011. The petitioner joined Jammu and Kashmir Police, as Deputy Superintendent of Police on 13.04.2011. The petitioner was also selected for grant of commission in the Territorial Army with effect from the date, the petitioner reported for training and petitioner was intimated vide communication bearing No. 84881/273/TA-4 dated 19.10.2011 from the office of respondent No. 4. The petitioner was also informed that he was posted to 106-Inf. Bn(TA) PARA and was directed to report to the said unit by 17.12.2011. After the receipt of the said communication, the petitioner represented before respondent No. 5, vide letter dated 25.11.2011 that the petitioner was undergoing Police Officers training at Udhampur and that the petitioner has been approved to undergo military training in 16-Corps Battle School Sarole, Rajouri, which was scheduled to commence from 24.12.2011 and that the military training in Battle School Rajouri be considered as military training under Territorial Army Rules and in terms of 19 (e) of the Territorial Army Rules, 1948, the petitioner be exempted from recruit training. The further request was made that the joining of the petitioner in the Territorial Army be considered with effect from 24.12.2011, when the petitioner had to join the military training in Battle School Rajouri. While the petitioner was awaiting completion of his Police training, he received impugned communication dated 13.12.2011 where by then Commanding Officer 106-Inf.Bn (TA) PARA who, by misreading and misinterpreting Regulation 126 (C) of the Territorial Army Regulations, informed the petitioner that in accordance with the Regulation (supra), members of the police are not permitted to join the Territorial Army and he further informed the petitioner that since the petitioner was serving in J&K Police, so he became ineligible for grant of commission in Territorial Army. The petitioner was further advised that in case, the petitioner wanted to join Territorial Army, then the petitioner should resign from Jammu and Kashmir Police and join Territorial Army. The petitioner was further advised that in case, the petitioner wanted to join Territorial Army, then the petitioner should resign from Jammu and Kashmir Police and join Territorial Army. The petitioner being in disciplined force trusted that good sense would prevail and the request of the petitioner for allowing him to join Territorial Army after the completion of the military training will be acceded to, but when it was not done, Commander 6 Sector Rashtriya Rifles in his letter dated 23.12.2015 addressed to Commander TA Group HQ Northern command strongly recommended the case of the petitioner with a request to waive off the Regulation 126 (c) in case of the petitioner. The petitioner claims to have worked very efficiently and has relied upon the various appreciation letters issued by the Army, Police and various other authorities. The petitioner also claims to have made various representations with the respondents and even the Hon’ble Defence Minister, but without any positive outcome. 3. The petitioner has impugned communication No. 00226/2/A1 dated 13/12/2011 primarily on the following grounds: a. That the impugned communication No. 00226/2/A1 dated 13.12.2011 is required to be quashed as the same is the result of mis-interpretation of regulation 126 (C) of the Territorial Army Regulations, 1948. The Regulation 2 makes it crystal clear beyond any doubt that only “enrolled” persons of the Territorial Army are subject to the provisions of the Regulations meaning thereby that the said regulations are not applicable to the “officer” as defined under the Act. b. That even otherwise, no power is vested in the Act of 1948 or the Rules of 1964 to frame regulations and therefore Rule 126 (c) cannot be cited to block the joining of the petitioner as commissioned Officer in the Territorial Army. c. That the impugned communication is the result non-application of mind by the then Commanding Officer in as much as, the then Commanding Officer has failed to apply his mind to the words and phrases used in regulation 126 (C), which clearly refers to “Special Police” and “Reserve Police” personnel mentioned in regulation 126 (a), while using the words members of the police, in sub-regulation (C) and has instead given his own meaning to these words and interpreted these as being referred to regular police force like the Jammu and Kashmir police. d. That the petitioner made several representations to join as a Lieutenant in the Territorial Army and as late as in the month of February 2017, the petitioner even met then Hon’ble Defence Minister of India seeking his kind indulgence in the matter but the respondents are still sleeping over this matter. e. That the petitioner could not approach the court earlier for the reason that the petitioner being from disciplinary force had full faith in the authorities that they shall appreciate the claim of the petitioner and that was precisely the reason that the petitioner represented before Army officers and up to the country’s Defence Minister and when nothing came out, the petitioner is approaching the Hon’ble court. Moreover the petitioner’s fundamental rights cannot be made slave to delay and laches. Version of the respondents: 4. The respondents other than respondent No. 3 have filed their response, in which besides mentioning in detail the conceptual framework of the Territorial Army, it has been stated that the petitioner was selected by Service Selection Centre East, Allahabad in January 2011, for commissioning in the Territorial Army. On selection, the petitioner underwent medical examination at Military Hospital, Allahabad and was declared fit. After the completion of the documentation, the Dossier of the petitioner was forwarded to Ministry of Defence for approval. Ministry of Defence approved the case for commissioning of the petitioner