* IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on : 14th July, 2010 Date of decision: 8th October, 2010 + W.P.(C) No.166/2010 CAPTAIN (MRS.) KRISHNA ..... Petitioner Through, Mr. S.K. Kakkar, Adv. & Mr. K.S. Pathania, Adv. versus UNION OF INDIA & ORS. ..... Respondents Through Mr. Jatan Singh, Adv. CORAM: HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MR. JUSTICE J.R. MIDHA 1. Whether reporters of local papers may be allowed to YES see the Judgment? 2. To be referred to the Reporter or not? YES 3. Whether the judgment should be reported in the Digest? YES GITA MITTAL, J 1. This petition manifests the conflict which may arise between matrimonial bliss and the call of duty in the armed forces because of the requirement of a serving personnel having to serve at locations far removed from her/his matrimonial home or the restrictions on movement even though there may be no separation by location. It draws attention to the urgent necessity of balancing personal and professional lives of the defence personnel and raises issues of the nature of the right to marriage and infringement of the petitioner's right to life under Article 21 and violation of Article 14 of the Constitution of India by the respondents by the manner of rejection of her application for resignation from service. WP (C) No.166/2010 Page No.1 of 55 2. Captain Mrs. Krishna, the petitioner herein, took admission in the B.Sc. (Nursing) course at the Armed Forces Medical College, Pune, in 1997 which she successfully completed in June, 2001. The petitioner got her permanent commission in the Indian Army on 7th June, 2001 in the Military Nursing Service ('MNS' hereafter). By dint of her service, she was subsequently promoted to the rank of Captain as Nursing Officer in the service. It is on record that from the 7th of June, 2001 to the 10th of September, 2001, the petitioner was posted at the CH (SC), Pune; and thereafter from the 14th of September, 2001 to the 9th of June, 2005 was posted at CH (NC) C/O 56 APO. From 10th June, 2005 till the passing of the impugned order, the petitioner remained posted at the Military Hospital, Roorkee, Uttranchal as Nursing Officer. 3. On the 10th of December, 2004, the petitioner is stated to have married one Shri Rajeev Vishwakarma in accordance with Hindu customs and traditions. From this wedlock, on the 23rd of September, 2005, the parties were blessed with a daughter who is presently aged about five years. 4. So far as the matrimonial home of the petitioner is concerned, her husband is stated to be employed with the Bharat Heavy Electrical Limited (BHEL) located at Ranipur, Haridwar. After marriage, for sometime the petitioner stayed with her husband at BHEL, Ranipur, Haridwar. However, on account of the distance between her place of residence and posting as well as service requirements, the petitioner has not been able to spend much time in the matrimonial home. The petitioner submits that after the birth of their daughter, her husband asked her to stay permanently with him along with their daughter and WP (C) No.166/2010 Page No.2 of 55 called upon her to resign from service. He expressed objection to the separation necessitated by her job requirements. The pressures of the service thus resulted in stress and strain on the petitioner's matrimonial life. 5. In view of the ensuing turmoil and expressing inability to tolerate the same any further, on the 5th of September, 2008, the petitioner's husband filed a petition seeking dissolution of their marriage by decree of divorce under Section 13(1)(i)(a) of the Hindu Marriage Act, 1955. This petition is premised, inter alia, on the ground that it was agreed by the parties before marriage that after its solemnization, the petitioner shall resign from service. The petitioner's husband has made a grievance that she is not performing her matrimonial duties; is not residing permanently with him and is not resigning from her job. He has also complained in his petition that thereby he has been deprived of wedded bliss and that not only he has to cook his own food and cope with a separation from his wife but is compelled to endure a separation also from his daughter. 6. The petitioner's husband contends that service compulsions have necessitated the separation of the petitioner from her husband and induced dejection and loneliness in him and he is desperate to end this kind of an arrangement. In this background, the petitioner is faced with the twin alternatives of either resigning from service or dissolving her marriage from her husband by a decree of divorce. 7. On account of this predicament coupled with the extreme emotional strife in her life, the petitioner submits that she is unable to concentrate on her duties and to give her best in service. Physically WP (C) No.166/2010 Page No.3 of 55 and mentally strained, the petitioner submits that the continuous stress and tension have also resulted in the deterioration of her health and as a result, she is now suffering from thalasemia minor. The writ petitioner has stated that she does not want divorce under any circumstance and wants an opportunity to end the acrimony and discord in her matrimonial life. In this background, she sought time from her husband to process her resignation. 8. The petitioner states that, in view of all these facts, she had no option but to make an application on 8th November, 2008 to the Commandant, MH Roorkee seeking permission to apply for resignation from commission on the above grounds. Our attention has been drawn to the recommendations on this application by the Principal Matron dated 10th November, 2008; the Registrar of the hospital dated 10th November, 2008 as well as the recommendations of the Commandant of the Military Hospital, Roorkee. 