V.S. Sirpurkar, J.
1. Rule. Heard forthwith, with the consent of parties. The petitioner herein challenges the two orders passed by the Additional Director General of Army Postal Service, respondent No. 3 herein. By the first order dated 6th July, 1995 (Annexure J to the writ petition), approval is accorded by the respondent No. 3 for the relinquishment of Commission of the petitioner as also to his repatriation to the Department of Post. However, by the subsequent order, the said relinquishment is granted and the petitioner is permitted to retire from the service voluntarily without rejoining the Department of Post on relinquishment of Commission on 7th October, 1995. The petitioner's contention mainly is that his Commission should not be relinquished and he should not be repatriated to the Postal Departmental and his Military services should be continued.
2. A preliminary objection is taken by the respondents to the jurisdiction of this Court in view of the provisions of the Administrative Tribunals Act, 1985 and more particularly on the basis of section 14 thereof, on the ground that this matter being a service matter and being covered under section 14, this Court has no jurisdiction to deal with the same in view of the specific bar created under section 28 of the said Act.
3. We would, therefore, deal with the jurisdictional aspect, first : Section 14 of the Administrative Tribunals Act defines the jurisdiction of the Central Administrative Tribunal. Relevant provision of section 14 is as under :-
'14. Jurisdiction, powers and authority of the Central Administrative Tribunal. - (1) Save as otherwise expressly provided in this Act, the Central Administrative Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all Courts (except the Supreme Court) in relation to -
(a) recruitment, and matters concerning recruitment, to any All India Service or to any civil service of the Union or a civil post under the Union or to a post connected with defence or in the defence services, being, in either case, a post filled by a civilian'.
Section 2 of the said Act specifically provides that the provisions thereof shall not apply to any member of the naval, military or air forces or of any other armed forces of the Union. Section 28 further provides that no Court, except the Supreme Court, or any Industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947 would be entitled to exercise any jurisdiction, power or authority in relation to recruitment or matters concerning recruitment or such service matters as are covered by the said Act.
4. The respondents have based their preliminary objection contending that the petitioner's case is squarely covered under Section 14 of the Administrative Tribunals Act, as the post which the petitioner is holding presently, though being a post in Defence Services, it is filled in by a civilian; while the petitioner vehemently submits that his case is squarely covered by section 2 of the said Act as he is a member of the Armed Forces of the Union being Commissioned Officer of Army and as such he is covered by the Army Act, 1950 and, therefore, the Central Administrative Tribunal has no jurisdiction to deal with the matter of his employment and only this Court would have the jurisdiction. It is, therefore, to be seen as to whether the petitioner's case is squarely covered by section 2 as is his contention, or under section 14(1)(a) as is the case of the respondent. It will, therefore, be necessary to see the history of the petitioner's employment.
5. The petitioner, it appears, is a matriculate from Punjab University, and in pursuant of an advertisement issued by the Posts and Telegraphs Services Selection Board to fill in the 1200 vacancies of clerks in their department, appeared for the competitive examination held by the Department. Though the petitioner was successful, he was informed by a Memorandum dated 31st October, 1962 by the Director General, Posts and Telegraphs, New Delhi, that he was not selected for the appointment in the Unit of his choice. However, by the said Memorandum, it was intimated to the petitioner that the Department required a number of clerks for enrolment in the Indian Army Postal Services, and if the petitioner was willing to accept the offer on the terms mentioned in this Memorandum he should communicate his acceptance by a telegram to be confirmed by a letter accompanying the necessary certificates. First condition mentioned for the employment in the Indian Army Postal Service, which is reproduced in the Memorandum at page 45 of the record, is as under :
'From the date of a Candidate's enrolment in the Army Postal Service, he will be treated as a clerk of the Posts and Telegraphs Department on deputation to the Indian Army Postal Service.......'
Clause 4 of this Memorandum is as under :-
'4. He will be required to serve in the Indian Army Postal Service for a minimum period of three years or for such time as his services may be required in the Army. He will revert to civil appointment in this Department, on release from the Indian Army Postal Service. He will be given a choice to elect the unit in which he would like to serve on reversion to the civil appointment. His rights and interest in the Department during the period of his deputation to the Army Postal Service will be protected'.
