Sgt. Indera Bahadur Singh And Ors. vs Union Of India (Uoi) And Ors.
1998 Latest Caselaw 704 Del

JUDGMENT

K. Ramamoorthy, J.

1. The petitioner joined IAF as an airman as Mechanical Transport Driver on the 24th of August, 1977. He was promoted to the rank of Corporal in 1982. In 1992, he was granted 6 years extension of service. On the 2nd of August, 1995, the petitioner was promoted to the rank of Sergeant. On the 24th of October, 1996, the petitioner applied for extension of service for the second time. In February, 1997, the petitioner again applied for extension of service w.e.f. September, 1998. In May, 1997, the petitioner's request for extension of service was rejected. In September, 1997, the petitioner again reminded that he has requested for extension of time because he has cleared the JWO Exams, which was the reason for rejection of extension of service in May, 1997, and therefore, his case for extension of service can be considered. On the 7th of October, 1997, the petitioner received intimation that he is to be discharged from service w.e.f. 31.8.1998. In May, 1998, according to the petitioner, he was informed orally that his statutory representation had been rejected as per the policy dated 6.11.1995. According to the petitioner, JWO P.R.Sharma (now Warrant Officer) was given promotion after he was found 'Below Grading'. JWO M.I. Ansari was given three years extension w.e.f. 23.6.1998 who was earlier placed in 'Below Grading'. JSO S.P.S.Yadav was granted three years extension, who was earlier also placed in 'Below Grading'.

2. It is stated in the petition that the policy dated 6.11.1995 is illegal. It had been issued by an authority who did not have the power. The policy is discriminatory and it makes distinction between officers and airmen, and the respondents are guilty of violation of principles of natural justice. The petitioner was not given any opportunity to explain his 'below grading' and stigma is attached to the order of discharge.

3. In the counter-affidavit, the allegations of the petitioner are controverted. According to the respondents they had acted in accordance with law. The policy dated 6.11.1995 had been issued by the authority who was competent to issue the same. The petitioner cannot claim extension as a matter of right. The respondents had to consider the several persons claiming extension of service and some formula had been evolved for short-listing the airmen. It is only on that basis the extension of service was granted or refused. The action of the respondents is perfectly legal. The petitioner cannot claim the extension of service on the basis that there is a stigma attached to the order of discharge.

CW.3396/98

4. The facts of this case can be stated briefly in the following terms:

5. The petitioner joined IAF as an airman as Catering Assistant in Group IV on the 12th of August, 1972. He was promoted to the rank of Corporal in 1977. In April, 1986, he was promoted to the rank of Sergeant. In May, 1997, the petitioner applied for extension of service w.e.f. September, 1998 for three years. In August, 1997, that request was rejected on the ground that the petitioner had not cleared his JWO Exams. By a communication dated the 7th of October, 1997, the petitioner was informed that he will be discharged from service w.e.f. 31.8.1997. In November, 1997, the petitioner had cleared JWO Part I written Exams and at that time he was awaiting the result of Part II written Exams. In March, 1998, the petitioner filed an application for reconsideration for extension of service. In July, 1998 that was rejected.

6. The stand taken by the respondent is the same as in the other case.

CW.3729/98

7. In this writ petition, the facts necessary for the consideration of the points raised by the learned counsel for the parties are as follows: On the 12th of August, 1972, the petitioner joined the Air Force as an airman as Test RT Operator. The petitioner was promoted in 1978 to the rank of Corporal. On the 1st of August, 1989, he was promoted as Sergeant. The petitioner, after his first 15 years of service, was

granted six years and later five years extensions of service. The petitioner is 43 years old. He can serve, according to him, up to the age of 55 years.

8. In June, 1997, he applied for three years extension of service which was not granted on account of below grading. By order dated 27.8.1997, he was discharged from service.

9. The petitioner has also enclosed the certificate issued by the Station Commander, Admin Training Institute, Belgaum, wherein it is stated that the petitioner has successfully completed the Junior Warrant Officers Management Course held at Admin Training Institute, Air Force from 6th January, 1997 to 15th February, 1997. On the 17th of December, 1997, he made a representation for reconsideration. That was also rejected. Therefore, the petitioner has filed the writ petition.