9. After obtaining such permission to resign, the petitioner submitted an application for resignation in the form prescribed in the annexure-1 to appendix `A’ of the Army Headquarters letter no.B/70030/DGMS-4A dated 31st December, 1999, which was registered as no.11048/Retire/Nur(o)/2008 dated 16th December, 2008 and also referred to as letter no.340023/M-F 25 dated 5th January, 2009. The petitioner furnished the requisite information, enclosing therewith a copy of the divorce petition, her medical records as well as all requisite undertakings including the undertaking that she had not attended any course involving an obligatory period of service during the last five years. The petitioner also submitted the certificate with WP (C) No.166/2010 Page No.4 of 55 the application in terms of appendix `B’ to the Army Headquarter letter dated 31st December, 1999 to the effect that she had not been allotted a PPO number by the CDA (P) and had not drawn any amount on account of pensionary awards including pension and an undertaking to pay amounts, if any, due to the Government before she was relieved of her duties. 10. As the petitioner did not hear anything on the fate of her resignation letter despite the passage of eight months, she addressed a letter dated 18th August, 2009 to the Commandant of the Military Hospital, Roorkee to know about the status of her resignation citing the problems stated in her request on account of which she would not be able to join her duties again. She requested the commandant to send a reminder to the authorities concerned with regard to her resignation. 11. In the meantime, a communication dated 17th August, 2009 was issued by the Integrated Headquarters of the MOD (Army), Adjutant General’s Branch of the Director General of Medical Services (Army), New Delhi addressed to the Headquarters of the Central Command (Med), informing that the petitioner's request for resignation was rejected on the following grounds:- “..................the nursing officer had sought resignation on the ground of marital disharmony leading to filing of divorce petition by her spouse. From the perusal of the contents of the petition, it is revealed that reasons for filing of court case is not merely the service of the nursing officer but also the ill treatment to her-in-laws by the nursing officer. In the petition her spouse has also alleged that the nursing officer is least interested in staying with him. Therefore, even her resignation from service will not resolve their marital disharmony. Hence her request WP (C) No.166/2010 Page No.5 of 55 for resignation from service has not been acceded to.” 12. The petitioner was informed of the rejection of this request under cover of a letter dated 31st August, 2009 issued by Shri A.S. Rathor, Colonel Sr. Registrar & OC TPS for Commandant and was called upon to join her unit. It was also informed that sixty days furlough leave had been sanctioned to her w.e.f. 8th September, 2009 and that an order dated 17th August, 2009 posting her to 7 AFH had been received. This movement was required to be implemented by 19th October, 2009. 13. Aggrieved by the rejection of her request for resignation from service as well as by order of her posting, the petitioner has filed the present writ petition seeking quashing of the order dated 17th August, 2009 with a direction to the respondents to accept her application for resignation and to discharge her from military service. Petitioner's contentions 14. In support of her writ petition, the petitioner has placed reliance on the instructions issued for applying for premature retirement/resignation from commission for Nursing Officers as are provided in appendix `A’ to the Army Headquarters letter No.B- 70030/DGMS-4A dated 31 st December, 1999 . It is contended that these army instructions govern processing and consideration of applications seeking to resign from service of members of the Military Nursing Service. The petitioner contends that having regard to the stated reasons, the respondents had no discretion at all thereunder so far as consideration of her application was concerned and were bound WP (C) No.166/2010 Page No.6 of 55 to have granted the same. The primary submission is that the rejection is arbitrary, is based on irrelevant considerations and fails to consider the relevant material. The challenge to her posting is premised on the illegality attributed to this rejection. 15. The petitioner has contended that her request for voluntary resignation falls under clause 4(b)(v)(aa) of the said instructions. It has been urged that the petitioner has been compelled to put in her request for voluntary resignation on the ground of extreme marital discord which she is facing due to her employment. The petitioner makes a grievance that the order violates her right to life, privacy and dignity guaranteed under Article 21 of the Constitution of India. 16. The petitioner has explained that on account of the exigency of service, she is unable to continuously cohabit with her husband. Her inability to fulfil her marital obligations is putting extreme pressure on her marriage so much so that her husband has filed a petition for divorce. In support of the prayer made in the writ petition, learned counsel for the petitioner has placed reliance on the judgment of the Supreme Court in (1990) 4 SCC 27 J.K. Cotton Spinning and Weaving Mills Company Ltd. Vs. State of UP & Ors. and the pronouncements of this court reported at 1996 (1) SLR 505 : 1995 (59) DLT 573 Major Rahul Shukla Vs. Union of India & Ors.; 2007 INDLAW DEL 176 Captain Preeti Giri Vs. Union of India & Ors.; 2000 (54) DRJ 188 Major S.K. Jain Vs. Union of India. 