As per this Memorandum, dated 31st October, 1962, it seems that the petitioner accepted the appointment and since the petitioner was otherwise found medically fit, he was selected as a Warrant Officer-II on 20th February, 1963 for 18 months. Thereafter, the petitioner successfully completed his training and was posted as a Warrant Officer in Central Base Post Office, New Delhi, on 16th May, 1963. While working on deputation in Army, the petitioner was promoted to the rank of Naib Subedar and became Junior Commissioned Officer with effect from 13-10-1973. Again in the month of February, 1976, the petitioner was selected by the Service Selection Board, Allahabad, for grant of Commission in the Regular Army, and the petitioner, being found medically fit for the selection, he was sent for Orientation Course of four weeks duration from 21-6-1976 to 17-7-1976 and, thus, he became a Commissioned Officer in the Indian Army. However, it is clear from Annexure-F to the petition that the petitioner was granted a temporary Commission in Army. The petitioner was given a rank of Lieutenant in his temporary Commission or probation and was also granted two years of weightage for the purpose of pay. The petitioner, on 24th July, 1979 was promoted to the acting rank of Captain. The petitioner was also promoted to the rank of Major while working at Delhi and he started working on his promoted rank as Major at 31 Armoured Division Postal Unit with effect from 1st July, 1983. It is at this point of time while the petitioner was working as a Major in the Army Postal Service Centre, Kamptee where he was transferred that he was superseded for the further promotion to the rank of Lieutenant Colonel. It seems that he, therefore, made a representation against his supersession to Military Secretary, when he was intimated that he should represent to the Director General Posts. The petitioner thereafter made a complaint under Section 27 of the Army Act against his supersession on 5th July, 1995.
6. The petitioner, however, received an order dated 6th July, 1995 at Annexure-J to the writ petition, which suggested that the Additional Director General, Army Postal Service has approved the relinquishment of temporary commission of the petitioner and he was repatriated to the Department to Post. The petitioner was directed to report to the Chief Postmaster, GPO, New Delhi, on his relinquishment of the Commission. On this, the petitioner wrote a letter dated 7th July, 1995 to the Chief Postmaster GPO, New Delhi, in which he informed that he had completed 32 years of qualifying service in the Department. He also contended that his present appointment was Assistant Superintendent of Post Office, Delhi Circle, and that he intended to retire voluntarily from the Department with effect from 6th October, 1995, in accordance with rule 48/48-A of CCS (Pension) Rules, 1972. He also informed that the said letter of his should be treated as notice to the Department and he should be permitted to retire voluntarily direct from the Army Postal Service without reversion to civil duties with effect from 6th October, 1995. It seems that this request was acceded to by the Assistant Postmaster General (Staff) who immediately wrote back by his letter dated 20/21-7-1995 and permitted the petitioner to retire voluntarily from the Government service with effect from 7-10-1995 without repatriation to Civil Department. This communication dated 21st July, 1995 was further confirmed by the Joint Director, Army Postal Service (Staff), one Lt. Col. M.S. Nair who also permitted the petitioner to retire without rejoining the Department of Posts on relinquishment of Commission.
7. It seems that on 14th August, 1995, the petitioner took a somersault and sought a permission to withdraw his application for premature retirement. This communication dated 14th August, 1995 is directed to the Secretary, Ministry of Defence, Government of India, New Delhi, in which the petitioner contended that he be permitted to withdraw his earlier application dated 7-7-1995 as the said application was given under pressure exerted by the Additional Director General, Army Postal Service. He claimed that he wanted to serve in Army till the age of compulsory retirement in Army (i.e., 30th November, 1998). He claimed that his complaints were pending. He also informed that his statutory complaint dated 28th July, 1995 for grant of permanent Commission by transfer from temporary Commission to Permanent Commission was also pending. The petitioner has filed appeal against the order of relinquishment of Commission and repatriation to Civil Department of Post. In short, the petitioner's contention is that his Commission should not be relinquished and he should not be repatriated to the Postal Department. Based on this, the petitioner's claim is that he is and always was an army personnel being governed by the Army Act and the question of relinquishment of his Commission was to be decided by the Army Personnel under the provisions of the Army Act and as such his case is fully covered by section 2 of the Administrative Tribunal Act and not by section 14(1)(a) thereof and as such this Court would have jurisdiction to go into the merits of his case. On merits, the petitioner has contended that there was no reason for relinquishment of his Commission and he contended that his relinquishment has been ordered without hearing him, and inspite of his being a meritorious officer, he is being sent back arbitrarily to the Civilian Department after relinquishment of his Commission.
8. We have deliberately given a full and complete resume of the petitioner's service in order to be able to appreciate the petitioner's complaints. The documents would bring out the following factual position :
(1) That, the petitioner initially had competed in the examination held by Posts and Telegraphs Department for the position of a clerk.
