1 wp289-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.289 OF 2011 1. Major Yogesh Chandra Madhav Sayanakar, ) of Pune, Indian Inhabitant, having his ) permanent residence at C 903, ) Purva Heights, Sus Pashan Road, ) Pune-21, presently serving with, ) 60 Rashtriya Rifles (Naga) ) C/o. 56, A.P.O. ) 2. Ms. Shruti Kulkarni, ) Overseas Citizen of India, having her ) address at 1413, Sever Creek Drive, ) Lawrenceville, Georgia 30042, USA. ).. Petitioners. Versus 1. The Chief of Army Staff ) Integrated Head Quarters (Army) ) Ministry of Defence ) New Delhi DHQ PO 110001. ) 2. The Director General of Military ) Intelligence (MI 10), ) Integrated Head Quarters, ) Ministry of Defence ) New Delhi – 110001. ) 3. The General Officer Commanding, ) Head Quarter Counter Insurgency ) Force (U) C/o. 56 A.P.O.934757. ) 4. The Sector Commander, ) Head Quarter 14 Sector Rashtriya Rifles, ) C/o. 56 A.P.O.934714. ) 2 wp289-11.sxw 5. The Commanding Officer, ) 60 Rashtriya Rifles (Naga) ) C/o. 56, A.P.O.934560. ) 6. The Union of India, ) through the Secretary, ) Ministry of Defence, ) 8, Development Enclave, Delhi Cant. ) New, Behind Army Head Quarters Camp. ) New Delhi- 110010. )... Respondents Mr. Anand Grover, Senior Advocate with Mr. Lorrain Misquith i/by Mr. Prakash Mahadik for the petitioners. Ms. Gauri Godse with Mr. Jaydeep S. Deo for respondent No.6. CORAM : MOHIT S. SHAH, C.J. & S.J. VAZIFDAR, J. JUDGMENT RESERVED ON : 17TH MARCH, 2011 JUDGMENT PRONOUNCED ON : 25TH MARCH, 2011 JUDGME NT (Per Chief Justice) In this petition under Article 226 of the Constitution, petitioner No.1 a Major in the Engineering Regiment of the Indian Army, has challenged the communication dated 8th December 2010 of Joint Director MS/Premature Retirement for Military Secretary (Exhibit “A” to the petition) informing petitioner No.1 that the application of petitioner No.1 for resignation from Army service has been rejected by the competent authority. 3 wp289-11.sxw 2. The Petitioners’ case is that petitioner No.1 obtained a degree in Civil Engineering in first class from the Maharashtra Institute of Technology, Pune in June 2005 and immediately thereafter petitioner No.1 joined the Indian Military Academy and underwent training from 11th July 2005 to 10th June 2006 at the said Academy at Dehradun. Upon completion of the training, petitioner No.1 was commissioned in the same regiment, 109 RAPID (Strike) Engineer Regiment which was commanded by his father Col. (Retd) M.B. Sayankar in 1990-92. On 1st July 2006, petitioner No.1 was granted substantive promotion to the rank of Captain. Petitioner No.1 was promoted as Acting Major on 26th July 2009 and is presently rendering his services as Major in Jammu & Kashmir. 3. Sometime in March 2009, petitioner No.1 was on leave and went to Pune to spend his vacation where he met petitioner No.2 through a common friend. Petitioner Nos.1 and 2 got engaged on 25th December 2009. Petitioner No.2, Ms.Shruti Kulkarni is a US citizen and also holds status of an Overseas Citizen of India (OCI). Since the application of petitioner No.1 for resignation in order to marry petitioner No.2 Ms.Shruti Kulkarni has been rejected and the challenge in the present petition is to the said decision, it is necessary to give some background facts about petitioner No.2-Ms.Shruti Kulkarni, which facts were also pointed out by petitioner No.1 to the respondents in the Statutory Complaint dated 9th June 2010: - “(c) I have been engaged to Miss Shruti Kiran Kulkarni since 25 Dec 2009. She was born in Mumbai (then 4 wp289-11.sxw Bombay), India on 23 Sep 1983. Her father Mr. Subahu Mehta met with a fatal accident within two months of her birth. Her mother Mrs. Paru Mehta married Mr. Kiran Kulkarni when Shruti was two yrs. old. Mr. Kiran Kulkarni adopted her and changed her name to Miss Shruti Kiran Kulkarni. She is currently a citizen of the United States of America (USA) and holds the status of an Overseas Citizen of India (OCI). Her parents, Mr. Kiran Vyankatesh Kulkarni and (Mrs. Paru Subahu Mehta) now Mrs. Paru Kiran Kulkarni were both born in traditional hindu families and raised in India, however are now settled in USA and are citizens of USA. (d) My fiancee lived in Mumbai until 1990 and subsequently moved to the USA with her parents when they migrated to that country. Most of her close relatives are in Pune and Mumbai and she is a frequent visitor to India to meet her relatives. She also lived and studied in Pune from Aug 1996 to Oct 1998 in 8th and 9th standard at Vikhe Patil Memorial School. Most recently, she was staying in Pune with her grandparents from August 2008-Apr. 2009, when I met her while on leave there in Mar 2009 through a mutual friend." The above statutory complaint was given by petitioner No.1 against Respondent No.2 not being granted permission to marry petitioner