17. The submission is that the respondents were bound by the afore-noticed instructions and could not have rejected the application on any ground other than those stipulated thereunder. WP (C) No.166/2010 Page No.7 of 55 18. It is further contended that in the judicial pronouncements afore- noticed, the courts have held that the respondents were entitled to keep in view service exigencies and inability to make immediate alternative arrangements in consideration. However, even in such eventuality, the respondents had no jurisdiction to reject an application seeking to resign from service, but, had to keep the decision thereon it in abeyance till such time alternative arrangements are made. In this background, the petitioner has assailed the order dated 17th August, 2009 contending that the order is arbitrary, irrational and contrary to the binding instructions and guidelines read with the applicable law and is therefore also violative of Article 14 of the Constitution of India. The petitioner contends that unlike a prayer for voluntary retirement which is fettered by several riders and discretion lies with the competent authority to accept or reject the same but a request for resignation has to be treated on a differential footing as the discretionary power vested in the authorities for a decision on an application for resignation is limited and circumscribed. It has also been urged that the petitioner is not bound by any bond or undertaking which would compel her to continue in service. Respondent's submissions 19. The writ petition is vehemently opposed by Mr. Jatan Singh, learned Standing Counsel for the respondents who contends that the petitioner has no absolute right to acceptance of her prayer for resignation or premature release from the Army. It is urged that such request is required to be considered by the Government and discretion in this regard lies with the respondents in terms of Section WP (C) No.166/2010 Page No.8 of 55 11 of the Military Nursing Service Ordinance 1943 (`MNS Ordinance' hereafter) which stands elaborated by para 105(f) of the Defence Service Regulations (Vol.1) 1987. 20. It has further been contended that though the policy letter states that marital disharmony shall be considered as one of the grounds for sympathetic consideration of the request for release from service so far as the petitioner was concerned, the competent authority rejected her application for the reason that the basic ground for marital disharmony is not the separation of the petitioner and her husband but their mal-adjustment in personal relations. In this regard, the respondents have extensively quoted from the divorce petition in the counter affidavit and in the oral submissions and contended that the application of the petitioner was rightly rejected since it was devoid of any merit. 21. We may note that as per the respondents, only such applications for resignation are accepted on marital grounds where the respondents feel that the acceptance of the request will provide relief to the Nursing Officer and that she will thereafter live with her husband to lead a happy married life. Applicable rules 22. Before considering the contentions of the parties on the merits, we may consider the applicable rules and instructions governing the subject. The respondents have drawn our attention to the contents of the Defence Service Regulations Vol. 1, 1987. In this behalf, reliance has been placed on para 102 and 104(d) which may be usefully extracted and read as follows:- WP (C) No.166/2010 Page No.9 of 55 “102. Refusal of Employment– An officer is not at liberty to decline any employment in the Army for which he may be selected, nor can he throw himself out of employment by resignation of his appointment. xxx xxx xxx 104. Retirement and Resignation - xxx xxx xxx (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 has been accepted may apply to the Central Government for his application to be cancelled. In the case of officers who have once proceeded on leave pending retirement, permission to withdraw such applications will only be granted in exceptional circumstances. The decision of the Central Government on all applications to retire will be final.” The respondents have placed reliance on para 105(a) and (f) of the above regulations which reads as follows :- “105. Application for Resignation-(a) Application of officers of the Army resign their commission of to retire from the service will be forwarded through the prescribed channels to Army Hq. The applicant need not give a prospective date from which it is desired that the retirement/resignation should take effect as it may not be administratively convenient for the competent authority to take a decision by a desired date. However, if an applicant desires to retire from a specified date for any valid reasons, such as commutation of pension or higher rate of pension, he may indicate a prospective date in his application and submit his application not less than 4 months before that date. In the case of retirement with requisite qualifying service for pension, the applicant will also state where he wishes to draw his pension. xxx xxx xxx (f) The applications for premature retirement/resignation will be examined by Army HQ and submitted for consideration and approval of the COAS who may reject an application which is not based on adequate and justifiable reasons at his level without reference to the Government or recommend for WP (C) No.166/2010 Page No.10 of 55 acceptance by the Central Government. In case, the officer feels aggrieved by the decision of the COAS, he can, if he so chooses, file a statutory complaint addressed to the Central Government under the provisions of section 27 of the Army Act. The decision of the Central Government on application to retire premature/resign will be final.” 