(2) That, he was not given the unit of his choice, as he could not compete for the same instead he was offered the position of a clerk in Army. However, his was subject to the condition that he was to remain a civil employee on deputation to Army. The petitioner accepted this and also agreed to the condition that he would revert to civil appointment in Posts and Telegraphs Department on his release from Indian Army Postal Service.
(3) That the petitioner thereafter continued to serve in Army as a permanent employee of the Posts and Telegraphs Department on deputation, and during this service, he was promoted upto the post of Major in Indian Army;
(4) That, his Commission was not a permanent Commission but a temporary Commission all through right till the last date when his relinquishment was ordered and though he claimed for grant of permanent Commission, he was not so granted.
9. From this, it would be absolutely clear that at no point of time was the petitioner a full-fledged Army employee and, in fact, he always was a civil employee on deputation to Army. In that view of the matter, it will have to be held that the petitioner's bond with his Civil Department was never snapped and he always continued to be a civil employee on deputation to Army, though during his service in the Army he rose from the position of a Warrant Officer to the rank of a Major. However, again it will have to be seen that his Commission was not a permanent Commission and was a temporary Commission and this was because he was never permanently drawn in the Army snapping his bond with his Civilian Posts and Telegraphs Department. It is, therefore, difficulty to hold that the petitioner is an army personnel within the meaning of Section 2 of the Administrative Tribunals Act and is as such not covered under Section 14(1)(a) of the said Act.
10. Shri Deshpande, learned Counsel for the petitioner very strenuously and vehemently argued that the petitioner was all through a member of the Indian Army and right from the beginning of his career and served in the Army. He also pointed out that all the matters regarding his promotion were dealt with by the Indian Army under the provisions of the Indian Army Act. His further limb of argument is that the question as to whether he should be granted a permanent Commission was a question pending and was liable to be decided by the Defence Ministry and, therefore, such question could be agitated not before the Central Administrative Tribunal but before this Court.
11. Now, there is fallacy in the argument of Shri Deshpande. It is true that this question, as to whether he should be granted a permanent Commission or not would be decided by the Defence Ministry or by Army, but the fact remains that his was a case of a person who was essentially a civil employee and on deputation to army, though he was doing his duties as an Army Officer. The fact remains that he had not forsaken his character as a civil employee on deputation to Indian Army. The petitioner, therefore, cannot get out of the language of Section 14(1)(a) of the Administrative Tribunals Act.
12. That apart, the petitioner himself has chosen to submit his application for voluntary retirement to the Civilian Personnel. As we have already pointed out earlier, the petitioner sought voluntary retirement from his service as a civilian personnel. He only wanted to retire without coming back to his parent Civil Department. This stance of the petitioner is more telling that even he treated himself, and rightly so in our opinion, to be a permanent employee of the Posts and Telegraphs Department which is a Civilian Department. Shri Deshpande was at pains to point out that the petitioner had sought permission to withdraw his application for voluntary retirement and had pressed his appeal under section 27 of the Indian Army Act. That, in our view, is of no help to the petitioner. Even if his appeal is pending under the Indian Army Act, the fact remains that he always continued to be a civilian employee permanently belonging to the Posts and Telegraphs Department.
13. At the fag end, the petitioner placed on record an affidavit by which he reiterated that the question of his supersession to the rank of Lieutenant Colonel was still pending before the Additional Military Secretary who had interviewed him and that the Additional Military Secretary had directed the Deputy Military Secretary to ask Additional Director General, Army Postal Service to obtain the decision on the voluntary retirement notice and its withdrawal from the Central Government. The petitioner further reiterated in his affidavit that he was told by one Colonel Y.S. Mohan that he had received a letter from Military Secretary's Branch (Ms-16-B) asking the Additional Director General, Army Postal Service, to obtain such approval. The petitioner has quoted the number of this letter, which is No. 02582/2/RVC/MS-16-B, dated 6th October, 1995. On this basis, Shri Deshpande submits that in fact the question of the petitioner's permanent Commission as also of his supersession was still pending. Even if such question is pending, that cannot have the effect of stopping the plaintiff's relinquishment of the Commission which is already ordered. Even if the petitioner is relinquished, his question may still be decided, as is the petitioner's contention. However, considering the over-all situation, we hold that since the petitioner is an employee of the Posts and Telegraphs Department permanently belonging to the same, the question of his employment cannot be dealt with in this petition. The petition is, therefore, liable to be dismissed. However, we clarify that the petitioner may take such other steps as are available to him in law.
14. For the reasons stated above, the petition is dismissed as not maintainable. No costs.