No.2 an Overseas Citizen of India and holding citizenship of USA. 4. In view of Army Regulations, petitioner No.1 is required to obtain prior permission of the higher authorities to marry petitioner No.2, 5 wp289-11.sxw who is a foreign national. Under Army Order 14/2004-MI-Marriage with Foreign Nationals- army personnel desirous of marrying foreign nationals except the nationals of Bhutan, are required to obtain prior Government sanction for such marriages. The Army Order lays down guidelines and rules/procedure governing marriage of serving service personnel with foreign nationals. Application for such prior sanction is required to be given through proper channels 120 days prior to the proposed date of marriage. The relevant paragraphs read as under :- “5. Application will be accompanied by the following documents:- (a) An application from the service person for release from Army for personal reasons as per Appendix `B' to this order. (b) A written undertaking from the foreign national to the effect that she/he will renounce her/his original nationality and accept Indian Citizenship as soon as the Indian Citizenship Act, 1955 permits her/him to do so, as per Appendix C to this order. Appx C will be countersigned by the Judicial Magistrate or notary or equivalent of the concerned country. (c) An undertaking from the Service person as per Appendix `D' to this order to the effect that his/her case for release from the service may be processed automatically as per the application for release from service submitted vide para 5(a) above, if his/her spouse refuses to acquire Indian Citizenship or willfully delays acquisition of Indian Citizenship. 10. The application for release vide para 5(a) above will not be treated as automatically accepted. The disposal of 6 wp289-11.sxw each application will be regarded as a separate case and each will be decided on its own merit.” Action against service personnel who contract marriage with foreign national without AG's approval. 17. In case an Army personnel contracts marriage with foreign national without AG's permission or proposes to resign, in order to be able to marry a foreign national, before completion of the term of his enrolment or before completion of the laid down retirement/tenure of service he or she shall have to refund the entire cost of his/her training. 18. Names of personnel, who contract marriage with foreign nationals without permission will be reported by units through proper Staff channel to Army HQ AG's Branch (AG/DV Dte, DV-2 in case of officers and DV-3 for PBOR) under intimation to MP-6, MPRS(O), Record office concerned and DGMI/MI-10. Thereafter adm. actions to terminate the services of the personnel will be undertaken by AG's (DV-2/DV-3) Branch in consultation with DGMI/MI-10 and MS Branch. 19. In the event of failure/refusal by the spouse to change her/his nationality as per para 5(c) above, a case shall be processed with a view to release/retire the individual from service without terminal benefit and obtain refund of entire cost of training. 20. The application for resignation of an officer will be routed to Army HQ, MS Branch through staff channel who in turn will obtain Govt. sanction in consultation with MI Dte (from security point of view) and MT Dte (for recovery of the cost of training) and process the case as per Govt's sanction. 7 wp289-11.sxw 26. The above are general guidelines to ensure uniformity of action in processing the cases of marriage of service persons with foreign nationals and this supersedes AO 46/2001." (emphasis supplied) 5. Petitioner No.1 submitted an application dated 27th March 2010 requesting respondent No.2 Director General of Military Intelligence at New Delhi to consider the application of petitioner No.1 for release from service as petitioner No.2, to whom petitioner No.1 is engaged, is not willing to renounce her US citizenship. It was indicated that the petitioners' wedding was scheduled to take place in December 2010. Since petitioner No.1 was not granted sanction to marry petitioner No.2 coupled with his request to release from service, petitioner No.1 moved this Court by filing Writ Petition No.6277 of 2010. Petitioner No. 1 contended that since petitioner No.2, who is an Overseas Citizen of India, is not prepared to acquire Indian citizenship after giving up US citizenship, the respondents were required to process the application of Petitioner No.1 as an application for release from service automatically as provided in paragraph 5(c) of the Army Order. 6. The petition was opposed by the respondents. It was submitted that since petitioner No.2 had made her intention clear that she will not renounce her US citizenship and was, therefore, not giving any undertaking under clause (c) of Paragraph 5, petitioner No.1 was not given permission to marry petitioner No.2, a foreign national nor could his request be considered under Paragraph 5. 