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the Citizenship Act, 1955
Article 23(2) in The Constitution Of India 1949
Article 21 in The Constitution Of India 1949
Captain (Mrs.) Krishna vs Uoi & Ors. on 8 October, 2010
Rahul Shukla vs Union Of India And Ors. on 9 August, 1995
Citedby 4 docs
No. 6920275-W Naik M.K. Moorthy ... vs The Chief Of The Army Staff And Ors. on 9 September, 2004
No. 13960370 - Ank/Na B.K.S. Yadav ... vs Chief Of The Army Staff Through Oic ... on 9 September, 2004
Sarbjit vs Piara Lal And Ors. on 1 April, 2005
Smt. Sarabjit Wd/O Sh. Mukesh ... vs Sh. Piara Lal And Anr. on 1 April, 2005
Sunil Kumar Yadav vs The Union Of India & Ors on 17 May, 2016

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Bombay High Court
Major Yogesh Chandra Madhav ... vs The Chief Of Army Staff on 25 March, 2011 User Queries
army
Bench: S.J. Vazifdar foreign national
1 army order no.
citizenship
wp289-11.sxw order 14
march 2010
IN THE HIGH COURT OF JUDICATURE AT BOMBAY marriage is not a contract
army rule
accountant general
resignation army
rahul shukla
shukla
RAHUL
CIVIL APPELLATE JURISDICTION
marriage with a foreign
'article 309 ORR army rules 1954'
army rules 1954
dv
indian army
foreign national marriage with
WRIT PETITION NO.289 OF 2011 overseas citizen of india

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. ig )

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. )
 ::: Downloaded on - 09/06/2013
17:08:28 :::
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

JUDGMENT (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.

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
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, 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 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.

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.

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 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, 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 :
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 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.

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), 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).

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 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 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 has given an undertaking to acquire Indian citizenship and then fails to carry
out the undertaking.

14. The learned counsel for the petitioners further states that though initially while making the application
in March 2010, the petitioners had decided to marry in December 2010, petitioner No.1 did not want to
marry without permission of the Army authorities, as petitioner No.1 is desirous of honorably resigning
from the Army where petitioner No.1's father also served with distinction as a Colonel in 1990-92. But in
view of the stand now being taken by the respondents, the petitioners have no other alternative but to
decide finally to get married at Pune on 28th May 2011. The petitioners through Colonel M.B.Sayankar have
accordingly filed an affidavit with a copy of the invitation card.

15. Having heard the learned counsel for the parties, we have given anxious consideration to the rival
submissions. We find considerable substance in the submission of the learned counsel for the petitioners
that by judgment dated 26th October 2010, this Court had directed the respondents to consider the
application of petitioner No.1 dated 27th March 2010 as an application for resignation to be processed
under Paragraphs 17 and 20 of the Army Order (14/2004) which clearly deals with the case of Army
personnel desirous of marring foreign wp289-11.sxw nationals. It is true that Rule 16C of the Army Rules,
1954 provides that an officer shall have no right to resign his commission and that he has only right to
submit an application to resign his commission, but reliance placed by the respondents on Instructions
dated 20th January 1979 is thoroughly misconceived.

16. Instructions dated 20th January 1979 were mere executive Instructions, Paragraph 13 of the affidavit in
reply says that Army Order 14/2004 MI is issued by the "Commanding Officer" and falls under the category
of "customs of the service" which is in consonance with the Army Act, 1950 and applies in full force to the
guidelines and rules/procedures laid down for marriage with a foreign national. Army Order 14/2004
having been made after the said Instructions and the said Army Order specifically deals with situation
where Army personal desirous of marrying foreign national is required to obtain prior Government
sanction for such marriage and Paragraphs 17 and 20 of the said Army Order specifically provide for an
application for resignation in order to be able to marry a foreign national clearly provides for desire to
marry a foreign national as a valid ground for resignation.

In our view, therefore, the matter is governed by Army Order 14/2004 which is not inconsistent with Rule
16C of the Army Rules, 1954.