10. The respondent had taken the stand that they had acted in accordance with law.

CW.3731/98

11. The facts necessary for the disposal of this case are as follows:

12. The petitioner joined the Indian Air Force as an airman on the 16th of December, 1969 as Mechanical Tpt Driver. The petitioner, after the initial engagement of 15 years, was granted six years and three years extensions of service and that is to come to an end in December, 1998. In June, 1997, the petitioner applied for further three years extension, which is the third one. In March, 1998, the petitioner was informed that extension is not granted to him on the ground of 'below grading'. In April, 1998, the petitioner was informed that he would be discharged from service w.e.f 31.12.1998. The petitioner gave an application for reconsideration and the same was rejected. Hence the petitioner has filed the writ petition.

CW.3777/98

13. The facts necessary for the appreciation of the points dealt with by the learned counsel for the parties are as follows:-

14. The petitioner joined as airman as Equip Assistant in the Indian Air Force on the 14th of February, 1973. After his first 15 years of service, he was granted extensions of service in the year 1988 and 1995. On the 28th of July, 1997 the petitioner applied for another extension of service. In March, 1998, the petitioner was informed that extension is not granted to him as per the policy dated 6.11.1995. The petitioner filed a statutory appeal on the 24th of April, 1998, which was recommended by the Specialist Officer and the Commanding Officer. In July, 1998, the petitioner was orally informed that his appeal had been rejected, in the light of policy, on account of below grading. According to the petitioner, he is entitled to extension of service.

CW.3935/98

15. The facts necessary for the appreciation of the points dealt with by the learned counsel for the parties are as follows:

16. On the 12th of January, 1970, the petitioner joined the Indian Air Force as an airman Red Tech Wom II. The petitioner was granted two extensions; one in 1990 and another in 1996. In July, 1997, the petitioner applied for extension of service.

The Specialist Officer recommended strongly the case of the petitioner for extension of his service. In March, 1998, the petitioner was informed that extension would not be granted to him and discharged order was issued on the 11th of March, 1998, which is to take effect from 30.1.1999. According to the petitioner, because of the view taken by the respondents that the petitioner was below grading, his extension was not granted. In March 1998, the petitioner filed the statutory appeal. In July, 1998, the petitioner was informed that his appeal had been rejected.

17. In all the cases, it is stated that officers similarly situated, who were also within 'below grading' had been given extension after cancelling the discharge order.

CW.3942/98

18. The facts necessary for the appreciation of the points dealt with by the learned counsel for the parties are as follows:

19. The petitioner joined the Indian Air Force as an airman as Red Fit Group-1 in December, 1963. The petitioner was granted extensions many times. As per the decision taken by the Government of India on the 30th of May, 1998, airmen are entitled to serve upto the age of 57 years, though earlier, according to the petitioner, the age of retirement was fixed at 55 years. In March, 1997, the petitioner applied for last extension of service. By letter dated 24th of February, 1998, the petitioner was informed that his extension would not be granted. According to the petitioner, the discharge order was issued on the 26th of February, 1998 which is to take effect on 31.12.1998. On the 12th of March, 1998, the petitioner filed an appeal for reconsideration which was duly recommended by the Station Commander. In June, 1998 he filed an appeal to the defense Minister and on the 25th of June, 1998 his request for extension of service was rejected on the basis of the policy dated 6.11.1995. According to the petitioner, there was no adverse remark against him for the last 35 years of service. Aggrieved by refusal of extension of service, the petitioner has filed the writ petition.

CW.4039/98

20. The facts necessary for the appreciation of the points dealt with by the learned counsel for the parties are as follows:

21. On the 7th of August, 1963, the petitioner joined the Indian Air Force as an airman in the trade of R. T. O. Many extensions were granted to the petitioner. Before the expiry of the extension period, in 1997 the petitioner applied for extension of service. The extension was refused and the discharge order was issued on the 27th of August, 1997. On the 24th of November, 1997, the petitioner applied for reconsideration. On the 3rd of January, 1998, the petitioner was informed that his request had been rejected on the basis of 'below grading' policy dated 6.11.1995. On the 10th of June, 1998, the petitioner sought interview with AOC-in-C and that was not granted. On the 13th of June, 1998, the petitioner had interviewed with AOC-in-C. On the 18th of June, 1998, the Air Officer Commanding sent the matter to the higher authorities and assured the petitioner that he would get justice. The petitioner filed the writ petition No.24788/908 in the High Court of Allahabad. He with-

drew the same. In August, 1998, the petitioner was informed that his reconsideration petition for extension of service was rejected. Hence the writ petition.