8 wp289-11.sxw 7. After hearing the learned counsel for the parties, this Court disposed of the Writ Petition on 26th October 2010 after giving following findings and directions :- “15. In the facts of the present case, since petitioner no.2, fiancee of petitioner no.2 and a foreign national, has made her intention clear not to renounce her US citizenship, paragraph 5 cannot now be invoked. 16. Even so we are inclined to consider the petitioners' prayer for relief in terms of prayer (c) inasmuch as paragraphs 17 and 20 of the Army Order do contemplate that where an Army Officer proposes to resign in order to marry a foreign national, before completion of his term of his enrollment or before completion of the laid down retirement/tenure of service, such an application will have to be considered in accordance with paragraphs 17 and 20 of the Army Order. Of course, at the time of such consideration, the authorities will be required to consider the application from the security point of view and also for recovery of the cost of training. 17. Accordingly, we see no impediment in the respondent authorities considering application dated 27 March 2010 of petitioner no.1 in accordance with paragraphs 17 and 20 of the Army Order. Merely because petitioner no.1 had invoked clause (c) of paragraph 5 of the Army Order, which automatically is not applicable in the facts of the present case, it does not absolve the authorities from their duty to consider petitioner no.1's application under paragraphs 17 and 20 of the Army Order. 18. Before parting with the matter, we may like to observe that the facts emerging from the petition clearly indicate that though a foreign national, petitioner no.2 was born in India on 23 September 1983. Within two months of her birth her father met with a fatal accident and passed away on 11 November 1983. Thereafter on 30 March 1986, her mother married M. Kiran Kulkarni who adopted 9 wp289-11.sxw petitioner no.2 and changed her name from Mansi Subahu Mehta to Shruti Kiran Kulkarni. Thereafter in December 1990 petitioner no.2 moved to USA along with parents. Even then she has been frequently visiting India and has a residence in Mumbai at 3B, Vikas Apartments, N.M. Kale Marg, Near Agarbazar, Dadar, Mumbai. Petitioner no.2 also lived in Pune between August 1996 to October 1998 and completed her 8th and 9th standards from Vikhe Patil Memorial School in Pune and thereafter petitioner no.2 went back to United States of America and started residing there. After acquiring her Bachelor's degree in Arts from United States of America, petitioner no.2 gave up her job in August 2008 to April 2009 and stayed in Mumbai and Pune along with her grandparents from August 2008 to April 2009 Petitioner No.2 also worked in Mumbai from September to November 2008 and on 11 September 2008 petitioner no.2 became an Overseas Citizen of India under the Citizenship Act, 1955. It was during her stay in Pune in March 2009 that petitioner no.2 met petitioner no.1 and thereafter they got engaged in December 2009 after the parents of petitioner no.2 visited India in August 2009 to finalize her engagement with petitioner no.1. The engagement was also solemnized in Pune. 19. We wish that the concerned authorities will take into consideration the aforesaid facts before taking a final decision on petitioner no.1's application dated 27 March 2010 which shall be treated as pending as an application for resignation to be processed under paragraphs 17 and 20 of the Army Order.” (emphasis supplied). 8. The respondents informed petitioner No.1 through the impugned communication dated 8th December 2010 at Exhibit “A” to the petition that the application of petitioner No.1 for resignation from Army service was examined with due consideration of directions of this Court, 10 wp289-11.sxw but based on the merits of the case and laid down criteria in this regard, the request of petitioner No.1 has been rejected by the competent authority. 9. The petitioner, therefore, filed the present petition on 21st December 2010. In response to the notice issued by this Court, affidavit in reply was filed by Major Suyrabhan Singh. With the consent of the learned counsel for the parties, the matter was heard for final disposal. 