17. Coming to the next defence urged by the learned counsel for the respondents that the application made
by petitioner No.1 was premature, as the title above Paragraphs 17 to 20 contemplate an wp289-11.sxw
application being made only after the Army officer contracts marriage with a foreign national, this defense
is also thoroughly misconceived. A bare perusal of Paragraphs 17 to 20 read with the previous paragraphs,
reveals the following scheme of Army Order 14/2004 :-
A (i) An Army officer desirous of marrying a foreign national is required to obtain prior Government
sanction for such marriage;
(ii) Application for obtaining sanction is to be made 120 days
(iii) prior to the proposed date of marriage; Application has to be accompanied by the following documents
:-
(a) an application from the Officer for release from the Army for personal reasons as per Appendix "B" ;
(b) a written undertaking from the foreign national (prospective spouse) as per Appendix C to the effect
that she will renounce her original nationality and accept Indian citizenship as soon as the Indian
Citizenship Act, 1955 permits her to do so.
(c) an undertaking from the Officer as per Appendix "D"
to the effect that his application for release from the service may be processed automatically as per the
application for release from service submitted vide paragraph 5(a) above, if his spouse refuses to acquire
Indian citizenship or willfully delays acquisition of Indian citizenship, wp289-11.sxw B. Paragraphs 17 to
20 contemplate that any of the following three situations may arise :-
(i) An Army officer contracts marriage with a foreign national without permission. When this fact is
reported through proper channel, administrative action to terminate services of the officer will be
undertaken by the concerned authority and in such a case the officer shall have to refund the entire cost of
his training (paragraph 18 read with paragraph 17).
(ii) where an officer makes an application for permission to marry a foreign national with an undertaking
from the foreign national (prospective spouse) to the effect that she will renounce her original nationality
and accept Indian citizenship and in the event of failure and/or refusal by the spouse after marriage to
change her nationality as per such undertaking, the case shall be processed with a view to release/retire
the officer from service without terminal benefit and obtain refund of entire cost of training (paragraph
19).
(iii) where the Army officer proposes to resign in order to be able to marry a foreign national and submits
an application for resignation, the concerned authority will obtain Government sanction in consultation
with military intelligence (from security point of view and refund of costs) and process the application as
per Government's sanction (paragraph 20 read with paragraph 17).
wp289-11.sxw

18. It is thus clear that the application of petitioner No.1 falls under the third category and, therefore
Paragraph 20 read with Paragraph 17 will be applicable and this was the direction given by this Court in
the judgment dated 26th October 2010. In this view of the matter, the respondents' stand that the
application of petitioner No.1 for resignation is premature and that such an application can be made only
after the officer contracts marriage with a foreign national cannot be accepted. Further, there is nothing in
Rule 16C which requires an application for resignation to be made only after marriage. It may be made on
the basis of the applicant intending to get married.

19. We may now turn to the justification given by the respondents in paragraph 18 of the reply affidavit.
The respondents have stated that petitioner No.1 is a permanent commissioned officer in the Indian Army
and a severe deficiency exists in the cadre and the country requires services of young officers.

A similar defence by the Army to reject the request of a permanent commissioned Army officer in case of
Rahul Shukla (supra) was considered by a Division Bench of the Delhi High Court speaking through
Mr.Justice R.C. Lahoti (as His Lordship then was) and the Court laid down the following principles :-
"(11) Assuming that the right of an army personnel to resign from his commission in army may not be so
wide and absolute as it may be in civil services, yet the authorities in the army are bound to follow the
regulations of the army and they have to play within the four corners wp289-11.sxw laid down thereby
subject to provision of law. A reading of the several provisions of that Section of the Army Manual which
deals with the removal resignation and retirement of army personnel, specially the provisions which we
have quoted hereinabove, in our opinion, leads to a few inferences. The applications for voluntary
retirement or resignation though dealt with on similar footing do not in fact deserve so. While an
application seeking voluntary retirement is fettered by several riders and discretion lies with competent
authority to accept or not to accept the prayer; a prayer for resignation has to be dealt with on different
footing as the discretionary power vested in the authorities taking decision on application for resignation
is limited and circumscribed.