CW.4067/98

22. The facts necessary for the appreciation of the points dealt with by the learned counsel for the parties are as follows:

23. The petitioner was enrolled in the Air Force as airman in the trade of M. T. D. on the 25th of September, 1963. On the 19th of September, 1997, discharge order was issued. On the 15th of July, 1998, the petitioner sent an application for reconsideration for extension of service but that was not forwarded to the higher authorities. Therefore, the writ petitioner had filed this writ petition.

CW.4089/98

24. The facts necessary for the appreciation of the points dealt with by the learned counsel for the parties are as follows:

25. The petitioner was enrolled as airman in the Indian Air Force in the trade of Radar Operator on the 22nd of August, 1963. On the 7th of August, 1997, discharge order was released. On the 26th of September, 1997, the petitioner applied for reconsideration and it was rejected. On the 12th of August, 1998, the petitioner again applied for reconsideration. The petitioner has filed this petition challenging the discharge order.

26. Mr. Narender Kaushik and Mr. R.P.A. Jaiswal, the learned counsel for the petitioners, submitted that in all the cases the same points arise for consideration. The learned counsel Mr. Narender Kaushik, who advanced arguments, submitted that:

1. the policy dated 6.11.1995 is discriminatory, violative of Articles 14 & 16 of the Constitution of India;

2. the policy dated 6.11.1995 was issued by an authority who was not competent to issue and, therefore, it has absolutely no legal effect;

3. the discharge orders had been passed on the basis of 'below grading' of the petitioners which would mean that adverse remarks had been made about the performance of the petitioners and, therefore, it would amount to punishment;

4. the discharge orders had been passed without adhering to the principles of natural justice.

27. The learned counsel for respondents, Ms. Rekha Palli, submitted that no question of discrimination would arise in this case and the policy dated 6.11.1995 had been issued with the concurrence of the Chief of the Air Staff and he had the power to issue the policy. The discharge orders had been issued following the policy evolved on the 6th of November, 1995 and the policy had been applied uniformly in the case of all airmen and there was no adverse remark at all against any of the petitioners. What the respondents had considered was that for the purpose of extension of service, the airman concerned should satisfy the requirement mentioned in the

policy. The airmen who had not come up to the level mentioned in the policy had not been granted extension.

28. The learned counsel for respondents, Ms. Rekha Palli, submitted that the petitioners applied for extension of service and that was considered in the light of the policy dated 6.11.1995 and, therefore, no question of violation of principles of natural justice would arise.

29. Mr. Narender Kaushik submitted that as per the Air Force instructions 12/S/48, the airmen could serve up to the age of 55 years. On the 13th of May, 1998, the Government of India had increased the age of retirement by two years and, therefore, the airmen would be entitled to continue up to the age of 57 years and on that ground the discharge orders are liable to be set aside.

30. To this, the learned counsel for respondents, Ms. Rekha Palli, submitted that the Government had considered the case of regular employees and that would not apply to the case of airmen, whose services have to be considered in the light of Air Force instructions issued in 1948 read with policy dated 6.11.1995.

31. The first point to be considered is: Whether the policy dated 6.11.1995 is discriminatory and violative of Articles 14 & 16 of the Constitution of India.

32. Mr. Narender Kaushik referred to Section 2 of the Air Force Act, 1950. Section 2 reads as under: -

"Persons subject to this Act-The following persons shall be subject to this Act wherever they may be, namely:

(a) Officers and warrant officers of the Air Force;

(b) persons enrolled under this Act;

(c) persons belonging to the Regular Air Force Reserve or the Air defense Reserve or the Auxiliary Air Force, in the circumstances specified in Sec.26 of the Reserve and Auxiliary Air Forces Act, 1952 (62 of 1952);

(d) persons not otherwise subject to air force law, who, on active service, in camp, on the march, or at any frontier post specified by the Central Government by notification in this behalf, are employed by, or are in the service of, or are followers of, or accompany any portion of the Air Force."