10. In the reply affidavit, the respondents have opposed the writ petition on the following grounds :- (i) The petitioner has an alternate remedy under Section 14 of the Armed Forces Tribunal Act for challenging the impugned order. (ii) The application of petitioner No.1 for automatically considering release from service in accordance with the provisions of Army Order on the ground of proposed marriage with foreign national is premature. (iii) Under Rule 16C of Army Rules, 1954, an officer has no right to resign but has only a right to make an application for resignation. The Government of India has laid down Instructions dated 20th January 1979 for seeking premature retirement/resignation of defence service officers, which provide that such request is to be granted only on the following grounds : 11 wp289-11.sxw (a) Supersession (b) Extreme compassionate grounds (c) Low medical category (d) Failure to acquire technical qualifications. Since the application of petitioner No.1 for resignation does not fall under any of the aforesaid categories, the request is rightly rejected. (iv) It is further contended in paragraph 18 of the reply affidavit as under :- “18. ................... I say and submit that the petitioner No.1 cannot equate himself to an ordinary citizen of India. I say and submit that the petitioner No.1 is a permanent commissioned officer in the Indian Army and falls in the privileged category of persons who are shouldering the responsibility of protecting our nation. I say that a severe deficiency exists in the cadre and the country requires services of young officers. I say and submit that if an officer is granted resignation on the ground to marry a foreign national refusing to renounce present citizenship and accept Indian Citizenship, it is likely to set an incorrect precedent as this would be an easy way to make exit from Army. I say that in a similar case of an EME officer IC - 60464, Maj. Sachin Kumar had sought to resign. I say that MS legal has examined the issue in detail and had commented that allowing an officer to resign in commission to marry a foreign national unwilling to seek Indian citizenship cannot be accepted as tomorrow an officer may seek resignation on the grounds that he wants to contest elections or form trade unions, stating that since these are not acceptable in Army, his application for 12 wp289-11.sxw seeking resignation be accepted. Then this will become a good and easy ground for seeking resignation/premature retirement.” 11. At the hearing of the petition, Mr.Anand Grover, learned counsel for the petitioner, has made the following submissions :- (a) Once this Court had directed the respondents, through the judgment dated 26th October 2010, to consider the application dated 27th March 2010 of petitioner No.1 as a pending application for resignation to be processed under Paragraphs 17 and 20 of the Army Order, it was not open to the respondents to treat the application of petitioner No.1 as premature as contended in paragraph 10 of the reply affidavit. (b) It is also not open to the respondents to reject application of petitioner No.1 by applying Instructions dated 20th January 1979 referred to in paragraph 16 of the reply affidavit. The matter is governed by the subsequent Army Order 14/2004 which specifically deals with the question of an army officer desirous of marrying a foreign national being required to obtain prior Government sanction for such marriage and lays down the guidelines and rules/procedure governing the marriage of serving service personnel with a foreign national. Hence, the matter was required to be examined only with reference to Paragraphs 17 and 20 of the Army Order 14/2004. (c) The respondents were required to consider only two aspects – (i) from security point of view and (ii) for recovery of the cost of training. 13 wp289-11.sxw The respondents have not rejected the application of petitioner No.1 for resignation on the security ground. As far as the recovery of the cost of training is concerned, petitioner No.1 had paid the Government of India Rs.24,000/- per month towards the cost of training for a period of 12 months. The said amount was reimbursed to petitioner No.1 while securing final admission. The cost of training for the 12 months for the period from June 2005 to May 2006 was Rs.2,88,000/-. However, there is also a policy of the Army whereby this amount is reduced with every year of service. Therefore, the cost of training would be not more than Rs.2,50,000/-. Whatever be the exact amount, Petitioner No.1 is ready to repay the cost of training to the respondents. The Commanding Officer has recommended release of petitioner No.1 as a genuine case (pages 99-101 of the Petition) and, therefore, also the petitioner is entitled to resign from Army service upon payment of the cost of training. (d) As regards the respondents’ contention that a severe deficiency exist in the cadre of permanent commissioned officers in the Indian Army and the country requires services of young officers, the learned counsel for the petitioner has relied on two decisions of the Delhi High Court and also of the Apex Court and has made the following submissions :- (a) The petitioners have a right to marry and have a family life as a part of the right to life and liberty under Article 21 of the Constitution of