(12) An application for resignation may be rejected if it is not based on adequate and justifiable reasons.
The over- riding consideration is whether the officer's continuance in service for a specific period is
necessary to meet exigencies in a service and alternative arrangements cannot be made.
Even in such a case the application for resignation cannot be rejected. It can only be held in abeyance. In
the case at hand it is not the case of the respondent that the facts stated by the petitioner in his application
for resignation were false or were not adequate or not justifiable. That finding could not have been arrived
at in as much as the Colonel Commanding Officer having personally reviewed the application, was satisfied
of the validity thereof. Any higher authority to form an opinion different from the one expressed by the
Colonel Commanding Officer must have been possessed of material concrete enough to form a different
opinion which it is not so.

(13) The ground on which the application has been turned down is the necessity of the petitioner
continuing in service to meet exigencies thereof. That cannot be a ground for rejection of the application. It
may be a ground for keeping the application in abeyance. Unfortunately on two wp289-11.sxw occasions
the grounds available for keeping the application in abeyance was utilised for rejecting the application."
(emphasis supplied).

20. Similarly, in Captain (Mrs.) Krishna vs Union of India and others (supra), decided recently on 8th
December 2010, a Division Bench of the Delhi High Court dealt with the case of a permanent commissioned
Captain in the Military Nursing Services. The Delhi High Court again reiterated the pronouncement in
Rahul Shukla's case (supra) and also noted in paragraph 70 of the judgment in Captain Krishna's case
(supra) that the Special Leave Petition filed by the Army against the decision in Major Rahul Shukla's case
was rejected and, therefore, the respondents are bound to consider application for resignation from
commission from the forces in accordance with the principles laid down in Rahul Shukla's case (supra).

21. Ms.Gauri Godse, learned counsel for the respondents, however, sought to distinguish the above
judgments by contending that Rahul Shukla was not an Engineer but a Medical Doctor on Short Service
Commission and that Capt.(Mrs.) Krishna's case was that of an officer in the Military Nursing Service but
not in an engineering service where there is great deficiency.

22. We fail to see how the decisions of the Delhi High Court can be distinguished merely because in those
cases the petitioner was a Medical Doctor or a Nursing Officer and not an Engineer. The principles wp289-
11.sxw laid down in the aforesaid decisions are very clear, that while an application seeking for voluntary
retirement is fettered by several riders and discretion lies with competent authority to accept or not to
accept the prayer, a prayer for resignation has to be dealt with on different footing as the discretionary
power vested in the authorities taking decision on application for resignation is limited and circumscribed.
Even where the officer's continuance in service is necessary on the ground that alternate arrangement
cannot be made, even in such a case the application for resignation cannot be rejected and can only be
held in abeyance.

Accordingly, when petitioner No.1 submitted application in March 2010, respondents could have, on the
ground of non-availability of another Engineer, deferred consideration of the application for resignation
for some time. One year has elapsed since petitioner No.1 made that application.

23. Lastly, coming to the apprehension that Petitioner No.1 may not marry after acceptance of resignation,
can be easily taken care of by accepting resignation with effect from the date of marriage which is going to
be on 28th May, 2011 and subject to proof of the marriage being furnished.

24. In view of the above discussion, the petition is allowed. The decision conveyed through the impugned
communication dated 8th December 2010 at Exhibit "A" to the petition is quashed and set aside and the
respondents are directed to reconsider the application dated 27th March 2010 of petitioner No.1 for release
as a pending application for wp289-11.sxw resignation and to consider the same under Paras 17 and 20 of
the Army Order 14/2004 and in light of the observations made hereinabove and also in our judgment dated
26th October 2010, as expeditiously as possible, and within one month from the date of receipt of this
judgment.
The parties to act on an ordinary copy of this judgment duly authenticated by the Court Associate.

CHIEF JUSTICE S.J. VAZIFDAR desktop-wp289-11