33. According to the learned counsel for the petitioner, the airmen and the officers of the Air Force are subject to the Air Force Act, 1950 While the airmen are subject to the Air Force Act, 1950, officers of the Air Force are not subject to any such policy and there is invidious discrimination practised against airmen. The officers of the Air Force and the airmen are belonging to entirely different categories and, therefore, there can be no question of any discrimination practised by the Government while framing the policy. The principle is well settled right from Shri Ram Krishna Dalmia's case .

34. Therefore, I have no hesitation in coming to the conclusion that the point relating to discrimination raised by the learned counsel for the petitioners has absolutely no substance.

35. The second point is with reference to the power of the authority to issue the policy dated 6.11.1995. The policy dated 6.11.1995 is signed by the Air Marshal and it is stated:

"The issue of this letter is with the concurrence of the Chief of the Air Staff and supersedes all letters on this subject."

The original record relating to this policy was produced before Court and the Chief of the Air Staff had completely approved the same. Therefore, the contention that the policy was not issued by the Chief of the Air Staff does not merit any consideration.

36. Mr. Narender Kaushik, the learned counsel for the petitioners, further contended, when the matter was re-heard, that it is only the Government of India that can issue the orders or instructions and the Chief of the Air Staff has no power. In this behalf, he referred to Regulations 917 & 915 for the Air Force. Regulation 917 reads as under:-

"Air Force Order. Air Force Orders will be issued by the Chief of the Air Staff on matters of an administrative nature affecting the air force formations and units as a whole."

37. According to the petitioners, the Chief of Air Staff is authorised only in respect of matter of administrative nature and the policy is not within the purview of this regulation.

38. The Regulation 915 reads as under:-

"Air Force Instructions. All Government of India sanctions of a general nature or those which affect an appreciable number of units, individuals or classes of individuals will be published as air force instructions. All decisions of this kind will be published in a self contained and compact form clarifying their meaning without necessitating any reference to other books or documents.

The learned counsel for the petitioners, Mr. Narender Kaushik, submitted that it only the Government of India that could give instructions. I am not able to accept the submission of the learned counsel for the petitioners. The Chief of the Air Staff is competent to issue the policy.

39. The third submission was that the discharge orders had been issued on the ground of 'below grading' which is adverse in nature and the same was not communicated to the petitioners, and therefore, the discharge orders are vitiated. Mr. Narender Kaushik, the learned counsel for petitioners for his proposition relied upon the following decisions:-

1. "Gurdial Singh Fijji Vs. State of Punjab & Others", .

2."Brij Mohan Singh Chopra Vs. State of Punjab", .

3. "State of Haryana Vs. P.C.Wadhwa, IPS, Inspector General of Police & Another", (1987) 2 SCC 603.

4."Vijay Kumar, LAS Vs. State of Maharashtra & Others", 1988 Supp SCC 674.

5. "Baidyanath Mahapatra Vs. State of Orissa & Another", .

6. "S. Ramachandra Rajit Vs. State of Orissa", 1994 Supp (3) SCC 424.

7. "U.P. Jal Nigam & Others Vs. Prabhat Chandra Jain & Others", .

8."M.A.Rajasekhar Vs. State of Karnataka & Another", .

40. The dicta laid down by the Supreme Court in these cases do not apply at all to the facts and circumstances of this case. Under the Air Force Instructions, 1948, provision is made for period of engagement. The same reads as under:-

"Period of Engagement: Candidate will be conveyed with effect from the date of enrolment for the undercounted periods of service with the Regular Air Force and in the Regular Air Force Reserve:-

(a) Regular Service

(i) Candidates will be enrolled initially for 15 years regular service but those who fail to attain the rank of Corporal within 9 years will be discharged.

Note: Airmen already serving their 9 years initial engagement may be allowed to contract for 15 years engagement counting from the date of their enrolment subject to the fulfillment of the condition mentioned in this Sub-clause.

(ii) On completion of 15 years regular service an airman may be allowed, at the discretion of the C.A.S. to extend the period of regular service by 6years to complete 21 years service further extension of regular service may be granted for a period of 3 years at a time or such shorter period as deemed necessary up to the age of 55 years."