together with 10 other candidates on 11.10.2011. On approval, Territorial Army Directorate issued an offer letter No. 84881/273/TA-4 dated 19.10.2011 to the petitioner for report to 106-Inf. Bn (TA) PARA within 60 days. The last date of reporting given was 17.12.2011. On 05.12.2011, the petitioner requested for extension of joining time by two months. In the meantime, petitioner was selected in J&K Police, as intimated by 106-Inf. Bn(TA) PARA vide signal No. A-0340 dated 14.11.2011. As per para 126 (c) of Territorial Army Regulations 1948 (Revised Edition 1976) members of the Police, GREF and the other Organizations mentioned will not be permitted to join the Territorial Army. The Territorial Army Directorate sent a signal dated 29.11.2011 to the Unit stating that petitioner be informed to either resign from J&K Police or express his inability to join the Territorial Army in writing so that cancellation of his Territorial Army commission could be processed. The petitioner neither forwarded copy of his resignation nor rendered his unwillingness to join the Territorial Army. The petitioner neither forwarded copy of his resignation nor rendered his unwillingness to join the Territorial Army. He did not report to the allotted unit within the stipulated time. Accordingly, as per para-2 of the offer letter, once the offer automatically lapsed, his commission in Territorial Army also stood cancelled. The offer letter of the Territorial Army commission has already lapsed and become null and void since the petitioner did not report to the Unit as per the offer letter. The petitioner, thereafter approached the Territorial Army Directorate through various channels to grant him Territorial Army commission while wanting to continue with his police service. The case was forwarded to Ministry of Defence wherein Ministry of Defence (GS-III) vide Note 7 has stated that the petitioner is not eligible for commissioning in the Territorial Army in terms of para 126 (C) of TA Regulations 1948. It is further stated that the petitioner was not employed with the State Police but was employed with Merchant Navy at the time when he applied for grant of Commission. The petitioner’s submission that TA Rules are not with regard to the persons, who have been commissioned is not correct. The petitioner has very selectively only stated the rules with respect to persons enrolled but has conveniently overlooked Rules, which are applicable to officers. Moreover, section 1(2) of the TA Act applies to all classes of persons in the Territorial Army, which includes commissioned officers and hence, Rules made under the authority of section 14 of the Territorial Army Act are equally applicable to the commissioned officers as admitted by the petitioner with regard to rule 12 (b). It is also stated that the petitioner cannot agitate the issue with regard to para 126 (c) of the Territorial Army Regulations as the petitioner did not adhere to offer letter dated 19.10.2011 and has, therefore, lost the claim to be considered for the grant of commission. Further section 14(2) of TA Act clearly lays down the guidelines as to the contents of the rules, that may formulate procedure for execution and implementation of the Act. Section 14 (2) (h) of TA Act clearly stipulates that rules may provide for any other matter which under this act is to be or may be prescribed. Further section 14(2) of TA Act clearly lays down the guidelines as to the contents of the rules, that may formulate procedure for execution and implementation of the Act. Section 14 (2) (h) of TA Act clearly stipulates that rules may provide for any other matter which under this act is to be or may be prescribed. It is nowhere stated that the said regulations exclude or that they do not apply to the officers as class, therefore, the interpretation of the petitioner that the commissioned officers are not subject to Rules and more so to paragraph 126 (c) of the Regulations is incorrect. It is further stated that the Regulations provide various provisions in respect of officers with respect to their appointment, promotions, retention, transfer, retirement, pay and allowances and lays down administrative instructions for TA officers. It is also stated that question of exemption of training or otherwise would arise only after the petitioner had met the terms and conditions of the offer letter and in the said offer letter it was mentioned that the necessary commissioning order will be issued only after petitioner’s reporting to the unit. The respondents have also stated that the petitioner vide another communication dated 05.12.2011 addressed to Commanding Officer, 106-Inf.Bn(TA) PARA had stated that he may be granted extension of two months for the purpose of urgent sailing requirement by his parent organization, as such, the petitioner had misrepresented the facts for seeking extension of joining time because at that relevant time, he was serving with J&K Police and not with Merchant Navy, as already admitted by him. Further, it is stated that the training for four weeks with 16 Corps Battle School, Sarole cannot be equated with mandatory recruit training under Rule 19 of TA Rules of 1964. In nut-shell, the respondents have denied the entitlement of the petitioner to the Commission in the Territorial Army as the petitioner is not eligible in view of the Regulations mentioned above. 5. With the consent of the learned counsels appearing for the respective parties, the present petition was taken up for final disposal. 