India as recognised in Govind Sing vs State of M.P, AIR 1975 SC 1378 (at para 24), 14 wp289-11.sxw Reliance is also placed on the following International Conventions ratified by India. (i) Universal Declaration of Human Rights (UDHR) – Article 16.1. (ii) International Covenant on Economic, Social, Cultural Rights 1966 – (ICESCR) – Article 23 (2). (iii) International Covenant on Civil and Political Rights – Article 23(2). (e) Article 33 of the Constitution of India confers power on the Parliament by law to restrict fundamental rights of members of the Armed forces. Restrictions imposed by Section 21 of the Army Act, 1950 and Rules 19 to 21 of the Army Rules, 1954 are only in respect of certain fundamental rules (right to form associations, right to participate in political or non-military activities, right to communicate to press or publish), but there is no restriction on the rights of the petitioners to life and liberty under Article 21 of the Constitution of India. (f) Rights under Articles 14 and 21 are available not only to petitioner No.1 but also to petitioner No.2 who also holds OCI card. (Overseas Citizen of India) (Chairman, Railway Board and others vs Mrs.Chandrima Das and others, MANU/SC/0046/2000 at paragraphs 30, 31 and 32). 15 wp289-11.sxw (g) No alternative remedy is available to petitioner No.2 who is not a member of the Armed forces. Even as far as petitioner No.1 is concerned, the matter already having been examined by this Court, petitioner No.1 is entitled to approach this Court, because in spite of the specific directions of this Court requiring the respondents to treat the application of petitioner No.1 as a pending application for resignation from Army service with reference to Paragraphs 17 and 20 of the Army Order, the respondents have contended that the petitioner’s application is premature. (h) As regards the contention of the respondents that there is dearth of officers in the Army, it is not open to the respondents to reject the application of petitioner No.1 for resignation under Paragraphs 17 and 20 of the Army Order because even if the respondents are right in contending that there is dearth of officers in the Army, at the most the application can be held in abeyance for a short period but cannot be rejected. Heavy reliance is placed on two decisions of the Delhi High Court in the case of Rahul Shukla vs Union of India and others, MANU/DE/0871/1995 and Captain (Mrs.) Krishna vs Union of India and others, MANU/DE/2936/2010. 12. On the other hand, the petition has been vehemently opposed by Ms.Gauri Godse, learned counsel for the respondents, who has contended that the application of petitioner No.1 is premature. The title of Paragraphs 17 to 20 of Army Order clearly makes it clear that paragraphs 17 to 20 provide for action against service personnel who 16 wp289-11.sxw contract marriage with foreign nationals without AG’s approval and, therefore the application under Paragraphs 17 to 20 made before contracting marriage is to be treated as premature. Petitioner No.1 could not have made such an application before marriage. If petitioner No.1 resigns from the Army in order to marry petitioner No.2 and does not actually marry petitioner No.2, it would be a back door exit from the Army which cannot be countenanced. It is also submitted on behalf of the Respondents that resignation is governed by the provisions of Rule 16C of the Army Rules, 1954 which clearly provides that no Army personnel has a right to resign but he can only make an application to resign his commission. He cannot be relieved of his duties until Central Government has accepted his resignation. The grounds on which such an application for resignation can be submitted are specified in the Instructions dated 20th January 1979 (para 10(iii) hereinabove) and the application of petitioner No.1 does not fall under any of the four grounds specified in the said Instructions. Hence, the impugned decision is perfectly legal and valid. 13. In rejoinder, Mr.Anand Grover, learned counsel for the petitioners, has submitted that the stand of the respondents that the application of petitioner No.1 is premature and that the application for release/resignation can be considered only after marriage favours an Army officer whose prospective spouse gives an undertaking that after marriage she will give up the foreign citizenship and acquire Indian citizenship, but after the marriage the spouse fails to acquire Indian citizenship, his case falls under Paragraph 19 and the Army officer will 17 wp289-11.sxw get an order of release. When the Army officer and his prospective spouse honestly state that the prospective spouse, who is an Overseas Citizen of India, is not willing to acquire Indian citizenship, they would be placed in worse off situation than the Army officer whose prospective spouse