41. The learned counsel for the petitioner, Mr. Narender Kaushik conceded that the petitioners had not challenged this. Therefore, the authority concerned is vested with the discretion, after the completion of 15 years of regular service, to grant extension to airmen. The petitioners cannot claim extension as a matter of right. Now, having regard to the number of airmen employed, with a view to retaining the suitable candidates, some method had to be evolved and the policy dated 6.11.1995 had been issued. The relevant para of the policy dated 6.11.1995 reads as under:-

The initial Term of Engagement for Airmen is 20 years vide para 12 of AFI 12/S/48 (amended vide AFI 21/79 Corrigendum 15/79) and for the NCs(E) it is 15 years vide AFI 14/80. I here being no other type of Engagement prevailing at present, this letter is being issued to bring the subject under one policy letter in its entirety."

42. In paragraph 3 (f) of the policy dated 6.11.1995, the criterion for the consideration of extension is mentioned. The same reads as under:-

"ACR & ASSESSMENTS For the purpose of grant of extension, annual assessments and/or his assessments in confidential report during the last

five years will be considered. An airman who has secured an average of 60% or above marks in his assessments/confidential report shall be eligible for grant of First Extension of Engagement, subject to his fulfillling other conditions as laid down in this policy. For the second and subsequent spells of Extension of Engagement, the airman will have to score the minimum average which is required for him to be promoted to the next higher rank. This will be applicable for all airmen whose regular engagement expires on or after 01 Jul 98."

43. The power of the Chief of Air Staff to prescribe the formula or the method cannot at all be disputed by the petitioners. For, the extension of their service would depend upon the various factors and the evidence of the petitioners, and the airmen similarly situated have to be considered by the Chief of Air Staff. When large number of airmen claim extension, that has to be considered by the Chief of Air Staff. Therefore, this criterion had been prescribed. The discharge orders had been issued on the ground not that the petitioners were found 'not fit' but better candidates are available whose services have to be extended and the requests of the petitioners were found not satisfying the standard prescribed. By this, no stigma is attached to the petitioners. Therefore, the petitioners cannot be heard to contend that by way of punishment, below grading was adopted and by making an adverse entry, discharge orders had been issued.

44. The petitioner had ignored the crucial fact that they are asking for extension and under the instructions, the merit of each of the candidates has to be considered. Therefore, the assumption on the part of the petitioners that on the basis of some adverse entry in the ACRs, discharge orders had been issued is not at accepted. The respondents had acted fairly and in accordance with policy and I do not find any infirmity or impropriety in the orders issued by the respondents.

45. Mr. Narender Kaushik, the learned counsel for the petitioners had relied upon the judgment of the Gauhati High Court in "Sri Bummed Singh Choudhury Vs. Union of India & Others", in C.Rule No.208(SH)97. The ratio laid down therein would not apply to the facts of the instant case.

46. Mr. Narender Kaushik, the learned counsel for the petitioners, had relied upon the orders passed by me in some cases. In those cases, the matter was not argued fully and the policy was not even filed and the matter was not elaborately argued and I was not invited to consider the effect of the request of extension made by the petitioners. No ratio had been laid down in those cases which could be made applicable to the fact and circumstances of the writ petitions.

47. Ms. Rekha Palli, the learned counsel for the respondents, had relied upon the judgment of the Allahabad High Court in "Squadron Leader Girt Narayana Raju Vs. Officer Commanding 48 Squadron & Others", . I do not deem it necessary to refer to the same in view of the conclusion arrived at by me.

48. The learned counsel for the petitioners, Mr. Narender Kaushik, submitted that the respondents had not adhered to the principles of natural justice. I am quite un-

able to appreciate this submission. What has happened in this case is that the petitioners had prayed for extension. Exercising his discretion, the concerned authority had refused to grant extension applying the criterion or the formula mentioned in policy dated 6.11.1995. Wherever the authority had found airman suitable, they had been granted extension. The petitioners themselves admitted that in some cases after issuing discharge orders, the concerned authority had cancelled the same and had granted extension. Therefore, it is clear that the authority concerned had acted after taking into account all relevant factors.

49. I am not able to find any irregularities or illegality in the discharge orders issued by the concerned authority. Accordingly all the writ petitions stand dismissed.

50. There shall be no orders as to costs.