6. Mr. Abhinav Sharma, learned senior counsel appearing for the petitioner vehemently argued that the contesting respondents have wrongly not allowed the petitioner to join the Territorial Army as Lieutenant as the Regulations were not applicable to the officers but only to the persons enrolled under the Act. 6. Mr. Abhinav Sharma, learned senior counsel appearing for the petitioner vehemently argued that the contesting respondents have wrongly not allowed the petitioner to join the Territorial Army as Lieutenant as the Regulations were not applicable to the officers but only to the persons enrolled under the Act. He further submitted that otherwise also, the respondent No. 1 had no authority to frame the rules as section 14 of the Act specifically provided for the framing of rules for enrolled persons only. He also laid stress that even if for the sake of arguments, it is accepted that the regulation in question is applicable for officers also, even then the bar contained in the Regulations would apply only in case of special Police or reserve forces and not to the members of the regular police like Jammu and Kashmir Police. 7. Mr. Parimoksh Seth, learned Central Government Standing Counsel, submitted that the petitioner did not comply with the conditions of offer letter as he did not join within the period stipulated in the same, therefore he has lost his right to be commissioned as Lieutenant in the Territorial Army. He further submitted that the petitioner has not challenged the Regulation 126 (C) of the Territorial Army Regulations, as such, the present petition is misconceived. He also strenuously argued that the Regulations are applicable both to the persons enrolled as well as the officers commissioned under the Act. Lastly, Mr Seth argued that the petitioner has approached this Court after inordinate delay. 8. Heard learned counsel for the parties and perused the record. Discussion: 9. Following issues arise for consideration of this Court: 1. Whether the respondent No. 1 had no authority to frame the Territorial Army Regulations 1948, (1976 Edition) under the Act or Rules? 2. Whether the Territorial Army Regulations 1948, (1976 Edition) are not applicable in case of officers as defined under the Act? 3. Whether the persons serving only in “Special Force” and “Special Police” are barred by Regulation 126(C) to join as officer in the Territorial Army? 4. Whether the petition is required to be dismissed on the ground of delay and laches ? Issue No. 1: 10. Though the petitioner has not challenged the Territorial Army Regulations, 1948 (1976 Edition) but one of the grounds urged by the petitioner is with regard to the power vested in respondent No.1 to frame the said regulations. 4. Whether the petition is required to be dismissed on the ground of delay and laches ? Issue No. 1: 10. Though the petitioner has not challenged the Territorial Army Regulations, 1948 (1976 Edition) but one of the grounds urged by the petitioner is with regard to the power vested in respondent No.1 to frame the said regulations. The perusal of SRO 231 of 1976 of Ministry of Defence 1976 by virtue of which the Territorial Army Regulations 1948 were amended, reveals that the said amendment has been made by invoking section 14 of the Act (supra). Section 14 of the Territorial Army Act is reproduced as under: “14. Power to make rules: (1) The Central Government may make rules to carry out the purposes of this Act. Section 14 of the Territorial Army Act is reproduced as under: “14. Power to make rules: (1) The Central Government may make rules to carry out the purposes of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may- (a) prescribe the form under sub-section (4) of section 6A, the particulars that should be furnished therein and the authority with which, and the period within which, the form should be lodged; (aa) prescribe the procedure for requiring persons liable for compulsory service in the Territorial Army to be medically or otherwise examined with a view to determining whether they satisfy the conditions imposed under this Act; (aaa) prescribe the manner in which, and the period for which and the conditions subject to which any person may be enrolled under this Act or may be required to perform compulsory service in the Territorial Army; (b) prescribe the manner in which and the conditions subject to which officers and enrolled persons may be called out for service, or embodied for training or for supporting or for supplementing the Regular Army or attached to the Regular Army, (c) prescribe preliminary and periodical military training, compulsory and voluntary, for any enrolled person and provide for the embodiment of any unit for that purpose; (d) define the manner in which and the conditions under which any enrolled person may be excused from training; (dd) specify the authority for the purpose of the proviso to sub- section (1) of section 7A and the manner in which any inquiry may be held by him; (ddd) define the rights under section 7B; (e) prescribe the authorities by which and the conditions subject to which enrolled persons may be discharged under section 8; (f) prescribe the authorities by which offences under this Act may be punished and the fine inflicted may be recovered; (g) prescribe the officers by whom certificates may be signed under section 12; (h) generally provide for any other matter which under this Act is to be or may be prescribed.” 