23. The petitioner has placed reliance on the Instructions which have been issued as Appendix `A' to the Army Headquarters letter bearing no.B/70030/DGMS/-4A dated 31 st December, 1999 on the subject of “Premature Retirement/Resignation from Service : Officers of MNS”. The relevant extracts of these instructions necessary for the present adjudication are set out hereafter:- “Introduction A nursing officer who desires to retire prematurely or resign her commission before she becomes due for retirement on account of superannuation may apply for premature retirement/resignation as per the instructions contained in this letter. xxx xxx xxx Criteria for Acceptance 4. The grounds for premature retirement/resignation will be considered on individual merits subject to service requirements. For acceptance of an application the guidelines/criteria laid down by the Min. of Def which are enclosed as Appx `A’ will be the guiding factors. However, the following guidelines in order of preference would be followed for recommending applications for PR/resignation. xxx xxx xxx (b) Extreme Compassionate Grounds : The request on extreme compassionate grounds will be considered after the facts represented by the nursing officers are verified to the extent possible. The following compassionate grounds will be given preference for acceptance of request for premature retirement/resignation:- WP (C) No.166/2010 Page No.11 of 55 xxx xxx xxx (v) Marital disharmony (aa) Where there is a threat of divorce corroborated by a certificate from Registrar of the court but not from his/her counsel regarding filing of a case in the court for divorce with a copy of court documents. (ab) Spouse settled abroad and unwilling to return to the country – a certificate duly attested by a First Class Magistrate to be produced by the applicant. xxx xxx xxx Essential Conditions 5. Conditional requests for premature retirement/resignation which are coupled with postings, reconsideration of punishment, expunction of adverse remarks in annual confidential reports etc. will not be entertained. The aggrieved nursing officer may be advised to take up such issues separately and submit applications for premature retirement/resignation only when they have finally decided to leave service unconditionally, applications from the nursing officers for premature retirement/resignation whose statutory/non- statutory complaints are pending will be considered only after decision on the complaint is communicated and the officer decides to leave the service unconditionally. However, the concerned nursing officer, if she so desires, may withdraw her complaint under intimation to all concerned before submitting her application for premature retirement/resignation. 6. Applications from the nursing officers who are involved in any disciplinary case or enquiry, judicial or quasi judicial proceedings, will not be forwarded to this HQ until the case against them is finalized. In case the nursing officer gets involved in any such cases after forwarding her application the matter will be immediately reported to this HQ and AC/DV-2 at the earliest. In this connection attention is also invited to paras 6-8 (a & c) of AG’s Branch letter No.B/39010/AG/PS-4C dated 11 Aug 95.” Discussion 24. It is noteworthy that the instructions dated 31st December, 1999 WP (C) No.166/2010 Page No.12 of 55 have been specifically issued for the Military Nursing Service and are the only guidance on the subject. The respondents have also not disputed the validity and the bindingness of these instructions on the subject. We thus find that the manner in which a request for voluntary resignation from service by an officer of the Military Nursing Service is to be made, processed, as well as the considerations which would guide the decision making on such a request are stipulated in the afore extracted instructions which have been annexed as appendix `A' to the Army Headquarters letter dated 31st December, 1999. No other rule, regulation or instruction on the subject has been pointed out. 25. The petitioner has urged that having regard to the admittedly binding instructions and the guidelines provided therein, it was not open to the respondents to reject the petitioner's request for resignation from service on a ground other than one which is stipulated thereunder. 26. There can be no dispute also to the applicability of the Defence Service Regulations relied upon by the respondents. However, it needs no elaboration that a decision rejecting an application to be relieved from service which impacts fundamental rights of a party and is assailed on grounds of arbitrariness and irrationality, would be subject to judicial review in appropriate proceedings despite the statement that finality is attached to it in para 104(d) of the said Regulation as extracted above. Nature of right involved 27. The first issue which bears consideration as to what is the nature WP (C) No.166/2010 Page No.13 of 55 of the right of the petitioner which is involved. The petitioner submits that by resigning her commission, she is making an endeavour to preserve her family by dispelling the acrimony and discord in her matrimonial life. 28. It is important to note that the expression “family” as a social unit is not specifically statutorily defined in any legislation in India. International perspectives and impact on the right involved in the present case 29. The right to family life has, however, been placed at the highest pedestal and has attained comprehensive recognition and protection in international law. It is noteworthy that several international conventions are centered around the family as a unit and list such right as a fundamental and basic human right. Foremost amongst these is the Universal Declaration of Human Rights, 1948. Articles 12, 16 and 25 of this declaration unequivocally state that family is a natural and fundamental group unit of society which is entitled to protection by society and the state, and stipulate as follows:- “Article 12 No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence. Everyone has the right to the protection of the law against such interference. Article 16 1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. 2. Marriage shall be entered into only with the free and full consent of the intending spouses. 3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. WP (C) No.166/2010 Page No.14 of 55 xxx xxx Article 25 1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services.. 2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.” India voted in favour of this declaration and has also adopted it.” (emphasis supplied) 30.