11. Thus, section 14 of the Act is wide enough to confer upon the central Government the power to make any rule on any matter in order to carry out the purposes of the Act. Merely use of word Regulation would not make any difference. Thus, section 14 of the Act is wide enough to confer upon the central Government the power to make any rule on any matter in order to carry out the purposes of the Act. Merely use of word Regulation would not make any difference. The petitioner has not been able to demonstrate that the said regulations could not have been framed by the Central Government. This court finds substance in the submissions made by the respondents that by virtue of section 14 of the Territorial Army act 1948, such power vests in the central government and the Territorial Army Regulations are issued under the authority of the Government of India, which are laid down for the management and administration of the Territorial Army. As such the contention of the petitioner with regard to the lack of power with the respondent No. 1 to frame the Territorial Army Regulations, 1948 (1976) is without any force and as such, is rejected. Issue No. 2: 12. The contention of the petitioner is that as per mandate of section 4 of Territorial Army act 1948, “officers” and “enrolled persons” constitute the personnel of the Territorial Army and the rules as well as regulations are applicable only in the case of persons “enrolled” under the Act and not to the “officers”. Section 2 of the Act defines “enrolled”, “officer” and “non-commissioned Officer”. So far as Territorial Army Rules 1948 are concerned, Rule 12(b) provides that rules for appointment of officers of the Territorial Army shall be same as for Regular army and further Rule 14 provides for discharge of not only persons enrolled but also for officers as well, though the rules are same as applicable to officers of Regular Army. The perusal of Territorial Army Regulations 1948, (1976 Edition) reveals that chapter 3 of the regulations deal with appointments, Precedence, Promotion, Retention, Seconding, Resignation, Transfer, Retirement and Retention of rank in case of officers. As such it cannot be said that the said Regulations are applicable only to persons “enrolled” under the Act. Thus, it is evident that Territorial Army Regulations 1948, (1976 Edition) are applicable not only in case of persons enrolled but also officers as well. Issue No. 3: 13. In order to determine this issue, it is appropriate to take note of Regulation 126 of Territorial Army Regulations 1948 (1976 Revised Edition) and the said Regulation is reproduced as under: “126. Issue No. 3: 13. In order to determine this issue, it is appropriate to take note of Regulation 126 of Territorial Army Regulations 1948 (1976 Revised Edition) and the said Regulation is reproduced as under: “126. Employment with the civil organizations- (a) Personnel of the Territorial Army are not permitted to join any civil organizations like special/reserve police and Raksha Dal which provide part-time employment only. (b) TA personnel desirous of joining police, GREF and like forces on full-time basis are permitted to do so. Applications for employment in the police, GREF and like forces will be made through the officer commanding the unit, who will, on receipt of intimation from the civil authorities concerned, take necessary steps to discharge the other ranks affected and in case of officers and JCOs, their resignations will be forwarded to Army headquarters through normal channels. (c) Members of the police and the above-mentioned organizations will not be permitted to join the territorial Army. From the plain reading of the regulation, it is evident that the members of the Police and the Organizations mentioned in the Regulation are not permitted to join the Territorial Army. The contention of the petitioner that the bar in joining the Territorial Army applies only to the members of special/reserve police, is misconceived and without any basis, as such, the said contention is rejected. Issue No. 4: 14. This Court is of the opinion that the writ petition of the petitioner deserves to be dismissed on the ground of delay and laches also. The petitioner has impugned the communication No. 00226/2/A1 dated 13.12.2011 through the medium of present writ petition, filed only on 06.03.2018, meaning thereby that the petition was filed after 6 years and 3 months from the date when the cause of action accrued to the petitioner and this court is of the considered view that there is inordinate delay on the part of the petitioner in filing the present petition. Though the petitioner has tried to explain the delay by stating that the petitioner being from disciplinary force had full faith in the authorities that they shall appreciate the claim of petitioner and that was precisely the reason the petitioner represented before the Army Officers, but this Court is of the considered view that merely making the repeated representations before the authorities for the consideration of his claim would not furnish any fresh cause of action. 15. In “State of Uttaranchal and another vs. Shiv Charan Singh Bhandari and Others”, reported in (2013) 12 SCC 179 , Hon’ble Apex Court had an occasion to consider question of delay in challenging the promotion. The Apex Court further held that representations relating to a stale claim or dead grievance, does not give rise to a fresh cause of action. In Paragraph Nos. 19 and 23, it was held as under :- “19. From the aforesaid authorities it is clear as crystal that even if the court or tribunal directs for consideration of representations relating to a stale claim or dead grievance it does not give rise to a fresh cause of action. The dead cause of action cannot rise like a phoenix. Similarly, a mere submission of representation to the competent authority does not arrest time. 23. In State of T.N. v. Seshachalam, (2007) 10 SCC 137 , this Court, testing the equality clause on the bedrock of delay and laches pertaining to grant of service benefit, has ruled thus: (SCC p. 145, para 16) “16. … filing of representations alone would not save the period of limitation. Delay or laches is a relevant factor for a court of law to determine the question as to whether the claim made by an applicant deserves consideration. Delay and/or laches on the part of a government servant may deprive him of the benefit which had been given to others. Article 14 of the Constitution of India would not, in a situation of that nature, be attracted as it is well known that law leans in favour of those who are alert and vigilant.” 16. In view of all what has been discussed above, there is no merit in the present petition, as such, the same is dismissed.